<PAGE> 1
As filed with the Securities and Exchange Commission on March 29, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BURR-BROWN CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 86-0445468
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6730 TUCSON BOULEVARD, TUCSON, ARIZONA 85706
(Address of principal executive offices) (Zip Code)
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
(Full title of the plan)
SYRUS P. MADAVI
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BURR-BROWN CORPORATION
6730 TUCSON BOULEVARD, TUCSON, ARIZONA 85706
(Name and address of agent for service)
(602) 746-1111
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
<S> <C> <C> <C> <C>
Future Investment Trust:
Common Stock, 500,000(1) $18.75(2) $9,375,000(2) $3,232.75
$0.01 par value
================================================================================================================
</TABLE>
(1) In addition to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate
amount of interests under the Burr-Brown Corporation Future Investment
Trust (the "Plan") to be offered or sold pursuant to the Plan.
(2) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Plan by reason of any
stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the outstanding shares of Common Stock
of Burr-Brown Corporation (the "Registrant").
(3) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the high and
low selling prices per share of the Registrant's Common Stock of on
March 22, 1996 as reported by the Nasdaq National Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Burr-Brown Corporation (the "Registrant") and the Burr-Brown
Corporation Future Investment Trust (the "Plan") hereby incorporate by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "SEC"):
a. (1) The Registrant's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995;
(2) The Plan's Annual Report on Form 11-K for
the fiscal year ended December 31, 1994, filed with the SEC on June 28,
1995;
b. The Registrant's Registration Statement No.
0-011438 on Form 8-A filed with the SEC on August 1, 1989, as amended,
pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), in which there is described the terms, rights
and provisions applicable to the Registrant's outstanding common stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Restated Certificate of Incorporation
provides that no director or member of the Executive Committee of the
Registrant's Board of Directors will be personally liable to the Registrant or
any of its stockholders for monetary damages arising from the director's or
member's breach of fiduciary duty. However, this does not apply with respect to
any action in which such person would be liable under Section 174 of Title 8 of
the General Corporation Law of Delaware, nor does it apply with respect to any
liability arising from the fact that such person (i) breached his duty of
loyalty to the Registrant; (ii) did not act in good faith or, in failing to act,
did not act in good faith; (iii) acted in a manner involving intentional
misconduct or a knowing violation of law or, in failing to act, shall have acted
in a manner involving intentional misconduct or a knowing violation of law; or
(iv) derived an improper personal benefit.
Pursuant to the provisions of Section 145 of the General
Corporation Law of Delaware, Registrant has power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed
II-1.
<PAGE> 3
action, suit or proceeding (other than an action by or in the right of the
Registrant) by reason of the fact that he is or was a director, officer,
employee or agent of the Registrant or of any corporation, partnership, joint
venture, trust or other enterprise for which he is or was serving in such
capacity at the request of the Registrant, against any and all expenses,
judgments, fines and amounts paid in settlement and reasonably incurred by him
in connection with such action, suit or proceeding. The power to indemnify
applies only if such person acted in good faith and in a manner he reasonably
believed to be in the best interests, or not opposed to the best interests, of
the Registrant, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The power to indemnify applies to actions brought by or in the
right of the Registrant as well, but only to the extent of defense and
settlement expenses and not to any satisfaction of a judgment or settlement of
the claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence or
misconduct unless the court, in its discretion, feels that in the light of all
the circumstances indemnification should apply.
To the extent any of the persons referred to in the two
immediately preceding paragraphs is successful in the defense of the actions
referred to therein, such person is entitled pursuant to Section 145 to
indemnification as described above. Section 145 also grants power to advance
litigation expenses upon receipt of any undertaking to repay such advances in
the event no right to indemnification is subsequently shown. The Registrant may
also obtain insurance at its expense to protect anyone who might be indemnified,
or has a right to insist on indemnification, under the statute.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Number Exhibit
-------------- -------
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration No. 0-11438 on Form 8-A
which is incorporated herein by reference pursuant to Item
3(b).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Burr-Brown Corporation Future Investment Trust.
99.2 Internal Revenue Service Determination Letter dated April
13, 1988.
II-2.
<PAGE> 4
Item 9. Undertakings.
A. The undersigned Registrant hereby undertakes: (1) to
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933, as
amended (the "1933 Act"), (ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
Registration Statement, 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 clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference
into the Registration Statement; (2) that for the purpose of determining any
liability under the 1933 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; and (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 Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act and each filing of the Plan's annual report pursuant to Section 15(d)
of the 1934 Act that is incorporated by reference into the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising
under the 1933 Act, may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the indemnification provisions summarized
in Item 6 above or otherwise, the Registrant has been informed that, in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed in the 1933 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 1933 Act, and will be governed by the final
adjudication of such issue.
II-3.
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the trustee of the Burr-Brown Corporation Future Investment Trust has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of TUCSON, State of Arizona,
on MARCH 1, 1996.
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
By First Interstate Bank of
Arizona, N.A., as Plan Trustee
By /s/ Charles Pavella
--------------------------------------------
Title Vice President
-----------------------------------------
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Tucson, State of Arizona, on this 27th day of
March, 1996.
BURR-BROWN CORPORATION
By /s/ S. P. Madavi
-------------------------------------
Syrus P. Madavi
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Burr-Brown
Corporation, a Delaware corporation, do hereby constitute and appoint Syrus P.
Madavi and John L. Carter and each of them, the lawful attorneys and agents,
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any of them, shall do or cause to be done
by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
II-4.
<PAGE> 6
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ S. P. Madavi President, Chief March 27, 1996
- --------------------------- -----------------
Syrus P. Madavi Executive Officer and
Director (Principal
Executive Officer)
/s/ John L. Carter Executive Vice President March 27, 1996
- --------------------------- -----------------
John L. Carter Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Thomas R. Brown, Jr. Chairman of the Board March 27, 1996
- --------------------------- -----------------
Thomas R. Brown, Jr.
/s/ John S. Anderegg, Jr. Director March 27, 1996
- --------------------------- -----------------
John S. Anderegg
Director March 27, 1996
- --------------------------- -----------------
Thomas J. Troup
/s/ Bob J. Jenkins Director March 27, 1996
- --------------------------- -----------------
Bob J. Jenkins
/s/ James A. Riggs Director March 27, 1996
- --------------------------- -----------------
James A. Riggs
/s/ Francis J. Aguilar Director March 27, 1996
- --------------------------- -----------------
Francis J. Aguilar
/s/ Marcelo A. Gumucio Director March 27, 1996
- --------------------------- -----------------
Marcelo A. Gumucio
</TABLE>
II-5.
<PAGE> 7
EXHIBIT INDEX
Exhibit Number Exhibit
-------------- -------
4 Instruments Defining Rights of Stockholders. Reference is
made to Registrant's Registration No. 0-11438 on Form 8-A
which is incorporated herein by reference pursuant to Item
3(b).
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Independent Auditors - Ernst & Young LLP.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 Burr-Brown Corporation Future Investment Trust.
99.2 Internal Revenue Service Determination Letter dated April
13, 1988.
<PAGE> 1
March 28, 1996
Burr-Brown Corporation
6730 Tucson Boulevard
Tucson, Arizona 85706
Re: Registration Statement on Form S-8
for Registration of 500,000 Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of 500,000 shares of
the Common Stock of Burr-Brown Corporation (the "Company") under the Burr-Brown
Corporation Future Investment Trust. We advise you that, in our opinion, when
such shares have been issued and sold pursuant to the applicable provisions of
the Burr-Brown Corporation Future Investment Trust and in accordance with the
Registration Statement, such shares will be validly issued, fully paid and
nonassessable shares of the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
BROBECK, PHLEGER & HARRISON LLP
<PAGE> 1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Regulation Statement (Form
S-8) pertaining to the Burr-Brown Corporation Future Investment Trust of our
reports (a) dated January 22, 1996, with respect to the consolidated financial
statements of Burr-Brown Corporation incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1995 and the related
financial statement schedule included therein and (b) dated May 19, 1995 with
respect to the financial statements and schedules of the Burr-Brown Corporation
Future Investment Trust included in the Plan's Annual Report (Form 11-K) for the
year ended December 30, 1994, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Tucson, Arizona
March 20, 1996
<PAGE> 1
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
Originally Effective January 1, 1966
Most Recent Restatement Effective January 1, 1987
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I DEFINITIONS.............................................................................. 2
1.1 "Account"........................................................................ 2
1.2 "Accrued Benefit"................................................................ 2
1.3 "Accumulated Profits"............................................................ 2
1.4 "Act"............................................................................ 2
1.5 "Affiliated Company"............................................................. 2
1.6 "Beneficiary".................................................................... 2
1.7 "Board".......................................................................... 2
1.8 "Code"........................................................................... 2
1.9 "Committee"...................................................................... 2
1.10 "Company"........................................................................ 2
1.11 "Company Matching Contributions"................................................. 2
1.12 "Company Matching Contributions Account"......................................... 3
1.13 "Company Profit Sharing Contributions"........................................... 3
1.14 "Company Profit Sharing Contributions Account"................................... 3
1.15 "Company Stock".................................................................. 3
1.16 "Compensation"................................................................... 3
1.17 "Current Profits"................................................................ 4
1.18 "Direct Rollover"................................................................ 4
1.19 "Distributee".................................................................... 4
1.20 "Effective Date"................................................................. 4
1.21 "Eligibility Computation Period"................................................. 4
1.22 "Eligible Earnings".............................................................. 4
1.23 "Eligible Employee".............................................................. 5
1.24 "Eligible Retirement Plan"....................................................... 5
1.25 "Eligible Rollover Distribution"................................................. 5
1.26 "Employee"....................................................................... 6
1.27 "Employee Deferral Contributions"................................................ 6
1.28 "Employee Deferral Contributions Account"........................................ 6
1.29 "Financial Hardship"............................................................. 6
1.30 "Five Percent (5%) Owner"........................................................ 6
1.31 "Fixed Income Investment Sub-Account"............................................ 6
1.32 "Fund"........................................................................... 6
1.33 "Funding Agent".................................................................. 6
1.34 "Highly Compensated Employee".................................................... 6
1.35 "Hour of Service"................................................................ 7
1.36 "Investment Manager"............................................................. 7
1.37 "1986 Profit Sharing Account".................................................... 8
1.38 "Normal Retirement Age".......................................................... 8
1.39 "Normal Retirement Date"......................................................... 8
1.40 "Participant".................................................................... 8
1.41 "Period of Severance"............................................................ 8
1.42 "Plan"........................................................................... 8
1.43 "Plan Administrator"............................................................. 8
1.44 "Plan Year"...................................................................... 8
1.45 "Rollover Account"............................................................... 8
1.46 "Rollover Contribution".......................................................... 8
</TABLE>
i.
<PAGE> 3
<TABLE>
<S> <C>
1.47 "Service"........................................................................ 8
1.48 "Severance Date"................................................................. 8
1.49 "Spouse"......................................................................... 8
1.50 "Stock Bonus Account"............................................................ 8
1.51 "Top Paid Group"................................................................. 8
1.52 "Total Disability"............................................................... 9
1.53 "Total Distribution"............................................................. 9
1.54 "Trust Agreement"................................................................ 9
1.55 "Trustee"........................................................................ 9
1.56 "Valuation Date"................................................................. 9
1.57 "Variable Income Investment Sub-Account"......................................... 9
1.58 "Vesting Service"................................................................ 9
1.59 Additional Terms................................................................. 10
ARTICLE II SERVICE DEFINITIONS.................................................................... 11
2.1 Hour of Service.................................................................. 11
2.2 Service.......................................................................... 11
2.3 Severance Date................................................................... 11
2.4 Period of Severance.............................................................. 13
2.5 Vesting Service.................................................................. 13
ARTICLE III EMPLOYEES ENTITLED TO PARTICIPATE..................................................... 14
3.1 Eligibility to Participate....................................................... 14
3.2 Election to Participate in Employee Deferral Contributions Portion of Plan....... 14
3.3 Leased Employees................................................................. 14
3.4 Effect of Rehiring............................................................... 14
ARTICLE IV CONTRIBUTIONS.......................................................................... 16
4.1 Employee Deferral Contributions.................................................. 16
4.2 Changes in Contribution Rates.................................................... 16
4.3 Suspension of Contributions...................................................... 16
4.4 Company Matching Contributions................................................... 16
4.5 Profit Sharing Contributions..................................................... 16
4.6 Rollover Contributions........................................................... 17
4.7 General Limitations on Company and Employee Deferral Contributions............... 17
4.8 Special Definitions.............................................................. 17
4.9 Limitation on Annual Addition.................................................... 19
4.10 Remedial Action.................................................................. 19
4.11 Reallocation of Forfeitures...................................................... 20
4.12 Time Period for Payment of Company Contributions................................. 20
ARTICLE V SPECIAL RULES GOVERNING EMPLOYEE DEFERRAL CONTRIBUTIONS AND
COMPANY MATCHING CONTRIBUTIONS..................................................................... 21
5.1 Limitations on Employee Deferral Contributions of Highly Compensated
Employees........................................................................ 21
5.2 Excess Contributions............................................................. 21
5.3 Limitations on Allocation of Matching Contributions to Accounts of Highly
Compensated Employees............................................................ 23
5.4 Aggregate Limitations............................................................ 24
5.5 Remedial Action.................................................................. 25
5.6 Limitations on Employee Deferral Contributions................................... 26
</TABLE>
ii.
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE VI SPECIAL PROVISIONS FOR STOCK BONUS ACCOUNTS............................................ 28
6.1 Special Requirements for Stock Bonus Accounts.................................... 28
6.2 Put Option Requirements.......................................................... 29
ARTICLE VII INVESTMENT FUNDS AND INVESTMENT OF CONTRIBUTIONS...................................... 30
7.1 Investment Funds................................................................. 30
7.2 Investment Elections............................................................. 30
7.3 Changes in Investment Elections.................................................. 30
7.4 Transfers Between Funds.......................................................... 30
7.5 Restrictions on Insiders......................................................... 30
ARTICLE VIII INDIVIDUAL ACCOUNTS.................................................................. 31
8.1 Accounts for Participants........................................................ 31
8.2 Valuation of Accounts............................................................ 31
8.3 Rollover Accounts................................................................ 31
ARTICLE IX VESTING................................................................................ 33
9.1 Vesting in the Employee Deferral Contributions Account, the 1986 Profit Sharing
Account, the Stock Bonus Account and the Rollover Account........................ 33
9.2 Vesting in Company Matching Contributions Account and the Company Profit Sharing
Contributions Account............................................................ 33
9.3 Determination of Vested Interest in the Company Profit Sharing Contributions
Account and Company Matching Contributions Account in the Event of a Severance
Date............................................................................. 33
9.4 Restoration of Forfeiture........................................................ 33
9.5 Amendments to Vesting Schedule................................................... 34
ARTICLE X WITHDRAWALS DURING EMPLOYMENT........................................................... 35
10.1 In-Service Withdrawals........................................................... 35
10.2 Withdrawal Rules................................................................. 35
10.3 Withdrawal of Company Matching Contributions. Effective January 1, 1993, a
Participant may no longer withdraw funds from his Company Matching Contributions
Accounts.
ARTICLE XI DISTRIBUTION UPON TERMINATION OF EMPLOYMENT............................................ 37
11.1 Death............................................................................ 37
11.2 Payments Upon Termination of Employment.......................................... 37
11.3 Forfeiture of Non-vested Benefits................................................ 37
11.4 Timing of Distributions.......................................................... 37
11.5 Forms and Timing of Distributions from Stock Bonus Account....................... 38
11.6 Participant Payment Election Regarding Stock Bonus Account....................... 40
11.7 Unclaimed Amounts; Notices....................................................... 40
11.8 Direct Rollovers................................................................. 40
ARTICLE XII LOANS................................................................................. 41
12.1 Loan Applications................................................................ 41
12.2 Loan Terms....................................................................... 41
12.3 Offset Rights.................................................................... 42
12.4 Liquidation of Account........................................................... 42
12.5 Earmarked Investment............................................................. 42
</TABLE>
iii.
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE XIII FIDUCIARY............................................................................ 44
13.1 Plan Administrator............................................................... 44
13.2 Named Fiduciary.................................................................. 44
13.3 Employment of Advisors........................................................... 44
13.4 Multiple Fiduciary Capacities.................................................... 44
13.5 Indemnification.................................................................. 44
ARTICLE XIV ADMINISTRATION........................................................................ 45
14.1 The Committee.................................................................... 45
14.2 Powers and Duties of the Committee............................................... 45
14.3 Delegation of Responsibility by the Committee.................................... 45
14.4 Investment Direction by Plan Administrator....................................... 46
14.5 The Investment Manager........................................................... 46
14.6 Appointment of a Trustee......................................................... 46
14.7 Funding Policy................................................................... 47
14.8 Compensation of Investment Manager and Trustees.................................. 47
14.9 Facility of Benefit Payment...................................................... 47
14.10 Claims and Appeals............................................................... 47
ARTICLE XV RIGHTS OF PARTICIPANTS................................................................. 49
15.1 Limitations on Rights of Participants............................................ 49
15.2 Prohibition Against Assignment or Alienation of Benefits......................... 49
ARTICLE XVI AMENDMENT OF THE PLAN................................................................. 50
16.1 Amendment of the Plan............................................................ 50
ARTICLE XVII TERMINATION OF THE PLAN.............................................................. 51
17.1 Termination of the Plan.......................................................... 51
17.2 Effect of Discontinuance......................................................... 51
17.3 Effect of Termination............................................................ 51
17.4 Plan Transfers or Mergers........................................................ 51
17.5 Corporate Changes................................................................ 52
17.6 Determination of Partial Termination............................................. 52
ARTICLE XVIII TOP-HEAVY PLAN PROVISIONS........................................................... 53
18.1 Definitions...................................................................... 53
18.2 Top-Heavy Status................................................................. 55
18.3 General Rules.................................................................... 55
18.4 Vesting Provisions............................................................... 56
18.5 Minimum Contribution Provisions.................................................. 56
18.6 Coordination of Plans............................................................ 56
18.7 Limitation of Contributions...................................................... 56
ARTICLE XIX QUALIFIED DOMESTIC RELATIONS ORDERS................................................... 58
19.1 Definitions...................................................................... 58
19.2 Notification..................................................................... 58
19.3 Procedures....................................................................... 59
19.4 Payment.......................................................................... 59
ARTICLE XX MISCELLANEOUS PROVISIONS............................................................... 60
20.1 Plan Interpretation.............................................................. 60
</TABLE>
iv.
<PAGE> 6
<TABLE>
<S> <C>
20.2 Consents by Board and Committees................................................. 60
20.3 Return of Contributions.......................................................... 60
20.4 Plan Expenses.................................................................... 60
20.5 Applicable Law................................................................... 61
20.6 Conditional Establishment........................................................ 61
20.7 Headings......................................................................... 61
ADDENDUM SPECIAL TERMINATION PROVISIONS............................................................ 62
</TABLE>
v.
<PAGE> 7
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
INTRODUCTION
Effective as of January 1, 1966, the Burr-Brown Corporation
Future Investment Trust (the "Plan") was implemented by the BURR-BROWN
CORPORATION (the "Company") to provide retirement benefits to United States
based Employees. Effective as of January 1, 1987, the Plan was amended and
restated in its entirety to incorporate the changes in applicable federal law.
The Plan was amended on several occasions thereafter. This Restatement of the
Plan, effective as of January 1, 1987 except as otherwise noted, is intended to
bring the Plan into compliance with current laws, including The Tax Reform Act
of 1986, The Omnibus Budget Reconciliation Act of 1987, the Technical and
Miscellaneous Revenue Act of 1988, the Omnibus Budget Reconciliation Act of
1989, the Unemployment Compensation Amendments of 1992 and the Omnibus Budget
Reconciliation Act of 1993.
The primary purpose of the Plan as hereby amended and restated
is to enable participating employees of the Company to accumulate retirement
savings on a pre-tax basis and to accumulate capital for their future economic
security. Consequently, participating employees may from time to time receive a
profit sharing contribution, if the Company determines there to be sufficient
profitability, will be able to defer compensation under the Plan pursuant to
Section 401(k) of the Internal Revenue Code and will receive a matching
contribution out of Company profits. The allocations from profit sharing
contributions, the employee pre-tax contributions and matching contributions
will be invested as participating employees direct within the scope of the
investments available under the Plan. The Plan will also continue to hold the
Company stock which was previously held in the Burr-Brown Corporation Stock
Bonus Plan and was transferred to the Plan when the Stock Bonus Plan merged into
this Plan effective as of July 1, 1989.
The Plan, as hereby amended and restated, is intended to
constitute a qualified profit sharing plan which meets the requirements of
Sections 401(a), 401(k) and 501(a) of the Internal Revenue Code.
<PAGE> 8
ARTICLE I
DEFINITIONS
Definitions. When used in this Plan, the following terms shall
have the meanings set forth below unless a different meaning is plainly required
by the context:
1.1 "Account" shall mean a Participant's Employee Deferral
Contributions Account, Company Matching Contributions Account, Company Profit
Sharing Contributions Account, the 1986 Profit Sharing Account, the Stock Bonus
Account and the Rollover Account as described in Section 8.3. Where more than
one Account of any type has been established for a Participant or Beneficiary,
reference to "Account" shall include each Account of that type except where the
context clearly indicates to the contrary.
1.2 "Accrued Benefit" shall mean the balance in a
Participant's Accounts.
1.3 "Accumulated Profits" shall mean the retained earnings of
the Company as reported on its audited financial statements.
1.4 "Act" shall mean the Employee Retirement Income Security
Act of 1974, as may be amended from time to time.
1.5 "Affiliated Company" shall mean (a) the Company, (b) any
other corporation which is a member of a controlled group of corporations which
includes the Company, as determined in accordance with the ownership rules of
Section 1563 of the Code, without regard, however, to subsection (a)(4) or
(e)(3)(C) of such Section 1563, (c) any other employer entity which is under
common control with the Company, as determined in accordance with Regulations
issued under Section 414(c) of the Code, (d) any affiliated service group, as
determined under Section 414(m) of the Code, or (e) any other entity required to
be aggregated with the Company pursuant to Regulations issued under Section
414(o) of the Code. For purposes of the limitation on benefits set forth in
Article IV, the determination of whether a corporation is an Affiliated Company
will be made only after substituting the phrase "more than fifty percent (50%)"
for the phrase "at least eighty percent (80%)" each place the latter phrase
appears in Section 1563(a)(1) of the Code.
1.6 "Beneficiary" shall mean any individual, trust or other
recipient named by a Participant to receive benefits payable hereunder upon his
death. In the case of a Participant who has a Spouse, such Spouse must be the
Participant's Beneficiary hereunder, except as may otherwise be provided in
Section 11.1.
1.7 "Board" shall mean the board of directors of Burr-Brown
Corporation.
1.8 "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
1.9 "Committee" shall mean the committee appointed by the
Board pursuant to Section 14.1 which shall have such duties and responsibilities
as are specifically allocated to it under Article XIV.
1.10 "Company" shall mean Burr-Brown Corporation, and each
successor in interest to the Company resulting from merger, consolidation, or
transfer of substantially all of its assets which shall by appropriate action
adopt the Plan.
1.11 "Company Matching Contributions" shall mean the Company
contributions described in Section 4.4.
2.
<PAGE> 9
1.12 "Company Matching Contributions Account" shall mean the
record of money and assets derived from the Company Matching Contributions as
described in Section 4.4 and held by the Trustee for the benefit of a
Participant or Beneficiary pursuant to the provisions of the Plan.
1.13 "Company Profit Sharing Contributions" shall mean the
Company contributions described in Section 4.5.
1.14 "Company Profit Sharing Contributions Account" shall mean
the record of money and assets derived from Company Profit Sharing Contributions
described in Section 4.5 and held by the Trustee for the benefit of a
Participant or Beneficiary pursuant to the provisions of the Plan.
1.15 "Company Stock" shall mean common stock issued by
Burr-Brown Corporation, as described in Section 6.1.
1.16 "Compensation" shall mean: (1) all current compensation,
wages and earnings paid to a Participant during the Plan Year, whether in cash
or property, for services performed while an Employee, but only to the extent
such compensation, wages and earnings constitute wages within the meaning of
Section 3401(a) of the Code which are reportable on Form W-2 or other
compensation for which the Participant must be furnished a written statement
under Section 6041(d) or 6051(a)(3) of the Code, plus (2) any Employee Deferral
Contributions made on the Participant's behalf under this Plan, and (3) any
other elective pre-tax contributions made on the Participant's behalf pursuant
to salary deferral or reduction arrangements maintained by one or more
Affiliated Companies under Sections 125, 401(k), 408(k) and 403(b) of the Code.
Not more than Two Hundred Thousand Dollars ($200,000.00) of Compensation shall
be taken into account per Employee for any Plan Year beginning after December
31, 1988 and before January 1, 1994, subject to cost-of-living adjustments
authorized from time to time by the Secretary. In addition to any other
applicable limitations set forth in the Plan and notwithstanding any other
provisions of the Plan to the contrary, for Plan Years beginning on or after
January 1, 1994, the annual dollar amount of Compensation taken into account
under the Plan per Employee shall not exceed One Hundred Fifty Thousand Dollars
($150,000.00), as adjusted from time to time for increases in the cost-of-living
in accordance with Section 401(a)(17)(B) of the Code. The cost-of-living
adjustment in effect for a calendar year shall apply to any period (not
exceeding twelve (12) months) over which Compensation is to be determined (the
"determination period") beginning in such calendar year. Should the
determination period consist of less than twelve (12) months, then the annual
Compensation limit shall be multiplied by a fraction, the numerator of which is
the number of months in the determination period and the denominator of which is
twelve (12). For Plan Years beginning on or after January 1, 1994, any reference
in the Plan to the limitation under Section 401(a)(17) of the Code shall mean
the annual Compensation limit set forth above.
Compensation shall be relevant for certain designated purposes
under the Plan. Included among such purposes are: (1) the identification of
Highly Compensated Employees and (2) the determination of whether the Employee
Deferral Contributions, Company Matching Contributions and Company Profit
Sharing Contributions under the Plan discriminate in favor of such Highly
Compensated Employees. The following additional rules shall be applicable in
determining Compensation for these subparagraphs (1) and (2) specified purposes:
(a) Each Highly Compensated Employee who is either a
Five Percent (5%) Owner or among the ten (10) highest-paid individuals on the
basis of his own Compensation shall, together with his spouse, any lineal
ascendant or descendant of such Employee and the spouses of such lineal
ascendants or descendants, be treated as a single Employee under the Plan, and
the Compensation of such single Employee shall be deemed to include the
Compensation of such Highly Compensated Employee and his spouse, any lineal
ascendant or descendant of such Employee and the spouses of lineal ascendants or
descendants.
(b) In applying the annual Compensation limit above,
any Highly Compensated Employee who is either a Five Percent (5%) Owner or among
the ten (10) highest-paid individuals on the basis
3.
<PAGE> 10
of his own Compensation shall, together with his spouse and any lineal
descendants who have not attained age nineteen (19) by the close of the Plan
Year in question, be treated as a single Employee under the Plan.
1.17 "Current Profits" shall mean the consolidated pre-tax
profit reported on the Company's audited income statement for its current fiscal
year, determined in accordance with generally accepted accounting principles and
methods consistently applied, prior to any reduction for Company Matching
Contributions under Section 4.4 and Company Profit Sharing Contributions under
Section 4.5.
1.18 "Direct Rollover" shall mean a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
1.19 "Distributee" shall mean an Employee or former Employee.
In addition, the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in Section 414(p)
of the Code, are Distributees with regard to the interest of the spouse or
former spouse.
1.20 "Effective Date" shall mean January 1, 1987, except as
otherwise provided herein.
1.21 "Eligibility Computation Period" shall mean the twelve
(12) consecutive month period beginning on the first date on which the Employee
is credited with an Hour of Service and on each succeeding anniversary thereof.
1.22 "Eligible Earnings" shall mean (1) all payments made to
any Eligible Employee for services rendered to the Company, including bonuses,
overtime pay, commissions, (2) the Employee Deferral Contributions made on
behalf of such Eligible Employee for the Plan Year, (3) any elective pre-tax
contributions made on such Eligible Employee's behalf during the Plan Year
pursuant to salary deferral or reduction arrangements maintained by an
Affiliated Company under Section 125 or 408(k) of the Code, and (4) any special
bonus or incentive-type payments. In no event, however, shall more than Two
Hundred Thousand Dollars ($200,000.00) of Eligible Earnings be taken into
account per Employee for any Plan Year beginning after December 31, 1988 and
before January 1, 1994, or One Hundred Fifty Thousand Dollars ($150,000.00) for
Plan Years beginning on or after January 1, 1994, as adjusted from time to time
for increases in the cost-of-living in accordance with Section 401(a)(17) of the
Code.
Eligible Earnings shall not include (1) any
remuneration paid to the Employee prior to such Employee's commencement of
participation in this Plan, (2) any salary continuation payments made to an
individual no longer in active Employee status, when such individual is not
expected to resume active Employee status following the end of the salary
continuation period, (3) any remuneration paid in the form of reimbursed moving
and relocation expenses or home mortgage differential payments or any income
reportable by reason of automobile allowances provided by one or more Affiliated
Companies, (4) any income realized upon exercise of non-qualified stock options
or upon disqualifying dispositions of stock acquired under incentive stock
options, (5) any income recognized by the Employee under Section 79 of the Code
by reason of group-term life insurance coverage in excess of Fifty Thousand
Dollars ($50,000.00), or (6) any Affiliated Company contributions (other than
the elective pre-tax contributions described in the preceding paragraph) made to
any pension, profit sharing, stock bonus, group insurance or other employee
welfare plan now or hereafter adopted.
The following additional rules shall be applicable in
determining an individual's Eligible Earnings under the Plan:
(a) Each Highly Compensated Employee who is either a Five
Percent (5%) Owner or among the ten (10) highest-paid individuals on the basis
of Compensation (as determined under Section 1.17) shall, together with his
spouse and any lineal descendants who have not attained age nineteen (19) by the
close of the Plan Year in question, be treated as a single Employee unit under
the Plan, and the Eligible Earnings of
4.
<PAGE> 11
such single Employee unit shall be deemed to include the Eligible Earnings of
such Highly Compensated Employee and his spouse and lineal descendants who have
not attained age nineteen (19) by the close of such Plan Year.
(b) Not more than Two Hundred Thousand Dollars ($200,000.00)
of Eligible Earnings shall be taken into account per Employee for any Plan Year
beginning after December 31, 1988 and before January 1, 1994, subject to
cost-of-living adjustments authorized from time to time by the Secretary. In
addition to any other applicable limitations set forth in the Plan and
notwithstanding any other provisions of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual dollar amount of Eligible
Earnings taken into account under the Plan per Employee shall not exceed the
limitation under Section 401(a)(17) of the Code.
(c) The Eligible Earnings determined for any single Employee
unit pursuant to subparagraphs (a) and (b) above shall be applied in the
calculation of (i) the aggregate amount of Employee Deferral Contributions
(expressed as a percentage of such Eligible Earnings) which the members of such
Employee unit may elect to be made on their behalf under the Plan and (ii) the
aggregate amount of Company Matching Contributions and Company Profit Sharing
Contributions which are to be allocated to such members in accordance with
Sections 4.4 and 4.5. The aggregate amount so calculated for each subparagraph
(i) and (ii) item shall be allocated among the members of the Employee unit in
proportion to their share of the Eligible Earnings taken into account for that
unit. Each member's share of such Eligible Earnings shall be in direct
proportion to the dollar amount of his individual Eligible Earnings prior to
imposition of the subparagraph (b) limitation above.
1.23 "Eligible Employee" shall mean each and every Employee of
the Company. However, there shall be excluded from the class of Eligible
Employees for all purposes under the Plan:
(a) any Employee whose terms and conditions of
employment are established under a collective bargaining agreement pursuant to
which retirement benefits have been the subject of good-faith bargaining;
(b) any Employee who is a non-resident alien with no
earned income (within the meaning of Section 911(b) of the Code) from the
Company which constitutes income from sources within the United States (within
the meaning of Section 861(a)(3) of the Code);
(c) any Employee who is a member of a group or class
of Employees which the Board determines, pursuant to a policy which does not
discriminate in favor of Highly Compensated Employees, not to include as
Eligible Employees under the Plan; or
(d) any Employee who has separated from active
employment with the Company by reason of Total Disability.
1.24 "Eligible Retirement Plan" shall mean an individual
retirement account described in Section 408(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the Distributee's Eligible
Rollover Distribution. However, in the case of an Eligible Rollover Distribution
to a surviving spouse, an Eligible Retirement Plan is an individual retirement
account or individual retirement annuity.
1.25 "Eligible Rollover Distribution" shall mean any
distribution of all or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution does not include: any
distribution that is one of a series of substantially equal periodic payment
(not less frequently than annually) made for the life expectancy of the
Distributee or the joint life expectancies of the Distributee and Distributee's
Beneficiary or for a specified period of ten (10) years or more; any
distribution to the extent such distribution
5.
<PAGE> 12
is required under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income.
1.26 "Employee" shall mean (a) any person who is employed by
an Affiliated Company to render personal services and whose earnings constitute
wages under Section 3121(a) of the Code, and (b) any individual who performs
services for an Affiliated Company if such individual is required to be treated
as a Leased Employee under Section 3.3.
1.27 "Employee Deferral Contributions" shall mean the
employee-directed Company contribution described in Section 4.1.
1.28 "Employee Deferral Contributions Account" shall mean the
record of money and assets derived from Employee Deferral Contributions as
described in Section 4.1 and held by the Trustee for the benefit of a
Participant or Beneficiary pursuant to the provisions of the Plan.
1.29 "Financial Hardship" shall mean an immediate and heavy
financial need of a Participant as set forth in Section 10.2(d).
1.30 "Five Percent (5%) Owner" shall mean:
(a) If the Affiliated Company is a corporation, any person who
owns (or is considered as owning within the meaning of Section 318 of the Code)
more than five percent (5%) of the outstanding stock of that corporation or
stock possessing more than five percent (5%) of the total combined voting power
of all stock of that corporation, or
(b) If the Affiliated Company is not a corporation, any person
who owns more than five percent (5%) of the capital or profits interest in that
entity.
For purposes of applying Section 318 of the Code to this Section 1.31,
subparagraph (C) of Section 318(a)(2) shall be applied by substituting "five
percent (5%)" for "fifty percent (50%)," and in the case the Affiliated Company
is not a corporation, ownership in such entity shall be determined in accordance
with Applicable Treasury regulations.
1.31 "Fixed Income Investment Sub-Account" shall mean a
sub-account which invests in separate investment funds composed primarily of
debt obligations, such as mortgages and bonds, providing a fixed rate of
investment return.
1.32 "Fund" shall mean all sums of money and other property,
together with all earnings, income and increments thereon, attributable to the
Plan and held by the Trustee under the terms of the Trust Agreement.
1.33 "Funding Agent" shall mean any legal reserve life
insurance company or trustee selected by the Company to receive the Plan
contributions and to pay the benefits under and in accordance with the terms of
the Plan.
1.34 "Highly Compensated Employee" shall mean any "Highly
Compensated Active Employee" or a "Highly Compensated Former Employee."
A "Highly Compensated Active Employee" shall mean any Employee
who performs service for the Employer or any Affiliated Company during the
determination year and who, during the look-back year:
(a) was at any time a Five Percent (5%) Owner;
6.
<PAGE> 13
(b) received annual Compensation in excess of $75,000 (as
adjusted for cost-of-living increases) from the Company or an Affiliated
Company;
(c) received annual Compensation in excess of $50,000 (as
adjusted for cost-of-living increases) from the Company or an Affiliated Company
and was a member of the Top Paid Group of Employees during the same Plan Year;
or
(d) was at any time an officer of an Affiliated Company and
received Compensation greater than fifty percent (50%) of the limitation amount
in effect under Section 415(b)(1)(A) of the Code for such Plan Year.
For purposes of determining which Employees are "Highly Compensated Employees,"
an Employee who was not described in subparagraphs (b), (c) or (d) during the
look-back year shall not be a Highly Compensated Employee for the determination
year under subparagraphs (b), (c) or (d) unless such Employee is also among the
one hundred (100) Employees who have earned the highest Compensation with an
Affiliated Company during such determination year. Notwithstanding the
foregoing, an individual who was a Highly Compensated Employee for a look-back
year due to the foregoing definition shall remain a Highly Compensated Employee
for the determination year. For purposes of this definition, individuals who are
nonresident aliens and who receive no earned income (as defined in Section
911(d) of the Code) from the Company constituting income from sources within the
United States (as defined in Section 861(a)(3) of the Code) shall not be
considered as Employees.
In no event shall the number of officers to be treated as
"Highly Compensated Employees" under paragraph (c) above exceed fifty (50)
Employees (or if less, the greater of three (3) Employees or ten percent (10%)
of all Employees). Notwithstanding the foregoing, if no officer of the Company
has Compensation sufficient to be treated as "Highly Compensated Employee," the
highest paid officer of the Company for such Plan Year shall be treated as a
"Highly Compensated Employee." For purposes of applying the ten percent (10%)
limit, Employees excluded under Subsection 1.50(d) below shall be disregarded.
A "Highly Compensated Former Employee" shall mean any Employee
who separated (or was deemed to have separated) from service prior to the
determination year, performs no service for the Employer or any Affiliated
Company during the determination year, and was a Highly Compensated Active
Employee for either the separation year or any determination year ending on or
after the Employee's fifty-fifth (55th) birthday.
For purposes of this paragraph, the determination year shall
be the Plan Year. The look-back year shall be the twelve (12)-month period
immediately preceding the determination year. Alternatively, the Employer may,
by written instrument, elect to use the calendar year coincidental with the
current Plan Year as the look-back year in accordance with the provisions of
Income Tax Regulation section 1.414(q)-1T, Q&A-14(b).
Family members of Highly Compensated Employees who qualify as
Highly Compensated Employees during either the determination year or look-back
year due to being Five Percent (5%) Owners or who are one of the top ten (10)
Highly Compensated Employees ranked on the basis of Compensation shall, along
with such Highly Compensated Employee, be treated as a single Highly Compensated
Employee, and their Compensation and amounts contributed on their behalf shall
be aggregated. For this purpose, a "family member" of a Highly Compensated
Employee shall include a spouse, a lineal ascendant or descendant, or a spouse
of such lineal ascendant or descendant of the Highly Compensated Employee.
1.35 "Hour of Service" shall have the meaning assigned to such
term in Section 2.1.
1.36 "Investment Manager" shall mean a person or persons who
is an investment adviser registered under the Investment Advisers Act of 1940, a
bank as defined in such Act or an insurance company qualified to manage, acquire
or dispose of any Plan assets under the laws of more than one state.
7.
<PAGE> 14
1.37 "1986 Profit Sharing Account" shall mean the Account
established for Participants who participated in the Plan prior to 1987.
1.38 "Normal Retirement Age" shall mean the time at which a
Participant attains age 65.
1.39 "Normal Retirement Date" shall mean the first day of the
month coincident with or next following the date in which the Employee attains
Normal Retirement Age.
1.40 "Participant" shall mean each Eligible Employee who
participates in the Plan pursuant to Section 3.1.
1.41 "Period of Severance" shall have the meaning assigned to
it in Section 2.4.
1.42 "Plan" shall mean the Amended and Restated Burr-Brown
Corporation Future Investment Trust, as set forth in this instrument, and as the
same may be amended from time to time.
1.43 "Plan Administrator" shall mean the Company.
1.44 "Plan Year" shall be the period commencing on each
December 31st and ending on December 30th of the following year; provided,
however, there will be a short Plan Year consisting of a single day, December
31, 1993, and thereafter, commencing January 1, 1994, it shall be the period
commencing on each January 1st and ending on the following December 31st. The
Plan Year will be the limitation year for purposes of Section 415 of the Code.
1.45 "Rollover Account" shall mean the record of money and
assets derived from a Rollover Contribution and held in the Fund for the benefit
of an Employee, Participant or Beneficiary pursuant to the provisions of the
Plan.
1.46 "Rollover Contribution" shall mean funds which represent
(a) all or a portion of the assets credited to such Employee's account under any
other defined contribution plan satisfying the applicable qualification
requirements of Section 401(a) of the Code, whether such assets are held by a
trustee, insurance company, custodian or otherwise, or (b) the assets of any
individual retirement account established as a rollover account under Section
402(a)(5) of the Code for a qualified plan distribution previously made to such
person and credited solely with amounts eligible for rollover to this Plan in
accordance with Section 408(d)(3)(ii) of the Code.
1.47 "Service" shall have the meaning assigned to it in
Section 2.2.
1.48 "Severance Date" shall have the meaning assigned to it in
Section 2.3.
1.49 "Spouse" shall mean a Participant's wife or husband who
was lawfully married to the Participant immediately prior to the Participant's
date of death. Notwithstanding the foregoing, a former spouse shall be treated
as a Spouse to the extent provided under a qualified domestic relations order as
described in Section 414(p) of the Code.
1.50 "Stock Bonus Account" shall mean the Account originally
maintained for a Participant, under the Company's Stock Bonus Plan and
transferred to this Plan as of July 1, 1989.
1.51 "Top Paid Group" shall mean all Employees who are in the
top twenty percent (20%) of the Employees of an Affiliated Company when ranked
on the basis of Compensation paid during the Plan Year. The following Employees
may be excluded for purposes of determining the total number of Employees to be
included in the Top Paid Group:
8.
<PAGE> 15
(a) Employees who have not completed six (6) months of
service;
(b) Employees who normally work less than seventeen and
one-half (17 1/2) hours per week;
(c) Employees who normally work during not more than six (6)
months a year; and
(d) Employees who have not attained the age of twenty-one (21)
years.
1.52 "Total Disability" shall mean a physical or mental
condition which, in the judgment of the Committee based upon competent medical
evidence satisfactory to the Committee, totally and permanently prevents the
Participant from engaging in any substantial gainful employment with the
Company, provided such Total Disability (a) did not arise while engaged in or as
a result of having engaged in a felonious or criminal act or enterprise, or (b)
did not result from service in the Armed Forces of the United States of America
or of any state thereof under circumstances entitling the Participant to a
veteran's disability pension. In determining whether a Participant is wholly or
permanently prevented from engaging in any substantial gainful employment with
the Company, there shall be excepted from consideration work performed pursuant
to a medically recommended plan for rehabilitation. The Committee will consider
a Participant to have a Total Disability if he incurs the permanent loss or loss
of use of a member or function of the body.
1.53 "Total Distribution" shall mean a distribution to a
Participant or a Participant's beneficiary, within one (1) taxable year of such
recipient, of the entire balance to the credit of the Participant's Stock Bonus
Account under the Plan.
1.54 "Trust Agreement" shall mean the trust agreement or
agreements executed in connection with this Plan to provide for the
administration and investment of the Fund. The Trust Agreement shall constitute
a part of the Plan.
1.55 "Trustee" shall mean the trustee or trustees appointed
under the Trust Agreement.
1.56 "Valuation Date" shall mean March 31, June 30, September
30 or December 31 of each Plan Year.
1.57 "Variable Income Investment Sub-Account" shall mean a
sub-account which invests in a separate investment fund under which the value of
the deposits to such account will vary (decrease or increase) to reflect
investment income and market value changes. Any one or any combination of the
following types of securities may be available:
(a) Common stocks,
(b) Bonds, and
(c) Cash and cash equivalents.
1.58 "Vesting Service" shall have the meaning assigned to it
in Section 2.5.
9.
<PAGE> 16
1.59 Additional Terms. The following terms shall have the
meanings assigned to them in the specific sections of the Plan indicated:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
"Actual Deferral Percentage" 5.1(a)(1)
"Annual Additions" 4.8(a)
"Contribution Percentage" 5.3(a)(1)
"Defined Benefit Plan Fraction" 4.8(b)
"Defined Contribution Plan Fraction" 4.8(c)
"Determination Date" 18.1(a)
"Excess Aggregate Contributions" 5.2(a)(2)
"Excess Amount" 4.8(d)
"Excess Combined Contributions" 5.5(b)
"Excess Contributions" 5.1(a)(2)
"Highest Average Remuneration" 4.8(e)
"Key Employee" 18.1(b)
"Leased Employee" 3.3
"Limitation Year" 4.8(f)
"Maximum Permissible Amount" 4.8(g)
"Non-Key Employees" 18.1(c)
"Permissive Aggregation Group" 18.1(d)
"Projected Annual Benefit" 4.8(h)
"Remuneration" 4.8(i), 18.1(f)
"Required Aggregation Group" 18.1(e)
"Top-Heavy Contribution" 18.1(g), 18.3
"Top-Heavy Valuation Date" 18.1(i)
"Top-Heavy Ratio" 18.1(h)
</TABLE>
10.
<PAGE> 17
ARTICLE II
SERVICE DEFINITIONS
2.1 Hour of Service. The term "Hour of Service" shall mean:
(a) an hour for which an Employee is paid or entitled to payment by an
Affiliated Company for the performance of duties, (b) an hour for which an
Employee is paid or entitled to payment by an Affiliated Company for a period
during which no duties are performed (whether or not the employment relationship
has terminated) on account of vacation, holiday, illness, incapacity (including
Total Disability), layoff, jury duty, military duty or leave of absence, and (c)
an hour (to the extent not already credited under subparagraph (a) or (b) above)
for which back pay for the Employee is awarded or agreed to by an Affiliated
Company, irrespective of mitigation of damages. However, any hour for which an
Employee is directly or indirectly paid under a plan maintained by an Affiliated
Company solely to comply with applicable worker's compensation, unemployment
compensation or disability insurance laws or solely to reimburse the Employee
for medical or medically-related expenses incurred by the Employee shall not be
counted as an Hour of Service.
2.2 Service. The term "Service" shall mean the Participant's
period or periods of employment with the Company or any other Affiliated
Company. Each such period shall begin with the date on which the Employee first
renders one (1) Hour of Service for the Company or an Affiliated Company and end
with the first Severance Date thereafter which marks the start of a Period of
Severance of twelve (12) consecutive months or more. Any Period of Severance of
less than twelve (12) consecutive months shall be included within the
Participant's period of Service. Accordingly, the overall Service of the
Participant shall be comprised of the period of employment (whether or not
continuous) commencing on the date on which he first renders one (1) Hour of
Service for the Company or an Affiliated Company and ending with his final
Severance Date, but there shall be excluded from Service any intervening Period
of Severance of twelve (12) consecutive months or more. In addition, the
following special rules shall be applicable to the determination of the
Participant's overall period of Service:
(a) If any pension or profit-sharing plan maintained by a
corporation, partnership, proprietorship or other business entity which becomes
a participating Company or is merged into, consolidated with, or all or a
substantial part of the assets of which are acquired by, any participating
Company is deemed under Section 414(a)(1) of the Code and the applicable
Regulations to be a "predecessor plan" to this Plan, then Service shall include,
for each participant in such predecessor plan, all periods of employment
rendered by such person prior to the acquisition or affiliation which are
required to be taken into account for eligibility and vesting purposes under the
predecessor plan.
(b) To the extent subparagraph (a) is not otherwise
applicable, Service shall include, for each employee of a corporation,
partnership, proprietorship or other business entity which is merged into,
consolidated with, or all or a substantial part of the assets of which are
acquired by, any participating Company, such periods of employment rendered by
such person to the predecessor employer prior to the acquisition or affiliation
as the Committee shall deem appropriate; provided such determination shall not
discriminate in favor of Highly Compensated Employees.
(c) The Participant's overall period of Service shall be
divided into one (1) or more months of Service on the basis that each thirty
(30) days of Service (whether or not completed consecutively) equals one (1)
full month of Service, and for every twelve (12) months of Service (as so
calculated) rendered by the Participant, he shall be credited with one (1) full
year of Service.
2.3 Severance Date.
(a) The term "Severance Date" shall mean the earlier of (1)
the date on which the Employee quits, dies, retires or is discharged, or (2) the
date which is twelve (12) months after the
11.
<PAGE> 18
commencement date of any other absence from employment with the Company or an
Affiliated Company; provided, however, that layoffs, approved leaves of absence
and Maternity and Paternity Leaves shall be governed by the specific provisions
of subparagraphs (b), (c) and (d).
(b) An Employee who is absent from active employment by reason
of a leave of absence approved by the Affiliated Company employing him shall not
incur a Severance Date during the period of the leave, provided such Employee
returns to active employment with the Affiliated Company within thirty (30) days
after the expiration date of the period for which such leave of absence is
authorized or (if applicable) prior to the expiration date of any longer period
of time for which the reemployment rights of the Employee are protected by law.
Leaves of absence may be approved, in accordance with a uniform and
non-discriminatory policy, for reasons of health, governmental service, military
duty or other purpose. Except as otherwise provided in Section 2.2(a), should
the Employee fail to return to active employment with an Affiliated Company
within the applicable time period following the termination of the leave, then
such Employee shall (unless such failure is occasioned by reason of retirement,
death or Total Disability) be deemed to have incurred a Severance Date as of the
earliest of (1) the date which is twelve (12) months after the commencement of
such leave of absence, (2) the date on which the authorized period of such leave
expires, or (3) the date on which the Employee quits or is discharged. If the
Employee fails to return to active employment within the applicable time period
by reason of his death, Total Disability or retirement, then such Employee shall
be deemed to have incurred a Severance Date as of the date of his death, Total
Disability or retirement.
(c) An Employee who remains absent from active employment by
reason of a Maternity or Paternity Leave (as defined below) shall be deemed to
incur a Severance Date upon the earlier of (1) the date which is twenty-four
(24) months after the commencement of the Maternity or Paternity Leave, or (2)
the date on which the Employee quits, dies or retires; provided, however, that
solely for purposes of calculating Vesting Service under Section 9.3, only the
first twelve (12) months of such Maternity or Paternity Leave shall be taken
into account as Service and the next twelve (12) months of such Maternity or
Paternity Leave shall be considered neither a period of Service nor a Period of
Severance. In the event the Maternity or Paternity Leave also constitutes an
approved leave of absence under Section 2.3(b), then the provisions of Section
2.3(b), to the extent they provide more favorable Service credits to the
Employee than the corresponding provisions of this Section 2.3(c), shall be
controlling.
For purposes of this Section 2.3(c), a Maternity or Paternity
Leave is any absence of the Employee, whether or not approved under Section
2.3(b), which is directly attributable to and caused by any one of the
following:
(1) such Employee's pregnancy,
(2) the birth of a child of such Employee,
(3) the placement of a child with such Employee in
connection with the Employee's adoption of such child, or
(4) the care of such child for a period beginning
with such birth or placement.
The Committee may, as a condition to the Employee's
qualification for the special benefits provided under this Section 2.3(c),
require the Employee to provide written confirmation and other substantiation as
follows:
(i) on or before the commencement of the
leave, that the absence will qualify as a Maternity or Paternity Leave in
accordance with the criteria specified in subparagraphs (1) through (4) above,
and
12.
<PAGE> 19
(ii) on or before the completion of the
leave, the number of days for which the Maternity or Paternity Leave was in fact
incurred for one or more of the causes specified in subparagraphs (1) through
(4) above.
(d) An Employee who is absent from active employment by reason
of a temporary layoff shall not incur a Severance Date during the period of such
layoff, provided such Employee returns to active employment with an Affiliated
Company within thirty (30) days after the date the Employee is recalled to
employment. If the Employee fails to return to active employment prior to the
expiration of such thirty (30) day period or if the Employee is not recalled to
employment within twelve (12) months after the commencement date of the layoff,
then such Employee shall be deemed to have incurred a Severance Date as of the
earliest of (1) the date which is twelve (12) months after the commencement date
of the layoff, (2) the date of the recall, or (3) the date the Employee quits,
dies, retires or is discharged.
2.4 Period of Severance. The term "Period of Severance" shall
mean the period commencing with the Employee's Severance Date and ending with
the date on which such Employee next performs one (1) Hour of Service.
2.5 Vesting Service. The term "Vesting Service" shall mean the
Employee's overall period of Service measured from the date he first completes
one (1) Hour of Service under Section 2.1 (including Service rendered prior to
the Effective Date) and ending with his final Severance Date; provided, however,
that there shall not be included within such Vesting Service any Period(s) of
Severance of twelve (12) consecutive months or more. The Employee's period of
Vesting Service shall be divided into one (1) or more months of Vesting Service
on the basis that each thirty (30) days of Vesting Service (whether or not
completed consecutively) equals one (1) full month of Vesting Service, and for
each twelve (12) months of Vesting Service (as so calculated) rendered by the
Employee, he shall be credited with one year of Vesting Service. However, all
Vesting Service credited under the Plan shall be subject to the rules set forth
in this Article II, Section 3.4 and Section 9.4.
13.
<PAGE> 20
ARTICLE III
EMPLOYEES ENTITLED TO PARTICIPATE
3.1 Eligibility to Participate. Each Eligible Employee who is
a Participant in the Plan as of December 31, 1992 will continue to be a
Participant in the Plan as of January 1, 1993. Each other Eligible Employee in
the employ of a Participating Company on or after January 1, 1993 shall be
eligible to become a Participant coincident with the date he completes an Hour
of Service.
3.2 Election to Participate in Employee Deferral Contributions
Portion of Plan. An Eligible Employee may become a Participant pursuant to
Section 3.1 for purposes of Sections 4.1 and 4.4 once he has executed and
delivered to the Committee an election form prescribed by the Company: (a)
specifying his chosen rate of Employee Deferral Contributions, (b) authorizing
the Company to reduce his Eligible Earnings by the amount of such contributions,
(c) making investment elections as described in Article VII, and (d) designating
one or more Beneficiaries under the Plan. No Employee shall become a Participant
in the Plan for purposes of Sections 4.1 and 4.4 of the Plan until he has
completed all of the above requirements.
3.3 Leased Employees. Any Leased Employee shall be treated as
an Employee (but not an Eligible Employee) of the Affiliated Company which is
the recipient of his services. However, any contributions or benefits provided
by the leasing organization, to the extent attributable to services performed
for the Affiliated Company, shall be treated as provided by such recipient
Affiliated Company.
For purposes of this Section 3.3, "Leased Employee" shall mean
any person (other than an actual Employee of an Affiliated Company) who has,
pursuant to any agreement between the recipient Affiliated Company and any other
person (the "leasing organization"), performed services for the recipient
Affiliated Company (or the recipient Affiliated Company and any related entity
determined in accordance with Section 414(n)(6) of the Code) on a substantially
full-time basis for a period of at least one (1) year, and such services are of
a type historically performed by employees in the business field of the
recipient Affiliated Company (or such related entity). Upon completion of such
year of service, the Leased Employee shall be treated as an Employee (but not as
an Eligible Employee) for all purposes of the Plan, and his period of Service
shall include the entire period for which the Leased Employee has performed
services for the recipient Affiliated Company.
In no event, however, shall a Leased Employee be treated as an
Employee if (a) such Leased Employee is covered by a money purchase pension plan
providing (1) a nonintegrated employer contribution rate of at least ten percent
(10%) of Compensation, (2) immediate participation, and (3) full and immediate
vesting; and (b) the total number of Leased Employees does not constitute more
than twenty percent (20%) of the non- Highly Compensated work force.
3.4 Effect of Rehiring. Should an Employee incur a Severance
Date and thereafter return to Service, the following special rules shall be in
effect for determining the date which the Employee is first eligible to
participate in the Plan following his return:
(a) Should such Employee incur a Period of Severance of sixty
(60) months or more prior to his completion of at least twelve (12) months of
Service, then such Employee shall, upon resumption of Service, be treated as a
new Employee for eligibility and vesting purposes (as described in Article II
and Section 9.4), and he shall be eligible to participate in the Plan coincident
with the date that he next renders an Hour of Service.
(b) Should such Employee incur a Period of Severance of twelve
(12) consecutive months or more but less than sixty (60) months, then such
Employee shall retain his prior Service credits for eligibility and vesting
purposes (as described in Article II and Section 9.4), but the applicable date
for purposes of accruing
14.
<PAGE> 21
future Service credits upon his resumption of Service shall be adjusted to the
first day following such Period of Severance on which the Employee next renders
an Hour of Service. Such Employee shall be eligible to participate in the Plan
coincident with the date that he next renders an Hour of Service.
15.
<PAGE> 22
ARTICLE IV
CONTRIBUTIONS
4.1 Employee Deferral Contributions. The Company intends to
continue the Plan indefinitely and to contribute to the Fund hereunder each Plan
Year pursuant to the provisions of this Article IV. Subject to the special rules
set forth in this Article IV, each Participant may designate any Employee
Deferral Contributions rate by which his Eligible Earnings are to be reduced
from one percent (1%) to ten percent (10%) (fifteen percent (15%) for
Participants who are not Highly Compensated Employees), in increments of whole
percentage points (subject to Section 5.6). The Employee Deferral Contributions
shall be determined by multiplying the Participant's Eligible Earnings earned
during a payroll period by his designated Employee Deferral Contributions rate.
The rate designated by the Participant shall remain in force until the
Participant changes or suspends such rate pursuant to Section 4.2 or 4.3.
Contributions under this Section 4.1 shall be made by means of Eligible Earnings
reductions and the amounts so deducted shall be paid as soon as administratively
feasible to the Fund by the Company and shall be credited to the Employee
Deferral Contributions Accounts of Participants. Effective January 1, 1993, a
Participant may not designate any back pay award as an Employee Deferral
Contribution.
4.2 Changes in Contribution Rates. A Participant's Employee
Deferral Contributions rate will remain in effect, notwithstanding any change in
Eligible Earnings, until the Participant elects to change such rate. A
Participant may elect to change his Employee Deferral Contributions rate four
(4) times during any Plan Year. The change in Employee Deferral Contributions
rate will be effective as soon as administratively practicable after a written
election is received by the Committee. No change can be made in an Employee
Deferral Contributions rate unless and until a prior change has been in effect
for at least thirty (30) days.
4.3 Suspension of Contributions. A Participant may elect to
suspend all contributions to the Plan as of any payroll date, if no less than
thirty (30) business days prior to such payroll date, the Committee has received
written notice of his suspension of contributions. A Participant who has
suspended his contributions may not resume making contributions until the first
payroll period beginning at least three (3) months after the date of suspension.
Once eligible to resume contributions, a Participant may resume contributions as
soon as administratively feasible following the date the Participant delivers
his written election to resume contributions to the Committee following the
suspension period.
4.4 Company Matching Contributions. The Company will make
Matching Contributions to the Trustee out of its Current Profits, and these
contributions shall be credited to the Company Matching Contributions Account on
behalf of each Participant. The amount of the Company Matching Contributions
made by the Company for any Plan Year on behalf of a Participant shall be equal
to twenty-five percent (25%) of the Employee Deferral Contributions actually
made hereunder on behalf of the Participant, to the extent those Employee
Deferral Contributions do not exceed ten percent (10%) of the Participant's
Eligible Earnings for that Plan Year. However, the maximum aggregate Company
Matching Contribution which is to be made on behalf of all Participants for any
Plan Year shall not exceed ten percent (10%) of the Company's Current Profits
for that Plan Year. In the event this latter limitation were to be exceeded, the
rate of Company Matching Contributions to be in effect for each Participant for
the Plan Year shall be reduced, unless the Board in its sole discretion
authorizes an aggregate Company Matching Contribution for that Plan Year in
excess of ten percent (10%) of the Current Profits. Company Matching
Contributions shall be made no later than the last day prescribed by law for
filing the Company's federal income tax return for such Plan Year, including
extension thereof. Company Matching Contributions shall be allocated to the
Company Matching Contributions Account on the basis of the percentage match in
effect for the Participant's Employee Deferral Contributions.
4.5 Profit Sharing Contributions. The Board may in its sole
discretion make an additional Company Profit Sharing Contribution for any Plan
Year out of its Accumulated Profits. In the event the Company shall make a
Company Profit Sharing Contribution to the Trust, such contribution shall be
allocated
16.
<PAGE> 23
as of the year-end Valuation Date for that Plan Year among the Company Profit
Sharing Accounts of each Participant who is an Eligible Employee as of such
Valuation Date, in the same proportion that such Participant's Eligible Earnings
for the Plan Year bears to the total Eligible Earnings of all eligible
Participants for such Plan Year. Such contribution may be made in cash,
securities and/or property, at the discretion of the Company.
4.6 Rollover Contributions. Upon the Company's request, the
Committee may permit an Employee to contribute to the Plan a Rollover
Contribution, provided the Committee is satisfied that the amount to be rolled
over to the Plan constitutes a Rollover Contribution under federal tax law and
as permitted under Section 8.3. The Employee's request shall set forth the
amount of cash to be contributed as the Rollover Contribution and such
contribution shall be credited to the Employee's Rollover Account in accordance
with Article VIII.
4.7 General Limitations on Company and Employee Deferral
Contributions. In no event shall the amount of the Employee Deferral
Contributions, Company Profit Sharing Contributions and Company Matching
Contributions made to this Plan for any Plan Year exceed the lesser of:
(a) The maximum amount allowable as a deduction in computing
the Company's taxable income for that Plan Year for federal income tax purposes
under Section 404 of the Code.
(b) The aggregate amount of the Employee Deferral
Contributions, Company Profit Sharing Contributions and Company Matching
Contributions that may be allocated to Accounts of Participants under the
provisions of Articles IV and V.
4.8 Special Definitions.
(a) "Annual Additions" shall mean the sum of the following
amounts credited to a Participant's Accounts for the Limitation Year:
(1) Employee Deferral Contributions;
(2) Company Matching Contributions;
(3) Company Profit Sharing Contributions;
and
(4) Forfeitures, if any.
For this purpose, any excess amount applied under Section 4.10 in the Limitation
Year to reduce Company contributions will be considered Annual Additions for
such Limitation Year, but any Rollover Contributions contributed to the Plan
shall not be considered.
Affiliated Company contributions and any forfeitures allocated
to the Participant's accounts under any other defined contribution plans to
which one or more Affiliated Companies contribute are treated as Annual
Additions. Amounts allocated to an individual medical account as defined in
Section 415(l)(2) of the Code, which is part of a defined benefit plan
maintained by the Affiliated Company are treated as Annual Additions to a
defined contribution plan. Also, amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date, that
are attributable to post-retirement medical benefits allocated to the separate
account of the Participant as a Key Employee (as defined in Section 18.1(b))
under a welfare benefit fund (as defined in Section 419(e) of the Code),
maintained by the Affiliated Company, are treated as Annual Additions to a
defined contribution plan. Finally, the amount of any after-tax contributions
made by the Participant to any other defined contribution plan of the Affiliated
Companies for the Limitation Year shall be treated as an Annual Addition.
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<PAGE> 24
(b) "Defined Benefit Plan Fraction" shall mean for any Plan
Year a fraction the numerator of which is the projected annual benefit of the
Participant (determined as of the close of the Limitation Year), under all
defined benefit plans (whether or not terminated) maintained by the Affiliated
Companies, and the denominator of which is the lesser of (i) the product of the
maximum benefit allowable under Section 415(b) of the Code for such Limitation
Year times 1.25, or (ii) the product of 1.4 times the maximum amount of
Remuneration which may be taken into account under Section 415(b)(1)(B) of the
Code with respect to such Limitation Year.
(c) "Defined Contribution Plan Fraction" shall mean for any
Limitation Year a fraction the numerator of which is the sum of the Annual
Additions to the Participant's accounts under this Plan and all other defined
contribution plans (whether or not terminated) maintained by the Affiliated
Companies in such Limitation Year and for all prior Limitation Years, and the
Annual Additions attributable to all welfare benefit funds, as defined in
Section 419(e) of the Code, maintained by the Company, and the denominator of
which is the lesser of (i) the product of the maximum amount of Annual Additions
which could have been made under Section 415(c) of the Code for such Limitation
Year and for each prior year of service with the Company (regardless of whether
a defined contribution plan as defined in Section 414(i) of the Code was in
existence during those years) times 1.25, or (ii) the product of 1.4 times the
sum of the maximum amount of Remuneration which may be taken into account under
Section 415(c)(1)(B) of the Code for such Participant for such Limitation Year
and for each prior year of service with the Company.
(d) "Excess Amount" shall mean the excess of the Participant's
Annual Additions for the Limitation Year over the Maximum Permissible Amount.
(e) "Highest Average Remuneration" shall mean the average
Remuneration for the three (3) consecutive calendar years during which a
Participant was an active participant in a plan which produces the highest
average.
(f) "Limitation Year" shall mean with respect to the Company,
the Plan Year. The Company may elect to change to a different twelve (12) month
period, change in the Limitation Year shall be a change to a twelve (12) month
period commencing with any day within the then current Limitation Year.
(g) "Maximum Permissible Amount" shall mean the lesser of (1)
Thirty Thousand Dollars ($30,000) or, if greater, one-fourth of the dollar
limitation under Section 415(b)(1)(A) of the Code (as adjusted for each
Limitation Year commencing after December 31, 1988, to take into account any
cost-of-living increase adjustment for that Limitation Year allowable pursuant
to the applicable Treasury regulations or rulings under Section 415(d) of the
Code; any such adjustment shall be effective only as of January 1 of the
Limitation Year ending within the respective calendar year for which the
cost-of-living increase adjustment is announced, or (2) twenty-five percent
(25%) of the Participant's Remuneration for the Limitation Year, provided,
however, the limitation under subparagraph (i) shall not apply to any
contribution for medical benefits (within the meaning of Section 419A(f)(2) of
the Code) after separation from service which is treated as an Annual Addition.
If a short Limitation Year is created because of an amendment changing the
Limitation Year to a different twelve (12) consecutive month period, the Maximum
Permissible Amount shall not exceed Thirty Thousand Dollars ($30,000) multiplied
by the following fraction:
Number of months in the short limitation year
---------------------------------------------
12
(h) "Projected Annual Benefit" shall mean the annual
retirement benefit (adjusted to an actuarially equivalent straight light annuity
if such benefit is expressed in a form other than a straight life annuity or
qualified joint and survivor annuity) to which the Participant would be entitled
under the terms of the defined benefit plan of the Affiliated Company, assuming:
18.
<PAGE> 25
(1) the Participant will continue employment until
normal retirement age under that plan (or current age, if later), and
(2) the Participant's Remuneration for the current
Limitation Year and all other relevant factors used to determine benefits under
that plan will remain constant for all future Limitation Years.
(i) "Remuneration" shall mean the Compensation paid to the
Participant for the Limitation Year, adjusted, however, to exclude the following
items for such Limitation Year: (1) any Employee Deferral Contributions made on
such individual's behalf under this Plan; and (2) any other elective
contributions made on his behalf pursuant to salary deferral or reduction
arrangements maintained by one or more Affiliated Companies under Sections 125,
401(k), 408(k) and 403(b) of the Code.
4.9 Limitation on Annual Addition. The total Annual Addition
to a Participant's Accounts under this Plan and any other defined contribution
plans to which one or more Affiliated Companies contributes shall not for any
Limitation Year exceed the Maximum Permissible Amount.
4.10 Remedial Action. If the Annual Addition with respect to
the Accounts of any Participant under this Plan and any other defined
contribution plans to which one or more Affiliated Companies contributes would
for any Limitation Year exceed the limitations imposed by Section 4.9, then the
following reductions to such Annual Addition shall be made, in the order
indicated and to the extent necessary to eliminate such excess:
(a) First, the Participant's after-tax employee contributions
under any other defined contribution plans to which one or more Affiliated
Companies contributes shall be refunded.
(b) Then, any Employee Deferral Contributions made on the
Participant's behalf for the Plan Year coincident with such Limitation Year
which were not entitled to a Company Matching Contribution under Section 4.4
shall be distributed to the Participant as a current cash payment, subject to
applicable withholding taxes.
(c) Next, any Employee Deferral Contributions made on the
Participant's behalf for the Plan Year coincident with such Limitation Year
which were entitled to a Company Matching Contribution under Section 4.4 shall
be distributed to the Participant as a current cash payment, subject to
applicable withholding taxes, and no Company Matching Contributions shall be
made with respect to the distributed Employee Deferral Contributions.
Accordingly, the Company Matching Contributions for such Plan Year are to be
reduced as follows:
(1) To the extent Company Matching Contributions have
not already been made under the Plan on the Participant's behalf, the reduction
shall be effected by making an appropriate reduction in the aggregate amount of
Company Matching Contributions required for such Plan Year to take into account
the distributed Employee Deferral Contributions no longer eligible for a match
under Section 4.4.
(2) To the extent Company Matching Contributions have
already been allocated to the Participant's Company Matching Contributions
Account for the Plan Year coincident with such Limitation Year, such Company
Matching Contributions (to the extent attributable to the distributed Employee
Deferral Contributions) shall be withdrawn from the Account and reapplied to the
satisfaction of any Company Matching Contributions still to be made on behalf of
other Participants for such Plan Year. Any Company Matching Contributions
withdrawn from the Company Matching Contributions Account and not so reapplied
shall be held unallocated in a suspense account and shall be used to reduce the
Company Matching Contributions required to be made for each succeeding Plan Year
until the suspense account is reduced to zero (0). No profits or losses
attributable to the assets of the Fund shall be allocated to the suspense
account, nor shall any contributions to the Plan (other than Employee Deferral
Contributions) be made by the Company while there is an outstanding
19.
<PAGE> 26
balance in such suspense account. Upon the termination of the Plan, any
outstanding balance in the suspense account shall revert to the Company.
(3) Then, the Participant's allocable share of
forfeitures under this Plan shall be subject to disposition in accordance with
the provisions of Section 4.11.
(4) Then, the Participant's share of the Company
Profit Sharing Contributions (if any) for the Plan Year coincident with such
Limitation Year shall be reduced. The reduction shall be effected by (i)
assuming, for purposes of the Section 4.5 allocation for such Plan Year, that
the Participant's Eligible Earnings for the Plan Year is at a sufficiently
reduced level to avoid an allocation of the Company Profit Sharing Contributions
for such Plan Year which would otherwise be in excess of the applicable Section
4.9 limitation and (ii) making an appropriate reduction in the aggregate Company
Profit Sharing Contributions for such Plan Year. Such reduction shall have no
effect upon any other eligible Participant's allocable share of the Company
Profit Sharing Contributions for such Plan Year.
(5) Finally, the Participant's allocable share of
employer contributions and forfeitures under any other defined contribution
plans to which one or more Affiliated Companies contributes shall be subject to
reduction or other disposition in accordance with the applicable provisions of
such other plans.
4.11 Reallocation of Forfeitures. Should a Participant's
allocable share of forfeitures for the Limitation Year exceed the amount which
may be allocated to his Accounts in accordance with Section 4.9, then such
excess shall be allocated and reallocated, as of the close of that Limitation
Year, to the Company Profit Sharing Contribution Accounts of all other eligible
Participants in accordance with Section 4.5, to the extent such allocation or
reallocation will not cause the Section 4.9 limits to be exceeded in such
Limitation Year. Any amount not so allocated as of the close of such Limitation
Year shall be credited to a suspense account and shall be allocated, as of the
close of each succeeding Limitation Year, to the Company Profit Sharing
Contributions Accounts of all eligible Participants pursuant to Section 4.5, to
the extent the allocation will not cause the Section 4.9 limits to be exceeded
in any such Limitation Year. The Company shall not, for any Plan Year (other
than the Plan Year in which the excess forfeitures arise), make any Company
Matching Contributions, Company Profit Sharing Contributions or Employee
Deferral Contributions if there is an outstanding balance in the suspense
account as of the close of the Limitation Year coincident with such Plan Year.
Under no circumstances shall the suspense account participate in the periodic
allocation of earnings, gains and losses of the Fund pursuant to Section 8.2.
4.12 Time Period for Payment of Company Contributions. The
Company contributions for any Plan Year shall be determined and paid to the
Trustee not later than the time prescribed by law, including any extensions
thereof, for filing of the Company's federal income tax return for such year.
20.
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ARTICLE V
SPECIAL RULES GOVERNING EMPLOYEE DEFERRAL
CONTRIBUTIONS AND COMPANY MATCHING CONTRIBUTIONS
5.1 Limitations on Employee Deferral Contributions of Highly
Compensated Employees.
(a) Definitions. For purposes of this Article V, the following
definitions shall apply:
(1) "Actual Deferral Percentage" shall mean the
average of the ratios (calculated separately for each Eligible Employee) of (i)
the amount of Employee Deferral Contributions actually payable to the Fund under
the Plan on behalf of each such Eligible Employee for such Plan Year to (ii)
such Eligible Employee's Compensation for such Plan Year; provided, however, the
Actual Deferral Percentages of an Eligible Employee who is a Highly Compensated
Employee participating in two (2) or more plans described in Section 401(k) of
the Code maintained by the Affiliated Company shall be calculated in accordance
with Section 401(k)(3)(A) of the Code.
(2) "Excess Contributions" shall mean the excess of
(i) the aggregate amount of Employee Deferral Contributions contributed to the
Fund on behalf of Highly Compensated Employees for the Plan Year, over (ii) the
maximum amount of Employee Deferral Contributions permitted under the
limitations of Section 5.1(b).
(b) Any other provision of the Plan to the contrary
notwithstanding, the average of the Actual Deferral Percentage for Highly
Compensated Employees for a Plan Year must bear such a relationship to the
average of the Actual Deferral Percentage for all other Eligible Employees for
such Plan Year so that at least one of the following two (2) tests is satisfied:
(1) The average of the Actual Deferral Percentage for
the group of Highly Compensated Employees is not more than the average of the
Actual Deferral Percentage of all other Eligible Employees multiplied by 1.25;
or
(2) The excess of the average of the Actual Deferral
Percentage for the group of Highly Compensated Employees over that of all other
Eligible Employees is not more than two (2) percentage points, provided the
average of the Actual Deferral Percentage for the group of Highly Compensated
Employees is not more than the average of the Actual Deferral Percentage of all
other Eligible Employees multiplied by two (2).
(c) The Committee shall determine from time to time whether
the Employee Deferral Contributions made or to be made in any Plan Year on
behalf of Highly Compensated Employees might cause the Plan to fail to comply
with the foregoing limitations. If the Committee determines that such a failure
might occur, the Committee may in its sole discretion reduce the maximum
percentage of Eligible Earnings that may be elected as Employee Deferral
Contributions under the Plan by Highly Compensated Employees or, if necessary to
effect such compliance, may cause a distribution of Excess Contributions as
provided in Section 5.2. Each determination by the Committee shall be made in
its sole judgment and shall be conclusive.
5.2 Excess Contributions.
(a) If the Employee Deferral Contributions otherwise
applicable to the Employee Deferral Contributions Accounts of Participants for
the Plan Year would not satisfy one of the requirements of Section 5.1(b), then
either or both of the remedial actions set forth below shall be taken:
21.
<PAGE> 28
(1) The Committee may, in its sole discretion, at any
time during the Plan Year, reduce the Employee Deferral Contributions of one or
more Participants who are among the group of Highly Compensated Employees to the
maximum deferral percentage permissible for such Participant(s) without
contravention of the requirement that the aggregate Employee Deferral
Contributions made on behalf of all Participants who are Highly Compensated
Employees satisfy one of the deferral percentage tests of Section 5.1(b).
(2) The Excess Contributions (and any income
allocable to such contributions) made for the Plan Year on behalf of
Participants who are among the group of Highly Compensated Employees shall be
distributed to them as a current cash payment, subject to all applicable
withholding taxes, prior to the close of the Plan Year subsequent to the Plan
Year in which the requirements of Section 5.1(b) have not been met. (In order
for the Company to avoid an excise tax under Section 4979 of the Code, such
distribution would have to be made within two and one-half (2 1/2) months after
the close of the Plan Year.) In order to determine that amount of Excess
Contributions and the Highly Compensated Employees to whom the Excess
Contributions are to be distributed, the Employee Deferral Contributions of
Highly Compensated Employees shall be reduced in order of the Actual Deferral
Percentages beginning with those Highly Compensated Employees with the highest
Actual Deferral Percentages until such reduced percentage equals the greater of
(i) the Actual Deferral Percentage required in order to allow the Actual
Deferral Percentage for all Highly Compensated Employees to satisfy the
limitation of Section 5.1(b) or (ii) the Actual Deferral Percentage of the
Highly Compensated Employee with the next highest percentage; then, the process
shall be repeated in the order of the Actual Deferral Percentages for the Highly
Compensated Employees, beginning with the Employee with the next highest
percentage until the limitation of Section 5.1(b) is satisfied for the aggregate
Employee Deferral Contributions made on behalf of all Highly Compensated
Employees.
(b) Any distribution required pursuant to Section 5.2(a) shall
be effected in compliance with the following procedures:
(1) The amount of Excess Contributions to be
distributed with respect to a Plan Year shall be reduced by the excess Employee
Deferral Contributions previously distributed to the Highly Compensated Employee
pursuant to Section 5.5 for the calendar year coincident with the same Plan
Year.
(2) The distribution to the affected Highly
Compensated Employees shall be made in proportion to their share of Excess
Contributions for the Plan Year.
(3) Income for the Plan Year for which the Excess
Contributions were made shall be distributed with the Excess Contributions.
Income allocable to such Excess Contributions shall be calculated by multiplying
(i) the income allocable to the Participant's Employee Deferral Contributions
Account for the Plan Year for which the Excess Contribution are made by (ii) a
fraction the numerator of which is the Excess Contribution made on the
Participant's behalf for the Plan Year and the denominator of which is the
balance credited to the Participant's Employee Deferral Contributions Account on
the last day of such Plan Year, decreased by the earnings and increased by the
losses allocable to such Account for such Plan Year.
(4) The Excess Contribution together with the income
allocable thereto, shall at the time of such distribution be deducted from the
Participant's Employee Deferral Contributions Account.
(5) Should the Actual Deferral Percentage of a Highly
Compensated Employee be determined on the basis of the Compensation and Employee
Deferral Contributions of such individual and his family members pursuant to
Section 1.35, then the excess Employee Deferral Contributions of such Highly
Compensated Employee shall be determined and distributed as follows: first, the
excess Employee Deferral Contributions attributable to the family group shall be
determined by adding together the Employee Deferral Contributions and the
Compensation, respectively, of all family members whose Employee Deferral
Contributions and Compensation are taken into account in calculating the Actual
Deferral Percentage of such Highly
22.
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Compensated Employee; and then the excess Employee Deferral Contributions so
determined shall be allocated among those family members in proportion to the
Employee Deferral Contributions of each family member and distributed to them in
accordance with such allocation.
5.3 Limitations on Allocation of Matching Contributions to
Accounts of Highly Compensated Employees.
(a) Definitions. For purposes of this Section 5.3, the
following definitions shall apply:
(1) "Contribution Percentage" shall mean the average
of the ratios (calculated separately for Highly Compensated Employees and for
all other Eligible Employees) of (i) the Company Matching Contributions payable
to the Fund under the Plan on behalf of each such Highly Compensated Employee or
each of the other Eligible Employees for such Plan Year (plus, at the election
of the Company and to the extent allowed by applicable Treasury regulations, the
Employee Deferral Contributions made on behalf of the Highly Compensated
Employees or the other Eligible Employees for the Plan Year) to (ii) the
Compensation of the Highly Compensated Employees or the other Eligible Employees
for such Plan Year, provided, however, the Contribution Percentage of an
Eligible Employee who is a Highly Compensated Employee participating in two (2)
or more plans maintained by an Affiliated Company shall be calculated in
accordance with Section 401(m)(2)(B) of the Code. The Contribution Percentage
for the family unit of a Highly Compensated Employee which is subject to the
aggregation rules set forth in Section 1.35 shall be the Contribution Percentage
determined by combining the Company Matching Contributions and Compensation of
all eligible family members. The Company Matching Contributions and Compensation
of all family members are disregarded in determining the actual Contribution
Percentages for the group of Employees who are not Highly Compensated Employees.
(2) "Excess Aggregate Contributions" shall mean the
excess of (i) the amount of Company Matching Contributions (and Employee
Deferral Contributions taken into account in computing the Contribution
Percentage) actually made on behalf of Highly Compensated Employees for the Plan
Year over (ii) the maximum amount of such contributions permitted under the
limitations of Section 5.3(b). The Excess Aggregate Contributions of Highly
Compensated Employees whose Contribution Percentage is determined under the
family aggregation rules described in Section 5.2(b)(5) shall be determined
first by reducing the Contribution Percentage in accordance with the "leveling"
method described below and then allocating the Excess Aggregate Contributions
determined thereby among the family members in proportion to the Company
Matching Contributions made on behalf of each family member who has been
combined under the family aggregation rule. Under the "leveling" method, the
Contribution Percentage of a Highly Compensated Employee with the highest actual
Contribution Percentages is reduced to the extent required to:
(i) enable the Plan to satisfy the percentage
test set forth in Section 5.1(b); or
(ii) cause such Highly Compensated Employee's
Contribution Percentage to equal the Contribution Percentage of the Highly
Compensated Employee with the next highest Contribution Percentage.
This leveling process must be repeated until the Plan satisfies the percentage
tests set forth in Section 5.1(b).
(b) Any other provision of the Plan to the contrary
notwithstanding, the average of the Contributing Percentages for Highly
Compensated Employees for a Plan Year shall not exceed the greater of:
(1) One hundred twenty-five percent (125%) of the
Contribution Percentage for all other Eligible Employees; or
23.
<PAGE> 30
(2) The lesser of two hundred percent (200%) of the
Contribution Percentage for all other Eligible Employees, or such Contribution
Percentage for all other Eligible Employees plus two (2) percentage points.
The Committee shall determine from time to time whether the Excess Aggregate
Contributions made or to be made in any calendar year on behalf of Highly
Compensated Employees might cause the Plan to fail to comply with the foregoing
limitations. If the Committee determines that such a failure might occur, the
Committee may reduce the percentage of Employee Deferral Contributions by Highly
Compensated Employees that will be matched by the Company pursuant to Section
4.4, or the Committee may take remedial action under Section 5.3(c). Each
determination by the Committee shall be made in its sole judgment and shall be
conclusive. In determining the amount of the Excess Aggregate Contributions,
such determination shall be made only after determination of the excess elective
deferral under Section 5.6 and Section 402(g) of the Code and the determination
of Excess Contributions under Section 5.1 and Section 401(k) of the Code.
(c) Remedial Action Through Interaction with Section 5.1(b).
(1) In the event that one or more dollars of Employee
Deferral Contributions are distributed to a Participant as an Excess
Contribution under Section 5.2 or as an excess elective deferral under Section
5.6, then the Participant shall not be entitled to any Company Matching
Contributions on the Employee Deferral Contributions so distributed.
Accordingly, any Company Matching Contributions which may have previously been
made upon the distributed Employee Deferral Contributions shall be deducted from
the Participant's Company Matching Contributions Account and shall be applied to
fund any future Company Matching Contributions required pursuant to the
provisions of Section 4.4.
(2) By reason of such interaction between the
distribution of excess Employee Deferral Contributions and excess dollar
deferrals and the deduction of the Company Matching Contributions thereon from
the Participant's Company Matching Contributions Account, compliance with the
Section 5.1(b) limitations of the Plan applicable to the Participant's Employee
Deferral Contributions shall automatically assure compliance with the Section
5.3(b) limitations of the Plan applicable to the Company Matching Contributions
which may be allocated for the Plan Year to the Company Matching Contributions
Accounts of Participants who are among the group of Highly Compensated
Employees. However, should the Contribution Percentage of any Highly Compensated
Employee who participates in both this Plan and any other plan maintained by one
or more Affiliated Companies to which after-tax employee contributions or
matching employer contributions are made for the same Plan Year exceed the
applicable limitation of Section 5.3(b), then the remedial action provided under
such other plan shall be taken, in addition to the action required under this
Plan, to assure that the Contribution Percentage for such Highly Compensated
Employee does not cause the Section 5.3(b) limitation to be exceeded for such
Plan Year.
(3) The income allocable to any Company Matching
Contributions which are deducted from the Company Matching Contributions Account
of a Highly Compensated Employee pursuant to the remedial provisions of this
Section 5.3(c) shall be calculated as follows: the income allocable to any such
deducted Company Matching Contributions for the Plan Year for which such Company
Matching Contributions are made shall be calculated by multiplying the income
allocable to the Company Matching Contributions Account for the Plan Year for
which the deducted Company Matching Contributions are made shall be multiplied
by a fraction the numerator of which is the Company Matching Contributions to be
deducted from such Account and the denominator of which is the balance credited
to such Account on the last day of such Plan Year, decreased by the earnings and
increased by the losses allocable to such Account for the Plan Year.
5.4 Aggregate Limitations. The Employee Deferral Contributions
and the Company Matching Contributions for the Plan Year allocable to the
Accounts of Participants who are among the group of Highly Compensated Employees
must on an aggregate basis satisfy one of the following alternative tests:
24.
<PAGE> 31
(a) The sum of the Actual Deferral Percentage (as defined in
Section 5.1(a)(i)) and the Contribution Percentage (as defined in Section
5.3(a)(1)) for the group of Highly Compensated Employees must not for such Plan
Year exceed the sum of (i) the product of 1.25 and the greater of (I) the Actual
Deferral Percentage for the group of non-Highly Compensated Employees or (II)
the Contribution Percentage for the group of non-Highly Compensated Employees
and (ii) two percentage points plus the lesser of the percentage determined
under clause (I) or (II) above, but in no event may the amount determined under
this item (ii) exceed 200% of the lesser of the clause (I) or (II) percentage
above.
(b) The sum of the Actual Deferral Percentage and the
Contribution Percentage for the group of Highly Compensated Employees must not
for such Plan Year exceed the sum of (i) the product of 1.25 and the lesser of
(I) the actual deferral percentage for the group of non-Highly Compensated
Employees or (II) the Contribution Percentage for the group of non-Highly
Compensated Employees and (ii) two percentage points plus the greater of the
percentage determined under clause (I) or (II) above, but in no event may the
amount determined under this item (ii) exceed 200% of the greater of the clause
(I) or (II) percentage above.
5.5 Remedial Action. If the Company Matching Contributions and
Employee Deferral Contributions otherwise allocable for the Plan Year to the
Accounts of Highly Compensated Employees would not when combined satisfy one of
the aggregate percentage tests specified in Section 5.4, then the following
provisions shall become applicable:
(a) Within two and one-half (2 1/2) months after the close of
the Plan Year, the Excess Combined Contributions made for such Plan Year on
behalf of one or more Participants who are among the group of Highly Compensated
Employees, together with any income allocable to such Excess Combined
Contributions, shall be reduced to zero (0), first through the deduction and
distribution from the Employee Deferral Contributions Accounts of such
Participants of any Employee Deferral Contributions (together with the income
allocable thereto) for such Plan Year which are not otherwise entitled to any
Company Matching Contributions for that Plan Year, and then through the
simultaneous (1) deduction and distribution from their Employee Deferral
Contributions Accounts of a portion of their Employee Deferral Contributions
(together with the income allocable thereto) for such Plan Year which are
entitled to a Company Matching Contribution for that Plan Year and (2) deduction
from their Company Matching Contributions Accounts of the Company Matching
Contributions (together with the income allocable thereto) made on those
deducted and distributed Employee Deferral Contributions.
(b) The term "Excess Combined Contributions" shall mean for
each Highly Compensated Employee the amount by which the (i) Company Matching
Contributions and the Employee Deferral Contributions (expressed as a percentage
of taxable Compensation) actually credited for the Plan Year to his Accounts,
determined after any remedial actions required by Sections 5.2(a) and 5.2(c)
have been taken, exceeds (ii) the maximum combined percentage permissible for
such individual without contravention of the requirement that the combined
Company Matching Contributions and Employee Deferral Contributions satisfy the
aggregate percentage test of Section 5.4. The clause (ii) percentage applicable
to each Highly Compensated Employee shall be determined in accordance with the
following process: first, the combined percentage for the Highly Compensated
Employee with the highest such percentage shall be reduced until such reduced
percentage equals the greater of (I) the combined percentage required in order
to allow the combined Company Matching Contributions and Employee Deferral
Contributions on behalf of all Highly Compensated Employees to satisfy the
limitations of Section 5.4 or (II) the combined percentage of the Highly
Compensated Employee with the next highest percentage; then, the process shall
be repeated in the order of the combined percentage for the Highly Compensated
Employees, beginning with the Employee with the next highest percentage, until
the limitation of Section 5.4 is satisfied for the combined Company Matching
Contributions and Employee Deferral Contributions made on behalf of all Highly
Compensated Employees.
(c) Remedial action under subparagraph (a) above shall be
effected with respect to the Highly Compensated Employees in proportion to their
Excess Combined Contributions for the Plan Year.
25.
<PAGE> 32
(d) The income allocable to any Employee Deferral
Contributions deducted from the Participant's Employee Deferral Contributions
Account pursuant to paragraph (a) above and the income allocable to any Company
Matching Contributions deducted from his Company Matching Contributions Account
shall be determined in accordance with the same income allocation procedures in
effect under Sections 5.3(c)(3) and 5.6, respectively, and shall be deducted
from the Employee Deferral Contributions Account and Company Matching
Contributions Account concurrently with the remedial paragraph (a) action.
(e) Any Company Matching Contributions deducted from the
Participant's Company Matching Contributions Account pursuant to the provisions
of this Article V shall nevertheless be treated as an Annual Addition under
Section 4.8 for the Limitation Year for which such Company Matching
Contributions are made. All such Company Matching Contributions deducted from
the Company Matching Contributions Accounts of Participants pursuant to this
Article V shall be applied to the satisfaction of future Company Matching
Contributions.
5.6 Limitations on Employee Deferral Contributions.
(a) In no event shall the Company contribute on behalf of any
Participant for the Participant's taxable year Employee Deferral Contributions
which when added together with similar contributions under all plans maintained
by the Company exceed $7,000, as indexed below, (or the "Section 402(g) limit").
If at any point during the taxable year, it becomes apparent that a
Participant's Employee Deferral Contributions will exceed the $7,000 limit, as
indexed, the Participant's deferral election will be reduced by unilateral
action of the Committee, and a flat dollar amount will be contributed to the
Participant's Employee Deferral Contributions Account each pay period for the
remainder of the taxable year so that the Participant's aggregate Employee
Deferral Contributions for the taxable year shall not exceed the $7,000 limit,
as indexed. The flat dollar amount will be expressed in a fraction the numerator
of which is the difference between the balance of the Employee Deferral
Contributions Account and the maximum $7,000 limit, as indexed, and the
denominator of which is the number of pay periods left in the taxable year. If,
however, there is still an excess dollar deferral at the end of the taxable
year, the excess Employee Deferral Contributions (together with any income
thereon) shall be paid to such Participant as a current cash payment.
(b) In the event the sum of (i) the Employee Deferral
Contributions made during the Participant's taxable year by the Company on
behalf of the Employee under this Plan and by any other employer on the
Participant's behalf to other plans complying with Section 401(k) of the Code,
(ii) the contributions made by any other employer during such taxable year on
behalf of the Employee to the extent not includable as income under Section
402(h)(1)(B) of the Code, and (c) the contributions made by any other employer
on behalf of the Employee during the tax year to purchase an annuity contract
complying with the provisions of Section 403(b) of the Code by reason of a
salary reduction agreement (as defined under Section 3121(a)(5)(D) of the Code),
exceeds the $7,000 limit, as indexed below, then all or a portion of such excess
may be distributed to the Employee by April 15th of the year following the close
of the taxable year during which the excess elective deferral was made in any
amount up to the total excess (plus income allocable to the excess), provided
that no later than March 1 of such year, or such earlier date as the Committee
may elect in its sole discretion, the Participant has notified the Committee of
the portion of the excess Employee Deferral Contributions to be distributed from
the Plan. Notwithstanding the provisions of this Section 5.6, any excess
elective deferrals described hereunder shall be considered for purposes of
determining Excess Contributions under the discrimination rules of this Article
V, unless otherwise provided by the applicable Treasury rules or regulations.
Any excess Employee Deferral Contributions made under the Plan which are not
distributed by April 15th after the tax year in which such excess occurred shall
be subject to the distribution restrictions applicable to the Employee Deferral
Contributions.
(c) Notwithstanding the foregoing, the $7,000 threshold shall
be adjusted for each Plan Year commencing on or after January 1, 1988 to take
into account any cost-of-living increase adjustment for that Plan Year allowable
pursuant to the applicable Treasury regulations or rulings under Sections
402(g)(5) and
26.
<PAGE> 33
415(d) of the Code. The income allocable to the excess Employee Deferral
Contributions shall be calculated by multiplying (1) the income allocable to the
Participant's Employee Deferral Contributions Account for the taxable year for
which the excess Employee Deferral Contributions are made, by (2) a fraction the
numerator of which is the excess Employee Deferral Contribution made on the
Participant's behalf for such taxable year and the denominator of which is the
balance credited to the Employee Deferral Contributions Account of such
Participant on the last day of the taxable year, decreased by the earnings and
increased by the losses allocable to such Account for the year.
27.
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ARTICLE VI
SPECIAL PROVISIONS FOR STOCK BONUS ACCOUNTS
6.1 Special Requirements for Stock Bonus Accounts.
(a) In General. This Section 6.1 shall apply to Stock Bonus
Account and shall not eliminate any form of distribution otherwise available
under the Plan or the commencement date of that distribution.
(b) Investment Directives. Each Stock Bonus Account shall
remain invested in Company Stock.
(c) Time of Distribution. Notwithstanding any other provision
of the Plan other than such provisions as require the consent of the Participant
and the Participant's Spouse to a distribution with a present value in excess of
$3,500, a Participant may elect to have his Stock Bonus Account distributed as
follows:
(1) If the Participant incurs a Severance Date by
reason of the attainment of Normal Retirement Age, death or Total Disability,
the distribution of his Stock Bonus Account balance will begin not later than
one (1) year after the close of the Plan Year in which such event occurs, unless
the Participant elects otherwise under the Plan.
(2) If the Participant incurs a Severance Date for
any other reason, and is not reemployed by the Company at the end of the fifth
(5th) Plan Year following the Plan Year of such separation from service,
distribution of the Participant's Stock Bonus Account balance shall begin not
later than one (1) year after the close of the fifth (5th) Plan Year following
the Plan Year in which the Participant separated from service, unless the
Participant elects otherwise under the Plan.
(3) If the Participant separates from service for a
reason other than those described in paragraph (1) above and is employed by the
Company as of the last day of the fifth (5th) Plan Year following the Plan Year
of such separation from service, any distribution to the Participant prior to
his subsequent separation from service shall be made in accordance with terms of
the Plan other than this Section 6.1.
For purposes of this Section 6.1, Common Stock shall not include any employer
securities acquired with the proceeds of a loan described in Section 404(a)(9)
of the Code until the close of the Plan Year in which such loan is repaid in
full.
(d) Period for Payment. Distributions required under Section
6.1 shall be made in substantially equal annual payments over a period of five
(5) years, unless the Participant elects otherwise under the Plan. In no event
shall such distribution period exceed the period permitted under Section
401(a)(9) of the Code. Notwithstanding the foregoing provisions of this Section
6.1(c), if the vested balance of a Participant's Stock Bonus Account is in
excess of $500,000 (multiplied by the adjustment factor in effect pursuant to
Section 409(o)(2) of the Code) as of the date distribution is required to begin
under Section 6.1(b), then the distributions required under this Section 6.1
shall be made in substantially equal annual payments over a period not longer
than five (5) years plus an additional one (1) year (up to an additional five
(5) years) for each $100,000 increment, or fraction of such increment, by which
the value of the Participant's Stock Bonus Account exceeds $500,000, unless the
Participant elects otherwise under the Plan. In no event shall such distribution
period exceed the period permitted under Section 401(a)(9) of the Code.
28.
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6.2 Put Option Requirements.
(a) In General. This Section 6.2 shall apply to distributions
of employer securities which were acquired by the Burr-Brown Corporation Stock
Bonus Plan, in the event Company Stock is not readily tradable on an established
security market and shall not eliminate any other form of distribution available
under the Plan on the commencement date for that distribution.
(b) Put Option Payment. Notwithstanding any other provisions
of the Plan, the Plan shall provide the Participant with a put option that
complies with the requirements of Section 409(h) of the Code. Such put option
shall provide that if the Participant exercises such put option, the Company, or
the Plan, if the Plan so elects, shall repurchase the distributed Company Stock
as follows:
(1) If the distribution constitutes a Total
Distribution, payment of the fair market value of the repurchased Company Stock
shall be made in five (5) substantially equal annual payments. The first
installment shall be paid no later than thirty (30) days after the Participant
exercises the put option. The Plan will pay a reasonable rate of interest and
provide adequate security on amounts not paid after thirty (30) days.
(2) If the distribution does not constitute a Total
Distribution, the Plan shall pay the Participant an amount equal to the fair
market value of the repurchased Company Stock no later than thirty (30) days
after the Participant exercises the put option.
29.
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ARTICLE VII
INVESTMENT FUNDS AND INVESTMENT OF CONTRIBUTIONS
7.1 Investment Funds. A Participant may choose a Fixed Income
Investment Sub-Account or one or more Variable Income Investment Sub-Accounts.
7.2 Investment Elections. Each Participant shall make an
investment election which will apply to the investment of his Accounts in one or
more of the various available investment funds. Separate investment elections
with respect to a Participant's different Accounts may not be made. All
investment choices by the Participant shall be made pursuant to rules and
procedures established by the Committee.
7.3 Changes in Investment Elections. A Participant may elect
to change his investment election with respect to future contributions made for
him pursuant to the rules and procedures established by the Committee.
7.4 Transfers Between Funds. A Participant may transfer
amounts between his Investment Sub-Accounts at any time by notifying the
Committee. Such transfer will be made on the date specified, subject to any
restrictions pursuant to rules and procedures established by the Committee.
7.5 Restrictions on Insiders. Each Participant who is at the
time an officer or director of Burr-Brown Corporation subject to the short-swing
profit restrictions of the Federal securities laws ("Section 16 Insider") may
only effect investment directives with respect to the acquisition or disposition
of shares of Company Stock under the Plan in accordance with the following
provisions:
(a) Should the Section 16 Insider elect to have his Employee
Deferral Contributions invested in whole or in part in shares of Company Stock
on an on-going basis as such contributions are made to the Plan, then the
Section 16 Insider (as well as any other Participant) will have the right, upon
proper notice to the Committee, to discontinue such investment at any time.
However, the Section 16 Insider must, for a period of at least six (6) months
thereafter, cease any further purchases or acquisitions of Company Stock under
the Plan, whether through a reinvestment of the existing balance credited to his
Accounts or through any new Employee Deferral Contributions made to the Plan.
(b) Directives by a Section 16 Insider to invest his Accounts
in whole or in part in Company Stock or to liquidate one or more shares of
Company Stock at the time held in his Accounts may only be given by such Section
16 Insider during one of the quarterly window periods beginning on the third
(3rd) business day following the release to the public of the Company's
quarterly or annual financial statements and ending on the twelfth (12th)
business day following such public release. In no event, however, may such
investment directive with respect to Company Stock be given within six (6)
months after the end of the last such window period in which the Participant
issued a previous investment directive with respect to Company Stock.
(c) Should the Section 16 Insider direct the liquidation of
any Company Stock at the time held in his Account, then such individual may not,
for a period of at least six (6) months thereafter, purchase or acquire any
additional Company Stock under the Plan, whether through a reinvestment of the
existing balance credited to his Account or through any new Employee Deferral
Contributions made to the Plan. Accordingly, any on-going election by such
Section 16 Insider to have his Employee Deferral Contributions applied to the
purchase of Company Stock must be suspended for at least six (6) months
following the investment directive to liquidate any Company Stock held in his
Account.
30.
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ARTICLE VIII
INDIVIDUAL ACCOUNTS
8.1 Accounts for Participants. The following Accounts may be
established under the Plan for a Participant:
(a) An Employee Deferral Contributions Account shall be
established for each Participant. Employee Deferral Contributions directed by a
Participant shall be allocated to the Participant's Employee Deferral
Contributions Account.
(b) A Company Profit Sharing Account shall be established for
each Participant. Company Profit Sharing Contributions for a Participant shall
be allocated to the Participant's Company Profit Sharing Contributions Account
in accordance with Section 4.5.
(c) A Company Matching Contributions Account shall be
established for each Participant. Company Matching Contributions for a
Participant shall be allocated to the Participant's Company Matching
Contributions Account.
(d) A 1986 Profit Sharing Account shall be established for
each Participant who participated in the Plan prior to 1987.
(e) A Rollover Account shall be established, as provided in
Section 4.6.
(f) A Stock Bonus Account shall be established for each
Participant who had an account in the Burr-Brown Corporation Stock Bonus Plan
which was merged into this Plan effective July 1, 1989.
Accounts shall be for bookkeeping purposes only, and, except as may be otherwise
necessary with respect to one of the Accounts, the establishment of Accounts
shall not require any segregation of the Fund's assets.
8.2 Valuation of Accounts. As of each Valuation Date, the
value of each Account shall be adjusted to reflect the effect of distributions,
withdrawals, transfers, income, realized and unrealized profit and losses,
contributions and all other transactions with respect to the Fund since the
immediately preceding Valuation Date in accordance with a method adopted by the
Committee which is consistently followed and uniformly applied. For purposes of
this Section 8.2, the value of an Account will be the fair market value as of
the applicable Valuation Date. A Participant's Account may be subject to charges
and expenses involved in administering the Plan pursuant to Section 19.4. Any of
such charges and expenses may instead be paid by the Company, at the Company's
sole election.
8.3 Rollover Accounts. With the consent of the Committee,
which shall be granted in its sole discretion and only if it is certain that the
amount to be transferred constitutes a Rollover Contribution, an Employee may
transfer to the Fund an amount that constitutes a Rollover Contribution.
Notwithstanding any provisions of the Plan to the contrary, the following shall
apply with respect to a Rollover Contribution:
(a) A Rollover Account shall be established for each Employee
who makes a Rollover Contribution. Commencing on the date the Rollover
Contribution is transferred to the Fund, the Rollover Account shall share in the
earnings or losses of the Fund for such Plan Year in the manner described in
Section 8.2.
(b) A Rollover Account shall be treated in all respects the
same as all other Accounts except that no Company contributions shall ever be
added to a Rollover Account.
31.
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(c) An Employee shall be treated the same as a Participant
hereunder from the time of the transfer (but shall not actually be a Participant
until satisfying the requirements of Article III, and shall be eligible for an
allocation of Employee Deferral Contributions hereunder only upon satisfying all
requirements of the Plan as though this Section were not a part hereof).
(d) A Rollover Contribution shall not be accepted by the
Committee if it is a direct or indirect transfer of any assets of any qualified
plan under Section 401(a) of the Code which is required to provide annuity
distributions to terminating participants pursuant to the provisions described
in Section 401(a)(11)(B)(iii)(III) of the Code.
32.
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ARTICLE IX
VESTING
9.1 Vesting in the Employee Deferral Contributions Account,
the 1986 Profit Sharing Account, the Stock Bonus Account and the Rollover
Account. An Employee's interest in his Employee Deferral Contributions Account,
1986 Profit Sharing Account, Stock Bonus Account and Rollover Account herein
shall be fully vested at all times.
9.2 Vesting in Company Matching Contributions Account and the
Company Profit Sharing Contributions Account. The Participant's interest in his
Company Profit Sharing Contributions Account and Company Matching Contributions
Account shall become fully vested at the earliest of the following dates:
(a) The date of the Participant's death while an Employee of
an Affiliated Company,
(b) The date the Participant incurs a Total Disability,
(c) The Participant's attainment of Normal Retirement Age,
(d) The date of termination of this Plan, or
(e) The date the Participant completes four (4) years of
Vesting Service.
9.3 Determination of Vested Interest in the Company Profit
Sharing Contributions Account and Company Matching Contributions Account in the
Event of a Severance Date. Prior to the date that the Participant's
nonforfeitable interest in his Company Profit Sharing Contributions Account and
Company Matching Contributions Account becomes fully vested pursuant to Section
9.2, his nonforfeitable interest in those Accounts shall be the appropriate
percentage under the following table:
<TABLE>
<CAPTION>
Years of Vesting Nonforfeitable
Service Percentage
------- ----------
<S> <C>
less than 1 0%
1 but less than 2 25%
2 but less than 3 50%
3 but less than 4 75%
4 or more 100%
</TABLE>
Any amounts credited to the Company Profit Sharing Contributions Account or
Company Matching Contributions Account in which the Participant is not vested
may be forfeited in accordance with Sections 9.4 and 11.3. In the event the
Participant's unvested benefits are not otherwise earlier forfeited, such
non-vested benefits shall in all events be completely forfeited upon his
incurrence of a Period of Severance of sixty (60) months or more.
9.4 Restoration of Forfeiture. If a Participant incurs a
Severance Date and thereby ceases to be an Employee prior to the time he is one
hundred percent (100%) vested in his Company Matching Contributions Account
and/or Company Profit Sharing Contributions Account and he receives a
distribution of his entire vested interest in his Company Matching Contributions
Account, or Company Profit Sharing Contributions Account pursuant to Section
11.4 prior to sustaining a Period of Severance of sixty (60) months or more, the
entire unvested amount credited to the Participant's applicable Accounts shall
be forfeited and reallocated in accordance with the provisions of Section 11.3
as of the year-end Valuation Date coincident with or immediately following such
distribution. If such Participant shall become an Employee prior to sustaining
33.
<PAGE> 40
a Period of Severance of sixty (60) months or more, such individual shall resume
participation in the Plan in accordance with Section 3.4, and an amount equal to
the amount forfeited from each Account in connection with his prior distribution
shall be restored to that Account, provided he repays in full the amount
distributed from that Account on or before the earlier of the fifth (5th)
anniversary of the date of his resumption of Employee status or his incurrence
of a Period of Severance of sixty (60) months or more. Forfeitures for the year
of restoration will be used to restore such amounts. In the event there are not
sufficient forfeitures, the Company will make a special contribution to complete
the restoration. Under no circumstances shall Service rendered by a Participant
who has previously incurred a Period of Severance of sixty (60) months or more,
be taken into account in determining the percentage to which the Participant is
vested in that portion of his Company Profit Sharing Contributions Account or
Company Matching Contributions Account (including allocated forfeitures)
attributable to contributions made prior to such Period of Severance of sixty
(60) months or more.
9.5 Amendments to Vesting Schedule. No amendments to the
vesting provisions set forth in Sections 9.1 through 9.3 shall deprive an
Employee who is a Participant on the later of (a) the date the amendment is
adopted, or (b) the date the amendment is effective, of any nonforfeitable
benefit to which he is entitled under the Plan (determined as of such date)
without regard to such amendment. If the vesting provisions designated in
Sections 9.1 through 9.3 are amended, each Participant whose benefits would be
determined under such schedule and who has completed three (3) years of Vesting
Service shall have the right to elect, during the period computed pursuant to
this Section 9.5, to have his nonforfeitable benefit determined without regard
to such amendment; provided, however, that no election shall be provided to any
Participant whose nonforfeitable percentage under the schedule, as amended,
cannot at any time be less than the percentage computed without regard to such
amendment. The election period shall commence on the date the amendment is
adopted and end on the latest of: (a) sixty (60) days after adoption of the
amendment, (b) sixty (60) days after the effective date of the amendment, or (c)
sixty (60) days after the Participant is notified of the amendment in writing by
the Company or Committee. Such election, if exercised, shall be irrevocable, and
shall be available only to an Employee who is a Participant when the election is
made.
34.
<PAGE> 41
ARTICLE X
WITHDRAWALS DURING EMPLOYMENT
10.1 In-Service Withdrawals. Subject to the limitation of
Section 10.2, a Participant who has incurred a Financial Hardship, as
hereinafter described in Section 10.2, may withdraw all or a portion of the
value of his Employee Deferral Contributions Account or Rollover Account.
10.2 Withdrawal Rules. Withdrawals pursuant to Section 10.1
shall be permitted subject to the following rules:
(a) Withdrawals shall be made by filing a written request with
the Committee on such form as the Committee may prescribe. Withdrawals shall
take effect as of the date a written request is approved by the Committee, and
payment of the amount to be withdrawn shall be made as soon as practicable
thereafter.
(b) All withdrawals shall be paid in a lump sum.
(c) All withdrawals shall first be made from a Participant's
Rollover Account and then from his Employee Deferral Contributions Account.
(d) The Committee shall approve a distribution from the Fund
to a Participant due to Financial Hardship only in the event such distribution
is necessary to meet the Financial Hardship of the Participant.
(1) There is a Financial Hardship only if the reason
for the distribution would be to pay one of the following expenses:
(i) Medical expenses (as described in
Section 213(d) of the Code) of the Participant, the Participant's spouse or
dependents;
(ii) Costs directly related to the purchase
(excluding mortgage payments) of the principal residence of the Participant;
(iii) Tuition and related educational fees
for the next twelve (12) months of post-secondary education for the Participant,
the Participant's spouse or dependents; or
(iv) Expenses necessary to prevent the
eviction from, or foreclosure on the mortgage of, the principal residence of the
Participant.
(2) If there is a Financial Hardship under
subparagraph (1) above, distribution will be considered necessary to satisfy the
Financial Hardship if made subject to the following requirements:
(i) The amount distributed must not exceed
the amount needed (which may include amounts necessary to pay income taxes and
penalties resulting from the distribution).
(ii) The Participant must have obtained all
distributions and nontaxable loans available under this Plan and any other
qualified plan maintained by the Company or any other Affiliated Company.
(iii) If the Participant withdraws amounts
from his Employee Deferral Contributions Account, he will be suspended from
making elective and after-tax contributions to this Plan or any
35.
<PAGE> 42
other qualified plan of the Company or any other Affiliated Company for a period
of at least twelve (12) months following the receipt of the distribution.
(iv) For purposes of Section 4.4, if the
Participant withdraws from his Employee Deferral Contributions Account, the
Section 5.6 limitation on Employee Deferral Contributions for the year
subsequent to the year of the distribution shall be reduced by the total amount
of Employee Deferral Contributions made by the Participant during the year of
the distribution.
(e) If a Participant's Account subject to a withdrawal is
invested in more than one investment fund, the withdrawal shall be made from
such fund or funds as elected by the Participant. In the absence of such
election, the withdrawal shall be made pro-rata from each such fund.
(f) Distributions from the Employee Deferral Contributions
Account of a Participant on account of Financial Hardship shall not exceed the
Employee Deferral Contributions made on behalf of the Participant; the income
allocable to the Participant's Employee Deferral Contributions Account shall not
be included in the distributable amount.
10.3 Withdrawal of Company Matching Contributions. Effective
January 1, 1993, a Participant may no longer withdraw funds from his Company
Matching Contributions Accounts.
36.
<PAGE> 43
ARTICLE XI
DISTRIBUTION UPON TERMINATION OF EMPLOYMENT
11.1 Death. Upon the death of the Participant while in
Employee status, a distribution of the deceased Participant's Accrued Benefit
shall be made to his Beneficiary in Company Stock, to the extent the
Participant's Accounts are invested in Company Stock and the balance in cash;
provided, however, the Beneficiary may elect to receive the cash equivalent of
the Company Stock held in all Accounts except the Stock Bonus Account. The
Participant shall have the unrestricted right to designate one or more
Beneficiaries to receive the death benefits to which he is entitled hereunder,
and to change any such designation. However, if an individual other than the
Participant's Spouse is named as Beneficiary, then the Spouse must consent in
writing to the Participant's designation of such other Beneficiary, and such
consent form must be witnessed by a notary public or a member of the Committee
and must acknowledge the effect such designation will have upon the benefits
otherwise payable to the Spouse under the Plan. Each such Beneficiary
designation shall be evidenced by a written instrument filed with the Committee.
If such designation is not on file with the Committee at the time of the death
of the Participant, or if for any reason in the sole discretion of the Committee
such designation is defective, then the Participant's Spouse, if living, his
children, if living, or his estate, in that order of preference, shall be
conclusively deemed to be the Beneficiary designated to receive such benefit.
Notwithstanding this spousal consent requirement, if the Participant establishes
to the satisfaction of a Plan representative that such written consent may not
be obtained because there is no Spouse or the Spouse cannot be located, the
Beneficiary designation shall be valid without spousal consent. Any spousal
consent necessary under this provision shall be valid only with respect to the
Spouse who signs the consent. Should the Participant designate a person other
than (or in addition to) his Spouse as Beneficiary and not obtain the spousal
consent to such designation required under this Section 11.1, then any benefits
payable under the Plan upon the Participant's death shall be paid entirely to
the Participant's surviving Spouse.
11.2 Payments Upon Termination of Employment. Upon a
Participant's termination of Employee status, the Participant's nonforfeitable
interest in his Accounts, determined in accordance with Article IX, shall be
distributed in Company Stock, to the extent the Participant's Accounts are
invested in Company Stock and the balance in cash; provided, however, the
Participant may elect to receive the cash equivalent of the Company Stock held
in all Accounts except the Stock Bonus Account. If such Participant shall die
prior to full payment of his nonforfeitable interest under the Plan, payment
shall be made to his Beneficiary in accordance with Section 11.1.
11.3 Forfeiture of Non-vested Benefits. The non-vested portion
of each of the Participant's Accounts shall be forfeited as of the Valuation
Date as of which the Participant receives his distribution under Section 11.2.
The non-vested portion of any amounts credited to him but not yet allocated to
his Accounts as of the Valuation Date shall also be forfeited. Forfeitures shall
be applied first to restore Accounts of rehired Employees pursuant to Section
9.4 and then to reduce future Company contributions.
11.4 Timing of Distributions.
(a) The Accrued Benefit to which a Participant or his
Beneficiary becomes entitled in accordance with this Article XI shall be paid in
a lump sum at such time as the Participant elects in his written election to the
Committee. If the Participant's vested Account balances have always been equal
to or less than $3,500, the Committee shall have the right to direct the Trustee
to distribute the vested Account balances to the Participant in a lump sum as
soon as practicable after the Valuation Date ending after his Severance Date. In
the case of death or retirement on or after the Normal Retirement Date, the lump
sum payment of the vested Account balances shall be made as soon as practicable
after the Valuation Date ending after the Severance Date. In all other cases,
the Committee may not immediately distribute benefits without the Participant's
consent. The term "immediately distribute" shall mean the distribution is made
prior to Normal Retirement Age. If the Participant's aggregate vested Account
balances exceeds $3,500, no distribution shall be made to the Participant
37.
<PAGE> 44
prior to his attainment of Normal Retirement Age, unless the Participant's
written consent to any earlier distribution is obtained not more than ninety
(90) days prior to the distribution date. A Participant's failure to so consent
shall be deemed to be an election to defer commencement of any benefit
distribution. Until such time as the amounts in the Participant's Accounts are
paid to him or his Beneficiary, the amounts in his Accounts shall remain
deposited in the Participant's appropriate investment funds and shall continue
to share in the investment earnings and losses of those funds. Distributions of
all Accounts other than Company Stock distributed from the Stock Bonus Account
shall be made in lump sum distribution.
(b) Not less than thirty (30) days nor more than ninety (90)
days prior to the date specified for distribution the Participant shall be
provided with written information relating to his right to defer such
distribution in accordance with the guidelines of this Section 11.4. After
incurring a Severance Date as described in Sections 11.1 and 11.2, determination
of the value of the Participant's distribution shall be made as of the Valuation
Date immediately preceding the date on which the Participant takes distribution.
However, such distribution may commence less than thirty (30) days after the
written information is provided to such Participant (provided that Sections
401(a)(11) and 417 of the Code do not apply), if the Committee (1) clearly
informs the Participant that he has the right to a period of at least thirty
(30) days after receiving such information to consider whether or not to elect a
distribution (and, if applicable, a particular distribution option); and (2) the
Participant, after receiving such information, affirmatively elects a
distribution.
(c) Notwithstanding anything in this Section 11.4 or in
Section 11.5 to the contrary, unless the Participant otherwise agrees, the
distribution of the Participant's Accounts shall commence no later than sixty
(60) days after the close of the Plan Year in which the Participant attains age
65, or in which occurs the tenth (10th) anniversary of the year in which the
Participant commenced participation in the Plan, or in which the Participant
terminates his employment with the Company, whichever occurs last. However, the
benefits payable to a Participant under this Section 11.4 or Section 11.5 shall
in all events commence no later than April 1 of the year following the calendar
year in which he attains age 70 1/2.
11.5 Forms and Timing of Distributions from Stock Bonus
Account.
(a) Subject to the terms of Article VI, after a Participant
incurs a Severance Date described in Sections 11.1 and 11.2, determination of
the value of the Participant's distribution from his Stock Bonus Account shall
be made as of the Valuation Date immediately preceding the date on which the
Participant takes distribution. If the vested balance of the Participant's
entire Stock Bonus Account has always been equal to or less than $3,500, the
Committee shall have the right to direct the Trustee to distribute the vested
Stock Bonus Account balance to the Participant in the form of a lump sum
distribution as soon as practicable after the Valuation Date ending after the
Severance Date. In the case of death or retirement on or after the Normal
Retirement Date, payment shall commence as soon as practicable after the
Valuation Date ending after the Severance Date. In all other cases, the
Committee may not immediately distribute benefits without the Participant's
consent, subject to Section 11.4. The term "immediately distribute" shall mean
the distribution is made prior to Normal Retirement Age. If consent is required,
the Participant must consent to the timing of the distribution. A Participant's
failure to so consent shall be deemed to be an election to defer commencement of
any benefit distribution. Until such time as the amounts in the Participant's
Account is paid to him or his Beneficiary, the amounts in his Stock Bonus
Account shall remain deposited in such Account.
(b) If distribution from the Participant's Stock Bonus Account
is made in installments pursuant to the provisions of Article VI and such
installment distribution is not completed by the Required Beginning Date (which,
for purposes of this Section, shall mean April 1 of the calendar year following
the calendar year in which the Employee attains age 70 1/2), or if the
Participant has not otherwise begin to receive the distribution of his Accounts
under the Plan prior to such Required Beginning Date, then the unpaid balance
credited to the Stock Bonus Account or all Accounts, as the case may be, on the
Required Beginning Date shall be distributed in accordance with the proposed
Treasury regulations under Section 401(a)(9) of the Code, including the minimum
distribution incidental benefit requirements of section 1.401(a)(9)-2 of such
regulations.
38.
<PAGE> 45
Accordingly, in determining the minimum amount to be distributed to such
Participant in each calendar year following the calendar year in which the
Participant attains age 70 1/2, the minimum distribution rules of Section
401(a)(9) of the Code and the proposed Treasury regulations thereunder shall
apply as follows and shall supersede any other distribution provisions to the
contrary in the Plan:
(1) The minimum amount distributed each calendar year
must not be less than the quotient obtained by dividing the adjusted vested
balance of the Participant's Stock Bonus Account or all Accounts, as the case
may be, as valued in accordance with subparagraph (2) below by the applicable
life expectancy in effect for the Participant, reduced by one (1) for each
calendar year which elapses since the date such life expectancy is last
calculated in accordance with subparagraph (3) below.
(2) The adjusted vested balance of each applicable
Account for the first minimum distribution year (the calendar year in which the
Participant attains age 70 1/2) shall be the value of such Account as of the
last Valuation Date in the calendar year immediately preceding the start of such
distribution year. The adjusted vested balance of such Account for the second
minimum distribution year shall be the value of that Account as of the last
Valuation Date in the calendar year immediately preceding the start of such
distribution year, reduced by the amount of the required distribution for the
first minimum distribution year, to the extent paid to the Participant in the
second distribution year on or before the Required Beginning Date. The adjusted
vested balance of the Account for each succeeding minimum distribution year
shall be the value of such Stock Bonus Account as of the last Valuation Date in
the calendar year immediately preceding the start of that distribution year. The
value of the Account will in all instances be increased for any participating
Company contributions or forfeitures allocated to, or reduced by any
distributions or withdrawals made from, the Account after the applicable
Valuation Date and prior to the start of the minimum distribution year to which
such Valuation Date relates.
(3) The applicable life expectancy shall be the life
expectancy of the Participant and shall be calculated on the basis of his
attained age on his birthday in the calendar year in which he attains age 70
1/2. The return multiples in Tables V and VI of Section 1.72-9 of the Treasury
regulations shall be utilized in the determination of the applicable life
expectancy period. The life expectancy of the Participant shall not be
recalculated during the minimum distribution period.
(4) The first calendar year for which a minimum
distribution shall be required under this Section 11.5(b) shall be the calendar
year in which the Participant attains age 70 1/2, and such distribution shall be
made no later than the Required Beginning Date. Each subsequent minimum
distribution shall be made no later than the last day of the calendar year for
which such distribution is required, with the first such subsequent distribution
to be made no later than December 31 of the calendar year immediately following
the calendar year in which the Participant attains age 70 1/2.
(5) Should the minimum distributions required under
this Section 11.5(b) commence prior to the date on which the Participant ceases
Employee status, then the unpaid vested balance credited to the Participant's
Stock Bonus Account at the time of his subsequent cessation of Employee status
for any reason (including death) shall be distributed over the shorter of the
following two periods: (i) the balance of the minimum distribution period in
effect for the Participant or (ii) the installment distribution period in effect
for that Account under Article VI; for all other Accounts, the distribution will
be made in the form of a lump sum payment under Section 11.4(a). In no event may
the distribution in any calendar year within the applicable period be less than
the minimum distribution required for such calendar year in accordance with the
preceding provisions of this Section 11.5(c). In addition, the Participant (or
the designated Beneficiary of a deceased Participant) may, at any time following
such cessation of Employee status, request an immediate lump sum distribution of
the unpaid vested balance of the Stock Bonus Account.
39.
<PAGE> 46
11.6 Participant Payment Election Regarding Stock Bonus
Account. A Participant must receive the distribution of his Stock Bonus Account
in shares of Company Stock; provided, however, any fractional shares of Company
Stock shall be distributed in cash. Distribution of the Stock Bonus Account
shall be made in accordance with the provisions of Article VI and Section 11.5.
11.7 Unclaimed Amounts; Notices. Neither the Company, the
Committee nor the Trustee shall be obliged to search for, or ascertain the
whereabouts of, any Participant or Beneficiary. The Committee, by certified or
registered mail addressed to the Participant's or Beneficiary's last known
address of record with the Committee or the Company, shall notify any
Participant or Beneficiary that he is entitled to a distribution under the Plan.
In the event that the Participant or Beneficiary shall make no claim for
benefits or shall fail to make his correct address known, the Committee may
direct the Trustee to segregate the Participant's Accounts in interest-bearing
deposits with a federally insured institution, and the Committee and the Trustee
shall have no other investment responsibility with regard to such benefits.
After so segregating such benefits, the Committee shall notify the Social
Security Administration of the Participant's or Beneficiary's failure to claim
the distribution to which he is entitled. The Committee shall request the Social
Security Administration to notify the Participant or Beneficiary in accordance
with any procedures it has established for this purpose. The segregated deposits
shall be entitled to all income they earn and shall bear all expense or loss
they incur.
11.8 Direct Rollovers. Notwithstanding any provision of this
Plan to the contrary that would otherwise limit a Distributee's election under
this Plan, a Distributee shall have the right, exercisable in accordance with
the procedure established by the Committee in compliance with Section 402 of the
Code, to have all or any portion of an Eligible Rollover Distribution from this
Plan paid as a Direct Rollover to an Eligible Retirement Plan designated by such
Distributee.
40.
<PAGE> 47
ARTICLE XII
LOANS
12.1 Loan Applications. Except as provided below, each
Participant or other "party in interest" (as defined in Section 3(14) of the
Act) who has an interest in the outstanding balance of any Employee Deferral
Contributions Account and Rollover Account may submit a written application to
the Committee for a loan from the Plan in an amount not in excess of the maximum
amount allowable under Section 12.2. The Committee shall act on each loan
application in a uniform and non-discriminatory manner. The Committee shall not
reject any application on the basis of the applicant's age or sex but may make
distinctions on the basis of the applicant's creditworthiness and financial
need.
12.2 Loan Terms. Upon approval of any application under
Section 12.1, the Committee shall direct the Trustee to make a loan to the
applicant in accordance with the following provisions:
(a) The minimum amount an individual may borrow is $1,000, or
such smaller amount as the Committee shall establish from time to time.
(b) The maximum amount of the loan shall not (when added to
the outstanding balance of all other loans ("Plan Loans") made to the applicant
under this Plan or any other defined benefit or defined contribution plan to
which any Affiliated Company contributes) exceed the lesser of:
(1) $50,000 (less the excess of (i) the highest
principal amount in the aggregate outstanding under any other Plan Loans to the
applicant during the immediately preceding twelve (12) months over (ii) the
aggregate principal amount outstanding under such Plan Loans on the date such
loan is made); or
(2) fifty percent (50%) of the vested balance
credited to the Employee Deferral Contributions Account, Rollover Account,
Company Matching Contributions Account, Company Profit Sharing Contributions
Account and 1986 Profit Sharing Account at the time the loan is made (as
determined pursuant to the valuation provisions of Section 8.2).
In no event, however, shall the amount loaned to the applicant
exceed one hundred percent (100%) of the balance credited to the Employee
Deferral Contributions Account and Rollover Account at the time the loan is
made, less any earmarked investments credited to such Account under Section
12.5.
(c) The cost of processing the loan application may be
deducted from the Employee Deferral Contributions Account and/or the Rollover
Account or may be withheld from the amount borrowed, at the discretion of the
Committee.
(d) The loan shall be evidenced by the applicant's promissory
note in the amount of the loan, made payable to the order of the Trustee.
(e) The loan shall have a fixed term not in excess of five (5)
years (or fifteen (15) years if the proceeds of the loan to a Participant are
applied to the acquisition of real estate which is to serve as his primary
residence), subject to acceleration upon the occurrence of (1) the applicant's
failure to pay any installment of principal or interest when due, (2) the
applicant's qualification for an immediate distribution from the Plan or, if the
applicant is a Participant, his cessation of Employee status, (3) the filing of
bankruptcy proceedings by or against the applicant, the assignment of the
applicant's assets for the benefit of his creditors or the appointment of a
receiver for the applicant's assets, or any other similar event of acceleration
specified in the promissory note.
41.
<PAGE> 48
(f) The loan shall bear a market rate of interest, payable at
least annually. Such market rate shall be determined on the basis of the
interest rates charged for similar-purpose loans by banks and other reputable
financial institutions selected by the Committee as representative lenders.
(g) The loan shall be adequately secured through the
conveyance to the Fund of a security interest in fifty percent (50%) of the
applicant's right, title and interest in and to all Accounts under the Plan.
(h) The loan shall be repayable through level amortization
payments over the term of the loan. Such payments shall be effected through
periodic payroll deductions from the applicant's salary and other cash earnings
each payroll period the loan is outstanding; provided, however, if payroll
deductions are impossible (e.g., the applicant is on an unpaid leave of absence)
the loan shall be repayable in periodic cash installments payable at least
quarterly.
(i) The remaining terms and conditions of the loan and related
documentation shall be established by the Committee.
(j) The provisions of this Article XII and loans made
hereunder shall be interpreted and construed so as to prevent any such loan from
being treated as a taxable distribution under Section 72(p) of the Code.
12.3 Offset Rights. If the borrower is the Participant, then
no distributions shall be effected from his Accounts at any time after his
cessation of Employee status, unless and until all loans under this Article XII,
including interest thereon, have been repaid in full. Should any other person
become entitled to a distribution under the Plan at a time when one or more
Article XII loans to such person remain outstanding, then the unpaid balance of
such loans shall become immediately due and payable, up to an amount equal to
the amount to be distributed to him under the Plan. The Trustee shall,
accordingly, collect such accelerated indebtedness by withholding it from and
offsetting it against the amount to be distributed. To the extent any Qualified
Domestic Relations Order requires payment to an Alternate Payee at a time when a
loan is outstanding to the Participant from whose Account the Qualified Domestic
Relations Order requires payment, the terms of such Order shall control.
12.4 Liquidation of Account. The proceeds for each loan under
the Plan shall be taken directly from the Employee Deferral Contributions
Account and/or the Rollover Account, as applicable, in which the applicant has
an interest by liquidating one or more of the investments at the time held in
such Account(s). The applicant shall accordingly provide the Committee with
investment directives specifying which of the applicant's investments under the
Plan are to be liquidated in order to provide the loan proceeds. The Committee
shall promptly direct the Trustee to liquidate one or more investments held in
the Account(s) in accordance with the applicant's instructions. In the absence
of such instructions from the applicant, the loan proceeds shall be obtained by
liquidating a portion of each investment held in the Account(s), with the amount
so liquidated to be in the same proportion as the market value of each such
investment bears to the total market value of all investments held in the
Account(s).
12.5 Earmarked Investment. All notes evidencing Article XII
loans from the Employee Deferral Contributions Account and/or the Rollover
Account, as applicable, shall constitute an earmarked investment of the
applicable Account(s). Accordingly, each of such Account(s) shall at the time
the loan is made be divided into two (2) subaccounts. Subaccount One shall be
credited with the note and shall not share in the investment gains or losses of
the Fund under Article VIII. Subaccount Two shall be credited with that portion
of the Account which is not loaned to the applicant (including payments of
interest and principal made on the note) and shall be periodically adjusted
under Section 8.2 for its allocable share of the investment gains and losses of
the Fund. To the extent the Employee Deferral Contributions Account and/or the
Rollover Account, as applicable, has an earmarked investment under this Section
12.5, then all Employee Deferral Contributions
42.
<PAGE> 49
and/or Rollover Contributions thereafter allocated to such Account shall be
credited to Subaccount Two, where they shall remain until they become the
subject of a subsequent loan under this Article XII.
43.
<PAGE> 50
ARTICLE XIII
FIDUCIARY
13.1 Plan Administrator. The Company shall be the Plan
Administrator, but it may delegate its duties as such to a committee appointed
in accordance with Article XIV.
13.2 Named Fiduciary. The Plan Administrator shall be a "named
fiduciary" of the Plan with authority to manage and control Plan assets and to
select the Investment Manager.
13.3 Employment of Advisors. A "named fiduciary," and any
"fiduciary" named by a "named fiduciary," may employ one or more persons to
render advice with regard to any responsibility of such "named fiduciary" or
"fiduciary" under the Plan.
13.4 Multiple Fiduciary Capacities. Any "named fiduciary" and
any other "fiduciary" may serve in more than one fiduciary capacity with respect
to the Plan.
13.5 Indemnification. The Company shall maintain and keep in
force such insurance as the Plan Administrator shall determine to insure and
protect the Company's directors, officers, employees and any appropriately
authorized delegates or appointees of them against any and all claims, damages,
liability, loss, cost or expense (including attorney's fees) arising out of or
resulting from (including failure to act with respect to) any responsibility,
duty, function or activity of any such person in relation to the Plan (or Trust,
if applicable), including without limitation, the members of the Board, the
Committee, the members of the Committee, and directors, officers and employees
of the Company performing responsibilities, duties, functions, and/or actions at
the direction or under the authority of any of the foregoing.
In lieu of and/or as a supplement and in addition to the
insurance referred to in the foregoing sentence, the Company shall indemnify and
hold harmless its directors, officers and employees against any and all claims,
damages, liability, loss, cost or expense arising in connection with (including
failure to act with respect to) any responsibility, duty, function or activity
of any such person in relation to the Plan (or Trust, if applicable) including
without limitation the members of the Board, the Committee, the members of the
Committee, and directors, officers and employees of the Company performing
responsibilities, duties, functions and/or actions at the direction or under the
authority of any of the foregoing; provided, however, that no such
indemnification shall extend to any matter as to which it shall have been
adjudged by any court of competent jurisdiction that such person has acted in
bad faith or was guilty of gross negligence in the performance of his duties
unless such court shall, in view of all the circumstances of the case, determine
that such person is fairly and reasonably entitled to indemnification.
44.
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ARTICLE XIV
ADMINISTRATION
14.1 The Committee.
(a) The Plan Administrator shall appoint a Committee,
consisting of at least two (2) members, to be known as the "Committee" which
shall serve at the pleasure of the Plan Administrator. Unless the Plan
Administrator otherwise provides, any members of the Committee who is a director
or Employee of the Company at the time of his appointment will be considered to
have resigned from the Committee when no longer a director or Employee. At least
one (1) member of the Committee shall be an officer of the Company.
(b) All of the reasonable expenses of the Committee shall be
paid from the Fund, unless paid directly by the Company. Directors and Employees
shall receive no compensation for their services rendered to or as members of
the Committee.
(c) The Committee shall act by a majority of its members at
the time in office and such action may be taken either by a vote at a meeting or
in writing without a meeting. The Committee may authorize in writing any person
to execute any document or documents on its behalf, and any interested person,
upon receipt of notice of such authorization directed to it, may thereafter
accept and rely upon any document executed by such authorized person until the
Committee shall deliver to such interested person a written revocation of such
authorization.
(d) A member of the Committee who is also a Participant shall
not vote or act upon any matter relating specifically to himself.
14.2 Powers and Duties of the Committee. The Committee shall
be empowered to perform the administrative duties described in this Plan and
shall have all powers necessary to enable it to properly carry out such duties.
Without limiting the generality of the foregoing, the Committee shall have the
power to construe and interpret this Plan, to hear and resolve claims relating
to this Plan, and to decide all questions and disputes arising under this Plan.
The Committee shall have full power and authority to determine the eligibility
of employees to participate in the Plan, the service to be credited to the
Employees, the status and rights of a Participant, the identity of the
beneficiary or beneficiaries entitled to receive any benefits payable hereunder
on account of the death of a Participant, and the amount of the benefits (if
any) to which any Participant or his Spouse or beneficiary is entitled under the
Plan. Except as is otherwise provided hereunder, the Committee shall determine
the manner and time of payment of benefits under this Plan. All benefit
disbursements by the Trustee shall be made upon the instructions of the
Committee. The decision of the Committee upon all matters within the scope of
its authority shall be binding and conclusive upon all persons. The Committee
shall file all reports and forms lawfully required to be filed by the Committee
with any governmental agency or department, federal or state, and shall
distribute any forms, reports, statements or plan descriptions lawfully required
to be distributed to Participants and others by any governmental agency or
department, federal or state. The Committee shall keep itself advised with
respect to the investment of the Fund and shall, not less frequently than
annually, report to the Employer regarding the investment and reinvestment of
the Fund. The Committee shall have power to direct specific investments of the
Fund only where such power is expressly conferred by this Plan and only to the
extent described in this Plan. All other investment duties shall be the
responsibility of the Trustee.
14.3 Delegation of Responsibility by the Committee. The
Committee may designate persons, including persons other than "named
fiduciaries," to carry out the responsibilities of the Committee provided for
hereunder. The Committee shall not be liable for any act or omission of a person
so designated.
45.
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14.4 Investment Direction by Plan Administrator.
(a) The Board may authorize in writing any person to execute
any document or documents on its behalf, and any interested person, upon receipt
of notice of such authorization directed to it, may thereafter accept and rely
upon any document executed by such authorized person until the Company shall
deliver to such interested person a written revocation of such authorization.
(b) The Board shall have power to establish the funding policy
of the Plan pursuant to Section 14.7 and make and deal with any investment of
the Fund in any manner consistent with the Plan which they deem advisable.
(c) The Board shall have all the rights, powers, duties and
obligations regarding investment of Plan assets granted or imposed upon it
elsewhere in the Plan.
(d) The Board shall exercise its responsibilities hereunder in
a uniform and nondiscriminatory manner.
(e) The Board shall designate a representative to enter into
one or more contracts with a Funding Agent under which the Funding Agent
establishes and makes available separate investment funds to which the
Participants may direct the investment of their Accounts. Any such contract(s)
may provide for the contributions thereunder to be held in the Funding Agent's
general account or in one or more of its commingled separate accounts.
(f) The Committee shall make recommendation to the Board with
regard to the exercise of the Board's powers described in subparagraphs (a)
through (e).
14.5 The Investment Manager. The Board may, by an instrument
in writing, appoint one or more persons (each of which is hereinafter referred
to as an "Investment Manager") as adviser to the Board in respect of investments
and may, subject to any restrictions upon investment imposed upon the Board by
any regulation prescribed by the Secretary relating to the qualified status of
the Fund as tax exempt, or by the Act, delegate to an Investment Manager from
time to time, the power to manager, acquire and dispose of any Plan assets. Each
person so appointed shall be an Investment Adviser registered under the
Investment Advisers Act of 1940, a bank as defined in that Act, or any insurance
company qualified to manage, acquire, or dispose of any asset of the Plan under
the laws of more than one state. Each Investment Manager shall acknowledge in
writing that he is a "fiduciary" with respect to the Plan. The Board shall enter
into an agreement with each Investment Manager specifying the duties and
compensation of such Investment Manager and the other terms and conditions under
which such Investment Manager shall be retained. The Board shall not be liable
for following the advice of any Investment Manager, with respect to any duties
delegated to any Investment Manager.
14.6 Appointment of a Trustee. The Board may, by an instrument
in writing, appoint one or more persons to serve as Trustee (each of which is
herein referred to as a "Trustee") of all or a portion of the Future Investment
Trust and the Stock Bonus Trust. Each Trustee shall be subject to direction by
the Company or an Investment Manager and shall have no discretion with respect
to management and control of Plan assets, except, to the extent that the
instrument appointing such Trustee provides that such Trustee shall have power
to manage and control Plan assets. Each Trustee shall accept its appointment by
an instrument in writing. The Company shall enter into an agreement with each
Trustee specifying the duties and compensation of such Trustees and the other
terms and conditions under which such Trustees shall serve. Neither the Company
nor the Board shall be liable for any act or omission of any Trustee with
respect to any duties delegated to such Trustee. The Board may, at any time,
terminate the appointment of any Trustee.
46.
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14.7 Funding Policy. The funding policy of the Plan shall be
as follows:
(a) Subject to Article VII, Company contributions allocated to
the Fund shall be invested in a manner consistent with the investment objectives
determined by the Board. The Board shall communicate its investment objectives
and funding policy to the Funding Agent as to the Fund and/or to other
Investment Managers.
(b) The Board shall review at least annually the funding
policy and investment objectives of the Plan after reviewing the recommendations
of the Committee and shall communicate any revision in such objectives to the
Funding Agent as to the Fund and/or to other Investment Managers.
14.8 Compensation of Investment Manager and Trustees. Each
Investment Manager and each Trustee, if any, shall be paid such reasonable
compensation, in addition to their expenses, as shall from time to time be
agreed upon by the Company and each Trustee and each Investment Manager, as the
case may be.
14.9 Facility of Benefit Payment. Whenever, in the Committee's
opinion, a person entitled to receive any payment of a benefit or installment
thereof hereunder is under a legal disability or is incapacitated in any way so
as to be unable to manage his financial affairs, the Committee may direct the
Trustee to make payments to such person or to his legal representative or to a
relative or friend of such person for his benefit, or to direct the Trustee to
apply the payment for the benefit of such person in such manner as the Committee
considers advisable. Any payment of a benefit in accordance with the provisions
of this Section 14.9 shall be a complete discharge of any liability for the
making of such payment under the provision of the Plan.
14.10 Claims and Appeals.
(a) Claims Procedure. Should any Participant or Beneficiary
believe he is entitled to a benefit from the Plan which differs from the benefit
determined by the Committee, such Participant or Beneficiary may file a written
claim with the Committee. Within ninety (90) days after receipt of such claim
(or if an extension of time for processing the claim is required, within one
hundred eighty (180) days after receipt of such claim), the Committee shall
notify the claimant in writing as to whether the claim has been granted. If the
claimant has not received written notice of such decision within the ninety (90)
day period (or a one hundred eighty (180) day period, if an extension of time is
required), the claimant shall, for the purpose of subparagraph (b), regard his
claim as denied.
Any notice of denial of a claim shall be set forth in a manner
calculated to be understood by the claimant giving:
(1) the specific reason or reasons for the denial;
(2) the specific reference to the pertinent Plan
provisions on which the denial is based;
(3) a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary; and
(4) appropriate information as to the steps to be
taken if the Participant or Beneficiary wishes to submit his claim for review.
(b) Review Procedure. Any claimant (or his duly authorized
representative) whose claim for benefits is denied in whole or in part may
appeal to the Committee for a full and fair review of the decision by submitting
to the Committee, within sixty (60) days after receiving from the Committee
written notice of such denial (as set forth in subparagraph (a)), a written
statement:
47.
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(i) Requesting a review by the Committee of his claim
for benefits;
(ii) Setting forth all of the grounds upon which the
request for review is based and any facts in support thereof; and
(iii) Setting forth any issues or comments which the
claimant deems pertinent to his claim.
(c) Timing of Response on Review. The Committee shall act upon
each such claim within sixty (60) days after receipt of the claimant's request
for review by the Committee, unless special circumstances require an extension
of time for processing. If such an extension is required, written notice of the
extension shall be furnished to the claimant within the initial sixty (60) day
period, and a decision shall be rendered as soon as possible, but not later than
one hundred twenty (120) days after receipt of the initial request for review.
The Committee shall make a full and fair review of each such claim and any
written materials submitted by the claimant in connection therewith, and the
Committee may require the claimant to submit such additional facts, documents,
or other evidence as the Committee may, in its sole discretion, deem necessary
or advisable in making such a review. On the basis of its review, the Committee
shall make an independent determination of the claimant's eligibility for
benefits under the Plan. The decision of the Committee on any benefit claim
shall be final and conclusive upon all persons.
(d) Denial of Appeal. In the event the Committee denies an
appeal in whole or in part, the Committee shall give written notice of such
decision to the claimant, setting forth in a manner calculated to be understood
by the claimant the specific reasons for such denial and specific reference to
the pertinent Plan provisions on which the decision of the Committee was based.
48.
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ARTICLE XV
RIGHTS OF PARTICIPANTS
15.1 Limitations on Rights of Participants. The adoption and
maintenance of this Plan shall not be construed as creating any contract of
employment between the Company and any Employee. The Company shall have the
right in all respects to deal with its Employees, their hiring, discharge,
compensation and conditions of employment as though this Plan did not exist. No
Employee shall have any right to question the action of the Company or the Board
in terminating Company liability to contribute to this Plan or in terminating
this Plan in its entirety. Each Participant shall have the right only to see the
record of the accounts with respect to his own participation, and shall have no
right to inquire as to accounts with respect to other persons.
The sole rights of a Participant under this Plan shall be to
have this Plan administered according to its provisions, to receive whatever
benefits he is entitled to receive hereunder, and to name the Beneficiary to
receive any death benefits to which such person may be entitled in accordance
with the terms of this Plan.
15.2 Prohibition Against Assignment or Alienation of Benefits.
No benefit, right or interest of any kind of any Participant in this Plan may be
assigned, transferred, pledged, mortgaged or otherwise alienated or anticipated,
nor shall any such benefit, right or interest be subject to garnishment,
attachment, execution or levy of any kind, or any other legal process, whether
by virtue of bankruptcy, insolvency or other operation of law (other than (a)
Federal tax levies and executions on Federal tax judgments, (b) payments made
from the Accounts of a Participant in satisfaction of the rights of alternate
payees pursuant to a Qualified Domestic Relations Order under Article XIX) or
(c) the enforcement of any security interests or offset rights applicable to
Employee Deferral Contributions Account and Rollover Account of a Participant
pursuant to the loan provisions of Article XII).
49.
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ARTICLE XVI
AMENDMENT OF THE PLAN
16.1 Amendment of the Plan. The Company acting through the
Board shall have the right at any time, through a written instrument duly
executed and acknowledged by an authorized officer of the Company to modify,
alter, or amend this Plan, in whole or in part, prospectively or retroactively,
to any extent and in any manner as it shall deem advisable. Upon delivery of the
instrument of amendment to each participating Affiliated Company and the
Trustee, the amendment shall become effective in accordance with its terms as to
all Participants and all other persons having or claiming any interest under the
Plan. However, no such amendment shall operate to (a) cause any part of the Fund
to revert to or be recoverable by any Affiliated Company or to be used for, or
diverted to, purposes other than the exclusive benefit of Participants and their
Beneficiaries; (b) reduce the then outstanding balances in the Accounts of
Participants; or (c) cause or effect any discrimination in favor of Highly
Compensated Employees; or (d) substantially increase the duties of the Committee
and the Trustee hereunder without their written consent.
50.
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ARTICLE XVII
TERMINATION OF THE PLAN
17.1 Termination of the Plan. The Company intends to make
contributions to the Plan indefinitely, but it is under no obligation or
liability whatsoever to continue its contributions to the Plan or to maintain
the Plan for any given length of time. The Company may, in its sole discretion,
discontinue contributions at any time without liability whatsoever for such
action. In addition, the Board may, at any given time terminate the Plan in
whole or in part.
17.2 Effect of Discontinuance. In the event the Board decides
to discontinue further contributions to the Plan, the duties of the Committee
shall continue as before, and the provisions of the Plan (other than the
provisions relating to contributions by the Company) shall remain in force with
respect to the Employee/Participants of the Company. The Fund shall also remain
in existence, and all the provisions of the Fund (other than provisions relating
to contributions by the Company) shall continue in effect. Any unallocated
balance in the Section 4.10 suspense account at the close of the Plan Year in
which the discontinuance of contributions occurs shall be allocated (to the
extent permissible) to the Company Profit Sharing Contributions Account of each
Participant in Employee status at the end of the Plan Year of discontinuance,
with such allocation to be in proportion to the Eligible Earnings paid to each
such Participant for such Plan Year. Any other unallocated funds existing at the
date of discontinuance (other than any Employee Deferral Contributions, Company
Matching Contributions, Company Profit Sharing Contributions, and forfeitures),
shall be allocated to all Accounts outstanding on such date in accordance with
Section 8.2. If the Company completely discontinues all contributions to the
Plan, then all amounts credited to the Accounts of Participants in accordance
with the provisions of this Section 17.2 shall become fully vested and
non-forfeitable.
17.3 Effect of Termination. If the Plan is terminated
completely or if there is a partial termination of the Plan with respect to the
Employees of the Company, all amounts credited to the Accounts of affected
Participants shall immediately vest in full and become non-forfeitable, and in
no event shall any part of the Fund revert to or revest in the Affiliated
Company, except as herein provided. The Committee shall, in accordance with
Section 8.2, value the assets of the Fund and the individual Accounts of all
affected Participants as of the date of termination and, after satisfying
current obligations of the Plan and setting aside funds for anticipated future
obligations of the Fund, including (but not limited to) the Trustee's
compensation and expenses, shall (in accordance with Section 8.2) allocate to
all Accounts outstanding on the date of termination the net increase or decrease
in the fair market value of the Fund since the immediately preceding Valuation
Date (excluding, however, any Employee Deferral Contributions, Company Profit
Sharing Contributions and Company Matching Contributions, and forfeitures for
the Plan Year of termination, which are to be allocated in accordance with
Article IV). Any unallocated balance in the Section 4.10 suspense account at the
date of termination with shall be allocated (to the extent permissible under
Section 4.10) to the Accounts of all Participants who continue in Employee
status through the end of the Plan Year of termination, with such allocation to
be in proportion to the Eligible Earnings paid to each such Participant for such
Plan Year. Upon a complete termination of the Plan, any remaining balance in the
Section 4.10 suspense account shall be returned to the Company.
The Trustee shall pay to each Participant for whom the
termination is effective (or his Beneficiary) the net value of his Accounts in
accordance with the written directives of the Committee. However, should the
Company not dissolve or cease all operations as of the date of Plan termination,
then the Employee Deferral Contributions Accounts of each such Participant shall
not be distributed pursuant to the provisions of this Section 17.3, but shall
continue to be held in trust for subsequent distribution in accordance with
Article XI, unless no other successor defined contribution plan is established
and the Participant consents to the immediate lump sum distribution of his
Accounts.
17.4 Plan Transfers or Mergers. The merger or consolidation
with, or transfer of the allocable portion of the assets and liabilities of the
Fund to, any other qualified retirement plan, trust or fund
51.
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shall be permitted only if the benefit each Participant would receive if the
Plan were terminated immediately after such merger, consolidation or transfer
would be at least as great as the benefit he would have received had this Plan
been terminated immediately before the date of merger, consolidation or
transfer.
17.5 Corporate Changes. The Plan shall not be automatically
terminated by the Company's acquisition by or merger into any other company,
trade or business, but the Plan may be continued after such merger, provided the
successor employer agrees to continue the Plan with respect to Participants
employed by the Company. All rights to amend, modify, suspend or terminate the
Plan with respect to Participants employed by the Company shall be transferred
to the successor employer, effective as of the date of the merger or
acquisition.
17.6 Determination of Partial Termination. For purposes of
this Article XVII, a partial termination of the Plan shall be deemed to occur
only if there is a determination, either made or agreed to by the Committee or
the Company, or made by the Internal Revenue Service and upheld by a decision of
a court of final jurisdiction, that a particular event or transaction which has
transpired (including the sale or transfer of all or substantially all of the
assets of the Affiliated Company or the cessation of operations at one or more
of its facilities) constitutes a partial termination within the meaning of
Section 411(d)(3)(A) of the Code.
52.
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ARTICLE XVIII
TOP-HEAVY PLAN PROVISIONS
18.1 Definitions. For purposes of this Article XVIII, the
following terms shall have the meanings indicated:
(a) "Determination Date" shall mean for any Plan Year the last
day of the immediately preceding Plan Year, except for the initial Plan Year it
shall be the last day of such initial Plan Year.
(b) "Key Employee" shall mean for any Plan Year any Employee
or former Employee (or Beneficiary of any deceased Employee) who is (as of the
Determination Date for such Plan Year), or who was at any time during any of the
four (4) Plan Years ended immediately prior to the Plan Year in which such
Determination Date occurs:
(1) an officer of an Affiliated Company who received
aggregate annual Compensation (for the same Plan Year he was such an officer)
which was in excess of fifty percent (50%) of the maximum dollar limitation in
effect for such Plan Year under Section 415(b)(1)(A) of the Code,
(2) one of the ten (10) Employees owning (actually or
constructively under Section 318 of the Code) the largest percentage interest in
any Affiliated Company, provided such individual owns more than a one half
percent (1/2%) interest in such Affiliated Company and his aggregate
Compensation for the same Plan Year is greater than the maximum dollar
limitation in effect for such Plan Year under Section 415(c)(1)(A) of the Code,
(3) a Five Percent (5%) owner of any Affiliated
Company, or
(4) a one percent (1%) owner of any Affiliated Company
who received aggregate annual Compensation for the same Plan Year in excess of
$150,000.00.
The determination of Key Employee status shall be made pursuant to the criteria
set forth in Section 416(i) of the Code and the Regulations issued thereunder.
Ownership interests shall be determined in accordance with the attribution rules
of Section 318 of the Code.
If the number of officers which would otherwise be taken into
account under subparagraph (1) for any Plan Year exceeds ten percent (10%) of
the total number of Employees of all the Affiliated Companies, then the number
of such officers actually qualifying as Key Employees under subparagraph (1) for
such Plan Year shall be limited to that number of officers, not in excess of ten
percent (10%) of such total number of Employees, selected from the group of all
Employees determined to be officers at any time during the five (5) Plan Year
period ending with the Determination Date for the current Plan Year, who
received the highest annual Compensation for any Plan Year (during such five (5)
year period) for which they were officers.
For purposes of subparagraph (2) above, should two (2)
Employees own the same percentage interest in one or more Affiliated Companies,
then the Employee having the greater aggregate annual Compensation for the Plan
Year shall be deemed to own the larger percentage interest.
(c) "Non-Key-Employee" shall mean any Employee who is not a
Key Employee and shall include any Employee who is a former Key Employee.
(d) "Permissive Aggregation Group" shall mean a group of plans
consisting of the Required Aggregation Group plus any other plan of the
Affiliated Companies which, when considered together with the
53.
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Required Aggregation Group, would continue to satisfy the requirements of
Sections 401(a)(4) and 410 of the Code.
(e) "Required Aggregation Group" shall mean a group of plans
consisting of (1) this Plan and any other qualified plan of one or more
Affiliated Companies (including a simplified employee pension plan) in which at
least one Key Employee participates and (2) any other qualified plan of the
Affiliated Companies which enables any plan described in subparagraph (1) above
to meet the requirements of Sections 401(a)(4) and 410 of the Code.
(f) "Remuneration" shall have the meaning assigned to such
term in Section 4.8(i) and shall be applied on an aggregate basis as if all the
Affiliated Companies were a single employer entity paying such Remuneration.
(g) "Top-Heavy Contribution" shall have the meaning assigned
to such term in Section 18.3.
(h) "Top-Heavy Ratio" shall mean that fraction the numerator
of which is the sum of the account balances of all Key Employees under this Plan
(and, if this Plan is part of a Required Aggregation Group or a Permissive
Aggregation Group, the sum of (1) the account balances of all Key Employees
under all other defined contribution plans (within such Required or Permissive
Aggregation Group) maintained by one or more Affiliated Companies, and (2) the
present value of the accrued benefits of all Key Employees under all defined
benefit plans (within such Required or Permissive Aggregation Group) maintained
by one or more Affiliated Companies), and the denominator of which is the sum of
the account balances of all Participants under this Plan (and, if this Plan is
part of a Required Aggregation Group or a Permissive Aggregation Group, the sum
of (1) the account balances of all Participants under all other defined
contribution plans (within such Required or Permissive Aggregation Group)
maintained by one or more Affiliated Companies, and (2) the present value of the
accrued benefits of all Participants under all defined benefit plans (within
such Required or Permissive Aggregation Group) maintained by one or more
Affiliated Companies.
In determining the Top-Heavy Ratio, the following rules shall
apply:
(1) The value of such account balances and the present
value of such accrued benefits shall be determined as of the most recent
Top-Heavy Valuation Date within the twelve (12) month period ending on the
Determination Date. Each account balance so determined shall be adjusted for (a)
the amount of any contributions made after such Top-Heavy Valuation Date but on
or before the Determination Date or, with respect to defined contribution plans
subject to Section 412 of the Code, (b) the amount of any contributions to be
allocated as of a date on or before the Determination Date though not yet
required to be actually contributed. Except as otherwise provided in
subparagraph (2) below or in the Regulations issued under Section 416(g)(3) of
the Code, the value of each such account balance or accrued benefit shall also
include all distributions made from such account or made with respect to such
accrued benefit during the five (5) Plan Year period ending on the Determination
Date. The present value of each accrued benefit under a defined benefit plan
shall be determined as if the individual ceased Employee status as of the
Top-Heavy Valuation Date and shall be calculated in accordance with the
actuarial assumptions in effect for such purpose under the defined benefit plan
under which such benefit is payable. The accrued benefit of an Employee other
than a Key Employee shall be determined under the method, if any, that uniformly
applies for accrual purposes under all defined benefit plans maintained by one
or more Affiliated Companies or if there is no such method, as if such benefit
accrued not more rapidly than the slowest accrual rate permitted under Section
411(b)(1)(C) of the Code.
(2) Should there be effected a transfer from one
qualified plan to another (by rollover or plan-to-plan transfer) which is (a)
incident to a plan merger or consolidation or incident to a plan division, (b)
made between two plans maintained by the same employer (as determined pursuant
to the aggregation rules of Section 414(b), (c) or (m) of the Code) or (c)
otherwise not initiated by the Employee, then the Participant's accrued benefit
or account balance under the transferee plan shall include any amount
54.
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attributable to such transfer which is received or accepted by such plan on or
before the Determination Date, and the transferor plan shall not be required to
include such amount in the Participant's accrued benefit or account balance as
of such Determination Date or any date thereafter. With respect to any rollover
or plan-to- plan transfer not otherwise described in the preceding sentence, the
Participant's accrued benefit or account balance under the transferor plan shall
include any amount distributed or transferred by such plan, and the transferee
plan shall not be required to include, as part of the Participant's accrued
benefit or account balance, any amount attributable to the assets received in
such transfer if accepted after December 31, 1983, but such transferee plan
shall be required to include the assets received in such transfer in the
calculation of the Participant's accrued benefit or account balance if such
assets were accepted prior to January 1, 1984.
(3) No accrued benefit or account balance of a
Participant or Beneficiary shall be taken into account for purposes of
calculating the Top-Heavy Ratio if the Participant has not been an Employee
during the five (5) Plan Year period ending with the Determination Date for a
particular Plan Year, and no accrued benefit or account balance of a Participant
or Beneficiary shall be taken into account for purposes of calculating the
Top-Heavy Ratio if the Participant ceases to be a Key Employee.
(4) When two or more plans constitute a Required
Aggregation Group or a Permissive Aggregation Group, the present value of the
accrued benefits or the value of the account balances (as adjusted for
distributions to Key Employees and all Employees for the relevant five (5) Plan
Year period) shall be determined separately for each plan on the basis of the
determination date in effect for that plan. The plans are then to be aggregated
by adding together the results obtained for each plan as of the determination
date falling within the same calendar year as the determination dates for all
the other aggregated plans.
(5) The calculation of the Top-Heavy Ratio shall be
made in accordance with Section 416 of the Code and the Regulations issued
thereunder.
(i) "Top-Heavy Valuation Date" shall mean the Valuation Date
coincident with or immediately preceding the Determination Date.
18.2 Top-Heavy Status. This Plan shall be considered
"Top-Heavy" with respect to any Plan Year if, as of the Determination Date for
such Plan Year, any of the following conditions exists:
(a) The Top-Heavy Ratio for this Plan exceeds sixty percent
(60%) and this Plan is not a part of any Required Aggregation Group;
(b) This Plan is part of a Required Aggregation Group but not
part of a Permissive Aggregation Group and the Top-Heavy Ratio for the Required
Aggregation Group exceeds sixty percent (60%); or
(c) This Plan is part of a Required Aggregation Group and also
part of one or more Permissive Aggregation Groups and the Top-Heavy Ratio for
each Permissive Aggregation Group exceeds sixty percent (60%).
18.3 General Rules. For any Plan Year for which the Plan is
"Top-Heavy" as set forth in Section 18.2, any other provision of this Plan to
the contrary notwithstanding, this Plan shall be subject to the following
provisions:
(a) The vesting provisions of Section 18.4;
(b) The minimum contribution provisions of Section 18.5; and
(c) The limitation on contribution provisions of Section 18.6.
55.
<PAGE> 62
18.4 Vesting Provisions. Each Participant who has completed an
Hour of Service during any Plan Year in which the Plan is Top-Heavy shall have
his nonforfeitable right to his Company Matching Contributions Account and
Company Profit Sharing Contributions Account be determined as of the last day of
such Plan Year as follows, unless the Plan's vesting provisions otherwise
provide the Participant with a vested balance of a greater amount:
<TABLE>
<CAPTION>
Years of Vesting Service Percentage Vested
------------------------ -----------------
<S> <C>
Less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
</TABLE>
18.5 Minimum Contribution Provisions. Subject to Section 18.7,
each Participant who (a) is a Non-Key Employee (as defined in Section 18.1(c)
below) and (ii) is employed on the last day of the Plan Year, even if such
individual has failed to complete 1,000 Hours of Service during such Plan Year,
shall be entitled to have Employee Deferral Contributions equal to an amount of
the lesser of (a) three percent (3%) of the Participant's Remuneration, or (b)
the percentage of Remuneration represented by the aggregate amount of Employee
Deferral Contributions, Company Matching Contributions, Company Profit Sharing
Contributions and forfeitures under this Plan and all other employer
contributions and forfeitures under any other defined contribution plans to
which one or more Affiliated Companies contributions which are allocated for
such Plan Year to the Accounts of the Key Employees for whom such aggregate
percentage is the highest for such Plan Year, taking into account only the first
One Hundred Fifty Thousand Dollars ($150,000) subject to future cost of living
increases under Section 401(a)(17) of the Code.
If Company Matching Contributions under this Plan are utilized
to satisfy such minimum Top- Heavy Contribution, then the Company Matching
Contributions for such Plan Year must satisfy the non-discrimination standards
of Section 401(a) of the Code without regard to Section 401(m) of the Code.
Accordingly, the contribution percentage test of Section 7.1 shall not be
applicable to such Company Matching Contributions.
The Top-Heavy Contributions shall be paid to the Trustee as
soon as possible after the end of the Plan Year for which such contributions are
made, but in any event within the time limits prescribed under applicable state
and federal tax laws for the current deductibility thereof.
The Committee shall maintain a Top-Heavy Contribution Account
for each Participant which shall be credited with all Top-Heavy Contributions
made on the Participant's behalf pursuant to the provisions of this Section
18.5. Such Account shall be adjusted periodically to reflect the Participant's
share of the earnings, gain and losses of the Fund attributable to the Top-Heavy
Contributions credited to the Account. Each Participant shall vest in his
Top-Heavy Contribution Account in accordance with this Article XVIII.
18.6 Coordination of Plans. In the event that both this Plan
and the Burr-Brown Corporation Employee Retirement Income Plan (or any other
defined benefit plan maintained by the Company) are deemed top-heavy for the
same Plan Year, each Employee covered under both plans who receives the defined
benefit minimum under the defined benefit plan shall not be entitled to any
minimum contribution under this Plan for such Plan Year.
18.7 Limitation of Contributions. In the event that the
Company also maintains a defined benefit plan on behalf of Participants in this
Plan, one of the two following provisions shall apply:
56.
<PAGE> 63
(a) If for the Plan Year this Plan would not continue to be a
Top-Heavy Plan (as determined in accordance with Section 18.2 below) if "ninety
percent (90%)" were substituted for sixty percent (60%)," then Section 18.5
shall apply for such Plan Year as if amended so that the "four percent (4%)"
were substituted for "three percent (3%)" therein.
(b) If for the Plan Year this Plan would continue to be a
Top-Heavy Plan (as determined in accordance with Section 18.2 below) if "ninety
percent (90%)" were substituted for "sixty percent (60%)," then the denominator
of both the defined contribution plan fraction and the defined benefit plan
fraction shall be calculated for the Plan Year by substituting "1.0" for "1.25"
in each place such figure appears under Section 415 of the Code, except with
respect to any individual for whom there are no Company contributions allocated
for any accruals for such individual under the defined benefit plan.
57.
<PAGE> 64
ARTICLE XIX
QUALIFIED DOMESTIC RELATIONS ORDERS
19.1 Definitions. For purposes of this Article XIX, the
following definitions shall apply:
(a) "Alternate Payee" shall mean any spouse, former spouse,
child or other dependent of a Participant for whom a Domestic Relations Order
specifies the right to receive all or a portion of the benefits otherwise
payable under the Plan to such Participant.
(b) "Domestic Relations Order" shall mean any judgment, decree
or order (including approval of a property settlement agreement) which provides
or otherwise conveys, pursuant to applicable state domestic relations laws
(including community property laws), child support, alimony payments or marital
property rights to an Alternate Payee.
(c) "Earliest Retirement Age" shall mean, with respect to any
Participant, the earlier of (1) the date on which the Participant is entitled to
a distribution from the Plan or (2) the later of (i) the date the Participant
will attain age fifty (50) or (ii) the earliest date the Participant would be
entitled to a distribution of benefits under the Plan were he to cease Employee
status.
(d) "Qualified Domestic Relations Order" shall mean any
Domestic Relations Order which satisfies the following three (3) requirements:
(1) such Order establishes (or otherwise recognizes the
existence of) the right of an Alternate Payee to receive all or a portion of the
benefits otherwise payable under the Plan to a Participant;
(2) such Order specifies (i) the name and last known
mailing address of the Participant, (ii) the name and mailing address of each
Alternate Payee covered by such Order, (iii) the amount or percentage of the
Participant's benefits under the Plan payable to each such Alternate Payee or
the manner in which such amount or percentage is to be calculated, and (iv) the
number of payments or the duration of the pay-out period to which the Order
applies; and
(3) such Order does not require the Plan to (i) provide
any type or form of benefit or option not otherwise available under the Plan,
(ii) provide increased benefits under the Plan or (iii) pay benefits to an
Alternate Payee which are required to be paid to another Alternate Payee
pursuant to any Qualified Domestic Relations Orders previously issued to the
Plan.
A Domestic Relations Order shall not be considered to be in
violation of the requirement of clause (i) of subparagraph (3) above merely
because such Order requires the payment of benefits to an Alternate Payee on or
after the date the Participant attains the Earliest Retirement Age, whether or
not such Participant actually ceases Employee status on or before such date.
Accordingly, such payments shall be made as if the Participant ceased Employee
status on the date on which benefits are to enter pay status under the Order.
19.2 Notification. Upon receipt of a Domestic Relations Order,
the Committee shall promptly notify the affected Participant and the Alternate
Payee of the receipt of such Order and the procedures established by the
Committee for determining whether such Order satisfies the requirements for
recognition as a Qualified Domestic Relations Order. Such notice shall also
advise the Alternate Payee of his right to designate a representative to receive
communications from the Committee concerning the disposition of the Domestic
Relations Order. Within a reasonable time after providing such notification, the
Committee shall, pursuant to such procedures, determine whether or not the Order
is a Qualified Domestic Relations Order and shall notify the Participant and
each Alternate Payee (or his representative) of such determination.
58.
<PAGE> 65
19.3 Procedures. The Committee shall establish reasonable
procedures for determining the qualified status of Domestic Relations Orders and
for effecting distributions pursuant to all such Orders which are determined to
be Qualified Domestic Relations Orders. Such procedures shall be reviewed
periodically by the Committee to determine whether they remain reasonable and
efficient and comply with applicable requirements of the Act, the Code and
Treasury regulations issued thereunder.
19.4 Payment.
(a) During the period in which the qualified status of a
Domestic Relations Order is being determined, the Committee shall defer the
payment of all Plan benefits affecting the Participant which are in dispute and
shall segregate, in a separate Account maintained under the Plan, all amounts
which would otherwise be payable to the Alternate Payee during such period were
the Order determined to be a Qualified Domestic Relations Order.
(b) If the Committee determines, within eighteen (18) months
after the date the first payment to the Alternate Payee would otherwise be
required pursuant to the terms of the Order, that such Order is a Qualified
Domestic Relations Order, then the Committee shall authorize the payment of the
entire balance of the segregated Account (including any earnings thereon) to the
person or persons entitled thereto. Such payment shall be made in any form in
which benefits under the Plan may be distributed to Participants or their
Beneficiaries.
(c) If the Committee determines, within such eighteen
(18)-month period under paragraph (b) above, that such Order is not a Qualified
Domestic Relations Order, or if the qualified status of such Order cannot be
determined prior to the expiration of such eighteen (18)-month period, then the
Committee shall authorize the payment of the segregated Account (including any
earnings thereon) to the person or persons who would have been entitled to the
amounts credited to such Account had the Order not been issued. If such person
is the Participant, then the Account shall remain part of the Fund and shall not
be distributed until the Participant becomes entitled to benefits under the Plan
in accordance with the provisions of Article X or XI. Should there be a
subsequent determination that the Order is in fact a Qualified Domestic
Relations Order, then such determination shall be applied on a prospective basis
only.
59.
<PAGE> 66
ARTICLE XX
MISCELLANEOUS PROVISIONS
20.1 Plan Interpretation. It is intended that this Plan meet
all requirements for profit-sharing plan qualification under the Code and that
it comply with the Act, as amended from time to time. If any provision of this
Plan is subject to more than one interpretation, such ambiguity shall be
resolved in favor of that interpretation which is consistent with this Plan
being a qualified Plan within the meaning of Sections 401(a), 401(k) and 501(a)
of the Code and in compliance with the Act, as amended or replaced by an
applicable law of like intent and purpose.
20.2 Consents by Board and Committees. All consents of the
Board and of the Committee herein may be granted or withheld in the sole and
absolute discretion of such parties and, if granted, may be granted on such
terms and conditions as the Board or the Committee, as the case may be, in its
sole and absolute discretion, determines. Neither the Board nor the Committee,
in granting or withholding such consents, or in making such determinations, or
in taking any other actions in connection with the administration of the Plan
and the Fund, shall discriminate in favor of Employees who are "Highly
Compensated Employees".
20.3 Return of Contributions. Assets held in the Fund must be
held for the exclusive benefit of the Participants and their Beneficiaries, and
such assets may never revert to or inure to the benefit of the Company except
under the following conditions:
(a) Each contribution made under this Plan is hereby made
expressly conditional upon the current deductibility of such contribution under
Section 404 of the Code. Accordingly, to the extent the Internal Revenue Service
shall deny a deduction for any such contribution made by the Company, the amount
of the contribution for which no deduction is allowed shall be returned to the
Company within one (1) year after such disallowance.
(b) If, within one (1) year after making a contribution to the
Plan, the Company or the Committee certifies that such contribution was made
under mistake of fact, the Trustee shall upon the direction of the Committee
before the expiration of such year return such contribution to the Company.
(c) Any forfeitures remaining in the Section 4.10 suspense
account upon the complete termination of the Plan shall be returned by the
Trustee to the Company.
If the contributions to be refunded under subparagraph (a) or
(b) are Employee Deferral Contributions, then such contributions, together with
the earnings thereon, shall not be refunded to the Company but shall be paid as
a direct cash bonus to the Participants on whose behalf such Employee Deferral
Contributions were made. Such payment shall be subject to the satisfaction of
all applicable Federal and state tax withholding requirements.
20.4 Plan Expenses. All expenses incident to the operation of
the Plan and the Fund, including, but not limited to, administrative expenses,
the compensation of any Trustee(s), Investment Manger(s), attorneys who are not
employees of the Company, advisors, actuaries, fiduciaries, record keepers and
such other persons providing technical and clerical assistance as may be
required, shall be paid out of or reimbursed by the Fund, except to the extent
that the Company may elect to pay part or all thereof directly or to the extent
prohibited by law. Expenses that are allocable to a particular investment fund
will be charged against that fund. Nonallocable expenses will be charged ratably
to all funds based on the aggregate value of each fund as of the immediately
preceding Valuation Date. All expenses of administration may be charged
proportionately against the amount outstanding to the credit of each
Participant's Account, unless paid by the Company.
60.
<PAGE> 67
20.5 Applicable Law. The Plan shall be construed and its
validity determined according to the laws of the State of Arizona, to the extent
such laws are not preempted by federal law. In case any provision of the Plan
shall be held illegal or invalid for any reason, said illegality or invalidity
shall not affect the remaining parts of the Plan, but the Plan shall be
construed and enforced as if said illegal and invalid provision had never been
inserted herein. All controversies, disputes and claims arising hereunder shall
be submitted to the United States District Court for the District of Arizona
after exhausting the claims procedure provided in Section 14.10, except as
otherwise provided in any agreement entered into with the Trustee.
20.6 Conditional Establishment. The Plan is hereby amended and
restated on the express condition that it will be considered by the Internal
Revenue Service as qualifying under Section 401(a) of the Code. In the event the
Internal Revenue Service determines that the Plan as so amended and restated
does not qualify under the Code, the Plan will be of no effect, and all Company
contributions made by the Company, together with any earnings, will be returned
to the Company within one (1) year after the date of the adverse Internal
Revenue Service determination. All Employee Deferral Contributions made by the
Company, together with the earnings thereon, shall be paid directly to the
Participants on whose behalf such contributions were made, and such payment
shall be subject to the satisfaction of all applicable Federal and State tax
withholding requirements. The Board, however, may (but shall not be required to
do so) make any retroactive amendments to the Plan which the Internal Revenue
Service may require as a condition for its determination that the Plan as
established qualifies under Section 401(a) of the Code.
20.7 Headings. The titles to sections and headings of this
Plan are for convenience of reference, and in case of any conflict the text of
the Plan, rather than such titles and headings, shall control.
61.
<PAGE> 68
ADDENDUM
SPECIAL TERMINATION PROVISIONS
A. Stock Bonus Accounts of Lanpoint Employees. Effective on or
about July 1, 1994, the Company will spin off its Lanpoint Division and the
employees thereof to an Affiliated Company, Intelligent Instrumentation, Inc.
("I3"). An employee of Lanpoint Division prior to the spin off who directly
transfers to I3 without any intervening period of employment ("Lanpoint
Employee") shall have the following options with regard to his Stock Bonus
Account:
(1) Option 1: a Lanpoint Employee can elect to retain his
Stock Bonus Account in the Plan;
(2) Option 2: a Lanpoint Employee can elect to take an
in-service distribution of all of the Company Stock
allocated to his Stock Bonus Account; or
(3) Option 3: a Lanpoint Employee can elect to have his
Stock Bonus Account liquidated and have the cash
transferred to the Section 401(k) plan of I3 and
thereby waive any right to receive Company Stock upon
subsequent termination of employment with an
Affiliated Company.
B. Vesting of Accounts of Lanpoint Employees. The Accounts of
an employee of I3 who was a Lanpoint Employee (as defined in paragraph A) shall
be fully vested in such Accounts as of the date of transfer of such Lanpoint
Employee.
C. Transfer of Accounts of Lanpoint Employees. The Accounts
(other than the Stock Bonus Account) of a Lanpoint Employee (as defined in
paragraph A) shall be transferred to the Section 401(k) plan of I3 on or about
September 30, 1994. The Stock Bonus Account shall be transferred on or before
March 31, 1995.
62.
<PAGE> 69
IN WITNESS WHEREOF, the Plan has been adopted on the 23rd day
of December, 1994.
BURR-BROWN CORPORATION
By /s/ John L. Carter
---------------------------------
Its Executive Vice President & CFO
---------------------------------
63.
<PAGE> 70
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
PLAN AMENDMENT NO. 1
The BURR-BROWN CORPORATION FUTURE INVESTMENT TRUST (the
"Plan"), as originally effective January 1, 1996 and as last restated in its
entirety effective January 1, 1987, is hereby amended, effective January 1,
1995, as follows:
(a) Section 4.4 is hereby restated in its entirety to read as
follows:
4.4 Company Matching Contributions. The Company shall make
Matching Contributions to the Trustee on a periodic basis, and
those contributions shall be allocated to the Company Matching
Contributions Account of each Participant in accordance with
the percentage match in effect for the Employee Deferral
Contributions made by the Participant for the period to which
those Matching Contributions relate. The amount of the
Matching Contributions made by the Company for any Plan Year
on behalf of each Participant shall be equal to twenty-five
percent (25%) of the Employee Deferral Contributions actually
made hereunder on behalf of that Participant for such Plan
Year. Company Matching Contributions may be made on a monthly
basis, but in no event shall those contributions be made later
than the last day prescribed by law for filing the Company's
federal income tax return for such Plan Year, including
extension thereof.
(b) Except as modified by this Plan Amendment, all the terms
and provision of the Plan (as restated effective January 1,
1987) shall continue in full force and effect.
IN WITNESS WHEREOF, Burr-Brown Corporation has caused this
instrument to be executed on its behalf by its duly-authorized officer as of
this 10th day of April, 1995.
BURR-BROWN CORPORATION
By /s/ S.P. Madavi
-----------------------------
Syrus P. Madavi
President and Chief Executive
Officer
<PAGE> 71
BURR-BROWN CORPORATION
FUTURE INVESTMENT TRUST
PLAN AMENDMENT NO. 2
The Burr-Brown Corporation Future Investment Trust (the
"Plan"), as originally adopted effective January 1, 1966 and as restated in its
entirety effective January 1, 1987 and further modified by Plan Amendment No.1,
is hereby further amended effective July 1, 1995, as follows:
1. Section 1.1 is hereby amended in its entirety to read as
follows:
"Account: shall mean a Participant's Employee
Deferral Contributions Account, Company Matching Contributions Account,
Company Profit Sharing Contributions Account, the 1986 Profit Sharing
Account, the Stock Bonus Account, the Stock Bonus Rollover Account
maintained under Section 6.3 and the Rollover Account as described in
Section 8.3. Where more than one Account of any type has been
established for a Participant or Beneficiary, reference to "Account"
shall include each Account of that type, except where the context
clearly indicates to the contrary.
2. Section 6.1(b) is hereby amended in its entirety to read as
follows:
(b) Investment Directives. Each Stock Bonus Account
shall remain invested in Company Stock, except to the extent the
balance credited to that Account is transferred to a Stock Bonus
Rollover Account and reinvested in one (1) or more other investment
funds in accordance with Section 6.3.
3. There is hereby added to Article VI new Section 6.3 to read
as follows:
6.3 Reinvestment of Stock Bonus Account.
(a) Transfer to Rollover Account. Each
Participant may elect to transfer his or her Stock Bonus Account from
the separate trust in which such Account is presently maintained under
the Plan to a special Stock Bonus Rollover Account maintained under the
same trust under which his or her Employee Deferral Contributions
Account is maintained. The Participant shall have four (4) separate
opportunities to direct such transfer. Each Participant electing to
effect such transfer must complete the requisite notification form
provided by the Plan Administrator and file the completed form with the
Plan Administrator by the applicable due date indicated below for each
transfer
<PAGE> 72
opportunity. The actual transfer to the Stock Bonus Rollover Account
will be effected on the date indicated below for the applicable due
date.
Due Date Effective Date
of of
Transfer Notice Transfer
July 24, 1995 August 4, 1995
August 28, 1995 September 8, 1995
January 8, 1996 January 19, 1996
April 15, 1996 April 26, 1996
(b) Limitation on Transfer Opportunity. The
maximum number of shares of Company Stock which may be moved to the
Stock Bonus Rollover Account at any one transfer opportunity under
Section 6.3(a) shall be limited to the GREATER of: (i) 150 shares of
Company Stock or (ii) twenty five percent (250) of the total number of
shares of Company Stock credited to his Stock Bonus Account as of June
30, 1995.
(c) Reinvestment of Stock Bonus Rollover
Account. Each Participant may elect to liquidate in whole or in part
the Company Stock held in his Stock Bonus Rollover Account and direct
the reinvestment of the net proceeds into one or more of the other
investment funds available under Article VII. To effect such
reinvestment, the Participant must complete the requisite form provided
by the Plan Administrator and file the directive with the Plan
Administrator during the applicable filing period. The initial period
available for filing such reinvestment directives shall commence on
July 17, 1995 and continue through July 24, 1995, with the actual
liquidation and reinvestment to be effected on or about August 4, 1995.
Subsequent filing periods will run concurrently with the periodic
election periods in effect under Article VII for changing investment
elections. All Participant reinvestment directives under this Section
6.3 shall be effected through the sale in the open market of one or
more shares of Company Stock held in the Participant's Stock Bonus
Rollover Account and the reinvestment of the net proceeds among one or
more of the investment alternatives available under Article VII in
accordance with the Participant's directives. Any Stock Bonus Rollover
Account reinvested in one or more investment funds under Article VII
shall nevertheless be distributable, following the Participant's
Severance Date, in Company Stock in accordance with the provisions of
Section 6.1(c) and Section 11.5, to the extent the Participant requests
the distribution of that Account in shares of Company Stock.
4. There is hereby added to Section 8.1 new clause (g) as
follows:
2.
<PAGE> 73
(g) A Stock Bonus Rollover Account shall be established for
each Participant who transfers all or part of his Stock Bonus Account
to such Rollover Account in accordance with Section 6.3.
5. Section 9.1 is hereby amended in its entirety to read as
follows:
9.1 Vesting in Employee Deferral Contributions Account, the
1986 Profit Sharing Account, the Stock Bonus Account, the Stock Bonus
Rollover Account and the Rollover Account. An Employee's interest in
his Employee Deferral Contributions Account, 1986 Profit Sharing
Account, Stock Bonus Account, Stock Bonus Rollover Account and Rollover
Account herein shall be fully vested at all times.
6. Section 11.2 is hereby amended in its entirety to read as
follows:
11.2 Payment Upon Termination of Employment. Upon a
Participant's termination of Employee status, the Participant's
nonforfeitable interest in his or her Accounts, determined in
accordance with Article IX, shall be distributed in accordance with the
provisions of this Article XI. If the Participant should die prior to
full payment of his or her nonforfeitable interest under the Plan,
payment shall be made to his or her Beneficiary in accordance with
Section 11.1. To the extent the nonforfeitable balance of one or more
of the Participant's Accounts (including his or her Stock Bonus Account
or Stock Bonus Rollover Account) is invested in shares of Company
Stock, the Participant (or his or her Beneficiary) may elect to receive
the distribution of that balance in such shares or in the cash
equivalent of those shares.
7. Section 11.6 is hereby amended in its entirety to read as
follows:
11.6 Participant Payment Election Regarding Stock
Bonus Rollover Account. A Participant may elect to receive the
distribution of the nonforfeitable balance of any Stock Bonus or Stock
Bonus Rollover Account maintained for him or her under the Plan in
shares of Company Stock, whether or not that particular Account is at
the time actually invested in Company Stock. However, no fractional
share of Company Stock shall be distributed, and the value of that
fractional share shall accordingly be paid in cash. All distributions
from the Stock Bonus Accounts and the Stock Bonus Rollover Accounts
shall be made in accordance with the provisions of Article VI and
Section 11.5.
7. All references to Stock Bonus Accounts under Article VI and
Section 11.5 shall be deemed to include a reference to any Stock Bonus Rollover
Account maintained for the Participant pursuant to the provisions of Section
6.3, to the extent that particular Account is at the time credited with shares
of Company Stock.
3.
<PAGE> 74
8. Except as modified by this Amendment No. 2, all the terms
and provisions of the Plan (as modified by Plan Amendment No. 1) shall continue
in full force and effect.
IN WITNESS WHEREOF, Burr-Brown Corporation has caused this
Plan Amendment to be executed on its behalf by its duly authorized officer as of
the this 21st day of July, 1995.
BURR-BROWN CORPORATION
By /s/ S.P. Madavi
------------------------
Title: President & CEO
------------------------
4.
<PAGE> 1
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75242
Employer Identification Number:
Date: APR 13, 1988 86-0445468
File Folder Number:
860000569
BURR BROWN CORPORATION Person to Contact:
POST OFFICE BOX 11400 EP TECHNICAL ASSISTOR-18
TUCSON, AZ 85734 Contact Telephone Number:
(214) 767-1204
Plan Name:
BURR BROWN CORPORATION FUTURE
INVESTMENT TRUST
Plan Number: 001
Dear Applicant
Based on the information supplied, we have made a favorable
determination on your application identified above. Please keep this letter in
your permanent records.
Continued qualification of the plan will depend on its effect in
operation under its present form. (See section 1.401-1(b)(3) of the Income Tax
Regulations). The status of the plan in operation will be reviewed periodically.
The enclosed document describes the impact of Notice 86-13 and some
events that could occur after you receive this letter that would automatically
nullify it without specific notice from us. The document also explains how
operation of the plan may affect a favorable determination letter, and contains
information about filing requirements.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other Federal
or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your or your representative's letter dated 4-4-88. The
proposed amendments should be adopted on or before the date prescribed by the
regulations under Code section 401(b).
The information on the enclosed addendum is an integral part of this
determination. Please be sure to read and keep it with this letter.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
Your plan does not provide for contributions on behalf of participants
not employed on the allocation date. The provision may, in operation,
discriminate in favor of employees who are stockholders, officers or highly
compensated. If this discrimination occurs, your plan will not remain
qualified. (See Rev. Rul. 76-250, 1976-2 C.B. 124.)
This determination letter is applicable for the amendment(s) adopted
on 1-29-87.
<PAGE> 2
-2-
BURR BROWN CORPORATION
The cash or deferred arrangement meets the requirements of section
401(k) as interpreted by the proposed regulations.
If you have any questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
Glenn Cagle
District Director
Enclosures:
Publication 794
OPWBP 515
Addendum
<PAGE> 3
-3-
BURR BROWN CORPORATION
This letter also applies to the members of the controlled group who have
adopted the plan.
