<PAGE> 1
As filed with the Securities and Exchange Commission on June 8,1998
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
---------------
DAIRY MART CONVENIENCE STORES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Delaware 04-249-7894
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
300 Executive Parkway West, Hudson, Ohio 44236
(Address of Principal Executive Offices) (Zip Code)
---------------
</TABLE>
DAIRY MART CONVENIENCE STORES, INC.
401(K) SAVINGS AND PROFIT SHARING PLAN
(Full title of the plan)
-----------------------
Gregory G. Landry
Chief Financial Officer
Dairy Mart Convenience Stores, Inc.
300 Executive Parkway West
Hudson, Ohio 44236
(Name and address of agent for service)
(330) 342-6600
(Telephone number, including area code, of agent for service)
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED REGISTERED* OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE** PRICE**
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 300,000 3 15/16 $1,181,250 $349
Shares, $.01 par value
====================================================================================================================================
</TABLE>
*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> 2
**Estimated in accordance with Rule 457 solely for the purpose of determining
the registration fee, based on the average of the high and low sale prices on
June 5, 1998, of the registrant's Class A Common Shares as reported on the
American Stock Exchange.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Dairy Mart Convenience Stores, Inc. (sometimes hereinafter referred to
as the "Company" or the "registrant") and the Dairy Mart Convenience Stores,
Inc. 401(k) Savings and Profit Sharing Plan (the "Plan") incorporate herein by
reference (i) the registrant's Annual Report on Form 10-K for the year ended
January 31, 1998, (ii) all other reports filed by the registrant and the Plan
pursuant to Section 13(a) or Section 15(d) of the Exchange Act since the Annual
Report on Form 10-K referenced above; and (iii) the description of the Company's
Class A Common Shares contained in the Company's Registration Statement on Form
8-A filed under the Exchange Act.
All documents subsequently filed by the registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all Class A Common Shares offered
under the Plan have been sold or which deregisters all such Class A Common
Shares then remaining unsold, shall be deemed to be incorporated by reference in
this registration statement and to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Shares offered hereby has been passed upon
for the Company by Baker & Hostetler LLP, Cleveland, Ohio. Albert T. Adams, a
director of the Company, is a partner of Baker & Hostetler LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Delaware Corporation Law (the "Code") authorizes Delaware corporations
to indemnify officers and directors from liability if the officer or director
acted in good faith and in a manner reasonably believed by the officer or
director to be in or not opposed to the best interests of the corporation, and
with respect to any criminal actions, if the officer or director had no reason
to believe his action was unlawful. In the case of an action by or on behalf of
a corporation, indemnification may not be made if (i) the person seeking
indemnification is adjudged liable for negligence or misconduct, unless the
court in which such action was brought determines such person is fairly and
reasonably entitled to indemnification, or (ii) if liability asserted against
such person concerns certain unlawful distributions. The indemnification
provisions of the Code require indemnification if a director or officer has been
successful on the merits or otherwise in defense of any action, suit or
proceeding that he was a party to by reason of the fact that he is or was a
director or officer of the corporation.
The Company's Code of Regulations provides for the indemnification of
the Company's directors and officers and, as authorized by the Board of
Directors, for the advancement of expenses incurred by an individual in
connection with the defense of any action, suit or proceeding that such
individual was a party to by reason of the fact that the individual is or was a
director or officer of the Company or its subsidiaries upon the receipt of an
undertaking to repay such amount unless it is ultimately determined that the
director of officer is entitled to indemnification.
The Company maintains a directors and officers insurance policy which
provides for reimbursement to the Directors and officers of the Company for
legal fees and expenses resulting from the defense of any judicial or
administrative proceeding initiated against the Director or officer as a result
of his conduct or actions in his capacity as a Director or officer of the
Company, and provides
1
<PAGE> 4
reimbursement to the Company for costs it has incurred as a result of
indemnifying its directors and officers.
The Company has entered into indemnification agreements with its
directors which provide for indemnification to the fullest extent allowed under
Delaware law and the maintenance of the Company's directors and officers
insurance policy or its equivalent.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- -------------- ----------------------
<S> <C>
4(a) Amended and Restated Articles of Incorporation of the Company(1)
4(b) Amended and Restated Bylaws of the Company(2)
4(c) Dairy Mart Convenience Stores, Inc. 401(k) Savings and Profit Sharing
Plan
5 Opinion of Baker & Hostetler (The registrant hereby undertakes to submit the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS") in
a timely manner and will make all changes required by the IRS in order to
qualify the Plan.)
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Baker & Hostetler (included in Opinion filed as Exhibit 5
hereto)
24 Powers of attorney (included at page II-4)
</TABLE>
- -----------------
(1) Included as an exhibit to the Company's Form 10-K for the year ended
January 31, 1998 and incorporated herein by reference.
(2) Included as an exhibit to the Company's Form 10-Q for the quarter ended
November 2, 1996 and incorporated herein by reference
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement: (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933 (the "Securities Act"); (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
2
<PAGE> 5
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
3
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Hudson, State of Ohio, on the 8th day
of June, 1998.
DAIRY MART CONVENIENCE STORES, INC.
By: /s/Robert B. Stein
---------------------------------------
Robert B. Stein, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Robert B. Stein, and
Gregory G. Landry, or any one of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all pre- or
post-effective amendments to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities indicated on the 8th day of June, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/s/Robert B. Stein President, Chief Executive Officer and Director
- ------------------------------------------
Robert B. Stein, Jr.
/s/Gregory G. Landry Executive Vice President, Chief Financial Officer and
- ------------------------------------------
Gregory G. Landry Director
/s/Frank W. Barrett Director
- ------------------------------------------
Frank W. Barrett
/s/J. Kermit Birchfield, Jr. Director
- ------------------------------------------
J. Kermit Birchfield, Jr.
/s/John W. Everets Director
- ------------------------------------------
John W. Everets
</TABLE>
4
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE TITLE
- --------- -----
<S> <C>
/s/Albert T. Adams Director
- ------------------------------------------
Albert T. Adams
/s/Thomas W. Janes Director
- ------------------------------------------
Thomas W. Janes
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act
of 1933, the trustees (or other persons who administer the employee benefit
plan) have duly caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Hudson, State of
Ohio, on the June 8, 1998.
Dairy Mart Convenience Stores, Inc., as
Administrator of the Dairy Mart Convenience
Stores, Inc. 401(k) Savings and Profit Sharing Plan
By: /s/Robert B. Stein
------------------------------------------------
Robert B. Stein, Chairman of the Board,
President and Chief Executive Officer
5
<PAGE> 8
EXHIBIT INDEX
--------------
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------ -------------------
<S> <C>
4(a) Amended and Restated Articles of Incorporation of the Company(1)
4(b) Amended and Restated Bylaws of the Company(2)
4(c) Dairy Mart Convenience Stores, Inc. 401(k) Savings and Profit Sharing Plan
5 Opinion of Baker & Hostetler (The registrant hereby undertakes to submit the
Plan and any amendment thereto to the Internal Revenue Service (the "IRS")
in a timely manner and will make all changes required by the IRS in order to
qualify the Plan.)
23(a) Consent of Arthur Andersen LLP
23(b) Consent of Baker & Hostetler (included in Opinion filed as Exhibit 5 hereto)
24(a) Powers of attorney (included at page II-4)
</TABLE>
- ---------------------
(1) Included as an exhibit to the Company's Form 10-K for the year ended
January 31, 1998 and incorporated herein by reference.
(2) Included as an exhibit to the Company's Form 10-Q for the quarter ended
November 2, 1996 and incorporated herein by reference.
<PAGE> 1
EXHIBIT 4(A)
------------
Amended and Restated Articles of Incorporation of the Company (included as an
exhibit to the Company's Form 10-K for the year ended January 31, 1998, and
incorporated herein by reference)
<PAGE> 1
EXHIBIT 4(B)
------------
Amended and Restated Bylaws of the Company (included as an Exhibit to the
Company's Form 10-Q for the quarter ended November 2, 1996 and incorporated
herein by reference)
<PAGE> 1
Exhibit 4(c)
DAIRY MART CONVENIENCE STORES, INC.
401(K) SAVINGS AND PROFIT SHARING PLAN
(AS AMENDED AND RESTATED EFFECTIVE JULY 1, 1998)
<PAGE> 2
INDEX
-----
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
Premises 1
ARTICLE I: Definitions I-1
ARTICLE II: Participation II-1
ARTICLE III: Establishment of Participants' Accounts III-1
ARTICLE IV: Contributions IV-1
ARTICLE V: Allocation of Contributions V-1
ARTICLE VI: Limitations on Contributions and Allocations VI-1
ARTICLE VII: Investments VII-1
ARTICLE VIII: Benefits VIII-1
ARTICLE IX: General Provisions Regarding Benefits
and Their Distribution IX-1
ARTICLE X: Withdrawals During Employment X-1
ARTICLE XI: Loans XI-1
ARTICLE XII: Administration of the Plan XII-1
ARTICLE XIII: Establishment of Trust XIII-1
ARTICLE XIV: Amendment XIV-1
ARTICLE XV: Termination XV-1
ARTICLE XVI: Miscellaneous Provisions XVI-1
ARTICLE XVII: Top-Heavy Provisions XVII-1
</TABLE>
<PAGE> 3
DAIRY MART CONVENIENCE STORES, INC.
401(K) SAVINGS AND PROFIT SHARING PLAN
(AS AMENDED AND RESTATED EFFECTIVE JULY 1, 1998)
Dairy Mart Convenience Stores, Inc., a corporation organized
and existing under and by virtue of the laws of the State of Delaware
(hereinafter called the "Company"), hereby adopts and publishes this instrument
for the purpose of amending and restating, in its entirety, effective July 1,
1998 (except as otherwise provided herein), the provisions of its cash or
deferred profit sharing plan presently known as the "Dairy Mart Convenience
Stores, Inc. Cash or Deferred Profit Sharing Plan and Trust."
<PAGE> 4
ARTICLE I
DEFINITIONS
-----------
(1) "ACCRUED BENEFIT" is the amount credited to a
Participant's Account under Section (1) of this Article as of the coincident or
immediately preceding Valuation Date, reduced by any distributions from said
Account subsequent to such Valuation Date.
(2) "ADVISORY COMMITTEE" or "COMMITTEE" is the Committee
provided for under Article XII.
(3) "AGREEMENT" is this Agreement, which shall be known as the
Dairy Mart Convenience Stores, Inc. 401(k) Savings and Profit Sharing Plan
(formerly known as the Dairy Mart Convenience Stores, Inc. Cash or Deferred
Profit Sharing Plan), which in all respects shall replace and supersede the
Prior Plan and Trust.
(4) "ANNIVERSARY DATE" is December 31 of any Plan Year;
provided, however, that if the Plan Year ever should be changed so as to end on
a date other than December 31, the Anniversary Date thereafter shall be the last
day of such Plan Year.
(5) "BENEFICIARY" is any person who becomes entitled to
receive benefits under the Plan by reason of the death of a Participant, as
determined in accordance with Article VIII, Section (2) hereof.
(6) "BOARD OF DIRECTORS" or "BOARD" is the Board of Directors
of the Company.
(7) "CODE" is the Internal Revenue Code of 1986, as it may be
amended and in effect from time to time.
(8) "COMPANY" is Dairy Mart Convenience Stores, Inc.,
including any and all unincorporated divisions thereof which may presently or
hereafter exist. "PARTICIPATING COMPANY" means Dairy Mart Convenience Stores,
Inc, Dairy Mart, Inc. or The Lawson Company. "PARTICIPATING COMPANIES" means
Dairy Mart Convenience Stores, Inc., Dairy Mart, Inc. and The Lawson Company. In
the event of the merger, consolidation or sale of all or substantially all of
the assets of a Participating Company and the adoption of this Plan and Trust by
the successor pursuant to Article XV, Section (3), all references to such former
Participating Company shall thereafter refer to such successor. In the event the
Plan and Trust should be maintained by only one employer, all references to the
Company, Participating Company, or Participating Companies shall be deemed to
refer to the employer maintaining the Plan and Trust.
(9) "COMPANY DISCRETIONARY CONTRIBUTIONS" means those amounts
contributed pursuant to Article IV, Section (3), by a Participating Company, at
its discretion.
(10) "COMPANY MATCHING CONTRIBUTIONS" means those amounts
contributed, pursuant to Article IV, Section (2), by a Participating Company
which are expressed as a percentage of Participant Elective Deferrals.
(11) "COMPANY STOCK" means shares of Class A Common Stock of
the Company.
(12) "COMPENSATION" means a Participant's wages (within the
meaning of Code Section 3401(a)) and all other amounts received by a Participant
from the Participating
I-1
<PAGE> 5
Companies for which a Participating Company is required to furnish the
Participant with a written statement under Code Sections 6041(d) and 6051(a)(3)
for personal services actually rendered in the course of employment with the
Participating Companies to the extent that the amounts are includible in gross
income. Compensation also will include amounts that are not currently includible
in the gross income of a Participant by reason of the application of Code
Sections 125, 402(e)(3), 402(h)(1)(B) and 403(b). For purposes of determining
the amount of Participant Elective Deferrals under Article IV, Section (1) and
the amount of Company Matching Contributions under Article IV, Section (2), and
for purposes of allocating any Company Discretionary Contributions under Article
IV, Section (3), Compensation will not include moving expenses and related tax
equalization. "ANNUAL COMPENSATION" is Compensation paid during a given Plan
Year for services as a Participant performed during such Plan Year.
Notwithstanding the foregoing or any other provision of the
Plan, Annual Compensation of any Participant which is in excess of $200,000 (for
Plan Years beginning in 1989 through 1993) or $150,000 (for Plan Years beginning
in 1994 and thereafter) or such amount as adjusted by the Secretary of the
Treasury pursuant to Code Section 401(a)(17)) in a Plan Year shall be
disregarded. Effective for Plan Years beginning after December 31, 1997, the
family aggregation rules required by Code Section 401(a)(17) have been deleted
from the Plan.
(13) "CREDITED SERVICE (VESTING)" means each whole year of an
employee's Period of Service, whether or not such Period of Service is
consecutive. However, in no event shall a Participant who was a participant in
the Prior Plan be credited with fewer years of Credited Service (Vesting) as of
June 30, 1998 than he would otherwise be entitled to under the definition of
vesting service in effect under the Prior Plan and Trust as of June 30, 1998.
Credited Service (Vesting) shall be recognized hereunder for vesting purposes
for service with the following predecessor organizations: The Lawson Company;
Dairy Mart East, Inc.; Open Pantry of Western Massachusetts; Open Pantry of
Ohio; Dairy Mart, Inc.; Dairy Mart Farms; Dutchland Farms; Conna Corporation;
Stop-N-Go; Sunnybrook Farms; Quik Shops; Mini Food Baskets; and Dacy Brothers.
For the purpose of determining the total years of Credited
Service (Vesting) a Participant has completed, all of the Participant's Periods
of Service with a Participating Company shall be taken into account, except that
the following shall be disregarded:
(a) In the case of a Participant who has a one year Period of
Severance, Periods of Service before such severance, unless
and until such Participant has completed a one year Period of
Service after he is rehired by a Participating Company.
(b) Periods of Service after a one year Period of Severance
solely for the purpose of determining the nonforfeitable
percentage applicable to the Participant, under Article VIII,
Section (4), prior to such one year Period of Severance.
(c) If a former employee is reemployed, his Period of Service
prior to such Severance from Service Date shall be restored
only if the number of consecutive one year Periods of
Severance, prior to such reemployment, was less than the
greater of (i) five (5) or (ii) the aggregate number of years
of Periods of Service before such Severance from Service Date.
An employee whose prior service is restored shall receive
service from the date of reemployment.
(d) If a Participant who was not fully vested at the time of
his Severance from Service Date is deemed to have received a
single lump sum distribution in accordance with Article VIII,
Section (4) (d)(i) hereof, upon rehire of such former
I-2
<PAGE> 6
Participant his Period of Service with respect to which such
distribution was made shall be disregarded for the purpose of
Article VIII, Section (4), unless he is rehired prior to his
incurring five (5) consecutive one year Periods of Severance.
(14) "EARLY RETIREMENT AGE" is the date a Participant
qualifies for an Early Retirement Benefit under Article VIII, Section (1).
(15) "EFFECTIVE DATE" of this amendment and restatement of the
Plan is July 1, 1998.
(16) "ELIGIBLE EMPLOYEE" is any person employed by a
Participating Company, but excluding:
(i) any independent contractors and any
directors who are not employed by a
Participating Company in any other capacity.
For purposes of this Plan, an independent
contractor is a person providing services to
a Participating Company in a capacity other
than as a common law employee of a
Participating Company; and
(ii) any person employed by a Participating
Company who is included in a unit of
employees covered by a collective bargaining
agreement between the Participating Company
and employee representatives, if retirement
benefits were the subject of good faith
bargaining. For this purpose, the term
"employee representative" does not include
any organization more than half of whose
members are employees who are owners,
officers or executives of the Participating
Company.
(17) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended.
(18) "EMPLOYMENT COMMENCEMENT DATE" means the date on which an
employee of a Participating Company first performs an Hour of Service for a
Participating Company.
(19) "FORFEITURE ACCOUNT" is the segregated account which
shall exist, to the extent necessary, for the purpose of accumulating
forfeitures which may arise under the Plan. The amount credited to the
Forfeiture Account shall represent the actual amount forfeited, without
adjustment for subsequent gains and losses of the Trust Fund.
(20) "HIGHLY COMPENSATED EMPLOYEE" for Plan Years beginning
after December 31, 1996 (except that, in determining whether an Eligible
Employee is a Highly Compensated Employee for the Plan Year beginning January 1,
1997, this provision will be treated as having been in effect in 1996), includes
highly compensated employees and highly compensated former employees. A highly
compensated employee means any Eligible Employee who: (A) was a 5% owner (as
defined in Section 416(i)(1) of the Code) of the Participating Company at any
time during the current or the preceding Plan Year, or (B) for the preceding
Plan Year (i) had compensation from the Participating Company in excess of
$80,000 (as adjusted by the Secretary pursuant to Section 415(d) of the Code,
except that the base period shall be the calendar quarter ending September 30,
1996), and (ii) was in the top-paid group of employees of the Participating
Company for such preceding Plan Year. For these purposes, an Eligible Employee
is in the top-paid group of Employees for any Plan Year if such Eligible
Employee is in
I-3
<PAGE> 7
the group consisting of the top 20% of the employees when ranked on the basis of
compensation paid during such Plan Year.
A former Eligible Employee shall be treated as a Highly
Compensated Employee if: (A) such Eligible Employee was a Highly Compensated
Employee when such Eligible Employee separated from service, or (B) such
Eligible Employee was a Highly Compensated Employee at any time after attaining
age 55.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of employees in the
top-paid group, will be made in accordance with Section 414(q) of the Code and
the regulations thereunder.
For purposes of this Section, "Compensation" shall be
determined by taking into account all compensation from all employers required
to be aggregated with the Company under Code Sections 414(b), (c), (m), and (o).
For Plan Years beginning prior to January 1, 1998, for purposes of this
subsection, the term "compensation" means compensation within the meaning of
Section 415(c)(3) of the Code. The determination will be made without regard to
Sections 125, 402(e)(3), and 402(h)(1)(B) of the Code, and in the case of
Participating Company contributions made pursuant to a salary reduction
agreement, without regard to Section 403(b) of the Code. For Plan Years
beginning after December 31, 1997, for purposes of this subsection, the term
"compensation" means compensation within the meaning of Section 415(c)(3) of the
Code.
(21) "HOUR OF SERVICE" is service as an employee of a
Participating Company since the date of the Participating Company's
incorporation which is recognized for purposes of computing a Participant's
eligibility to participate in the Plan. An employee shall be credited with Hours
of Service for such service as follows:
(a) An employee shall be credited with one Hour of Service for
each hour for which such employee is paid, or entitled to
payment, by a Participating Company for the performance of
duties during the applicable computation period, with such
Hours of Service being credited for the Plan Year in which the
duties were performed.
(b) An employee shall be credited with one Hour of Service for
each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by a
Participating Company, to the extent that such award or
agreement is intended to compensate an employee for periods
during which he would have been engaged in the performance of
duties for a Participating Company, with such Hours of Service
being credited for the Plan Year or Plan Years to which the
award or agreement pertains (rather than the Plan Year or Plan
Years in which the award, agreement, or payment is made).
(c) For all purposes of the Plan, Hours of Service will be
credited for periods of military duty to the extent required
by laws protecting veterans' reemployment rights.
For purposes of applying the provisions of this Section, the provisions of 29
C.F.R. 2530.200b-2(b) and (c) are hereby incorporated by reference, to the
extent applicable hereunder.
In lieu of the foregoing, and at the option of the Committee,
an employee who is not compensated on an hourly basis (such as salary,
commission or piecework employees) shall be credited with 45 hours of service
for each week (or ten hours of service for each day) in which such employee
would be credited with Hours of Service if hourly paid. However, this method of
I-4
<PAGE> 8
computing hours of service may not be used for any employee whose Hours of
Service is required to be counted and recorded by any federal law, such as the
Fair Labor Standards Act.
This Section shall be construed so as to resolve any
ambiguities in favor of crediting employees with Hours of Service.
(22) "LEASED EMPLOYEE" means any person (other than an
employee of the Participating Company) who has performed services for a
Participating Company (or for the Participating Company and related persons as
determined under Code Section 414(n)(6)) under an agreement between the
Participating Company and the leasing organization on a substantially full-time
basis for a period of at least one (1) year and such services were, for Plan
Years beginning prior to January 1, 1997, of a type historically performed by
employees in the business field of the recipient Participating Company, and, for
Plan Years beginning after December 31, 1996, such services are performed under
the primary direction or control of the service recipient. Contributions or
benefits provided a Leased Employee by the leasing organization which are
attributable to services performed for the recipient Participating Company shall
be treated as provided by the recipient Participating Company. Any Leased
Employee will be treated as an employee of the Participating Company for
purposes of Code Sections 401(a), 410, 411, 415 and 416; provided, however, that
such individuals will not be treated as employees of the Participating Company
for purposes of eligibility to participate in the Plan or for the purpose of
allocations of contributions under the Plan. Any contributions or benefits
provided by the leasing organizations that are attributable to the services
performed for the Participating Company will be treated as provided under a plan
maintained by the Participating Company, provided, however, that a Leased
Employee will not be treated as employed by the Participating Company if the
Leased Employee is covered by a money purchase pension plan maintained by the
leasing organization that provides (i) a non-integrated employer contribution of
at least ten percent (10%) of compensation, as defined in Code Section
415(c)(3), including amounts contributed pursuant to a salary reduction
agreement that are excludable from the employee's gross income under Code
Sections 125, 402(e)(3), 402(h)(1)(B) or 403(b); (ii) immediate participation;
and (iii) full and immediate vesting. For purposes of the foregoing exception
from the definition of Leased Employee, Leased Employees may not constitute more
than twenty percent (20%) of the Participating Company's Non-Highly Compensated
Employees.
(23) "NORMAL RETIREMENT AGE" or "NORMAL RETIREMENT DATE" is a
Participant's 65th birthday. A Participant shall be fully vested in his Accrued
Benefit upon attainment of his Normal Retirement Date and said Accrued Benefit
shall be nonforfeitable at such time.
(24) "PARTICIPANT" is any person who has satisfied the
eligibility requirements for participation in the Plan.
(25) "PARTICIPANT ELECTIVE DEFERRALS" means those amounts that
are subject to a compensation deferral agreement which a Participant has a
Participating Company contribute to the Plan pursuant to Article IV, Section
(1).
(26) "PERIOD OF SERVICE" means the period beginning on the
Eligible Employee's Employment Commencement Date or Reemployment Commencement
Date and ending on the date a Period of Severance begins. Except as otherwise
provided in the Plan, all non-successive Periods of Service shall be aggregated
and less than whole year Periods of Service shall be aggregated on the basis
that twelve (12) months of service or 365 days of service equal a whole year. An
Eligible Employee will receive credit for any Period of Service of less than
twelve consecutive months. Fractional periods of a year will be expressed in
days.
I-5
<PAGE> 9
(27) "PERIOD OF SEVERANCE" means a continuous period of time
during which an Eligible Employee is not employed by a Participating Company. A
Period of Severance begins on the date the Eligible Employee retires, quits, is
discharged or dies, or, if earlier, the twelve (12) month anniversary of the
date on which the Eligible Employee was first absent from service with a
Participating Company for any other reason; provided, however, that if an
Eligible Employee was first absent from work for any other reason and retires,
quits, is discharged, or dies within twelve (12) months, the Period of Severance
begins on the day the Eligible Employee quits, retires, is discharged, or dies.
(28) "PLAN YEAR" is the period of time commencing on any
January 1 and ending on the following December 31.
(29) "PLAN" is this Agreement, including that which is
established thereby, which sets forth the terms and conditions of the profit
sharing and 401(k) arrangement provided for hereunder. The "Prior Plan and
Trust" is that agreement known as "Dairy Mart Convenience Stores, Inc. Cash or
Deferred Profit Sharing Plan," which previously set forth the terms and
conditions of the profit sharing plan now provided for under this Plan and the
trust now provided for under the separate Trust Agreement.
(30) "REEMPLOYMENT COMMENCEMENT DATE" means the first day on
which an Eligible Employee completes an Hour of Service after a Period of
Severance.
(31) A "RETIRED PARTICIPANT" is any living former Participant
who has ceased to be employed by not less than all Participating Companies and
who qualifies to receive benefits (whether currently or commencing as of some
future date) under Section (1) or (3) of Article VIII.
(32) "SEVERANCE FROM SERVICE DATE" means the date on which an
Eligible Employee quits, retires, is discharged or dies, or, if earlier, the
first anniversary of the first date of a period in which an Eligible Employee
remains absent from service with a Participating Company for any other reason.
(33) "SUSPENSE ACCOUNT" is the segregated account which shall
exist under the Trust Fund for the purpose of accumulating any Company
Discretionary Contributions prior to their allocation among the Accounts of
Participants as of an Anniversary Date. The value of the Suspense Account shall
represent the actual amount of contributions credited thereto, without
adjustment for subsequent gains and losses of the Trust Fund.
(34) A "TERMINATED VESTED PARTICIPANT" is any living former
Participant who has ceased to be employed by not less than all Participating
Companies and who qualifies to receive benefits (whether currently or commencing
as of some future date) under Section (4) of Article VIII.
(35) The "TRUST" or "TRUST AGREEMENT" is each of the one or
more separate written agreements entered into between the Company and Trustee in
conjunction with this Plan Agreement for the purpose of funding the benefits
provided for hereunder as provided for under Article XIII.
(36) The "TRUSTEE" is the corporate person or one or more
natural persons who are duly appointed pursuant to the provisions of Article
XIII to perform the functions of the office of Trustee under the Trust. In the
event that two or more natural persons are appointed to serve as Trustee
hereunder, the Trustee shall be deemed to be the aggregate of such persons; and
the substitution of less than the entire number of such appointees shall not be
deemed to constitute the
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<PAGE> 10
appointment of a successor Trustee. Trustee shall also be deemed to be any
corporate person or one or more natural persons who may succeed to the office of
Trustee as provided for herein.
(37) The "TRUST FUND" or "FUND" is the total of all
contributions made under this Plan and the separate Trust and the Prior Plan and
Trust, increased by profits, income and other increments, and decreased by
losses, administrative expenses and benefits actually paid. The Trust Fund shall
include any and all securities and other property purchased or otherwise
acquired out of the assets of the Trust, including any and all insurance
contracts which may be purchased and which name the Trustee as owner thereof.
Without limiting the generality of the foregoing, the Trust Fund shall
specifically include any and all assets and property which may be transferred
to, or held by, the Trustee as a result of the replacement of the Prior Plan and
Trust by this Plan and separate Trust Agreement.
(38) The "VALUATION DATE" for determining the value of the
Trust Fund will be each business day. On each Valuation Date, the Trustee shall
determine the value of the Trust Fund.
(39) Whenever appropriate, words used herein in the singular
may be read as the plural, and the plural may be read as the singular.
(40) Unless otherwise clear from the context, words used
herein in the masculine shall also be deemed to include the feminine.
I-7
<PAGE> 11
ARTICLE II
PARTICIPATION
-------------
(1) COMMENCEMENT OF PARTICIPATION. Each person who was a
participant in the Prior Plan and Trust on the Effective Date of this Agreement
automatically shall become a Participant in this Plan as of the Effective Date.
Each person who was not a participant in the Prior Plan and Trust on the
Effective Date who presently is or hereafter becomes an Eligible Employee shall
become a Participant in this Plan as of the later of (i) the Effective Date, or
(ii) the first day of the month coinciding with or immediately following, as the
case may be, the date as of which he completes six (6) months of continuous
employment with a Participating Company during which he is credited with at
least 500 Hours of Service, provided he is then an Eligible Employee. In the
event an employee of a Participating Company who is not an Eligible Employee
should become an Eligible Employee, he shall become a Participant in this Plan
immediately upon becoming an Eligible Employee if he both has satisfied the
requirements for participation set forth above and previously would have become
a Participant if he had been an Eligible Employee.
(2) TERMINATION OF PARTICIPATION AND REEMPLOYMENT. A
Participant shall cease to be eligible for allocations of contributions under
the Plan upon the termination of his employment with not less than all
Participating Companies. If a former Participant (including a Retired
Participant or Terminated Vested Participant) again becomes employed by a
Participating Company, he shall again resume participation in this Plan upon his
Reemployment Commencement Date if (i) he became a Retired Participant or
Terminated Vested Participant in connection with the termination of his
employment, or (ii) his years of Credited Service (Vesting) accrued before his
termination of employment exceeds the number of consecutive one year Periods of
Severance after such termination, or (iii) he is reemployed by a Participating
Company before he incurs five (5) consecutive one year Periods of Severance.
Otherwise he shall be considered a new employee for purposes of this Article
upon reemployment by a Participating Company. Participation will cease upon the
(a) complete distribution of a Participant's vested Account balance; or (b) when
the Participant has experienced five (5) consecutive one year Periods of
Severance. A Participant who terminates employment without any vested interest
will be deemed to have received a distribution of his Accrued Benefit upon
termination of employment.
(3) SERVICE CREDITING RULES.
(a) In the case of an Eligible Employee who is absent from work with a
Participating Company for one of the following reasons, the twelve (12)
consecutive month period beginning on the first day of such absence will be
treated as a Period of Service and the twelve (12) consecutive month period
beginning on the first anniversary of the first date of such absence will be
treated neither as a Period of Service nor a Period of Severance: the pregnancy
of such individual; the birth of a child of such individual; the placement of a
child with the individual in connection with the adoption of such child by the
individual; or for purposes of caring for such child for a period beginning
immediately following such birth or placement. Notwithstanding the foregoing
provisions of this paragraph (a), no service shall be credited hereunder unless
the individual furnishes to the Participating Company or the Committee such
timely information as may be reasonably required to establish (i) that the
absence from work is one for which services to be credited hereunder and (ii)
the number of days for which there was such an absence.
(b) For purposes of eligibility to participate and vesting under the
Plan, employment with the following entities shall be treated as employment with
a Participating Company: (i) any corporation that is a member of a controlled
group of corporations (within the meaning of Code Section 414(b)) of which the
Participating Company is a member; (ii) any trade or business which,
II-1
<PAGE> 12
together with the Participating Company, is under common control (within the
meaning of Code Section 414(c)); (iii) any member of an affiliated service group
(within the meaning of Code Section 414(m)) of which the Participating Company
is a member; and (iv) any person or entity required to be aggregated with the
Participating Company under Code Section 414(o); provided, however, that any
individual receiving service credit under this provision shall not be eligible
to participate in the Plan or eligible to receive an allocation of contributions
under the Plan unless the Participating Company shall approve expressly, in
writing, such participation or the actual common law employer of such individual
shall adopt this Plan with the consent of the Participating Company.
(c) For purposes of eligibility to participate and vesting under this
Plan, employment service will be credited hereunder for any individual
considered a Leased Employee under Code Section 414(n) and for any individual
considered an employee under Code Section 414(o) and the final regulations
thereunder; provided, however, that any individual receiving service credit
under this provision shall not be eligible to participate in the Plan or
eligible to receive an allocation of contributions under the Plan unless the
Participating Company shall approve expressly, in writing, such participation or
the actual common law employer of such individual (if any) shall adopt this Plan
with the consent of the Participating Company.
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<PAGE> 13
ARTICLE III
ESTABLISHMENT OF PARTICIPANTS' ACCOUNTS
---------------------------------------
(1) ESTABLISHMENT OF ACCOUNTS. The Committee shall cause
accounts to be established for each Participant, to reflect such Participant's
(a) Elective Deferrals, if any (the "Participant Elective Deferrals Account"),
(b) Company Matching Contributions (the "Company Matching Contributions
Account"), (c) Company Discretionary Contributions, if any (the "Company
Discretionary Contributions Account"), (d) Qualified Matching Contributions, if
any (the "Qualified Matching Contributions Account"), (e) Rollover Contributions
(the "Rollover Contributions Account"), and (f) Transfer Contributions, if any
(the "Transfer Contributions Account"). Also, where necessary to comply with the
"transferee plan" provisions of Section 401(a)(11) of the Code, the Committee
shall cause two (2) or more Transfer Contributions Accounts to be established in
respect of a Participant, as may be required. Each Participant Elective
Deferrals Account, Company Matching Contributions Account, Company Discretionary
Contributions Account, Qualified Matching Contributions Account, Rollover
Contributions Account, and Transfer Contributions Account for each Participant
shall be subdivided further and separate records shall be maintained showing the
portion of each such Account invested in each Investment Fund; however, for
investment purposes, all Transfer Contributions Accounts for a Participant shall
be treated as a single Account. Separate records also shall be maintained with
respect to each such Account showing the amount of contributions thereto,
withdrawals therefrom, and the amount of income, expenses, gains and losses
attributable thereto. All such Accounts are referred to herein as a
Participant's "Account". In general, the interest of each Participant hereunder
at any time shall consist of the amount standing to his Account (as determined
in Section (5) of Article VII).
(2) REEMPLOYMENT. In the case of any former Participant in
this Plan who incurs five (5) consecutive Periods of Severance and who
subsequently again becomes a Participant in the Plan, the Trustee, which shall
be notified of such facts by the Committee, shall account separately for amounts
credited to such Participant's Account thereafter. Such Account shall similarly
be increased, decreased and otherwise adjusted as elsewhere provided for in this
Agreement. An Account shall be maintained in the name of the Participant until
it has been completely liquidated through distribution and/or forfeiture.
(3) EXTINGUISHING ACCOUNTS. Anything in this Agreement to the
contrary notwithstanding, a Participant shall have no right, title or interest
in or to any amounts credited to his Account any time prior to the actual
distribution thereof to said Participant.
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<PAGE> 14
ARTICLE IV
CONTRIBUTIONS
-------------
(1) ELECTIVE DEFERRAL CONTRIBUTIONS. Participant Elective
Deferrals may be made under the Plan on a pre-tax basis by execution of
compensation deferral agreements by Participants. Each Participant, in his
discretion, may elect to make Participant Elective Deferrals in whole
percentages of not more than fifteen percent (15%) of Compensation for
contribution to this Plan at such time and in accordance with such procedures as
are established by the Committee from time to time. A Participant may change or
resume Participant Elective Deferrals at any time in such form and manner as
authorized by the Committee. A Participant may elect to suspend his Participant
Elective Deferrals at any time in such form and manner as authorized by the
Committee. Participant Elective Deferrals will be authorized by each Participant
executing a prospective compensation deferral agreement on the form provided by
and filed with the Committee.
(2) COMPANY MATCHING CONTRIBUTIONS. For each Plan Year
beginning after the Effective Date, a Participating Company shall contribute to
the Trust Fund an amount which, when added to forfeitures, if any, will be equal
to fifty percent (50%) of each eligible Participant's Elective Deferrals of up
to six percent (6%) of Compensation. Company Matching Contributions for any Plan
Year shall be paid to the Trustee at such time as the Participant Elective
Deferrals which engendered such Company Matching Contributions are paid to the
Trustee.
(3) COMPANY DISCRETIONARY CONTRIBUTIONS. For each Plan Year
ending after the Effective Date, each Participating Company shall contribute to
the Trust Fund an amount referred to as Company Discretionary Contributions,
determined as follows: such portion, if any, of its current net profits and/or
accumulated profits as it, in its sole discretion, may determine, with the
amount to be contributed for any given Plan Year to be so determined prior to
the close of the Participating Company's fiscal year ending coincidentally with
(or, if the fiscal year and the Plan Year do not end concurrently, then
immediately following) the close of the Plan Year in question. Notwithstanding
the foregoing provisions of this Section, a Participating Company shall not
contribute any amount which (i) exceeds the maximum amount allowable as a
current income tax deduction under the Code, or (ii) would cause an allocation
to the Forfeiture Account under Article VI, Section (1) as of the date the
contribution is allocated, and if the contribution is made prior to the
Anniversary Date of the Plan Year, then such contribution shall not exceed the
amount permitted to be contributed if the date of the contribution were an
Anniversary Date.
Company Discretionary Contributions for any Plan Year may be
paid to the Trustee either in a single payment or in installments at any time
during the Participating Company's fiscal year ending coincidentally with (or,
if the fiscal year and the Plan Year do not end concurrently, then immediately
following) the close of the Plan Year in question; provided, however, that such
contribution may be delayed until such time as the Participating Company is
required to file its federal income tax return for such fiscal year, including
extensions thereof. Any payment or payments so made with respect to a given Plan
Year shall, for purposes of allocating same under Article V hereof, be deemed to
have been made as of the Anniversary Date at the end of that Plan Year.
(4) QUALIFIED MATCHING CONTRIBUTIONS. The Committee may elect
to treat Company Matching Contributions to Accounts of Participants who are not
Highly Compensated Employees as "Qualified Matching Contributions" to the extent
necessary so as to assure satisfaction of the discrimination tests of section
401(k) of the Code and/or the regulations issued thereunder, as described in
Article VI, Section (2). Qualified Matching Contributions shall be
IV-1
<PAGE> 15
nonforfeitable and are subject to the distribution requirements applicable to
contributions made on behalf of a Participant pursuant to Article IV, Section
(1). Qualified Matching Contributions used to satisfy the Actual Deferral
Percentage limitation described in Article VII, Section (2) of the Plan may not
be used to satisfy the Average Contribution Percentage limitation described in
Article VII, Section (3).
(5) FORM OF PAYMENT. Contributions to the Plan shall be made
in the form of cash.
(6) TRUSTEE DUTIES. The Trustee shall neither have the right
nor the duty to inquire into the amount of the Participating Company's
contributions hereunder or the method used in determining such amount, but shall
be accountable only for such funds as are actually received by it.
(7) AMENDMENT FOR TERMINATION. This Plan is voluntary on the
part of each Participating Company; and contributions hereunder may be changed,
suspended or discontinued at any time or from time to time, subject to the
provisions of Section (8) of this Article. Nothing contained in this Plan or
otherwise shall be construed as giving any person any right to require a
Participating Company to make any payment hereunder except with respect to
liabilities which have been accrued and are past due.
(8) DISCONTINUANCE OF CONTRIBUTIONS. Upon the complete
discontinuance of contributions under this Plan (within the meaning of Section
411(d)(3) of the Code), the interest of each Participant in the Plan at the time
of such discontinuance shall become nonforfeitable and be completely vested in
the same manner as is provided for in the case of termination of this Plan under
Article XV.
(9) PARTIAL TERMINATION. Upon the partial termination of this
Plan (within the meaning of Section 411(d)(3) of the Code) the interest of each
affected Participant in this Plan at the time of such partial termination shall
become nonforfeitable and be completely vested in the same manner as is provided
for in the case of termination of this Plan under Article XV hereof.
(10) RETURN OF CONTRIBUTIONS. Subject to the following
provisions of this Section, any contribution to the Plan and Trust by a
Participating Company which is either
(i) made by mistake of fact, or
(ii) conditioned upon the deductibility thereof
under Section 404 of the Code, but only to
the extent the deduction is disallowed,
may be returned to the Participating Company not later than one year after the
date such contribution was made by mistake of fact or the deduction is
disallowed, as the case may be, upon demand by the Participating Company. No
amount shall be returned to a Participating Company under this Section unless
the contribution of such amount was attributable to a good faith mistake of fact
or a good faith mistake in determining the deductibility thereof; and the amount
returned to a Participating Company shall be limited to the excess of the amount
contributed over the amount which would have been contributed had such good
faith mistake not occurred. No earnings on mistaken contributions may be
returned to a Participating Company, and any losses attributable to mistaken
contributions shall reduce the amount returnable. All contributions by the
Participating Company to the Plan hereby are declared to be conditioned upon the
deductibility of such contribution under Code Section 404.
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<PAGE> 16
(11) TRANSFER CONTRIBUTIONS. The Trustee is authorized to
accept on behalf of an Eligible Employee, and hold as part of the Trust Fund,
Transfer Contributions, provided that the Committee approves the transfer of any
assets from another plan qualified under Section 401(a) of the Code. The
Committee shall have complete discretion to decide whether to accept Transfer
Contributions. All amounts so transferred to the Trust Fund shall be held in
segregated Accounts referred to herein as "Transfer Contribution Accounts."
Transfer Contributions from any retirement plan required to provide a joint and
survivor annuity under Code Section 401(a)(11) will be subject to the qualified
joint and survivor annuity provisions of Code Section 401(a)(11) and Code
Section 417 unless the joint and survivor annuity provisions and preretirement
survivor annuity provisions have been waived pursuant to an elective transfer
under Treasury Regulations Section 1.411(d)-4(Q&A-3)(b).
(12) ROLLOVER CONTRIBUTIONS. The Trustee is authorized to
accept on behalf of an Eligible Employee, and hold as part of the Trust Fund,
rollover contributions that satisfy the requirements for rollovers under
relevant law, provided that the Committee approves the rollover of assets. The
Committee shall have complete discretion to decide whether to accept Rollover
Contributions. All amounts so rolled over to the Trust Fund shall be held in
segregated accounts referred to herein as "Rollover Contribution Accounts."
IV-3
<PAGE> 17
ARTICLE V
ALLOCATION OF CONTRIBUTIONS
---------------------------
(1) PARTICIPANT ELECTIVE DEFERRALS. Participant Elective
Deferrals made pursuant to Article IV, Section (1) under a compensation deferral
agreement, to the extent not returned and refunded in accordance with Article
IV, Section (2), shall be allocated to the Participant Elective Deferral Account
of the depositing Participant whose compensation deferral agreement engendered
such contributions.
(2) COMPANY MATCHING CONTRIBUTIONS. Company Matching
Contributions made pursuant to Article IV, Section (2) as a result of
Participant Elective Deferrals shall be allocated to the Company Matching
Contributions Account of the depositing Participant whose Participant Elective
Deferrals engendered such contributions.
(3) COMPANY DISCRETIONARY CONTRIBUTIONS. Company Discretionary
Contributions for a Plan Year (if any) shall be allocated, in uniform proportion
to each eligible Participant's Annual Compensation for such Plan Year to the
Company Discretionary Contributions Accounts of those eligible Participants. In
order to receive an allocation of any Company Discretionary Contributions for a
Plan Year, a Participant must be an Eligible Employee on the Anniversary Date of
such Plan Year.
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<PAGE> 18
ARTICLE VI
LIMITATIONS ON CONTRIBUTIONS AND ALLOCATIONS
--------------------------------------------
(1) LIMITATION ON ANNUAL ADDITIONS TO PARTICIPANTS' ACCOUNTS.
---------------------------------------------------------
(a) Notwithstanding any other provisions of this Plan to the contrary,
in no event shall the annual addition for any Plan Year (which shall be the
"limitation year" within the meaning of the Treasury Regulations Section
1.415-2(b)) to the Accounts of any Participant exceed (i) the lesser of (A)
$30,000, or (B) twenty-five percent (25%) of the compensation, as defined below,
actually paid or made available to the Participant by a Participating Company
during the limitation year, minus (ii) such Participant's annual addition for
the limitation year under all other qualified defined contribution plans which a
Participating Company maintains or to which it contributes. For the purpose of
applying the limitations of Code 415, compensation shall include only those item
specified in Treasury Regulation Section 1.415-2(d)(2) and shall exclude all
those items listed in Treasury Regulation Section 1.415-2(d)(3). For purposes of
this Article, the term "annual addition" means the sum for any Plan Year of the
following:
(i) Contributions by the Participating Company (including
contributions described in Code Section 402(e)(3));
(ii) Employee contributions (other than rollover
contributions and contributions to a simplified
employee pension excludable from gross income under
Code Section 408(k)(6));
(iii) Forfeitures (including forfeitures applied to reduce
contributions of the Company);
(iv) Amounts allocated, after March 13, 1984, to an
individual medical account, as defined in Code
Section 415(1)(2), which is part of a pension or
annuity plan maintained by the Participating Company;
and
(v) Amounts derived from contributions paid or accrued
after December 31, 1985, in taxable years ending
after such date, which are attributable to medical
benefits allocated to the separate account of a key
employee as defined under Code Section 419A(d)(3),
under a welfare benefit fund, as defined under Code
Section 419(e), maintained by the Participating
Company.
(b) If, due to a reasonable error in estimating a Participant's
Compensation for the Plan Year, or such other reasonable circumstances as may be
acceptable to the Commissioner of Internal Revenue, the excess will be disposed
of as follows:
(i) Any unmatched Participant Elective Deferrals to the
extent they would reduce the excess amount will be
returned to the Participant. To the extent necessary
to reduce the excess amount, non-Highly Compensated
Employees will have all Elective Deferrals returned
whether or not there was a correspondence match.
(ii) If after the application of subparagraph (i) an
excess amount still exists, and the Participant is
covered by the Plan at the end of the limitation
year, the excess amount in the Participant's Account
will be used to reduce
VI-1
<PAGE> 19
Company Matching Contributions for such Participant
in the next limitation year, and each succeeding
limitation year if necessary.
(iii) If after the application of subparagraph (i) an
excess amount still exists, and the Participant is
not covered by the Plan at the end of the limitation
year, the excess amount will be held unallocated in a
suspense account. The suspense account will be
applied to reduce future Contributions for all
remaining Participants in the next limitation year,
and each succeeding limitation year if necessary.
(iv) If a suspense account is in existence at any time
during the limitation year pursuant to this
paragraph, it will not participate in the allocation
of investment gains and losses. If a suspense account
is in existence at any time during a particular
limitation year, all amounts in the suspense account
must be allocated and reallocated to Participants'
accounts before any Participating Company
contributions may be made to the Plan for that
limitation year. Excess amounts may not be
distributed to Participants or former Participants.
(c) If a Participant also is, or was, covered under a defined benefit
plan maintained, or contributed to, by a Participating Company, the sum of the
amounts determined under (i) and (ii) may not exceed 1.0 in any limitation year
beginning before January 1, 2000:
(i) The Participant's "defined benefit plan
fraction": A fraction, the numerator of
which is the sum of the Participant's
projected annual benefits under all defined
benefit plans (whether or not terminated)
maintained, or contributed to, by the
Participating Company, and the denominator
of which is the lesser of (A) 1.25 times the
dollar limitation of Section 415(b)(l)(A) of
the Code for the limitation year, or (B) 1.4
times the Participant's average compensation
for the three consecutive years that
produces the highest average; and
(ii) The Participant's "defined contribution plan
fraction": A fraction, the numerator of
which is the sum of the annual additions
(within the meaning of Section 415(c)(2) of
the Code) to the Participant's account under
all defined contribution plans (whether or
not terminated) maintained, or contributed
to, by the Participating Company for the
current and all prior limitation years
(minus the amount, if any, determined under
Treasury Regulations issued pursuant to
Section 235(g) of the Tax Equity and Fiscal
Responsibility Act of 1982), and the
denominator of which is the lesser of the
following amounts determined for such year
and for each prior year of service with the
Participating Company:
(A) 1.25 times the dollar limitation in
effect under Section 415(c)(1)(A) of the
Code for such year, or
(B) 1.4 times the amount which may be taken
into account under Section 415(c)(1)(B) of
the Code;
provided, however, that at the option of the
Committee, the amount taken into account as
the denominator of the fraction for any year
ended after December 31, 1982 may be
determined under the special transition rule
set
VI-2
<PAGE> 20
forth in Section 415(e)(6) and, if
applicable, Section 416(h)(4) of the Code.
For purposes of (i), above, "projected annual benefits" means the annual benefit
to which the Participant would be entitled under the terms of the defined
benefit plan, if the Participant continued employment until normal retirement
age (or current age, if later) and the Participant's compensation for the
limitation year and all other relevant factors used to determine such benefit
remained constant until normal retirement age (or current age, if later). If, in
any limitation year, the sum of the defined benefit plan fraction and the
defined contribution plan fraction will exceed 1.0, the rate of benefit accruals
under the defined benefit plan will be reduced so that the sum of the fractions
equals 1.0.
(2) RULES GOVERNING ELECTIVE DEFERRALS.
-----------------------------------
(a) Amount of Elective Deferral: A Participant's Elective Deferrals
under this Plan and any other qualified plan maintained by a Participating
Company may not exceed the dollar limitation in effect under Code Section 402(g)
(as adjusted for increases in the cost of living) in each calendar year.
(b) Nonforfeitability of Elective Deferrals: All Elective Deferrals
made on behalf of Participants to this Plan will be vested immediately.
(c) Distribution Restriction: Elective Deferrals will be subject to the
restrictions on withdrawals under Article X.
(d) Distribution of Excess Elective Deferrals: An Excess Elective
Deferral is any Elective Deferral during a calendar year in excess of the dollar
limitation in effect under Code Section 402(g) for such year. On or before the
April 15th following the end of each calendar year, the Committee will direct
the Trustee to distribute to each Participant his or her Excess Elective
Deferral, if any, adjusted for any income or loss allocable to such Excess
Elective Deferral. At the discretion of the Committee, income and losses
attributable to Excess Elective Deferrals may be calculated using any reasonable
method, provided that the method does not violate Code Section 401(a)(4), is
used consistently for all Participants and for all corrective distributions
under the Plan for the Plan Year, and is used for allocating income to
Participant's Accounts. Alternatively, income and losses attributable to Excess
Elective Deferrals can be calculated as the sum of [1] the income or loss for
the year allocable to the Participant's Elective Deferrals multiplied by a
fraction, the numerator of which is the Participant's Excess Elective Deferral
for such year and the denominator of which is the total Elective Deferral
Account balance of the Participant attributable to Elective Deferrals, without
regard to any income or losses allocable to such Elective Deferrals for the
calendar year; and, [2] ten percent of the amount determined under [1]
multiplied by the number of whole calendar months between the end of the
calendar year in which the Excess Deferral occurred and the date such excess is
distributed, counting the month of distribution as one month if distribution
occurs after the 15th day of such month.
(e) Limit on Actual Deferral Percentage: The Actual Deferral Percentage
for Participants who are Highly Compensated Employees for each Plan Year must be
no greater than either [1] 1.25 times the Actual Deferral Percentage for all
other Participants who are Eligible Employees for the immediately preceding Plan
Year; or [2] 2.0 times the Actual Deferral Percentage for all other Participants
who are Eligible Employees for the immediately preceding Plan Year if the Actual
Deferral Percentage for Participants who are Highly Compensated Employees is not
more than two percentage points higher than the Actual Deferral Percentage for
all other Participants who are Eligible Employees for the immediately preceding
Plan Year. The following rules regarding the Actual Deferral Percentage will
apply:
VI-3
<PAGE> 21
(i) The Actual Deferral Percentage for the Plan
Year for any Highly Compensated Employee who
is eligible to have Elective Deferrals (and
Qualified Matching Contributions, if such
contributions are treated as Elective
Deferrals for purposes of the Actual
Deferral Percentage test) allocated to his
account under two or more arrangements
described in Code Section 401(k) that are
maintained by a Participating Company will
be determined as if such Elective Deferrals
(and, if applicable, such Qualified Matching
Contributions) were made under a single
arrangement. If a Highly Compensated
Employee participates in two or more cash or
deferred arrangements that have different
Plan Years, all cash or deferred
arrangements ending with or within the same
calendar year will be treated as a single
arrangement;
(ii) In the event that this Plan satisfies the
requirements of Code Sections 401(k),
401(a)(4), or 410(b) only if aggregated with
one or more other plans, or if one or more
other plans satisfy the requirements of such
Code Sections only if aggregated with this
Plan, then this section will be applied by
determining the Actual Deferral Percentage
of Participants as if all such plans were a
single plan. Plans may be aggregated in
order to satisfy Code Section 401(k) only if
they have the same Plan Year;
(iii) For purposes of determining the Actual
Deferral Percentage test, Elective Deferrals
and Qualified Matching Contributions must be
made before the last day of the twelve-month
period immediately following the Plan Year
to which such contributions relate; and
(iv) The Committee will maintain records
sufficient to demonstrate satisfaction of
the Actual Deferral Percentage test and the
amount of Qualified Matching Contributions,
if any, used in such test.
(f) Definitions:
[A] The "Actual Deferral Percentage" for a specified group of
Participants for a Plan Year is the average of the ratios (calculated separately
for each Participant in such group) of the amount of Participating Company
contributions made under the Plan on behalf of each such Participant for the
Plan Year to the Participant's Compensation for such Plan Year. Participating
Company contributions on behalf of any Participant include [i] any Elective
Deferrals made pursuant to the Participant's deferral election, including Excess
Elective Deferrals; and [ii] in the discretion of the Committee, all Qualified
Matching Contributions or such Qualified Matching Contributions as are necessary
to meet the Actual Deferral Percentage test.
[B] "Elective Deferrals" means any Participating Company
contributions made to the Plan at the election of the Participant in lieu of
cash compensation, including contributions made pursuant to a compensation
deferral agreement. A Participant's Elective Deferrals in any calendar year are
the sum of all Participating Company contributions made on behalf of such
Participant pursuant to an election to defer under any arrangement described in
Code Section 401(k), any simplified employee pension cash or deferred
arrangement described in Code Section 402(h)(1)(B), any eligible deferred
compensation plan under Code Section 457, any plan as described in Code Section
501(c)(18), and any Participating Company contributions made on behalf of a
Participant pursuant to a salary reduction agreement for the purchase of any
annuity contract under Code Section 403(b).
VI-4
<PAGE> 22
(g) Distribution of Excess Contributions: An Excess Contribution is the
excess, in any Plan Year, of the aggregate amount of Participating Company
contributions actually taken into account in determining the Actual Deferral
Percentage for Highly Compensated Employees over the maximum amount of such
contributions permitted by the Actual Deferral Percentage test, determined by
reducing contributions made on behalf of Highly Compensated Employees in
descending order beginning with the Highly Compensated Employee(s) having the
largest amount(s) of contributions taken into account in computing the Actual
Deferred Percentage, until the excess has been completely reduced and
distributed. In the event that Excess Contributions are made for any Plan Year,
the Committee will distribute the Excess Contributions in accordance with this
paragraph. On or before the 15th day of the third month following the end of
each Plan Year, each Highly Compensated Employee will have his portion of the
Excess Contribution, adjusted for any income or loss allocable to such portion,
distributed to him. At the discretion of the Committee, income and losses
attributable to Excess Contributions may be calculated using any reasonable
method, provided that the method does not violate Code Section 401(a)(4), is
used consistently for all Participants and for all corrective distributions
under the Plan for the Plan Year, and is used for allocating income to
Participant's Accounts. Alternatively, income and losses attributable to Excess
Contributions can be calculated as the sum of [1] the income or loss for the
Plan Year allocable to the Participant's Elective Deferral account (and, if
applicable, the Qualified Matching Contribution account) multiplied by a
fraction, the numerator of which is the Participant's Excess Contributions for
the Plan Year and the denominator of which is the Participant's account balance
attributable to Elective Deferrals (and Qualified Matching Contributions, if any
such contributions are taken into account in determining the Actual Deferral
Percentage), without regard to any income or losses allocable to such
contributions; and [2] ten percent of the amount determined under [1] multiplied
by the number of whole calendar months between the end of the Plan Year and the
date of distribution, counting the month of distribution as one month if
distribution occurs after the 15th day of such month. Excess Contributions will
be distributed from the Participant's Elective Deferral Account in proportion to
the Participant's Elective Deferrals for the Plan Year. Excess Contributions
will be distributed from the Participant's Qualified Matching Contribution
Account only to the extent that such Excess Contributions exceed the balance in
the Participant's Elective Deferral Account. If Excess Contributions are not
distributed by the 15th day of the third month following the end of the Plan
Year in which such Excess Contributions arose, a ten percent excise tax will be
imposed on the Employer with respect to such Excess Contributions. In any event,
Excess Contributions will be distributed not more than twelve months after the
end of the Plan Year in which such Excess Contributions arose.
(3) RULES GOVERNING MATCHING CONTRIBUTIONS
--------------------------------------
(a) Limit on Average Contribution Percentage: The Average Contribution
Percentage for Participants who are Highly Compensated Employees must not be
greater than either [1] 1.25 times the Average Contribution Percentage for all
other Participants who are Eligible Employees for the immediately preceding Plan
Year; or [2] 2.0 times the Average Contribution Percentage for all other
Participants who are Eligible Employees for the immediately preceding Plan Year
if the Average Contribution Percentage for Participants who are Highly
Compensated Employees is not more than two percentage points higher than the
Average Contribution Percentage for all other Participants who are Eligible
Employees for the immediately preceding Plan Year. The following rules regarding
the Average Contribution Percentage will apply:
(i) Multiple Use: If one or more Highly
Compensated Employees participate in both a
cash or deferred arrangement and a plan
subject to the Average Contribution
Percentage test maintained by the
Participating Company, and the sum of the
Actual Deferral Percentage and Average
Contribution Percentage of those Highly
Compensated Employees subject to either or
both tests exceeds the Aggregate Limit, then
the Average Contribution
VI-5
<PAGE> 23
Percentage of those Highly Compensated
Employees who also participate in a cash or
deferred arrangement will be reduced
(beginning with such Highly Compensated
Employee having the largest dollar amount of
contributions taken into account in
computing his Average Contribution
Percentage) so that the Aggregate Limit is
not exceeded. The amount by which each
Highly Compensated Employee's contribution
percentage amount is reduced will be treated
as an Excess Aggregate Contribution. The
Actual Deferral Percentage and Average
Contribution Percentage of the Highly
Compensated Employees are determined after
any corrections required to meet the Actual
Deferral Percentage and Average Contribution
Percentage tests. Multiple use does not
occur if both the Actual Deferral Percentage
and the Average Contribution Percentage of
the Participants who are Highly Compensated
Employees do not exceed 1.25 times the
Actual Deferral Percentage and Average
Contribution Percentage of the other
Participants who are Eligible Employees for
the immediately preceding Plan Year;
(ii) The Average Contribution Percentage for the
Plan Year for any Highly Compensated
Employee who is eligible to have
contribution percentage amounts allocated to
his or her Account under two or more
arrangements described in Code Section
401(a), or arrangements described in Code
Section 401(k) that are maintained by a
Participating Company, will be determined as
if such contribution percentage amounts were
made under a single arrangement. If a Highly
Compensated Employee participates in two or
more cash or deferred arrangements ending
with or within the same calendar year will
be treated as a single arrangement;
(iii) In the event that this Plan satisfies the
requirements of Code Sections 401(m),
401(a)(4), or 410(b) only if aggregated with
one or more other plans, or if one or more
other plans satisfy the requirements of such
Code Sections only if aggregated with this
Plan, then this section will be applied by
determining the contribution percentage of
Participants as if all such plans were a
single plan. Plans may be aggregated in
order to satisfy Code Section 401(m) only if
they have the same Plan Year;
(iv) For purposes of determining the contribution
percentage test, Participant Contributions
are considered to have been made in the Plan
Year in which contributed to the Trust.
Matching Contributions will be considered
made for a Plan Year if made no later than
the end of the twelve-month period beginning
on the day after the close of the Plan Year;
and
(v) The Committee will maintain records
sufficient to demonstrate satisfaction of
the Average Contribution Percentage test and
the amount of Qualified Matching
Contributions, if any, used in such test.
(b) Distribution of Excess Aggregate Contributions: An Excess Aggregate
Contribution is the excess, in any Plan Year, of the aggregate contribution
percentage amounts taken into account in determining the numerator of the
Average Contribution Percentage actually made on behalf of Highly Compensated
Employees over the maximum contribution percentage amounts permitted by the
Average Contribution Percentage test, determined by reducing
VI-6
<PAGE> 24
contributions made on behalf of Highly Compensated Employees beginning with the
Highly Compensated Employee having the largest dollar amount of contributions
taken into account in computing his Average Contribution Percentage. In the
event that Excess Aggregate Contributions are made for any Plan Year, the
Committee will distribute the Excess Aggregate Contributions in the same manner
as Excess Contributions are distributed, as provided in Section (2)(g) of this
Article. Excess Aggregate Contributions so distributed shall include Matching
Contributions and Qualified Matching Contributions (to the extent such
contributions are not taken into account for purposes of the Actual Deferral
Percentage test). Income and losses attributable to Excess Aggregate
Contributions will be determined and distributed along with the Excess Aggregate
Contributions in the manner provided in Section 2(g) of this Article.
(c) Definitions:
[A] The "Average Contribution Percentage" for a specified
group of Participants for a Plan Year is the average of the ratios (calculated
separately for each Participant in such group) of the sum of the Matching
Contributions and Qualified Matching Contributions (to the extent such
contributions are not taken into account for purposes of the Actual Deferral
Percentage test) made on behalf of the Participant for the Plan Year to the
Participant's Compensation for such Plan Year. Matching and Qualified Matching
Contributions on behalf of any Participant in any Plan Year include [i]
forfeitures of Excess Aggregate Contributions or Matching Contributions
allocated to the Participant's Account in such Plan Year; and [ii] in the
discretion of the Committee, all Elective Deferrals made pursuant to the
Participant's deferral election or such Elective Deferrals as are necessary to
meet the Average Contribution Percentage test (provided that the Actual Deferral
Percentage test is satisfied both with and without the exclusion of these
Elective Deferrals).
[B] "Aggregate Limit" means the greater of the sum of [i] 1.25
times the greater of the Actual Deferral Percentage of non-Highly Compensated
Employees for the immediately preceding Plan Year or the Average Contribution
Percentage of non-Highly Compensated Employees for the immediately preceding
Plan Year; and [ii] the lesser of two times or two plus the lesser of such
Actual Deferral Percentage or Average Contribution Percentage.
[C] "Matching Contribution" means an employer contribution
made to this or any other defined contribution plan on behalf of a Participant
on account of a Participant's elective deferral, under a plan maintained by a
Participating Company.
VI-7
<PAGE> 25
ARTICLE VII
INVESTMENTS
(1) INVESTMENT OF FUNDS.
--------------------
(a) The Trust Fund shall be divided into Investment Funds which shall
include a Company Stock fund known as the Company Stock Fund. From time to time,
the Committee shall designate the number of Investment Funds and the investment
goals of each such Fund. The Committee also shall designate or instruct the
Trustee as to the type of securities in which such Investment Fund will be
invested from the securities described below. Assets held in the Company Stock
Fund will be used to purchase shares of Company Stock. Assets held in the other
Investment Funds, may be invested in preferred and common stocks, bonds,
debentures, mortgages, commercial paper, negotiable instruments and evidences of
indebtedness of every kind and form, securities, shares, or units of
participation issued by companies registered under the Investment Companies Act
of 1940, master limited partnerships or real estate investment trusts,
guaranteed investment contracts purchased from one or more duly licensed
insurance companies or in any common or collective trust fund established or
maintained by the Trustee for the collective investment and reinvestment of
assets of pension and profit sharing trusts which are exempt from federal income
taxation under the Code, or any combination of the foregoing. Income on, and
proceeds of sales of, investments of each Fund shall be reinvested by the
Trustee (or as directed by such investment manager or the Committee), subject to
the provisions of this Section (1), in the same Investment Fund.
(b) The Committee in its sole and exclusive discretion may select and
appoint one or more qualified "investment managers," as defined in Section 3(38)
of ERISA and related regulations, to direct and manage the investment
composition of a particular Investment Fund. The Trustee is specifically
authorized to be an investment manager.
(c) Participant Elected Contributions, Company Matching Contributions,
Company Discretionary Contributions, Qualified Matching Contributions, Rollover
Contributions and Transfer Contributions shall be allocated to such Investment
Funds as set forth below. The Trustee (or investment manager) shall hold,
manage, administer, invest, reinvest, account for, and otherwise deal with the
Trust Fund and each separate Investment Fund as provided in the Trust Agreement.
(d) Anything in the Plan or Trust Agreement to the contrary
notwithstanding, the Trustee shall not sell, alienate, encumber, pledge,
transfer or otherwise dispose of, or tender or withdraw, any shares of Company
Stock held by it under the Trust Agreement (i) except as specifically provided
for in the Plan or (ii) in the case of a tender offer (as hereinafter defined).
For the purposes hereof, the term "tender offer" shall mean (I) any offer for,
or request for or invitation for tenders of, or offer to purchase or acquire,
any shares of Company Stock that is directed generally to shareholders of the
Participating Company or (II) any transaction which may be defined as a "tender
offer" under rules or regulations promulgated by the Securities and Exchange
Commission. To the extent that any money or other property is received by the
Trustee as a result of a tender of shares of Company Stock not prohibited by the
preceding sentence, such money or property shall be allocated to such other
Investment Fund or Funds, in increments of ten percent (10%) (or such other
increments as may be permitted by the Committee with the consent of the
Trustee), as directed by the Participant in whose Account the shares of Company
Stock so tendered were held; PROVIDED, however, that money or property held by
the Trustee in respect of a former Eligible Employee who continues to
participate hereunder shall in any event be invested in accordance with Section
(4) of this Article until distributed.
VII-1
<PAGE> 26
(e) The Trustee, in its own discretion, may maintain in cash, without
obligation to credit interest thereon, such part of the assets of each
Investment Fund as it shall deem necessary or desirable for the proper
administration of such Fund. Any such otherwise uninvested cash, pending the
disposition or investment of such cash, may be invested temporarily in overnight
or sweep accounts, or in government securities or other short-term money market
instruments while so held. From time to time, the Trustee shall determine the
income on all such temporary investments for a period to be determined by the
Trustee, and such income shall be allocated to the respective Funds in such
manner as the Trustee shall determine. Such temporary investments, from time to
time, may be sold by the Trustee to provide cash for the purposes of such Funds.
Purchases and sales of investments for a Fund shall be made by the Trustee in
accordance with the provisions of the Trust.
(2) INVESTMENT OF ACCOUNTS IN GENERAL.
----------------------------------
(a) Subject to Section (3) of this Article, each Participant, in
accordance with procedures established by the Committee, shall direct that his
Account be invested and reinvested in any one or more of the Investment Funds
then offered under Section (1) hereof. Likewise, subject to Section (3) hereof,
and by written election filed with the Committee, each Participant shall direct
that any additional contributions to be allocated or credited to his Account be
invested and reinvested in any one or more of the Investment Funds. The
investment of any such monies shall be subject to such restrictions as the
Committee may determine, in its sole discretion, to be advisable or necessary
under the circumstances. Moreover, each Participant shall designate the portion
to be invested in each such Investment Fund in terms of the percentage to be so
invested, and each such percentage shall be in such multiples as may be
designated by the Committee in accordance with uniform procedures applicable to
all Participants.
(b) In no event, however, shall Participants be permitted to direct
that such Accounts and/or such additional contributions be invested in the
Company Stock Fund until the Company, the Plan, the Trustee and all other
relevant parties have complied fully with such requirements, including but not
limited to federal and state securities laws, as the Committee has determined to
be applicable.
(c) In the event a Participant fails to direct the investment of any
portion of his Account in one or more of the Investment Funds, except to the
extent provided elsewhere in this Plan, such portion of such Account shall be
invested in an Investment Fund comprised of money market instruments, short-term
U.S. Treasury obligations, or other similar securities (as may be permitted
under the terms of the Trust), or as otherwise designated by the Committee by
written direction to the Trustee.
(3) CHANGE OF INVESTMENT OPTION.
----------------------------
(a) Not less frequently than once in each calendar quarter, in
accordance with the rules and procedures established by the Committee, each
Participant who is entitled to direct the investment of additional contributions
to be allocated to his Account in accordance with Section (2) of this Article
hereof may select how such additional contributions are to be invested, but only
with respect to amounts otherwise receivable during (or in respect of) future
payroll periods.
(b) Not less frequently than once in each calendar quarter, in
accordance with the rules and procedures established by the Committee, each
Participant may change his investment direction with respect to the investment
of amounts then held in his Account which remain subject to his investment
direction under Section (2) of this Article. The Participant thereby may direct
a transfer of all or a portion of such amounts in multiples as may be designated
by the Committee in accordance with uniform procedures applicable to all
Participants to be reinvested in one or a combination of the various Investment
Funds.
VII-2
<PAGE> 27
(c) Notwithstanding anything in Subsection (a) or (b) to the contrary,
the Committee, in its sole discretion, and where the terms of any relevant
investment contracts, regulated investment companies or pooled or group trusts
so require, may impose special terms, conditions and restrictions upon a
Participant's right to direct the investment in, or transfer into or out of,
such contracts, companies, or trusts.
(4) INVESTMENT OF FORMER EMPLOYEES' ACCOUNTS. If a Participant
(or, where applicable, his Beneficiary or personal representative) effectively
elects to delay receiving distribution of his Account in accordance with the
terms of the Plan, such Participant shall continue to be able to direct the
investment of his Account in accordance with the rules and procedures as are
applicable to individuals who remain actively employed by a Participating
Company.
(5) VALUATION OF INVESTMENT FUNDS.
------------------------------
(a) As of each Valuation Date, the Committee shall cause the value of
each Investment Fund to be determined in accordance with Subsection (c) of this
Section (5). The Committee also shall cause any change in value of each
Investment Fund between the current Valuation Date and the last preceding
Valuation Date, and any net gain or loss of such Investment Fund during such
period which resulted from (i) expenses paid (including any fees and expenses of
the Trustee and Investment Manager charged to such Fund), (ii) realized and
unrealized earnings, and (iii) profits and losses of such Investment Fund during
such period, to be determined. Changes in the value of an Investment Fund which
are due to a transfer of funds to or from an Investment Fund pursuant to Section
(3) of this Article, contributions allocated to an Investment Fund, and
payments, distributions and withdrawals from an Investment Fund to provide
benefits under the Plan for Participants or Beneficiaries, shall not be deemed
to be earnings, profits, expenses or losses of the Investment Fund for purposes
of making a determination of net gains and losses.
(b) As of each Valuation Date, the net gain or loss of each Investment
Fund, as determined in accordance with Subsection (a) of this Section shall be
allocated as of such Valuation Date, at the direction of the Committee, to the
Accounts of Participants in such Investment Fund in proportion to the amount of
each such Participant's Account invested in such Investment Fund to all such
Participant Accounts invested in such Investment Fund on such Valuation Date.
(c) The Committee shall cause the value of each Investment Fund as of
each Valuation Date to be determined in the following manner:
(i) All securities and other property held in each such
Fund shall be valued at fair market value, or if the
fair market value is not readily ascertainable, at
such amount as shall be deemed by the Committee to
represent the fair market value thereof;
(ii) To the value thus determined there shall be added (I)
interest accrued but not collected on any interest
bearing obligation and dividends declared but not
collected on any stock, which, if sold, would be sold
ex-dividend and (II) the uninvested cash balance of
such Fund; and
(iii) From the aggregate value so obtained there shall be
deducted any reserve for contingencies or
unliquidated liabilities which the Committee
concludes are appropriate under sound accounting
principles.
VII-3
<PAGE> 28
(d) The reasonable and equitable decision of the Committee as to the
value of each Investment Fund as of each Valuation Date shall be conclusive and
binding upon all persons having any interest, direct or indirect, in such
Investment Fund.
(6) REGISTRATION AND VOTING OF COMPANY STOCK. All shares of
Company Stock acquired by the Trustee shall be held in the possession of the
Trustee until disposed of pursuant to the provisions of the Plan or the Trust
Agreement. Such shares of Company Stock may be registered in the name of the
Trustee or its nominee. The Trustee shall vote the shares of Company Stock as
provided under the terms of the Trust.
(7) PARTICIPANT LOANS.
------------------
(a) Each Participant's balance in each Investment Fund in any of his
Accounts used as security for the repayment of a loan pursuant to Article XI
shall be reduced by a portion of any loan made to such Participant pursuant to
Article XI. The amount of the reduction allocable to each Investment Fund shall
be equal to the amount of such loan multiplied by a fraction, the numerator of
which is the Participant's total balance in the Investment Fund allocable to the
Account(s) used as security for repayment of the loan pursuant to Article XI,
and the denominator of which is the total balance in such Account(s). The
balance in each Investment Account allocable to the Account(s) used as security
for the loan(s) and the total balance in such Account(s) shall be determined as
of the date of disbursement of such loan(s).
(b) A Participant's loan repayment (of both interest and principal)
shall be allocated to the Investment Fund(s) of the Participant in his or her
Account(s) at the time such repayment is received by the Trustee. The amount
allocated to each such Investment Fund shall be equal to the amount of each loan
repayment (of both interest and principal) allocable to such Account(s)
multiplied by a percentage, which percentage shall be equal to the percentage of
the contributions to such Account which are allocated to such Investment Fund
pursuant to the Participant's election under Section (2) of this Article at the
time of the loan repayment. In the event that no contributions then are being
allocated to such Account(s), the amount allocated to each such Investment Fund
shall be equal to the amount of each loan repayment (of both interest and
principal) allocable to such Account(s) multiplied by a percentage, which
percentage shall be equal to the percentage of the balance of the Participant's
Account(s) allocated to such Investment Fund at the time of the loan repayment.
(c) The amount of each Participant's outstanding loan balance together
with interest accrued thereon shall be treated as a separate Investment Fund for
such Participant.
VII-4
<PAGE> 29
ARTICLE VIII
BENEFITS
--------
(1) NORMAL RETIREMENT, EARLY RETIREMENT AND LATE RETIREMENT.
The Accrued Benefit of a Participant shall be nonforfeitable if he is in the
employ of the Company on or after his Normal Retirement Date, or after
qualifying for an Early Retirement Benefit. Each Participant who separates from
service with not less than all of the Participating Companies for any reason,
other than death, on or after his Normal Retirement Date shall be entitled to
receive a Normal Retirement Benefit. Each Participant with at least five (5)
years of Credited Service (Vesting) who separates from service with the Company
for any reason, other than death, on or after his 60th birthday shall be
entitled to receive an Early Retirement Benefit. The Normal Retirement Benefit
and Early Retirement Benefit shall be equal to the full amount of a
Participant's Accrued Benefit as of the date he separates from service with the
Company, adjusted for any gains or losses which thereafter may arise prior to
the complete distribution of such amount to said Participant. A Normal
Retirement Benefit or Early Retirement Benefit shall be distributed to a
Participant in accordance with the provisions of Article IX, Sections (1) and
(2) hereof. In the event that a Participant fails to retire from the employ of
the Company on or before his Normal Retirement Date, he shall retain all rights
and privileges of participation in this Plan and Trust until his actual
retirement.
(2) DEATH. In the event of the death of a Participant, his
Beneficiary, as determined in accordance with Article IX, Section (3), shall be
entitled to receive a Death Benefit. In the event that a Beneficiary who becomes
entitled to receive a Death Benefit should die prior to the complete
distribution of such Benefit, the undistributed portion thereof shall be
distributed to such living secondary Beneficiary as the deceased Participant may
have designated or, in the absence of same, to such living person who then is
deemed to be the Beneficiary of such deceased Participant pursuant to the
provisions of Article IX, Section (4). The Death Benefit shall be equal to the
Participant's Accrued Benefit as of the date of his death (or, in the case of a
distribution following the death of a Beneficiary, the amount credited to the
deceased Participant's Account as of the date of such Beneficiary's death),
increased by any amount allocated to his Account as of the Anniversary Date
following his death and adjusted for any gains or losses which may thereafter
arise prior to the complete distribution of such amount to said Beneficiary. A
Death Benefit shall be distributed to a Beneficiary in accordance with the
provisions of Article IX, Sections (1) and (2). Anything in this Section to the
contrary notwithstanding, until such time as the Committee is notified or
otherwise learns of the death of a Participant, his Beneficiary shall not be
entitled to receive a Death Benefit under this Plan. Similarly, until such time
as the Committee is notified or otherwise learns of the death of a Beneficiary,
a secondary Beneficiary shall not be entitled to receive any residual portion of
such Death Benefit. In no event shall any Beneficiary be entitled to receive a
Death Benefit in excess of Participant's Accrued Benefit as of the date the
Committee is notified or otherwise learns of the death of such Participant (or,
in the case of a distribution following the death of a Beneficiary, the amount
credited to the deceased Participant's Account as of the date the Committee is
notified or otherwise learns of the death of such Beneficiary), adjusted for any
gains or losses which may thereafter arise prior to the complete distribution of
such amount to the Beneficiary.
(3) DISABILITY. Each Participant who separates from service
with not less than all Participating Companies prior to his Normal Retirement
Date on account of a permanent and total disability shall be entitled to receive
a Disability Benefit. The Disability Benefit shall be equal to the Participant's
Accrued Benefit as of the date he ceases to be employed by not less than all
Participating Companies, increased by any amount allocated to his Account as of
the Anniversary Date following his retirement and adjusted for any gains or
losses which may thereafter arise prior to the complete distribution of such
amount to said Participant. A Disability
VIII-1
<PAGE> 30
Benefit shall be distributed to a Participant in accordance with the provisions
of Article IX, Sections (1) and (2). As used herein, permanent and total
disability shall be deemed to mean an actual and continuous physical or mental
incapacity of a potentially permanent nature which prevents the Participant from
engaging in any full-time occupation or employment for remuneration for which
the Participant is reasonably fitted by training, education or experience,
reasonably comparable to that in which he was engaged prior to such disability
and which will presumably last for a continuous period of not less than twelve
(12) months. In order to be entitled to a Disability Benefit, a Participant
shall, within thirty (30) days following his separation from service (or such
greater period as may be approved by the Committee), furnish the Committee with
the written opinion of a physician selected or approved by the latter stating
that said Participant is permanently and totally disabled, as defined herein.
(4) OTHER SEPARATION FROM SERVICE.
------------------------------
(a) Notwithstanding anything in this Section to the contrary, a
Participant will have a fully vested interest in Participant Elective Deferrals,
Transfer Contributions, Rollover Contributions, Qualified Matching Contributions
(if any) and their related earnings and losses.
(b) Notwithstanding anything in this Section to the contrary, if a
Participant is an Eligible Employee on July 1, 1998, such Participant shall have
a fully vested interest in any contributions credited to his Company
Discretionary Contribution Account prior to the Effective Date and to earnings
on those contributions.
(c) Each Participant who separates from service with not less than all
Participating Companies after accruing at least five (5) years of Credited
Service (Vesting) under circumstances which do not qualify him to receive
benefits under any other provision of the Plan shall be entitled to receive a
Deferred Vested Benefit. The Deferred Vested Benefit of such a Participant shall
be an amount equal to his Accrued Benefit as of the date he separates from
service with not less than all Participating Companies, adjusted for any gains
or losses which may thereafter arise prior to the complete distribution of such
amount. The Deferred Vested Benefit of such a Participant shall be distributed
to him in accordance with the provisions of Article IX, Sections (1) and (2).
(d) Each Participant with at least one (1) year of Credited Service
(Vesting) but less than five (5) years of Credited Service (Vesting) who
separates from service with not less than all Participating Companies under
circumstances which do not qualify him to receive benefits under any other
provision of this Plan shall be eligible to receive a Deferred Vested Benefit.
In addition to any Deferred Vested Benefit provided under Section (4)(b), the
Deferred Vested Benefit of a Participant entitled thereto under this Section
(4)(d) shall be a benefit as of the date he ceases to be employed by not less
than all Participating Companies based upon his years of Credited Service
(Vesting) in accordance with the following, adjusted for any gains or losses
which may thereafter arise prior to the complete distribution of his Deferred
Vested Benefit:
<TABLE>
<CAPTION>
Years of Credited Service Vested
(VESTING) PERCENTAGE
--------- ----------
<S> <C>
Less than 1 year 0%
At least 1, but less than 2 years 20%
At least 2, but less than 3 years 40%
At least 3, but less than 4 years 60%
At least 4, but less than 5 years 80%
</TABLE>
(i) If a Participant's vested interest is less than 100%
of the amount credited to his Account, an amount
equal to the excess of:
VIII-2
<PAGE> 31
(a) the amount credited to his Account; over
(b) his Deferred Vested Benefit;
shall be forfeited as of the first to occur of (i)
the date on or after the Participant's Severance from
Service Date on which the Participant receives a
distribution of his Account pursuant to this Article,
or (ii) the date on which the Participant incurs five
(5) consecutive one year Periods of Severance, or
(iii) the date the Participant dies. Notwithstanding
the preceding provisions of this clause (i), if a
Participant's Deferred Vested Benefit under the Plan
is zero (0), then such Participant shall be deemed to
have received a lump sum distribution from the Plan
in such amount in full discharge of the Plan's
liability in respect to payment of his Account and
the amount credited to his Account shall be
forfeited. Such distribution and such forfeiture
shall be deemed to have occurred on the date of the
Participant's Severance from Service Date.
(ii) Any forfeiture attributable to Company Matching
Contributions shall be used to reduce the Company
Matching Contributions which are otherwise required
to be made on and after the date of such forfeiture.
(iii) Any forfeiture attributable to Company Discretionary
Contributions shall be used to offset Plan
administrative expenses.
(iv) The Deferred Vested Benefit under this Section (4)(d)
of a Terminated Vested Participant who again becomes
a Participant in the Plan following five (5)
consecutive one year Periods of Severance shall not
be increased on account of any Participating Company
contributions allocated to his Account subsequent to
his previous five (5) consecutive one year Periods of
Severance; but rather upon his subsequent termination
of employment (A) to the extent not previously paid
to him in connection with his previous termination of
employment, his entitlement to, and the amount of,
any benefits under this Plan consisting of amounts
credited to his Account prior to the last of his five
(5) consecutive one year Periods of Severance (which
amounts are to be separately accounted for under the
provisions of Article III, Section (2)) shall be
determined in accordance with the provisions of this
Article, based upon his years of Credited Service
(Vesting) accrued prior to such five (5) consecutive
one year Periods of Severance, and (B) his
entitlement to, and the amount of, any benefits under
this Plan consisting of amounts credited to his
Account subsequent to his five (5) consecutive one
year Periods of Severance shall be determined in
accordance with the provisions of this Article, based
on his age and/or total years of Credited Service
(Vesting) at the time of his subsequent termination
of employment.
(v) If a Participant whose employment terminates and
whose eligibility for benefits, and the amount
thereof, has been determined under this Section
(4)(d) has a Reemployment Commencement Date and
accrues one year of Credited Service (Vesting) prior
to incurring five (5) consecutive one year Periods of
Severance, the portion of his Accrued Benefit
forfeited in connection with his previous termination
of employment (without adjustment for interim gains
and losses of the Trust Fund) shall be restored to
his Account as of the Anniversary Date of the first
Plan Year ending
VIII-3
<PAGE> 32
after Reemployment Commencement Date in which he is
credited with a year of Credited Service (Vesting).
Such restoration shall be made through a transfer
from the Forfeiture Account or, if the Forfeiture
Account is not sufficient, through an additional
contribution. Upon his subsequent termination of
employment with not less than all Participating
Companies, his eligibility for benefits, and the
amount thereof, shall be determined under this
Article on the basis of his age and/or total years of
Credited Service (Vesting) and his total Accrued
Benefit at that time; provided, however, that if upon
such subsequent termination of employment the
Participant's eligibility for benefits, and the
amount thereof, is to be determined under this
Section (4)(d), his Deferred Vested Benefit shall be
determined by (A) multiplying his "Vested Percentage"
(under Section (4)(d) of this Article) by the sum of
his actual Account balance plus the amount of
Deferred Vested Benefit previously distributed to
him, and (B) then subtracting from the amount so
determined the amount of Deferred Vested Benefit
previously distributed to him. The Deferred Vested
Benefit provided for under this Section (4)(d) shall
be distributed in accordance with the provisions of
Article IX, Sections (1) and (2).
(e) No amendment to the Plan may decrease a Participant's vested
interest in the Plan as of the later of the date the amendment is adopted or
becomes effective. Notwithstanding the preceding sentence, a Participant's
Accrued Benefit may be reduced to the extent permitted under Code Section
412(c)(8). For purposes of this section, a Plan amendment that decreases a
Participant's Account balance or eliminates an optional form of benefit, with
respect to benefits attributable to service before the amendment, will be
treated as reducing an accrued benefit. If a Plan amendment, including any
change in the vesting schedule that occurs when a Plan becomes or ceases to be
top heavy, directly or indirectly affects the computation of a Participant's
vested percentage, each Participant with at least three Years of Credited
Service (Vesting) with a Participating Company may elect, within 60 days after
the later of [1] the date the amendment is adopted; [2] the date the amendment
is effective; or [3] the date the Participant is provided written notice of the
amendment by the Committee, to have his or her nonforfeitable percentage
computed under the Plan without regard to the amendment. For any Participant who
does not perform at least an Hour of Service in any Plan Year beginning after
December 31, 1988, the "three Years of Service" clause in the preceding sentence
will be replaced with "five Years of Service."
VIII-4
<PAGE> 33
ARTICLE IX
GENERAL PROVISIONS REGARDING
----------------------------
BENEFITS AND THEIR DISTRIBUTION
-------------------------------
(1) GENERAL RULE. The benefits provided for under Sections
(1), (2), (3) and (4) of Article VIII shall be distributed to a Retired
Participant or Terminated Vested Participant or Beneficiary, subject to the
provisions of this Article VIII, at the election of such Participant or
Beneficiary, in a single lump sum payment or in equal monthly, quarterly,
semiannual, or annual installment payments over a specified period, as
determined by the Participant or Beneficiary.
(a) Notwithstanding the foregoing,
(i) the distribution to any Beneficiary who is not a
natural person shall be made in a single lump sum
payment, and
(ii) except as required by clause (i) above, a benefit
which is immediately distributable and exceeds
$5,000, or which exceeded $5,000 at the time of any
prior distribution, shall not be distributed to a
Participant or Beneficiary in a single lump sum
payment, nor shall installment payments be commenced,
unless the Participant or Beneficiary entitled
thereto shall consent to such payment.
If a Participant or Beneficiary entitled thereto, fails to
consent to such a distribution, it shall be deemed an election to defer the
commencement of payment of any benefit. However, any election to defer the
receipt of benefits shall not apply with respect to distributions which are
required under Section (3) below. For purposes of this subsection, a benefit is
immediately distributable if any part of the benefit could be distributed to the
Participant (or Participant's spouse or Beneficiary entitled thereto) before the
Participant attains (or would have attained if the Participant had not died)
Normal Retirement Age.
(b) Notwithstanding any other provisions of this Plan, if a Participant
terminates employment with the Company and the value of such Retired
Participant's or Terminated Vested Participant's Account balance that is
immediately distributable does not exceed $5,000 upon such termination for
employment (and did not exceed that amount at the time of any prior
distribution) such Participant will receive an immediate distribution of the
value of such Account balance in a single lump sum.
(c) Benefits may be distributed in cash, in kind or in combinations
thereof, and any distribution in kind shall be based upon the fair market value
of the assets so distributed as of the Valuation Date immediately preceding the
date of distribution.
(2) COMMENCEMENT OF DISTRIBUTIONS. The payment of benefits to
a Participant or Beneficiary entitled thereto under Sections (1), (2), (3) and
(4) of Article VIII shall be made or shall commence, as the case may be, within
a reasonable period of time following the Participant's termination of
employment or the Participant's death and the receipt by the Committee of a
written request from the Participant for a distribution hereunder. The foregoing
provisions of this Section (2) notwithstanding, a Participant may elect to
postpone the distribution or the commencement of distribution of all or any part
of any benefits which become payable to a Participant under Article VIII until
not later than the latest date permitted under the provisions of Section (3) of
this Article. Unless a Participant elects to defer benefit payments in
accordance with the provisions of Section (3) of this Article, under no
circumstances shall any method of distribution provide for the commencement of
benefit payments more than sixty (60) days subsequent to the Anniversary Date
IX-1
<PAGE> 34
of the Plan Year in which occurs the later of the Participant's Normal
Retirement Date or his actual termination of employment; provided, however, that
if the amount of the payment required to commence by such date cannot be
ascertained by such date, or if it is not possible to make such payment by such
date because the Committee has been unable to locate the Participant after
making reasonable efforts to do so, a payment retroactive to such date may be
made no later than sixty (60) days after the earliest date on which the amount
of such payment can be ascertained under the Plan or the date on which the
Participant is located, whichever is applicable. Any Participant or Beneficiary
who is the surviving spouse of a deceased Participant entitled to benefits
hereunder may elect to have the payment, or commencement of payment, of such
benefits deferred until not later than the required distribution date described
in Section (3) of this Article. Such deferral can be made by submitting to the
Committee a signed written statement describing the benefit and the date on
which such payment is to be made or commence. Notwithstanding anything herein to
the contrary, (a) no method of distribution, and no deferral, shall provide for
a so-called "Interest Option" or extend payments over, or permit a payment to be
made after the end of, a period of time which exceeds whichever of the following
is applicable:
(i) In the case of benefits distributable to a
Participant whose Beneficiary is his spouse,
a specified period not longer than the joint
and last survivor expectancy of the
Participant and his spouse at the time
benefit payments to the Participant
commence; or
(ii) In the case of benefits distributable to a
Participant whose Beneficiary is other than
his spouse, a specified period equal to the
life expectancy of the Participant at the
time benefit payments to the Participant
commence; or
(iii) In the case of benefits distributable to the
Beneficiary of a Participant who died before
payments to him commenced, a specified
period not longer than the life expectancy
of the Beneficiary at the time benefit
payments commence.
If distribution is made in installments, the amount of each installment shall be
not less than the quotient obtained by dividing the undistributed benefits by
the number of remaining installments. Moreover, notwithstanding the preceding
provisions of this Section (2), if a Participant dies before his entire interest
in the Plan has been paid to him, then the remaining portion of such interest
shall be distributed at least as rapidly as the method of distribution being
used under paragraphs (i) and (ii) of this Article IX, Section (2) as of the
date of his death.
(3) REQUIRED DISTRIBUTIONS. Notwithstanding any other
provisions of the Plan, distributions hereunder shall be subject to the
following restrictions:
(a) in the case of a living Participant, distribution must commence on
or before the April 1 following the end of the calendar year in which:
(i) he attains age seventy and one-half (70-1/2) or
retires, whichever is later, provided the Participant
is not a five percent (5%) owner (within the meaning
of Code Section 416(i)) with respect to the Plan Year
in which the individual attains age seventy and
one-half (70-1/2);
(ii) he attains age seventy and one-half (70-1/2) in all
other cases; and
(b) in the case of a deceased Participant, distributions after his
death shall be payable either:
IX-2
<PAGE> 35
(i) within five (5) years of the date of his death; or
(ii) if distributions commence to his Beneficiary, then:
(A) within one (1) year of the date of his death or
on a later date permitted under any lawful
regulations by the Secretary of the Treasury; or
(B) if his spouse is his Beneficiary, by the date
such Participant would have attained age seventy and
one-half (70-1/2);
(C) over a period not extending beyond the life
expectancy of such Beneficiary; and
(c) in the case of the death of a Beneficiary who is the surviving
spouse of a deceased Participant, a distribution commencing after the death of
the spouse shall be payable either;
(i) within five (5) years of the date of the spouse's
death; or
(ii) if distribution commences to the spouse's Beneficiary
within one (1) year of the spouse's death or on a
later date permitted under any lawful regulations
issued by the Secretary of the Treasury,
over a period not extending beyond the life expectancy of such
Beneficiary; or
(d) in the event payments are made to a participant's child, for
purpose of this Section such payments shall be deemed to be paid to the
Participant's spouse if such payments will become payable to such spouse upon
such child's reaching majority or any other event permitted under any lawful
regulations issued by the Secretary of the Treasury.
The life expectancy of a Participant or spouse thereof may be
redetermined from time to time but not more frequently than annually.
All distributions from the Plan will be made in accordance
with the Code Section 401(a)(9) and the Income Tax Regulations thereunder,
including the minimum distribution incidental death benefit requirement of
Proposed Income Tax Regulation Section 1.401(a)(9)-2.
(4) COMMITTEE DETERMINATIONS. At the time a Participant ceases
to be employed by not less than all Participating Companies, or as soon
thereafter as possible, the Committee shall forthwith determine whether such
individual is entitled to receive benefits under this Plan and Trust, the amount
of such benefits and the manner in which such benefits shall be distributed to
said Participant. At the time the Committee is advised or otherwise learns of
the death of a Participant, it shall similarly determine whether a Death Benefit
is payable on behalf of such Participant, the amount of such Benefit, the manner
in which such Benefit shall be distributed and the Beneficiary of such Benefit.
The Committee shall render instructions to the Trustee regarding any and all
actions required by the latter with respect to the implementation of the
Committee's determinations made pursuant to this Section; and the Trustee shall
be obligated and bound to act strictly in accordance therewith, being fully
protected in so doing. Under no circumstances shall the Trustee make any benefit
distribution under this Plan until it has been expressly directed to do so by
the Committee.
(5) DESIGNATION OF BENEFICIARY. A Participant may file written
notice with the Committee designating his Beneficiary or Beneficiaries and
secondary Beneficiary or Beneficiaries. The Participant may change his
Beneficiary designation from time to time by filing
IX-3
<PAGE> 36
succeeding written notices with the Committee, and, in such case, each
succeeding designation will revoke all prior designations. However, if a
Participant is legally married at the time of his death, any designation of a
Beneficiary other than the person who is his legal spouse at the time of his
death will be void, and such legal spouse will be his sole Beneficiary, unless
such legal spouse has consented to the designation of such other person as
Beneficiary in a written, signed and notarized statement. If any Participant is
not survived by a legal spouse and he shall have failed to designate a
Beneficiary or Beneficiaries as herein provided, the remaining amounts then held
for the Participant shall be distributed to such deceased Participant's estate;
and his estate shall be the Participant's Beneficiary for purposes of this Plan.
Any designation of Beneficiary made by a Participant hereunder shall be in such
form as may be specified or approved by the Committee. The Committee's
determination regarding the identity of a Beneficiary shall be subject to review
only as provided in Section (6) of this Article.
(6) CLAIMS PROCEDURE. Anything herein to the contrary
notwithstanding, it shall be the responsibility of each Participant, Beneficiary
or other person claiming the right to a distribution through or on behalf of
such Participant (any such person being hereinafter referred to in this Section
as a "Claimant"), to make written application to the Committee, on such forms
and in such manner as the Committee shall prescribe, for any and all benefits to
which such Claimant may be entitled under the Plan. In the event that the
application for a distribution of any Claimant is denied, the Committee shall
provide such Claimant a written statement setting forth the specific reasons for
the denial, a specific reference to the provisions of the Plan on which the
denial is based, a description of any additional material or information
necessary for such Claimant to perfect the denied claim and an explanation of
why such material or information is necessary and an explanation of the review
procedure set forth below in this Section. Within sixty (60) days after the
receipt of such statement from the Committee, such Claimant, or the duly
authorized representative thereof, may request, by written application to the
Plan, a review by the Committee of the decision denying the making of a
distribution. In connection with such review, such Claimant, or duly authorized
representative thereof, shall be entitled to review any and all documents
pertinent to the claim or its denial and shall also be entitled to submit issues
and comments in writing. The decision of the Committee upon such review shall be
made promptly and not later than sixty (60) days after the receipt of such
request for review, unless special circumstances require an extension of time
for processing, in which case a decision shall be rendered as soon as possible,
but not later than one hundred twenty (120) days after the Committee's receipt
of a request for review. The decision on review shall be in writing and shall
include specific reasons for the decision and specific references to the
pertinent Plan provisions on which the decision is based. All written
communications to Claimant under this Section shall be written in a manner
calculated to be understood by the recipient.
(7) RESTRICTIONS. Any restrictions or limitations which are
placed upon the rights or interests of a Participant under the Plan shall
similarly restrict and limit the rights and interests of his Beneficiary.
(8) ASSIGNMENT OF BENEFITS. Except as otherwise specifically
provided in Sections (5) and (9) of this Article, distributions and withdrawals
hereunder shall be paid only to the Participant entitled thereto or, in the
event of his death, his Beneficiary. A Participant's interest under the Plan
shall not be subject to alienation, sale, transfer, assignment, pledge,
attachment, garnishment, execution or encumbrance of any kind, and any attempt
to accomplish the same shall be void. This limitation shall apply to the
creation, assignment or recognition of a right to any benefit payable with
respect to a Participant pursuant to any domestic relations order, unless such
order is determined by the Committee, in accordance with Section (9) below, to
be a qualified domestic relations order (as defined in Section 414(p) of the
Code) or is a domestic relations order
IX-4
<PAGE> 37
entered before January 1, 1985 which satisfies the requirements of Internal
Revenue Service Revenue Ruling 80-27.
(9) QUALIFIED DOMESTIC RELATIONS ORDER. The anti-alienation
and anti-assignment provisions of Section (8) above will not apply with respect
to payments in accordance with the requirements of a qualified domestic
relations order. A qualified domestic relations order creates, or recognizes the
existence of, an alternate payee's right to, or assigns to an alternate payee
the right to, receive all or a portion of the benefits otherwise payable to a
Participant under the Plan. A domestic relations order means any judgment,
decree, or order (including approval of a property settlement agreement) that
relates to the provision of child support, alimony payments, or marital property
rights to a spouse, former spouse, child or other dependent of a Participant,
and is made pursuant to a state domestic relations law (including a community
property law). To qualify, the domestic relations order must:
(a) State clearly the name and last known mailing address of the
Participant and the name and mailing address of each alternate payee covered by
the order;
(b) State clearly the amount or percentage of the Participant's
benefits to be paid by the Plan to each alternate payee, or the manner in which
the amount or percentage is to be determined;
(c) State clearly the number of payments or period to which the order
applies;
(d) Identify each Plan to which the order applies;
(e) Not require the Plan to provide any type of benefit, form of
benefits, or any option not otherwise provided under the Plan;
(f) Not require the Plan to provide increased benefits (determined on
the basis of actuarial value); and
(g) Not require the payment of benefits to an alternate payee that are
required to be paid to another payee under another order previously determined
to be a qualified domestic relations order. The Plan will make payments to an
Alternative Payee pursuant to a qualified domestic relations order as stated in
such order, regardless of whether the Participant's Account otherwise is
distributable.
For purposes of this Section (9), "Alternate Payee" means any
spouse, former spouse, child, or other dependent of a Participant who is
recognized by a qualified domestic relations order as having a right to receive
all, or a portion of, the benefits payable under a Plan with respect to such
Participant.
(10) GENERAL PROVISIONS. In the case of any Participant or
Beneficiary whose whereabouts are unknown, the Committee will notify the
Participant or Beneficiary at his or her last known address by certified mail
with return receipt requested advising him or her of his or her right to a
pending distribution. If the Participant or Beneficiary cannot be located in
this manner, the Committee will direct the Trustee to forfeit the Account and
hold the forfeited amount in an unallocated suspense account. If a claim for
forfeited benefits is subsequently made by the Participant or Beneficiary, the
amount forfeited, unadjusted for earnings or interest, will be restored by means
of an additional Participating Company contribution, earnings on the Trust Fund,
or the allocation of other forfeitures.
IX-5
<PAGE> 38
(11) ELIGIBLE ROLLOVER DISTRIBUTIONS. Notwithstanding any
provision of the Plan to the contrary that otherwise would limit a Distributee's
election under this Section, a Distributee of an Eligible Rollover Distribution
of at least $200 may elect, at the time and in the manner prescribed by the
Committee, to have such Eligible Rollover Distribution paid directly to one (1)
Eligible Retirement Plan specified by the Distributee in a Direct Rollover. A
Distributee who has been given a timely notice and explanation of his rights
under this Section, and who fails to make an affirmative election to have his
Eligible Rollover Distribution paid to an Eligible Retirement Plan shall be
presumed to have elected to have his benefit paid directly to him. The election
by a Distributee with respect to one of a series of periodic payments shall be
deemed to apply to all subsequent payments in that series. Such election by the
Distributee, however, shall be revocable at any time. In the event this
provision is not at any time in the future required as a condition for plan
qualification under Code Section 401(a), it shall automatically be deemed null,
void, and of no force or effect.
For purposes of this Section, the following words and phrases
have the meanings ascribed to them below.
(a) An "Eligible Rollover Distribution" is a distribution of all or any
portion of the Account of the Distributee, except that an Eligible Rollover
Distribution does not include (i) 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 (10) years or more; (ii) any
distribution to the extent such distribution is required under Code Section
401(a)(9); and (iii) the portion of any distribution that is not includible in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(b) An "Eligible Retirement Plan" is an individual retirement account
described in Code Section 408(a), an individual retirement annuity described in
Code Section 408(b), an annuity plan described in Code Section 403(a), or a
qualified trust described in Code Section 401(a), that accepts the Distributee's
Eligible Rollover Distribution. However, in the case of an Eligible Rollover
Distribution to the surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement annuity.
(c) A "Distributee" includes an Eligible Employee or former Eligible
Employee of a Participating Company. In addition, the Eligible Employee's or
former Eligible Employee's surviving spouse and the Eligible Employee's or
former Eligible Employee's spouse or former spouse who is the alternate payee
under a qualified domestic relations order, as defined in Code Section 414(p),
are Distributees with regard to the interest of the spouse or former spouse.
(d) A "Direct Rollover" is a payment by the Plan to the Eligible
Retirement Plan specified by the Distributee.
(12) FACILITY OF PAYMENT. If the Committee receives evidence
satisfactory to it that a person entitled to receive any benefit under the Plan
is physically or mentally incompetent to receive such benefit and to give a
valid release therefor, or is a minor, and that another person or an institution
is then maintaining or has custody of such person, unless claim shall have been
made therefor by a duly appointed guardian, committee or other legal
representative, the Committee may authorize payment of such benefit to such
other person or institution and the release of such other person or institution
shall be a valid and complete discharge for the payment of such benefit.
IX-6
<PAGE> 39
ARTICLE X
WITHDRAWALS DURING EMPLOYMENT
-----------------------------
(1) NORMAL RETIREMENT AGE. A Participant who has attained age
sixty-five (65) may withdraw the value of his entire Account upon written
request to the Committee.
(2) AGE 59-1/2. A Participant who has attained age fifty-nine
and one-half (59-1/2), who has not ceased to be employed by a Participating
Company and who has a fully vested interest in all amounts credited to his
Account may withdraw the portion of the value of his Account attributable to
Participant Elective Deferrals, Company Matching Contributions, Qualified
Matching Contributions (if any) and Company Discretionary Contributions (if any)
provided that the Company Discretionary Contributions to be withdrawn were
contributed to the Plan at least twenty-four (24) months prior to the
withdrawal, upon written request to the Committee.
(3) COMPANY DISCRETIONARY CONTRIBUTIONS. A Participant may
withdraw the vested value of his Account attributable to Company Discretionary
Contributions credited to the Plan prior to the Effective Date upon written
request to the Committee.
(4) ROLLOVER AND TRANSFER CONTRIBUTIONS. A Participant may
withdraw all or any part of the value of his Account attributable to Rollover
Contributions and Transfer Contributions, if any, upon written request to the
Committee. Distributions of Transfer Contributions are subject to the
Participant and spousal consent requirements, if applicable, contained in Code
Sections 401(a)(11) and 417.
(5) FINANCIAL HARDSHIP. In the case of financial hardship, a
Participant may withdraw all or part of the vested portion of his Account
attributable to Company Matching Contributions and that part of the balance of
his Account attributable to Participant Elective Deferrals (excluding earnings
on the Participant Elective Deferrals after December 31, 1988). For the purpose
of this Section, a withdrawal will be on account of financial hardship if the
withdrawal is necessary in light of an immediate and heavy financial need of the
participant and is necessary to satisfy such financial need. Such withdrawal
based upon financial hardship cannot exceed the amount required to meet the
financial need created by the hardship. The determination of the existence of
financial hardship and the amount required to meet the financial need shall take
into account all non-hardship distributions and nontaxable loans available under
the Plan and other tax qualified plans of the Participating Company and shall be
made in accordance with the hardship provisions of Section 401(k) of the Code
and with uniform and nondiscriminatory standards established by the Committee.
In accordance with the foregoing, the Committee has established that a
participant will be deemed to have an immediate and heavy financial need and,
therefore, will qualify for a financial hardship withdrawal if the purpose of
the withdrawal is on account of the following:
(a) medical expenses described in Section 213(d) of the Code
incurred by the Participant, or the Participant's spouse, or
any dependents of the Participant (as defined in Section 152
of the Code) or amounts necessary for such persons to obtain
medical care described in Section 213(d);
(b) purchase of a principal residence for the Participant
(excluding mortgage payments);
(c) tuition and related educational fees and room and board
expenses for the next twelve (12) months of post-secondary
education for the Participant, or the
X-1
<PAGE> 40
Participant's spouse, children, or dependents (as defined in
Section 152 of the Code); or
(d) payment necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
Upon receiving a hardship withdrawal pursuant to this Section,
a Participant's Elective Deferrals will be suspended automatically for a period
of at least twelve (12) months following the date of withdrawal. In the taxable
year of a Participant following the taxable year in which he receives such
hardship withdrawal, such Participant's Elective Deferrals shall be limited to
the maximum amount permitted under Code Section 402(g), minus his Participant
Elective Deferrals for the taxable year of the hardship withdrawal.
(6) UNIFORM PROCEDURES. Withdrawals shall be made hereunder in
accordance with such procedures as are established by the Committee from time to
time and uniformly and nondiscriminatorily applied.
(7) DISTRIBUTION RESTRICTIONS. Except as otherwise provided in
this Article X, Participant Elective Deferrals and Qualified Matching
Contributions, and income allocable to each are not distributable to a
Participant or Beneficiary's or Beneficiaries, in accordance with such
Participant's or Beneficiary or Beneficiaries' election, earlier than upon
separation from service, death, disability, or as follows:
(a) Termination of the Plan without the establishment or
maintenance of another defined contribution plan;
(b) The disposition by a company that is a corporation to an
unrelated corporation of substantially all of the assets
(within the meaning of Code Section 409(d)(2)) used in a trade
or business of such corporation if such corporation continues
to maintain this Plan after the disposition, but only with
respect to employees who continue employment with the
corporation acquiring such assets; or
(c) The disposition by a company that is a corporation to an
unrelated entity of such corporation's interest in a
subsidiary (within the meaning of Code Section 409(d)(3)) if
such corporation continues to maintain this Plan, but only
with respect to employees who continue employment with such
subsidiary.
(8) WITHDRAWAL LIMITATIONS. Except as expressly provided in
the Plan, no Participant, Beneficiary or other person entitled to benefits may
withdraw or receive any monies from the Trust Fund.
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<PAGE> 41
ARTICLE XI
PARTICIPANT LOANS
-----------------
A Participant, except as otherwise may be required by law, may
request a loan from the Trust Fund. The amount of the loan (when added to the
outstanding balance of all other loans, and accrued interest on such loans, by
the Participant from this Plan and all other qualified retirement plans
maintained by a Participating Company may not exceed the lesser of: (i) fifty
percent (50%) of the value of the Participant's vested Account balance
determined as of the date of disbursement; or, (ii) $50,000, reduced by the
excess, if any, of the highest outstanding balance of such loans during the
one-year period ending on the day before the date any such loan is made, over
the outstanding balance of such loans on the date any such loan is made.
The Plan's loan program will be subject to the following
additional provisions:
(a) Loans shall be applied for by requesting a loan
application from the Committee (or its agent) and returning the
completed form to the Committee (or its agent).
(b) Loans shall be made available to all eligible applicants
on a reasonably equivalent basis, and the Committee will determine
whether an applicant's loan will be approved or denied taking into
account an applicant's creditworthiness, ability to repay the loan,
financial need, and other factors which would be considered in a normal
commercial setting by an entity in the business of making similar types
of loans.
(c) A Participant may not have more than one outstanding loan.
(d) No loan will be permitted in an amount less than One
Thousand Dollars ($1,000).
(e) The term of any loan shall not exceed five (5) years; and
provided further, however, that such loan shall become repayable
immediately in full in the event the borrower should die, or if the
Participant or his Beneficiary or spouse becomes entitled to receive a
distribution under this Plan prior to the expiration of the prescribed
term of the loan.
(f) The term of any outstanding loan may be renegotiated by
agreement between the borrower and the Committee, provided that the
final payment date of the balance of the renegotiated loan shall not be
later than fifty-four (54) months from the date of the inception of the
initial loan. In renegotiating a loan, a Participant may borrow
additional amounts, subject to the maximum and minimum dollar limits
set forth in this Section. A Participant may not renegotiate an
outstanding loan more frequently than once in any twelve (12) month
period and may not renegotiate an initial loan until it has been
outstanding for at least a twelve (12) month period. A Participant will
not be permitted to renegotiate a loan or be granted additional loans
if any loan is in delinquent status.
(g) The interest rate for any loan shall be determined by the
Committee (or its agent) and shall be not less than the rate which
would be charged to the borrower by a lending institution, were such
institution to make a personal loan to the borrower on which the
borrower were to pledge identical or substantially similar collateral.
(h) If the borrower is legally married on the date loan
proceeds are to be disbursed, the loan shall be conditioned upon first
obtaining, within the ninety (90) day period ending on such date, the
written consent of the borrower's spouse to such loan
XI-1
<PAGE> 42
(which consent shall acknowledge the effect of such loan). Such consent
of the borrower's spouse must either be notarized or witnessed by a
Plan representative.
(i) Each loan shall be amortized in substantially level
payments during the term of the loan, with payments not less frequently
than quarterly, over the term of the loan.
(j) Repayment of any loan made to a borrower shall be made by
payroll deduction unless another procedure is agreed to by the
Committee and the borrower. Subject to the spousal consent provisions
of subsection (g), in the event a Participant terminates employment or
in the event a Participant (or his Beneficiary or spouse) elects to
receive a distribution from the Trust Fund at a time when there is an
unpaid balance of a loan against such Participant's account, the
Trustee shall deduct the unpaid balance of the principal of such loan
or any portion thereof, and any interest accrued to the date of such
deduction, from any payment or distribution from the Trust Fund to
which such Participant or his Beneficiary or spouse may be entitled. If
the amount of such payment or distribution is not sufficient to repay
the outstanding balance of such loan and any interest accrued thereon,
the Participant (or his estate, if applicable) shall be liable for and
continue to make payments on the balance still due from him or her.
(k) Each loan shall be evidenced by the borrower's note for
the amount of the loan and interest payable to the order of the Trustee
and shall be secured by adequate collateral.
(l) By accepting a loan, the borrower automatically shall make
an assignment of a security interest in fifty percent (50%) of the
value on the date of disbursement of the Participant's vested Account
and any earnings attributable to such amount.
(m) A loan shall be in default if the borrower fails to make
any payment of principal or interest when due or if his collateral
becomes inadequate to secure the loan and he does not provide
substitute collateral satisfactory to the Committee within ten (10)
days after a request therefor by the Committee.
(n) If the loan is in default, the loan shall be accelerated
and the Committee may opt to deduct defaulted amounts from the security
or pursue any other remedies allowed by laws and by the Plan; and, to
the extent permitted by law, the borrower may be assessed all
reasonable attorneys' fees, legal expenses, and collection costs
incurred in connection with the exercising such remedies; provided,
however, that no foreclosure on the loan and the Participant's account
will occur until the Account is distributable under Code Section
401(k)(2)(B).
(o) The Committee may delay enforcing any of its rights
without forfeiting such rights.
XI-2
<PAGE> 43
ARTICLE XII
ADMINISTRATION OF THE PLAN
--------------------------
(1) PLAN ADMINISTRATOR. This Plan shall be administered by the
Company, which shall be the "Plan Administrator" within the meaning of Section
3(16)(A) of ERISA. The Company shall be represented by an Advisory Committee in
the administration of the Plan and in its dealings with the Trustee.
Notwithstanding anything to the contrary contained herein, the Committee shall
at all times be subject to the direction and control of the Company.
(2) PLAN COMMITTEE. The Committee shall consist of three or
more members appointed by the Board of Directors of the Company. The members of
the Committee shall have no prescribed term of office but shall serve at the
will of the Board of Directors, and the Board may from time to time remove any
member with or without cause and appoint his successor. A member of the
Committee may resign upon giving written notice thereof to the remaining member
or members and to the Board. The fact that a person may be a Participant,
prospective Participant, stockholder or officer of the Company shall not
disqualify him from acting as a member of the Committee; but no member of the
Committee shall take part in any discretionary action in connection with his own
participation under this Plan. In case of the death, resignation or removal of
any member of the Committee, the remaining member or members shall act until a
successor member or members shall be appointed by the Board of Directors. The
Company shall notify the Trustee of any and all changes in the membership of the
Committee. Until so notified, the Trustee shall be protected in assuming that
there has been no change in the membership of the Committee since its last
notification. The Trustee shall be under no obligation at any time to inquire
into the membership of the Committee.
(3) COMMITTEE POWERS. The Committee shall have all powers
necessary to enable it to carry out its duties, including, but not limited to,
the authority to interpret this Agreement, the authority to determine all
questions relating to the rights and status of employees and all Participants,
and the authority to make such rules and regulations for the administration of
this Plan as are not inconsistent with the terms and provisions hereof, as well
as such other authority and powers relating to the administration of the Plan as
are conferred upon it by this Agreement.
(4) COMMITTEE AUTHORITY. The Committee shall have complete
discretionary authority with respect to determining the eligibility of a
Participant or Beneficiary to receive distributions under this Plan, the amount
of such distribution and all matters incidental thereto. It shall be the
responsibility of the Committee to render instructions to the Trustee regarding
all matters affecting the payment of distributions, and the Trustee shall be
obligated and bound to act strictly in accordance therewith.
(5) ORGANIZATION AND OPERATION OF COMMITTEE. The Committee
shall appoint one of its members to act as its Chairman. The Chairman shall have
authority to certify any action of the Committee and shall have such other
rights and responsibilities as may be delegated to him by the Committee. Except
as may otherwise be expressly provided for herein, the decision of a majority of
the members of the Committee shall govern and control on all matters and
questions within the Committee's powers. A meeting need not be called or held to
make any decision. All notices, advice, directions, certifications, approvals
and instructions to be given by the Committee to the Trustee may actually be
rendered by the Chairman of the Committee, and the Trustee shall be fully
protected in acting in accordance with the provisions of any and all such
communications from the Chairman.
XII-1
<PAGE> 44
(6) COMPENSATION OF COMMITTEE MEMBERS. No fee or compensation
shall be paid to any member of the Committee for his services; but the
Committee, and each member thereof, shall be reimbursed by the Company or the
Trust Fund for all expenses incurred.
(7) RECORDS. All acts and determinations of the Committee
shall be duly recorded by the Chairman or his designee; and all such records,
together with such other documents as may be necessary for the administration of
the Plan, shall be preserved in the custody of the Chairman.
(8) DISCRETIONARY POWERS. Any provision of this Plan which
requires the exercise of discretionary powers by the Committee shall be
administered in a uniform manner for Participants in similar circumstances and
shall not be applied in any manner which discriminates in favor of any
shareholder, officer or highly-paid employee of a Participating Company.
(9) REPORTS. The Committee will cause to be prepared and filed
and/or distributed, in a timely manner, all reports and other information which
are required of the administrator by any statute or administrative regulation,
ruling or order.
(10) AGENTS. The Committee shall have authority to retain
agents, counsel, actuaries, accountants or any other person or persons who are
required by law or which the Committee deems necessary or desirable in order to
provide for the proper administration of the Plan and Trust. The Committee also
shall have authority to purchase goods and services and otherwise to incur
expenses which it deems necessary or desirable in order to properly perform its
duties hereunder. Any and all expenses or charges properly incurred in
accordance with the provisions of this Section (10) shall, unless otherwise paid
by the Company, which shall have complete discretion in this regard, be paid
from the Trust Fund.
(11) FUNDING POLICY. The Committee shall be responsible for
the establishment of a policy for the funding of the Plan that is consistent
with the needs and objectives of the Plan and with the requirements of ERISA.
(12) QUALIFIED DOMESTIC RELATIONS ORDER. The Committee will
establish reasonable procedures for determining the qualification status of a
domestic relations order. Such procedures will:
(a) Be in writing;
(b) Provide to each person specified in a domestic
relations order as entitled to payment of Plan
benefits notification of such procedures promptly
upon receipt of the order by the Plan; and
(c) Permit an alternate payee to designate a
representative for receipt of copies of notices that
are sent to the alternate payee.
Within a reasonable period of time after receipt of such order, the Committee
will determine if such order is a qualified domestic relations order and will
notify the Participant and each alternate payee of such determination. During
any period in which the issue of whether a domestic relations order is a
qualified domestic relations order is being determined, the Committee will
segregate in a separate Account the amounts that would have been payable to the
alternate payee during such period if the order had been determined to be a
qualified domestic relations order. If, within 18 months, the order is
determined not to be a qualified domestic relations order, or the issue as to
whether such order is a qualified domestic relations order is not resolved, then
the Committee will pay under the terms of the Plan the segregated amounts to the
person or persons who would have
XII-2
<PAGE> 45
been entitled to such amounts if there had been no order. If a Plan fiduciary
acts in accordance with the fiduciary responsibility provisions of ERISA, then
the Plan's obligation to the Participant and each alternate payee will be
discharged to the extent of any payment made.
(13) COMPENSATION AND EXPENSES OF PLAN FIDUCIARIES AND PLAN
ADMINISTRATION. The compensation and expenses of Plan fiduciaries and the
expenses of administering the Plan and investing the Plan assets will be paid by
the Plan, by a Participating Company, by the Participants, or by any combination
of the above, as determined by the Company in its discretion and in accordance
with procedures promulgated by the Company.
XII-3
<PAGE> 46
ARTICLE XIII
ESTABLISHMENT OF TRUST
----------------------
(1) TRUST FUND. A Trust Fund shall be established by a Trustee
or Trustees appointed and/or removed from time to time by the Company acting
through its authorized officer or officers into which shall be deposited all
assets of the Plan. The Company acting through its authorized officer or
officers may, without reference to any Participant or other party, enter into a
trust agreement and make such amendment to such trust agreement or such further
amendments as it in its sole discretion may deem necessary or desirable to carry
out the Plan. The corpus and net income of the Trust Fund, after payment of any
Plan administrative expenses, shall not be used for or diverted to purposes
other than for the exclusive benefit of Participants and their Beneficiaries.
(2) TRUSTEE. The Trustee shall have title to, and be
responsible for, the general management, supervision and preservation of the
assets it or he holds of the Trust Fund.
(3) POWERS OF TRUSTEE. The Trustee shall have such powers,
rights, privileges, duties, liabilities and immunities, and shall be entitled to
receive such reasonable compensation, as are provided for under the terms of its
Trust Agreement with the Company.
XIII-1
<PAGE> 47
ARTICLE XIV
AMENDMENT
---------
(1) AMENDMENTS TO PLAN. The Company shall have the right, at
any time, and from time to time, without the consent of the Trustee, any
Participant, Beneficiary or other interested party:
(a) To amend this Plan, both prospectively and retroactively,
in such manner as it may deem necessary or advisable in order
to qualify the Plan and Trust under, or to satisfy any
provision of, any law, regulation, ruling or order now or
hereafter existing, including, but not limited to, Code
Sections 401(a) and 501(a) and/or any provision of ERISA; and
(b) To amend this Plan, both prospectively and retroactively,
in any other manner, provided, however, that no such amendment
shall forfeit or diminish the nonforfeitable and vested
interest of any Participant in the Trust Fund, nor shall any
amendment be made which shall permit any part of the Trust
Fund to be used for or diverted to purposes other than for the
exclusive benefit of Participants or their Beneficiaries.
(2) ADOPTION OF AMENDMENTS. Any such amendment shall be
adopted by resolution of the Board of Directors of the Company. A copy of such
resolution, either reciting the amendment or having a copy of the amendment
attached thereto, shall be delivered to the Trustee. In case the Trustee should
disapprove of such amendment, it may resign or be removed by the Company.
(3) AMENDMENT OF VESTING SCHEDULE. Notwithstanding anything in
this Article to the contrary, in the event that an amendment to the Plan is
adopted which would directly or indirectly affect the computation of the
nonforfeitable percentage of Participants' Accrued Benefits, each Participant
who, as of the last day of the election period described below, has completed at
least three (3) years of service (whether or not consecutive) with the Company
shall be permitted to elect to have the nonforfeitable percentage of his Accrued
Benefit determined without regard to such amendment; provided, however, that no
such election need be provided to any Participant whose nonforfeitable
percentage of his Accrued Benefit as determined under the amendment at all times
will be equal to or greater than such percentage determined without regard to
the amendment. For purposes of this Section (3), any such election to be
effective must be made in writing and filed with the Committee not later than
sixty (60) days following the latest of (i) the date the amendment was adopted,
(ii) the date the amendment became effective, or (iii) the date written notice
of the amendment was issued to the Participant by the Company or the Committee.
Such election, once made, shall be irrevocable. This Section (3) shall not be
construed to permit an amendment to the Plan proscribed by paragraph (b) of
Section (1) of this Article.
XIV-1
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ARTICLE XV
TERMINATION
-----------
(1) TERMINATION OF PLAN AND TRUST. The Company expressly
reserves the right to terminate this Plan and the Trust as to all Participating
Companies at any time. Termination of the Plan and the Trust shall be effected
by, and shall be in accordance with, resolution of the Board of Directors. Each
Participating Company expressly reserves the right to terminate its
participation in the Plan and the Trust. Termination of participation in the
Plan and the Trust by a Participating Company shall be effected by, and shall be
in accordance with resolution of its Board of Directors.
(2) AUTOMATIC TERMINATION OF PLAN. This Plan shall terminate
automatically with respect to a Participating Company in the event:
(a) The Participating Company is dissolved and liquidated; or
(b) The Participating Company is merged or consolidated with a
successor or transfers to a successor all or substantially all
of its assets and the successor does not, within sixty (60)
days thereafter, elect to continue this Plan and the Trust
pursuant to Section (3) hereof; or
(c) The Participating Company by appropriate legal
proceedings, shall be adjudicated bankrupt or adjudicated
insolvent; or
(d) Judicial proceedings of any kind result in the involuntary
liquidation of the Participating Company.
(3) CONTINUATION OF PLAN. Unless this Plan is sooner
terminated, a successor to the business of a Participating Company, by whatever
form or manner resulting, may elect to continue this Plan and the Trust and
become a party hereto by executing appropriate supplemental agreements and any
other necessary documents; and such successor shall thereupon succeed to all of
the rights, powers and duties of the Participating Company hereunder. The
employment of any employee who shall continue in the employ of such successor
who adopts the Plan shall not be deemed to have been terminated or severed for
any purpose hereunder.
(4) VALUATION OF TRUST FUND AND VESTING. Upon the termination
or partial termination of this Plan or the complete discontinuance of
contributions hereunder, the Trustee shall, as of such date, revalue the Trust
Fund. Such allocations and adjustments shall then be made with respect to the
interests of Participants and Beneficiaries under said Plan and the Trust as are
required to be made as of an Anniversary Date. The amount then credited to each
Participant's (or each affected Participant's in the case of a partial
termination) or Beneficiary's Account shall become fully vested in said
Participant or Beneficiary and shall thereafter be nonforfeitable. If amounts
remain in the Forfeiture Account after the termination of the Plan or complete
discontinuance of contributions, such amounts shall be returned to the
Participating Companies.
(5) DISTRIBUTIONS UPON TERMINATION OF PLAN AND TRUST. Upon the
termination or partial termination of this Plan or the complete discontinuance
of contributions hereunder, the interests of Participants (or affected
Participants in the case of a partial termination) and Beneficiaries, as
determined in accordance with Section (4) hereof, may be distributed either
immediately or as otherwise provided in this Plan. The Company shall have
complete discretion in this regard; and, unless and until it receives
instructions to the contrary, the Trustee shall continue to administer the Trust
Fund and shall make distributions as though such termination or discontinuance
had not occurred. Anything in this Plan to the contrary notwithstanding, until
such
XV-1
<PAGE> 49
time as there has been a complete distribution of all assets of the Trust
Fund following termination of the Plan or complete discontinuance of
contributions hereunder, this Plan and Trust shall remain in effect for the
limited purpose of providing such operational rules as may be necessary for
administering the Plan and Trust prior to such total distribution.
(6) PARTIAL TERMINATION. If, at any time, all or substantially
all of the business of a Participating Company or any recognizable division or
divisions thereof is sold, transferred, terminated, abandoned, discontinued or
otherwise disposed of, and the employment of all or substantially all of the
employees of such business, division or divisions is terminated as a result
thereof, this Plan shall immediately thereafter terminate with respect to such
employees (unless the successor, if any, to such business, division or divisions
employs all or substantially all of the former employees of such business,
division or divisions and elects by appropriate action to continue this Plan
with respect to such employees); and the provisions herein relating to vesting
of Participants' interests and procedure on termination shall, to the extent
applicable, govern and control such partial termination.
XV-2
<PAGE> 50
ARTICLE XVI
MISCELLANEOUS PROVISIONS
------------------------
(1) PLAN FOR EXCLUSIVE BENEFIT OF PARTICIPANTS. It shall be,
and is hereby made, impossible, upon the termination of the Plan and Trust, or
pursuant to any amendment of the Plan and Trust or otherwise, at any time, for
all or any part of the Trust Fund to be used for or diverted to purposes other
than for the exclusive benefit of Participants or their Beneficiaries; provided,
however, nothing herein contained shall preclude payment from the Trust Fund of
costs and expenses incurred in connection with, or arising out of the operation
of, the Plan and Trust.
(2) REQUIRED ACTS. All parties to the Plan and Trust or
claiming any interest hereunder shall perform any and all acts and execute any
and all documents and papers which are necessary or desirable for carrying out
the Plan and Trust or any of its provisions.
(3) JURISDICTION. The Plan and Trust shall be construed
according to the laws of the State of Ohio, and all provisions hereof shall be
administered according to the laws of that State. In case any provision of the
Plan and Trust shall be or become invalid, such fact shall not affect the
validity of any other provision.
(4) NO RIGHT TO CONTINUED EMPLOYMENT. Under no circumstances
shall the Plan and Trust or the participation of an Employee hereunder
constitute a contract of continuing employment or in any manner obligate a
Participating Company to continue or to discontinue the services of any
employee.
(5) BENEFITS TO BE PROVIDED SOLELY FROM TRUST FUND. Any
Participant or Beneficiary or other person who claims the right to any payment
under the Plan and Trust shall be entitled to look only to the Trust Fund for
such payment; and no liability for the payment of benefits or any other claims
under or arising out of the Plan and Trust shall be imposed upon a Participating
Company, its officers or trustees.
(6) ACCOUNTING SERVICES. If, and to the extent, required by
applicable law or regulation, there shall be engaged, on behalf of all
Participants in the Plan and Trust, an independent Certified Public Accountant
to perform all accounting services necessary for compliance with the
requirements of Title I, Subtitle B, Part 1 of ERISA. The cost of such
accounting services shall be charged to and paid from the Trust Fund, unless the
Company, in its sole discretion shall determine otherwise.
(7) REFERENCES TO CODE, STATUTES AND REGULATIONS. Any and all
references in the Plan to any provision of the Code, ERISA, or any other
statute, law, regulation, ruling, or order shall be deemed to refer also to any
successor provision, statute, law, regulation, ruling or order.
(8) DISCRETIONARY POWERS. Any provision of the Plan and Trust
which requires the exercise of discretionary powers by the Committee or a
Participating Company shall be administered in a uniform manner for employees in
similar circumstances and shall not be applied in any manner which discriminates
in favor of officers, shareholders, or highly-paid employees of a Participating
Company.
(9) ALLOCATION OF FIDUCIARY RESPONSIBILITIES. To the extent
that a Participating Company, the Committee and/or the Trustee function as
fiduciaries with respect to the Plan and Trust, they shall be deemed to be named
fiduciaries, as that term is used in Section 402 of ERISA; and, except as
otherwise limited by Section 405(c) of ERISA, they shall have full authority to
allocate responsibilities among themselves and to designate others to perform
their responsibilities;
XVI-1
<PAGE> 51
provided, however, that to the extent that specific responsibilities are
assigned by this Agreement to different fiduciaries, no fiduciary shall be
liable for errors or omissions involving another fiduciary's individually
assigned area of responsibility.
(10) LIABILITY OF FIDUCIARIES. Each Participating Company, and
its Directors, officers and employees, and the Committee, and each member
thereof, shall be free from liability, joint or several, for personal acts,
omissions, and conduct, and for the acts, omissions and conduct of duly
constituted agents, in the administration of this Plan, except to the extent
that the effects and consequences of such personal acts, omissions or conduct
shall result from willful misconduct; provided, however, that this Section (10)
shall not operate to relieve any of the aforementioned from any responsibility
or liability for any responsibility, obligation, or duty under Part 4 of
Subtitle B of Title I of ERISA; and further provided that any individual who is
held liable for the effects and consequences of personal acts, omissions or
conduct in the administration of the Plan shall be indemnified and saved
harmless by the Company, except to the extent that such effects and consequences
resulted from willful misconduct.
(11) MERGER, CONSOLIDATION OF TRANSFER OF ASSETS OR
LIABILITIES OF THE PLAN. In no event shall this Plan be merged or consolidated
with, or the assets or liabilities of the Plan be transferred to, any other plan
unless each individual who was a Participant in this Plan immediately before
such merger, consolidation or transfer would receive immediately after such
merger, consolidation or transfer if the resulting or transferee plan then
terminated a benefit equal to or greater than the benefit each such individual
would have received under this Plan if this Plan had terminated immediately
before such merger, consolidation or transfer.
(12) NO DIVESTMENT FOR CAUSE. No interest of a Participant
under this Plan shall be subject to divestment for cause.
(13) PARTICIPATING COMPANIES. With the consent of the Company,
any corporation which is a member of a controlled group of corporations (within
the meaning of Section 414(b) of the Code) of which the Company is a member may
become a Participating Company in the Plan and the Trust by executing with the
Company and the Trustee such agreements and documents as may be required
thereby.
(14) SPECIAL RULES RELATING TO VETERANS REEMPLOYMENT RIGHTS
UNDER USERRA. Notwithstanding any provision of the Plan to the contrary,
effective December 12, 1994, contributions, benefits and service credit with
respect to a qualified military service shall be provided under the Plan in
accordance with Section 414(u) of the Code.
XVII-2
<PAGE> 52
ARTICLE XVII
TOP-HEAVY PROVISIONS
--------------------
(1) The provisions of this Article shall become effective for
any Plan Year in which the Plan is top-heavy (as determined pursuant to this
Article).
(2) With respect to each Plan Year, the Committee shall
determine if the Plan is top-heavy. The determination as to whether the Plan is
top-heavy for such a Plan Year is to be made as of the Determination Date for
such Plan Year.
(3) The Plan shall be top-heavy for a Plan Year (a) if the
Plan's Top-Heavy Ratio for the Plan Year is greater than sixty percent (60%), or
(b) if the Plan is a member of a Required Aggregation Group for which the
Top-Heavy Ratio for the Plan Year is greater than sixty percent (60%); provided,
however, that the Plan shall not be top-heavy for a Plan Year if the Plan is a
member of a Required Aggregation Group or Permissive Aggregation Group for which
the Top-Heavy Ratio is sixty percent (60%) or less.
(4) For any Plan Year with respect to which the Plan is
top-heavy, there shall be allocated to the Account of each Participant who
satisfies the requirements of (a), (b) and (c) below, a Participating Company
contribution in an amount not less than the Participant's Minimum Contribution
Amount. This requirement shall apply with respect to each Participant who:
(a) Is a Non-Key Employee for the Plan Year; and
(b) Is an Eligible Employee on the last of the Plan Year.
Such allocation shall be made either through an additional
Participating Company contribution (which need not be made from current or
accumulated profits) for the Plan Year or through a reallocation of the
Participating Company contributions otherwise made for the Plan Year.
(5) For any Plan Year with respect to which the Plan is
top-heavy, the vested and nonforfeitable interest of a Participant in his
Account will be determined under the provisions of Article VIII hereof.
(6) For any Plan Year with respect to which the Plan is
top-heavy, the number "1.00" shall be substituted for the number "1.25" in
Article VI, Sections (1)(c)(i) and (1)(c)(ii)(A) hereof; provided, however, that
a Participant's benefit under any defined benefit plan accrued during any Plan
Years with respect to which this Plan was not top-heavy shall not be reduced as
a result of such substitution.
(7) For purposes of this Article, the following words and
phrases have the meanings ascribed to them below.
(a) "Participating Company" means (i) any corporation that is a member
of a controlled group of corporations (within the meaning of Code Section
414(b)) of which the Participating Company is a member; (ii) any trade or
business which, together with the Participating Company, is under common.
XVII-1
<PAGE> 53
(b) "Determination Date" means (i) with respect to any Plan Year other
than the first Plan Year of the Plan, the last day of the preceding Plan Year of
the Plan, and (ii) with respect to the first Plan Year of the Plan, the last day
of such Plan Year.
(c) "Key Employee" means, for a Plan Year, an employee or former
employee who, at any time during the Plan Year or during any of the four
preceding Plan Years, is:
(i) an officer of a Participating Company having
compensation greater than fifty percent (50%) of the
amount in effect under Code Section 415(b)(1)(A) for
the calendar year in which any such Plan Year ends;
or
(ii) one of the ten employees of a Participating Company
having annual compensation from the Participating
Companies of more than the limitation in effect under
Code Section 415(c)(1)(A) for the calendar year in
which such Plan Year ends and owning (or considered
as owning within the meaning of Code Section 318)
both more than a one-half percent (0.5%) interest and
the largest interest in the Participating Company; or
(iii) a 5-percent owner of a Participating Company; or
(iv) a 1-percent owner of the Participating Company having
annual compensation from the Participating Company of
more than $150,000.
For purposes of (i) above, no more than 50 employees (or, if
less, the greater of 3 employees or 10 percent of the
employees) shall be treated as officers. For purposes of
clause (ii), if two employees have the same interest in the
Participating Company, the employee having the greatest annual
compensation from the Participating Company shall be treated
as having the largest interest. "Non-Key Employee" means any
employee who is not a Key Employee. For the purposes of
determining the top ten owners of the Participating Company,
5-percent owners of the Participating Company and 1-percent
owners of the Participating Company, the aggregation rules of
Code Section 414(b), (c) and (m) shall not apply. The terms
Key Employee, former Key Employee and Non-Key Employee shall
include the beneficiaries of such individuals and inherited
benefits will retain the character of the benefits of the
employee who performed the services for the Participating
Company. The identity of Key Employees and Non-Key Employees
shall be made in accordance with, and pursuant to, Code
Section 416(i) and Treasury Regulations and rules issued
thereunder, and the criteria for determining which individuals
are Key Employees and Non-Key Employees, respectively, shall
be as set forth in Code Section 416(i) and Treasury
Regulations and rules thereunder.
(d) "Minimum Contribution Amount" of an eligible Non-Key Employee for a
Plan Year with respect to which the Plan is top-heavy is three percent (3%) of
the Participant's Top-Heavy Compensation; provided, however, that the Minimum
Contribution Amount of a Non-Key Employee shall not exceed a percentage of his
Top-Heavy Compensation equal to the largest percentage of Top-Heavy Compensation
contributed by the Participating Company for the Plan Year on behalf of a Key
Employee.
Elective Deferrals made by a Participating Company on behalf
of a Participant under a salary reduction agreement described under Code Section
401(k) shall be taken into account in determining the Minimum Contribution
Amount of a Non-Key Employee under Code Section 416(c)(2); however, such
Elective Deferrals may not be used to satisfy the Minimum
XVII-2
<PAGE> 54
Contribution Amount required under this Article. If, in any top-heavy year, the
highest percentage of Participating Company contributions and forfeitures
allocated to any Key Employee is less than three percent (3%), amounts allocated
as a result of any Key Employee's Elective Deferrals must be included in
determining the Participating Company contribution made on behalf of such Key
Employees.
(e) "Permissive Aggregation Group" means the group consisting of the
Required Aggregation Group and any other qualified plan or plans maintained by,
or contributed to, by the Participating Company if such group would continue to
meet the requirements of Code Sections 401(a)(4) and 410 with such plan or plans
being taken into account.
(f) "Required Aggregation Group" means the group consisting of the Plan
and (i) each other qualified plan maintained, or contributed to, by the
Participating Company in which a Key Employee is a participant or participated
in at any time during the determination period (regardless of whether the plan
has terminated), and (ii) each other qualified plan maintained, or contributed
to, by the Participating Company which enables a plan described in (i) above to
meet the requirements of Code Section 401(a)(4) or 410. For purposes hereof, the
term "qualified plan" means a plan that satisfies the requirements for
qualification set forth in Code Section 401(a).
(g) "Top-Heavy Ratio" means the percentage determined for a Plan Year
under whichever of the following is applicable:
(i) For purposes of computing the Top-Heavy Ratio of the
Plan itself, the percentage determined by dividing
the aggregate of the accounts of Key Employees under
the Plan (as of the Determination Date of the Plan
Year in question) (including any part of any Account
distributed in the five-year period ending on the
Determination Date) by the aggregate of the accounts
of all Key Employees and Non-Key Employees under the
Plan (as of the Determination Date of the Plan Year
in question) (including any part of any Account
distributed in the five-year period ending on the
Determination Date).
(ii) For purposes of computing the Top-Heavy Ratio of a
Required Aggregation Group or Permissive Aggregation
Group of which the Plan is a member, the percentage
determined by dividing the sum (as of the
Determination Date of the Plan Year in question) of
the present value of the cumulative accrued benefits
for Key Employees under all defined benefit plans
included in such group plus the aggregate of the
accounts of Key Employees under all defined
contribution plans included in such group by a
similar sum determined for all Key Employees and
Non-Key Employees. The accrued benefits under a
defined benefit plan in both the numerator and
denominator of the Top-Heavy Ratio are increased for
any distribution of an accrued benefit made in the
five-year period ending on the determination date.
For purposes of computing the Top-Heavy Ratio, the accrued benefit of
an employee who has not performed any service for the Company at any time during
the five-year period ending on the Determination Date shall be excluded from the
calculation. The computation of the Top-Heavy Ratio shall be made pursuant to,
and in accordance with, the method prescribed by the provisions of the method
prescribed by the provisions of Code Section 416(g)(4)(F), providing that the
accrued benefit of any Non-Key Employee shall be determined under the method
which is used for
XVII-3
<PAGE> 55
accrual purposes of all plans of the Participating Company, or if there is no
such method, such accrued benefit shall be determined as if such benefit accrued
no more rapidly than the slowest accrual rate permitted under Code Section
411(b)(1)(C).
(h) For purposes of this Article, "Valuation Date" means the most
recent date within the twelve (12) month period ending on the Determination Date
on which Plan assets are valued by the Trustee for the purpose of determining
the value of an Account balance.
IN WITNESS WHEREOF, the Company acting through its duly authorized
officer, has caused this Agreement to be executed as of this ____ day of
__________, 1998.
DAIRY MART CONVENIENCE STORES, INC.
By:/s/
---------------------------------------
Robert B. Stein, Chairman of the Board.
President and Chief Executive Officer
XVII-4
<PAGE> 1
EXHIBIT 5
---------
Opinion of Baker & Hostetler
June 8, 1998
Dairy Mart Convenience Stores, Inc.
300 Executive Parkway West
Hudson, Ohio 443236
Re: Class A Common Shares issuable under the
Dairy Mart Convenience Stores, Inc. 401(k)
SAVINGS AND PROFIT SHARING PLAN (THE "PLAN")
--------------------------------------------
Gentlemen:
We have acted as counsel to Dairy Mart Convenience Stores,
Inc., a Delaware corporation (the "Company"), in connection with the Company's
Registration Statement on Form S-8 (the "Registration Statement") being filed
under the Securities Act of 1933, as amended, relating to the offering of up to
300,000 shares of Class A Common Shares, $.0l par value (the "Common Stock"), of
the Company pursuant to the Plan.
In connection with the foregoing, we have examined: (a) the
Articles of Incorporation and Bylaws of the Company, (b) the Plan, and (c) such
records of the corporate proceedings of the Company and such other documents as
we deemed necessary to render this opinion.
Based on such examination, we are of the opinion that the
Common Stock available for issuance under the Plan, when issued and sold
pursuant to the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this Opinion as Exhibit 5
to the Registration Statement. In giving our consent, we do not hereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
/S/
Baker & Hostetler LLP
<PAGE> 1
EXHIBIT 23(A)
-------------
Consent of Arthur Andersen LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement on Form S-8 of our
report dated April 30, 1998 included in Dairy Mart Convenient Stores, Inc.'s
Annual Report on Form 10-K for the year ended January 31, 1998 and to all
references to our Firm included in this registration statement.
Arthur Andersen LLP
Cleveland, Ohio,
June 8, 1998.
<PAGE> 1
EXHIBIT 23(B)
-------------
Consent of Baker & Hostetler (included in Exhibit 5)
