<PAGE>
As filed with the Securities and Exchange Commission on December 3, 1999
Registration No. 33-18278
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST EFFECTIVE AMENDMENT NO. 11
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
MANDALAY RESORT GROUP*
(Exact name of issuer as specified in its charter)
Nevada 88-0121916
(State of incorporation) (I.R.S. Employer Identification No.)
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
(702) 632-6700
(Address of principal executive offices, zip code and telephone number)
----------------
MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING AND INVESTMENT PLAN
----------------
Yvette Landau, General Counsel
Mandalay Resort Group
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119
(702) 632-6700
(Name, address and telephone number of agent for service)
Copy to:
Howell J. Reeves, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
1650 Arch Street--22nd Floor
Philadelphia, Pennsylvania 19103-2097
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* Effective June 18, 1999, Circus Circus Enterprises, Inc. amended its
Articles of Incorporation to change its name to Mandalay Resort Group.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART I
A prospectus setting forth the information required by Part I of Form S-8
will be sent or given to plan participants as specified by Rule 428(b)(l)(i).
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Mandalay Resort Group
(which filed such documents under its previous corporate name "Circus Circus
Enterprises, Inc. until it changed its corporate name on June 18, 1999) and
the Mandalay Resort Group Employees' Profit Sharing and Investment Plan,
formerly the Circus Circus Employees' Profit Sharing and Investment Plan (the
"Plan") are incorporated by reference in this registration statement:
(a) the Annual Report of Mandalay Resort Group on Form 10-K for the fiscal
year ended January 31, 1999;
(b) the Quarterly Reports of Mandalay Resort Group on Form 10-Q for the
fiscal quarters ended April 30, 1999 and July 31, 1999, respectively;
(c) the Current Report of Mandalay Resort Group on Form 8-K dated June 18,
1999;
(d) the description of Mandalay Resort Group's common stock contained in its
Form 8-A Registration Statement declared effective by the Commission on
October 25, 1983, and any amendments or reports filed for the purpose of
updating such description;
(e) the description of Mandalay Resort Group's common stock purchase rights
contained in its Form 8-A Registration Statement declared effective by the
Commission on August 12, 1994, and any amendments or reports filed for the
purpose of updating such description;
(f) the Plan's Annual Report on Form 11-K for the year ended December 31,
1998 and Amendment No. 1 thereto on Form 11-K/A dated June 29, 1999; and
(g) all documents subsequently filed by Mandalay Resort Group or the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities offered
hereby then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Revised Statutes (the "Nevada Law") permits a
corporation to indemnify any of its directors, officers, employees and agents
against costs and expenses arising from claims, suits and proceedings if such
persons acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. Notwithstanding the foregoing, in an action by or in the right
of the corporation, no indemnification may be made in respect of any claim,
issue or matter, as to which such person is adjudged to be liable to the
corporation unless a court of competent jurisdiction determines that in view
of all
II-1
<PAGE>
the circumstances of the case, indemnification would be appropriate. The
indemnification provisions of the Nevada Law expressly do not exclude any other
rights a person may have to indemnification under any bylaw, among other
things.
In accordance with Nevada Revised Statutes 78.037, Article XI of Mandalay
Resort Group's Restated Articles of Incorporation provides that no director or
officer of Mandalay Resort Group shall be personally liable to Mandalay Resort
Group or its stockholders for damages for breach of fiduciary duty as a
director or officer, except for (a) acts or omissions which include intentional
misconduct, fraud or a knowing violation of law, or (b) the payment of
dividends in violation of Nevada Revised Statutes 78.300.
Article X, Section 10.2 of Mandalay Resort Group's Restated Bylaws provides
for mandatory indemnification of directors and officers to the fullest extent
now or hereafter permitted by law.
Mandalay Resort Group maintains a liability insurance policy under which
officers and directors are generally indemnified against losses and liability
(including costs, expenses, settlements, and judgments) incurred by them in
such capacities, individually or otherwise, other than specified excluded
losses. The insurance policy will pay on behalf of Mandalay Resort Group all
covered losses for which Mandalay Resort Group grants indemnification of each
officer or director as permitted by law which the officer or director becomes
legally obligated to pay on account of an indemnifiable claim. The policy would
generally cover, in addition to other liabilities, liabilities arising under
the federal securities laws; however, the subject of loss may not include any
claim or claims under federal or state law arising out of or relating to (i)
the filing of a registration statement with the Securities and Exchange
Commission or the offer or sale by means of a prospectus of any security with
respect to which a registration statement has been filed, including, but not
limited to, any claim asserting that such registration statement or prospectus
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) any underwriting agreement for the offer or sale of any
security, or (iii) any accounting of profits from the purchase or sale of
securities of Mandalay Resort Group under Section 16(b) of the Securities
Exchange Act of 1934 or a similar state law.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
<TABLE>
<C> <S>
3(i)(a) Restated Articles of Incorporation of Mandalay Resort Group as of July
15, 1988 and Certificate of Amendment thereto, dated June 29, 1989
(Incorporated by reference to Exhibit 3(a) to the Annual Report of
Mandalay Resort Group on Form 10-K for the fiscal year ended January
31, 1991).
3(i)(b) Certificate of Amendment of the Restated Articles of Incorporation
(Incorporated by reference to Exhibit 3(i) to Mandalay Resort Group's
Current Report on Form 8-K dated June 18, 1999).
3(i)(c) Certificate of Division of Shares into Smaller Denominations, dated
June 20, 1991 (Incorporated by reference to Exhibit 3(b) to Mandalay
Resort Group's Annual Report on Form 10-K for the fiscal year ended
January 31, 1992).
3(i)(d) Certificate of Division of Shares into Smaller Denominations, dated
June 22, 1993 (Incorporated by reference to Exhibit 3(i) to Mandalay
Resort Group's Current Report on Form 8-K dated July 21, 1993).
3(ii) Restated Bylaws of Mandalay Resort Group (Incorporated by reference to
Exhibit 3(ii) to Mandalay Resort Group's Annual Report on Form 10-K
for the fiscal year ended January 31, 1997).
4(a) Rights Agreement, dated as of July 14, 1994, between Mandalay Resort
Group and First Chicago Trust Company of New York (Incorporated by
reference to Exhibit 4 to Mandalay Resort Group's Current Report on
Form 8-K dated August 15, 1994).
4(b) Amendment to Rights Agreement, effective as of April 16, 1996, between
Mandalay Resort Group and First Chicago Trust Company of New York
(Incorporated by reference to Exhibit 4(a) to Mandalay Resort Group's
Quarterly Report on Form 10-Q for the period ended July 31, 1996).
4(c) Group Annuity Contract No. GA70867, effective as of November 1, 1985
and related letters dated November 15, 1985 and December 4, 1985--
Incorporated by reference to Exhibit 4(c) to Mandalay Resort Group's
Registration Statement on Form S-8 (No. 33-1459).
4(d) Thirteenth Amendment and Restatement of the Plan.
4(e) Ninth Amendment and Restatement of the Mandalay Resort Group
Employees' Profit Sharing and Investment Trust.
5(a) Opinion of Schreck, Jones, Bernhard, Woloson & Godfrey, Chartered, Las
Vegas, Nevada.*
5(b) Internal Revenue Service determination letter, dated April 28, 1987--
Incorporated by reference to Exhibit 5(b) to Mandalay Resort Group's
Registration Statement on Form S-8 (No. 33-1459).
5(c) Opinion of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis,
Tampa, Florida.
5(d) Internal Revenue Service determination letter, dated May 23, 1995.*
5(e) Internal Revenue Service determination letter, dated July 22, 1997.*
23(a) Consent of Schreck, Jones, Bernhard, Woloson & Godfrey, Chartered.
Reference is made to Exhibit 5(a) hereto.
23(b) Consent of Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis.
Reference is made to Exhibit 5(c) hereto.
23(c) Consent of Arthur Andersen LLP
24 Power of Attorney. Included on Page II-5 hereof.
</TABLE>
- --------
* Previously filed as an exhibit to this Registration Statement.
II-3
<PAGE>
Item 9. Undertakings.
The undersigned registrants hereby undertake:
(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;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and 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 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Las Vegas, State of Nevada, on the 30th day of November, 1999.
Mandalay Resort Group
/s/ Michael S. Ensign
By_________________________________
Michael S. Ensign, Chairman of the
Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael S. Ensign and Glenn W. Schaeffer, and
each of them, his true and lawful attorney-in-fact and agent, 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 amendments (including 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 and necessary to be done, 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 substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed below by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/ Michael S. Ensign Chairman of the November 30,
- ------------------------------------- Board and Chief 1999
Michael S. Ensign Executive Officer
(Principal
Executive Officer)
/s/ William A. Richardson Vice Chairman of the November 30,
- ------------------------------------- Board 1999
William A. Richardson
/s/ Glenn W. Schaeffer President, Chief November 30,
- ------------------------------------- Financial Officer, 1999
Glenn W. Schaeffer Treasurer and
Director (Principal
Financial Officer)
II-5
<PAGE>
Signature Title Date
/s/ Les Martin Vice President and November 30,
- ------------------------------------- Chief Accounting 1999
Les Martin Officer (Principal
Accounting Officer)
/s/ William E. Bannen Director November 30,
- ------------------------------------- 1999
William E. Bannen
/s/ Arthur H. Bilger Director November 30,
- ------------------------------------- 1999
Arthur H. Bilger
/s/ Michael D. McKee Director November 30,
- ------------------------------------- 1999
Michael D. McKee
/s/ Rose McKinney-James Director November 30,
- ------------------------------------- 1999
Rose McKinney-James
/s/ Donna B. More Director November 30,
- ------------------------------------- 1999
Donna B. More
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
Plan has duly caused this Amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Las Vegas, State of
Nevada, on the 30th day of November, 1999.
Mandalay Employees' Profit Sharing
And Investment Plan
By Mandalay Resort Group
Plan Administrator
/s/ Michael S. Ensign
By __________________________________
Michael S. Ensign, Chairman of the
Board and Chief Executive Officer
II-6
<PAGE>
EXHIBIT 4(d)
THIRTEENTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING
AND INVESTMENT PLAN
<PAGE>
THIRTEENTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING
AND INVESTMENT PLAN
Table of Contents
<TABLE>
<CAPTION>
Page
Article Title Number
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<S> <C>
I Definitions.................................................. 1.
II Amendment and Restatement and Name of the Plan............... 17.
III Purpose of the Plan and the Trust............................ 17.
IV Plan Administrator........................................... 18.
V Eligibility and Participation................................ 20.
VI Contributions to the Trust................................... 21.
VII Participants' Accounts and Allocation of Contributions....... 32.
VIII Benefits Under the Plan...................................... 40.
IX Form and Payment of Benefits................................. 46.
X Designated Investments....................................... 50.
XI Withdrawals and Diversification Election..................... 53.
XII Trust Fund................................................... 55.
XIII Expenses of Administration of the Plan and the Trust Fund.... 56.
XIV Amendment and Termination.................................... 56.
XV Miscellaneous................................................ 59.
</TABLE>
<PAGE>
THIRTEENTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP
EMPLOYEES' PROFIT SHARING
AND INVESTMENT PLAN
This Thirteenth Amendment and Restatement of the Mandalay Resort Group
Employees' Profit Sharing and Investment Plan is made and entered into this 24th
day of November 1999, but is effective for all purposes as of January 1, 1997,
except as may be otherwise provided herein, by Mandalay Resort Group, formerly
known as Circus Circus Enterprises, Inc., (hereinafter referred to as the
"Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company and the other Employers have previously adopted the
Mandalay Resort Group Employees' Profit Sharing and Investment Plan (formerly
known as the Circus Circus Employees' Profit Sharing and Investment Plan), which
has been amended from time to time (as amended, the "Plan"); and
WHEREAS, pursuant to Article XIV of the Plan, the Company is authorized and
empowered to further amend the Plan; and
WHEREAS, the Company and the other Employers deem it advisable and in the
best interests of the Participants to amend the Plan to reflect changes made to
applicable law by recent Acts of Congress, and to make other desired changes.
NOW, THEREFORE, the Plan is hereby amended and restated in its entirety to
read as follows:
ARTICLE I
Definitions
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(a) "Account" shall mean, as required by the context, the entire amount
-------
held from time to time for the benefit of any one Participant, or the portion
thereof attributable to Savings Contributions, Matching Contributions, Automatic
Contributions, Discretionary Contributions or Rollover Contributions, as well as
ESOP Matching Contributions, ESOP Automatic Contributions, 401(k) Automatic
Contributions and 401(k) Employer Contributions made under Plan provisions
previously in effect. A Participant's ESOP Matching Contribution Account and
ESOP Automatic Contribution Account may each include an Employer Securities
Account and an Other Investments Account, as established pursuant to paragraph
(b) of Article VII.
<PAGE>
(b) "Actual Contribution Percentage" shall mean, with respect to a group
------------------------------
of Participants for the Plan Year, the average of the Actual Contribution Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group.
(c) "Actual Contribution Ratio" shall mean the ratio of the amount of
-------------------------
Matching Contributions (including elective contributions, if any, treated as
Matching Contributions in accordance with Treasury Regulation Section
1.401(m)-1(b)(5)) made on behalf of a Participant to the Participant's
Compensation.
(d) "Actual Deferral Percentage" shall mean, with respect to a group of
--------------------------
Participants for the Plan Year, the average of the Actual Deferral Ratios
(calculated separately for each member of the group) of each Participant who is
a member of such group.
(e) "Actual Deferral Ratio" shall mean the ratio of the aggregate amount
---------------------
of Savings Contributions (including Savings Contributions made by Highly
Compensated Employees in excess of the limitation set forth in paragraph
(a)(1)(A) of Article VI to the extent required by Treasury Regulation
(S)1.402(g)-1(e)(1)(ii)) made on behalf of a Participant to the Participant's
Compensation for the Plan Year.
(f) "Administrator" shall mean the Plan Administrator.
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(g) "Affiliate" shall mean, with respect to an Employer, any corporation
---------
other than such Employer that is a member of a controlled group of corporations,
within the meaning of Section 414(b) of the Code, of which such Employer is a
member; all other trades or businesses (whether or not incorporated) under
common control, within the meaning of Section 414(c) of the Code, with such
Employer; any service organization other than such Employer that is a member of
an affiliated service group, within the meaning of Section 414(m) of the Code,
of which such Employer is a member; and any other organization that is required
to be aggregated with such Employer under Section 414(o) of the Code. For
purposes of determining the limitations on Annual Additions, the special rules
of Section 415(h) of the Code shall apply.
(h) "Agreement of Trust" shall mean the agreement between one or more
------------------
Trustees and the Company providing for the investment of the portion of the
Trust Fund that is not invested in one or more Contracts, as may be amended from
time to time.
(i) (1) "Annual Additions" shall mean the sum of:
----------------
(A) the amount of Employer contributions (including Savings
Contributions other than amounts distributed as "excess deferrals" in
accordance with Treasury Regulation (S)1.402(g)-1(e)(2) or (3), as
well as Matching Contributions, Automatic Contributions and
Discretionary Contributions), allocated to the Participant during the
Limitation Year under any defined contribution plan maintained by an
Employer or an Affiliate;
2.
<PAGE>
(B) the amount of the Employee's contributions (other than
rollover contributions, if any) to any contributory defined
contribution plan maintained by an Employer or an Affiliate;
(C) except as provided in subparagraph (2), any forfeitures
separately allocated to the Participant under this Plan or any other
defined contribution plan maintained by an Employer or an Affiliate;
or
(D) to the extent required by law for purposes of determining the
limitations under paragraph (e)(1) of Article VII, any contributions
allocated to an individual account on behalf of such Participant under
Section 401(h) or Section 419A(d) of the Code.
(2) The amount of any Employer contribution allocated to a Participant
for purposes of subparagraph (1)(A), if such contribution is used to repay
a loan for the purchase of Employer Securities, shall be equal to the
Participant's share of the repayment, and not to the value of Employer
Securities released from a suspense account and allocated to such
Participant's Employer Securities Account as a result of such repayment. If
no more than one-third of an Employer's contributions for a Plan Year that
are used to repay a loan for the purchase of Employer Securities are
allocated to Highly Compensated Employees, the Annual Additions for such
Plan Year shall not include
(A) forfeitures of Employer Securities that were acquired with
the proceeds of a loan, and
(B) amounts used to pay interest on a loan used for the purchase
of Employer Securities.
(j) "Automatic Contribution" shall mean a contribution on behalf of a
----------------------
Participant by an Employer pursuant to paragraph (c) of Article VI.
(k) "Board of Directors" and "Board" shall mean the board of directors of
------------------ -----
the Company or, when required by the context, the board of directors of an
Employer other than the Company.
(l) "Code" shall mean the Internal Revenue Code of 1986, as amended, or
----
any successor statute. Reference to a specific section of the Code shall include
a reference to any successor provision.
(m) "Company" shall, effective June 18, 1999, mean Mandalay Resort Group
-------
and its successors.
(n) "Compensation" shall mean regular salaries and wages, overtime pay,
------------
bonuses and commissions paid (or, for Limitation Years beginning before January
1, 1992, accrued)
3.
<PAGE>
by an Employer, tips declared by or distributed to an Employee while
performing services for an Employer, Savings Contributions to this Plan,
and elective contributions to any plan maintained by an Employer pursuant
to Section 125 of the Code, but shall not include third party disability
payments, tax-deferred stock options, deductible relocation expense
payments, credits or benefits under this Plan (other than Savings
Contributions), any amount contributed to any pension, employee welfare,
life insurance or health insurance plan or arrangement, or any other
tax-favored fringe benefits (other than elective contributions to a Section
125 plan).
(2) For purposes of determining a Participant's Actual Contribution
Ratio and Actual Deferral Ratio pursuant to Article I with respect to any
Plan Year, no Compensation paid or accrued by an Employer with respect to
an Employee prior to the Employee's first day of participation shall be
taken into account.
(3) No Compensation in excess of $150,000 (adjusted by the
Commissioner of the Internal Revenue Service in accordance with Section
401(a)(17)(B) of the Code) shall be taken into account for any Employee.
(o) "Contract" shall mean an agreement between an Insurer and the Company
--------
or the Trustee to invest all or part of the assets of a Fund.
(p) "Direct Rollover" shall mean a payment of an Eligible Rollover
---------------
Distribution by the Plan to an Eligible Retirement Plan specified by the
Eligible Distributee.
(q) "Discretionary Contribution" shall mean a contribution pursuant to
--------------------------
paragraph (d) of Article VI of this Plan by an Employer on behalf of a
Participant.
(r) "Diversification Election" shall mean a Participant's election to
------------------------
diversify a portion of his ESOP Matching Contribution Account and/or ESOP
Automatic Contribution Account pursuant to paragraph (c) of Article XI.
(s) "Diversification Election Period" shall mean the six Plan Year period
-------------------------------
beginning with the later of:
(1) the Plan Year after the Plan Year in which the Participant
attains age 55; or
(2) the Plan Year after the Plan Year in which the Participant first
completes 10 years of participation in the Plan (disregarding participation
before January 1, 1989).
(t) "Earnings" shall mean, with respect to a Valuation Period, the
--------
aggregate of the unrealized appreciation or depreciation accruing to the Trust
Fund (or any Fund or separate portion of a Segregated Investment Fund) during
such a period; and the income earned or the loss sustained by the Trust Fund (or
any Fund or separate portion of a Segregated Investment Fund) during such
period, whether from investments or from the sale or exchange of assets. For
purposes of
4.
<PAGE>
determining the Earnings attributable to the portion of a Participant's ESOP
Matching Contribution Account and ESOP Automatic Contribution Account that is
invested in an Other Investments Account within the ESOP Fund, the term
"Earnings" shall include cash dividends received on Employer Securities, whether
or not allocated to Participants' Employer Securities Accounts, but shall not
include stock dividends and unrealized appreciation or depreciation attributable
to Employer Securities held in Participants' Employer Securities Accounts.
(u) "Effective Date" of this Amendment and Restatement shall mean January
--------------
1, 1996.
(v) "Eligible Distributee" shall mean, in connection with a distribution
--------------------
eligible for rollover to an Eligible Retirement Plan:
(1) a Participant or former Participant who is entitled to benefits
under the terms of this Plan as a result of his retirement, disability or
other severance of employment;
(2) the surviving Eligible Spouse of a Participant or former
Participant who is entitled to death benefits under the terms of this Plan;
and
(3) a spouse or former spouse of a Participant or former Participant
who is entitled to benefits under the terms of this Plan as the alternate
payee under a qualified domestic relations order, as defined in Section
414(p) of the Code.
(w) "Eligible Retirement Plan" shall mean an individual retirement account
------------------------
described in Section 408(a) of the Code, an individual retirement annuity
described in Section 408(b) of the Code, an annuity plan described in Section
403(a) of the Code, or a qualified trust described in Section 401(a) of the
Code, which accepts an Eligible Distributee's Eligible Rollover Distribution;
provided, however, that in the case of an Eligible Rollover Distribution to the
surviving Eligible Spouse of a Participant or former Participant who is entitled
to death benefits under the terms of the Plan, an Eligible Retirement Plan shall
be limited to an individual retirement account or individual retirement annuity.
(x) "Eligible Rollover Distribution" shall mean any distribution of all or
------------------------------
any portion of the balance to the credit of an Eligible Distributee, other than:
(1) any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made
(A) for the life (or life expectancy) of the Eligible
Distributee, or the joint lives (or life expectancies) of the Eligible
Distributee and the Eligible Distributee's designated beneficiary, or
(B) for a specified period of ten years or more;
5.
<PAGE>
(2) any distribution to the extent such distribution is required
under Section 401(a)(9) of the Code; and
(3) effective for distributions after December 31, 1998, any hardship
distributions described in Section 401(k)(2)(B)(i)(IV) of the Code; and
(4) 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).
Notwithstanding the foregoing provisions of this paragraph (x), an Eligible
Rollover Distribution shall not include any distributions during a Plan Year
with respect to a Participant if the aggregate amount distributed during the
Plan Year with respect to such Participant is less than $200 (adjusted under
such regulations as may be issued from time to time by the Secretary of the
Treasury).
(y) "Eligibility Date" shall mean January 1 and July 1 of each Plan Year.
----------------
(z) "Employee" shall mean any person employed by an Employer or an
--------
Affiliate or an individual required to be treated as an Employee by reason of
Section 414(n) of the Code (but only to the extent required by and for the
purposes specified in such Section 414(n)), other than a member of a collective
bargaining unit covering employees working at Circus Circus Reno (or any other
collective bargaining unit if retirement benefits were a subject of good faith
bargaining between such unit and an Employer); provided however, that:
(1) Members of a collective bargaining unit covering employees
working at Circus Circus Reno shall be considered Employees unless the
collective bargaining agreement applicable to such unit specifically
provides otherwise; and
(2) If any collective bargaining agreement, to which any Employer is
a party, specifically provides for the participation in the Plan by members
of the unit covered by such agreement, then such members shall be
considered Employees to the extent provided by such agreement.
(aa) "Employer" shall, effective June 1, 1998, mean the Company, Circus
--------
Circus Casinos, Inc., Slots-A-Fun, Inc., Edgewater Hotel Corporation, Colorado
Belle Corp., New Castle Corp., Ramparts, Inc., Ramparts International, Circus
Circus Mississippi, Inc., Mandalay Development, Railroad Pass Investment Group,
Jean Development Company, Jean Development West and Mandalay Corp., as well as
any other subsidiary, related corporation or other entity that adopts the Plan
with the consent of the Company. Railroad Pass Investment Group, Jean
Development Company and Jean Development West are, at times, collectively
referred to herein as the "Gold Strike Entities." The term "Employer" shall also
include:
(1) Effective as of July 1, 1998, Circus Circus Michigan, Inc.; and
6.
<PAGE>
(2) Effective as of January 1, 1999, Ramparts International.
(bb) "Employer Securities" shall mean common stock, any other type of stock
-------------------
or any marketable obligation (as defined in Section 407(e) of ERISA) issued by
the Company or any Affiliate of the Company; provided, however, that if Employer
Securities are purchased with borrowed funds, Employer Securities, to the extent
required by Section 4975 of the Code, shall only include:
(1) Such securities that are readily tradable on an established
securities market; or
(2) If none of the stock of an Employer (or any Affiliate of such
Employer other than a member of an affiliated service group that includes
such Employer) is publicly tradable on an established securities market,
common stock issued by the Employer having a combination of voting power
and dividend rights equal to or in excess of (A) that class of common stock
of the Employer or any Affiliate having the greatest voting power, and (B)
that class of common stock of the Employer or any Affiliate having the
greatest dividend rights; or
(3) Noncallable preferred stock that is convertible at any time into
stock meeting the requirements of subparagraph (1) or (2) (whichever is
applicable), if such conversion is at a reasonable price (determined as of
the date of acquisition by the Trustee).
(cc) "ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended, or any successor statute. References to a specific section of
ERISA shall include references to any successor provisions.
(dd) "ESOP Automatic Contribution" shall mean a contribution by an Employer
---------------------------
on behalf of a Participant attributable to any Plan Year beginning on or after
January 1, 1989, and ending prior to January 1, 1996, under the terms of the
Plan as in effect during such time.
(ee) "ESOP Matching Contribution" shall mean a contribution by an
--------------------------
Employer on behalf of a Participant attributable to any Plan Year beginning on
or after January 1, 1990, and ending prior to January 1, 1996, under the terms
of the Plan as in effect during such time.
(ff) "Fair Market Value" shall mean, for purposes of the valuation of
-----------------
Employer Securities, the closing price (or, if there is no closing price, then
the closing bid price) of such Employer Securities as reported on the Composite
Tape, or if not reported thereon, then such price as reported in the trading
reports of the principal securities exchange in the United States on which such
Employer Securities are listed, or if the Employer Securities are not listed on
a securities exchange in the United States, the mean between the dealer closing
"bid" and "ask" prices on the over-the-counter market as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ),
or NASDAQ's successor, or if not reported on NASDAQ, the fair market value of
the
7.
<PAGE>
securities as determined by an independent appraiser, as required by Section
401(a)(28)(C) of the Code.
(gg) "401(k) Automatic Contribution" shall mean a contribution on behalf of
-----------------------------
a Participant by an Employer attributable to any Plan Year ending prior to
January 1, 1989, under the terms of the Plan as in effect immediately prior to
such date.
(hh) "401(k) Employer Contribution" shall mean a matching contribution on
----------------------------
behalf of a Participant by an Employer attributable to any Plan Year ending
prior to January 1, 1990, under the terms of the Plan as in effect immediately
prior to such date.
(ii) "Fund" shall mean a fund established under Article X.
----
(jj) "Hardship" shall mean an immediate and heavy financial need of the
--------
Participant that cannot be met by his other reasonably available financial
resources.
(kk) "Highly Compensated Employee" shall mean:
---------------------------
(1) any Employee who:
(A) was a 5% owner of an Employer at any time during the Plan
Year or the preceding Plan Year; or
(B) for the preceding Plan Year,
(i) had Section 415 Compensation in excess of $80,000
(adjusted under such regulations as may be issued by the
Secretary of the Treasury); and
(ii) if an Employer elects the application of this
subsection (ii) for such preceding Plan Year, was a member of the
"top paid group." As used herein, "top paid group" shall mean
all Employees who are in the top 20% of the Employer's work force
on the basis of Section 415 Compensation paid during the year.
In determining whether an Employee is a Highly Compensated Employee for
Plan Years beginning after December 31, 1996, this subparagraph (2) shall
be treated as having been in effect for Plan Years beginning after December
31, 1995.
(2) any former Employee who separated from service (or was deemed to
have separated from service) prior to the Plan Year and performs no service
for an Employer during the Plan Year, but was an actively employed Highly
Compensated Employee in the Plan Year of his separation or any Plan Year
ending on or after the date he attained age 55.
8.
<PAGE>
(11) "Hour of Service" shall mean:
---------------
(1) (A) an hour for which an Employee is paid, or entitled to
payment, for the performance of duties for an Employer or an Affiliate;
(B) an hour for which an Employee is paid, or entitled to
payment, by an Employer or an Affiliate on account of a period of time
during which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), lay-off, jury duty, military duty or
leave of absence. Notwithstanding the preceding:
(i) no more than 501 Hours of Service shall be credited
under this section (B) to an Employee on account of any single
continuous period during which the Employee performs no duties
(whether or not such period occurs in a single Plan Year);
(ii) an hour for which an Employee is directly or
indirectly paid, or entitled to payment, on account of a period
during which no duties are performed shall not be credited to the
Employee if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable workers'
compensation, unemployment compensation or disability insurance
laws; and
(iii) an hour shall not be credited for a payment which
solely reimburses an Employee for medical or medically related
expenses incurred by the Employee; and
(C) an hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by an Employer or an Affiliate;
provided, however, that the same Hour of Service shall not be credited both
under section (A) or section (B), as the case may be, and under this
section (C). Crediting of an Hour of Service for back pay awarded or agreed
to with respect to periods described in section (B) shall be subject to the
limitations set forth in that section.
The definition set forth in this subparagraph (1) is subject to the special
rules contained in Department of Labor Regulations (S)(S)2530.200b-2(b) and
(c), and any regulations amending or superseding such sections, which
special rules are hereby incorporated in the definition of "Hour of
Service" by this reference.
(2) (A) Notwithstanding the other provisions of this paragraph (mm),
in the case of an Employee who is absent from work for any period by reason
of her pregnancy, by reason of the birth of a child of the Employee, by
reason of the placement of a child with the Employee in connection with the
adoption of such child by the Employee or for purposes of
9.
<PAGE>
caring for such child for a reasonable period beginning immediately
following such birth or placement, the Employee shall be treated as having
those Hours of Service described in section (B).
(B) The Hours of Service to be credited to an Employee under the
provisions of section (A) are the Hours of Service that otherwise would
normally have been credited to such Employee but for the absence in
question or, in any case in which the Plan is unable to determine such
hours, eight Hours of Service per day of such absence; provided, however,
that the total number of hours treated as Hours of Service under this
subparagraph (2) by reason of any such pregnancy or placement shall not
exceed 501 hours.
(C) The hours treated as Hours of Service under this
subparagraph (2) shall be credited only in the Plan Year in which the
absence from work begins, if the Employee would be prevented from incurring
a One Year Break in Service in such Plan Year solely because the period of
absence is treated as Hours of Service under this subparagraph (2), or, in
any other case, in the immediately following Plan Year.
(D) Credit shall be given for Hours of Service under this
subparagraph (2) solely for purposes of determining whether a One Year
Break in Service has occurred for participation or vesting purposes; credit
shall not be given hereunder for any other purposes (including, without
limitation, benefit accrual).
(E) Notwithstanding any other provision of this subparagraph
(2), no credit shall be given under this subparagraph (2) unless the
Employee in question furnishes to the Administrator such timely information
as the Administrator may reasonably require to establish that the absence
from work is for reasons referred to in section (A) and the number of days
for which there was such an absence.
(3) Solely for the Plan Year ending on December 31, 1995, and solely
to the extent provided in paragraph (lll) of this Article I, Employees of
Pinkless, Inc. and the Gold Strike Entities who were employed by such
entities continuously from January 1, 1995 until the respective dates such
entities became members of the Company's controlled groups shall receive
credit for hours that would have been Hours of Service if such entities had
been part of the Company's controlled group at the time such hours were
completed.
(mm) "Insurer" shall mean a legal reserve life insurance company licensed
-------
or authorized to transact business in the State of Nevada that shall issue a
Contract.
(nn) "Key Employee" shall mean any Employee or former Employee (and the
------------
beneficiaries of such Employee) who is at any time during the Plan Year (or was
at any time during the four preceding Plan Years):
10.
<PAGE>
(1) an officer of an Employer or an Affiliate having an aggregate
annual compensation from the Employer and its Affiliates in excess of 50%
of the amount in effect under Section 415(b)(1)(A) of the Code for any such
Plan Year; provided, however, that no more than the lesser of
(A) 50 Employees, or
(B) the greater of (i) three Employees or (ii) 10 percent of all
Employees,
shall be treated as officers, and such officers shall be those with the
highest annual compensation in the five-year period;
(2) one of the ten Employees owning (or considered as owning) the
largest interests in an Employer or an Affiliate, owning more than a 1/2%
interest in the Employer or an Affiliate, and having an aggregate annual
compensation from the Employer and its Affiliates of more than the
limitation in effect under Section 415(c)(1)(A) of the Code for the
calendar year that includes the last day of the Plan Year;
(3) a 5% owner of an Employer or an Affiliate; or
(4) a 1% owner of an Employer or an Affiliate having an aggregate
annual compensation from the Employer and its Affiliates of more than
$150,000.
Ownership, for purposes of sections (2), (3) and (4), shall be determined in
accordance with Section 416(i)(1)(B) and (C) of the Code. For purposes of
section (2), if two Employees have the same ownership interest in an Employer or
an Affiliate, the Employee having the greatest annual compensation from the
Employer and all Affiliates shall be treated as having a larger interest. For
purposes of this paragraph, "compensation" shall mean compensation as defined in
Section 415(c)(3) of the Code, but including amounts contributed by an Employer
on behalf of an Employee pursuant to a salary reduction agreement which are
excludable from the Employee's gross income under Section 125, Section
402(e)(3), Section 402(h), or Section 403(b) of the Code.
(oo) "Leave of Absence" shall mean the time granted to an Employee for
----------------
vacation, sick leave, temporary layoff or other purposes, all as authorized in
accordance with uniform rules adopted by his Employer from time to time. Leave
of Absence shall also include the time that an Employee serves in the armed
forces of the United States of America during a period of national emergency or
as a result of the operation of a compulsory military service law of the United
States of America and during any period after his discharge from such armed
forces in which his employment rights are guaranteed by law.
(pp) "Limitation Year" shall mean the Plan Year.
---------------
11.
<PAGE>
(qq) "Matching Contribution" shall mean a contribution on behalf of a
---------------------
Participant by an Employer pursuant to paragraph (b) of Article VI.
(rr) "Non-Key Employee" shall mean, with respect to any Plan Year, an
----------------
Employee or former Employee who is not a Key Employee (including any such
Employee who formerly was a Key Employee).
(ss) "Normal Retirement Date" shall mean the date on which a Participant
----------------------
attains the age of 65 years, or the 5th anniversary of the date the Participant
commenced participation in the Plan, whichever date occurs later.
(tt) "One Year Break in Service" shall mean a Plan Year (and, for
-------------------------
purposes of Article V, the year beginning with the date the Employee's
employment commenced) in which an Employee has 500 or fewer Hours of Service,
and it shall be deemed to occur on the last day of any such year.
(uu) "Participant" shall mean:
-----------
(1) any eligible Employee of an Employer who has become a
Participant under the Plan, except that an Employee who has made a Rollover
Contribution prior to his Eligibility Date shall be considered a
Participant solely with respect to his Rollover Contribution Account; and
(2) any former employee of an Employer who became a Participant under
the Plan and who still has a balance in an Account under the Plan.
(vv) "Plan" shall mean the profit sharing and investment plan as herein
----
set forth, as it may be amended from time to time.
(ww) "Plan Administrator" shall mean the Company.
------------------
(xx) "Plan Year" shall mean the 12-month period ending on December 31.
---------
(yy) "Pooled Investment Fund" shall mean a Fund established under Article
----------------------
X, the combined assets of which shall consist of the common investments of all
Participants selecting the Fund.
(zz) "Rollover Contribution" shall mean a contribution to this Plan by an
---------------------
Employee or a Participant pursuant to paragraph (b)(2) of Article V or paragraph
(j) of Article VI.
(aaa) "Savings Contribution" shall mean a contribution to this Plan on
--------------------
behalf of a Participant by an Employer pursuant to paragraph (a) of Article VI.
12.
<PAGE>
(bbb) "Section 415 Compensation" shall include all wages and other
------------------------
payments of compensation to a Participant from all Employers and all Affiliates
for personal services actually rendered for which the Employers and Affiliates
are required to furnish the Participant a written statement under Sections
6041(d) and 6051(a)(3) of the Code (and without regard to any provisions under
Section 3401(a) of the Code that limit the remuneration included in wages based
on the nature or location of the employment or the services performed);
provided, however, that for any Plan Year beginning after December 31, 1997, the
term "Section 415 Compensation" shall also include any amount that is
contributed by an Employer at the election of the Employee and that is not
includible in the gross income of the employee under Sections 125, 401(k),
402(h), 403(b), or 457 of the Code.
(ccc) "Segregated Investment Fund" shall mean a Fund established under
--------------------------
Article X, in which the assets of each Participant selecting the Fund shall be
separately invested, and for which the Earnings attributable to such assets
shall be separately accounted.
(ddd) "Top Heavy Plan" shall mean this Plan if the aggregate account
--------------
balances (not including voluntary rollover contributions made by any Participant
from an unrelated plan) of the Key Employees and their beneficiaries for such
Plan Year exceed 60% of the aggregate account balances (not including voluntary
rollover contributions made by any Participant from an unrelated plan) for all
Participants and their beneficiaries.
(1) Such values shall be determined for any Plan Year as of the
last day of the immediately preceding Plan Year. The account balances on
any determination date shall include the aggregate distributions made with
respect to Participants during the five-year period ending on the
determination date. For the purposes of this definition, the aggregate
account balances for any Plan Year shall include the account balances and
accrued benefits of all retirement plans qualified under Section 401(a) of
the Code with which this Plan is required to be aggregated to meet the
requirements of Section 401(a)(4) or 410 of the Code (including terminated
plans that would have been required to be aggregated with this Plan) and
all plans of an Employer or an Affiliate in which a Key Employee
participates; and such term may include (at the discretion of the Plan
Administrator) any other retirement plan qualified under Section 401(a) of
the Code that is maintained by an Employer or an Affiliate, provided the
resulting aggregation group satisfies the requirements of Sections 401(a)
and 410 of the Code.
(2) All calculations shall be on the basis of actuarial assumptions
that are specified by the Plan Administrator and applied on a uniform basis
to all plans in the applicable aggregation group.
(3) The account balance of any Participant shall not be taken into
account if:
(A) he is a Non-Key Employee for the Plan Year that includes the
determination date, but was a Key Employee for any prior Plan
Year, or
13.
<PAGE>
(B) he has not performed any service for an Employer during the
five-year period ending on the determination date.
(eee) "Trust" shall mean, collectively, the trust or trusts established by
-----
the Agreements and Declarations of Trust and the account or accounts established
by the Contracts.
(fff) "Trustee" shall mean the individual, individuals or corporation
-------
designated as trustee under an Agreement of Trust.
(ggg) "Trust Fund" shall mean, collectively, the trust funds and accounts
----------
established under all Agreements and Declarations of Trust and all Contracts
from which the amounts of supplementary compensation provided for by the Plan
are to be paid or are to be funded.
(hhh) "Valuation Date" shall mean, with respect to the Trust Fund and
--------------
distributions therefrom to terminated Participants or their beneficiaries, the
last day of each calendar month, and such other dates as the Plan Administrator
may select. Interim Valuation Dates no more frequently than weekly may be used
for purposes of facilitating hardship withdrawals.
(iii) "Valuation Period" shall mean the period beginning with the first
----------------
day after a Valuation Date and ending with the next Valuation Date.
(jjj) "Year of Credited Service" shall mean a Plan Year beginning on or
------------------------
after the Employee's date of employment or most recent date of reemployment,
whichever is later, during which the Employee completed 1,000 or more Hours of
Service; provided, however, that:
(1) No Employee who became a Participant after November 20, 1989
shall receive credit for any Plan Year prior to the Plan Year in which he
became a Participant, except that any Employee who would have been a
Participant in an earlier Plan Year if he had not been a member of a
collective bargaining unit shall have the same number of Years of Credited
Service that he would have had if he had not been a member of such unit.
(2) In the case of employees of Pinkless, Inc. who were
continuously employed by Hacienda Hotel, Inc. from January 1, 1995 through
September 1, 1995, January 1, 1995 shall be treated as the date of
employment for purposes of this paragraph.
(3) In the case of employees of the Gold Strike Entities who were
continuously employed by such employer from January 1, 1995 through June 1,
1995, January 1, 1995 shall be treated as the date of employment for
purposes of this paragraph.
(4) Effective June 1, 1995, in the case of an Employee who was
previously employed by a Company joint venture that is not an Affiliate of
the Company, and who:
14.
<PAGE>
(A) immediately thereafter becomes an Employee of an adopting
Employer of this Plan; and
(B) moves from one geographical area to another,
the date such Employee became an employee of such Company joint venture
shall be treated as the Employee's date of employment for purposes of this
paragraph.
(5) Effective June 1, 1995, in the case of an Employee who:
(A) previously provided services for the Company at a location
maintained by a Company joint venture that is not an Affiliate of the
Company;
(B) was incorrectly carried on the payroll of such joint
venture; and
(C) was carried on such joint venture payroll immediately prior
to such transfer and on the Company payroll immediately following such
transfer,
the date such Employee was listed as an Employee of such joint venture
shall be treated as the Employee's date of employment for purposes of this
paragraph.
(kkk) (1) "Year of Service" shall mean:
---------------
(A) for all purposes of this Plan except for purposes of Article
V, a Plan Year during which an Employee completes 1,000 or more Hours of
Service; and
(B) for purposes of Article V, the consecutive 12-month period
beginning with the date the Employee's employment with his Employer or any
Affiliate thereof commenced (the first day for which the Employee is
credited with an Hour of Service) if, during such consecutive 12-month
period, the Employee completes 1,000 Hours of Service; provided, however,
that if, during such consecutive 12-month period, the Employee does not
complete 1,000 Hours of Service, then "Year of Service" shall mean any Plan
Year beginning after the Employee's date of employment during which the
Employee completes 1,000 or more Hours of Service. In either event, for
purposes of Article V, the Year of Service is not completed until the end
of the consecutive 12-month period or the Plan Year, as the case may be,
without regard to when during the period that 1,000 Hours of Service are
completed, and in determining his Years of Service the Employee shall
receive credit for his Hours of Service for his Employer or any Affiliate
thereof, whether or not he was an Employee at the time such Hours of
Service were completed.
(2) For purposes of Article VIII and paragraph (a)(5) of Article XIV,
an Employee's "Years of Service" shall not include any Year of Service
completed prior to January 1, 1985.
15.
<PAGE>
(3) Each Employee of Pinkless, Inc. or one or more of the Gold Strike
Entities on January 1, 1995, who remained continuously employed by such
employer through the date it (or its successor) became a member of the
Company's controlled group, shall receive credit for a "Year of Service"
for purposes of Article VIII and paragraph (a)(5) of Article XIV, for the
Plan Year ending December 31, 1995, if he completes 1,000 Hours of Service
with such employer (or in the case of Pinkless, Inc., for Hacienda Hotel,
Inc.), whether or not such employer was a member of the Company's
controlled group at the time such Hours of Service were completed.
(4) Effective June 1, 1995, each Employee who was previously employed
by a Company joint venture that is not an Affiliate of the Company who:
(A) moves from one geographical area to another; and
(B) immediately following such move becomes an Employee of
an adopting Employer,
shall receive credit for a "Year of Service" for purposes of Article
VIII and paragraph (a)(5) of Article XIV, for all Plan Years in which
he completes 1,000 Hours of Service with such joint venture, whether
or not such joint venture was a member of the Company's controlled
group at the time such Hours of Service were completed.
(5) Effective June 1, 1995, each Employee who:
(A) previously provided services for the Company at a
location maintained by a Company joint venture;
(B) was incorrectly carried on the payroll of such joint
venture; and
(C) was carried on such joint venture payroll immediately
prior to such transfer and on the Company payroll immediately
following such transfer,
shall receive credit for a "Year of Service" for purposes of Article
VIII and paragraph (a)(5) of Article XIV, for all Plan Years in which
he completes 1,000 Hours of Service while incorrectly on the payroll
of such joint venture, whether or not such joint venture was a member
of the Company's controlled group at the time such Hours of Service
were completed.
16.
<PAGE>
ARTICLE II
Amendment and Restatement and Name of the Plan
----------------------------------------------
This profit sharing and investment plan is hereby amended and restated in
accordance with the terms hereof and, effective as of June 18, 1999, shall be
known as the "MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING AND INVESTMENT
PLAN."
ARTICLE III
Purpose of the Plan and the Trust
---------------------------------
(a) Exclusive Benefit. This Plan is created for the sole purpose of
-----------------
providing benefits to the Participants and enabling them to share in the profits
and growth of their Employer. The ESOP Matching Contribution Accounts and ESOP
Automatic Contribution Accounts are designed to be invested primarily in
Employer Securities. Except as otherwise permitted by law and the terms of this
Plan, in no event shall any part of the principal or income of the Trust be paid
to or reinvested in any Employer or be used for or diverted to any purpose
whatsoever other than for the exclusive benefit of the Participants and their
beneficiaries.
(b) Return of Contributions. Notwithstanding the foregoing provisions of
-----------------------
paragraph (a), any contribution made by an Employer to this Plan by a mistake of
fact may be returned to the Employer within one year after the payment of the
contribution; and any contribution made by an Employer that is conditioned upon
the deductibility of the contribution under Section 404 of the Code (each
contribution shall be presumed to be so conditioned unless the Employer
specifies otherwise) may be returned to the Employer if the deduction is
disallowed and the contribution is returned (to the extent disallowed) within
one year after the disallowance of the deduction.
(c) Participants' Rights. The establishment of this Plan shall not be
--------------------
considered as giving any Employee, or any other person, any legal or equitable
right against any Employer, any Affiliate, the Plan Administrator, the Trustee
or the principal or the income of the Trust, except to the extent otherwise
provided by law. The establishment of this Plan shall not be considered as
giving any Employee, or any other person, the right to be retained in the employ
of any Employer or any Affiliate.
(d) Qualified Plan. This Plan and the Trust are intended to qualify
--------------
under the Code as a tax-free employees' profit sharing plan and trust, as a cash
or deferred arrangement subject to Section 401(k) of the Code, and as an
employee stock ownership plan within the meaning of Section 4975(e)(7) of the
Code. The provisions of this Plan and the Trust shall be interpreted
accordingly.
17.
<PAGE>
ARTICLE IV
Plan Administrator
------------------
(a) Administration of the Plan. The Plan Administrator shall control and
--------------------------
manage the operation and administration of the Plan, except with respect to
investments. The Administrator shall have no duty with respect to the
investments to be made of the funds in the Trust except as may be expressly
assigned to it by the terms of the Agreement of Trust.
(b) Powers and Duties. The Administrator shall have complete control
-----------------
over the administration of the Plan herein embodied, with all powers necessary
to enable it to carry out its duties in that respect. Not in limitation, but in
amplification of the foregoing, the Administrator shall have power and
discretion to interpret or construe this Agreement and to determine all
questions that may arise as to the status and rights of the Participants and
others hereunder.
(c) Direction of Trustee. It shall be the duty of the Administrator to
--------------------
direct the Trustee with regard to the distribution of the benefits to the
Participants and others hereunder.
(d) Summary Plan Description. The Administrator shall prepare or cause
------------------------
to be prepared a Summary Plan Description and such periodic and annual reports
as are required by law.
(e) Disclosure. At least once each year, the Administrator shall furnish
----------
to each Participant a statement containing the value of his interest in the
Trust Fund and such other information as may be required by law.
(f) Conflict in Terms. The Administrator shall notify each Employee, in
-----------------
writing, as to the existence of the Plan and the basic provisions thereof. In
the event of any conflict between the terms of this Plan and the Trust, as set
forth in this Agreement and in any Agreement of Trust or Contract, and as set
forth in any explanatory booklet or other description, this Agreement and the
Agreement of Trust or Contract shall control.
(g) Nondiscrimination. The Administrator shall not take any action or
-----------------
direct the Trustee or Insurer to take any action whatsoever that would result in
unfairly benefiting one Participant or group of Participants at the expense of
another or in improperly discriminating between Participants similarly situated
or in the application of different rules to substantially similar sets of facts.
(h) Records. The Administrator shall keep a complete record of all its
-------
proceedings as such Administrator and all data necessary for the administration
of the Plan. All of the foregoing records and data shall be located at the
principal office of the Administrator.
(i) Final Authority. Except to the extent otherwise required by law or
---------------
by this Plan, the decision of the Administrator in matters within its
jurisdiction shall be final, binding and conclusive upon each Employer and each
Employee, member and beneficiary and every other interested or concerned person
or party.
18.
<PAGE>
(j) (1) Action on Claims. Claims for benefits under the Plan may be made
----------------
by a Participant or a beneficiary of a Participant on forms supplied by the
Plan Administrator. Written notice of the disposition of a claim shall be
furnished to the claimant by the Administrator within 90 days after the
application is filed with the Administrator, unless special circumstances
require an extension of time for processing, in which event action shall be
taken as soon as possible, but not later than 180 days after the
application is filed with the Administrator.
(A) In the event that no action has been taken within such 90 or
180 day period, the claim shall be deemed to be denied for the
purposes of paragraph (j)(2).
(B) In the event that the claim is denied, the denial shall be
written in a manner calculated to be understood by the claimant and
shall include the specific reasons for the denial, specific references
to pertinent Plan provisions on which the denial is based, a
description of the material information, if any, necessary for the
claimant to perfect the claim, an explanation of why such material
information is necessary and an explanation of the claim review
procedure.
(2) Review of Claims. If a claim is denied (either in the form of a
----------------
written denial or by the failure of the Plan Administrator, within the
required time period, to notify the claimant of the action taken), a
claimant or his duly authorized representative shall have 60 days after the
receipt of such denial to petition the Plan Administrator in writing for a
full and fair review of the denial, during which time the claimant or his
duly authorized representative shall have the right to review pertinent
documents and to submit issues and comments in writing.
(A) The Plan Administrator shall promptly review the claim and
shall make a decision not later than 60 days after receipt of the
request for review, unless special circumstances require an extension
of time for processing, in which event a decision shall be rendered as
soon as possible, but not later than 120 days after the receipt of the
request for review. If such an extension is required because of
special circumstances, written notice of the extension shall be
furnished to the claimant prior to the commencement of the extension.
(B) The decision on review shall be in writing and shall include
specific reasons for the decision, written in a manner calculated to
be understood by the claimant, with specific references to the Plan
provisions on which the decision is based.
(k) Appointment of Advisors. The Administrator may appoint such
-----------------------
accountants, counsel (who may be counsel for an Employer), specialists and other
persons that it deems necessary and desirable in connection with the
administration of this Plan. The Administrator, by action of its Board of
Directors, may designate one or more of its employees to perform the duties
required of the Administrator hereunder.
19.
<PAGE>
ARTICLE V
Eligibility and Participation
-----------------------------
(a) Current Participants. Any Employee who was a Participant in this Plan
--------------------
on the Effective Date of this Amendment and Restatement shall remain as a
Participant in the Plan.
(b) Eligibility and Participation. Thereafter, any other Employee of an
-----------------------------
Employer shall be eligible to become a Participant in the Plan upon completing
one Year of Service and attaining the age of 21 years.
(1) Entry into Plan. Any such eligible Employee shall enter the Plan
---------------
as a Participant, if he is still an Employee of an Employer, on the first
Eligibility Date concurring therewith or occurring thereafter.
(2) Rollover Contribution Prior to Entry. Notwithstanding the
------------------------------------
foregoing provisions of this paragraph (b), the Plan Administrator may
accept a Rollover Contribution from an Employee who is reasonably expected
to become a Participant.
(c) Special Rules for Employees of Pinkless, Inc. and the Gold Strike
-----------------------------------------------------------------
Entities. Notwithstanding the foregoing provisions of this Article V,
- --------
(1) Employees of Pinkless, Inc. on September 1, 1995, who were
continuously employed by Hacienda Hotel, Inc. from January 1, 1995 through
September 1, 1995, and who remain employed by Pinkless, Inc. or another
Employer on the Effective Date of this Amendment and Restatement, shall be
eligible to become Participants in the Plan on the Effective Date of this
Amendment and Restatement, provided they would have completed 1,000 Hours
of Service during the Plan Year ending December 31, 1995 if Pinkless, Inc.
had been an Employer continuously since January 1, 1995.
(2) Employees of one or more of the Gold Strike Entities on June 1,
1995, who were continuously employed by one or more of the Gold Strike
Entities from January 1, 1995 through June 1, 1995, and who remain employed
by an Employer on the Effective Date of this Amendment and Restatement,
shall be eligible to become Participants in the Plan on the Effective Date
of this Amendment and Restatement, provided they would have completed 1,000
Hours of Service during the Plan Year ending December 31, 1995 if the Gold
Strike Entities had been Employers continuously since January 1, 1995.
(3) Employees of Pinkless, Inc. or the Gold Strike Entities who become
so employed after January 1, 1995 shall be eligible to become Participants
in the Plan under the requirements established pursuant to paragraph (b) of
this Article V, with Hours of Service credited for all purposes under the
Plan being limited to those completed on or after:
20.
<PAGE>
(A) September 1, 1995, in the case of Employees of Pinkless,
Inc., and
(B) June 1, 1995 in the case of the Gold Strike Entities.
(d) Former Employees.
----------------
(1) A Participant who ceases to be an Employee, and who subsequently
returns as an Employee, shall be eligible again to become a Participant on
the date he again becomes an Employee.
(2) An Employee who has completed one Year of Service, but who is not
an Employee of an Employer on the next following Eligibility Date, shall
enter the Plan as a Participant on the first date following such
Eligibility Date on which he is an Employee of an Employer.
(e) Notification. The Administrator shall notify each Employee of his
------------
eligibility to participate in the Plan.
ARTICLE VI
Contributions to the Trust
--------------------------
(a) Savings Contributions.
---------------------
(1) Amount Contributed. The Employer shall contribute to the Trust,
------------------
on behalf of each Participant, a Savings Contribution as specified in a
written salary reduction agreement (if any) between the Participant and
such Employer; provided, however, that such contribution for a Participant
shall not exceed the lesser of
(A) $9,500 (adjusted under such regulations as may be issued from
time to time by the Secretary of the Treasury) with respect to any
calendar year, or
(B) 15% of the Participant's Compensation for such Plan Year.
A Savings Contribution hereunder may be expressed as a fixed dollar amount
per payroll period, or as a fixed percentage of pay.
(2) Refund of Excess Savings Contributions.
--------------------------------------
(A) If a Participant's Savings Contributions, together with any
elective contributions made by the Participant to any other plans of
his Employer or an Affiliate that are intended to qualify under
Section 401(k) of the Code, exceed the limitation
21.
<PAGE>
set forth in paragraph (a)(1)(A) of this Article VI for any calendar
year, the Administrator, upon notification from the Participant or his
Employer, shall refund to such Participant the portion of such excess
that is attributable to his Savings Contributions to the Plan,
increased by the earnings thereon for such calendar year (if any) and
reduced by any excess Savings Contributions and earnings for the Plan
Year beginning with or within the calendar year that have been
previously distributed to him in accordance with the provisions of
paragraph (a)(6).
(B) If a Participant's Savings Contributions, together with any
elective contributions made by the Participant to any other plans
intended to qualify under Sections 401(k), 403(b), 408(k) or 457 of
the Code, exceed the limitation set forth in paragraph (a)(1)(A) of
this Article VI for any calendar year (after the application of
paragraph (a)(2)(A)), the Administrator may refund to such
Participant, at his request, the portion of such excess that is
attributable to Savings Contributions made to the Plan, increased by
the earnings thereon for such calendar year and reduced by any excess
Savings Contributions and earnings for the Plan Year beginning with or
within the calendar year that have been previously distributed to the
Participant in accordance with the provisions of paragraph (a)(6).
Any earnings on Savings Contributions refunded pursuant to this
subparagraph (2) shall be determined by the Plan Administrator as permitted
by Treasury Regulation (S)1.402(g)-1(e)(5). Any such refund shall be made
on or before April 15 immediately following the calendar year in which the
excess Savings Contribution is made.
(3) Salary Reduction Agreement. Any salary reduction agreement shall
--------------------------
be executed and in effect prior to the first day of the first pay period to
which it applies. Any such agreement may be revised by the Participant,
with the approval of the Administrator, as of the first day of any calendar
quarter, for pay periods beginning after the date such revision is executed
and made effective. Any salary reduction agreement relating to a cash
bonus shall be executed and in effect prior to the date on which the bonus
is declared.
(4) Refusal of Deferral. The Administrator shall have the right to
-------------------
require any Participant to reduce his Savings Contributions under any such
agreement, or to refuse deferral of all or part of the amount set forth in
such agreement, if necessary to comply with the requirements of this Plan
and the Code.
(5) Suspension of Savings Contributions. Notwithstanding any other
-----------------------------------
provision of this paragraph (a), a Participant may suspend or reduce
further Savings Contributions to the Plan at any time, provided the request
for such suspension or reduction is received by the Plan Administrator
prior to the first day of the first pay period to which such suspension or
reduction applies. Any Participant who suspends or reduces further
contributions under this subparagraph may reinstate such contributions as
provided in subparagraph (3) of this paragraph (a).
22.
<PAGE>
(6) Refund of Excess Deferral.
-------------------------
(A) In the event that the Savings Contributions of Highly
Compensated Employees exceed the limitations set forth in paragraph
(f) of this Article VI, such excess (plus the earnings thereon),
determined as set forth below, shall be distributed to the Highly
Compensated Employees on or before the 15th day of the third month
after the close of the Plan Year to which the excess contributions
relate. Notwithstanding the preceding sentence, the Plan
Administrator may delay the distribution of any excess Savings
Contributions (plus the earnings thereon) attributable to an Employer
beyond the 15th day of the third month of such Plan Year, if the
Employer consents to such delay and the Administrator refunds all such
excess amounts not later than 12 months after the close of the Plan
Year to which the excess contributions relate.
(B) For Plan Years beginning after December 31, 1996, the amount
of such excess for a Highly Compensated Employee for the Plan Year
shall be determined by the following two-step leveling method:
(i) Step 1 - Ratio Leveling Method: Calculate the total
------------------------------
dollar amount of excess contributions for the Highly Compensated
Employees in the aggregate. This aggregate amount is determined
as follows:
a. the Actual Deferral Ratio of the Highly
Compensated Employee with the highest Actual Deferral Ratio
is reduced to the extent required to enable the arrangement
to satisfy the limitations set forth in paragraph (f), or
cause such Highly Compensated Employee's Actual Deferral
Ratio to equal the Actual Deferral Ratio of the Highly
Compensated Employee with the next highest Actual Deferral
Ratio.
b. This process shall be repeated until the
arrangement satisfies the limitations set forth in paragraph
(f).
The total dollar amount calculated under this subsection (i)
shall be distributed in accordance with subsection (ii) below.
(ii) Step 2 - Dollar Leveling Method:
-------------------------------
a. the elective contributions of the Highly
Compensated Employee with the largest elective contributions
are reduced by the amount required to cause the Highly
Compensated Employee's elective contributions to equal the
dollar amount of the elective contributions of the Highly
Compensated Employee with the next highest dollar amount of
elective contributions.
23.
<PAGE>
b. the amount described under a. above is then
distributed to the Highly Compensated Employee with the
largest elective contribution; provided, however, that if a
lesser reduction, when added to the total dollar amount
already distributed under a. would equal the total excess
contributions set forth in (i), the lesser reduction amount
is distributed.
c. if the total amount distributed under b. above is
less than the total excess contributions, a. and b. are
repeated.
(C) Earnings attributable to excess Savings Contributions shall
be determined by the Plan Administrator as permitted by Treasury
Regulation (S)1.401(k)-1(f)(4)(ii).
(D) Excess Savings Contributions and earnings determined under
paragraphs (a)(6)(B) and (C) shall be reduced by any excess Savings
Contributions and earnings for the calendar year ending with or within
the Plan Year that have been previously refunded to the Participant in
accordance with the provisions of paragraph (a)(2).
(E) In the event that a Highly Compensated Employee's Actual
Deferral Ratio is determined on the basis of both his contributions
and the contributions of his Family Members, any excess Savings
Contributions and earnings attributable to such Highly Compensated
Employee under this paragraph (a)(6) shall be distributed to the
Highly Compensated Employee and his Family Members in proportion to
the relative Savings Contributions of the Highly Compensated Employee
and his Family Members for the Plan Year.
(b) Matching Contributions.
----------------------
(1) For each Plan Year, each Employer shall contribute to the Trust,
on behalf of each Participant who is its Employee on the last day of the
Plan Year and for whom a Savings Contribution is made during such Plan
Year, a Matching Contribution equal to 25% of the amount of the Savings
Contribution made to the Plan by the Participant for the Plan Year;
provided, however, that the Matching Contribution for a Participant with
respect to any Plan Year shall not exceed the amount determined for such
Plan Year from the following table, on the basis of the Participant's Years
of Credited Service:
Years of Maximum Amount of
Credited Service Matching Contributions
---------------- ----------------------
1 $ 62.50
2 75.00
24.
<PAGE>
3 87.50
4 100.00
5 125.00
6 150.00
7 175.00
8 or more 200.00
(2) Any Matching Contribution made by an Employer on account of a
Savings Contribution that has been refunded pursuant to paragraph (a)(2) or
paragraph (a)(6), shall be forfeited as of the first day of the Plan Year
following the Plan Year for which the Matching Contribution was made. For
this purpose, Savings Contributions that exceed the amount subject to
Matching Contributions shall be deemed to have been refunded first. Any
forfeited amount shall be used to reduce Matching Contributions.
(3) If the Matching Contributions of Highly Compensated Employees
exceed the limitations of paragraph (f):
(A) The nonvested portion of such excess (including earnings
thereon), if any, shall be forfeited as of the last day of the Plan
Year for which the Matching Contribution was made. Such forfeited
amount shall be allocated for such Plan Year as provided in paragraphs
(d)(5) and (f) of Article VII.
(B) The vested portion of such excess (including earnings
thereon), if any, shall be distributed to the Highly Compensated
Employees on or before the 15th day of the third month after the close
of the Plan Year to which the matching contributions relate.
Notwithstanding the preceding sentence, the Plan Administrator may
delay the distribution of any excess Matching Contributions (plus the
earnings thereon) attributable to an Employer beyond the 15th day of
the third month of such Plan Year, if the Employer consents to such
delay and the Administrator refunds all such excess amounts not later
than 12 months after the close of the Plan Year to which the excess
contributions relate.
(C) The amount of such excess for a Highly Compensated Employee
for the Plan Year shall be determined by the following two-step
leveling method:
(i) Step 1 - Ratio Leveling Method: Calculate the
------------------------------
total dollar amount of excess aggregate contributions for the
Highly Compensated Employees in the aggregate. This aggregate
amount is determined as follows:
a. the Actual Contribution Ratio of the Highly
Compensated Employee with the highest Actual Contribution
Ratio is reduced to the extent required to enable the
arrangement to satisfy the limitations set forth in
paragraph (f), or cause such Highly Compensated Employee's
25.
<PAGE>
Actual Contribution Ratio to equal the Actual Contribution
Ratio of the Highly Compensated Employee with the next
highest Actual Contribution Ratio.
b. This process shall be repeated until the
arrangement satisfies the limitations set forth in paragraph
(f).
The total dollar amount calculated under this subsection (i)
shall be distributed in accordance with subsection (ii) below.
(ii) Step 2 - Dollar Leveling Method:
-------------------------------
a. the matching contributions of the Highly
Compensated Employee with the largest matching contributions
are reduced by the amount required to cause the Highly
Compensated Employee's matching contributions to equal the
dollar amount of the matching contributions of the Highly
Compensated Employee with the next highest dollar amount of
matching contributions.
b. the amount described under a. above is then
distributed to the Highly Compensated Employee with the
largest matching contribution; provided, however, that if a
lesser reduction, when added to the total dollar amount
already distributed under a. would equal the total excess
aggregate contributions set forth in (i), the lesser
reduction amount is distributed.
c. if the total amount distributed under b. above is
less than the total excess aggregate contributions, a. and
b. are repeated.
(D) In determining the amount of such excess, Actual
Contribution Ratios shall be rounded to the nearest one-hundredth of
one percent of the Employee's Compensation.
(E) In no case shall the amount of such excess with respect to
any Highly Compensated Employee exceed the amount of Matching
Contributions on behalf of such Highly Compensated Employee for such
Plan Year.
(F) Earnings attributable to excess contributions shall be
determined by the Plan Administrator, as of the last day of the Plan
Year to which such excess contributions relate, in a manner consistent
with the provisions of paragraphs (d)(1), (d)(2) and (d)(3) of Article
VII and Treas. Reg. (S)1.401(m)-1(e)(3)(ii).
26.
<PAGE>
(G) In the event that a Highly Compensated Employee's Actual
Contribution Ratio is determined on the basis of both his matching
contributions and the matching contributions attributable to his
Family Members, any excess contributions and earnings attributable to
such Highly Compensated Employee that are forfeitable and
distributable as provided in sections (A) and (B) shall be allocated
to the Highly Compensated Employee and his Family Members in
proportion to the relative contributions of the Highly Compensated
Employee and his Family Members that are taken into account in
determining the Highly Compensated Employee's Actual Contribution
Ratio for the Plan Year.
(c) Automatic Contribution.
----------------------
(1) For each Plan Year, each Employer shall contribute to the Trust
for each Plan Year, on behalf of each Participant who completes 1,000 Hours
of Service during such Plan Year and who is its Employee on the last day of
such Plan Year, an Automatic Contribution equal to the amount determined
for such Plan Year from the table set forth below. Each eligible
Participant's Automatic Contribution shall be determined pursuant to the
following table on the basis of his Years of Credited Service:
Years of Amount of
Credited Service Automatic Contributions
---------------- -----------------------
1 $250
2 300
3 350
4 400
5 500
6 600
7 700
8 or more 800
(d) Discretionary Contributions. An Employer, at the discretion of its
---------------------------
Board of Directors, may make Discretionary Contributions to the Trust on behalf
of its Participants.
(e) Limitations to Amount Deductible. Notwithstanding the foregoing, all
--------------------------------
Savings, Matching, Automatic and Discretionary Contributions shall not exceed
the maximum amount deductible by the Employer for federal income tax purposes.
(f) Limitations Based on Percentages. The amounts contributed as Savings
--------------------------------
Contributions and as Matching Contributions in any Plan Year shall be limited as
follows:
(1) Actual Deferral Percentage:
27.
<PAGE>
(A) The Actual Deferral Percentage for the group of Highly
Compensated Employees for a Plan Year shall not exceed the Actual
Deferral Percentage for the group of all other eligible Employees for
the preceding Plan Year, multiplied by 1.25, or
(B) The excess of the Actual Deferral Percentage for the group of
Highly Compensated Employees for a Plan Year over the Actual Deferral
Percentage for the group of all other eligible Employees for the
preceding Plan Year shall not exceed 2 percentage points (or such
lesser amount as may be required by subparagraph (3)); and the Actual
Deferral Percentage for the group of Highly Compensated Employees
shall not exceed the Actual Deferral Percentage for the group of all
other eligible Employees, multiplied by 2.0 (or such lesser amount as
may be required by subparagraph (3)); and
Notwithstanding the foregoing, if the Company so elects for Plan Years
beginning after December 31, 1998, the Plan may apply this subparagraph (1)
using the Actual Deferral Percentage for all eligible Non-Highly
Compensated Employees for the current Plan Year rather than their Actual
Deferral Percentage for the preceding Plan Year; provided, however, that if
such an election is made, it may not be changed except as provided by the
Secretary of the Treasury.
(2) Actual Contribution Percentage:
(A) The Actual Contribution Percentage for the group of Highly
Compensated Employees for a Plan Year shall not exceed the Actual
Contribution Percentage for the group of all other eligible Employees
for the preceding Plan Year, multiplied by 1.25, or
(B) The excess of the Actual Contribution Percentage for the
group of Highly Compensated Employees for a Plan Year over the Actual
Contribution Percentage for the group of all other eligible Employees
for the preceding Plan Year shall not exceed 2 percentage points (or
such lesser amount as may be required by subparagraph (3)); and the
Actual Contribution Percentage for the group of Highly Compensated
Employees shall not exceed the Actual Contribution Percentage for the
group of all other eligible Employees, multiplied by 2.0 (or such
lesser amount as may be required by subparagraph (3)).
Notwithstanding the foregoing, if the Company so elects for Plan Years
beginning after December 31, 1998, the Plan may apply this subparagraph (2)
using the Actual Contribution Percentage for all eligible Non-Highly
Compensated Employees for the current Plan Year rather than their Actual
Contribution Percentage for the preceding Plan Year; provided, however,
that if such an election is made, it may not be changed except as provided
by the Secretary of the Treasury.
28.
<PAGE>
(3) Multiple Use Restriction:
(A) The provisions of this subparagraph (3) shall apply if:
(i) one or more Highly Compensated Employees are subject to
both the Actual Deferral Percentage test described in subparagraph (1)
and the Actual Contribution Percentage test described in subparagraph
(2);
(ii) the sum of the Actual Deferral Percentage and the
Actual Contribution Percentage of those Highly Compensated
Employees subject to either or both tests exceeds the Aggregate
Limit defined in subparagraph (3)(C) below;
(iii) the Actual Deferral Percentage for the group of Highly
Compensated Employees eligible to make salary deferrals for a Plan
Year exceeds the limitation set forth in subparagraph (1)(A); and
(iv) the Actual Contribution Percentage for the group of Highly
Compensated Employees eligible to receive Matching Contributions for a
Plan Year exceeds the limitation set forth in subparagraph (2)(A).
(B) The Actual Deferral Percentage and the Actual Contribution
Percentage for the Highly Compensated Employees described in subparagraph
(3)(A) shall be determined after any corrections required by paragraphs (a)
and (b) of this Article VI to meet the requirements of paragraphs (f)(1)
and (f)(2).
(C) "Aggregate Limit" shall mean the greater of:
(i) the sum of:
a. 125 percent of the greater of the Actual Deferral
Percentage of the Non-Highly Compensated Employees for the
preceding Plan Year or the Actual Contribution Percentage of Non-
Highly Compensated Employees for the Plan Year, and
b. the lesser of 200% of, or 2 percentage points plus, the
lesser of such Actual Deferral Percentage and such Actual
Contribution Percentage; or
(ii) the sum of:
a. 125 percent of the lesser of the Actual Deferral
Percentage of the Non-Highly Compensated Employees for the Plan
29.
<PAGE>
Year or the Actual Contribution Percentage of Non-Highly
Compensated Employees for the preceding Plan Year, and
b. the lesser of 200% of, or 2 percentage points plus, the
greater of such Actual Deferral Percentage and such Actual
Contribution Percentage.
Notwithstanding the foregoing, if the Company elects for Plan Years
beginning after December 31, 1998 to apply subparagraphs (1) or (2) using
the Actual Deferral Percentage or the Actual Contribution Percentage for
all eligible Non-Highly Compensated Employees for the current Plan Year
rather than their Actual Deferral Percentage or Actual Contribution
Percentage for the preceding Plan Year, then the current Plan Year must
also be used for purposes of applying the Multiple Use Restriction.
(D) If each of the provisions of subparagraph (3)(A) are met,
then the Actual Contribution Percentage of those Highly Compensated
Employees eligible to receive matching contributions for a Plan Year
will be reduced (beginning with such Highly Compensated Employee whose
Actual Contribution Ratio is the highest) so that the Aggregate Limit
is not exceeded. The amount by which each Highly Compensated
Employee's Actual Contribution Ratio is reduced shall be treated as
excess amounts subject to paragraph (b)(2).
(4) For purposes of this paragraph (4), if 2 or more plans of an
Employer to which elective salary reduction contributions, voluntary
contributions or matching contributions are made are elected by the
Employer to be treated as one Plan for purposes of Section 410(b)(6) of the
Code, such plans shall be treated as a single plan for purposes of
determining the Actual Deferral Percentage and the Actual Contribution
Percentage. For purposes of determining the Actual Deferral Percentages and
the Actual Contribution Percentages for the group of Highly Compensated
Employees and the group of all other eligible Employees, all Employees of
the respective group who are directly or indirectly eligible to receive
allocations of elective contributions and/or matching contributions under
the Plan for any portion of the Plan Year or the preceding Plan Year, as
the case may be, and all Employees of the respective group who elect not to
enter into salary reduction agreements pursuant to paragraph (a) of Article
VI or whose eligibility to enter into salary reduction agreements has been
suspended or otherwise limited because of an election not to participate, a
withdrawal, a loan, or a restriction on Annual Additions as set forth in
paragraph (e) of Article VII, shall be included. For purposes of
determining the Actual Deferral Ratio and the Actual Contribution Ratio for
a Highly Compensated Employee, all cash or deferred arrangements in which
the Employee is eligible to receive allocations of elective contributions
and/or matching contributions shall be taken into account, unless otherwise
required by Treasury Regulation (S)(S)1.401(k)-1(g)(1)(ii)(B) and 1.401(m)-
1(f)(1)(ii)(B).
30.
<PAGE>
(5) (A) To the extent required by Treasury Regulation (S)1.401(k)-
1(g)(11)(iii)(A), Participants who are covered by a collective
bargaining unit shall be tested separately from all other Participants
for all purposes of this paragraph (f).
(B) To the extent required by Treasury Regulation (S)1.401(k)-
1(g)(11)(iii)(B), contributions to the ESOP and non-ESOP portions of
this Plan shall be tested separately for all purposes of this
paragraph (f).
(g) Limitations on Allocations. The aggregate Savings, Matching, Automatic
--------------------------
and Discretionary Contributions for any Plan Year for any Participant shall not
exceed the amount that may be allocated to such Participant's Accounts for such
Plan Year pursuant to Section 415 of the Code.
(h) Payment of Contributions. Payments on account of the contributions due
------------------------
from an Employer for any Plan Year shall be made in cash. All contributions
shall be paid to the Trustee. Such payments may be made by a contributing
Employer at any time, but payment of the Matching, Automatic and Discretionary
Contributions shall be completed on or before the time prescribed by law,
including extensions thereof, for filing such Employer's federal income tax
return for its taxable year with which or within which such Plan Year ends.
Payment of any Savings Contribution shall be made as of the earliest date on
which such a contribution can reasonably be segregated from the Employer's
general assets, provided, however, that such payment shall be made no later than
the fifteenth business day of the month following the month in which the
contribution is withheld from a Participant's pay.
(i) Allocation of Forfeitures. Except as otherwise provided in paragraph
-------------------------
(b)(2) of Article VI, any amount forfeited during the Plan Year pursuant to the
provisions of this Plan shall be allocated as provided in paragraphs (d)(5) and
(f) of Article VII.
(j) Rollover Contributions. Each Participant at any time during a Plan
----------------------
Year, with the consent of the Plan Administrator and in such manner as
prescribed by the Plan Administrator, may pay or cause to be paid to the Trustee
a rollover contribution (as defined in the applicable sections of the Code,
except that for this purpose such "rollover contribution" shall be deemed to
include both a direct payment from a Participant and a direct transfer from a
trustee of another qualified plan in which the Participant is or was a
participant).
(k) No Duty to Inquire. The Trustee shall not have any right or duty to
------------------
inquire into the amount of any contribution made by an Employer or any
Participant or the method used in determining the amount of any such
contribution, or to collect the same, but the Trustee shall be accountable only
for funds actually received by the Trustee.
(l) Contributions by Controlled Group Members. Notwithstanding any
-----------------------------------------
provisions of this Article VI to the contrary, if a corporation that has adopted
this Plan is a member of an affiliated group of corporations within the meaning
of Section 1504 of the Code, and if such corporation does not make a
contribution under this Plan, then another member or other members of the said
affiliated
31.
<PAGE>
group may make the contribution that was so prohibited to the extent permitted
by Section 404(a)(3)(B) of the Code.
ARTICLE VII
Participants' Accounts and Allocation of Contributions
------------------------------------------------------
(a) Common Fund. Except as otherwise provided in this Plan, an Agreement
-----------
of Trust or a Contract, the assets of the Trust (or, to the extent provided in
Article X, the assets of each Fund) shall constitute a common fund in which each
Participant (or each Participant who has directed that a portion of his Account
be invested in such Fund) shall have an undivided interest.
(b) Establishment of Accounts.
-------------------------
(1) The Plan Administrator shall establish and maintain with respect
to each Participant five accounts, designated as the Participant's Savings
Contribution Account, Matching Contribution Account, Automatic Contribution
Account, Discretionary Contribution Account and Rollover Contribution
Account. In the event that an Employee makes a Rollover Contribution prior
to becoming a Participant for other purposes, the Plan Administrator shall
establish his Rollover Contribution Account at the time he makes the
Rollover Contribution.
(2) For Participants who had an ESOP Matching Contribution Account
and/or an ESOP Automatic Contribution Account pursuant to Plan provisions
in effect prior to the Effective Date of this Amendment and Restatement,
the Plan Administrator shall continue to maintain such accounts.
(3) For Participants who had 401(k) Employer Contribution Accounts
pursuant to Plan provisions in effect prior to January 1, 1993, the Plan
Administrator shall continue to maintain such accounts.
(4) The Plan Administrator may create such additional Accounts as may
be necessary to keep records as to the value of certain funds from time to
time, including (without limitation):
(A) In the event that a Participant's Savings Contribution Account
previously received proceeds of a life insurance policy as a result of
the death of an insured dependent, such proceeds shall continue to be
maintained in a separate Account in the name of such Participant, and
shall not be commingled, for accounting purposes, with other Plan
funds held in the Participant's Savings Contribution Account. The
separate Account shall be held in the Plan until the Participant
otherwise qualifies to receive a distribution under the terms of the
Plan, and shall be invested at the direction of such Participant in
the same manner as other funds held in the Savings Contribution
Account of the Participant.
32.
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(B) A separate Account shall be established for an alternate
payee who is entitled to benefits pursuant to a qualified domestic
relations order if such benefits are not to be paid promptly upon
approval of such order by the Administrator.
(C) A separate Account shall be established for each death
beneficiary of a Participant if distribution is not to be made
promptly upon the Administrator's notification that the Participant
has died.
(D) Separate Employer Securities Accounts and Other Investments
Accounts shall continue to be maintained for the ESOP Matching
Contribution Account and ESOP Automatic Contribution Account of each
Participant who has such accounts, whenever necessary to account for
separate portions of the ESOP Fund invested in Employer Securities and
in assets other than Employer Securities.
(5) Each Participant's Accounts shall, collectively, reflect the
Participant's interest in the Trust Fund.
(c) Interest of Participant. The interest of a Participant in the Trust
-----------------------
Fund shall be the combined balances remaining from time to time in his Accounts,
after making the adjustments required in paragraph (d). The balance in any
Account of a Participant shall include the interest of such Account held in each
Fund.
(d) Adjustments to Accounts. Subject to the provisions of paragraph (e),
-----------------------
the portion of the Accounts of a Participant that are invested in any Fund shall
be adjusted from time to time as follows:
(1) Earnings of Pooled Investment Funds. As of each Valuation Date,
-----------------------------------
each of a Participant's Accounts that is invested in a Pooled Investment
Fund established under paragraph (a) of Article X shall be credited or
charged, as the case may be, with a share of the Earnings of such Fund for
the Valuation Period ending with such current Valuation Date. Each
Participant's share of the Earnings of a Pooled Investment Fund for any
Valuation Period shall be determined by the Plan Administrator on a
weighted average basis, so that each Participant with a balance in such
Fund shall receive a pro rata share of the Earnings of such Fund, taking
into account the period of time that each dollar invested in such Fund has
been so invested.
(2) Earnings of Segregated Investment Funds. As of each Valuation
---------------------------------------
Date, the portion of a Participant's Accounts that are invested in each
Segregated Investment Fund established under paragraph (a) of Article X
shall be credited or charged, as the case may be, with the Earnings
attributable to the Participant's investment in such Fund for the Valuation
Period ending with such current Valuation Date.
33.
<PAGE>
(3) Earnings of ESOP Fund. As of each Valuation Date, the portion of
---------------------
a Participant's ESOP Matching Contribution Account and ESOP Automatic
Contribution Account that is invested in the ESOP Fund shall be credited or
charged, as the case may be, as follows:
(A) As of each Valuation Date, the portion of a Participant's
ESOP Matching Contribution Account and ESOP Automatic Contribution
Account that is invested in an Employer Securities Account within the
ESOP Fund shall be credited with any stock dividends for the Valuation
Period ending with such current Valuation Date which are received on
Employer Securities that are allocated to such Account.
(B) As of each Valuation Date, the portion of a Participant's
ESOP Matching Contribution Account and ESOP Automatic Contribution
Account that is invested in an Other Investments Account within the
ESOP Fund shall be credited or charged, as the case may be, with a
share of the Other Investments Accounts Earnings for the Valuation
Period ending with such current Valuation Date. The share of the
Earnings of the Other Investments Accounts attributable to the portion
of each such Account of the Participant that is invested in the ESOP
Fund for any Valuation Period shall be:
(i) that amount that shall bear the same ratio to such
Earnings as the balance in such Participant's Other Investments
Accounts as of the end of the immediately preceding Valuation
Period, less any amounts distributed from such Other Investments
Accounts to the Participant, or debited to such Accounts for any
payments made with the assets of such Accounts for the purchase
of Employer Securities, during the Valuation Period ending with
the current Valuation Date, bears to
(ii) the aggregate balances in the Other Investments
Accounts as of the end of the immediately preceding Valuation
Period of all Participants, less the aggregate amounts
distributed from Participants' ESOP Matching Contribution
Accounts and ESOP Automatic Contribution Accounts (and
attributable to their Other Investments Accounts) to such
Participants, or debited to such Accounts for any payments made
with the assets of such Accounts for the purchase of Employer
Securities, during the Valuation Period ending with the current
Valuation Date.
(4) Contributions. Each Participant's Accounts shall be credited with
-------------
contributions made during the Plan Year as follows:
(A) As of each Valuation Date, the Savings Contribution Account
of a Participant shall be credited with any Savings contributions made by
his Employer on his behalf with respect to one or more dates occurring
during the Valuation Period ending with such Valuation Date.
34.
<PAGE>
(B) As of each Valuation Date that is the last day of a Plan
Year, the Matching Contribution Account of a Participant shall be
credited with any Matching Contributions made by his Employer on his
behalf with respect to such Plan Year.
(i) A Participant shall not be entitled to share in the
Matching Contributions for a Plan Year unless he is an Employee
on the last day of the Plan Year, except that:
a. if such requirement would cause this Plan to fail
to meet the requirements of Section 410(b)(1) of the Code
(and any regulations thereunder issued by the Secretary of
the Treasury), then a Participant who is not an Employee on
the last day of the Plan Year shall be entitled to share in
the contribution if he completes 1,000 Hours of Service
during such Plan Year; and
b. if such requirement still would cause this Plan to
fail to meet the requirements of Section 410(b)(1) of the
Code (and any regulations thereunder issued by the Secretary
of the Treasury) after the application of clause a., then a
Participant who is not an Employee on the last day of the
Plan Year shall be entitled to share in the contribution if
he completes 500 Hours of Service during such Plan Year.
(C) As of each Valuation Date that is the last day of a Plan
Year, the Automatic Contribution Account of a Participant shall be
credited with any Automatic Contributions made by his Employer on his
behalf with respect to such Plan Year. Except as provided in section
(E), a Participant shall be entitled to share in the Automatic
Contribution only if:
(i) the Plan Year constitutes a Year of Service for such
Participant, and
(ii) he is an Employee on the last day of the Plan Year.
(D) As of each Valuation Date that is the last day of a Plan
Year, the Discretionary Contribution Account of a Participant shall be
credited with his share of the Discretionary Contribution, if any,
made by his Employer with respect to the Plan Year ending with such
Valuation Date. The amount allocable to a Participant entitled to a
share of the Discretionary Contribution for the Plan Year shall be the
amount that shall bear the same ratio to the total of such
contribution as the Participant's Compensation for such Plan Year
ending with such Valuation Date bears to the aggregate of the
Compensation of all Participants employed by such Employer for that
period who are entitled to share in the Discretionary Contribution for
such Plan Year. Except as provided in section (E), a Participant shall
be entitled to share in the Discretionary Contribution only if:
35.
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(i) the Plan Year constitutes a Year of Service for such
Participant, and
(ii) he is an Employee on the last day of the Plan Year.
(E) (i) In the event that the requirement set forth in section
(C)(ii) or section (D)(ii) would cause this Plan to fail to meet
the requirements of Section 410(b)(1) of the Code (and any
regulations thereunder issued by the Secretary of the Treasury),
a Participant shall be entitled to share in the contribution if
such Plan Year constitutes a Year of Service for such
Participant, regardless of whether he is employed by his Employer
on the last day of the Plan Year.
(ii) In the event that the requirements set forth in
sections (C)(i) and (ii) or sections (D)(i) and (ii) would cause
this Plan to fail to meet the requirements of Section 410(b)(1)
of the Code (and any regulations thereunder issued by the
Secretary of the Treasury) after the application of section
(E)(i), a Participant shall be entitled to share in the
contribution if he completes 500 Hours of Service during such
Plan Year, regardless of whether such Plan Year constitutes a
Year of Service for such Participant or whether he is an Employee
on the last day of the Plan Year.
(iii) For each Plan Year in which this Plan is a Top Heavy
Plan, a Participant who is employed by an Employer on the last
day of such Plan Year, who is a Non-Key Employee, and who earns
Compensation from an Employer for such Plan Year shall be
entitled to share in the contribution (as described in section
(C) or section (D)) to the extent such allocation does not exceed
three percent (3%) of his Section 415 Compensation (or, if less,
the highest percentage of such Section 415 Compensation allocated
to a Key Employee's Accounts hereunder (other than any amount
allocated to a Rollover Contribution Account), as well as his
employer contribution accounts under any other defined
contribution plan maintained by such Employer or an Affiliate,
and including any elective contribution to any plan subject to
Code Section 401(k)). To the extent provided in this subsection
(iii), such contribution shall be required regardless of whether
the Non-Key Employee has completed a Year of Service, except to
the extent that such a contribution is made by an Employer or an
Affiliate on behalf of the Employee for the Plan Year to any
other defined contribution plan maintained by such Employer or
Affiliate.
(F) As of each Valuation Date, the Rollover Contribution Account
of a Participant shall be credited with the rollover contributions, if
any, made by the Participant pursuant to Article VI with respect to
the Valuation Period ending with such Valuation Date.
(5) Forfeitures. Except as otherwise required by paragraph (f) of
-----------
this Article VII, any amounts that have been forfeited pursuant to
paragraph (b) of Article VI and paragraph
36.
<PAGE>
(c) of Article VIII during a Plan Year shall be allocated to the
Participants' Automatic Contribution Accounts, effective as of the last day
of such Plan Year, as follows:
(A) A Participant's share of such forfeitures shall be the
portion of such forfeitures that shall bear the same ratio to the total of
such forfeitures as the Participant's Automatic Contribution for the Plan
Year bears to the aggregate of the Automatic Contributions of all
Participants who were entitled to share in the Automatic Contribution for
such Plan Year.
(B) Forfeitures attributable to paragraph (b)(3)(A) of Article VI
shall be allocated to Participants' Automatic Contribution Accounts before
the allocation of any other forfeitures.
(6) Distributions. As of each Valuation Date, each Account of a
-------------
Participant shall be charged with the amount of any distribution made to
the Participant or his beneficiary from such Account during the Valuation
Period ending with such Valuation Date.
(7) Transfer for Diversification. The portion of a Participant's ESOP
----------------------------
Matching Contribution Account and ESOP Automatic Contribution Account
invested in the ESOP Fund shall be credited or charged, as the case may be,
with the amount of any transfer made to or from such Fund as the result of
the Participant's election to diversify his investments as permitted in
Article XI.
(8) Accounting and Valuation Methods. Except as otherwise provided in
--------------------------------
this Plan, any Agreement of Trust or Contract, for purposes of all
computations required by this Article VII, the accrual method of accounting
shall be used, and the Trust Fund, each Fund, and the assets thereof shall
be valued at their fair market value as of each Valuation Date. Employer
Securities shall be accounted for as provided in Treasury Regulation
(S)1.402(a)-1(b)(2)(ii), or any successor regulation or statute.
(9) Accounting Procedures. The Plan Administrator may adopt such
---------------------
additional accounting procedures as are necessary to accurately reflect
each Participant's interest in the Trust Fund or in any Fund, which
procedures shall be effective upon approval by the Company. All such
procedures shall be applied in a consistent, nondiscriminatory manner.
(e) Limitations on Annual Additions.
-------------------------------
(1) Notwithstanding anything contained in this Plan to the contrary,
the aggregate Annual Additions to a Participant's Accounts under this Plan
and under any other defined contribution plans maintained by an Employer or
an Affiliate for any Limitation Year shall not exceed the lesser of $30,000
(adjusted under such regulations as may be issued by the Secretary of the
Treasury), or 25% of the Participant's Section 415 Compensation for such
Plan Year.
(2) In the event that the Annual Additions, under the normal
administration of the Plan, would otherwise exceed the limits set forth
above for any Participant, or in the event
37.
<PAGE>
that any Participant participates in both a defined benefit plan and a
defined contribution plan maintained by any Employer or any Affiliate and
the aggregate annual additions to and projected benefits under all of such
plans, under the normal administration of such plans, would otherwise
exceed the limits provided by law, then the Plan Administrator shall take
such actions, applied in a uniform and nondiscriminatory manner, as will
keep the annual additions and projected benefits for such Participant from
exceeding the applicable limits provided by law. Excess Annual Additions
shall be disposed of as provided in subparagraph (3). Adjustments shall be
made to all other plans, if necessary to comply with such limits, before
any adjustments may be made to this Plan.
(3) If as a result of the allocation of forfeitures, a reasonable
error in estimating a Participant's Section 415 Compensation or other
circumstances permitted under Section 415 of the Code, the Annual Additions
attributable to Employer contributions for a particular Participant
(including Savings, Matching, Automatic and Discretionary Contributions)
would cause the limitations set forth in this paragraph (e) to be exceeded,
the excess amount shall be deemed first to consist of Discretionary
Contributions, then Savings Contributions, then Automatic Contributions
(including forfeitures allocated as additional Automatic Contributions),
and finally Matching Contributions.
(A) Any excess amount attributable to Discretionary Contributions
for a Limitation Year shall be allocated to other Participants, to the
extent permitted by this paragraph (e), in a manner consistent with
the terms of paragraph (d)(4)(D) of this Article VII. To the extent
that any amount cannot be allocated to Participants for such
Limitation Year, such amount shall be held unallocated in a suspense
account for the Limitation Year, used to reduce Discretionary
Contributions for the next Limitation Year, and allocated to
Participants in lieu of such reduced contributions as of the end of
the next Limitation Year in a manner consistent with the terms of
paragraph (d) of this Article VII.
(B) Any excess Annual Additions attributable to Savings
Contributions for a Participant shall be returned to such Participant,
together with earnings thereon, within a reasonable period following
the end of the Plan Year in which such excess Savings Contributions
are made.
(C) Any excess amount attributable to Automatic Contributions
(including forfeitures allocated as additional Automatic
Contributions) and Matching Contributions for a Limitation Year shall
be allocated to other Participants, to the extent permitted by this
paragraph (e), in proportion to the amount of Automatic Contributions
that would otherwise have been allocated to such Participants for such
Limitation Year under the terms of paragraph (c) of Article VI and
paragraph (d)(4)(C) of this Article VII. To the extent that any
amount cannot be allocated to Participants for such Limitation Year,
such amount shall be held unallocated in a suspense account for the
Limitation Year, used to reduce Automatic Contributions (including
forfeitures allocated as additional Automatic Contributions) and
Matching Contributions for the next Limitation Year, and allocated to
Participants in lieu of such reduced contributions as of the end
38.
<PAGE>
of the next Limitation Year in a manner consistent with the first
sentence of this section (C).
(D) The suspense account holding any contribution shall be
credited or charged, as the case may be, with a share of the Earnings
for each Valuation Period during which it is in existence as if it
were an Account of a Participant.
(4) For Plan Years beginning prior to January 1, 2000, in the event
that any Participant participates in both a defined benefit plan and a
defined contribution plan maintained by his Employer or an Affiliate
thereof, then the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction for any Limitation Year shall not exceed 1.0.
For these purposes:
(A) The Defined Benefit Plan Fraction is a fraction, the
numerator of which is the projected annual benefit of the Participant
under the defined benefit plan determined as of the close of the
Limitation Year and the denominator of which is the lesser of (1) the
product of 1.25 times the dollar limitation in effect under Section
415(b)(1)(A) of the Code for such Limitation Year or (2) the product
of 1.4 times the amount that may be taken into account under Section
415(b)(1)(B) of the Code with respect to such Participant for such
Limitation Year.
(B) The Defined Contribution Plan Fraction is a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's Accounts as of the close of the Limitation Year (less
any amount that may be subtracted from the numerator so that the sum
of the Defined Benefit Plan Fraction and the Defined Contribution Plan
Fraction does not exceed 1.0 in accordance with any applicable
statutes, notices or rulings) and the denominator of which is the sum
of the lesser of the following amounts determined for such year and
for each prior Year of Service with the Employer: (1) the product of
1.25 times the dollar limitation in effect under Section 415(c)(1)(A)
of the Code for such Limitation Year (determined without regard to
Section 415(c)(6) of the Code), or (2) the product of 1.4 times the
amount that may be taken into account under Section 415(c)(1)(B) of
the Code with respect to such Participant for such Limitation Year.
(C) The figure "1.0" shall be substituted for the figure "1.25"
set forth in sections (A) and (B) for each year in which this Plan is
a Top Heavy Plan unless (1) the defined benefit plan provides a
minimum benefit equal to 3% of each Participant's Compensation times
the number of years (not exceeding 10) the Plan is a Top Heavy Plan or
the defined contribution plan provides a minimum contribution equal to
4% (7-1/2% if the Participant participates in both the defined benefit
plan and the defined contribution plan) of each Participant's Section
415 Compensation, and (2) the present value of the cumulative accrued
benefits (not including rollover contributions made after December 31,
1983), of the Key Employees for such year does not exceed 90% of the
present value of the accrued benefits (not including rollover
contributions made
39.
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after December 31, 1983) under all plans. Such values shall be
determined in the same manner as described in paragraph (eee) of
Article I.
(5) For purposes of applying the limitations of this paragraph (e) for
a particular Limitation Year:
(A) all qualified defined benefit plans (without regard to whether
a plan has been terminated) ever maintained by the Employer will be
treated as one defined benefit plan; and
(B) all qualified defined contribution plans (without regard to
whether a plan has been terminated) ever maintained by the Employer
will be treated as one defined contribution plan.
(f) Order of Forfeitures. Notwithstanding the foregoing, any previously
--------------------
forfeited benefit that is required to be restored pursuant to the provisions of
paragraph (c)(4)(C) of Article VIII shall be restored from unallocated Employer
contributions, if any, and unallocated forfeitures, if any. If the unallocated
Employer contributions and unallocated forfeitures are insufficient to fully
restore such benefit at the time that it is required to be restored to the
Participant's Account, then the Employer shall make an additional contribution
to the Plan in order to fully restore the benefit.
ARTICLE VIII
Benefits Under the Plan
-----------------------
(a) Retirement Benefit.
------------------
(1) A Participant shall be entitled to retire from the employ of his
Employer upon such Participant's Normal Retirement Date. Until a
Participant actually retires from the employ of his Employer, no retirement
benefits shall be payable to him, and he shall continue to be treated in
all respects as a Participant; provided, however, that an Employee who is a
5% owner (as defined in Section 416 of the Code) shall begin receiving
payment of his retirement benefit no later than the April 1 after the end
of the calendar year in which he attains age 70 1/2, even if he has not
actually retired from the employ of his Employer at that time.
Notwithstanding the preceding provisions of this paragraph (a)(1), nothing
contained herein shall affect a Participant's right to any optional form of
benefit protected under Section 411(d)(6) of the Code.
(2) Upon the retirement of a Participant as provided in paragraph
(a)(1) and subject to adjustment as provided in paragraph (d) of Article
IX, such Participant shall be entitled to a retirement benefit in an amount
equal to 100% of the balance in his Accounts as of the Valuation Date
immediately preceding or concurring with the date of his retirement, plus
the amount of contributions, if any, made on behalf of the Participant to
his Accounts subsequent to such Valuation Date.
40.
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(b) Disability Benefit.
------------------
(1) If a Participant's employment with his Employer is terminated by
reason of his total and permanent disability and subject to adjustment as
provided in paragraph (d) of Article IX, such Participant shall be entitled
to a disability benefit in an amount equal to 100% of the balance in his
Accounts as of the Valuation Date immediately preceding or concurring with
the date of the termination of his employment, plus the amount of
contributions, if any, made on behalf of the Participant to his Accounts
subsequent to such Valuation Date.
(2) Total and permanent disability shall mean the total incapacity of
a Participant to perform the usual duties of his employment with his
Employer and will be deemed to have occurred only when certified by a
physician who is acceptable to the Plan Administrator and only if such
proof is received by the Administrator within 60 days after the date such
Participant's employment terminates.
(c) Severance of Employment Benefit.
-------------------------------
(1) In the event a Participant's employment with his Employer is
terminated for reasons other than retirement, total and permanent
disability or death, and subject to adjustment as provided in paragraph (d)
of Article IX, such Participant shall be entitled to a severance of
employment benefit in an amount equal to his vested interest in the balance
in his Accounts as of the Valuation Date immediately preceding or
concurring with the date of the termination of his employment, plus the
amount of contributions, if any, made on behalf of the Participant to his
Accounts subsequent to such Valuation Date.
(2) (A) (i) A Participant who performed his first Hour of Service
before July 3, 1989, and who entered the Plan on or before
December 31, 1992, shall be 100% vested in his Matching
Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution
Account and Discretionary Contribution Account regardless of the
number of his Years of Service.
(ii) A Participant who performs his first Hour of Service on
or after July 3, 1989, shall have a vested interest in his
Matching Contribution Account, Automatic Contribution Account,
ESOP Matching Contribution Account, ESOP Automatic Account and
Discretionary Contribution Account equal to the percentage of the
balance of each such Account as of the applicable Valuation Date,
based upon such Participant's Years of Service as of the date of
the termination of his employment, as follows:
TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 3 Years of Service 0%
3 years, but less than 4 years 25%
41.
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4 years, but less than 5 years 50%
5 years, but less than 6 years 75%
6 years or more 100%
(iii) A Participant who performed his first Hour of Service
before July 3, 1989, but does not enter the Plan until after
December 31, 1992, shall have his vested interest in his Matching
Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution
Account and Discretionary Contribution Account determined under
the vesting schedule in subsection (ii) of this section (A).
(B) Notwithstanding the provisions of subparagraph (2)(A), for
any Plan Year in which this Plan is a Top Heavy Plan, a Participant
who performs his first Hour of Service on or after July 3, 1989 shall
have a vested interest in his Matching Contribution Account, Automatic
Contribution Account, ESOP Matching Contribution Account, ESOP
Automatic Contribution Account and Discretionary Contribution Account
equal to the percentage of the balance of such account as of the
applicable Valuation Date, based upon such Participant's Years of
Service as of the date of the termination of his employment, as
follows:
TOTAL NUMBER OF VESTED
YEARS OF SERVICE INTEREST
---------------- --------
Less than 2 Years of Service 0%
2 years, but less than 3 years 20%
3 years, but less than 4 years 40%
4 years, but less than 5 years 60%
5 years, but less than 6 years 80%
6 years or more 100%
(C) If at any time this Plan ceases to be a Top Heavy Plan after
being a Top Heavy Plan for one or more Plan Years, the change from
being a Top Heavy Plan shall be treated as if it were an amendment to
the Plan's vesting schedule for purposes of paragraphs (a)(3) and
(a)(5) of Article XIV of this Plan.
(D) Notwithstanding the foregoing, a Participant shall be 100%
vested in his Matching Contribution Account, Automatic Contribution
Account and Discretionary Contribution Account upon attaining his
Normal Retirement Date. A Participant's vested interest in his Savings
Contribution Account, 401(k) Employer Contribution Account and his
Rollover Contribution Account shall be 100% regardless of the number
of his Years of Service.
42.
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(3) Participants Who Terminate Without Receiving Full Distributions.
---------------------------------------------------------------
(A) If the termination of employment results in five consecutive
One Year Breaks in Service, then upon the occurrence of such five
consecutive One Year Breaks in Service, the nonvested interest of the
Participant in his Matching Contribution Account, Automatic
Contribution Account, ESOP Matching Contribution Account, ESOP
Automatic Contribution Account and Discretionary Contribution Account
as of the Valuation Date immediately preceding or concurring with the
date of his termination of employment shall be deemed to be forfeited
and such forfeited amount shall be reallocated, pursuant to the
provisions of paragraph (d)(5) of Article VII, at the end of the Plan
Year concurring with the date the fifth such consecutive One Year
Break in Service occurs.
(i) If the Participant is later reemployed by an Employer or
an Affiliate, the unforfeited balance, if any, in his Matching
Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution
Account and Discretionary Contribution Account that has not been
distributed to such Participant shall be set aside in a separate
account, and such Participant's Years of Service after any five
consecutive One Year Breaks in Service resulting from such
termination of employment shall not be taken into account for the
purpose of determining the vested interest of such Participant in
the balance of his Matching Contribution Account, Automatic
Contribution Account, ESOP Matching Contribution Account, ESOP
Automatic Contribution Account and Discretionary Contribution
Account that accrued before such five consecutive One Year Breaks
in Service.
(ii) If any portion of a Participant's Accounts is
forfeited, his Employer Securities Accounts and Other Investments
Accounts shall be treated as a single account for purposes of
this subparagraph and Employer Securities that were purchased
with borrowed funds and allocated to such Participant's ESOP
Matching Contribution Account and ESOP Automatic Contribution
Account after release from a suspense account shall be forfeited
only after all other assets in such Participant's Account. If
interests in more than one class of Employer Securities have been
so allocated to such Participant's Accounts, the Participant
shall forfeit the same proportion of each such class.
(B) Notwithstanding any other provision of this paragraph (c), if
a Participant is reemployed by an Employer or an Affiliate and, as a
result, no five consecutive One Year Breaks in Service occur, the
Participant shall not be entitled to any severance of employment
benefit as a result of such termination of employment; provided,
however, that nothing contained herein shall require or permit the
Participant to return or otherwise have restored to his Matching
Contribution Account, Automatic Contribution Account, ESOP Matching
Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account any funds distributed to him prior
to his reemployment and the determination that no five consecutive One
Year Breaks in Service would occur.
43.
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(C) If a Participant is less than 100% vested in his Matching
Contribution Account, Automatic Contribution Account, ESOP Matching
Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account and he receives all or a part of
his severance of employment benefit, then, if the Participant resumes
employment with an Employer or an Affiliate before the occurrence of
five consecutive One Year Breaks in Service, until such time as there
is a 5th consecutive One Year Break in Service, the Participant's
vested portion of the balance in his Matching Contribution Account,
Automatic Contribution Account, ESOP Matching Contribution Account,
ESOP Automatic Contribution Account and Discretionary Contribution
Account at any time shall be equal to an amount ("X") determined by
the formula X = P(AB + D) - D, where "P" is the vested percentage of
the Participant at such time, "AB" is the balance in the Participant's
Matching Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account at such time and "D" is the amount
distributed as a severance of employment benefit.
(4) Participants Who Receive Full Distributions Upon Termination.
------------------------------------------------------------
(A) Notwithstanding any other provision of this paragraph (c), if
at any time a Participant is less than 100% vested in his Matching
Contribution Account, Automatic Contribution Account, ESOP Matching
Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account and, as a result of his severance
of employment, he receives his entire vested severance of employment
benefit pursuant to the provisions of Article IX, and the distribution
of such benefit is made not later than the close of the 5th Plan Year
following the Plan Year in which such termination occurs (or such
longer period as may be permitted by the Secretary of the Treasury,
through regulations or otherwise), then subsequent to the occurrence
of such distribution, the non-vested interest of the Participant in
his Matching Contribution Account, Automatic Contribution Account,
ESOP Matching Contribution Account, ESOP Automatic Contribution
Account and Discretionary Contribution Account shall be forfeited as
of the first day of the Plan Year following the Plan Year in which
such distribution was made. Such forfeited amount shall be held in
suspense during the Plan Year in which the forfeiture occurs and
allocated at the end of such Plan Year as provided in paragraphs
(d)(5) and (f) of Article VII.
(B) If a Participant is not vested as to any portion of his
Matching Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account, he will be deemed to have received
a distribution upon distribution of his Savings Contribution Account,
his 401(k) Employer Contribution Account and his Rollover Contribution
Account, if any. If the Participant has no such accounts, he shall be
deemed to have received a distribution immediately following his
severance of employment. Subsequent to the occurrence of such deemed
distribution, the non-vested interest of the Participant in his
Matching Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution
44.
<PAGE>
Account and Discretionary Contribution Account shall be forfeited as
of the first day of the Plan Year following the Plan Year for which
such deemed distribution was made. Such forfeited amount shall be held
in suspense during the Plan Year in which the forfeiture occurs and
allocated at the end of such Plan Year as provided in paragraphs
(d)(5)(E) and (f) of Article VII.
(C) If a Participant whose interest is forfeited under this
subparagraph (4) is reemployed by an Employer or an Affiliate prior to
the occurrence of five consecutive One Year Breaks in Service, then
such Participant shall have the right to repay to the Trust, within
five years after the Participant's resumption of employment, or, if
earlier, no later than the date the Participant incurs five
consecutive One Year Breaks in Service, the full amount of the
severance of employment benefit previously distributed to him. If the
Participant elects to repay such amount to the Trust within the time
periods prescribed herein, or if a non-vested Participant whose
interest was forfeited under this subparagraph (4) is reemployed by an
Employer or an Affiliate prior to the occurrence of five consecutive
One Year Breaks in Service, the non-vested interest of the Participant
previously forfeited pursuant to the provisions of this subparagraph
(4) shall be restored to the Matching Contribution Account, Automatic
Contribution Account, ESOP Matching Contribution Account, ESOP
Automatic Contribution Account and Discretionary Contribution Account
of the Participant, such restoration to be made from forfeitures of
non-vested interests and, if necessary, by contributions of his
Employer, so that the aggregate of the amounts repaid by the
Participant and restored by the Employer shall not be less than the
Matching Contribution Account, Automatic Contribution Account, ESOP
Matching Contribution Account, ESOP Automatic Contribution Account and
Discretionary Contribution Account balance of the Participant at the
time of forfeiture unadjusted by any subsequent gains or losses.
(d) Death Benefit.
-------------
(1) In the event of the death of a Participant and subject to
adjustment as provided in paragraph (c) of Article IX, his beneficiary
shall be entitled to a death benefit in an amount equal to 100% of the
balance in his Accounts as of the Valuation Date immediately preceding or
concurring with the date of his death, plus the amount of contributions, if
any, made on behalf of the Participant to his Accounts subsequent to such
Valuation Date.
(2) Subject to the provisions of subparagraph (3), at any time and
from time to time, each Participant shall have the unrestricted right to
designate a beneficiary to receive his death benefit and to revoke any such
designation. Each designation or revocation shall be evidenced by written
instrument filed with the Plan Administrator on forms prescribed by the
Plan Administrator. In the event that a Participant has not designated a
beneficiary or beneficiaries, or if for any reason such designation shall
be legally ineffective, or if such beneficiary or all such beneficiaries
shall predecease the Participant, then the estate of such Participant shall
be deemed to be the beneficiary designated to receive such death benefit,
or if no personal representative is appointed for the estate of such
Participant, then his next of kin under
45.
<PAGE>
(A) for Plan Years ending prior to January 1, 2000, the Nevada
statue of descent and distribution; or
(B) for Plan years beginning after December 31, 1999, the
statute of descent and distribution of the state in which the
Participant was domiciled at the time of his death
shall be deemed to be the beneficiary or beneficiaries to receive such
death benefit.
(3) Notwithstanding the foregoing, if the Participant is married as of
the date of his death, the Participant's surviving spouse shall be deemed
to be his designated beneficiary and shall receive the full amount of the
death benefit attributable to the Participant unless the spouse consents or
has consented to the Participant's designation of another beneficiary. Any
such consent to the designation of another beneficiary must acknowledge the
effect of the consent, must be witnessed by a Plan representative or by a
notary public and shall be effective only with respect to that spouse. A
spouse's consent may be either a restricted consent (which may not be
changed as to either the beneficiary or the form of payment unless the
spouse consents to such change in the manner described herein) or a blanket
consent (which acknowledges that the spouse has the right to limit consent
only to a specific beneficiary or a specific form of payment, and that the
spouse voluntarily elects to relinquish one or both of such rights).
ARTICLE IX
Form and Payment of Benefits
----------------------------
(a) Time for Distribution of Benefits.
---------------------------------
(1) (A) The amount of the benefit to which a Participant is entitled
under Article VIII shall be paid to him or, in the case of a death
benefit, shall be paid to said Participant's beneficiary or
beneficiaries, as described in paragraph (b), as soon as practicable
after the Valuation Date that coincides with or immediately follows
the Participant's retirement, disability, severance of employment or
death, as the case may be.
(B) Notwithstanding the foregoing, no distribution shall be made
of the benefit to which a Participant is entitled under paragraph (a),
(b) or (c) of Article VIII prior to his Normal Retirement Date unless
the value of his benefit does not exceed $5,000 (or, for Plan Years
beginning before January 1, 1998, $3,500), or unless the Participant
consents to the distribution. The Plan Administrator shall provide
each Participant entitled to a distribution of more than $5,000 (or,
for Plan Years beginning before January 1, 1998, $3,500), with a
written notice of his rights, which shall include an explanation of
the alternative dates for distribution of benefits. The Participant
may elect to exercise such rights, no less than 30 days and no more
than 90 days before the
46.
<PAGE>
first date upon which distribution of the Participant's vested Account
balances may be made. In the event that a Participant does not consent
to a distribution of a benefit in excess of $5,000 (or, for Plan Years
beginning before January 1, 1998, $3,500) to which he is entitled
under paragraph (a), (b) or (c) of Article VIII, the amount of his
benefit shall be paid to the Participant not later than 60 days after
the last day of the Plan Year in which the Participant reaches his
Normal Retirement Date.
(2) (A) Any distribution paid to a Participant (or, in the case of a
death benefit, to his beneficiary or beneficiaries) pursuant to
subparagraph (1) shall commence not later than the earlier of:
(i) the 60th day after the last day of the Plan Year in
which the Participant's employment is terminated or, if later, in
which occurs the Participant's Normal Retirement Date; or
(ii) April 1 after the end of the calendar year in which he
attains age 70 1/2 or retires, whichever is later; provided,
however, that an Employee who is a 5% owner (as defined in
Section 416 of the Code) shall begin receiving payment of his
retirement benefit no later than the April 1 after the end of the
calendar year in which he attains age 70 1/2, even if he has not
actually retired from the employ of his Employer at that time;
provided, further, however, that any Participant who attains age
70 1/2 after December 31, 1995 and before January 1, 2000 shall
have the option of either commencing distributions by April 1
following the attainment of age 70 1/2 or deferring such
distributions until he actually retires.
(B) Notwithstanding the foregoing, no distribution shall be made
of the benefit to which a Participant or beneficiary is entitled if
the Plan Administrator has actual knowledge that such Participant or
beneficiary is legally incompetent, by age or otherwise, to receive
such benefit, until either:
(i) a legal guardian has been appointed to receive and
account for such benefit to and on behalf of the Participant or
beneficiary, or
(ii) another person is legally entitled to receive such
benefit on behalf of Participant or beneficiary and payment to
such person will discharge the Plan's obligation to the
Participant or beneficiary.
(b) Manner and Form of Payment.
--------------------------
(1) The benefits payable under paragraphs (a), (b), (c) and (d) of
Article VIII shall be paid in the form of a single lump sum distribution.
(2) Any such benefits may be in cash or in kind, except that benefits
attributable to a Participant's ESOP Matching Contribution Account and ESOP
Automatic Contribution
47.
<PAGE>
Account (other than any portion of such Accounts invested pursuant to a
Diversification Election) shall be paid to the Participant (or, if
applicable, his beneficiary or beneficiaries), to the extent possible, in
units of Employer Securities. Notwithstanding the foregoing, no fractional
shares shall be issued and the value of any fractional shares to which a
Participant (or his beneficiary or beneficiaries) would otherwise be
entitled shall be paid in cash. During the 60 day period immediately
preceding the proposed distribution date of the benefit which the
Participant is entitled to receive under the Plan, the Trustee, to the
extent possible, shall apply the balance in the Participant's Other
Investments Account to the purchase of the maximum number of whole units of
Employer Securities at their then Fair Market Value, which units shall be
allocated to the Participant's Employer Securities Account. Any portion of
the balance of a Participant's Other Investments Account that the Trustee
is unable to apply to the purchase of whole units of Employer Securities
within the said 60 day period shall be paid in cash.
(3) Direct Rollover Distributions. An Eligible Distributee may elect,
-----------------------------
at the time and in the manner prescribed by the Plan Administrator, to have
all or any portion of an Eligible Rollover Distribution paid directly to an
Eligible Retirement Plan specified by the Eligible Distributee in a Direct
Rollover. In the event that an Eligible Distributee elects to have only a
portion of an Eligible Rollover Distribution paid directly to an Eligible
Retirement Plan, the portion must not be less than $500 (adjusted under
such regulations as may be issued from time to time by the Secretary of the
Treasury).
(c) Periodic Adjustments. To the extent the balance of a Participant's
--------------------
Accounts has not been distributed and remains in the Plan, and notwithstanding
anything contained in the Plan to the contrary, the value of such remaining
balance shall be subject to adjustment from time to time pursuant to the
provisions of Article VII.
(d) Put Option. Except to the extent hereinafter provided in this
----------
paragraph (d), or except as otherwise required by applicable law, no Employer
Securities may be subject to a put, call or other option, or buy-sell or similar
arrangement while held by and when distributed from the Plan.
(1) If any such Employer Securities, when distributed to or for the
benefit of a Participant, are not then listed on a national securities
exchange registered under Section 6 of the Securities Exchange Act of 1934
(the "1934 Act") or are not then quoted on a system sponsored by a national
securities association registered under Section 15A(b) of the 1934 Act, or,
if so listed or quoted, are then subject to a trading limitation (a
restriction under any federal or state securities law, any regulation
thereunder or any permissible agreement affecting such Employer Securities,
that makes such Employer Securities not as freely tradable as Employer
Securities not subject to such restriction), then the Participant, the
Participant's beneficiary or beneficiaries, the persons to whom such shares
are transferred by gift from the Participant, or any person to whom such
Employer Securities pass by reason of the death of the Participant or a
beneficiary of the Participant, as the case may be, shall be granted an
option to put any of the units of such Employer Securities to the Company.
(A) The put option shall provide that, for a period of 15 months
after such shares are distributed, the Participant, the Participant's
beneficiary or beneficiaries,
48.
<PAGE>
the persons to whom such shares are transferred by gift from the
Participant, or any person to whom such Employer Securities pass by
reason of the death of the Participant or a beneficiary of the
Participant, as the case may be, shall have the right to have the
Company purchase such units at their Fair Market Value as of the
Valuation Date immediately preceding the date the put option is
exercised.
(B) Any such put option shall be exercised by the holder
notifying the Company in writing that the put option is being
exercised; the date of exercise shall be the date the Company receives
such written notice.
(C) Payment of the purchase price shall be made by the Company,
at the election of the Company, either in cash within 30 days after
the date of exercise or by an installment purchase. Any installment
purchase must provide for adequate security, a reasonable interest
rate and a payment schedule providing for cumulative payments at any
time not less than the payments that would be made if made in
substantially equal annual installments beginning within 30 days and
ending not more than five years (which may be extended to a date no
later than the earlier of ten years after the date of exercise or the
date the proceeds of the loan used by the Plan to acquire the
securities in question are entirely repaid) after the date the put
option is exercised.
(2) The following special rules shall apply to any put option granted
with respect to any such Employer Securities:
(A) At the time that any such put option is exercised, the Plan
shall have an option to assume the rights and obligations of the
Company under the put option.
(B) If it is known at the time that a loan is made to the Plan to
enable it to purchase Employer Securities that federal or state law
will be violated by the Company honoring the put option provided in
this paragraph (d), the holder of any such put option shall have the
right to put such Employer Securities to a third party that has
substantial net worth at the time the loan is made and whose net worth
is reasonably expected to remain substantial, the identity of such
third party to be selected by the Plan Administrator.
(C) If any such Employer Securities are publicly traded without
restriction when distributed, but cease to be so traded within 15
months after distribution, the Company shall notify each holder of
such Employer Securities, in writing, on or before the tenth day after
the date such Employer Securities cease to be so traded, that for the
remainder of the 15-month period, such Employer Securities are subject
to a put option. Such notice shall also inform the holder of the terms
of such put option (which terms shall be consistent with the
provisions of this paragraph (d)). If such notice is given after the
tenth day after the date such Employer Securities cease to be so
traded, the duration of the put option shall be extended by the number
of days between such tenth day and the date on which notice is
actually given.
49.
<PAGE>
(D) The period during which a put option is exercisable shall
not include any time when a distributee is unable to exercise it
because the party bound by the put option is prohibited from honoring
it by applicable federal or state law.
(3) Except as otherwise permitted by law, the provisions of this
paragraph (d) are not terminable for any reason, including the cessation of
the Plan as an employee stock ownership plan.
(e) Certain Uncashed Distribution Checks. During the Plan Year ending
------------------------------------
December 31, 1999, the Plan's prior Trustee, Bank of America, has disgorged
certain funds believed to relate to uncashed distribution checks. Such monies
shall be immediately re-deposited to the Plan, and the accounts to which such
funds relate shall be re-created. Thereafter, such accounts shall be invested
and distributed in accordance with the provisions of this Plan.
ARTICLE X
Designated Investments
----------------------
(a) Available Investments.
---------------------
(1) Each Participant shall direct the portion of his Savings
Contribution Account, Matching Contribution Account, Automatic Contribution
Account, Discretionary Contribution Account, Rollover Contribution Account
and 401(k) Employer Contribution Account to be invested in:
(A) Fund A - an employer stock fund, which shall invest
------
primarily in Employer Securities; provided, however, that the
Agreement of Trust that provides for custody of such Fund shall permit
the Trustee thereof to invest such Fund or any part thereof in other
investments; and provided, further, that no amount shall be invested
in Employer Securities until all securities registration requirements
applicable to either the Employer Securities or the Plan have been
complied with;
(B) Fund B - a fixed income fund, which may consist of
------
guaranteed interest contracts, certificates of deposit, commercial
paper, mortgages, United States treasury and agency bonds, notes and
bills, corporate bonds, fixed rate annuity contracts (provided,
however, that no such annuity contract shall be deemed to permit any
Participant to receive any benefit under this Plan in the form of a
life annuity), savings accounts or comparable investments, as provided
from time to time under an Agreement of Trust, a Contract or an
agreement entered into by the Plan Administrator or the Trustee with
an investment manager, providing for all or a portion of such Fund;
(C) Fund C - a common stock fund, which shall consist of common
------
stock and such other investments as may be provided from time to time
under an Agreement of Trust, a Contract or an agreement entered into
by the Plan Administrator or the
50.
<PAGE>
Trustee with an investment manager, providing for all or a portion of
such Fund; provided, however, that not more than 5% of such Fund shall
be invested in Employer Securities;
(D) Fund D - a U.S. Government securities fund, which shall
------
consist primarily of U.S. Government obligations; provided, however,
that it may also include commercial paper, bank certificates of
deposit and other types of short maturity investments; or
(E) Fund E - a capital fund, which shall consist of equity
------
securities, corporate bonds and/or money market securities, and such
other investments as may be provided from time to time under an
Agreement of Trust, a Contract or an agreement entered into by the
Plan Administrator or the Trustee with an investment manager,
providing for all or a portion of such Fund; provided, however, that
not more than 5% of such Fund shall be invested in Employer
Securities.
(F) Fund F - a small capitalization index fund, which shall
------
consist of common stocks included in the Russell 2000 Index and such
other investments as may be provided from time to time under an
Agreement of Trust, a Contract or an agreement entered into by the
Plan Administrator or the Trustee with an investment manager,
providing for all or a portion of such Fund; provided, however, that
not more than 5% of such Fund shall be invested in Employer
Securities; or
(G) Fund G - an international growth fund, which shall consist
------
of a diversified portfolio of foreign equity securities and such other
investments as may be provided from time to time under an Agreement of
Trust, a Contract or an agreement entered into by the Plan
Administrator or the Trustee with an investment manager, providing for
all or a portion of such Fund; provided, however, that not more than
5% of such Fund shall be invested in Employer Securities.
(2) Each Participant who has made a Diversification Election pursuant
to paragraph (c) of Article XI shall direct the applicable portion of his
ESOP Matching Contribution Account and ESOP Automatic Contribution Account
to be invested in Funds B, C, D, E, F and G.
(3) Notwithstanding the provisions of subparagraph (1)(A), any
Participant who is an officer, director or 10% owner of the Company, or who
otherwise is required to file reports under Section 16(a) of the Securities
Exchange Act of 1934, shall not be permitted to direct that any portion of
his Account be invested in Fund A.
(4) Notwithstanding the provisions of subparagraph (1)(A), no
Participant may direct that more than 25% of the contributions allocated to
his Accounts for any Plan Year be invested in the Mandalay Stock Fund
("Fund A"). No Participant may increase the portion of his Savings
Contribution Account, Matching Contribution Account, Automatic Contribution
Account, Discretionary Contribution Account, Rollover Contribution Account
and 401(k) Employer Contribution Account, together with any portion of his
ESOP Matching Contribution
51.
<PAGE>
Account and ESOP Automatic Contribution Account which is subject to a
diversification election, that is invested in Fund A if such increase would
cause more than 25% of such Accounts to be invested in Fund A. No
Participant shall be required to reduce the portion of prior Plan
contributions that are invested in Fund A.
(b) Time and Manner of Designating Investments. The elections described in
------------------------------------------
paragraph (a) shall be made in such form as may be approved by the Plan
Administrator from time to time, with the Participant designating the percentage
of each of his Accounts which is subject to the provisions of paragraph (a) to
be allocated to any Fund specified in paragraph (a)(1). Any such designation
may be revised as permitted by the Plan Administrator, at three month intervals,
so long as no more than 25% of the Participant's current contributions are to be
invested in the Mandalay Stock Fund, and so long as the combined percentage of
the Participant's Matching Contribution Account, Automatic Contribution Account,
Discretionary Contribution Account, Rollover Contribution Account and 401(k)
Employer Contribution Account, together with any portion of his ESOP Matching
Contribution Account and ESOP Automatic Contribution Account which is subject to
a diversification election, that is invested in the Mandalay Stock Fund, does
not exceed 25% of the Participant's combined balances of such Accounts.
(c) Responsibility for Designating Investments. Once a Participant has
------------------------------------------
designated a Fund, no change in such designation shall be made until the
Participant changes his election pursuant to the provisions of this Plan unless
either the Plan Administrator or the Trustee has actual knowledge that the
Participant has died or has become legally incompetent to make a designation.
(1) If a Participant or a beneficiary of a deceased Participant (or
the legal guardian thereof) does not specifically designate an investment
for all or part of any Account subject to the provisions of paragraph (a),
such portion shall be invested in Fund B unless the Trustee (or, effective
as of March 31, 1999, the Investment Manager (as defined in paragraph (p)
of Article I of the Trust)) determines that a different fund shall be the
default fund.
(2) Effective March 31, 1999, if the Plan Administrator has actual
knowledge that the Participant has died or has become legally incompetent
to make a designation, the Trustee (or, effective as of March 31, 1999, the
Investment Manager (as defined in paragraph (p) of Article I of the Trust))
shall determine the Fund in which such portion shall be invested until a
designation can be obtained from the Participant or the Participant's legal
guardian.
(3) In the event of the death of a Participant, the Participant's
beneficiary (or beneficiaries) shall have the responsibility for
designating investments for the portion of the Participant's Accounts that
are subject to the provisions of paragraph (a), if such beneficiary is
legally competent to do so, until distribution of such Accounts can be
made. If a beneficiary is legally incompetent to make such a designation,
the beneficiary's legal guardian shall make such designations on behalf of
the beneficiary.
(d) Investment of ESOP Fund. The portion of a Participant's ESOP Matching
-----------------------
Contributions Account and ESOP Automatic Contributions Account that is not
invested pursuant to a Diversification Election shall be separately invested,
pursuant to an Agreement of Trust, in the ESOP
52.
<PAGE>
Fund, which shall invest primarily in Employer Securities; provided, however,
that the Agreement of Trust that provides for custody of such Fund shall permit
the Trustee thereof to invest such Fund or any part thereof in other investments
when the Trustee deems investment in Employer Securities to be imprudent or
otherwise inappropriate; and provided, further, that no amount shall be invested
in Employer Securities unless and until all securities registration requirements
applicable to either the Employer Securities or the Plan have been complied
with.
ARTICLE XI
Withdrawals and Diversification Election
----------------------------------------
(a) Hardship Withdrawals.
--------------------
(1) A Participant who has participated in this Plan for at least 18
months will be eligible to receive a distribution of Savings Contributions
(plus earnings credited to such contributions prior to January 1, 1989) on
account of Hardship. A distribution will be on account of Hardship only if
the distribution both (A) is made on account of an immediate and heavy
financial need of the Participant, and (B) is necessary to satisfy such
financial need. Upon receipt of a request for a Hardship withdrawal, the
Administrator shall determine whether an immediate and heavy financial need
exists and the amount necessary to meet the need in a uniform and
nondiscriminatory manner; provided, however, that no Hardship withdrawal
shall be permitted in an amount less than $1,000.
(2) The determination of whether a Participant has an immediate and
heavy financial need shall be made on the basis of all relative facts and
circumstances. Each Participant requesting a withdrawal shall provide the
Plan Administrator with a financial statement, in the form required by the
Administrator. A financial need shall not fail to qualify as immediate and
heavy merely because such need was reasonably foreseeable or voluntarily
incurred by the Participant.
(3) A distribution shall be deemed made on account of a Hardship if
the distribution is on account of:
(A) Medical expenses, as described in Section 213(d) of the
Code, that are incurred by the Participant, the Participant's spouse,
or any dependents of the Participant (as defined in Section 152 of the
Code), or that are necessary in order to permit the Participant or
such dependent to obtain medical care;
(B) Purchase (excluding mortgage payments) of a principal
residence of the Participant;
(C) Payment of tuition and related educational fees for the next
12 months of post-secondary education for the Participant, his spouse,
children, or dependents;
53.
<PAGE>
(D) The need to prevent the eviction of the Participant from his
principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(E) Such other events as may be prescribed by the Commissioner
of Internal Revenue in revenue rulings, notices and other documents of
general applicability.
(4) The Administrator shall determine whether a distribution is
necessary to satisfy an immediate and heavy financial need on the basis of
all relevant facts and circumstances. A distribution will not be treated
as necessary to satisfy an immediate and heavy financial need of a
Participant to the extent that the amount of the distribution is in excess
of the amount required to relieve the financial need (plus any amount
necessary to pay taxes on such amount) or to the extent such need may be
satisfied from other resources that are reasonably available to the
Participant. A distribution generally may be treated as necessary to
satisfy a financial need if the Employer reasonably relies upon the
Participant's representation that the need cannot be relieved:
(A) Through reimbursement or compensation by insurance or
otherwise;
(B) By reasonable liquidation of the Participant's assets, to
the extent such liquidation would not itself cause an immediate and
heavy financial need;
(C) By cessation of Savings Contributions under the Plan; or
(D) By other distributions or nontaxable (at the time of the
loan) loans from plans maintained by an Employer or by any other employer,
or by borrowing from commercial sources on reasonable commercial terms.
In determining whether a distribution is necessary to satisfy a financial
need, the Participant's resources shall be deemed to include those assets
of his spouse and minor child that are reasonably available to the
Participant.
(b) Withdrawals at Age 59 1/2. Upon reaching age 59 1/2 and fulfilling the
-------------------------
requirements for full vesting of each of his Accounts, a Participant may apply
to the Administrator for the withdrawal of his Accounts in a lump sum. The
Administrator shall establish uniform and nondiscriminatory rules and procedures
regarding the distribution of benefits pursuant to this paragraph. The
Administrator shall direct the Trustee to distribute to a Participant who has
applied for such a withdrawal the amount held in his Accounts.
(c) Diversification Election. Any Participant who has attained age 55 and
------------------------
completed 10 years of participation in the Plan (disregarding participation
before January 1, 1989), shall have the right to direct the Trustee as to the
investment of a portion of his Employer Securities Accounts credited to his ESOP
Matching Contribution Account and ESOP Automatic Contribution Account.
54.
<PAGE>
(1) Such a Participant may elect, within 90 days after the close of
the first Plan Year in the Diversification Election Period, to diversify an
amount not exceeding 25% of the balance of his Employer Securities
Accounts, determined as of the last day of such Plan Year.
(2) Within 90 days after the close of the second, third, fourth and
fifth Plan Years in the Diversification Election Period, such a Participant
may elect to diversify the difference between 25% of the balance of his
Employer Securities Accounts, determined as of the last day of such Plan
Year, and the amount with respect to which diversification was previously
elected.
(3) In the last Plan Year of the Diversification Election Period, the
Participant may elect to diversify the difference between 50% of the
balance of his Employer Securities Accounts, determined as of the last day
of such Plan Year, and the amount with respect to which diversification was
previously elected.
(4) Any such election shall be in writing on forms provided by the
Plan Administrator.
(5) If any Participant elects to diversify a portion of his Accounts
in any year in the Qualified Election Period, he may direct the Trustee to
sell or exchange Employer Securities attributable to the amount to be
diversified. Upon receipt of such direction from the Participant, the
Trustee may sell the Employer Securities to any third party purchaser (who
may or may not be a "party in interest" within the meaning of Section 3(14)
of ERISA), or may exchange the shares for cash or other assets (other than
Employer Securities) then held in the ESOP Fund. Any sale of Employer
Securities by the Trustee shall be made at Fair Market Value on the date of
sale, and any such sale to a party in interest shall not be subject to any
commission or similar fee. The proceeds of a sale or exchange shall be
invested pursuant to Participant's election is made.
(6) Notwithstanding any other provision of this paragraph (c), no
Participant shall have the right to direct the Trustee as to the investment
of a portion of his Employer Securities Accounts unless the value of the
Employer Securities acquired by or contributed to this Plan, and allocated
to the Participant's Employer Securities Accounts, exceeds $500 as of the
Valuation Date immediately preceding the first day on which the Participant
may otherwise elect to diversify such Accounts.
ARTICLE XII
Trust Fund
----------
The Trust Fund shall be held by such Trustees and Insurers as may be
selected by the Company from time to time under one or more Agreements of Trust
or Contracts. Any Agreement of Trust or Contract may from time to time be
amended in the manner therein provided. Similarly, the Trustee or Insurer may be
changed from time to time in the manner provided in an applicable Agreement of
Trust or Contract. To the extent elected (for purposes of paragraph (a) of
Article X) or required (for
55.
<PAGE>
purposes of paragraph (d) of Article X) under the provisions of this Plan, the
entire Trust Fund or any portion thereof may be invested in Employer Securities.
ARTICLE XIII
Expenses of Administration of the Plan and the Trust Fund
---------------------------------------------------------
(a) Expenses of Implementation. The Company shall bear all expenses of
--------------------------
implementing this Plan and the Trust.
(b) Expenses of Trustee or Insurer.
------------------------------
(1) For its services, any corporate trustee and any Insurer shall be
entitled to receive reasonable compensation in accordance with its rate
schedule in effect from time to time for the handling of the assets of a
qualified retirement plan.
(2) Any individual Trustee shall be entitled to such compensation as
shall be arranged between the Company and the Trustee by separate
instrument; provided, however, that no person who is already receiving
full-time pay from any Employer or any Affiliate shall receive compensation
from the Trust Fund (except for the reimbursement of expenses properly and
actually incurred).
(3) All expenses of the administration of the Trust Fund, including
the Trustees' and Insurers' compensation, the compensation of any
investment manager, the expense incurred by the Plan Administrator in
discharging its duties, all income or other taxes of any kind whatsoever
that may be levied or assessed under existing or future laws upon or in
respect of the Trust Fund, and any interest that may be payable on money
borrowed by the Trustee for the purpose of the Trust, shall be paid or
provided for by the Company (or another Employer) and, if not so paid,
shall be paid out of the assets of the Trust Fund. Any such payment by the
Company or an Employer shall not be deemed a contribution to this Plan.
(4) Notwithstanding anything contained herein to the contrary, no
excise tax or other liability imposed upon the Trustee, the Plan
Administrator or any other person for failure to comply with the provisions
of any federal law shall be subject to payment or reimbursement from the
assets of the Trust.
ARTICLE XIV
Amendment and Termination
-------------------------
(a) Right to Amend or Terminate Reserved. It is the present intention of
------------------------------------
the Company and each Employer to maintain the Plan set forth herein throughout
its existence. Nevertheless, the
56.
<PAGE>
Company specifically reserves to itself the right at any time and from time to
time to amend or terminate this Plan in whole or in part; provided, however,
that no such amendment:
(1) shall have the effect of vesting in any Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds held subject to the terms of any Trust or Contract;
(2) shall cause or permit any property held subject to the terms of
any Trust or Contract to be diverted to purposes other than the exclusive
benefit of the Participants and their beneficiaries or for the
administrative expenses of the Plan Administrator, any Trust and any
Contract;
(3) shall reduce any vested interest of a Participant on the later of
the date the amendment is adopted or the date the amendment is effective,
except as permitted by law;
(4) shall reduce the Accounts of any Participant;
(5) shall amend any vesting schedule with respect to any Participant
who has at least 3 Years of Service at the end of the election period
described below, except as permitted by law, unless each such Participant
shall have the right to elect to have the vesting schedule in effect prior
to such amendment apply with respect to him, such election, if any, to be
made during the period beginning not later than the date the amendment is
adopted and ending no earlier than 60 days after the latest of the date the
amendment is adopted, the amendment becomes effective or the Participant is
issued written notice of the amendment by his Employer or the Plan
Administrator; or
(6) shall increase the duties or liabilities of any Trustee or
Insurer without its written consent.
(b) Amendments. Subject to the limitations stated in paragraph (a), the
----------
Company shall have the power to amend this Plan in any manner that it deems
desirable, and, not in limitation but in amplification of the foregoing, it
shall have the right to change or modify the method of allocation of
contributions hereunder, to change any provision relating to the administration
of this Plan and to change any provision relating to the distribution or
payment, or both, of any of the assets of any Trust or Contract.
(c) Termination or Discontinuance. Any Employer, in its sole and absolute
-----------------------------
discretion, may permanently discontinue making contributions under this Plan or
may terminate this Plan and all Trusts and Contracts (with respect to all
Employers if it is the Company, or with respect to itself alone if it is an
Employer other than the Company), completely or partially, at any time without
any liability whatsoever for such permanent discontinuance or complete or
partial termination. In any of such events, the affected Participants,
notwithstanding any other provisions of this Plan, shall have fully vested
interests in the amounts credited to their respective Accounts at the time of
such complete or partial termination of this Plan and its Trusts and Contracts
or permanent discontinuance of contributions. All such vested interests shall be
nonforfeitable.
57.
<PAGE>
(d) Method of Discontinuance. In the event an Employer decides to
------------------------
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and each Trustee, and to
the Insurer of any Contract that is not held by the Trustee. All of the assets
in the Trust Fund belonging to the affected Participants on the date of
discontinuance specified in such resolutions shall, aside from becoming fully
vested as provided in paragraph (c), be held, administered and distributed by
the Trustee in the manner provided under this Plan. In the event of a permanent
discontinuance of contributions without such formal documentation, full vesting
of the interests of the affected Participants in the amounts credited to their
respective Accounts shall occur on the last day of the first year for which no
substantial contribution is made to any Trust or Contract.
(e) Method of Termination.
---------------------
(1) In the event an Employer decides to terminate this Plan and its
Trust and Contracts, such decision shall be evidenced by an appropriate
resolution of its Board and a certified copy of such resolution shall be
delivered to the Plan Administrator and each Trustee, and to the Insurer of
any Contract that is not held by the Trustee. After payment of all
expenses and proportional adjustments of individual accounts to reflect
such expenses and other changes in the value of the Trust Fund as of the
date of termination, each affected Participant (or the beneficiary of any
such Participant) shall be entitled to receive any amount then credited to
his Accounts in a lump sum, provided in the case of his Savings
Contribution Account, Matching Contribution Account, Automatic Contribution
Account, Discretionary Contribution Account and his 401(k) Employer
Contribution Account that the requirements set forth in subparagraph (2)
are met.
(2) In the event this Plan and its Trust and Contracts are
terminated, completely or partially, and with respect to any one Employer
or with respect to all Employers, distributions shall not be made pursuant
to this paragraph (e) unless:
(A) the Plan has been completely terminated and no successor
plan (within the meaning of Section 401(k)(10) of the Code) has been
established;
(B) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer to an unrelated corporation
of substantially all of the assets used in a trade or business, in
which case distribution may be made to employees who continue
employment with the acquiring corporation; or
(C) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer of its interest in a
subsidiary, in which case distribution may be made to employees who
continue employment with the subsidiary.
(3) At the election of the Participant, the Plan Administrator may
transfer the amount of any Participant's distribution under this paragraph
(e) to the trustee of another qualified plan or the trustee of an
individual retirement account or individual retirement annuity instead
58.
<PAGE>
of distributing such amount to the Participant. Any such election by a
Participant shall be in writing and filed with the Plan Administrator.
ARTICLE XV
Miscellaneous
-------------
(a) Merger or Consolidation. This Plan and its Trust and Contracts may not
-----------------------
be merged or consolidated with, and the assets or liabilities of this Plan and
its Trusts and Contracts may not be transferred to, any other plan or trust
unless each Participant would receive a benefit immediately after the merger,
consolidation or transfer, if the plan and trust then terminated, that is equal
to or greater than the benefit the Participant would have received immediately
before the merger, consolidation or transfer if this Plan and its Trusts and
Contracts had then terminated.
(b) (1) Prohibition on Alienation. Except as provided in paragraphs
-------------------------
(b)(2) and (b)(3), no Participant or beneficiary of a Participant shall
have any right to assign, transfer, appropriate, encumber, commute,
anticipate or otherwise alienate his interest in this Plan or its Trusts or
Contracts or any payments to be made thereunder; no benefits, payments,
rights or interests of a Participant or beneficiary of a Participant of any
kind or nature shall be in any way subject to legal process to levy upon,
garnish or attach the same for payment of any claim against the Participant
or beneficiary of a Participant; and no Participant or beneficiary of a
Participant shall have any right of any kind whatsoever with respect to any
Trust or Contract, or any estate or interest therein, or with respect to
any other property or right, other than the right to receive such
distributions as are lawfully made out of any Trust or Contract, as and
when the same respectively are due and payable under the terms of this
Plan.
(2) Qualified Domestic Relations Orders. Notwithstanding the
-----------------------------------
provisions of paragraph (b)(1), the Plan Administrator shall direct the
Trustee or Insurer to make payments pursuant to a Qualified Domestic
Relations Order as defined in Section 414(p) of the Code and as determined
by the Administrator pursuant to this subparagraph (2).
(A) Determination. The Plan Administrator shall determine
-------------
whether a court order purporting to qualify under Section 414(p) of
the Code actually meets such requirements as soon as practicable
following receipt of such order. The Administrator shall establish
procedures for making such determination.
(i) The Administrator shall refuse to approve any order
which, in its opinion, does not comply strictly with the
requirements of Section 414(p) of the Code. No order may be
approved if the Administrator determines that it contains any
ambiguity, or if any provision is inconsistent with any other
requirement of applicable law.
59
<PAGE>
(ii) The Administrator may require an order to include
provisions that it deems necessary to properly administer the
order under the terms of this Plan, including (without
limitation):
a. instructions as to the Account of the Participant
from which the alternate payee's benefits are to be taken,
and
b. clear provisions specifying the disposition of
unpaid benefits of the alternate payee in the event of the
death of either the Participant or the alternate payee:
1. A qualified domestic relations order may
provide that the unpaid balance of an alternate payee's
benefits be paid to the alternate payee's estate or
personal representative. An alternate payee may not
designate an individual death beneficiary.
2. If the alternate payee is to receive any
unpaid benefits provided under the order
notwithstanding the prior death of the Participant, the
order must clearly so provide in full compliance with
the provisions of ERISA and the Code.
(B) Notification. The Administrator shall notify the Participant
------------
and the alternate payee of receipt of such order as soon as
practicable following such receipt. The Administrator shall notify
the Participant and the alternate payee of the Plan Administrator's
determination as to whether such order is qualified as soon as
practicable following such determination. If the Plan Administrator
is able to determine whether an order is qualified promptly upon
receipt of such order, the Administrator may send one notice which
informs the Participant and the alternate payee both of the receipt of
the order and of the Administrator's determination.
(C) Suspense Account while Order is being Evaluated. During the
-----------------------------------------------
time that the Plan Administrator is considering whether such an order
is qualified, any amount to which the Administrator reasonably
believes that the order purports to apply shall not be paid to the
Participant, even if the Participant would otherwise be entitled to
receive such amount.
(i) If an amount would otherwise be paid to the Participant
while the Plan Administrator is considering such an order, such
amount shall be credited to a separate suspense account. The
Participant shall retain any right he may have to direct the
investment of the amounts in such suspense account to the same
extent as if no order had been received.
(ii) If the Administrator determines that the order is
qualified, the amounts in the suspense account shall be paid to
the alternate payee to the extent
60.
<PAGE>
provided in the order. Any remaining amounts in the suspense
account shall be paid to the Participant. If the Administrator
determines that the order is not qualified, the amounts in the
suspense account shall be paid to the Participant.
(iii) The Plan Administrator shall determine the date
following its determination as of which the amounts in the
suspense account are to be released to the Participant and/or the
alternate payee. The Administrator may allow a reasonable period
during which either party may appeal its determination as to the
status of the order before releasing the amounts from the
suspense account. If either party appeals such determination, the
Administrator shall not release the amounts from the suspense
account until the Administrator makes its decision on appeal. If
a substitute order is received during the appeal period, the
Administrator shall not release any amounts from the suspense
account that the Administrator reasonably believes to be covered
by the substitute order until after it has determined whether the
substitute order is qualified.
(iv) No amount shall remain in a suspense account longer
than 18 months, except that the receipt of a substitute order
with respect to funds already held in a suspense account shall
extend such period until 18 months following receipt by the
Administrator of such substitute order. If, at the end of such
period, the Administrator still has not determined whether the
order (or substitute order) is qualified, the amounts in the
suspense account shall be distributed to the Participant.
(D) Freeze on Account in Anticipation of Order.
------------------------------------------
(i) If the Plan Administrator is informed that a person
who would qualify as an alternate payee intends to obtain a
qualified domestic relations order with respect to the Accounts
of a Participant, the Administrator may refuse, for a reasonable
period, to permit the distribution to the Participant from such
Accounts of any amount to which the Administrator reasonably
believes such alternate payee will claim.
(ii) Even in the absence of specific information that a
potential alternate payee is seeking a qualified domestic
relations order, the Plan Administrator may refuse to permit the
distribution to the Participant from his Accounts of any amount
if the Administrator reasonably believes that distribution of
such amount to the Participant would result in a violation of the
community property rights of the Participant's spouse or former
spouse.
(iii) In the event the Administrator refuses to permit a
distribution in accordance with subsection (i) or (ii) of this
section (D), the Participant shall retain any right he may have
to direct the investment of such amount to the same
61.
<PAGE>
extent as if the Administrator had not received such information
or formed such belief.
(E) Time of Distribution to Alternate Payee. Effective as of
---------------------------------------
January 1, 1994, an alternate payee who is entitled to benefits under
a qualified domestic relations order may receive a distribution of
benefits, to the extent permitted by such order, as soon as
practicable following the Plan Administrator's determination that the
order is qualified, regardless of the age or employment status of the
Participant.
(3) Levy by Internal Revenue Service. Notwithstanding the provisions
--------------------------------
of paragraph (b)(1), the Plan Administrator shall direct the Trustee or
Insurer to comply with the lawful terms of a levy of the Internal Revenue
Service.
(c) Controlling Law. This Plan shall be administered, construed and
---------------
enforced according to the laws of the State of Nevada, except to the extent such
laws have been preempted by federal law.
(d) Action by Employer. Whenever the Company or another Employer under the
------------------
terms of this Plan is permitted or required to do or perform any act, it shall
be done and performed by the Board of Directors of the Company or such other
Employer and shall be evidenced by proper resolution of such Board of Directors
certified by the Secretary or Assistant Secretary of the Company or such other
Employer.
(e) Impossibility. In the event it becomes impossible for the Company,
-------------
another Employer, or the Plan Administrator to perform any act required by this
Plan, then the Company, such other Employer, or the Plan Administrator, as the
case may be, may perform such alternative act that most nearly carries out the
intent and purpose of this Plan.
(f) Gender. Throughout this Plan, and whenever appropriate, the masculine
------
gender shall be deemed to include the feminine and neuter; the singular, the
plural; and vice versa.
(g) Veterans' Reemployment Rights. Notwithstanding any provision of this
-----------------------------
Plan to the contrary, effective as of December 12, 1994, contributions, benefits
and service credit with respect to qualified military service will be provided
in accordance with Section 414(u) of the Code.
62.
<PAGE>
IN WITNESS WHEREOF, this Thirteenth Amendment and Restatement has been
executed this 24th day of November, 1999.
ATTEST: MANDALAY RESORT GROUP
(CORPORATE SEAL)
/s/ Yvette Landau By: /s/ Glenn Schaeffer
- ---------------------------- -------------------------------------
Secretary President
"COMPANY"
63.
<PAGE>
EXHIBIT 4(e)
NINTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP
EMPLOYEES' PROFIT SHARING AND INVESTMENT TRUST
<PAGE>
NINTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP
EMPLOYEES' PROFIT SHARING AND INVESTMENT TRUST
Table of Contents
Article Title Page No.
- --------- ----- --------
I Definitions..........................................................1
II Name of the Trust....................................................4
III Establishment of the Trust Fund......................................4
IV Trust Administration.................................................5
V Investment Managers..................................................9
VI Investment of the Trust Fund.........................................9
VII Voting and Other Rights; Dividends..................................13
VIII Expenses of Administration of the Plan and the Trust Fund...........14
IX Amendment and Termination...........................................15
X Acceptance of Trust.................................................16
XI Miscellaneous.......................................................17
<PAGE>
NINTH AMENDMENT AND RESTATEMENT
OF THE
MANDALAY RESORT GROUP
EMPLOYEES' PROFIT SHARING
AND INVESTMENT TRUST
THIS AGREEMENT AND DECLARATION OF TRUST (the "Agreement"), is made and
entered into this 24th day of November, 1999, but is effective for all
purposes as of June 18, 1999, (except as otherwise provided herein) by and
between Mandalay Resort Group (formerly known as Circus Circus Enterprises,
Inc.) (the "Company") and Wells Fargo Bank (the "Trustee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company has previously adopted an Agreement of Trust for the
Mandalay Resort Group Employees' Profit Sharing and Investment Trust (formerly
known as the Circus Circus Employees' Profit Sharing and Investment Trust) which
has been amended from time to time (as amended, the "Trust"); and
WHEREAS, pursuant to the terms of the Trust, the Company is authorized and
empowered to further amend the Trust; and
WHEREAS, the Company deems it advisable and in the best interests of the
Participants to amend the Trust to reflect a change in the Trustee, and to make
other desired changes.
NOW, THEREFORE, the Trust is hereby amended and restated in its entirety to
read as follows:
ARTICLE I
Definitions
-----------
As used in this Agreement, the following terms shall have the meaning
hereinafter set out:
(a) "Account" shall mean, as required by the context, the entire amount
-------
held from time to time for the benefit of any one Participant, or the portion
thereof attributable to Savings Contributions, Matching Contributions, Automatic
Contributions, Discretionary Contributions or Rollover Contributions, as well as
ESOP Matching Contributions, ESOP Automatic Contributions, 401(k) Automatic
Contributions and 401(k) Employer Contributions, made under Plan provisions
previously in effect, and any Suspense Account.
(b) "Administrator" shall mean the Plan Aministrator.
-------------
<PAGE>
(c) "Board of Directors" and "Board" shall mean the board of directors of
------------------ -----
the Company or, when required by the context, the board of directors of an
Employer other than the Company.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended, or
----
any successor statute. Reference to a specific section of the Code shall
include a reference to any successor provision.
(e) "Company" shall mean Mandalay Resort Group and its successors.
-------
(f) "Contract" shall mean an agreement between an Insurer and the Company
--------
or the Trustee to invest all or part of the assets of a Fund.
(g) "Discretionary Contribution Account" shall mean an account established
----------------------------------
pursuant to paragraph (b) of Article VII of the Plan to hold Discretionary
Contributions made pursuant to paragraph (d) of Article VI of the Plan.
(h) "Effective Date" of this Amended and Restated Trust shall mean June
--------------
18, 1999.
(i) "Employer" shall, effective June 1, 1998, mean the Company, Circus
--------
Circus Casinos, Inc., Slots-A-Fun, Inc., Edgewater Hotel Corporation, Colorado
Belle Corp., New Castle Corp., Ramparts, Inc., Ramparts International, Circus
Circus Mississippi, Inc., Mandalay Development, Railroad Pass Investment Group,
Jean Development Company, Jean Development West and Mandalay Corp., as well as
any other subsidiary, related corporation or other entity that adopts the Plan
with the consent of the Company. Railroad Pass Investment Group, Jean
Development Company and Jean Development West are, at times, collectively
referred to herein as the "Gold Strike Entities." The term "Employer" shall also
include:
(1) Effective as of July 1, 1998, Circus Circus Michigan, Inc.; and
(2) Effective as of January 1, 1999, Ramparts International.
(j) "Employer Securities" shall mean common stock, any other type of stock
-------------------
or any marketable obligation (as defined in Section 407(e) of ERISA) issued by
the Company or any Affiliate of the Company; provided, however, that if Employer
Securities are purchased with borrowed funds, Employer Securities, to the extent
required by Section 4975 of the Code, shall only include:
(1) Such securities that are readily tradable on an established
securities market; or
(2) If none of the stock of an Employer (or any Affiliate of such
Employer other than a member of an affiliated service group that includes
such Employer) is publicly tradable on an established securities market,
common stock issued by the Employer having a combination of voting power
and dividend rights equal to or in excess of (A) that class of
2.
<PAGE>
common stock of the Employer or any Affiliate having the greatest voting
power, and (B) that class of common stock of the Employer or any Affiliate
having the greatest dividend rights; or
(3) Noncallable preferred stock that is convertible at any time into
stock meeting the requirements of subparagraph (1) or (2) (whichever is
applicable), if such conversion is at a reasonable price (determined as of
the date of acquisition by the Trustee).
(k) "ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended, or any successor statute. References to a specific section of
ERISA shall include references to any successor provisions.
(l) "ESOP Automatic Contribution Account" shall mean an account
-----------------------------------
established pursuant to paragraph (b) of Article VII of the Plan to hold ESOP
Automatic Contributions made under the provisions of the Plan as in effect on or
after January 1, 1989 and ending prior to January 1, 1996.
(m) "ESOP Matching Contribution Account" shall mean an account established
----------------------------------
pursuant to paragraph (b) of Article VII of the Plan to hold ESOP Matching
Contributions made under the provisions of the Plan as in effect on or after
January 1, 1990 and ending prior to January 1, 1996.
(n) "401(k) Employer Contribution Account" shall mean an account
------------------------------------
established pursuant to paragraph (b) of Article VII of the Plan to hold 401(k)
Automatic Contributions and 401(k) Employer Contributions made under the
provisions of the Plan as in effect prior to January 1, 1990.
(o) "Insurer" shall mean a legal reserve life insurance company licensed
-------
or authorized to transact business in the State of Nevada that shall issue a
Contract.
(p) "Investment Manager" shall mean the individual, individuals,
------------------
partnership, corporation or other entity, if any, appointed by the Administrator
to manage all or any portion of the assets of the Plan. Any Investment Manager
shall be (1) registered as an investment advisor under the Investment Advisors
Act of 1940; (2) a bank as defined in such Act; or (3) an insurance company
qualified to perform the services of an investment manager under the laws of
more than one state.
(q) "Participant" shall mean any eligible Employee of an Employer who has
-----------
become a Participant under the Plan and shall include any former employee of an
Employer who became a Participant under the Plan and who still has a balance in
an Account under the Plan.
(r) "Plan" shall mean the Thirteenth Amendment and Restatement of the
----
Mandalay Resort Group Employees' Profit Sharing and Investment Plan, as it may
be in effect from time to time.
3.
<PAGE>
(s) "Plan Administrator" shall mean the Company.
------------------
(t) "Plan Year" shall mean the 12-month period ending on December 31.
---------
(u) "Rollover Contribution Account" shall mean an account established
-----------------------------
pursuant to paragraph (b) of Article VII of the Plan to hold Rollover
Contributions made pursuant to paragraph (b)(2) of Article V of the Plan or
paragraph (j) of Article VI of the Plan.
(v) "Savings Contribution Account" shall mean an account established
----------------------------
pursuant to paragraph (b) of Article VII of the Plan to hold Savings
Contributions made pursuant to paragraph (a) of Article VI of the Plan.
(w) "Suspense Account" shall mean an account established for the purpose
----------------
of maintaining unallocated Employer Securities, unallocated amounts which have
been forfeited pursuant to the terms of Article VI or VII of the Plan, or
amounts being held pending evaluation of a qualified domestic relations order.
(x) "Trust" shall mean the trust established by the Company as herein set
-----
forth and the account or accounts established by the Contracts.
(y) "Trustee" shall mean the individual, individuals or corporation
-------
designated as trustee under this Agreement, or any duly appointed successor.
(z) "Trust Fund" shall mean the trust fund established under this
----------
Agreement.
ARTICLE II
Name of the Trust
-----------------
The trust amended and restated in accordance with the terms hereof shall be
known as the "MANDALAY RESORT GROUP EMPLOYEES' PROFIT SHARING AND INVESTMENT
TRUST."
ARTICLE III
Establishment of the Trust Fund
-------------------------------
(a) Assets to be Held. The Company has previously established, pursuant
-----------------
to the Plan, a trust comprised of amounts previously contributed by the Company
and the other Employers. The Trustee shall maintain all amounts that are held
pursuant to the Trust, including any Contracts entered into with an Insurer by
the Company and transferred to the Trustee, such other sums of money and
4.
<PAGE>
property as shall from time to time be paid or delivered to the Trustee, the
earnings and profits thereon and any assets into which such funds are converted.
(b) Accounts Held. The Trust Fund shall include all assets attributable
-------------
to Suspense Accounts established pursuant to paragraph (c) of Article VII of the
Plan, as well as Participants' ESOP Matching Contribution Accounts and ESOP
Automatic Contribution Accounts (other than any portion of such Accounts
invested, pursuant to a diversification election as described in Article XI of
the Plan, in Contracts issued by an Insurer directly to the Company and not
transferred to the Trustee). The Trust Fund shall also include any assets
attributable to Participants' designated investments in "Fund A," described in
Article X of the Plan, and may include investments attributable to any Contract
issued by an Insurer, as well as any other investment permitted under paragraph
(a) of Article X of the Plan, which are allocated to any other Suspense Accounts
or to Participants' Savings Contribution Accounts, Matching Contribution
Accounts, Automatic Contribution Accounts, Discretionary Contribution Accounts,
401(k) Employer Contribution Accounts, Rollover Contribution Accounts, and any
portion of Participants' ESOP Matching Contribution Accounts and ESOP Automatic
Contribution Accounts invested pursuant to a diversification election as
described in Article XI of the Plan.
(c) Exclusive Benefit of Participants and Beneficiaries. The Trust Fund
---------------------------------------------------
shall be held by the Trustee in trust and dealt with in accordance with the
provisions hereof. Except as otherwise permitted by law, in no event shall any
part of the principal or income of the Trust Fund be used for or diverted to any
purpose whatsoever other than for the exclusive benefit of the Participants and
their beneficiaries.
ARTICLE IV
Trust Administration
--------------------
(a) Receipt of Contributions. The Trustee shall receive from each
------------------------
Employer and the Participants the contributions made as their Savings
Contributions, Matching Contributions, Automatic Contributions, Discretionary
Contributions, Rollover Contributions, and any portion of Participants' ESOP
Matching Contribution Accounts and ESOP Automatic Contribution Accounts invested
pursuant to a diversification election as described in Article XI of the Plan,
unless such contributions are invested in Contracts issued by an Insurer
directly to the Company and not transferred to the Trustee. The Trustee shall
have no right or duty to inquire into the amount of any contribution made by an
Employer or a Participant, or the method used in determining the amount of any
such contribution, or to collect the same. The Trustee shall be accountable only
for funds actually received by it. The Trustee shall not be responsible for the
acts of any predecessor trustee, unless otherwise required under the Employee
Retirement Income Security Act or any other applicable law.
(b) Plan Administrator's Directions. When directed in writing by the Plan
-------------------------------
Administrator or its agent, the Trustee shall:
5.
<PAGE>
(1) value the Trust Fund;
(2) make transfers and deliveries of assets to, and accept transfers
and deliveries of assets from, an Insurer in order to comply with any
elections by Participants under Article X of the Plan with respect to
Contracts issued by an Insurer directly to the Company and not transferred
to the Trustee;
(3) make any other transfers, payments and deliveries to or for the
account of Participants or their beneficiaries;
(4) borrow money and pledge any Trust property for the payment of any
such loan; and
(5) make benefit payments from the Trust, and the Trustees shall have
no liability for any payment promptly made in accordance with the Plan
Administrator's direction. Such direction shall specify the investments to
be liquidated, the payee, the payee's address, the amount of the payment,
and the tax withholding, if any, to be applied to the payment. The Trustee
shall have no duty to determine the identity or mailing address of any
person entitled to benefits from the Plan.
Nothing contained in this paragraph (b) shall prevent the Plan Administrator
itself from performing the actions described in subparagraph (1).
(c) Authorized Actions. The Trustee is authorized, at the written
------------------
direction of the Plan Administrator and upon indemnification satisfactory to the
Trustee, to:
(1) settle, compromise or submit to arbitration any claims, debts or
damages due or owing to or from this Trust, commence or defend suits or
legal or administrative proceedings and represent the Trust in all suits
and legal and administrative proceedings;
(2) employ suitable agents and counsel (who may be counsel for an
Employer), and pay their reasonable expenses and compensation; and
(3) make, execute and deliver as Trustee, with provisions for no
individual responsibility (except responsibility for negligence of the
Trustee and for breach of the Trustees' fiduciary duty), all instruments in
writing necessary or appropriate for the exercise of any of its powers of
administration.
(d) Written Directions. The Trustee shall have no dealings with the
------------------
beneficiaries under this Agreement except under the direction of the Plan
Administrator to make payment to them. All directions, papers and communications
addressed to the Trustee or intended to be filed with it shall be delivered at
its principal office.
6.
<PAGE>
(e) Records and Accounts. The Trustee shall keep accurate and detailed
--------------------
accounts on all investments, receipts, disbursements and other transactions
hereunder. All accounts, books and records relating to this Trust shall be open
to inspection and audit at all reasonable times by any person designated by the
Plan Administrator.
(f) Resignation and Removal.
-----------------------
(1) The Company may at any time remove the Trustee by providing
written notice to the Trustee, which removal shall take effect on the date
therein specified; and the Trustee may at any time resign by providing the
Company and the Plan Administrator with a written resignation, which
resignation shall take effect on the date therein specified, but not less
than 30 days from the date of the giving of such notice unless the Plan
Administrator shall agree to an earlier date. The Company may appoint a
corporation or an individual or individuals to be successor Trustee
hereunder in the place of any removed or resigned Trustee. Any notice
required or permitted by this subparagraph shall be deemed given upon the
mailing thereof to the appropriate person by certified or registered U.S.
mail, return receipt requested, in a properly addressed envelope, postage
prepaid.
(2) After receiving notice of removal or after the effective date of
resignation, the removed or resigning Trustee shall transfer, pay over and
deliver the Trust Fund to the successor Trustee, or if no successor Trustee
be appointed within 30 days from the Trustee's receipt of notice of removal
or within 30 days from the effective date of the Trustee's resignation, as
the case may be, the removed or resigning Trustee shall, upon the
expiration of such 30-day period, transfer, pay over and deliver the Trust
Fund to the Plan Administrator. Notwithstanding any such transfer, payment
and delivery of the Trust Fund to any successor Trustee or to the
Administrator, as the case may be, the removed or resigning Trustee may
have its entire account judicially settled and it shall be entitled to the
payment out of the Trust Fund of any compensation due to it up to the time
of removal or resignation and of any expenses or other disbursements,
whether theretofore or thereafter arising, for which the removed or
resigning Trustee would be entitled to reimbursement if the Trust Fund had
not been so transferred, paid over and delivered.
(g) Periodic Accounting.
-------------------
(1) Within 90 days after the end of each Plan Year, and within 60
days after removal or resignation, the Trustee shall furnish the Plan
Administrator with a verified accounting of the Trust Fund for such Plan
Year, or for the portion thereof ending with the date of such removal or
resignation, which accounting shall include a record of receipts and
disbursements, changes in investments and realized appreciation and
depreciation for such year or period, and a statement of assets (showing
both book value and fair market value) and liabilities on hand as of the
end of such year or period.
(2) Except as otherwise permitted by law, all rights of every
Participant and every beneficiary of a Participant under the Plan or this
Agreement with relation to the Trust Fund
7.
<PAGE>
or that may arise against or affect the Trustee shall be enforced
exclusively by the Administrator, which is hereby given the express power
and authority to enforce all such rights as a representative of every
Participant and beneficiary under the Plan, and in any action or proceeding
with relation to the Trust Fund or brought by or against the Trustee, the
Plan Administrator shall be deemed to represent every interested
Participant and beneficiary. The Trustee shall provide notice, in writing,
to the Plan Administrator within 60 days after the Trustee receives notice
of any claim or potential claim relating to the Trust Fund, or arising
against or affecting the Trustee in its capacity as Trustee.
(3) The Plan Administrator shall promptly review the Trustee's
accountings and shall, within 120 days after receipt of an accounting, file
any exceptions to the accounting with the Trustee. If the Trustee receives
no written exceptions within such 120 day period, the accounting shall be
deemed settled.
(4) The Trustee shall determine the fair market value of the Trust on
a periodic basis, as agreed between the Plan Administrator and the Trustee.
The Trustee shall perform such valuation in a reasonable and consistent
manner in accordance with applicable law. The Trustee may utilize and shall
be entitled to rely upon quotation and pricing services and publications it
considers reliable. If the Plan Administrator or Investment Manager directs
investment into an asset for which no public pricing information is
available, the Trustee may obtain its fair market value from the Plan
Administrator or the Investment Manager, or from an appraiser engaged by
the Plan Administrator, and it shall be entitled to rely conclusively upon
the value provided. If the Plan Administrator or Investment Manager is
unable or unwilling to provide such valuation, the Trustee may employ an
appraiser or other expert to provide such valuation. If insurance policies,
annuities, or participant loans become assets of the Trust, the Plan
Administrator shall be responsible for their valuation.
(h) Funding Policy. The Plan Administrator shall establish in writing a
--------------
funding policy and method for the Plan and this Trust, which policy shall be
reviewed at least once each year. All actions taken with respect to such funding
policy and the reasons therefor shall be recorded in writing by the Plan
Administrator.
(i) Indemnity Agreement. The Company shall indemnify, defend, and hold
-------------------
harmless the Trustee, its employees, officers, directors, and affiliates
("Indemnified Parties") from and against all claims, losses and expenses,
including reasonable attorneys' fees, incurred as a result of acting in
accordance with directions given to the Trustee by the Plan Administrator, its
agent or the Investment Manager; provided, however, that the foregoing indemnity
shall not apply to the negligence, breach of fiduciary duty, or willful
misconduct of an Indemnified Party. This indemnity shall survive the resignation
or removal of the Trustee.
(j) Instructions. The Trustee shall bear no liability for acting upon any
------------
instruction or document believed by it to be genuine and signed by a party duly
authorized to do so, and the Trustee
8.
<PAGE>
shall be under no duty to make any investigation or inquiry about the
correctness of such instruction or document.
ARTICLE V
Investment Managers
-------------------
(a) Appointment. The Plan Administrator may appoint one or more
-----------
Investment Managers to manage all or part of the assets attributable to Funds B,
C, D, E, F and G described in paragraph (a) of Article X of the Plan in
accordance with the provisions of Article VI. The Plan Administrator may engage
an Investment Manager to select one or more of such Investment Managers to be
appointed by the Plan Administrator. Each such appointment shall specify the
particular assets of the Trust Fund to be managed by such Investment Manager.
(b) Written Acceptance. Before any such appointment becomes effective,
------------------
any Investment Manager so appointed shall accept such designation in writing
and, as part of such acceptance, shall acknowledge that it is a fiduciary with
respect to the Plan.
(c) Resignation and Removal. The Plan Administrator may at any time
-----------------------
remove an Investment Manager acting hereunder, and any Investment Manager acting
hereunder may at any time resign, in each case in such manner as may be or may
have been agreed by the Plan Administrator and the Investment Manager. The
Administrator may appoint any individual, individuals, partnership, corporation
or other entity to be a successor Investment Manager hereunder in the place of
any removed or resigned Investment Manager.
ARTICLE VI
Investment of the Trust Fund
----------------------------
(a) Investment in Employer Securities.
---------------------------------
(1) The Plan is designed to invest each Participant's ESOP Matching
Contribution Account and ESOP Automatic Contribution Account primarily in
Employer Securities for the benefit of the Participants and their
beneficiaries.
(2) All assets attributable to each Participant's Savings
Contribution Account, Matching Contribution Account, Automatic Contribution
Account, Discretionary Contribution Account, 401(k) Employer Contribution
Account, Rollover Contribution Account, and any portion of Participants'
ESOP Matching Contribution Account and ESOP Automatic Contribution Account
invested pursuant to a diversification election as described in Article XI
of the Plan, shall be invested, at the election of the Participant, subject
to the limitations set forth in paragraphs (a)(4) and (b) of Article X of
the Plan, in one or more
9.
<PAGE>
investments described in the designated investment provisions of Article X
of the Plan. Any assets attributable to a designated investment in "Fund
A," as described within Article X of the Plan, shall be invested primarily
in Employer Securities by the Trustee, unless otherwise required by Article
X of the Plan.
(3) Assets attributable to any designated investment described in
paragraph (a) of Article X of the Plan, other than investments in "Fund A,"
shall be invested, as required by Article X, by the fiduciary delegated
investment discretion; provided, however, that the Company may direct the
Trustee to transfer or deliver any portion of such assets from the Trust to
an Insurer pursuant to a Contract entered into by the Company with an
Insurer.
(4) If one or more Investment Managers have been appointed by the
Administrator, the responsibility for investment decisions for assets held
in Trust shall be allocated between the Trustee and the Investment Managers
in accordance with the written directions of the Plan Administrator, and
the Trustee and each Investment Manager shall have no responsibility for
each other's investment decisions.
(b) Acquisition of Employer Securities. Employer Securities may be
----------------------------------
purchased or otherwise acquired from any source, including any party that might
be a party in interest (within the meaning of Section 3(14) of ERISA) or a
disqualified person (within the meaning of Section 4975(e)(2) of the Code);
provided, however, that if Employer Securities are purchased or acquired from
such a party in interest or disqualified person, the Trustee shall neither pay
more than adequate consideration (within the meaning of Section 3(18) of ERISA),
nor pay any commission to any person in connection with such acquisition.
(c) Execution of Investment Decisions. Investment decisions made by any
---------------------------------
Investment Manager shall be communicated to the Trustee and the Plan
Administrator, and shall be carried out forthwith either by the Investment
Manager or its agent or by the Trustee acting upon the direction of the
Investment Manager.
(d) Powers. To the extent that it is not inconsistent with the investment
------
of the Trust assets attributable to the Participants' ESOP Matching Contribution
Accounts and ESOP Automatic Contribution Accounts (as well as designated
investments in "Fund A" described in Article X of the Plan) primarily in
Employer Securities, in carrying out their duties hereunder, each Investment
Manager, if any (with respect to making and carrying out its investment
decisions), and the Trustee (with respect to carrying out the decisions of an
Investment Manager or its own investment decisions) are authorized and empowered
to:
(1) sell, redeem or otherwise realize the value of any assets of the
Trust Fund;
(2) invest and reinvest all or any part of the Trust Fund, the income
therefrom and the increment thereof in any common or preferred stocks,
bonds, mortgages, secured or unsecured notes, secured or unsecured
debentures, mutual funds, other securities, or commodities; any common
trust fund operated by the Trustee (provided that as long as the
10.
<PAGE>
Trust has any investments in a common fund available only to pension trusts
and profit sharing trusts that meet the requirements of Section 401(a) of
the Code, then such common trust fund shall constitute an integral part of
this Trust and of the Plan). The assets so invested shall be subject to all
of the provisions of the investments establishing and governing such funds.
Those instruments of group trusts, including any subsequent amendments, are
hereby incorporated and made part of this Trust; insurance on the lives of
the Participants; or property of any kind or nature whatsoever, real,
personal or mixed, including mortgaged real property, without regard to any
rule of law or statute designating securities to be held for trust funds;
and to hold cash uninvested (or in deposits bearing a reasonable rate of
interest, in a bank or other similar institution supervised by the United
States or a state, including, if applicable, the Trustee) at any time and
from time to time;
(3) without limitation on the foregoing, buy and sell listed options
and/or sell covered options and repurchase the same;
(4) vote upon any stocks, other than Employer Securities attributable
to any Participant's ESOP Matching Contribution Account or ESOP Automatic
Contribution Account bonds or other securities of any corporation or other
issuer held in the Trust, and otherwise consent to or request any action on
the part of such corporation or other issuer, and give general or special
proxies or powers of attorneys with or without power of substitution;
(5) become a party to the reorganization, consolidation or merger of
any corporation, and for such purposes execute any agreements or consents,
or participate in or take any steps to effectuate the same, whether or not
any specific plans have been formulated therefor and in connection
therewith, deposit any such securities with creditors or stockholders'
committees, bodies or other protective groups, and surrender or exchange
any such securities for such debentures, certificates, receipts, agreements
or proceeds as may be issued or paid by such committees, bodies or groups,
or reorganized, consolidated or merged corporations, and generally exercise
all the rights and powers, whether herein enumerated or not, as may be
lawfully exercised by persons holding similar property in their own right;
(6) not maintain the indicia of ownership of any trust asset outside
the jurisdictions of the district courts of the United States, except as
authorized by regulations issued by the Department of Labor; and
(7) purchase shares of any registered investment company, whether or
not the Trustee or any of its affiliates is an advisor to, or other service
provider to, such company and receives compensation from such company for
the services provided.
(e) Holding of Securities. To the extent permitted by applicable law, the
---------------------
Trustee may hold any securities or other property in its own name or in the name
of its nominee, with depositories or agent depositories or in such other form as
it may deem best, with or without disclosing the trust relationship.
11.
<PAGE>
(f) Loans. In order to enable it to carry out the purpose for which the
-----
Plan and Trust was established, the Trustee shall have the power to borrow money
from any source, including (to the extent permitted by the Code and ERISA) from
any party that may be a party in interest (within the meaning of Section 3(14)
of ERISA) or a disqualified person (within the meaning of Section 4975(e)(2) of
the Code); provided, however, that no such loan shall be used to purchase
Employer Securities. The Trustee shall have the power to issue promissory
notes as Trustee to evidence any such borrowing.
(g) Written Instruments. The Trustee and each Investment Manager shall
-------------------
make, execute and deliver, as Trustee or Investment Manager, as the case may be,
with provisions for no individual liability (except responsibility for
negligence and for breach of fiduciary duty), all instruments in writing
necessary for the exercise of any of the foregoing powers.
(h) Responsibility for Designating Investments. Once a Participant has
------------------------------------------
designated a Fund with respect to the portions of his Accounts that are subject
to paragraph (a) of Article X of the Plan, no change in such designation shall
be made until the Participant changes his election pursuant to the provisions of
this Plan unless either the Plan Administrator or the Trustee has actual
knowledge that the Participant has died or has become legally incompetent to
make a designation.
(1) If a Participant does not specifically designate an investment
for all or part of any Account subject to the provisions of paragraph (a)
of Article X of the Plan, such portion shall be invested in Fund B unless
the Investment Manager determines that a different fund shall be the
default fund.
(2) If either the Plan Administrator or the Investment Manager has
actual knowledge that the Participant has died or has become legally
incompetent to make a designation, the Investment Manager shall determine
the Fund in which such portion shall be invested until a designation can be
obtained from the Participant or the Participant's legal guardian, personal
representative or death beneficiary, as the case may be. If the Plan
Administrator has actual knowledge of the death or incompetence of a
Participant, the Administrator shall promptly so notify the Trustee.
(3) In the event of the death of a Participant, the Participant's
beneficiary (or beneficiaries) shall have the responsibility for
designating investments for the portion of the Participant's Accounts that
are subject to the provisions of paragraph (a) of Article X of the Plan, if
such beneficiary is legally competent to do so, until distribution of such
Accounts can be made. If a beneficiary is legally incompetent to make such
a designation, the beneficiary's legal guardian shall make such
designations on behalf of the beneficiary.
12.
<PAGE>
ARTICLE VII
Voting and Other Rights; Dividends
----------------------------------
(a) Voting and Other Rights. Any voting and other rights with respect to
-----------------------
units of Employer Securities held as part of each Participant's Accounts, or as
part of any Suspense Account, within the Trust Fund shall be exercised as
follows:
(1) Any voting and other rights with respect to units of Employer
Securities (including fractional shares) allocated to any Participant's
ESOP Matching Contribution Account or ESOP Automatic Contribution Account
shall be exercised by the Trustee in accordance with instructions received
from such Participant. In connection with the exercise of such rights, the
Trustee shall notify each Participant at least 30 days prior to the date
upon which such rights are to be exercised; provided, however, that the
Trustee shall not be under any obligation to notify the Participants sooner
than it receives such information as a security holder of record. In the
event the notice received by the Trustee makes it impossible for the
Trustee to comply with such 30 day notice requirement, the Trustee shall
notify the Participants regarding the exercise of such rights as soon as
practicable. The notification shall include all information distributed to
the security holders of record by the Employer regarding the exercise of
such rights.
(2) Any voting and other rights with respect to units of Employer
Securities (including fractional, shares) held by it that are
(A) allocated to any Suspense Account,
(B) allocated to any Participant's Savings Contribution Account,
Matching Contribution Account, Automatic Contribution Account,
Discretionary Contribution Account, 401(k) Employer Contribution
Account or Rollover Contribution Account, or
(C) allocated to any Participant's ESOP Matching Contribution
Account or ESOP Automatic Contribution Account but with respect to
which no instructions were received,
shall be exercised by the Trustee at its sole discretion.
(b) Dividends. Dividends with respect to units of Employer Securities
---------
held as part of the Trust Fund shall be dealt with as follows:
(1) Cash dividends with respect to units of Employer Securities
(including fractional shares) allocated to each Participant's Employer
Securities Account may be paid, at the discretion of the Employer, directly
to the Participant.
13.
<PAGE>
(2) Cash dividends paid to the Trustee with respect to units of
Employer Securities (including fractional shares) allocated to the Employer
Securities Account of a Participant as of the payment date shall be
distributed, if, and to the extent that, the Company so directs, to the
Participant (or his beneficiary or beneficiaries) by the Trustee.
(3) Cash dividends paid with respect to units of Employer Securities
held in the ESOP Fund shall be retained by the Trustee and allocated in the
same manner as other income of the Trust Fund.
(4) Stock Dividends paid with respect to units of Employer Securities
(including fractional shares) allocated to each Participant's ESOP Matching
Contribution Account and ESOP Automatic Contribution Account as of a
payment date shall be retained by the Trustee and allocated in the same
manner as other income of the Trust Fund.
ARTICLE VIII
Expenses of Administration of the Plan and the Trust Fund
---------------------------------------------------------
(a) Expenses of Implementation. The Company shall bear all expenses of
--------------------------
implementing the Plan and this Trust.
(b) Expenses of Trustee or Insurer.
------------------------------
(1) For its services, the Trustee shall be entitled to receive
compensation at a rate to be agreed upon by the parties to this Agreement.
(2) The Company may pay all expenses of the administration of the
Trust Fund, including the Trustee's compensation, the Trustee's fiduciary
expenses relating to the Employer securities, the expense incurred by the
Plan Administrator in discharging its duties, all income or other taxes of
any kind whatsoever that may be levied or assessed under existing or future
laws upon or in respect of the Trust Fund, and any interest that may be
payable on money borrowed by the Trustee for the purpose of the Trust and
any Employer may pay such expenses as relate to Participants employed by
such Employer. Any such payment by the Company or an Employer shall not be
deemed a contribution to the Plan. Such expenses shall be paid out of the
assets of the Trust Fund unless paid or provided for by the Company or
another Employer.
(3) Notwithstanding anything contained herein to the contrary, no
excise tax or other liability imposed upon the Trustee, the Plan
Administrator or anyone else for failure to comply with the provisions of
any federal law shall be subject to payment or reimbursement from the
assets of the Trust.
14.
<PAGE>
ARTICLE IX
Amendment and Termination
-------------------------
(a) Right to Amend or Terminate Reserved. The Plan and this Trust may be
------------------------------------
amended or terminated by the Company in accordance with the terms of the Plan
and this Trust; provided, however, that no such amendment:
(1) shall have the effect of vesting in any Employer, directly or
indirectly, any interest, ownership or control in any of the present or
subsequent funds held subject to the terms of this Trust;
(2) shall cause or permit any property held subject to the terms of
this Trust to be diverted to purposes other than the exclusive benefit of
the Participants and their beneficiaries or for the administration expenses
of the Plan Administrator and this Trust;
(3) shall reduce any vested interest of a Participant on the later of
the date the amendment is adopted or the date the amendment is effective,
except as permitted by law;
(4) shall reduce the Accounts of any Participant;
(5) shall amend any vesting schedule with respect to any Participant
who has at least 3 Years of Service at the end of the election period
described below, except as permitted by law, unless each such Participant
shall have the right to elect to have the vesting schedule in effect prior
to such amendment apply with respect to him, such election, if any, to be
made during the period beginning not later than the date the amendment is
adopted and ending no earlier than 60 days after the latest of the date the
amendment is adopted, the amendment becomes effective or the Participant is
issued written notice of the amendment by his Employer or the Plan
Administrator; or
(6) shall increase the duties or liabilities of the Trustee without
its written consent.
(b) Termination or Discontinuance. Any Employer, in its sole and absolute
-----------------------------
discretion, may permanently discontinue making contributions under the Plan or
may terminate the Plan and this Trust (with respect to all Employers if it is
the Company, or with respect to itself alone if it is an Employer other than the
Company), completely or partially, at any time without any liability whatsoever
for such permanent discontinuance or complete or partial termination.
(c) Method of Discontinuance. In the event an Employer decides to
------------------------
permanently discontinue making contributions, such decision shall be evidenced
by an appropriate resolution of its Board and a certified copy of such
resolution shall be delivered to the Plan Administrator and the Trustee. All of
the assets in the Trust Fund belonging to the affected Participants on the date
of discontinuance specified in such resolutions shall be held, administered and
distributed by the Trustee in the manner provided under the Plan and this
Agreement.
15.
<PAGE>
(d) Method of Termination.
---------------------
(1) In the event an Employer decides to terminate the Plan and this
Trust, such decision shall be evidenced by an appropriate resolution of its
Board and a certified copy of such resolution shall be delivered to the
Plan Administrator and the Trustee. After payment of all expenses and
proportional adjustments of individual accounts to reflect such expenses
and other changes in the value of the Trust Fund as of the date of
termination, each affected Participant (or the beneficiary of any such
Participant) shall be entitled to receive any amount then credited to his
Accounts in a lump sum, provided in the case of his Savings Contribution
Account, Matching Contribution Account, Automatic Contribution Account,
Discretionary Contribution Account and his 401(k) Employer Contribution
Account that the requirements set forth in subparagraph (2) are met.
(2) In the event the Plan and this Trust are terminated, completely or
partially, and with respect to any one Employer or with respect to all
Employers, distributions shall not be made pursuant to this paragraph (d)
unless:
(A) the Plan has been completely terminated and no successor plan
(within the meaning of Section 401(k)(10) of the Code) has been
established;
(B) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer to an unrelated corporation
of substantially all of the assets used in a trade or business, in
which case distribution may be made to employees who continue
employment with the acquiring corporation; or
(C) the Plan has been partially terminated as a result of the
sale or other disposition by an Employer of its interest in a
subsidiary, in which case distribution may be made to employees who
continue employment with the subsidiary.
(3) At the election of the Participant, the Plan Administrator may
transfer the amount of any Participant's distribution under this paragraph
(d) to the trustee of another qualified plan or the trustee of an
individual retirement account or individual retirement annuity instead of
distributing such amount to the Participant. Any such election by a
Participant shall be in writing and filed with the Plan Administrator.
ARTICLE X
Acceptance of Trust
-------------------
The Trustee hereby accepts this trust and agrees to hold all the property
now or hereafter constituting the Trust Fund hereunder, subject to all the terms
and conditions of this Agreement. The duties and responsibilities of the
Trustee shall be solely those set forth in this Trust, and the Trustee shall not
have the authority to interpret the Plan. Anything in the Plan that is
inconsistent with this Trust is overridden, and in the case of such
inconsistency, the terms of this Trust shall govern.
16.
<PAGE>
ARTICLE XI
Miscellaneous
-------------
(a) Merger or Consolidation. The Plan and this Trust may not be merged or
-----------------------
consolidated with, and the assets or liabilities of the Plan and this Trust may
not be transferred to, any other plan or trust unless each Participant would
receive a benefit immediately after the merger, consolidation or transfer if the
plan and trust then terminated that is equal to or greater than the benefit the
Participant would have received immediately before the merger, consolidation or
transfer if the Plan and this Trust had then terminated.
(b) Alienation.
----------
(1) Except as provided in subparagraphs (2) and (3), no Participant
or beneficiary of a Participant shall have any right to assign, transfer,
appropriate, encumber, commute, anticipate or otherwise alienate his
interest in the Plan or this Trust or any payments to be made hereunder; no
benefits, payments, rights or interests of a Participant or a beneficiary
of a Participant of any kind or nature shall be in any way subject to legal
process to levy upon, garnish or attach the same for payment of any claim
against the Participant or beneficiary of a Participant; and no Participant
or beneficiary of a Participant shall have any right of any kind whatsoever
with respect to this Trust, or any estate or interest therein, or with
respect to any other property or right, other than the right to receive
such distributions as are lawfully made out of this Trust, as and when the
same respectively are due and payable under the terms of the Plan and this
Agreement.
(2) Notwithstanding the provisions of subparagraph (1), the Plan
Administrator shall direct the Trustee to make payments pursuant to a
Qualified Domestic Relations Order, as defined in Section 414(p) of the
Code, pursuant to the provisions of paragraph (b)(2) of Article XV of the
Plan.
(3) Notwithstanding the provisions of paragraph (b)(1), the Plan
Administrator shall direct the Trustee or Insurer to comply with the lawful
terms of a levy of the Internal Revenue Service.
(c) Governing Law. This Agreement and Declaration of Trust shall be
-------------
administered, construed and enforced according to the laws of the State of
Nevada, except to the extent such laws have been expressly preempted by federal
law.
(d) Action by Employer. Whenever the Company or another Employer under
------------------
the terms of this Agreement is permitted or required to do or perform any act,
it shall be done and performed by the Board of Directors of the Company or such
other Employer and shall be evidenced by proper resolution of such Board of
Directors certified by the Secretary or Assistant Secretary of the Company or
such other Employer.
(e) Alternative Actions. In the event it becomes impossible for the
-------------------
Company, another Employer, or the Plan Administrator to perform any act required
by this Agreement, then the
17.
<PAGE>
Company, such other Employer, or the Plan Administrator, as the case may be, may
perform such alternative act that most nearly carries out the intent and purpose
of this Agreement.
(f) Gender. Throughout this Agreement, and whenever appropriate, the
------
masculine gender shall be deemed to include the feminine and neuter; the
singular, the plural; and vice versa.
IN WITNESS WHEREOF, the parties have executed this Ninth Amendment and
Restatement this 24th day of November, 1999.
ATTEST: MANDALAY RESORT GROUP
(CORPORATE SEAL)
/s/ Yvette Landau By: /s/ Glenn Schaeffer
- -------------------------- -----------------------------------------
Secretary President
"COMPANY"
ATTEST: WELLS FARGO BANK
(CORPORATE SEAL)
_______________________________ By:______________________________________
Secretary
Its:_____________________________________
"TRUSTEE"
18.
<PAGE>
EXHIBIT 5(c)
[LETTERHEAD OF TRENAM, KEMKER, SCHARF,
BARKIN, FRYE, O'NEILL & MULLIS APPEARS HERE]
Tampa
November 29, 1999
Mandalay Resort Group
3950 Las Vegas Boulevard, South
Las Vegas, Nevada 89119
Re: Mandalay Resort Group
Employees' Profit Sharing and Investment Plan
Gentlemen:
You have requested our opinion as to whether the Amendment and Restatement
of the Mandalay Resort Group Employees' Profit Sharing and Investment Plan (the
"Plan"), adopted by Mandalay Resort Group (the "Company") on November 24, 1999,
as set forth in the Thirteenth Amendment and Restatement of the Mandalay Resort
Group Employees' Profit Sharing and Investment Plan (the "Restated Plan"), and
the Ninth Amendment and Restatement of the Plan's related trust (the "Restated
Trust"), have adversely affected the compliance of the Plan and the Trust with
Sections 401 and 501 of the Internal Revenue Code of 1986, as amended (the
"Code"), and with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA").
The Plan and the Trust received a determination letter dated April 28,
1987, from the Internal Revenue Service ("IRS") that the Plan met the
requirements of a qualified profit sharing plan under Section 401(a) of the Code
and a qualified cash or deferred arrangement under Section 401(k) of the Code,
and that the Trust was exempt from federal income taxation pursuant to Section
501(a) of the Code. The Plan and the Trust received second, third and fourth
determination letters, dated September 14, 1993, May 23, 1995 and July 22, 1997,
respectively, from the IRS, that the Plan met the requirements of a qualified
profit sharing plan under Section 401(a) of the Code, a qualified cash or
deferred arrangement under Section 401(k) of the Code, and a qualified employee
stock ownership plan ("ESOP") under Section 4975(e)(7) of the Code, and that the
Trust was exempt from federal income taxation pursuant to Section 501(a) of the
Code. It is our understanding that the Company will request an additional
determination letter from the IRS that the Plan meets the requirements of a
qualified profit sharing plan under Section 401(a) of the Code, a qualified cash
or deferred
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Mandalay Resort Group
November 29, 1999
Page 2
arrangement under Section 401(k) of the Code, and (to the extent necessary, in
light of the fact that contributions are no longer being made to the ESOP
portion of the Plan) a qualified ESOP under Section 4975(e)(7) of the Code, and
that the Trust is exempt from federal income taxation pursuant to Section 501(a)
of the Code.
In connection with the rendering of this opinion, we have examined the Plan
and all amendments thereto, the Trust (of which Wells Fargo Bank is the current
trustee) and all amendments thereto, the Restated Plan and the Restated Trust
(which has not yet been consented to or executed by Wells Fargo Bank). We have
also examined such corporate records of the Company as we consider necessary for
the purpose of this opinion. As to various questions of fact material to the
opinions expressed below, we have relied, without independent investigation, on
oral or written statements, letters or certificates of public officials or
officers of the Company. With respect to such factual matters upon which legal
conclusions expressed below are based, we have not undertaken any independent
audit, examination, investigation or inspection of the matters described or
contained in such statements, letters, or certificates, and have relied solely
upon the facts and circumstances described therein. In our examination, we have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures not actually witnessed by us, the legal capacity
of all natural persons executing instruments or documents examined or relied
upon by us (whether on their own behalf or on behalf of an entity), and the
completeness and conformity to original documents of all documents submitted to
us as certified, conformed, photostatic, telecopied or draft copies.
To date, only certain final regulations have been issued by the U.S.
Treasury and Department of Labor with respect to the requirements of the Code
and ERISA. Accordingly, our opinion concerning compliance of the Plan with the
Code and ERISA is necessarily based on our present understanding of the
applicable requirements of the Code and ERISA. In addition, this letter relates
only to the Plan's tax status under Sections 401 and 501 of the Code and its
status under ERISA, and further relates to the Plan's provisions as specifically
set forth in writing, and not to its operation. Furthermore, this opinion is
given as of the date hereof. We undertake no obligation, and hereby specifically
disclaim any obligation, to advise of any change in any matter set forth herein.
Based on the foregoing reviews, understandings and assumptions, and subject
to the exceptions and limitations described above, we are of the opinion that:
1. The adoption of the Restated Plan and the Restated Trust did not cause
the Plan to fail to be in substantial compliance with the requirements
of Sections 401(a), 401(k) and 4975(e)(7) of the Code so long as Wells
Fargo Bank consents to and executes the Restated Trust, and so long as
any further amendments requested by the IRS are adopted within 90 days
after the issuance of any determination letter that is conditioned
upon timely adoption of such amendments; and the IRS, without
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Mandalay Resort Group
November 29, 1999
Page 3
requiring material amendments thereto, should issue a favorable
determination letter with respect to the Restated Plan and the
Restated Trust; and
2. Upon the execution of the Restated Trust by Wells Fargo Bank, the
Restated Plan and the Restated Trust will substantially comply with
the applicable portions of ERISA that did not amend the Code, and the
adoption of the Restated Plan and the Restated Trust will not cause
the Plan or the Trust to fail to be in compliance with such
provisions.
We hereby consent to the use of this opinion as an Exhibit to the Company's
Registration Statement No. 33-18278 on Form S-8 and to the reference to us under
the caption "Legal Opinions" in the Prospectus, and any amendments thereto,
filed in connection with the Plan. In giving this consent, we do not hereby
admit that we come within a category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations thereunder.
Sincerely,
TRENAM, KEMKER, SCHARF, BARKIN,
FRYE, O'NEILL & MULLIS
By: /s/ Roberta Watson
------------------------------------------
Roberta Casper Watson
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EXHIBIT 23(c)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement (File No. 33-18278) of our
report dated February 22, 1999 incorporated by reference in the Annual Report
of Mandalay Resort Group (formerly Circus Circus Enterprises, Inc.) on Form
10-K for the year ended January 31, 1999; our report dated May 26, 1999 except
for Note 6, as to which the date is June 17, 1999 included in the Mandalay
Resort Group (formerly Circus Circus Enterprises, Inc.) Employees' Profit
Sharing and Investment Plan's Amendment No. 1 on Form 11-K/A to its Annual
Report on Form 11-K for the year ended December 31, 1998; and to all
references to our Firm included in this registration statement.
Arthur Andersen LLP
Las Vegas, Nevada
December 2, 1999
