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As filed with the Securities and Exchange Commission on October 24, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CINCINNATI BELL INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1056105
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 397-9900
(Address, including zip code, of registrant's principal executive office)
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CINCINNATI BELL INC. SAVINGS AND SECURITY PLAN
(Full title of the plan)
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William H. Zimmer III
Secretary and Treasurer
201 East Fourth Street
Cincinnati, Ohio 45202
(513) 397-9900
(Name, address including zip code, and telephone number including
area code, of agent for service)
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Please send copies of all communications to:
Neil Ganulin, Esq.
Frost & Jacobs LLP
2500 PNC Center
201 East Fifth Street
Cincinnati, Ohio 45202
(513) 651-6800
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum Proposed
Title of Additional Offering Maximum Amount of
Securities Amount Price Aggregate Additional
to be to be per Offering Registration
Registered Registered Share(1) Price Fee
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Common
Shares,
Par value
$1.00
per share(2) 800,000 shares $28.652 $22,900,000 $6,939.39
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(1) Estimated in accordance with Rule 457(c) pursuant to Rule 457(h)(i), based
upon the average of the high and low prices per share on the New York Stock
Exchange on October 20, 1997, solely for the purpose of calculation of
the registration fee.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by Cincinnati Bell Inc. (the
"Company") with the Commission (File No. 1-8519) and are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the year ended December
31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the period ended March
31, 1997.
3. The Company's Quarterly Report on Form 10-Q for the period ended June
30, 1997.
4. The Company's Annual Report on Form 11-K for the Cincinnati Bell Inc.
Savings and Security Plan for the year ended December 31, 1996.
All documents subsequently filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Subsequently
Filed Documents"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part of this Registration
Statement from the date of filing such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference in this Registration Statement 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 modifies
or supersedes such statement. Any such modified or superseded statement shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
The Company will provide without charge, upon written or oral request, to
each person to whom a copy of this Registration Statement is delivered, a copy
of any or all of the documents incorporated by reference herein, not including
exhibits to such documents. Requests for such copies should be directed to the
Secretary, Cincinnati Bell Inc., 201 East Fourth Street, Cincinnati, Ohio 45202,
telephone number (513) 397-7700.
ITEM 4. DESCRIPTION OF CAPITAL STOCK
The following is a summary description of the capital stock of the Company
and is qualified by reference to the Company's Amended Articles of Incorporation
(the "Articles") as filed with the Securities and Exchange Commission (see
Exhibit 3.1 to this Registration Statement).
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The authorized capital stock of the Company consists of 480,000,000 common
shares, par value $1.00 per share (the "Common Shares"), and 5,000,000 preferred
shares, without par value (the "Preferred Shares"), of which 4,000,000 are
voting preferred shares (the "Voting Preferred Shares"). At September 30, 1997,
135,936,581 Common Shares were outstanding. There are currently no Preferred
Shares outstanding.
All Common Shares of the Company are entitled to participate equally in
such dividends as may be declared by the Board of Directors of the Company and
upon liquidation of the Company, subject to the prior rights of any Preferred
Shares. All Common Shares are fully paid and nonassessable.
Each shareholder has one vote for each Common Share registered in the
shareholder's name. The Board of Directors is divided into three classes as
nearly equal in size as the total number of directors constituting the Board
permits. The number of directors may be fixed or changed from time to time by
the shareholders or the directors.
The Board of Directors is authorized to issue the Preferred Shares from
time to time in series and to fix the dividend rate and dividend dates,
liquidation price, redemption rights and redemption prices, sinking fund
requirements, conversion rights, restrictions, if any, on the creation of
indebtedness and on the issuance of such Preferred Shares, and certain other
rights, preferences and limitations. Each series of Preferred Shares would
rank, with respect to dividends and redemption and liquidation rights, senior to
the Common Shares. It is not possible to state the actual effect of the
authorization of any series of Preferred Shares upon the rights of holders of
the Common Shares until the Board of Directors determines the rights of the
holders of one or more series of Preferred Shares. However, such effects could
include (a) restrictions on dividends on the Common Shares, (b) dilution of the
voting power of the Common Shares to the extent that the Voting Preferred Shares
have voting rights or (c) inability of the Common Shares to share in the
Company's assets upon liquidation until satisfaction of any liquidation
preference granted to the Preferred Shares.
No holders of shares of any class of the Company's capital stock have
pre-emptive rights nor the right to exercise cumulative voting in the election
of directors.
The transfer agent and registrar of the Common Shares is The Fifth Third
Bank, Corporate Trust Services, 38 Fountain Square Plaza, Cincinnati, Ohio
45236.
CHANGE IN CONTROL
The following provisions of the Company's Articles and Ohio law might have
the effect of delaying, deferring or preventing a change in control of the
Company and would operate only with respect to an extraordinary corporate
transaction, such as a merger, reorganization, tender offer, sale or transfer of
assets or liquidation involving the Company and certain persons described below.
Ohio law provides that the approval of two-thirds of the voting power of a
corporation is required to effect mergers and similar transactions, to adopt
amendments to the articles of
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incorporation of a corporation and to take certain other significant actions.
Although under Ohio law the articles of incorporation of a corporation may
permit such actions to be taken by a vote that is less than two-thirds (but not
less than a majority), the Company's Articles do not contain such a provision.
The two-thirds voting requirement tends to make approval of such matters,
including further amendments to the Articles, relatively difficult and a vote of
the holders of in excess of one-third of the outstanding Common Shares of the
Company would be sufficient to prevent implementation of any of the corporate
actions mentioned above. In addition, Article Fifth classifies the Board of
Directors into three classes of directors with staggered terms of office and the
Company's Amended Regulations provide certain limitations on the removal from
and filling of vacancies in the office of director.
Article Sixth of the Articles requires that certain minimum price
requirements and procedural safeguards be observed by a person or entity after
he or it becomes the holder of 10% or more of the voting shares of the Company
if such person or entity seeks to effect mergers or certain other business
combinations ("Business Combinations") that could fundamentally change or
eliminate the interests of the remaining shareholders. If such requirements and
procedures are not complied with, or if the proposed Business Combination is not
approved by at least a majority of the members of the Board of Directors who are
unaffiliated with the new controlling person or entity (taking into account
certain special quorum requirements), the proposed Business Combination must be
approved by the holders of 80% of the outstanding Common Shares and outstanding
Voting Preferred Shares of the Company (collectively, "Voting Shares"), voting
together as a class, notwithstanding any other class vote required by law or by
the Articles. In the event the price criteria and procedural requirements are
met or the requisite approval by such unaffiliated directors (taking into
account certain special quorum requirements) is given with respect to a
particular Business Combination, the normal voting requirements of Ohio law
would apply.
In addition, Article Sixth of the Articles provides that the affirmative
vote of the holders of 80% of the Voting Shares, voting as a single class, shall
be required to amend or repeal, or adopt any provisions inconsistent with,
Article Sixth. An 80% vote is not required to amend or repeal, or adopt a
provision inconsistent with, Article Sixth if the Board of Directors has
recommended such amendment or other change and if, as of the record date for the
determination of shareholders entitled to vote thereon, no person is known by
the Board of Directors to be the beneficial owner of 10% or more of the Voting
Shares, in which event the affirmative vote of the holders of two-thirds of the
Voting Shares, voting as a single class, shall be required to amend or repeal,
or adopt a provision inconsistent with, Article Sixth.
Ohio, the state of the Company's incorporation, has enacted Ohio Revised
Code Section 1701.831, a "control share acquisition" statute, and Chapter 1704,
a "merger moratorium" statute. The control share acquisition statute basically
provides that any person acquiring shares of an "issuing public corporation"
(which definition the Company meets) in any of the following three ownership
ranges must seek and obtain shareholder approval of the acquisition transaction
that first puts such ownership within each such range: (i) more than 20% but
less than 33 1/3%; (ii) 33 1/3% but not more than 50%; and (iii) more than 50%.
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The merger moratorium statute provides that, unless a corporation's
articles of incorporation or regulations otherwise provide, an "issuing public
corporation" (which definition the Company meets) may not engage in a "Chapter
1704 transaction" for three years following the date on which a person acquires
more than 10% of the voting power in the election of directors of the issuing
corporation, unless the "Chapter 1704 transaction" is approved by the
corporation's board of directors prior to such voting power acquisition. A
person who acquires such voting power is an "interested shareholder", and
"Chapter 1704 transactions" involve a broad range of transactions, including
mergers, consolidations, combination, liquidations, recapitalization and other
transactions between an "issuing public corporation" and an "interested
shareholder" if such transactions involve 5% of the assets or shares of the
"issuing public corporation" or 10% of its earning power. After the initial
three year moratorium, Chapter 1704 prohibits such transactions absent approval
by disinterested shareholders or the transaction meeting certain statutorily
defined fair price provisions.
Ohio has also enacted a "greenmailer disgorgement" statute which provides
that a person who announces a control bid must disgorge profits realized by that
person upon the sale of any equity securities within 18 months of the
announcement.
In addition, Ohio has a "control bid" statute that provides for the
dissemination of certain information and the possibility of a hearing concerning
compliance with law in connection with a proposed acquisition of more than 10%
of any class of equity securities of a corporation, such as the Company, that
has significant contacts with Ohio.
On March 3, 1997, the Board of Directors of the Company declared a dividend
distribution of one right ("Right") on each of the Company's outstanding Common
Shares to holders of record of the Common Shares at the close of business on May
2, 1997 (the "Record Date"). One Right also will be distributed for each Common
Share issued after May 2, 1997, until the Distribution Date (which is described
in the next paragraph). Each Right entitles the registered holder to purchase
from the Company a unit ("Unit") consisting of one one-hundredth of a Series A
Preferred Share of the Company (the "Preferred Shares") at a purchase price of
$125.00 per Unit, subject to adjustment (the "Purchase Price"). The terms of
the Rights are more fully described in a Form 8-A for Registration of Certain
Classes of Securities Pursuant to Section 12(b) or (g) of the Securities
Exchange Act of 1934, which has previously been filed with the Securities and
Exchange Commission and is incorporated by reference herein. See Exhibit 4.1 to
this Registration Statement.
Initially, the Rights will be attached to all Common Share certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Shares and the
"Distribution Date" will occur upon the earlier of (a) 10 business days
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 15% or more of the outstanding Common Shares
or (b) 10 business days following the commencement of a tender offer or exchange
offer that would if consummated result in a person or group beneficially owning
15% or more of the outstanding Common Shares.
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The Rights are not exercisable until the Distribution Date and will expire
at the close of business on May 2, 2007, unless earlier redeemed by the Company
as described below.
After the Distribution Date, the separate Rights Certificates alone will
represent the Rights. Except for certain issuances in connection with
outstanding options and convertible securities and as otherwise determined by
the Board of Directors, only Common Shares issued prior to the Distribution Date
will be issued with Rights.
If a person becomes the beneficial owner of 15% or more of the Common
Shares ("Flip-In Event"), each holder of a Right will have the right to receive,
upon exercise, Common Shares having a value equal to two times the Purchase
Price of the Right. Moreover, the Rights will not be exercisable until the
Rights are no longer redeemable as described below. The Acquiring Person would
not be permitted to exercise any Rights and any Rights held by such person (or
certain transferees of such person) will be null and void and non-transferable.
If, following the Distribution Date, the Company is acquired in certain
specified mergers or other business combinations (I.E., the Company does not
survive or its Common Shares are changed or exchanged), or 50% or more of its
assets or earning power (on a consolidated basis) is sold or transferred in one
transaction or a series of related transactions ("Flip-Over Events"), each Right
becomes a Right to acquire common stock of the other party to the transaction
(or its ultimate parent in certain circumstances) having a value equal to two
times the Purchase Price. As an enforcement mechanism, the Rights Agreement
prohibits the Company from entering into any such transaction unless the other
party agrees to comply with the provisions of the Rights.
In general, the Company may redeem the Rights in whole, but not in part, at
a price of $0.01 per Right, at any time prior to a Flip-In Event. Immediately
upon the action of the Board of Directors ordering redemption of the Rights, the
Rights will terminate and the only right of the holders of Rights will be to
receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The issuance of the Rights may have certain anti-takeover effects and
possible disadvantages. The Rights will cause substantial dilution to a person
or group who attempts to acquire the Company or a significant Common Share
ownership interest without conditioning the offer on the Rights being redeemed
or a substantial number of Rights being acquired. Accordingly, an Acquiring
Person might decide not to acquire the Company or such an interest, although
individual shareholders may view such an acquisition favorably. In addition, to
the extent that issuance of the Rights discourages takeovers that would result
in a change in the Company's management or Board of Directors, such a change
will be less likely to occur. The Board of Directors believes, however, that
the advantages of discouraging potentially discriminatory and abusive takeover
practices outweigh any potential disadvantages of the Rights. The Rights should
not interfere with any merger or other Business Combination approved by the
Board of Directors. The Rights are designed to protect shareholders against
unsolicited attempts to acquire control of the Company, whether through
accumulation of
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Common Shares in the open market or partial or two-tier tender offers, that do
not offer a fair price to all shareholders.
ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
There are no provisions in the Company's Amended Articles of Incorporation
by which an officer or director may be indemnified against any liability which
he or she may incur in his or her capacity as such. However, the Company has
indemnification provisions in its Amended Regulations which provide the Company
will, to the full extent permitted by Ohio law, indemnify all persons whom it
may indemnify thereto.
Reference is made to Section 1701.13(E) of the Ohio Revised Code which
provides for indemnification of directors and officers in certain circumstances.
The foregoing references are necessarily subject to the complete text of
the Amended Regulations and the statute referred to above and are qualified in
their entirety by reference thereto.
The Company provides liability insurance for its directors and officers for
certain losses arising from certain claims and charges, including claims and
charges under the Securities Act of 1933, which may be made against such persons
while acting in their capacities as directors and officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits filed as part of this Registration Statement are described in
the Exhibit Index included in this filing.
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ITEM 9. UNDERTAKINGS.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales of the
securities registered hereunder are being made, a post-effective
amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in the registration statement;
provided; however, that this undertaking will only apply to the
extent that the information in clauses (i) - (ii) hereof is not
contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration
statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered
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therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities 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 is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issues.
(4) The undersigned registrant hereby undertakes to submit or has
submitted the plan and any amendment thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the plan.
INCORPORATION BY REFERENCE OF CONTENTS OF EARLIER REGISTRATION STATEMENT
Pursuant to Instruction E to Form S-8, the registrant hereby incorporates
by reference, to the extent not superseded or modified by the contents of this
Registration Statement, the contents of the registrant's Registration Statement
on Form S-8 for the Cincinnati Bell Inc. Savings and Security Plan (File No.
33-1462) filed on August 15, 1990.
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cincinnati and State of Ohio, on the 24th day of
October, 1997.
CINCINNATI BELL INC.
By: /s/ Brian C. Henry
------------------------------
Brian C. Henry
Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the date indicated.
Principal Executive Officer: Principal Accounting and
Financial Officer:
/s/ John T. LaMacchia /s/ Brian C. Henry
- ---------------------------- ---------------------------
John T. LaMacchia Brian C. Henry
President and Chief Executive Executive Vice President and
Officer Chief Financial Officer
October 24, 1997 October 24, 1997
Directors:
John F. Barrett
Judith G. Boynton
Phillip R. Cox
William A Friedlander By: /s/ Brian C. Henry
Roger L. Howe ------------------------------
Robert P. Hummel, M.D. Brian C. Henry as attorney in fact
James D. Kiggen for each Director and on his own
John T. LaMacchia behalf as Principal Accounting and
Charles S. Mechem, Jr. Financial Officer
Mary D. Nelson
James F. Orr October 24, 1997
Brian H. Rowe
David B. Sharrock
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees of
the plan (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cincinnati, State of
Ohio, on October 23, 1997.
CINCINNATI BELL INC. SAVINGS AND
SECURITY PLAN
By: CINCINNATI BELL INC.
By: /s/ Kim M. Schwering
-------------------------------
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EXHIBIT INDEX
Exhibit Description Page
3.1 The Company's Amended Articles of
Incorporation are hereby incorporated by
reference to Exhibit 3.1 to the Registration
Statement on Form S-8 for the Cincinnati
Bell Inc. 1997 Long Term Incentive Plan
filed on June 3, 1997 (File No. 333-28381)
3.2 The Company's Amended Regulations are hereby
incorporated by reference to Exhibit 3.2 to
the Registration Statement on Form S-8 for
the Cincinnati Bell Inc. 1997 Long Term
Incentive Plan filed on June 3, 1997 (File
No. 333-28381)
4.1 The Company's Rights Agreement is hereby
incorporated by reference to Exhibit 4.1 to
the Registration Statement on Form 8A filed
on May 1, 1997 (File No. 04-08519)
5 Opinion of Frost & Jacobs LLP
23.1 Consent of Frost & Jacobs LLP (contained in
Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Powers of Attorney
99 Cincinnati Bell Inc. Savings and Security Plan
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Exhibit 5
[Letterhead]
October 21, 1997
Cincinnati Bell Inc.
201 East Fourth Street
Cincinnati, Ohio 45202
Re: Cincinnati Bell Inc. Form S-8 Registration Statement
Cincinnati Bell Inc. Savings and Security Plan
----------------------------------------------------
Gentlemen:
We are counsel for Cincinnati Bell Inc., an Ohio corporation (the
"Company"), which is named as the registrant in the Registration Statement on
Form S-8 which is being filed on or about October 22, 1997 with the Securities
and Exchange Commission (the "Commission") for the purpose of registering under
the Securities Act of 1933, as amended (the "Act"), 800,000 additional common
shares, par value $1.00 per share (the "Common Shares"), of the Company offered
pursuant to the Cincinnati Bell Inc. Savings and Security Plan (the "Plan").
As counsel for the Company, we have participated in the preparation of the
Registration Statement. In addition, we are generally familiar with the records
and proceedings of the Company. Furthermore, we have examined and relied on the
originals or copies, certified or otherwise identified to our satisfaction, of
corporate records or documents of the Company and such representations of
officers of the Company as we have deemed appropriate.
With respect to the additional Common Shares registered pursuant to such
Registration Statement as filed and as it may be amended, it is our opinion that
the additional Common Shares when issued and paid for pursuant to the Plan will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Commission.
Very truly yours,
/s/ Frost & Jacobs LLP
<PAGE>
EXHIBIT 23.2
TO FORM S-8
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-8 of our
report dated February 14, 1997 on our audits of the consolidated financial
statements of Cincinnati Bell Inc. and subsidiaries.
/s/ Coopers & Lybrand L.L.P.
Cincinnati, Ohio
October 20, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ John F. Barrett
___________________________
John F. Barrett
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Judith G. Boynton
___________________________
Judith G. Boynton
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Phillip R. Cox
___________________________
Phillip R. Cox
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ William A. Friedlander
___________________________
William A. Friedlander
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Roger L. Howe
___________________________
Roger L. Howe
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Robert P. Hummel
___________________________
Robert P. Hummel
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ James D. Kiggen
___________________________
James D. Kiggen
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ John T. LaMacchia
___________________________
John T. LaMacchia
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Charles S. Mechem, Jr.
___________________________
Charles S. Mechem, Jr.
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Mary D. Nelson
___________________________
Mary D. Nelson
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ James F. Orr
___________________________
James F. Orr
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ Brian H. Rowe
___________________________
Brian H. Rowe
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, CINCINNATI BELL INC., an Ohio corporation (hereinafter referred
to as the "Company"), proposes shortly to file with the Securities and
Exchange Commission under the provisions of the Securities Act of 1933, as
amended, and the Rules and Regulations thereunder, a registration statement
for the Cincinnati Bell Inc. Savings and Security Plan on Form S-8; and
WHEREAS, the undersigned is a director of the Company;
NOW, THEREFORE, the undersigned hereby constitutes and appoints John T.
LaMacchia, Brian C. Henry, William H. Zimmer III and William D. Baskett III,
and each of them singly, his attorneys for him and in his name, place and
stead, and in his office and capacity in the Company, to execute and file
such registration statement on Form S-8, and thereafter to execute and file
any amendments or supplements thereto, hereby giving and granting to said
attorneys full power and authority to do and perform all and every act and
thing whatsoever requisite and necessary to be done in and about the premises
as fully to all intents and purposes as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this 15th
day of September, 1997.
/s/ David B. Sharrock
___________________________
David B. Sharrock
Director
STATE OF OHIO )
)SS:
COUNTY OF HAMILTON )
On the 15th day of September, 1997, personally appeared before me
John F. Barrett, to me known and known to me to be the person described in
and who executed the foregoing instrument, and he duly acknowledged to me
that he executed and delivered the same for the purposes therein expressed.
Witness my hand and official seal this 15th day of September, 1997.
/s/ MARY JANET EDWARDS
___________________________
Notary Public
MARY JANET EDWARDS
Notary Public, State of Ohio
My Commission Expires Feb. 11, 2002
<PAGE>
EXHIBIT 99
CINCINNATI BELL INC.
SAVINGS AND SECURITY PLAN
(As amended and restated effective January 1, 1997)
<PAGE>
TABLE OF CONTENTS
CINCINNATI BELL INC.
SAVINGS AND SECURITY PLAN
Page
SECTION 1 - NAME AND PURPOSE OF PLAN . . . . . . . . . . . . . . . . . . . 1
1.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2 - GENERAL DEFINITIONS; GENDER AND NUMBER . . . . . . . . . . . . 1
2.1 General Definitions. . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Gender and Number. . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3 - SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 Eligibility Service. . . . . . . . . . . . . . . . . . . . . . . 4
3.2 Vesting Service. . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3 Break in Service . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4 Hours of Service . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Service With Other Companies . . . . . . . . . . . . . . . . . . 7
SECTION 4 - PARTICIPATION. . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Participation. . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Related Plan Participants. . . . . . . . . . . . . . . . . . . . 7
SECTION 5 - ALLOTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.1 Pre-Tax and Post-Tax Allotments. . . . . . . . . . . . . . . . . 8
5.2 Basic and Supplementary Allotments . . . . . . . . . . . . . . . 8
5.3 Change in Allotments . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6 - ROLLOVER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . 9
SECTION 7 - PARTICIPATING COMPANY CONTRIBUTIONS. . . . . . . . . . . . . . 10
SECTION 8 - LIMITATIONS ON ALLOTMENTS AND
PARTICIPATING COMPANY CONTRIBUTIONS . . . . . . . . . . . . . . . . . 10
8.1 Section 401(k) Limitations . . . . . . . . . . . . . . . . . . . 10
8.2 Section 401(m) Limitations . . . . . . . . . . . . . . . . . . . 11
8.3 Section 401(m) Alternate Limitations . . . . . . . . . . . . . . 12
8.4 Maximum Annual Additions . . . . . . . . . . . . . . . . . . . . 13
8.5 Highly Compensated Employee. . . . . . . . . . . . . . . . . . . 14
i
<PAGE>
TABLE OF CONTENTS
(continued)
Page
8.6 Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.7 Section 402(g) Limitation. . . . . . . . . . . . . . . . . . . . 15
8.8 Military Service . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 9- INVESTMENT DIRECTIONS . . . . . . . . . . . . . . . . . . . . . 16
SECTION 10 - MAINTENANCE AND VALUATION OF ACCOUNTS . . . . . . . . . . . . 16
10.1 Maintenance of Separate Accounts . . . . . . . . . . . . . . . . 16
10.2 Valuations and Adjustments . . . . . . . . . . . . . . . . . . . 16
SECTION 11 - DISTRIBUTION AND WITHDRAWAL . . . . . . . . . . . . . . . . . 17
11.1 Method of Payment. . . . . . . . . . . . . . . . . . . . . . . . 17
11.2 Hardship Withdrawals While Still an Employee . . . . . . . . . . 17
11.3 Other Withdrawals Prior to Termination of Employment . . . . . . 18
11.4 Distribution on Termination of Employment. . . . . . . . . . . . 19
11.5 Direct Rollovers . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 11A - LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 11B - ALTERNATE PAYEES . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 12 - APPLICATION OF FORFEITED PARTICIPATING COMPANY
CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 13 - ADMINISTRATION BY TRUSTEE . . . . . . . . . . . . . . . . . . 25
13.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
13.2 Purchase of CBI Common Shares. . . . . . . . . . . . . . . . . . 25
13.3 Voting of CBI Shares . . . . . . . . . . . . . . . . . . . . . . 26
13.4 Tender Offer . . . . . . . . . . . . . . . . . . . . . . . . . . 26
13.5 Audit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 14 - ELECTION TO SUSPEND ALLOTMENTS. . . . . . . . . . . . . . . . 27
SECTION 15 - LEAVE OF ABSENCE, LAYOFF AND ABSENCE ON DISABILITY. . . . . . 27
ii
<PAGE>
TABLE OF CONTENTS
(continued)
Page
SECTION 16 - CEASING TO BE ELIGIBLE; INSUFFICIENT
COMPENSATION; TRANSFERS. . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 17 - EFFECT OF SUSPENSION OF ALLOTMENTS. . . . . . . . . . . . . . 29
SECTION 18 - DESIGNATION OF BENEFICIARIES. . . . . . . . . . . . . . . . . 29
SECTION 19 - BENEFITS NOT ASSIGNABLE . . . . . . . . . . . . . . . . . . . 30
SECTION 20 - EXPENSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 21 - MODIFICATION OR MERGER OF PLAN. . . . . . . . . . . . . . . . 30
SECTION 22 - TERMINATION OF ALLOTMENTS AND CONTRIBUTIONS
UNDER PLAN; LIQUIDATION OF PLAN. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 23 - NOTICES, REPORTS, ETC.. . . . . . . . . . . . . . . . . . . . 33
SECTION 24 - ADMINISTRATION AND INTERPRETATION OF PLAN . . . . . . . . . . 33
SECTION 25 - TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . . . . . . . . 34
25.1 General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
25.2 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
25.3 Minimum Allocation . . . . . . . . . . . . . . . . . . . . . . . 37
25.4 Minimum Vesting. . . . . . . . . . . . . . . . . . . . . . . . . 38
iii
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CINCINNATI BELL INC.
SAVINGS AND SECURITY PLAN
(As amended and restated effective January 1, 1997)
SECTION I
NAME AND PURPOSE OF PLAN
1.1 NAME. The plan set forth herein shall be known as the Cincinnati Bell
Inc. Savings and Security Plan (the "Plan").
1.2 PURPOSE. The purpose of the Plan is to provide a convenient way for
Eligible Employees to save on a regular and long-term basis for retirement and
to encourage Eligible Employees to make and continue careers with the
Participating Companies. The Plan is designated as a plan intended to qualify
under section 401(a) of the Code.
SECTION 2
GENERAL DEFINITIONS; GENDER AND NUMBER
2.1 GENERAL DEFINITIONS. For purposes of the Plan, the following terms
shall have the meanings hereinafter set forth unless the context otherwise
requires:
2.1.1 "Account" means the Account established for a Participant in
accordance with the provisions of the Plan.
2.1.2 "Affiliated Employer" means CBI, each corporation which is a
member of a controlled group of corporations (within the meaning of section
414(b) of the Code as modified by section 415(h) of the Code) which includes
CBI, each trade or business (whether or not incorporated) which is under common
control (within the meaning of section 414(c) of the Code as modified by section
415(h) of the Code) with CBI, each member of an affiliated service group (within
the meaning of section 414(m) of the Code) which includes CBI and each other
entity required to be aggregated with CBI under section 414(o) of the Code.
2.1.3 "CBI" means Cincinnati Bell Inc.
2.1.4 "CBI Shares" means common shares of CBI.
2.1.5 "Code" means the Internal Revenue Code of 1986.
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2.1.6 "Committee" means the Employees' Benefit Committee.
2.1.7 "Covered Compensation" means an Eligible Employee's base pay
as determined from the payroll records, but shall not include overtime,
differentials or other special payments. For purposes of the Plan, an Eligible
Employee's "Covered Compensation" also shall include the Covered Compensation
which would have been paid or includable in the Eligible Employee's gross income
but for sections 125, 402(a)(8) and 402(h)(1)(B) of the Code.
2.1.8 "Covered Employee" means an Hourly Employee of a
Participating Company, subject to the following:
(a) The term "Covered Employee" shall include an Hourly
Employee who is a temporarily promoted to a Salaried Employee position for one
year or less. For purposes of the Plan, "Hourly Employee" means an Employee
whose position is subject to automatic wage progression or whose pay is not at a
bi-weekly, semi-monthly, monthly or annual rate and "Salaried Employee" means an
Employee whose pay is at a bi-weekly, semi-monthly, monthly or annual rate and
whose position is not subject to automatic wage progression.
(b) The term "Covered Employee" shall not include a person
who is a leased employee within the meaning of section 414(n) of the Code. For
purposes of the preceding sentence, "leased employee" means a person who is not
an Employee and who provides services to an Affiliated Employer if (i) such
services are provided pursuant to an agreement between the Affiliated Employer
and any third party, (ii) such person has performed such services for the
Affiliated Employer (or for the Affiliated Employer and related persons) on a
substantially full-time basis for a period of at least one year and (iii) such
services are performed under primary direction and control of the Affiliated
Employer.
(c) The term "Covered Employee" shall not include an
Employee who is classified by a Participating Company as a co-op student,
intern, job bank employee or contingency employee.
2.1.9 "Eligible Employee" means a Covered Employee who has been
credited with at least one year of Eligibility Service.
2.1.10 "Employee" means any person who is an employee of an
Affiliated Employer or who is deemed to be an employee of an Affiliated Employer
under section 414(n) of the Code.
2.1.11 "Enrollment Date" means the first day of each month.
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2.1.12 "ERISA" means the Employee Retirement Income Security Act of
1974.
2.1.13 "Interchange Company" means a company, other than an
Affiliated Employer, which is identified in an Interchange Agreement as a
company with respect to which service credit will be recognized under this Plan.
2.1.14 "Interchange Agreement" means an agreement between one or
more Participating Companies and one or more other companies, which are not
Affiliated Companies, which provides that service with such other companies will
be recognized for purposes of this Plan.
2.1.15 "Investment Manager" means an investment manager qualified
as such under Section 3(38) of ERISA.
2.1.16 "Non-Matured Amounts" means on and after January 1, 1994,
all amounts in a Participant's Account which are attributable to matching
contributions made by the Participating Companies.
2.1.17 "Participant" means a person who has become a Participant in
the Plan and whose Account has not been fully distributed or forfeited.
2.1.18 "Participating Company" means CBI and Cincinnati Bell
Telephone Company.
2.1.19 "Payroll Office" shall mean an Employee's payroll office, as
designated by the Participating Company which employs the Employee or which last
employed the Employee.
2.1.20 "Plan Year" means the calendar year.
2.1.21 "Related Plan" means the Retirement Savings Plan, the CBIS
Retirement and Savings Plan and the MATRIXX Marketing Inc. Profit Sharing/401(k)
Plan.
2.1.22 "Retirement Savings Plan" means the Cincinnati Bell Inc.
Retirement Savings Plan.
2.1.23 "Trust" means the trust established to hold the assets of
the Plan.
2.1.23 "Trustee" means the person or corporation serving as trustee
of the Trust.
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2.1.25 "Valuation Date" means the last business day of each
calendar month and such other days as may be selected by the Committee.
2.2 GENDER AND NUMBER. For purposes of the Plan, words used in any gender
shall include all other genders, words used in the singular form shall include
the plural form and words used in the plural form shall include the singular
form, as the context may require.
SECTION 3
SERVICE
3.1 ELIGIBILITY SERVICE. Each Employee who completes at least 1,000 Hours
of Service during the 12-month period commencing on the day he first performs an
Hour of Service for an Affiliated Employer shall be credited with one year of
"Eligibility Service" as of the last day of such 12-month period. Each Employee
who fails to complete at least 1,000 Hours of Service during the 12-month period
commencing on the day he first performs an Hour of Service for an Affiliated
Employer shall be credited with one year of "Eligibility Service" as of the last
day of the first 12-month period (commencing on an anniversary of the day he
first performs an Hour of Service for an Affiliated Employer) during which he
completes at least 1,000 Hours of Service. For purposes of this paragraph, an
Employee will be considered to have completed 45 Hours of Service for each week
in which the Employee completes at least one Hour of Service.
3.2 VESTING SERVICE. An Employee's years of "Vesting Service" shall be
computed as follows:
3.2.l An Employee shall be credited with years of Vesting Service
equal to the number of his years of Vesting Service counted for purposes of the
Plan as of January 1, 1989 (as calculated under the provisions of the Plan in
effect on such date).
3.2.2 An Employee shall be credited with one year of Vesting
Service for each calendar year ending after December 31, 1988 during which he is
credited with at least 1,000 Hours of Service; provided that service prior to
the calendar year in which the Employee attained age 18 shall not be counted for
purposes of this Section 3.2.2.
3.2.3 Notwithstanding any other provision of this Section 3.2 to
the contrary, if an Employee who does not have any nonforfeitable right to an
accrued benefit under the Plan incurs one or more consecutive one year Breaks in
Service, and if the number of such consecutive one year Breaks in Service equals
or exceeds the number of his years of Vesting Service credited to him prior to
such Break in Service (excluding any such years of Vesting Service which may be
disregarded because of a prior Break in Service), then his years of Vesting
4
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Service credited to him prior to the first such one year Break in Service shall
all be disregarded. Notwithstanding the foregoing, effective January 1, 1985,
years of Vesting Service shall not be disregarded by reason of less than five
consecutive one year Breaks in Service.
3.3 BREAK IN SERVICE. For purposes of the Plan, "Break in Service" means
a period of one or more consecutive calendar years during each of which the
Employee completes not more than 500 Hours of Service.
3.4 HOURS OF SERVICE. Subject to the rules contained in 29 CFR Section
2530.200b-2(b) and (c) (which are incorporated herein by reference), an
Employee's "Hours of Service" shall be computed as follows:
3.4.1 One Hour of Service shall be credited for each hour for
which an Employee is paid, or entitled to payment, for the performance of duties
for an Affiliated Employer during the applicable computation period.
3.4.2 One Hour of Service shall be credited for each hour for
which an Employee is paid, or entitled to payment, by an Affiliated Employer on
account of a period of time during which no duties are performed (irrespective
of whether the employment relationship has terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty, military duty or
leave of absence. Notwithstanding the preceding sentence:
(a) No more than 501 Hours of Service are required to be
credited under this Section 3.4.2 to an Employee on account of any single
continuous period during which the Employee performs no duties (whether or not
such period occurs in a single computation period);
(b) An hour for which an Employee is directly or indirectly
paid, or entitled to payment, on account of a period during which no duties are
performed is not required to be credited to the Employee if such payment is made
or due under a plan maintained solely for the purpose of complying with
applicable worker's compensation or unemployment compensation or disability
insurance laws; and
(c) Hours of Service are not required to be credited for a
payment which solely reimburses an Employee for medical or medically related
expenses incurred by the Employee.
For purposes of this Section 3.4.2, a payment shall be deemed to be made by or
due from an Affiliated Employer regardless of whether such payment is made by or
due from the Affiliated Employer directly, or indirectly through, among others,
a trust fund, or insurer, to which the Affiliated Employer contributes or pays
premiums and regardless of whether contributions made
5
<PAGE>
or due to the trust fund, insurer or other entity are for the benefit of
particular Employees or are on behalf of a group of Employees in the aggregate.
3.4.3 One Hour of Service shall be credited for each hour for
which back pay, irrespective of mitigation of damages, is either awarded or
agreed to by an Affiliated Employer. The same hours of service shall not be
credited both under Section 3.4.1 or Section 3.4.2, as the case may be, and
under this Section 3.4.3. Crediting of Hours of Service for back pay awarded or
agreed to with respect to periods described in Section 3.4.2 shall be subject to
the limitations set forth in that Section.
3.4.4 For purposes only of determining whether an Employee has
incurred a Break in Service, if the Employee is absent from work for an
Affiliated Employer (a) by reason of the pregnancy of the Employee, (b) by
reason of the birth of a child of the Employee, (c) by reason of the placement
of a child with the Employee in connection with the adoption of such child by
the Employee or (d) for purposes of caring for such a child for a period
beginning immediately following such a birth or placement, and the Employee is
not paid or entitled to be paid for such absence, the Employee will be credited
with one Hour of Service for each hour which the Employee would normally have
been scheduled to work but for such absence, or, if the Employee does not have a
regular work schedule, with eight hours of Service for each day of such absence.
Notwithstanding the preceding sentence:
(a) No more than 501 Hours of Service will be credited
under this Section 3.4.4 to an Employee on account of any single continuous
period of such an absence;
(b) Any Hours of Service which are to be credited to an
Employee under this Section 3.4.4 by reason of a single continuous period of
absence will be credited for the calendar year in which such absence begins if
the Employee would be prevented from incurring a Break in Service with respect
to such calendar year solely because of such crediting. Otherwise, such Hours
of Service will be credited for the calendar year next following the calendar
year in which such absence begins; and
(c) No Hours of Service will be credited to an Employee
under this Section 3.4.4 unless the Employee furnishes to the Committee such
timely information as the Committee may reasonably require to establish that the
applicable absence from work is for reasons referred to in the first sentence of
this Section 3.4.4 and the number of days for which there was such an absence.
The same Hours of Service shall not be credited both under Section 3.4.1, 3.4.2
or 3.4.3, as the case may be, and under this Section 3.4.4.
6
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3.5 SERVICE WITH OTHER COMPANIES. To the extent provided in any
Interchange Agreement, an Employee's service with any Interchange Company shall
be deemed to be service with an Affiliated Employer. Service with an Affiliated
Company shall include (a) all service with Creative Management Systems, Inc.
("CMS"), (b) in the case of a person employed in the Comtrack Services operation
of Control Data Corporation ("CDC") who became an employee of CMS on December
19, 1985, all service with CDC, its affiliates and predecessors as recognized by
CDC on December 19, 1985, (c) all service with Cellular Business Systems, Inc.
(d) in the case of a person employed by James V. Hood, Inc. or YGJ Computer
Corporation (collectively, the "Hood Companies") who became an employee of
Abacus Inc. on September 23, 1986, all service with the Hood Companies as
recognized by the Hood Companies on September 23, 1986, (e) all service with
Telephone Marketing Services, Inc. and (f) all service with CTI
Telecommunications, Inc. Except as provided in this Section 3.5, in the case of
a company which becomes an Affiliated Employer after January 1, 1988, service
with such company prior to the date on which such company became an Affiliated
Employer shall not be deemed to be service with an Affiliated Employer.
SECTION 4
PARTICIPATION
4.1 PARTICIPATION. An Employee may elect to become a Participant in the
Plan, beginning on any Enrollment Date on which the Employee is an Eligible
Employee, by authorizing allotments in accordance with Section 5 and directing
the investment of allotments in accordance with Section 9. Such authorization
and direction shall be in accordance with such rules as may be prescribed by the
Committee.
4.2 RELATED PLAN PARTICIPANTS. A Participant in this Plan who was a
participant in a Related Plan other than the Retirement Savings Plan may elect,
under the provisions of such plan and under the provisions of this Section 4.2,
to have the amounts in the Participant's account in such plan transferred to the
Participant's Account in this Plan, for investment in the ways authorized under
Section 9. The amounts so transferred to the Participant's Account in this Plan
with respect to each Plan Year shall be the same as the amounts credited to the
Participant's account in such plan with respect to each such Plan Year
immediately prior to the transfer of the account and, if the Participant has a
loan outstanding under such plan, such loan shall be deemed to be a loan made
under this Plan. If a Participant in the Retirement Savings Plan becomes a
Participant in this Plan, the amounts in his account under the Retirement
Savings Plan shall automatically be transferred to this Plan.
7
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SECTION 5
ALLOTMENTS
5.1 PRE-TAX AND POST-TAX ALLOTMENTS. Allotments from Covered Compensation
shall be either pre-tax allotments or post-tax allotments. If an Employee
elects pre-tax allotments, the Employee's Covered Compensation shall be reduced
by the amount elected, and the Participating Companies shall contribute an
equivalent amount to the Trust on behalf of the Employee. If an Employee elects
post-tax allotments, the amount elected shall be deducted from the Employee's
Covered Compensation and remitted to the Trust by the Participating Companies.
It is intended that an Employee's pre-tax allotments shall be
considered, for Federal income tax purposes, as a direct contribution of the
Participating Companies and not includable in the Employee's wages subject to
Federal income tax for the year the pre-tax allotments are made. It is also
intended that an Employee's post-tax allotments shall not reduce the Employee's
wages subject to Federal income tax for the year the post-tax allotments are
made. All allotments made for periods prior to 1985 shall be considered to be
post-tax allotments.
5.2 BASIC AND SUPPLEMENTARY ALLOTMENTS. An Employee may authorize a basic
allotment from Covered Compensation in accordance with the following schedule:
Weekly Covered Amount of Basic
Compensation Allotment - Weelky
------------ ------------------
Up to $200 $5 or $10
$200 up to $300 $5, $10 or $15
$300 up to $400 $5, $10, $15 or $20
400 up to $500 $5, $10, $15, $20 or $25
$500 up to $600 $5, $10, $15, $20, $25 or $30
$600 up to $700 $5, $10, $15, $20, $25, $30 or $35
$700 up to $800 $5, $10, $15, $20, $25, $30, $35 or $40
$800 up to $900 $5, $10, $15, $20, $25, $30, $35, $40 or $45
$900 and over $5, $10, $15, $20, $25, $30, $35, $40, $45 or $50
An Employee who has authorized the maximum basic allotment in accordance with
the above schedule may authorize a supplementary allotment consisting of a total
of one or more $5 increments which, when added to the basic allotment, results
in a total allotment of not more than 16% of the Employee's weekly Covered
Compensation. A part-time Employee may authorize
8
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only a portion of the basic and supplementary allotments described above. Such
portion shall be based on the ratio of the Employee's regular part-time hours to
the corresponding regular full-time hours, subject to a minimum allotment of
$.50 and rounded down to the nearest multiple of $.50.
Allotments will begin with the first Covered Compensation paid after the
Enrollment Date on which the Employee becomes a Participant in the Plan.
Allotments shall be remitted by the Participating Companies to the Trust and
allocated to the Employee's Account not less frequently than monthly. An
Employee shall be entitled to contribute to the Trust only through salary
allotments except as described in Sections 6 and 11.4.7. Amounts attributable
to Employee allotments shall be immediately vested and shall not be subject to
forfeiture.
5.3 CHANGE IN ALLOTMENTS. A Participant, in accordance with such rules as
may be prescribed by the Committee, may change the dollar amount of Covered
Compensation authorized as a basic allotment or as a supplementary allotment or
both to another permissible dollar amount, and may change the pre-tax or
post-tax designation of allotments, effective with the Participant's first
Covered Compensation paid in the following month. No Participant may continue a
supplementary allotment unless the maximum basic allotment in accordance with
the schedule set forth in Section 5.2.
If an Employee has authorized the maximum basic allotment related to
the Employee's weekly Covered Compensation pursuant to the schedule set forth in
Section 5.2, and the Employee's weekly Covered Compensation changes to another
bracket under the schedule which permits a greater maximum basic allotment or
requires a lesser maximum basic allotment, the Employee's basic allotment
automatically will be increased or decreased to reflect the change. No
automatic increase or decrease in an Employee's supplementary allotment will
occur as a result of an increase or decrease in the Employee's weekly Covered
Compensation. Any allotment which has not been designated as a pre-tax
allotment shall be designated as a post-tax allotment.
SECTION 6
ROLLOVER CONTRIBUTIONS
Subject to such uniform and nondiscriminatory rules as the Committee may
prescribe, a Participant who is a Covered Employee may make a rollover
contribution as described in section 402(a)(5), 403(a)(4) or 408(d)(3) of the
Code; provided that amounts previously deducted by the Participant under section
219 of the Code may not be contributed to the Trust. Amounts attributable to
rollover contributions shall be immediately vested and shall not be subject to
forfeiture.
9
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SECTION 7
PARTICIPATING COMPANY CONTRIBUTIONS
The Participating Companies shall contribute to the Plan on behalf of each
Participant (and for exclusive investment in CBI Shares) an amount equal to 60%
of the amount of the basic allotment from the Covered Compensation of such
Participant. Participating Company contributions under this Section 7 with
respect to each month's basic allotments shall be remitted to the Trust as soon
as practicable after the end of such month. Participating Company contributions
will not be made with respect to supplementary allotments.
Notwithstanding the foregoing, in the event of a distribution of a
Participant's allotments under Section 8.1, any Participating Company
contributions (and earnings thereon) under this Section 7 which are attributable
to such distributed allotments also shall be distributed to the Participant at
the same time; provided, however, that if such Participating Company
contributions (and earnings thereon) would have been subject to forfeiture if
the Participant had ceased to be an Employee, such contributions and earnings
shall not be distributed but shall be forfeited.
SECTION 8
LIMITATIONS ON ALLOTMENTS AND
PARTICIPATING COMPANY CONTRIBUTIONS
8.1 SECTION 401(k) LIMITATIONS. If for any Plan Year the pre-tax
allotments paid to the Trust on behalf of those Participants who are Highly
Compensated Employees exceed both the limitation contained in Section 8.1.1 and
the limitation contained in Section 8.1.2, the amounts attributable to such
pre-tax allotments (together with the amounts attributed to any related
Participating Company contributions) shall, to the extent necessary to insure
that at least one of such limitations will not be exceeded, be distributed to
such Participants prior to the end of the following Plan Year. Distribution
shall be made on the basis of the dollar amount of the pre-tax allotments made
by or on behalf of such Participants, beginning with the highest dollar amount.
8.1.1 The Average Deferral Percentage for those Eligible Employees
who are Highly Compensated Employees must not be more than the Average Deferral
Percentage of all other Eligible Employees multiplied by 1.25.
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8.1.2 The excess of the Average Deferral Percentage for those
Eligible Employees who are Highly Compensated Employees over the Average
Deferral Percentage of all other Eligible Employees must not be more than two
percentage points and the Average Deferral Percentage for those Eligible
Employees who are Highly Compensated Employees must not be more than the Average
Deferral Percentage of all other Eligible Employees multiplied by two.
Notwithstanding the foregoing, at the election of the Committee, in lieu of
making distributions to those Participants who are Highly Compensated Employees,
(a) the amounts which would otherwise be distributed shall be recharacterized as
amounts attributed to post-tax allotments (subject to the limitations contained
in Sections 8.2 and 8.3) or (b) the Participating Companies may make special
contributions on behalf of those Participants who are not Highly Compensated
Employees in an amount sufficient to satisfy the limitations of Section 8.1.1 or
8.1.2. Such special contributions shall be allocated among the Accounts of
those Participants who are not Highly Compensated Employees in the proportion
that each such Participant's Covered Compensation for the Plan Year bears to all
such Participants' Covered Compensation for the Plan Year and, for purposes of
the Plan, they shall be treated as such Participants' pre-tax allotments. For
purposes of the Plan, (a) the "Average Deferral Percentage" for a specified
group of Eligible Employees shall be the average of such Eligible Employees'
Individual Deferral Percentages and (b) "Individual Deferral Percentage" means,
with respect to any Eligible Employee for any Plan Year, the ratio of the
Employee's pre-tax allotments under Section 5.1 for such Plan Year to the
Eligible Employee's Compensation for such Plan Year. For purposes of
determining the Individual Deferral Percentage of an Eligible Employee who is a
Highly Compensated Employee, this Plan and all other 401(k) plans maintained by
any Affiliated Employer in which the Employee is eligible to participate shall
be treated as a single plan. In the event this Plan must be combined with one
or more plans (other than an employee stock ownership plan described in section
4975(e)(7) of the Code) in order to satisfy the requirements of section
401(a)(4) or 410(b) of the Code (other than the average benefits test described
in section 410(b)(2)(A)(ii) of the Code), then all cash or deferred arrangements
that are included in such plans shall be treated as a single arrangement for
purposes of section 401(k) of the Code.
8.2 SECTION 401(m) LIMITATIONS. If for any Plan Year the total post-tax
allotments plus the Participating Company contributions (other than 401(k)
contributions) paid to the Trust by or on behalf of those Participants who are
Highly Compensated Employees exceed both the limitation contained in Section
8.2.1 and the limitation contained in Section 8.2.2, the amounts attributable to
such post-tax allotments and Participating Company contributions shall, to the
extent necessary to insure that at least one of such limitations will not be
exceeded, be distributed to such Participants prior to the end of the following
Plan Year. Distribution shall be made on the basis of the dollar amount of the
post-tax allotments and Participating Company contributions (other than 401(k)
contributions) made by or on behalf of such Participants, beginning with the
highest dollar amount. Forfeitures under this Section 8.2 may not be allocated
to Participants whose contributions are reduced under this Section 8.2
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8.2.1 The Average Contribution Percentage for those Eligible
Employees who are Highly Compensated Employees must not be more than the Average
Contribution Percentage of all other Eligible Employees multiplied by 1.25.
8.2.2 The excess of the Average Contribution Percentage for those
Eligible Employees who are Highly Compensated Employees over the Average
Contribution Percentage of all other Eligible Employees must not be more than
two percentage points and the Average Contribution Percentage for those Eligible
Employees who are Highly Compensated Employees must not be more than the Average
Contribution Percentage of all other Eligible Employees multiplied by two.
Notwithstanding the foregoing, at the election of the Committee, all or part of
the pre-tax allotments of those Participants who are not Highly Compensated
Employees may be treated as post-tax allotments for purposes of satisfying the
limitations contained in this Section 8.2 and Section 8.3. For purposes of the
Plan, (a) the "Average Contribution Percentage" for a specified group of
Eligible Employees, grouped by Compensation, shall be the average of such
Participants' Individual Contribution Percentages and (b) "Individual
Contribution Percentage" means, with respect to any Eligible Employee for any
Plan Year, the ratio of the post-tax allotments and Participating Company
contributions (other than 401(k) contributions) paid to the Trust by or on
behalf of the Eligible Employee for such Plan Year to the Eligible Employee's
Compensation for such Plan Year. The Average Contribution Percentage for any
Highly Compensated employee for any Plan Year who is eligible to have matching
employer contributions made on his behalf or to make after-tax contributions
under one or more plans described in section 401(a) of the Code (other than an
employee stock ownership plan described in section 4975(e)(7) of the Code)
maintained by any Affiliated Employer in addition to this Plan shall be
determined as if all such contributions were made to this Plan. In the event
that this Plan must be combined with one or more other plans (other than an
employee stock ownership plan described in section 4975(e)(7) of the Code) in
order to satisfy the requirements of section 401(a) or 410(b) of the Code (other
than the average benefits test described in section 410(b)(2)(A)(ii) of the
Code), all employee and matching contributions shall be treated as made under a
single plan for purposes of section 401(m) of the Code.
8.3 SECTION 401(m) ALTERNATE LIMITATIONS. The alternate limitations set
forth in this Section 8.3 shall apply if, for any Plan Year, the total pre-tax
allotments paid to the Trust on behalf of those Participants who are Highly
Compensated Employees exceed the limitation contained in Section 8.1.1 and the
total post-tax allotments and Participating Company contributions (other than
401(k) contributions) paid to the Trust by or on behalf of those Participants
who are Highly Compensated Employees exceed the limitation contained in Section
8.2.1. If for any Plan Year the total post-tax allotments and Participating
Company contributions by or on behalf of those Participants who are Highly
Compensated Employees exceed the sum of the
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limitation contained in Section 8.3.1 and the limitation contained in Section
8.3.2, the amounts attributable to such post-tax allotments and Participating
Company contributions shall, to the extent necessary to insure that at least one
of such limitations will not be exceeded, be distributed to such Participants
prior to the end of the following Plan Year. Distribution shall be on the basis
of the dollar amount of the post-tax allotment and Participating Company
contributions (other than 401(k) contributions) made by or on behalf of such
Participants, beginning with the highest dollar amount. Forfeitures of
contributions under this Section 8.3 may not be allocated to Participants whose
contributions are reduced under this Section 8.3.
8.3.1 The sum of (a) 125% of the lesser of (i) the Average
Deferral Percentage of those Eligible Employees who are not Highly Compensated
Employees or (ii) the Average Contribution Percentage of such Eligible
Employees; plus (b) the lesser of (i) two percent plus the greater of the
amounts determined under clause (a) of this Section 8.3.1 or (ii) 200% of the
greater of the amounts determined under clause (a) of this Section 8.3.2.
8.3.2 The sum of (a) 125% of the greater of (i) the Average
Deferral Percentage of those Eligible Employees who are not Highly Compensated
Employees or (ii) the Average Contribution Percentage of such Eligible
Employees; plus (b) the lesser of (i) 2% plus the lesser of the amounts
determined under clause (a) of this Section 8.3.2 or (ii) 200% of the lesser of
the amounts determined under clause (a) of this Section 8.3.2.
8.4 MAXIMUM ANNUAL ADDITIONS. Notwithstanding any other provision of the
Plan to the contrary, a Participant's total Annual Additions for any Plan Year
shall be limited in accordance with the following provisions:
8.4.1 In no event shall a Participant's Annual Additions for any
Plan Year exceed the lesser of (a) $30,000 (or such larger amount as may be
determined by the Commissioner of Internal Revenue for Plan Years beginning on
or after January 1, 1988) or (b) 25% of his Compensation for such Plan Year.
8.4.2 If for any Plan Year, as a result of reasonable error in
estimating a Participant's Compensation or other facts and circumstances
approved by the Commissioner of Internal Revenue, a Participant's Annual
Additions could exceed the limitations set forth in Section 8.4.1, the following
adjustments shall be made in the following order to the extent necessary to
insure such limitations will not be exceeded: first, the amounts attributable
to the Participant's post-tax allotments for the Plan Year shall be distributed
to him; second, the amounts attributable to the Participating Companies'
contributions for the Plan Year on behalf of the Participant under Section 7
shall be allocated to a suspense account under Section 8.4.3; and third, the
amounts attributable to the Participating Companies' contributions for the Plan
Year on behalf of the Participant under Section 5.1 shall be allocated to a
suspense account under Section 8.4.3.
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8.4.3 That portion of the Participating Companies' contributions
for a Plan Year which is allocated to a suspense account under Section 8.4.2
shall be applied to reduce the contributions otherwise required of the
Participating Companies in the first Plan Year in which they can be applied
without exceeding the limitations of Section 8.4.1. The suspense account shall
not share in the income, expenses, profits or losses of the Trust. The
Participating Companies shall not contribute any amount to the Trust which
results in additional amounts being credited to the suspense account. If the
Plan is terminated, any amount credited to the suspense account which cannot be
allocated to the Participants' Accounts shall be paid to the Participating
Companies.
8.4.4 For purposes hereof, "Annual Additions" means, with respect
to any Participant, the sum of all allotments, contributions and forfeitures
(other than rollover contributions described in Section 6 and restorals
described in Section 11.4.7) allocated to his Account for a Plan Year. If a
Participant is also a participant in another qualified defined contribution plan
maintained by an Affiliated Employer, (a) this Plan and each such other plan
shall be deemed to be one plan for purposes of the limitations contained in this
Section 8.4 and (b) any adjustments required to insure that the limitations on
Annual Additions are not exceeded shall be made pro rata, based upon his
Compensation taken into account for purposes of this Plan and each such other
plan.
8.5 HIGHLY COMPENSATED EMPLOYEE. For purposes of the Plan, "Highly
Compensated Employee" means an Employee (a) who, at any time during the Plan
Year for which the determination is being made or the preceding Plan Year, was a
5% owner (as defined in section 416(i)(1) of the Code) of any Affiliated
Employer; or (b) who, for such preceding Plan Year, had Compensation in excess
of $80,000 (as adjusted pursuant to section 414(q)(1) of the Code). For
purposes of this Section 8.5, a former Employee shall be deemed to be a Highly
Compensated Employee with respect to a Plan Year if such former Employee
separated from service (or was deemed to have separated) prior to the Plan Year,
performed no services for an Affiliated Employer during the Plan Year and was a
Highly Compensated Employee of an Affiliated Employer (under the provisions of
the Plan then in effect) for either the Plan Year in which he separated or any
Plan Year ending on or after his 55th birthday.
8.6 COMPENSATION. For purposes of this Section 8 "Compensation" means an
Employee's earned income, wages, salaries, and fees for professional services
and other amounts received for personal services actually rendered in the course
of employment with an Affiliated Employer (including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips and bonuses), and
excluding the following: (a) contributions by an Affiliated Employer to a plan
of deferred compensation which are not includable in the Employee's gross income
for the taxable year in
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which contributed, or contributions by an Affiliated Employer under a simplified
employee pension plan to the extent such contributions are deductible by the
Employee, or any distributions from a plan of deferred compensation; (b) amounts
realized from the exercise of a non-qualified stock option, or when restricted
stock (or property) held by the Employee either becomes freely transferable or
is no longer subject to a substantial risk of forfeiture; (c) amounts realized
from the sale, exchange or other disposition of stock acquired under a qualified
stock option; and (d) other amounts which received special tax benefits.
8.6.1 For purposes of Section 8.4, an Employee's Compensation for
a Plan Year is the Compensation actually paid or includable in gross income
during such Plan Year.
8.6.2 For purposes of Sections 8.1, 8.2, 8.3 and 8.5 (for purposes
of Section 8, effective January 1, 1998), an Employee's Compensation for a Plan
Year is the Compensation actually paid or includable in gross income during such
Plan Year plus the Compensation which would have been paid or includable in
gross income during such Plan Year but for sections 125, 402(a)(8) and
402(h)(1)(B) of the Code.
8.6.3 For purposes of the Plan, (a) an Employee's "Compensation"
for any Plan Year prior to 1994 shall not be deemed to exceed $200,000 or such
greater amount as may be permitted for such Plan Year under section 401(a)(17)
of the Code and (b) an Employee's compensation for any Plan Year after 1993
shall not be deemed to exceed $150,000 or such greater amount as may be
permitted for such Plan Year under section 401(a)(17) of the Code. In
determining the compensation of a Participant for purposes of the foregoing
limitation, the rules of section 414(q)(6) of the Code shall apply, except in
applying such rules, the term "family" shall include only the spouse of the
Participant and any lineal decedents of the Participant who have not attained
age 19 before the close of the Plan Year. If, as a result of the application of
such rules, either of the foregoing limitations is exceeded, then the limitation
shall be prorated among the affected individuals in proportion to each such
individual's compensation as determined under this Section 8.6.3 prior to the
application of the limitation.
8.6.4 For purposes of applying the limitations contained in
Sections 8.1, 8.2 and 8.3, an Eligible Employee's Compensation shall not include
amounts paid prior to the date on which he became an Eligible Employee.
8.7 SECTION 402(g) LIMITATION. Notwithstanding any other provision of
this Plan, in no event shall the amount of a Participant's Elective Deferrals
during any calendar year under this Plan and all other plans, contracts or
arrangements maintained by any Affiliated Employer exceed the amount of the
limitation in effect under section 402(g)(1) of the Code for such calendar year.
If a Participant has Excess Deferrals for any calendar year, and if the
Participant so elects, the Excess Deferrals (plus any earnings and minus any
losses allocable thereto) shall be distributed to the Participant from his
Account no later than April 15 following the calendar year
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for which the Excess Deferrals were made. Any election under this Section 8.7
shall be in writing, shall be filed with the Committee no later than March 1
following the calendar year for which the Excess Deferrals were made, shall
specify the amount of the Excess Deferrals for the calendar year and shall
include the Participant's statement that if such Excess Deferrals are not
distributed, the sum of the amounts deferred by the Participant for the calendar
year under sections 401(k), 408(k) and 403(b) of the Code will exceed the limits
imposed by section 402(g) of the Code. For purposes of the Plan, (a) "Elective
Deferrals" means the amounts deferred by the Participant for the calendar year
under sections 401(k), 408(k) and 403(b) of the Code, and (b) "Excess Deferrals"
means that portion of a Participant's Elective Deferrals for a calendar year in
excess of the limits imposed by section 402(g) of the Code for such calendar
year.
8.8 MILITARY SERVICE. Notwithstanding any provision of this Plan to the
contrary, contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with section 414(u) of the Code.
SECTION 9
INVESTMENT DIRECTIONS
All amounts credited to a Participant's Account shall be invested, in
accordance with the Participant's direction, in such types of investments as may
be permitted by the Committee.
SECTION 10
MAINTENANCE AND VALUATION OF ACCOUNTS
10.1 MAINTENANCE OF SEPARATE ACCOUNTS. There shall be established for each
Participant a separate Account, which shall reflect all of the Participant's
pre-tax and post-tax allotments, all related Participating Company contributions
to the Trust, all contributions and allotments transferred from the Related
Plans, all of the Participant's rollover contributions and the investment of
such allotments and contributions. Each Participant will be furnished a
statement of Account at least annually.
10.2 VALUATIONS AND ADJUSTMENTS. The Trustee shall value the Trust assets
at their fair market value as of each Valuation Date. Based upon the results of
such valuation, each outstanding Plan Account shall be adjusted to reflect the
increase or decrease thereof, and any applicable contributions, withdrawals,
distributions or forfeitures, since the preceding Valuation Date.
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SECTION 11
DISTRIBUTION AND WITHDRAWAL
11.1 METHOD OF PAYMENT. Upon any distribution or withdrawal from a
Participant's Account, payment shall be made in the following manner:
11.1.1 With respect to amounts representing investment in CBI
Shares, payment shall be in CBI Shares; provided that, in the case of any
fraction of a CBI Share, payment shall be in cash; provided further that, at the
election of the Participant or the Participant's beneficiary, payment of all
amounts representing investment in CBI Shares shall be in cash.
11.1.2 With respect to amounts representing types of investments
other than CBI Shares, payment shall be in cash.
11.2 HARDSHIP WITHDRAWALS WHILE STILL AN EMPLOYEE. An Employee who
demonstrates a Hardship, to the satisfaction of the Committee, may elect to
withdraw from his Account the lesser of (a) all amounts attributable to the
Employee's pre-tax allotments (reduced by any income earned on the Employee's
pre-tax allotments after December 31, 1988) or (b) the amount required to
alleviate the Hardship. Such an election shall be made on a form to be provided
for the purpose and shall be signed by the Employee and, if approved by the
Committee, delivered to the Payroll Office by the Committee. Payment to the
Employee pursuant to such an election of withdrawal shall be made as soon as
practicable after the end of the month in which the election form is delivered
to the Payroll Office. If less than all amounts attributable to the Employee's
pre-tax allotments are being withdrawn, such withdrawal shall be deemed to be
made pro rata from the amounts the various types of investments, including CBI
Shares, in which the Employee's pre-tax allotments are invested, on the basis
of the values of the respective investments as of the end of the month of
withdrawal. For purposes hereof, "Hardship" means an immediate and heavy
financial need of the Employee or his dependents because of sickness, disability
or other financial emergency, but only to the extent consistent with section
401(k) of the Code and any regulations issued by the Secretary of the Treasury
thereunder. The determination of whether an Employee has incurred a Hardship
shall be made on the basis of all relevant facts and circumstances. A financial
need shall not fail to qualify merely because it was reasonably foreseeable or
voluntarily incurred. A distribution for any of the following needs shall be
deemed to be made on account of Hardship: (a) medical expenses described in
section 213(d) of the Code incurred by the Employee, the Employee's spouse or
any dependent of the Employee (as defined in section 152 of the Code); (b)
purchase (excluding mortgage payments) of a principal residence of the Employee;
(c) payment of tuition for the next semester or quarter of post-secondary
education or (d) the need to prevent the eviction of the Employee from his
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principal residence or foreclosure on the mortgage of the employee's principal
residence. The foregoing list of needs shall not be exclusive. If an Employee
makes a Hardship withdrawal under this Section 11.2, the Employee's elective
contributions and employee contributions (within the meaning of Treas. Reg.
Section 1.401(k)-1(d)(2)(iii)) to this Plan and all other plans maintained by
any Affiliated Employer shall be suspended for 12 months after the withdrawal
and the Participant's elective contributions (within the meaning of Treas. Reg.
Section 1.401(k)-1(d)(2)(iii)) to this Plan and all other plans maintained by
any Affiliated Employer for the calendar year immediately following the calendar
year in which the withdrawal occurs may not exceed the applicable limit under
section 402(g) of the Code for the calendar year immediately following the
calendar year in which the withdrawal occurs less the amount of such elective
contributions for the calendar year in which the withdrawal occurs.
11.3 OTHER WITHDRAWALS PRIOR TO TERMINATION OF EMPLOYMENT. An Employee may
make withdrawals from his Account, effective as of the end of any month, by
giving notice specifying that the Employee elects to withdraw:
(a) all amounts attributable to post-tax supplementary allotments for
the current Plan Year and all preceding Plan Years, all amounts attributable to
post-tax basic allotments for all Plan Years prior to the second preceding Plan
Year and all amounts attributable to rollover contributions;
(b) all amounts attributable to Participating Company contributions
to the Trust for all Plan Years prior to the second preceding Plan Year; and
(c) all amounts attributable to post-tax basic allotments for the
current Plan Year and the two preceding Plan Years.
Payment to the Employee pursuant to such an election of withdrawal shall be
made as soon as practicable after the end of the month of withdrawal. Any
notice under this Section 11.3 shall be given in such manner as may be
prescribed by the Committee.
Each time an Employee makes a withdrawal pursuant to clause (c) above,
(i) all amounts representing Non-Matured Amounts shall be forfeited and (ii) the
Employee's allotments shall be suspended for six months. Clause (i) of the
preceding sentence shall not apply to an Employee who has attained age 65 or who
has been credited with at least five years of Vesting Service or who first
performed an Hour of Service prior to 1994, however, the amounts which otherwise
would be forfeited by such Employee shall not be made available to the Employee
until termination of employment or pursuant to any other applicable provision of
this Section 11. Withdrawals under this Section 11.3 shall only be made clause
by clause in the order to set forth herein, beginning with clause (a) and
continuing first through clause (b) and then through clause (c) only after first
or simultaneously withdrawing all amounts available under all preceding
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clauses. Any cash amounts withdrawn by an Employee shall be not less than $500,
except that an Employee who elects to withdraw under clause (a) or (b) may
receive, or if the Employee elects to withdraw under clause (c) the Employee
must receive, the total amount available under each of such clauses with respect
to which the election is effective. Any amounts withdrawn by an Employee which
are attributable to allotments shall be deemed to be made pro rata from the
amounts representing the various types of investments in which the allotments
are invested, on the basis of the values of the respective amounts as of the end
of the month of withdrawal. Withdrawals by an Employee under this Section 11.3
may not be made more than twice in any Plan Year.
11.4 DISTRIBUTION ON TERMINATION OF EMPLOYMENT.
11.4.1 RETIREMENT OR OTHER TERMINATION OF EMPLOYMENT EXCEPT DEATH.
If a Participant ceases to be an Employee for any reason other than death,
distribution of all the amounts in the Participant's Account will be made as of
the end of the month in which he ceases to be an Employee, except amounts
representing Non-Matured Amounts in the Participant's Account, which shall be
forfeited as of the end of the month in which he ceases to be an Employee.
Notwithstanding the preceding sentence, distribution of all the amounts in a
Participant's Account will be made, without forfeiture, in case of termination
of employment of a Participant who (i) has been credited with five years of
Vesting Service, (ii) terminates employment because of disability, (iii) has
attained age 65, the normal retirement age, (iv) terminates employment pursuant
to the provisions of the Supplemental Income Protection Program or the
Management Surplus Reduction Plan or in accordance with a Participating
Company's practices with respect to technological displacement, (v) is covered
by an Interchange Agreement which provides for the full vesting of the
Participant's Account, (vi) effective January 1, 1993, is laid off, or (vii)
effective January 1, 1994, first performed an Hour of Service prior to 1994.
The distribution shall be made as soon as practicable, but not later than 60
days after the later of the close of the Plan Year in which the Participant
attains age 65 or the close of the Plan Year in which the Participant ceases to
be an Employee.
11.4.2 DEATH. In case of death of a Participant, all of the
amounts in the Account as of the end of the month of death will be distributed
pursuant to Section 18.
11.4.3 INSTALLMENT DISTRIBUTION ON RETIREMENT OR ON TERMINATION OF
EMPLOYMENT IN CASE OF DISABILITY. In the case of retirement of a Participant or
termination of employment because of disability, such Participant may elect,
instead of a single payment as provided in Section 11.4.1, to receive payment in
as many as twenty annual installments; provided that, in accordance with the
provisions of Section 11.4.6, the number of annual installments elected may not
extend beyond the life expectancy of the Participant. The installments shall
consist of approximately equal amounts each year, payable as of the date
provided for distribution in Section 11.4.1 and as of the same date in each year
thereafter until payment of all such
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installments is made. Payment of each such installment shall be made in the
manner and on the basis of valuation provided for in Section 11.1. Such an
election shall be made on a form to be provided for the purpose and shall be
signed by the Participant and delivered to the Trustee within the ninety-day
period prior to such retirement or termination.
A Participant who has elected to receive installment
payments may revoke such election by giving written notice at least twenty days
prior to the end of any month, and upon such revocation the amounts remaining in
the Account at the end of such month shall be distributed to the Participant in
a single payment in the manner and on the basis of valuation provided in Section
11.1. Such a revocation shall be made in a letter signed by the Participant and
sent to the Secretary of the Committee.
If a Participant who elected to receive installment payments
dies before receiving all such installments, all amounts remaining at death
shall be distributed pursuant to Section 18.
If a Participant elects to receive installment payments and
is thereafter reemployed before receiving all such installments, the installment
payments will continue during the period of reemployment with respect to the
amounts in the Participant's Account immediately prior to the period of
reemployment. Any amounts credited to the Participant's Account during the
period of reemployment shall be distributed after the subsequent termination of
reemployment, as provided in Section 11.4.1. However, if after the subsequent
termination of reemployment, there remain any number of installment payments
with respect to amounts in the Participant's Account prior to the period of
reemployment, an election under Section 11.4.3 with respect to amounts credited
during the period of reemployment must be for the same number of installments.
For the purpose of this Section 11.4.3, the effect of reemployment on a prior
election to receive installments shall apply only if the prior election was made
in connection with the Participant's retirement or termination of employment
from a Participating Company.
11.4.4 ELECTION OF ANNUITY ON RETIREMENT OR ON TERMINATION OF
EMPLOYMENT IN CASE OF DISABILITY. In the case of retirement of a Participant or
termination of employment because of disability, such Participant may elect to
have the value of all amounts which would otherwise be distributed in cash as
provided in Section 11.4.1 applied directly to the purchase by the Trustee of an
annuity contract in the name of the Participant from an insurance carrier or
carriers selected by the Committee, which annuity contract is not contingent
upon the survival of the Participant or the Participant's spouse; provided that
in accordance with the provisions of Section 11.5, the annuity contract may not
provide for annuity payments extending beyond the life expectancy of the
Participant. Such election shall be made on a form to be provided for the
purpose, signed by the Participant and delivered to the Payroll Office within
ninety days prior to such retirement or termination.
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11.4.5 DEFERRAL OF DISTRIBUTION ON RETIREMENT OR ON TERMINATION OF
EMPLOYMENT EXCEPT DEATH. Notwithstanding any other provision hereof to the
contrary, if the value of the amounts to be distributed to a Participant under
Section 11.4.1 or to be applied to the purchase of an annuity contract for the
Participant under Section 11.4.4 is in excess of $3,500, such amounts shall
remain in the Plan and shall not be so distributed or applied until the earlier
of (1) the last day of March of the calendar year next following the calendar
year in which the Participant attains age 70-1/2 or (ii) the last day of the
month in which the Participant's death occurs. A Participant whose amounts are
being held in the Plan pursuant to the preceding sentence may elect to have such
amounts distributed as of the end of any earlier month by giving prior written
notice on a form provided for the purpose and shall be signed by the
Participant. If the Participant dies before such amounts have been distributed
or applied to purchase an annuity, such amounts shall be distributed pursuant to
Section 18. In the event of a deferred distribution under this Section 11.4.5,
amounts representing Non-Matured Amounts shall not be forfeited until the
earlier of (a) the end of the month in which the Participant incurs a five year
Break in Service or (b) the end of the month when the remaining amounts in the
Participant's Account are distributed.
11.4.6 REQUIRED DISTRIBUTIONS. The provisions of this Section 11.4
shall apply to any distribution from a Participant's Account and will have
precedence over any inconsistent provisions of the Plan.
(a) All distributions from the Plan shall be determined and
made in accordance with the Proposed Regulations under Section 401(a)(9) of the
Code, including the minimum distribution incidental benefit requirement of
section 1.401(a)(9)-2 of the proposed regulations.
(b) If a Participant who is a 5% owner (as defined in
section 416(i)(1) of the Code) of any Affiliated Employer remains an Employee
after the calendar year in which he attains age 70-1/2, the balance in his
Account shall be distributed to him in one lump sum as of the last day of the
year in which he attains age 70-1/2 and any amounts allocated to his Account
during any subsequent year shall be distributed as of the last day of such
subsequent year (unless previously distributed).
11.4.7 RESTORAL OF FORFEITED AMOUNTS. Notwithstanding the
provisions of this Section 11.4 relating to the forfeiture of amounts
representing Non-Matured Amounts in a Participant's Account, the amounts
forfeited shall subsequently be restored to the Participant's Account, through
contributions of the Participating Companies, if the Participant makes a
lump-sum payment in cash to the Trustee in an amount equal to the cash plus the
value on the date of withdrawal or distribution of the CBI Shares, if any, which
the Participant received in the withdrawal or distribution after December 31,
1975 which resulted in the forfeiture. This Section 11.4.7 shall apply in the
case of a forfeiture pursuant to Section 11.3 if the Participant makes
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such payment to the Trustee at a time the Participant is a Covered Employee and
such payment is made within five years from the date of withdrawal. This
Section 11.4.7 shall apply in the case of a forfeiture pursuant to Section
11.4.1 or 11.4.5 if the Participant makes payment to the Trustee after
reemployment as a Covered Employee and such payment is made before the earlier
of (a) five years after the Participant first resumes employment or (b) the end
of the month in which the Participant incurs a five year Break in Service (from
the date of distribution).
Such repaid amounts attributable to allotments and rollover
contributions shall be invested according to the Participant's investment
direction in effect at the time of such repayment. Such repaid amounts
attributable to contributions of the Participating Companies plus the amounts
restored shall be invested in CBI Shares. The number of amounts credited to the
Participant's Account shall be based on the value of the amounts representing
each type of investment as of the end of the month in which such repayment is
made. Except for the amounts credited from the restoral of forfeited amounts
and from the portion of the repaid amounts attributable to amounts credited to
the Participant's Account during the Plan Year of withdrawal or distribution and
each of the two preceding Plan Years, such amounts shall be credited with
respect to the Plan Years, prior to the two Plan Years preceding the Plan Year
of withdrawal or distribution, for which amounts were credited to the
Participant's Account immediately before the withdrawal or distribution which
resulted in the forfeiture. For purposes of the preceding sentence, the value
of the amounts credited with respect to each such Plan Year shall equal the
value, at the time of withdrawal or distribution, of the amounts credited to the
Participant's Account, with respect to such Plan Year, which were withdrawn or
distributed.
Amounts credited from the restoral of forfeited amounts and
from the portion of the repaid amounts attributable to amounts credited to the
Participant's Account during the Plan Year of withdrawal or distribution and
each of the two preceding Plan Years shall be credited with respect to the Plan
Year in which repayment is made and the preceding two Plan Years. The amounts
credited with respect to the Plan Year in which repayment is made shall equal
the value, at the time of withdrawal or distribution, of the amounts credited
with respect to the Plan Year of withdrawal or distribution. The amounts
credited with respect to each of the two Plan Years preceding the Plan Year of
repayment shall equal the value, at the time of withdrawal or distribution, of
the amounts credited with respect to each of the two Plan Years, respectively,
preceding the Plan Year of withdrawal or distribution.
11.5 DIRECT ROLLOVERS. Effective January 1, 1993, any Participant or
beneficiary who is entitled to receive a distribution from the Plan in the form
of an eligible rollover distribution may elect to have part or all of such
distribution paid directly to an eligible retirement plan. Any election under
this Section 11.5 shall be made on forms furnished and in the manner prescribed
by the Committee. Notwithstanding the foregoing, the minimum amount which a
Participant or beneficiary may elect to have paid to an eligible retirement plan
is (a) $200.00, if the entire eligible rollover distribution is being paid to
the eligible retirement plan or (b) $500.00, if less
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than the entire eligible rollover distribution is being paid to the eligible
retirement plan. For purposes of this Section 11.5, "eligible rollover
distribution" means any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code; and the portion of
any distribution that is not includable in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to employer
securities). For purposes of this Section 11.5, "eligible retirement plan"
means an individual retirement account described in section 408(a) of the Code,
an individual retirement annuity described in section 408(b) of the Code, an
annuity plan described in section 403(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 the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement annuity.
SECTION 11A
LOANS
Subject to the provisions of this Section 11A, effective April 1, 1991, a
Participant who is an Employee of a Participating Company and whose Account
(exclusive of amounts attributable to basic allotments and Participating Company
contributions for the current Plan Year and the two preceding Plan Years and
exclusive of income earned on pre-tax allotments after December 31, 1988) has a
value of at least $2,000 may, with the consent of the Committee, borrow from his
Account.
11A.1 The minimum amount a Participant may borrow is $1,000. The
maximum amount a Participant may borrow is the lesser of: (a) 50% of the value
of the vested (nonforfeitable) portion of the Participant's Account (exclusive
of amounts attributable to basic allotments and Participating Company
contributions for the current Plan Year and the two preceding Plan Years and
exclusive of income earned on pre-tax allotments after December 31, 1988) or (b)
$50,000 reduced by the highest outstanding balance of loans from the Account
(and from any other qualified plan maintained by an Affiliated Employer) during
the one year period ending on the day before the date the loan is made.
11A.2 No Participant may have more than two loans outstanding at any
time. No Participant may borrow from his Account more than twice in any Plan
Year.
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11A.3 Each loan shall bear a reasonable rate of interest (as determined
by the Committee) and shall be secured by the loaned portion of the
Participant's Account. The minimum term of any loan shall be six months and the
maximum term of any loan shall be fifty-nine months. (For the purpose of this
Section 11A.3, the term of the loan will commence with the first day of the
month in which the loan proceeds are paid to the Participant.) Substantially
equal amortization of the loan (with payments not less frequently than monthly)
shall be required.
11A.4 In the case of any loan, amounts in the Account attributable to
pre-tax allotments shall be liquidated first. If such amounts are not
sufficient, additional amounts shall be liquidated in the order provided for
withdrawals in Section 11.3. Any amounts borrowed which are attributable to
allotments or rollover contributions shall be deemed to be made pro rata from
the amounts representing the various types of investments in which the
allotments or rollover contributions are invested on the basis of the values of
the respective amounts as of the end of the month in which the loan is approved.
11A.5 Loan principal and interest payments must be made through payroll
deductions, beginning with the first paycheck of the month following the month
in which the loan proceeds are paid to the Participant; provided that the
Participant may prepay the entire outstanding balance on a loan at any time
after six months. Loan principal and interest payments shall be credited to the
Participant's Account. Loan payments attributable to allotments shall be
invested accordingly to the Participant's investment direction in effect at the
time of payment. Loan payments attributable to Participating Company
contributions shall be invested in CBI Shares. The number of amounts credited
to the Participant's Account shall be based on the value of the amounts
representing each type of investment as of the end of the month in which the
loan payment is made.
11A.6 If the Participant ceases to be an Employee for any reason
(including death), the remaining balance on each outstanding loan shall become
immediately due and payable and, if not paid by the Participant, shall be
satisfied through a distribution from the Participant's Account under Section
11.4. If the Participant's pay is insufficient to cover the loan payments due
or if the Participant's payroll deductions for loan payments are reduced or
suspended for any reason, unless arrangements for manual payments (satisfactory
to the Committee) are made, the remaining balance on each outstanding loan shall
become immediately due and payable and shall be satisfied through a withdrawal
from the Participant's Account first under Section 11.3 and, second, under
Section 11.2. If a Participant with an outstanding loan becomes a participant
in a Related Plan but does not elect to have his Account transferred to the
Related Plan, the loan shall become immediately due and payable.
11A.7 The Committee, in its discretion, may establish such loan fees
and prescribe such additional terms and conditions for loans as it deems
necessary or appropriate.
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SECTION 11B
ALTERNATE PAYEES
The provisions of this Section 11B shall apply to any person who is
determined to be an alternate payee (within the meaning of section 414(p)(8) of
the Code) with respect to a Participant's Account. Unless the qualified
domestic relations order applicable to the Participant's Account otherwise
provides, the alternate payee shall have, with respect to the alternate payee's
interest in the Participant's Account: (a) the investment powers of a
Participant under Section 9, (b) the withdrawal rights of a Participant under
Section 11.2, except that the alternate payee shall not be required to establish
a Hardship; (c) the withdrawal rights of a Participant under Section 11.3; (d)
the voting rights of a Participant under Section 13.3; and (e) the right of a
Participant to designate a beneficiary under Section 18.
SECTION 12
APPLICATION OF FORFEITED PARTICIPATING COMPANY CONTRIBUTIONS
All amounts forfeited under the Plan by a Participant shall be applied as a
credit to reduce subsequent contributions of the Participating Companies under
Section 5, and shall be valued for such purpose as of the end of the month in
which the forfeiture occurred. In the event the Plan is terminated, any
forfeitures not applied prior thereto shall be credited ratably to the
Participants' Accounts in proportion to the amounts of the Participating Company
contributions made to such Accounts for the last month with respect to which
contributions were made.
SECTION 13
ADMINISTRATION BY TRUSTEE
13.1 GENERAL. All assets of the Plan shall be held in the Trust for the
exclusive benefit of the Participants and their beneficiaries. Except as to the
costs and expenses of the Plan and Trust not otherwise provided for and except
as otherwise provided herein, in no event shall it be possible for any of the
assets of the Plan to be used for, or diverted to purposes other than for the
exclusive benefit of the Participants and their beneficiaries. No person shall
have any interest in or right to any part of the assets of the Plan, except as
and to the extent provided in the Plan and the Trust.
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13.2 PURCHASE OF CBI COMMON SHARES. At the direction of CBI, the Trustee
shall purchase any CBI Shares required for the Plan, or cause such shares to be
purchased, in the open market or by private purchase, including purchase from
CBI. Any purchase from CBI shall be at the fair market value on the date of
purchase or at any more favorable price that may be made available to the
Trustee from time to time as a holder of CBI Shares.
13.3 VOTING OF CBI SHARES. Before each annual or special meeting of
shareholders of CBI there shall be sent to each Participant who has any amounts
representing CBI Shares a copy of the proxy solicitation materials for the
meeting and a form requesting instructions to the Trustee on how to vote the CBI
Shares represented by amounts credited to such Participant's Account. Upon
receipt of such instructions, the Trustee shall vote the CBI Shares as
instructed. The Trustee shall vote the CBI Shares for which it does not receive
voting instructions in the same proportions as it votes the CBI Shares for which
it does receive such instructions. All voting instructions shall be
confidential and shall not be disclosed to any Affiliated Employer.
13.4 TENDER OFFER. In the event of a Tender Offer, each Participant shall
have the right to determine whether the CBI Shares allocated to his Account (or
represented by amounts credited to his Account) shall be tendered.
13.4.1 The Trustee may not take any action in response to a Tender
Offer except as otherwise provided in this Section. For purposes of this
Section 13.4, each Participant is a named fiduciary as that term is used in
ERISA with respect to the CBI Shares allocated to his Account or represented by
amounts credited to his Account.
13.4.2 Subject to the provisions of this Section 13.4, each
Participant may direct the Trustee to sell, offer to sell, exchange or otherwise
dispose of the CBI Shares allocated to his Account (or represented by amounts
credited to his Account) in accordance with the terms and conditions of the
Tender Offer. Such direction shall be confidential and shall not be disclosed
to any Affiliated Employer. Such direction shall be in such form and shall be
filed in such manner and at such time as the Trustee may prescribe. The Trustee
shall sell, offer to sell, exchange or otherwise dispose of the CBI Shares
allocated to (or represented by amounts credited to) the Participant's Account
with respect to which it has received timely and valid directions under this
Section 13.4.
13.4.3 To the extent to which Participants do not issue timely or
valid directions to the Trustee to sell, offer to sell, exchange or otherwise
dispose of the CBI Shares allocated to their Accounts, such individuals shall be
deemed to have directed the Trustee that such shares remain invested in CBI
Shares subject to all provisions of the Plan.
13.4.4 CBI Shares which, following the Trustee's tender thereof,
have not been accepted by the party making such a Tender Offer and are returned
to the Trustee shall be
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credited to the Accounts of Participants for whom such shares were tendered in
proportion to the shares that were tendered.
13.4.5 For purposes of the Plan, "Tender Offer" means a tender
offer, exchange offer or other offer to purchase one or more percent of the then
outstanding CBI Shares by any one or more persons, corporations or other
entities other than an Affiliated Employer or an employee benefit plan of an
Affiliated Employer.
13.5 AUDIT. CBI shall select a firm of independent certified public
accountants to examine and report on the financial statements of the Plan.
SECTION 14
ELECTION TO SUSPEND ALLOTMENTS
A Participant, in accordance with such rules as may be prescribed by the
Committee, may voluntarily suspend the making of allotments effective with the
Participant's first Covered Compensation paid in the following month. A
Participant may terminate such a suspension of allotments in accordance with
such rules as may be prescribed by the Committee.
SECTION 15
LEAVE OF ABSENCE, LAYOFF AND ABSENCE ON DISABILITY
If a Participant is granted a leave of absence by a Participating Company,
there shall be no allotments during the period of the leave, and the
Participant's allotments shall be deemed to be suspended during such period.
If a Participant is laid off, there shall be no allotments during the
period of layoff and the Participant's allotments shall be deemed to be
suspended during such period. Prior to 1993, if at the end of twelve months the
Participant has not returned as a Covered Employee, the Participant's employment
shall be deemed to have terminated at such time for distributions purposes.
After 1992, any layoff shall be deemed to terminate the Participant's employment
for distribution purposes.
If a Participant is absent on account of disability and is receiving
disability benefits under a Participating Company's disability benefit plan,
allotments will be made from benefits (to the extent that such benefits are
taxable for Federal income tax purposes), and whenever allotments are referred
to in the Plan the reference shall include allotments from such benefits. A
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Participant who is receiving disability benefits may at any time elect to
suspend allotments from such benefits in accordance with such rules as may be
prescribed by the Committee. In such event allotments from benefits will be
suspended for the remaining period the Participant is on disability benefits;
provided, however, that at the end of any month during such period allotments
from disability benefits may be resumed in accordance with such rules as may be
prescribed by the Committee. If immediately following the end of the period
during which the Participant is on disability benefits such Participant is
neither an Employee in active service nor on leave of absence, the Participant's
employment shall be deemed to have been terminated at such time for the purpose
of distribution under the Plan. Such distribution will involve no forfeiture by
the Participant.
SECTION 16
CEASING TO BE ELIGIBLE; INSUFFICIENT COMPENSATION; TRANSFERS
The making of allotments from the Covered Compensation of a Participant
shall be suspended while the Participant is an Employee (a) if the Participant
ceases to be a Covered Employee or (b) if the Covered Compensation is
insufficient (after all deductions required by law and all other deductions
authorized by the Participant) to permit the making of the full amount of such
allotments.
If a Participant in this Plan becomes a participant in a Related Plan, the
Participant may elect to have the amounts in the Participant's Account in this
Plan transferred to the Participant's account in the Related Plan. Thereafter,
the amounts transferred to the Related Plan shall be governed entirely by the
terms of the Related Plan. If the amounts in a Participant's Account in this
Plan are transferred to the Related Plan, in accordance with the provisions of
this Section 16, the Trustee shall transfer such amounts in cash to the trustee
of the Related Plan as soon as practicable after such value has been determined.
Effective April 1, 1991, if a Participant in this Plan becomes a Participant in
the Retirement Savings Plan, the amounts in his Account in this Plan shall
automatically be transferred to his account in the Retirement Savings Plan.
Effective April 1, 1994, if a Participant in this Plan becomes a participant in
a Related Plan, his Account under this Plan shall thereupon become fully vested
and nonforfeitable.
If a Participant becomes a Participant in the CBIS 401(k) Retirement Plan
(the "CBIS Plan") on January 1, 1992, the value of the amount in the
Participant's Account in this Plan shall be transferred to the CBIS Plan. The
amounts transferred to the CBIS Plan shall be governed entirely by the terms of
the CBIS Plan. If the amount in a Participant's Account in this Plan is
transferred to the CBIS Plan, in accordance with the provisions of this
Section 16, the Trustee shall transfer such amount in cash or in kind to the
trustee of the CBIS Plan as soon as practicable after such amount has been
determined.
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SECTION 17
EFFECT OF SUSPENSION OF ALLOTMENTS
Whenever the making of basic allotments is suspended, related Participating
Company contributions shall also be suspended. If an event causing suspension
occurs during a period when a suspension is already in effect, the periods of
suspension shall run concurrently. When all suspensions are ended, the making
of allotments shall be resumed beginning with the Participant's first Covered
Compensation received after all suspensions are ended, and Participating Company
contributions also shall be resumed. There shall be no make-up of allotments or
of Participating Company contributions with respect to a period of suspension.
SECTION 18
DESIGNATION OF BENEFICIARIES
A Participant may designate a beneficiary or beneficiaries to receive all
or part of the amount in the Participant's Account in case of death. A
designation of beneficiary may be replaced by a new designation or may be
revoked by the Participant at any time. A designation or revocation shall be in
accordance with such rules as may be prescribed by the Committee.
In case of the death of a Participant, the amount in the Participant's
Account with respect to which a designation of beneficiary has been made (to the
extent it is valid and enforceable under applicable law) shall be distributed in
a single payment as soon as practicable after death to the Participant's
designated beneficiary or beneficiaries. The amount in the Participant's
Account distributable upon death and not covered by such a designation shall be
distributed to the Participant's estate. If there shall be any question as to
the legal right of any beneficiary to receive a distribution under the Plan the
amount in question may be paid to the estate of the Participant, in which event
the Trustee, CBI and the Participating Companies shall have no further liability
to anyone with respect to such amount. The beneficiary of a deceased
Participant shall have the right to receive amounts representing investment in
CBI Shares either in such shares or in cash, at the beneficiary's election, as
provided in Section 11.1.1.
Notwithstanding the foregoing provisions of this Section 18, if a
Participant dies leaving a surviving spouse, the Participant's surviving spouse
shall be deemed to be the Participant's designated beneficiary for purposes of
the Plan unless (a) the Participant has designated another person or entity as
the Participant's beneficiary and the surviving spouse has consented to such
designation in a written consent which acknowledges the effect of such
designation and is
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witnessed by a Plan representative or a notary public or (b) the Participant's
spouse cannot be located.
SECTION 19
BENEFITS NOT ASSIGNABLE
Except as otherwise required by law, benefits provided under the Plan may
not be assigned or alienated.
SECTION 20
EXPENSES
Expenses of administering the Plan, including the fees and expenses of the
Trustee and Investment Managers, shall be borne by the respective Participating
Companies in such proportions as shall be agreed upon based on the inclusion in
the Plan of their respective Employees; provided that if the Committee so
directs, such expenses and fees shall be charged appropriately against the
Participants' Accounts, as the Committee may direct. Brokerage fees, transfer
taxes and other expenses incident to the purchase or sale of securities by the
Trustee shall be deemed to be part of the cost of such securities, or deducted
in computing the proceeds therefrom, as the case may be. Transfer taxes in
connection with distributions of CBI Shares to Participants or their
beneficiaries shall be borne by the Participating Companies; provided that if
the Committee so directs, such taxes shall be charged appropriately against the
Participants' Accounts then distributed, as the Committee may direct. Taxes, if
any, on any assets held or income received by the Trustee shall be charged
appropriately against the Participants' Accounts, as the Committee shall
determine.
SECTION 21
MODIFICATION OR MERGER OF PLAN
CBI may modify the Plan, provided that no part of the corpus or income
attributable to any funds received by the Trustee for the purposes of the Plan
shall be used for, or diverted to, purposes other than for the exclusive benefit
of Participants or their beneficiaries. CBI may delegate authority to the
Committee with respect to modification of the Plan. Any such modification shall
be effective at such date as CBI or the Committee may determine, except that
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no such modification, other than one of a minor nature, may apply to any period
prior to the announcement of the modification by CBI or the Committee unless, in
the opinion of CBI or the Committee, such modification is necessary or advisable
in order to comply with the provisions of the Code (including any regulations or
rulings thereunder) relating to the qualification of similar plans or relating
to the exemption of a trust established pursuant thereto or would not adversely
affect the rights of Participants in respect of the Plan. Notice of any
modification of the Plan shall be given promptly to the Trustee and to all
Participating Companies and, except for changes of a minor nature which do not
adversely affect their interests, shall also be given to all Participants. A
modification may affect current Participants as well as future Participants. No
Plan amendment shall eliminate an optional form of distribution. Effective
December 13, 1993, the Committee, with the approval of the President and Chief
Executive Officer of CBI, may adopt such amendments to the Plan as it deems
necessary and desirable and which (a) are required by applicable Federal law or
(b) which do not have a material negative cost impact.
There shall be no merger or consolidation of the Plan with, or transfer of
assets or liabilities of the Plan to, any other plan unless each Participant of
the Plan would (if the Plan then terminated) receive a benefit immediately after
the merger, consolidation or transfer which is equal to or greater than the
benefit the Participant would have been entitled to receive immediately before
the merger, consolidation or transfer (if the Plan had then terminated).
No amendment may be adopted changing any vesting schedule unless the
nonforfeitable percentage of each Participant's Account (determined as of the
later of the date such amendment is adopted or the date such amendment becomes
effective) is equal to or greater than such nonforfeitable percentage computed
without regard to such amendment. If an amendment is adopted which changes any
vesting schedule under the Plan, each Participant who has been credited with
three years of service may elect to have his nonforfeitable percentage computed
under the Plan without regard to such amendment. The period during which such
election may be made shall begin on the date the amendment is adopted and shall
end on the latest of: (a) the 60th day after the day the amendment is adopted;
(b) the 60th day after the day the amendment becomes effective; or (c) the 60th
day after the day the Participant is issued written notice of the amendment. No
amendment shall decrease a Participant's Account balance.
SECTION 22
TERMINATION OF ALLOTMENTS AND CONTRIBUTIONS UNDER PLAN;
LIQUIDATION OF PLAN
CBI, by action of its Board of Directors, may at any time terminate the
making of allotments and Participating Company contributions. If at any time
the current profits and accumulated earned surplus of CBI and all of the
Affiliated Employers which are joined (or
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could be joined) with it in a consolidated Federal income tax return shall be
less than twice the Participating Company contributions under the Plan and the
Retirement Savings Plan since the preceding January 1, the making of allotments
and Participating Company contributions shall be terminated. If (a) a
Participating Company ceases to be an Affiliated Employer or (b) at any time the
current profits and accumulated earned surplus of a Participating Company which
could not be joined with CBI in a consolidated Federal income tax return shall
be less than twice the Participating Company contributions of such Participating
Company under the Plan and the Retirement Savings Plan since the preceding
January 1, the making of allotments with respect to all Participants employed by
such Participating Company and of contributions by such Participating Company
shall be terminated. No termination shall have the effect of diverting the
amounts held by the Trustee to purposes other than as provided in the Plan.
Prior to a termination of the making of allotments and Participating
Company contributions with respect to any Participating Company, each
Participant employed by such Participating Company shall be given at least
thirty days' notice thereof in writing, which notice shall advise the
Participant that, from the date of the notice, except as provided below, the
Participant may, by giving written notice at least one day prior to such
termination, elect either (a) to have all amounts credited to the Participant's
Account held by the Trustee until termination of employment (or, if earlier,
until March 31 of the Plan Year following the Plan Year in which the Participant
attains age 70-1/2), subject to the withdrawal rights specified in Section 11,
(b) to have all the amounts (other than amounts attributable to pre-tax
allotments) distributed in a single distribution, as soon as practicable after
the last date for making such an election or (c) to receive payment with respect
to the amounts (other than amounts attributable to pre-tax allotments) over a
period of up to five years in annual installments, consisting of an
approximately equal number of amounts each year, payable as soon as practicable
after the last date for making such an election and annually thereafter until
payment of all such installments is made.
Such an election shall be made on a form to be provided for the purpose and
shall be signed by the Participant and delivered to the Payroll Office.
If a Participant elects the alternative described in clause (c) above,
payment of each installment shall be made in the manner and on the basis of
valuation provided for in Section 11.1. If such a Participant dies, all amounts
remaining in the Account at death shall be distributed as soon as practicable
pursuant to Section 18. If the employment of such a Participant should be
terminated for any reason other than death, all the amounts remaining in the
Account shall be distributed in a single distribution as of the end of the month
coinciding with or next following the date as of which employment is terminated.
Upon a termination of the making of allotments and of Participating Company
contributions with respect to any Participating Company, the Plan shall
nevertheless remain in
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effect in other respects, except that no Employee of such Participating Company
shall thereafter forfeit any amounts in the Participant's Account.
Notwithstanding the foregoing, following such a termination of the making
of allotments and of Participating Company contributions with respect to a
Participating Company, such Participating Company may, at any time after such
termination, determine that the Plan and related trusts shall be liquidated as
to such Participating Company, in which event distribution shall be made to each
of its Participants (or the person or persons entitled thereto) of all amounts
(other than amounts attributable to pre-tax allotments).
In the event of the partial termination of the Plan, the Accounts of each
Participant affected by such partial termination shall become fully vested and
nonforfeitable.
SECTION 23
NOTICES, REPORTS, ETC.
Notices, reports and statements to be given, made or delivered to a
Participant shall be deemed duly given, made or delivered when addressed to the
Participant and delivered by ordinary mail or by Participating Company mail to
the Participant's last known business or home address.
SECTION 24
ADMINISTRATION AND INTERPRETATION OF PLAN
CBI shall be the Plan Administrator and the Sponsor of the Plan as those
terms are defined in ERISA.
The Committee shall have such powers as may be necessary to enable it to
administer the Plan, except for powers herein granted or provided to be granted
to others. CBI shall adopt rules for operation of the Committee. The Committee
shall have authority to adopt such further rules, not inconsistent with those
adopted by CBI, as the Committee may find appropriate.
Claims will be processed in accordance with ERISA and regulations
thereunder and the following procedures:
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Claims by an employee or anyone claiming through an employee shall be
presented to the Committee for decision. Adequate notice shall be provided in
writing to any person whose claim has been denied by the Committee, setting
forth the specific reasons for such denial.
The Employees' Benefit Claim Review Committee (the "Claim Review
Committee"), shall have authority to review claims which have been denied by the
Committee. Any person whose claim for benefits has been denied may, within 60
days after receipt of notice of denial, submit a written request for review of
the decision denying the claim. In such case, the Claim Review Committee shall
make a full and fair review of such decision within 60 days after receipt of a
request for review and notify the claimant in writing of the review decision,
specifying the reasons for such decision.
The Committee, or the Claim Review Committee when it reviews a denial of a
claim, shall determine conclusively for all parties all questions arising in the
administration of the Plan. CBI, the Committee and the Claim Review Committee
may each employ persons to render advice with regard to any of its
responsibilities under the Plan, and may each delegate authority with respect to
certain matters to officers or employees of any Affiliated Employer.
CBI, the Committee and the Claim Review Committee are each a named
fiduciary as that term is used in ERISA with respect to the particular duties
and responsibilities herein provided to be allocated to each of them,
respectively. Any person or group of persons may serve in more than one
fiduciary capacity with respect to the Plan (including service both as a trustee
and as an administrator).
The Secretary of the Committee is designated as agent for service of legal
process with respect to any claims arising under the Plan.
The Plan is governed by the laws of the State of Ohio and applicable
Federal law.
SECTION 25
TOP-HEAVY PROVISIONS
25.1 GENERAL. If the Plan is or becomes Top-Heavy in any Plan Year
beginning after December 31, 1983, the provisions of this Section 25 will
supersede any conflicting provisions in the Plan.
25.2 DEFINITIONS. For purposes of this Section 25, the following terms
shall have the meanings hereinafter set forth unless the context otherwise
requires:
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25.2.1 "Key Employee" means any Employee or former Employee (and
the beneficiaries of any such Employee) who at any time during the Determination
Period was an officer of an Affiliated Employer if such individual's annual
compensation exceeds 50% of the dollar limitation under section 415(b)(1)(A) of
the Code, an owner (or considered an owner under section 318 of the Code) of one
of the ten largest interests in an Affiliated Employer if such individual's
compensation exceeds 100% of the dollar limitation under section 415(c)(1)(A) of
the Code, a 5% owner of an Affiliated Employer or a 1% owner of an Affiliated
Employer who has an annual compensation of more than $150,000. The
"Determination Period" is the Plan Year containing the Determination Date and
the four preceding Plan Years. The determination of who is a Key Employee will
be made in accordance with section 416(i)(1) of the Code and the regulations
thereunder. For purposes of this Section 25.2.1, compensation from all
Affiliated Employers shall be aggregated.
25.2.2 For any Plan Year beginning after December 31, 1983, this
Plan is "Top-Heavy" if any of the following conditions exists:
(a) If the Top-Heavy Ratio for this Plan exceeds 60% and
this Plan is not part of any Required Aggregation Group or Permissive
Aggregation Group of plans,
(b) If this Plan is a part of a Required Aggregation Group
of plans (but is not part of a Permissive Aggregation Group) and the Top-Heavy
Ratio for the Required Aggregation Group of plans exceeds 60% or
(c) If this Plan is a part of a Required Aggregation Group
and part of a Permissive Aggregation Group of plans and the Top-Heavy Ratio for
the Permissive Aggregation Group exceeds 60%.
25.2.3 If an Affiliated Employer maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and no
Affiliated Employer has maintained any defined benefit plan which during the
5-year period ending on the Determination Date(s) has or has had accrued
benefits, the Top-Heavy Ratio for this Plan alone or for the Required or
Permissive Aggregation Group as appropriate is a fraction, the numerator of
which is the sum of the account balances of all Key Employees as of the
Determination Date(s) (including any part of any account balances distributed in
the 5-year period ending on the Determination Date(s)), and the denominator of
which is the sum of all account balances (including any part of any account
balance distributed in the 5-year period ending on the Determination Date(s)),
determined in accordance with section 416 of the Code and the regulations
thereunder. Both the numerator and the denominator of the Top-Heavy Ratio are
adjusted to reflect any contributions not actually made as of the Determination
Date, but which are required to be taken into account on that date under section
416 of the Code and the regulations thereunder.
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25.2.4 If an Affiliated Employer maintains one or more defined
contribution plans (including any Simplified Employee Pension Plan) and an
Affiliated Employer maintains or has maintained one or more defined benefit
plans which during the 5-year period ending on the Determination Date(s) has or
has had any accrued benefits, the Top-Heavy Ratio for any Required or Permissive
Aggregation Group as appropriate is a fraction, the numerator of which is the
sum of account balances under the aggregate defined contribution plan or plans
for all Key Employees, determined in accordance with Section 25.2.3, and the
present value of accrued benefits under the aggregated defined benefit plan or
plans for all Key Employees as of the Determination Date(s), and the denominator
of which is the sum of the account balances under the aggregated defined
contribution plan or plans for all participants, determined in accordance with
Section 25.2.3, and the present value of accrued benefits under the aggregated
defined benefit plan or plans for all participants as of the Determination
Date(s), all determined in accordance with section 416 of the Code and the
regulations thereunder. The accrued benefits under a defined benefit plan in
both the numerator and denominator of the Top-Heavy Ratio are adjusted for any
distribution of an accrued benefit made in the 5-year period ending on the
Determination Date.
25.2.5 For purposes of Sections 25.2.3 and 25.2.4, the value of
account balances and the present value of accrued benefits will be determined as
of the most recent Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in section 416 of
the Code and the regulations thereunder for the first and second Plan Years of a
defined benefit plan. The account balances and accrued benefits of a
participant (1) who is not a Key Employee but who was a Key Employee in a prior
year, or (2) who has not performed any services for an Affiliated Employer at
any time during the 5-year period ending on the Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to which
distributions, rollovers and transfers are taken into account will be made in
accordance with Section 416 of the Code and the regulations thereunder.
Deductible employee contributions will not be taken into account for purposes of
computing the Top-Heavy Ratio. When aggregating plans, the value of account
balances and accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year. Distributions made
from a terminated plan during the 5-year period ending on the Determination Date
shall be taken into account for purposes of Sections 25.2.3 and 25.2.4 if the
terminated plan would have been required to be included in an Aggregation Group
if it had not been terminated.
25.2.6 "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or plans of an Affiliated
Employer which, when considered as a group with the Required Aggregation Group,
would continue to satisfy the requirements of sections 401(a)(4) and 410 of the
Code.
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25.2.7 "Required Aggregation Group" means (a) each qualified plan
of an Affiliated Employer in which at least one Key Employee participates, and
(b) any other qualified plan of an Affiliated Employer which enables a plan
described in (c) to meet the requirements of sections 401(a)(4) or 410 of the
Code.
25.2.8 "Determination Date" means (a) for any Plan Year subsequent
to the first Plan Year, the last day of the preceding Plan Year and (b) for the
first Plan Year of the Plan, the last day of that year.
25.2.9 "Valuation Date" means the last business day of each Plan
Year.
25.2.10 For purposes of establishing "Present Value" to compute the
Top-Heavy Ratio, any benefit shall be discounted only for mortality and interest
based on the following: (a) interest rate, 6%, (b) mortality table, the Unisex
Pension Table for 1984.
25.2.11 For purposes of computing the Top-Heavy Ratio, the "Valuation
Date" shall be the same date used for computing plan costs for minimum funding.
25.3 MINIMUM ALLOCATION. Notwithstanding any other provision in this Plan
except Sections 25.3.2 and 25.3.3, for any Plan Year in which this Plan is
Top-Heavy, the Participating Company contributions (other than 401(k)
contributions) and forfeitures allocated on behalf of any Participant who is not
a Key Employee shall not be less than the lesser of three percent of such
Participant's compensation or in the case where the Participating Company has no
defined benefit plan which designates this Plan to satisfy section 401 of the
Code, the largest percentage of Participating Company contributions (including
401(k) contributions) and forfeitures, as a percentage of the first $200,000 (or
such greater amount as may be permitted under section 401(a)(17) of the Code) of
the Key Employee's compensation, allocated on behalf of any Key Employee for
that Year. The minimum allocation is determined without regard to any Social
Security contribution. This minimum allocation shall be made even though, under
other Plan provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation for the year
because of (i) the Participant's failure to complete 1,000 hours of service (or
any equivalent provided in the Plan), or (ii) the Participant's failure to make
mandatory employee contributions to the Plan or (iii) compensation less than a
stated amount.
25.3.1 For purposes of computing the minimum allocation,
"compensation" means Compensation within the meaning of that term as used in
Section 8.6.
25.3.2 For purposes of computing the minimum allocation, Affiliated
Employer contributions (other than 401(k) contributions) and forfeitures
allocated under any other defined contribution plan of an Affiliated Employer,
in which any Key Employee participates or which
37
<PAGE>
enables another defined contribution plan to meet the requirements of section
401(a)(4) or 410 of the Code, shall be considered contributions and forfeitures
allocated under this Plan. In the case of any non-Key Employee participant who
is also a participant in any defined benefit plan of a Participating Company,
the foregoing provisions of this Section 25.3 shall be applied, but with 7-1/2%
substituted for 3%.
25.3.3 The foregoing provisions of this Section 25.3 shall not
apply to any Employee who was not employed by an Affiliated Employer on the last
day of the Plan Year.
25.3.4 The minimum allocation required (to the extent required to
be nonforfeitable under section 416(b)) may not be suspended or forfeited under
sections 411(a)(3)(B) or 411(a)(3)(D) of the Code.
25.4 MINIMUM VESTING. For any Plan Year in which this Plan is Top-Heavy,
the nonforfeitable interest of each Participant in his Participating
Company-derived accrued benefits shall be determined on the basis of the
following: 100% vesting after 3 years of service. The minimum vesting schedule
applies to all benefits within the meaning of section 411(a)(7) of the Code
except those attributable to employee contributions, including benefits accrued
before the Plan became Top-Heavy. Further, no reduction in vested benefits may
occur in the event the Plan's status as Top-Heavy changes for any Plan Year.
However, this Section does not apply to the account balances of any employee who
does not have an hour of service after the Plan has initially become Top-Heavy
and such employee's account balances attributable to contributions of the
Participating Companies will be determined without regard to this section. If
the vesting schedule under the Plan shifts in or out of the above schedule for
any Plan Year because of a change in the Plan's Top-Heavy status, such shift is
an amendment to the vesting schedule and the election in section 411(a)(10) of
the Code applies.
IN WITNESS WHEREOF, Cincinnati Bell Inc. has caused its name to be
subscribed on the 22nd day of October, 1997, but effective for all purposes as
of January 1, 1997.
CINCINNATI BELL INC.
By /s/ John T. LaMacchia
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