As filed with the Securities and Exchange Commission on
February 14, 1995
Registration No. 33-_____
=================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ATMOS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Texas 75-1743247
(State or other jurisdiction of (I.R.S. Employer
corporation or organization) Identification No.)
1800 Three Lincoln Centre,
Suite 1800
5430 LBJ Freeway
Dallas, Texas 75240
(Address of principal executive offices) (Zip Code)
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF
ATMOS ENERGY CORPORATION
(Full Title of Plan)
Copies to:
DON E. JAMES DAN BUSBEE
Senior Vice President and Locke Purnell Rain Harrell
General Counsel (A Professional Corporation)
Atmos Energy Corporation 2200 Ross Avenue, Suite 2200
Three Lincoln Centre, Suite 1800 Dallas, Texas 75201
5430 LBJ Freeway
Dallas, Texas 75240
(Name and address of agent
for service)
(214) 934-9227
(Telephone number, including area code, of agent for service) <PAGE>
<TABLE>
CALCULATION OF REGISTRATION FEE
============================================================================================================
<CAPTION>
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(a) per unit(b) offering price(b) fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value . 1,000,000(c) $17.0625 $17,062,500 $5,883.62
============================================================================================================
<FN>
(a) Includes such additional shares as may be issued as a result
of the antidilution provisions of the Plan.
(b) Estimated solely for the purpose of calculating the
registration fee in accordance with Rule 457(h) on the basis
of the average of the high and low prices of the
Registrant's Common Stock as reported by the New York Stock
Exchange on February 8, 1995.
(c) In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this Registration Statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein. <PAGE>
</TABLE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Atmos Energy Corporation
("Registrant") with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated by reference in this
Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal
year ended September 30, 1994;
(b) Registrant's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1994; and
(c) The description of Registrant's Common Stock contained
in Registrant's Form 10 (File No. 0-11249) filed with the
Commission on October 28, 1983, Form S-1 (File No. 33-21815)
filed with the Commission on May 12, 1988, and Form S-2 (File No.
33-38048) filed with the Commission on December 5, 1990,
including any amendment or report filed for the purpose of
updating such description.
All documents filed by Registrant pursuant to Sections
13(a), 13(c), 14, or 15(d) of the Exchange Act subsequent to the
date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Registrant's Common Stock
offered hereby has been passed upon for Registrant by the law
firm of Locke Purnell Rain Harrell (A Professional Corporation),
Dallas, Texas. Dan Busbee, a director of Registrant, is a
shareholder of Locke Purnell Rain Harrell (A Professional
Corporation).<PAGE>
Item 6. Indemnification of Directors and Officers.
The Texas Business Corporation Act permits, and in some
cases requires, corporations to indemnify directors and officers
who are or have been a party or are threatened to be made a party
to litigation against judgments, penalties (including excise and
similar taxes), fines, settlements, and reasonable expenses under
certain circumstances. Article IX of Registrant's Restated
Articles of Incorporation and Article IX of Registrant's Bylaws
provide for indemnification of judgments, penalties (including
excise and similar taxes), fines, settlements, and reasonable
expenses and the advance payment or reimbursement of such
reasonable expenses to directors and officers to the fullest
extent permitted by law.
The Texas Business Corporation Act also allows corporations,
with the approval of its shareholders, to limit the liability of
directors under certain circumstances. Article X of Registrant's
Restated Articles of Incorporation provides for such limitation
of liability to the fullest extent permitted by law.
Registrant maintains an officers' and directors' liability
insurance policy insuring officers and directors against certain
liabilities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act"). The effect of such
policy is to indemnify the officers and directors of Registrant
against losses incurred by them while acting in such capacities.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The exhibits listed in the accompanying Index to Exhibits
are furnished as a part of this Registration Statement.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
-2-<PAGE>
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent post-
effective amendment hereof) which, individually or
in the aggregate, represent a fundamental change
in the information set forth in this Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers,
and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
-3-<PAGE>
than the payment by the Registrant of expenses incurred or paid
by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit, or proceeding) is
asserted by such director, officer, or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on February 8, 1995.
ATMOS ENERGY CORPORATION
By:/s/Ronald L. Fancher
-------------------------
Ronald L. Fancher
President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Ronald L.
Fancher and James F. Purser, and either 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 all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent 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.
-4- <PAGE>
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/Charles K. Vaughan Chairman of the Board February 8, 1995
- -----------------------
Charles K. Vaughan
/s/Ronald L. Fancher President and February 8, 1995
- ----------------------- Chief Executive
Ronald L. Fancher Officer; Director
/s/James F. Purser Executive Vice President February 8, 1995
- ----------------------- and Chief Financial
James F. Purser Officer
/s/David L. Bickerstaff Vice President and February 8, 1995
- ----------------------- Corporate Controller
David L. Bickerstaff (Chief Accounting Officer)
/s/Travis W. Bain II Director February 8, 1995
- -----------------------
Travis W. Bain II
/s/Dan Busbee Director February 8, 1995
- -----------------------
Dan Busbee
/s/Phillip E. Nichol Director February 8, 1995
- -----------------------
Phillip E. Nichol
/s/John W. Norris, Jr. Director February 8, 1995
- -----------------------
John W. Norris, Jr.
/s/Carl S. Quinn Director February 8, 1995
- -----------------------
Carl S. Quinn
-5-<PAGE>
/s/Lee E. Schlessman Director February 8, 1995
- -----------------------
Lee E. Schlessman
/s/Richard Ware II Director February 8, 1995
- -----------------------
Richard Ware II
/s/Dewey G. Williams Director February 8, 1995
- -----------------------
Dewey G. Williams
The Plan. Pursuant to the requirements of the Securities
Act of 1933, the trustee committee has duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Dallas,
State of Texas, on February 8, 1995.
EMPLOYEE STOCK OWNERSHIP PLAN
AND TRUST FOR EMPLOYEES OF
ATMOS ENERGY CORPORATION
By:/s/Don E. James
---------------------------------
Don E. James
Chairman, ESOP Trust Committee
By:/s/H. F. Harber
---------------------------------
H. F. Harber
Member, ESOP Trust Committee
By:/s/Gordon J. Roy
---------------------------------
Gordon J. Roy
Member, ESOP Trust Committee
By:/s/Dan L. Lindsey
---------------------------------
Dan L. Lindsey
Member, ESOP Trust Committee
By:/s/Steve Chenault
---------------------------------
Steve Chenault
Member, ESOP Trust Committee
-6-<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
4.1(a) Restated Articles of Incorporation of
Registrant (incorporated by reference to
Exhibit 3(a) of Registrant's Annual Report on
Form 10-K for the fiscal year ended September
30, 1991).
4.1(b) Articles of Amendment to Restated Articles of
Incorporation of Atmos Energy Corporation,
dated February 8, 1995.
4.2 Bylaws of Registrant (Amended and restated as
of May 11, 1994) (incorporated by reference
to Exhibit 3 of Registrant's Form 10-Q for
the quarter ended June 30, 1994).
4.3 Specimen Common Stock Certificate (Atmos
Energy Corporation) (incorporated by
reference to Exhibit 4(b) of Registrant's
Annual Report on Form 10-K (File No. 1-10042)
for the fiscal year ended September 30,
1988).
4.4(a) Rights Agreement, dated as of April 27, 1988,
between Registrant and The First National
Bank of Boston (successor trustee to Morgan
Shareholder Services Trust Company)
(incorporated by reference to Exhibit 1 of
Registrant's Form 8-K (File No. 0-11249)
filed May 10, 1988).
4.4(b) Amendment No. 1 to Rights Agreement, dated
August 10, 1994 (incorporated by reference to
Exhibit 4.3(b) of Registrant's Annual Report
on Form 10-K for the fiscal year ended
September 30, 1994).
4.4(c) Certificate of Adjusted Price, dated August
15, 1991 ((incorporated by reference to
Exhibit 4.3(b) of Registrant's Annual Report
on Form 10-K for the fiscal year ended
September 30, 1994).
4.5(a) Employee Stock Ownership Plan and Trust for
Employees of Atmos Energy Corporation (As
Restated Effective January 1, 1991).
-7-<PAGE>
Exhibit
Number Description
4.5(b) Amendment No. 1 to Employee Stock Ownership
Plan and Trust for Employees of Atmos Energy
Corporation (As Restated Effective January 1,
1991), dated May 14, 1992.
4.5(c) Amendment No. 2 to Employee Stock Ownership
Plan and Trust for Employees of Atmos Energy
Corporation (As Restated Effective January 1,
1991), dated May 10, 1993.
4.5(d) Amendment No. 3 to Employee Stock Ownership
Plan and Trust for Employees of Atmos Energy
Corporation (As Restated Effective January 1,
1991), dated April 20, 1994.
5(a) Opinion of Locke Purnell Rain Harrell.
5(b) Determination letter from the Internal
Revenue Service.
15 Letter from Ernst & Young LLP regarding
unaudited interim financial information.
23(a) Consent of Locke Purnell Rain Harrell
(included in Exhibit 5(a)).
23(b) Consent of Ernst & Young LLP.
24 Power of Attorney (included on Page 4 of this
Registration of Statement).
-8- <PAGE>
Exhibit 4.1(b)
--------------
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
ATMOS ENERGY CORPORATION
Pursuant to the provisions of Article 4.04 of the Texas
Business Corporation Act, the undersigned corporation
(hereinafter referred to as the "Corporation") adopts the
following Articles of Amendment to its Restated Articles of
Incorporation, which increase the number of authorized shares of
the common stock of the Corporation.
ARTICLE ONE
The name of the Corporation is Atmos Energy Corporation.
ARTICLE TWO
The following amendment to the Restated Articles of
Incorporation was adopted by the shareholders of the Corporation
on February 8, 1995:
Section 1 of Article VII of the Restated Articles of
Incorporation be amended to read as follows:
"The aggregate number of shares which the
Corporation shall have the authority to issue
is Seventy-Five Million (75,000,000) shares
of Common Stock having no par value."
ARTICLE THREE
The number of shares of the Corporation outstanding as of
the record date was 15,347,247.011 and the number of shares
entitled to vote on the amendment was 15,347,247.011.
ARTICLE FOUR
The number of shares voting for the amendment to increase
the number of authorized shares of common stock of the
Corporation was 12,894,385, the number of shares voting against
such amendment was 935,221, and the number of shares abstaining
was 155,534.
DATED: February 8, 1995.
ATMOS ENERGY CORPORATION
By: /s/ Ronald L. Fancher
-------------------------------------
Ronald L. Fancher
President and Chief Executive Officer<PAGE>
Exhibit 4.5(a)
--------------
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION
(AS RESTATED EFFECTIVE JANUARY 1, 1991)<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I PURPOSE . . . . . . . . . . . . . . . . . . . 1
ARTICLE II DEFINITIONS, CONSTRUCTION, ADOPTION AND
APPLICABILITY . . . . . . . . . . . . . . . . 2
2.01 Definitions . . . . . . . . . . . . . . . . . 2
2.02 Construction . . . . . . . . . . . . . . . . . 9
2.03 Adoption by Others . . . . . . . . . . . . . . 9
2.04 Applicability . . . . . . . . . . . . . . . . 10
ARTICLE III PARTICIPATION AND SERVICE . . . . . . . . . . 10
3.01 Participation . . . . . . . . . . . . . . . . 10
3.02 Service . . . . . . . . . . . . . . . . . . . 11
(a) Service Prior to the Effective Date . . . 11
(b) Service On and After Effective Date . . . 11
3.03 Transfer . . . . . . . . . . . . . . . . . . . 11
3.04 Controlled Group . . . . . . . . . . . . . . . 12
ARTICLE IV CONTRIBUTIONS . . . . . . . . . . . . . . . . 12
4.01 Employer Contributions . . . . . . . . . . . . 12
(a) Salary Reduction Contributions . . . . . 12
(b) Matching Employer Contributions . . . . . 12
(c) Discretionary Contributions . . . . . . . 15
4.02 Contributions by Participants . . . . . . . . 15
4.03 Participant Salary Reduction . . . . . . . . . 16
4.04 Rollover Contributions; Transfers . . . . . . 19
ARTICLE V ALLOCATIONS TO PARTICIPANTS' ACCOUNTS . . . . 20
5.01 Individual Accounts . . . . . . . . . . . . . 20
5.02 Account Adjustments . . . . . . . . . . . . . 20
(a) Income . . . . . . . . . . . . . . . . . 20
(b) Salary Reduction and Matching Employer
Contributions . . . . . . . . . . . . . . 21
(c) Employer Contributions . . . . . . . . . 21
(d) Company Stock . . . . . . . . . . . . . . 22
5.03 Maximum Additions . . . . . . . . . . . . . . 22
5.04 Top-Heavy Provisions . . . . . . . . . . . . . 25
(a) Determination of Top-Heavy . . . . . . . 25
(b) Minimum Allocations . . . . . . . . . . . 28
(c) Impact on Maximum Benefits . . . . . . . 28
(d) "Total Compensation" Defined . . . . . . 29
-ii- <PAGE>
ARTICLE VI BENEFITS . . . . . . . . . . . . . . . . . . . 29
6.01 Retirement or Disability . . . . . . . . . . . 29
6.02 Death . . . . . . . . . . . . . . . . . . . . 29
6.03 Termination for Other Reasons . . . . . . . . 29
6.04 Payments of Benefits . . . . . . . . . . . . . 30
(a) In General . . . . . . . . . . . . . . . 30
(b) Special Rules Applicable to Certain
Participants . . . . . . . . . . . . . . 31
6.05 Designation of Beneficiary . . . . . . . . . . 32
6.06 In-Service Withdrawals . . . . . . . . . . . . 33
(a) From Salary Reduction Contribution
Account . . . . . . . . . . . . . . . . . 33
(b) From Employer Contribution Account
or Matching Employer Contribution
Account . . . . . . . . . . . . . . . . . 35
(c) Section 6.04 to Apply . . . . . . . . . . 36
ARTICLE VII TRUST FUND AND TRUSTEE . . . . . . . . . . . . 36
7.01 In General . . . . . . . . . . . . . . . . . . 36
7.02 Investment of the Trust Fund . . . . . . . . . 36
7.03 The Trustee . . . . . . . . . . . . . . . . . 43
7.04 Diversification Requirements . . . . . . . . . 45
(a) In General . . . . . . . . . . . . . . . 45
(b) Definitions . . . . . . . . . . . . . . . 46
7.05 Diversification Option . . . . . . . . . . . . 46
(a) In General . . . . . . . . . . . . . . . 46
(b) Definitions . . . . . . . . . . . . . . . 47
(c) Company Stock . . . . . . . . . . . . . . 47
ARTICLE VIII ADMINISTRATION . . . . . . . . . . . . . . . . 48
8.01 Allocation of Responsibility Among
Fiduciaries for Plan and Trust
Administration . . . . . . . . . . . . . . . . 48
8.02 Appointment of Committee . . . . . . . . . . . 48
8.03 Claims Procedure . . . . . . . . . . . . . . . 49
8.04 Records and Reports . . . . . . . . . . . . . 49
8.05 Other Committee Powers and Duties . . . . . . 49
8.06 Rules and Decisions . . . . . . . . . . . . . 50
8.07 Committee Procedures . . . . . . . . . . . . . 50
8.08 Authorization of Benefit Payments . . . . . . 50
8.09 Application and Forms for Benefits . . . . . . 51
8.10 Facility of Payment . . . . . . . . . . . . . 51
8.11 Indemnification . . . . . . . . . . . . . . . 51
8.12 Unclaimed Benefits . . . . . . . . . . . . . . 51
-iii-<PAGE>
ARTICLE IX MISCELLANEOUS . . . . . . . . . . . . . . . . 52
9.01 Nonguarantee of Employment . . . . . . . . . . 52
9.02 Rights to Trust Assets . . . . . . . . . . . . 52
9.03 Nonalienation of Benefits . . . . . . . . . . 52
9.04 Discontinuance of Employer Contributions . . . 53
9.05 Certain Social Security Increases . . . . . . 53
9.06 Tax Reform Act of 1986; Special Effective
Dates . . . . . . . . . . . . . . . . . . . . 53
ARTICLE X AMENDMENTS AND ACTION BY EMPLOYER . . . . . . 54
10.01 Amendments . . . . . . . . . . . . . . . . . . 54
10.02 Action by Employer . . . . . . . . . . . . . . 54
ARTICLE XI SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS . . . . . . . . . . . . 54
11.01 Successor Employer . . . . . . . . . . . . . . 54
11.02 Plan Assets . . . . . . . . . . . . . . . . . 55
ARTICLE XII PLAN TERMINATION . . . . . . . . . . . . . . . 55
12.01 Right to Terminate . . . . . . . . . . . . . . 55
12.02 Partial Termination . . . . . . . . . . . . . 56
12.03 Liquidation of the Trust Fund . . . . . . . . 56
12.04 Manner of Distribution . . . . . . . . . . . . 56
ARTICLE XIII RESTRICTIONS ON SHARES . . . . . . . . . . . . 56
-iv-<PAGE>
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION
(AS RESTATED EFFECTIVE JANUARY 1, 1991)
ARTICLE I
PURPOSE
On this ____ day of _______________, 1991, ATMOS ENERGY
CORPORATION, a corporation organized and existing under the laws
of the State of Texas (hereinafter, the "Company"), hereby
restates in its entirety the EMPLOYEE STOCK OWNERSHIP PLAN AND
TRUST FOR EMPLOYEES OF ATMOS ENERGY CORPORATION, such restated
plan to be effective as of January 1, 1991, and Amarillo National
Bank, Amarillo, Texas, a national banking association, agrees to
serve as Trustee hereunder;
W I T N E S S E T H:
WHEREAS, the Company has heretofore adopted, for the benefit
of its employees, the EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST FOR
EMPLOYEES OF ATMOS ENERGY CORPORATION (hereinafter, the "Prior
Plan"); and
WHEREAS, pursuant to the provisions of Section 10.01 of the
Prior Plan to the effect that the Prior Plan may be amended by
the Company, the Company wishes to, and does hereby, amend and
restate the Prior Plan, as re-titled EMPLOYEE STOCK OWNERSHIP
PLAN AND TRUST FOR EMPLOYEES OF ATMOS ENERGY CORPORATION (AS
RESTATED EFFECTIVE JANUARY 1, 1991) (hereinafter, the "Plan");
and
WHEREAS, the Board of Directors of the Company has
heretofore authorized adoption of the Plan and the Trustee is
willing to serve in accordance with the provisions hereof; and
WHEREAS, it is intended that the Plan meet the requirements
of Sections 401(a) and 501(a) of the Internal Revenue Code of
1986, as amended, and the requirements of the Employee Retirement
Income Security Act of 1974 (hereinafter, "ERISA");
NOW, THEREFORE, the Company and the Trustee hereby agree as
follows:
-1-<PAGE>
ARTICLE II
DEFINITIONS, CONSTRUCTION, ADOPTION AND APPLICABILITY
2.01 Definitions
The following words and phrases, when used herein,
unless their context clearly indicates otherwise, shall
have the following respective meanings:
(a) ADDITIONS: With respect to each Year, the
total of the Employer contributions allocated
to a Participant's Employer Contribution
Account, Matching Employer Contribution
Account and Salary Reduction Contribution
Account.
(b) AFFILIATE: Any company (other than a
Participating Employer) which is (1) a member
of a controlled group of corporations (as
defined in Section 414(b) of the Code) which
includes an Employer; (2) a trade or business
(whether or not incorporated) which is under
common control (as defined in Section 414(c)
of the Code) with an Employer; (3) an
organization (whether or not incorporated)
which is a member of an affiliated service
group (as defined in Section 414(m) of the
Code) which includes an Employer; or (4) any
other entity required to be aggregated with
an Employer pursuant to Section 414(o) of the
Code.
(c) AUTHORIZED LEAVE OF ABSENCE: Any absence
authorized by an Employer under the
Employer's standard personnel practices
provided that all persons under similar
circumstances must be treated alike in the
granting of such Authorized Leaves of Absence
and provided further that the Participant
returns within the period of authorized
absence. An absence due to service in the
Armed Forces of the United States shall be
considered an Authorized Leave of Absence
provided that the absence is caused by war or
other emergency, or provided that the
Employee is required to serve under the laws
of conscription in time of peace, and further
provided that the Employee returns to
employment with the Employers within the
period provided by law.
(d) BENEFICIARY: A person or persons (natural or
otherwise) designated by a Participant in
accordance with the provisions of Section
-2-<PAGE>
6.05 to receive any death benefit which shall
be payable under this Plan.
(e) CODE: The Internal Revenue Code of 1986, as
amended from time to time.
(f) COMMITTEE: The persons appointed under the
provisions of Article VIII to administer the
Plan.
(g) COMMON STOCK: Shares of common stock issued
by the Company which are readily tradable on
an established securities market.
(h) COMPANY: ATMOS ENERGY CORPORATION, a
corporation organized and existing under the
laws of the State of Texas, or its successor
or successors.
(i) COMPANY STOCK: Common stock, Preferred Stock
and Other Stock.
(j) COMPENSATION: The total of all amounts paid
to a Participant by the Employers for
personal services as reported on the
Participant's Federal Income Tax Withholding
Statement (Form W-2), including any amounts
excluded from such reporting pursuant to
Section 125 or 401(k) of the Code, but
excluding (i) expense reimbursements, (ii)
bonuses, (iii) any contributions made under
this Plan, any other plan of deferred
compensation or any welfare benefit plan
(other than amounts contributed pursuant to
such Sections 125 and 401(k)), and (iv) other
special payments of any kind; provided,
however, that for purposes of determining
benefits hereunder, the total Compensation of
a Participant to be taken into account for a
given Year shall not exceed $200,000 (as
automatically increased in accordance with
Treasury Department regulations to reflect
cost-of-living adjustments); provided,
further, that for purposes of allocating
discretionary Employer contributions made
pursuant to Section 4.01(c) hereof for the
Year in which a Participant begins or resumes
Participation, Compensation before his
Participation began or resumed shall be
disregarded.
(k) DISABILITY: A physical or mental condition
which, in the judgment of the Committee,
based upon medical reports and other evidence
satisfactory to the Committee, presumably
-3-<PAGE>
permanently prevents an Employee from
satisfactorily performing his usual duties
for the Employers or the duties of such other
position or job for which such Employee is
qualified by reason of his training,
education or experience. An Employee shall
be conclusively presumed to have incurred a
Disability if he is eligible for Social
Security disability benefits.
(l) EFFECTIVE DATE: Except as otherwise
specifically provided in Section 9.06 or any
other provision hereof, January 1, 1991, the
date on which the provisions of this amended
and restated Plan became effective.
(m) EMPLOYEE: Any individual on the payroll of
an Employer, including leased employees as
defined in Section 414(n) of the Code, whose
wages from such Employer are subject to
withholding for purposes of Federal income
taxes and for purposes of the Federal
Insurance Contributions Act. Notwithstanding
the foregoing, if such leased employees
constitute less than twenty percent (20%) of
the Employer's non-highly compensated work
force within the meaning of
Section 414(n)(5)(C)(ii) of the Code, the
term "Employee" shall not include leased
employees covered by a plan described in Code
Section 414(n)(5) unless otherwise provided
by the terms of this Plan.
(n) EMPLOYEE CONTRIBUTION ACCOUNT: The account
maintained for a Participant to record his
Employee Contributions and Supplemental
Savings, and adjustments relating thereto, as
provided under the provisions of the Plan as
effective prior to October 1, 1987. If all
such Employee Contributions and Supplemental
Savings (and related adjustments) have been
distributed to affected Employees who are
Participants hereunder prior to the Effective
Date, then no Employee Contribution Accounts
shall be established under this Plan.
(o) EMPLOYER or PARTICIPATING EMPLOYER: The
Company or any other entity which, with the
consent of the Company, has adopted this Plan
in accordance with the provisions of Section
2.03.
(p) EMPLOYER CONTRIBUTION ACCOUNT: The account
maintained for a Participant to record his
share of the discretionary contributions of
-4-<PAGE>
the Employers made pursuant to Section
4.01(c) hereof and adjustments relating
thereto. The beginning balance in this
Account shall consist of the Participant's
Employer Contribution Account balance under
the Prior Plan as of December 31, 1990.
(q) EMPLOYMENT COMMENCEMENT DATE: The first date
on which an Employee completes an Hour of
Employment.
(r) ERISA: Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as
amended from time to time.
(s) EXEMPT LOAN: A loan which a "disqualified
person" (as defined in Section 4975(e)(2) of
the Code) makes to the Trustee or guarantees
(including an unsecured guarantee and the use
of assets of a disqualified person as
collateral for a loan).
(t) FIDUCIARIES: The Employers, the Committee,
and the Trustee, but only with respect to the
specific responsibilities of each for Plan
and Trust administration, all as described in
Section 8.01.
(u) FORMER PARTICIPANT: A Participant whose
Participation has terminated but who has a
vested account balance under the Plan which
has not been paid in full.
(v) HIGHLY COMPENSATED EMPLOYEE: An individual
described in Section 414(q) of the Code and
the regulations thereunder. Generally, a
Participant or Former Participant is
considered a Highly Compensated Employee if
during the determination year (the Plan Year
for which the determination is being made) or
the look-back year (the 12-month period
immediately preceding the determination year,
or, if the Company elects, the calendar year
ending with or within the determination
year), such Participant or Former
Participant:
(1) was a "five percent owner" as defined in
Section 416(i)(1)(A)(iii) of the Code;
(2) received Compensation from the Employers
in excess of $75,000 (as adjusted by the
Secretary of the Treasury at the same
time and in the same manner as under
-5-<PAGE>
Section 415(d) of the Code) during the
look-back year;
(3) received Compensation from the Employers
in excess of $50,000 (as adjusted by the
Secretary of the Treasury at the same
time and in the same manner as under
Section 415(d) of the Code) during the
look-back year and was in the top-paid
group of Employees for the Plan Year.
An Employee is in the top-paid group of
Employees for any Plan Year if such
Employee is in the group consisting of
the top twenty percent (20%) of the
Employees when ranked on the basis of
Compensation paid during the Plan Year;
(4) was an officer as defined in Section
416(i) of the Code during the look-back
year and received Compensation greater
than fifty percent (50%) of the dollar
limitation in effect under Section
415(b)(1)(A) of the Code; or
(5) is described in the foregoing paragraphs
(2), (3) or (4) during the determination
year (rather than the look-back year)
and is one of the 100 employees who
received the most Compensation from the
Employers during the determination year.
For purposes of this paragraph (v), the
determination of Compensation shall be made
without regard to Sections 125, 402(a)(8),
402(h)(1)(B) of the Code and, in the case of
Employer contributions made pursuant to
Section 4.01(a) hereof, without regard to
Section 403(b) of the Code. The Company may
make a uniform election with respect to all
plans of the Company to apply a calendar year
calculation, as permitted by Treasury
regulations under Section 414(q) of the Code.
(w) HOUR OF EMPLOYMENT: Each hour (i) for which
an Employee is on an Authorized Leave of
Absence or is directly or indirectly paid or
entitled to payment by an Employer for the
performance of duties or for reasons other
than the performance of duties, or (ii) for
which back-pay (irrespective of mitigation of
damages) has been either awarded or agreed to
by an Employer. In the case of clause (i),
above, each such Hour of Employment shall, in
general, be credited for the computation
period in which the duties were performed, or
-6-<PAGE>
to which payments or entitlements to payments
relate (in cases in which Hours of Employment
are credited for periods in which duties are
not performed). In the case of clause (ii),
above, each such Hour of Employment shall, in
general, be credited for the computation
period to which the agreement or award
pertains. Notwithstanding any provision to
the contrary contained herein, no Employee
shall be credited with an Hour of Employment
under both clauses (i) and (ii) above.
In determining the number of Hours of
Employment to be credited to an Employee in
the case of a payment which is made or due to
an Employee under the provisions of clause
(i), above, for a period during which
services were not performed (including a
payment made by application of clause (ii)
for a period also covered by clause (i)
during which services were not performed),
and the computation period(s) to which Hours
of Employment shall be credited, the
Committee shall apply the rules set forth in
the United States Department of Labor
Regulations Sect.2530.200b-2(b) and (c), which
rules are incorporated into and made a part
of this Plan by reference. Nothing in this
paragraph (w) shall be construed as denying
an Employee credit for an Hour of Employment
which he is required to receive under any
Federal law, the nature and extent of which
credit shall be determined by such Federal
law.
Hours of Employment shall be determined from
records maintained by each Employer;
provided, however, that an Employer may elect
to determine Hours of Employment for any
classification of Employees which is
reasonable, nondiscriminatory and
consistently applied, on the basis that Hours
of Employment include forty-five (45) Hours
of Employment for each week or portion
thereof during which an Employee is credited
with one (1) Hour of Employment. In
determining the equivalent number of Hours of
Employment to be credited to an Employee in
the case of a payment made or due under
clause (i), above, when the payment is not
calculated on the basis of units of time, the
Committee shall apply the rules set forth in
United States Department of Labor Regulations
Sect.2530.200b-2(b)(2) and (3). If such a
payment is calculated on the basis of units
-7-<PAGE>
of time, which units are greater than the
period of employment used in this equivalency
formula, the Employee shall be credited with
the number of Hours of Employment included in
the periods of employment which, in the
course of the Employee's regular work
schedule, would be included in the unit or
units of time on the basis of which the
payment is calculated.
(x) INCOME: The net gain or loss of the Trust
Fund, as reflected by interest payments,
dividends, realized and unrealized gains and
losses on securities, other investment
transactions and expenses paid from the Trust
Fund. In determining the Income of the Trust
Fund for any period, assets shall be valued
on the basis of their fair market value, as
determined by the Trustee, and the Trustee
shall not take into account any indebtedness
described in Section 7.02(k) or the value of
any Company Stock held in suspense pursuant
to such Section.
(y) LOAN SECURITIES: Company Stock acquired with
the proceeds of an Exempt Loan.
(z) MATCHING EMPLOYER CONTRIBUTION ACCOUNT: The
account maintained for a Participant to
record his share of the matching
contributions of his Employer made pursuant
to Section 4.01(b) hereof and adjustments
relating thereto. The beginning balance in
this Account shall consist of the
Participant's Matching Employer Contribution
Account balance under the Prior Plan as of
December 31, 1990.
(aa) NON-HIGHLY COMPENSATED EMPLOYEE: An Employee
who is not a Highly Compensated Employee.
(bb) OTHER STOCK: When no stock issued by the
Company meets the definition of Common Stock,
common stock issued by the Company having a
combination of voting power and dividend
rights equal to or in excess of--
(1) that class of stock issued by the
Company having the greatest voting
power, and
(2) that class of stock issued by the
Company having the greatest dividend
rights.
-8-<PAGE>
(cc) PARTICIPANT: An Employee participating in
the Plan in accordance with the provisions of
Section 3.01.
(dd) PARTICIPATION: The period commencing as of
the date on which the Employee became a
Participant and ending on the date on which
the Employee incurs a Severance from Service.
(ee) PLAN: EMPLOYEE STOCK OWNERSHIP PLAN AND
TRUST FOR EMPLOYEES OF ATMOS ENERGY
CORPORATION (AS RESTATED EFFECTIVE JANUARY 1,
1991), the Plan set forth herein, as amended
from time to time.
(ff) PREFERRED STOCK: Shares of non-callable
preferred stock convertible into Common Stock
at a conversion price which (as of the date
of acquisition by the Plan) is reasonable.
(gg) PRIOR PLAN: EMPLOYEE STOCK OWNERSHIP PLAN
AND TRUST FOR EMPLOYEES OF ATMOS ENERGY
CORPORATION, as constituted prior to January
1, 1991.
(hh) RE-EMPLOYMENT COMMENCEMENT DATE: The first
date on which an Employee completes an Hour
of Employment upon his return to the
employment of the Employers after a Severance
from Service.
(ii) SALARY REDUCTION CONTRIBUTION ACCOUNT: The
account maintained for a Participant to
record contributions made on his behalf by
his Employer pursuant to Section 4.01(a)
hereof and adjustments relating thereto. The
beginning balance in this Account shall
consist of the Participant's Salary Reduction
Contribution Account balance as of December
31, 1990.
(jj) SERVICE: A Participant's period of
employment with the Employers determined in
accordance with Section 3.02.
(kk) SEVERANCE FROM SERVICE: With respect to an
Employee, the earlier of (1) the date on
which he quits, or is discharged from, the
employment of the Employers, or (2) the date
of his retirement, Disability or death.
(ll) TRUST (or TRUST FUND): The fund established
hereunder, maintained in accordance with the
terms of the Plan and constituting a part of
this Plan.
-9-<PAGE>
(mm) TRUSTEE: Amarillo National Bank, Amarillo,
Texas, or any corporation, individual or
individuals appointed by the Board of
Directors of the Company to administer the
Trust.
(nn) VALUATION DATE: The last day of each month,
or the date on which a special valuation is
made pursuant to Section 5.02(a).
(oo) YEAR or PLAN YEAR: The 12-month period
ending on December 31 of each year.
2.02 Construction
The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender, unless
the context clearly indicates to the contrary. The
words "hereof," "herein," "hereunder" and other similar
compounds of the word "here" shall mean and refer to
the entire Plan and not to any particular provision or
Section.
2.03 Adoption by Others
Any Affiliate of the Company may adopt this Plan and
thereby become a Participating Employer; provided,
however, that the Board of Directors of the Company
approves such adoption; provided, further, that the
administrative powers and control of the Company as
provided herein shall not be deemed diminished under
the Plan by reason of the adoption of the Plan by any
other Participating Employer, and such administrative
powers and control granted in Section 8.01 hereof to
the Company with respect to the appointment of the
Committee and other matters shall apply only with
respect to the Company and not to any other
Participating Employer. The Employees of any one
Employer shall, for purposes of allocating
discretionary Employer contributions pursuant to
Section 5.02(c) hereof, be treated as employed by all
Employers.
2.04 Applicability
Except to the extent otherwise specifically provided in
Section 9.06 or any other provision hereof, (i) the
provisions of this Plan shall apply only to an Employee
who terminates employment on or after the Effective
Date, and (ii) the rights and benefits, if any, of a
former Employee shall be determined in accordance with
the provisions of the Prior Plan (or the provisions of
any pre-existing version of the Prior Plan), as in
effect on the date on which his employment terminated.
-10-<PAGE>
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation
Except as otherwise provided below, an Employee, other
than a leased employee as defined in Section 414(n) of
the Code, shall become a Participant in this Plan as
follows:
(a) Any Employee included under the provisions of
the Prior Plan as of the Effective Date shall
continue to participate in accordance with
the provisions of this amended and restated
Plan.
(b) Any other Employee as of the Effective Date
who has completed one (1) year of Service
shall become a Participant on the Effective
Date.
(c) The Participation of any eligible Employee
who does not become a Participant in
accordance with paragraphs (a) and (b),
above, shall commence as of the earliest
January 1 or July 1 as of which he has
completed one (1) year of Service.
Any Employee now or hereinafter covered by a collective
bargaining agreement between the Employers and a
bargaining agent shall become or remain a Participant
in this Plan provided such Plan Participation is
negotiated for such Employee, through good faith
bargaining, between the Employers and such bargaining
agent. Otherwise, any Employee covered by a collective
bargaining agreement shall not become, or shall cease
to be, a Participant in this Plan. If an Employee
covered by a collective bargaining agreement ceases to
be a Participant in this Plan, he shall immediately re-
enter the Plan as an active Participant when his
membership in such unit terminates, provided that he is
still an Employee at that time.
An active Participant who, on or after the Effective
Date, incurs a Severance from Service and who is
subsequently re-employed by an Employer shall
immediately re-enter the Plan as an active Participant
on his Re-employment Commencement Date. In the case of
an individual who had been included under the Prior
Plan but who had terminated employment with the
Employers prior to the Effective Date and who is
subsequently re-employed by an Employer, such
individual shall immediately re-enter the Plan as an
-11-<PAGE>
active Participant on his Re-employment Commencement
Date.
3.02 Service
A Participant's eligibility for benefits under the Plan
shall be determined on the basis of his period of
Service in accordance with the following:
(a) Service Prior to the Effective Date--For an
Employee as of the Effective Date, the
Employee's employment with the Employers
prior to the Effective Date shall be counted
as Service to the extent that such employment
was counted as service under the provisions
of the Prior Plan, including any period or
periods of Authorized Leave of Absence
counted as service under such provisions.
(b) Service On and After Effective Date--On and
after the Effective Date, an Employee shall
accrue a year of Service for each consecutive
twelve (12)-month computation period during
which he completes at least one thousand
(1,000) Hours of Employment. Such
computation period shall begin on his
Employment Commencement Date; provided,
however, that if the Employee fails to
complete one thousand (1,000) Hours of
Employment during the first computation
period, the second computation period shall
be the Plan Year which includes the first
anniversary of the Employment Commencement
Date, and succeeding computation periods
shall also be on the basis of the Plan Year.
An Employee who completes a year of Service
and, prior to Participation hereunder, incurs
a Severance from Service shall, upon re-
employment, be credited with such prior year
of Service and be entitled to commence
Participation on the next following January 1
or July 1, if he is employed by an Employer
on such date.
3.03 Transfer
An Employee who is transferred between Participating
Employers shall be as eligible for Participation and
benefits as in the absence of such transfer.
-12-<PAGE>
3.04 Controlled Group
An Employee who is transferred to or from the
employment of an Affiliate shall, solely for
purposes of determining the amount of his credited
Service hereunder, be treated as employed by an
Employer during the period of his employment by
such Affiliate.
ARTICLE IV
CONTRIBUTIONS
4.01 Employer Contributions
Employers shall make contributions to the Trust
Fund in accordance with the following:
(a) Salary Reduction Contributions--For each
Year, each Employer shall contribute on
behalf of each of its Employees participating
in the Plan an amount equal to the total
amount of contributions agreed to be made by
such Employer pursuant to a salary reduction
agreement under Section 4.03 entered into
between the Employer and the Participant for
such Year. Contributions made by the
Employer for a given Year pursuant to this
paragraph (a) may be in the form of cash or
Company Stock and shall be deposited in the
Trust Fund as soon as administratively
feasible, but in no event later than ninety
(90)-days from the date on which such amount
would otherwise have been payable to the
Participant, in accordance with Department of
Labor Regulation Sect.2510.3-102.
(b) Matching Employer Contributions--(1) In
General. For each Year, each Employer shall
contribute on behalf of each of its Employees
for whom a contribution was made pursuant to
paragraph (a) of this Section 4.01, an amount
(determined by the Board of Directors of the
Company in its sole discretion and applied on
a uniform and non-discriminatory basis) equal
to a percentage of such Employee's
Compensation which is at least twenty-
five percent (25%) of a portion or all
(as determined by such Board on such
basis) of the annual percentage rate of
salary reduction contributions elected
by the Employee under Section 4.03;
provided that in determining the amount of
such contribution, the portion of the annual
-13-<PAGE>
percentage rate of salary reduction
contributions to be taken into account shall
be the same for all participants; provided
further, an Employer may decline to make
the contribution specified in this
paragraph (b) if it determines, in its
sole discretion, that it will not have
sufficient current or accumulated earnings
and profits to make such contribution;
provided further that any forfeitures
under the Prior Plan (or any pre-existing
version thereof) which have become
available for allocation
during such Year in
accordance with the
provisions of the Prior
Plan (or such pre-
existing version) shall
be taken into account in
determining, and treated
as part of, the aggregate
Employer contributions
under this paragraph (b)
for such Year.
Contributions made by an
Employer for a given Year
pursuant to this
paragraph (b) shall be
deposited in the Trust
Fund no later than the
date on which the
Employer files its
Federal income tax return
for its taxable year
within which such Year
ends (including
extensions which have
been granted for the
filing of such tax
return) and may be in the
form of cash or Company
Stock. For any Year, an
Employer may decline to
make any portion of the
contribution specified in
this paragraph (b) if the
Employer determines that
such action is necessary
to ensure that the
discrimination tests of
Section 401(m) of the
Code are satisfied; or,
in the alternative, the
Employer may direct the
Trustee to distribute
-14-<PAGE>
"excess aggregate
contributions" (as
defined in Section
401(m)(6)(3) of the Code)
to the Participants by or
on whose behalf such
contributions were made
by the last day of the
following Year.
(2) Discrimination Tests. The discrimination
tests of Section 401(m) of the Code are
satisfied in the following manner: Each Year,
the Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall not
exceed the Average Contribution Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the Year multiplied
by 1.25; or, the Average Contribution
Percentage for Eligible Participants who are
Highly Compensated Employees for the Year
shall not exceed the Average Contribution
Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the Year
multiplied by two (2), provided that the
Average Contribution Percentage for Eligible
Participants who are Highly Compensated
Employees does not exceed the Average
Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees by more than two (2) percentage
points.
For purposes of this subparagraph (2), an
Eligible Participant's "Contribution
Percentage" shall mean the ratio (expressed
as a percentage) of the total of the Matching
Employer Contributions under the Plan on
behalf of the Eligible Participant for the
Year to such Eligible Participant's
Compensation for the Year. "Eligible
Participant" shall mean any Employee who is
authorized under the terms of the Plan to
have Matching Employer Contributions
allocated to his Matching Employer
Contribution Account for the Year. The
"Average Contribution Percentage" is the
average (expressed as a percentage) of the
Contribution Percentages of all Eligible
Participants.
In the event that this Plan satisfies the
requirements of Section 410(b) of the Code
only if aggregated with one or more other
-15-<PAGE>
plans, or if one or more other plans satisfy
the requirements of Section 410(b) of the
Code only if aggregated with this Plan, then
this subparagraph (2) shall be applied by
determining the Contribution Percentage of
Eligible Participants as if all such plans
were a single plan. If a Highly Compensated
Employee participates in two (2) or more
plans of the Employers to which matching
contributions are made then all such
contributions shall be aggregated for
purposes of this subparagraph (2).
For purposes of determining the Contribution
Percentage of an Eligible Participant who is
a Highly Compensated Employee during the Year
in question, the Matching Employer
Contributions and Compensation of such
Participant shall include the Matching
Employer Contributions and Compensation of
Family Members (as defined in Section
414(q)(6)(B) of the Code), but such Family
Members shall be disregarded in determining
the Contribution Percentage for other Highly
Compensated Employees and for Eligible
Participants who are Non-Highly Compensated
Employees.
Under regulations promulgated by the
Secretary of the Treasury, the Committee may
elect, in its sole discretion, to take
contributions to a Participant's Salary
Reduction Contribution Account into account
in computing the Average Contribution
Percentage. However, in such a case, the
Actual Deferral Percentage tests under
Section 4.03(e) must still be computed and
met separately, and in connection therewith,
no aggregation with Employer Matching
Contributions shall be permitted.
(c) Discretionary Contributions--For each Year,
the Employers shall contribute hereunder such
additional amount as the Board of Directors
of the Company (by a majority vote of the
disinterested members thereof) shall
determine and authorize, provided that such
Board shall not authorize contributions by
the Employers at such times or in such
amounts that the Plan in operation
discriminates in favor of officers,
shareholders, or Highly Compensated
Employees. The amount to be contributed each
Year shall be determined and authorized by
the Board of Directors of the Company;
-16-<PAGE>
provided, that the Employers shall make a
minimum annual contribution equal to the
amount required pursuant to Section
7.02(k)(5) hereof. Notwithstanding the
foregoing provisions of this Section 4.01 and
except as otherwise provided in Section
7.02(k), the contribution of the Employers
for any Year shall in no event exceed an
amount which, when added to amounts
contributed pursuant to paragraphs (a) and
(b), above, will, under the law then in
effect, be deductible by the Employers in
computing, on a consolidated return basis,
their Federal income taxes for the taxable
year within which such Year ends, including
any amount deductible pursuant to carryover
provisions of the Code. All contributions of
the Employers made pursuant to this paragraph
(c) for a Year shall be paid to the Trustee,
and payment shall be made not later than the
date prescribed by law for filing the
consolidated Federal income tax return of the
Employers for the taxable year within which
such Year ends, including extensions which
have been granted for the filing of such tax
return. Contributions may be in cash or in
Company Stock.
4.02 Contributions by Participants
Except as otherwise provided in Section 4.04 hereof,
Participants are neither required nor permitted to make
any contributions under this Plan. Under the
provisions of the Plan as in effect prior to October 1,
1987, Participants were permitted to make both Employee
Contributions and Supplemental Savings contributions.
To the extent that such amounts (and related
adjustments) have not been distributed to affected
Employees who are Participants hereunder prior to the
Effective Date, such amounts (and related adjustments)
shall be held in Employee Contribution Accounts
established for such Employees until distributed in
full. Distribution shall be made from each such
Employee Contribution Account at such time or times as
determined by the Participant for whose benefit the
Account was established.
4.03 Participant Salary Reduction
Upon commencement of Participation hereunder, each
Participant shall be given the option to execute a
salary reduction agreement. The terms of any such
salary reduction agreement shall provide that the
Participant agrees to accept a reduction in salary from
an Employer equal to any whole percentage of his
-17-<PAGE>
Compensation per payroll period, which percentage shall
be neither less than two percent (2%) nor more than ten
percent (10%); provided that the total reduction for
any Year cannot exceed $7,000 (or such greater amount
as permitted under Treasury Department regulations to
reflect cost-of-living adjustments). In consideration
of such agreement, the Employer will make a salary
reduction contribution to the Participant's Salary
Reduction Contribution Account on behalf of the
Participant for each Year in an amount equal to the
total amount by which the Participant's Compensation
from the Employer was reduced during the Year pursuant
to the salary reduction agreement.
Amounts credited to a Participant's Salary Reduction
Contribution Account pursuant to Section 4.01(a) and
this Section shall be one hundred percent (100%) vested
and non-forfeitable at all times. If a Participant
enters into a salary reduction agreement with his
Employer for a given Year, his Compensation for such
Year for all purposes of this Plan shall be equal to
his Compensation before application of the salary
reduction agreement.
Further, salary reduction agreements shall be governed
by the following:
(a) A salary reduction agreement shall apply to
each payroll period during which an effective
salary reduction agreement is on file with
the Participant's Employer.
(b) A salary reduction agreement may be entered
into or amended by a Participant only on
January 1 or July 1 of each Year, to be
effective as of the date specified in
paragraph (c), below. A salary reduction
agreement may be terminated by a Participant
at any time upon written notice to the
Committee. If a Participant terminates his
salary reduction agreement, then,
notwithstanding any provision to the contrary
herein contained, he may not enter into
another salary reduction agreement earlier
than the January 1 or July 1 immediately
following the end of a six (6)-month period
beginning on the date of such termination.
(c) Salary reduction agreements and amendments
to, or terminations of, salary reduction
agreements shall be effective as of, and
shall not apply to any payroll period
preceding, the payroll period next following
the date on which the salary reduction
agreement or amendment to, or termination of,
-18-<PAGE>
the salary reduction agreement is executed by
the Participant and his Employer.
(d) An Employer may amend or revoke its salary
reduction agreement with any Participant at
any time if the Employer determines that such
revocation or amendment is necessary (i) to
ensure that a Participant's Additions for any
Year will not exceed the limitations of
Section 5.03 hereof, (ii) to ensure that
Employer contributions made pursuant to
Section 4.01 hereof are fully deductible by
the Employer for Federal income tax purposes,
or (iii) to ensure that the discrimination
tests of Section 401(k) of the Code are met
for such Year. In any case in which such
discrimination test is not met for a Year,
the Employer may, in the alternative, (i)
direct the Trustee to distribute "excess
contributions" (as defined in Section
401(k)(8)(B) of such Code) to the
Participants on whose behalf such
contributions were made within two and one-
half (2-1/2) months of the beginning of the
subsequent Year, or (ii) make such additional
contributions to the Salary Reduction
Contribution Accounts of Participants who are
Non-Highly Compensated Employees to cause
such test to be satisfied.
(e) The discrimination tests of Section 401(k) of
the Code are satisfied in the following
manner: Each Year, the Actual Deferral
Percentage for Eligible Participants who are
Highly Compensated Employees for the Year
shall bear a relationship to the Actual
Deferral Percentage for Eligible Participants
who are Non-Highly Compensated Employees for
the Year whereby the Actual Deferral
Percentage for the group of Eligible
Participants who are Highly Compensated
Employees for the Year is not more than the
Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the Year multiplied by 1.25;
or, the excess of the Actual Deferral
Percentage for the group of Eligible
Participants who are Highly Compensated
Employees for the Year over that of all
Eligible Participants who are Non-Highly
Compensated Employees for the Year shall not
be more than two (2) percentage points, and
the Actual Deferral Percentage for the group
of Eligible Participants who are Highly
Compensated Employees for the Year is not
-19-<PAGE>
more than the Actual Deferral Percentage of
all Eligible Participants who are Non-Highly
Compensated Employees for the Year multiplied
by two (2).
For purposes of this paragraph (e), the
"Actual Deferral Percentage" for a specified
group of Eligible Participants for a Year
shall be the average of the ratios (expressed
as a percentage and calculated separately for
each Eligible Participant in such group) of
(i) the amount of each such Eligible
Participant's Salary Reduction Contributions
actually paid over to the Trust on behalf of
the Participant for such Year, to (ii) such
Participant's Compensation for the Year. The
term "Eligible Participant" shall mean any
Employee who is authorized under the terms of
the Plan to have contributions allocated to
his Salary Reduction Contribution Account for
the Year.
In the event that this Plan satisfies the
requirements of Sections 401(a)(4) or 410(b)
of the Code only if aggregated with one or
more other plans, or if one or more other
plans satisfy the requirements of Sections
401(a)(4) or 410(b) of the Code only if
aggregated with this Plan, then this
paragraph (e) shall be applied by determining
the Actual Deferral Percentage of Eligible
Participants as if all such plans were a
single plan. If a Highly Compensated
Employee participates in two (2) or more
plans of the Employers to which salary
reduction contributions are made, then all
such contributions shall be aggregated for
purposes of this paragraph (e).
For purposes of determining the Actual
Deferral Percentage of an Eligible
Participant who is a Highly Compensated
Employee, the Salary Reduction Contributions
and Compensation of such Participant shall
include the Salary Reduction Contributions
and Compensation of Family Members (as
defined in Section 414(q)(6)(B) of the Code),
but such Family Members shall be disregarded
in determining the Actual Deferral Percentage
for other Highly Compensated Employees and
for Eligible Participants who are Non-Highly
Compensated Employees.
(f) An Employer may revoke its salary reduction
agreements with all Participants or amend its
-20-<PAGE>
salary reduction agreements with all
Participants on a uniform basis, if it
determines that it will not have sufficient
current or accumulated profits to make the
contributions to the Plan required by the
salary reduction agreements.
(g) Except as provided above, a salary reduction
agreement applicable to any given Year, once
made, may not be revoked or amended by the
Participant or the Employer.
Upon termination of employment, a Participant's Salary
Reduction Contribution Account shall be distributed in
accordance with Article VI.
4.04 Rollover Contributions; Transfers
With the approval of the Committee, a Participant who
was a participant in another plan of deferred
compensation which is qualified under Section 401(a) of
the Code may contribute to this Plan a portion or all
of the amount of any "qualifying rollover distribution"
received by him from such other plan. Any amounts so
contributed shall be held in a subaccount of the
Participant's Employer Contribution Account. Such
subaccount shall be 100% vested in the Participant,
shall share in Income allocations in accordance with
Section 5.02(a), but shall not share in Employer
contribution allocations. Upon termination of
employment, the total amount in such subaccount shall
be distributed in accordance with Article VI. The term
"qualifying rollover distribution" is herein defined as
any amount which, pursuant to Section 402(a)(5) of the
Code may be transferred to this Plan and thereby not be
includible in the gross income of the recipient for the
taxable year in which paid.
Without express authorization by the Board of Directors
of the Company, the Trustee hereunder shall not accept
any direct or indirect transfer of assets in connection
with a merger, spinoff, or conversion of a plan, or
direct or indirect transfer of assets solely with
respect to an Employee, if such transfer is from a
defined benefit plan, or from a defined contribution
plan that is either subject to the funding standards of
Section 412 of the Code or otherwise subject to the
requirements of Section 401(a)(11)(A) of the Code. In
the case of a transfer to the Trustee of all or any of
the assets held in respect of any type of qualified
plan or trust by the trustee of the transferor plan,
the amounts so transferred shall be allocated under
this Plan to the individual account of each Participant
who was also a participant in such other qualified
plan. In no event shall a Participant's vested
-21-<PAGE>
interest in such a transferred account be less after
such transfer than it was prior to such transfer, or,
in the alternative, this Plan may provide that the
entire value of such transferred accounts shall be
fully vested and nonforfeitable in the Participant
thereof.
The Trustee, upon direction from the Committee, may
transfer any amount available for distribution to a
Participant hereunder by reason of termination of
employment to another trust forming part of a pension,
profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by such
employer in writing as meeting the requirements of
Section 401(a) of the Code, provided that the trust to
which such transfer is to be made permits such
transfers.
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.01 Individual Accounts
The Committee shall create and maintain adequate
records to disclose the interest in the Trust of each
Participant, Former Participant and Beneficiary. Such
records shall be in the form of individual accounts and
credits and charges shall be made to such accounts in
the manner herein described. When appropriate, a
Participant shall have four separate accounts, an
Employer Contribution Account, a Salary Reduction
Contribution Account, a Matching Employer Contribution
Account, and an Employee Contribution Account. The
maintenance of individual accounts is only for
accounting purposes, and a segregation of the assets of
the Trust Fund to each account shall not be required.
5.02 Account Adjustments
The accounts of Participants, Former Participants and
Beneficiaries shall be adjusted in accordance with the
following:
(a) Income--(1) In General. The Income of the
Trust Fund for each month shall be allocated
to the accounts of Participants, Former
Participants and Beneficiaries who had unpaid
balances in their accounts on the last day of
such month in accordance with the ratio of
the average balance of cash in each
Participant's accounts during the month to
the average balance of cash in all accounts
-22-<PAGE>
during the month. If, upon a Participant's
Severance from Service, a significant change
(as determined by the Committee) in the value
of the assets has occurred since the last
Valuation Date, the Committee shall instruct
the Trustee to determine the Income since the
last Valuation Date, in which event the
accounts of such Participant, if he incurs a
Severance from Service prior to the next
Valuation Date, shall be adjusted to reflect
this determination. Each Valuation shall be
based on the fair market value of assets in
the Trust Fund on the Valuation Date.
(2) Fixed Income Fund. To the extent that a
Participant's accounts are invested in
the Fixed Income Fund described in
Section 7.02(l) hereof, earnings
attributable to the portion so invested
(hereinafter, the "Fixed Income
Portion") shall be allocated on the
following basis: such earnings for each
month shall be allocated to the accounts
of Participants, Former Participants and
Beneficiaries who had unpaid balances in
the Fixed Income Portions of their
accounts on the last day of the month in
proportion to the balances in the Fixed
Income Portions in such accounts at the
beginning of the month, but after first
reducing each such balance in the Fixed
Income Portion by any distribution from
the Fixed Income Portion during the
month.
(3) Diversified Investments. To the extent
that the accounts of a Participant are
invested, pursuant to Section 7.04 or
7.05 hereof, in the Diversified Fund
described in such Section 7.05, earnings
attributable to the portion so invested
(hereinafter, the "Diversified Portion")
shall be allocated on the following
basis: such earnings for each month
shall be allocated to the accounts of
Participants, Former Participants and
Beneficiaries who had unpaid balances in
the Diversified Portions of their
accounts on the last day of the month in
proportion to the balances in the
Diversified Portions in such accounts at
the beginning of the month, but after
first reducing each such balance in the
Diversified Portion by any distribution
-23-<PAGE>
from the Diversified Portion during the
month.
(b) Salary Reduction and Matching Employer
Contributions--The Employer contributions for
a Year made on behalf of a Participant
pursuant to Section 4.01(a) and (b) hereof
shall be allocated, respectively, to the
Participant's Salary Reduction Contribution
Account and Matching Employer Contribution
Account effective as of a date no later than
the last day of such Year.
(c) Employer Contributions--Subject to the
provisions of Section 7.02(k) hereof,
relating to the repayment of Exempt Loans, as
of the end of each Year, each Employer's
discretionary contribution for the Year made
pursuant to Section 4.01(c) hereof shall be
allocated among those Participants who were
in the employ of any Employer on the last day
of the Year according to the ratio that each
such Participant's Compensation for the Year
bears to the total Compensation of all
eligible Participants for the Year.
(d) Company Stock--Subject to the provisions of
Section 7.02(i) hereof, any cash dividends
earned by Company Stock, and any Company
Stock received by the Trustee as a stock
split or dividend or as a result of a
reorganization or other recapitalization of
the Company, shall be allocated as of each
Valuation Date in the same manner as the
Company Stock to which it is attributable is
then allocated. In addition, as of each
Valuation Date, the value of the Company
Stock held in an account of a Participant,
Former Participant or Beneficiary shall,
together with related unrealized gains and
losses, be noted on such account.
5.03 Maximum Additions
(a) Notwithstanding anything contained herein to
the contrary, the total Additions made to the
Salary Reduction, Matching Employer and
Employer Contribution Accounts of a
Participant for any Year shall not exceed the
lesser of (1) or (2), where--
(1) is the greater of (i) $30,000 (or such
greater amount as permitted under
Internal Revenue Service rulings to
reflect increases in the cost-of-living)
-24-<PAGE>
or (ii) one-fourth (1/4) of the dollar
limitation in effect under Section
415(b)(1)(A) of the Code; and
(2) is 25% of the Participant's total
compensation for such Year.
For purposes of this Section 5.03, a
Participant's "total compensation" includes
earned income, wages, salaries, fees for
professional service and other amounts
received for personal services actually
rendered in the course of employment with the
Employers (including, but not limited to,
commissions paid salesmen, compensation for
services on the basis of a percentage of
profits, commissions on insurance premiums,
tips, and bonuses) and excluding the
following: (i) Employer contributions to a
plan of deferred compensation to the extent
contributions are not included in gross
income of the Participant for the taxable
year in which contributed, or on behalf of a
Participant to a Simplified Employee Pension
plan to the extent such contributions are
deductible under Section 219(b)(7) of the
Code, and any distributions from a plan of
deferred compensation whether or not
includible in the gross income of the
Participant when distributed; (ii) amounts
realized from the exercise of a non-qualified
stock option, or when restricted stock (or
property) held by a Participant becomes
freely transferable or is no longer subject
to a substantial risk of forfeiture; (iii)
amounts realized from the sale, exchange or
other disposition of stock acquired under a
qualified stock option; (iv) other amounts
which receive special tax benefits, or
contributions made by an Employer (whether or
not under a salary reduction agreement)
towards the purchase of a 403(b) annuity
contract (whether or not the contributions
are excludible from the gross income of the
Participant); and (v) compensation for a Year
in excess of $200,000 (as automatically
increased in accordance with Treasury
Department regulations to reflect cost-of-
living adjustments).
(b) If such Additions exceed the limitation set
forth in paragraph (a), above, such excess
shall be reallocated to eligible Participants
for the Year in accordance with Section
5.02(c). In the event that all or any
-25-<PAGE>
portion of such excess cannot be reallocated
for such Year because of the application of
paragraph (a), above, the amount which cannot
be so reallocated shall be held in a suspense
account until it can be so reallocated in a
subsequent Year, and no further Additions
shall be made to Participants' accounts until
the amount in such suspense account has been
fully reallocated. Notwithstanding any
provision to the contrary herein contained,
if this Plan terminates during any Year in
which such suspense account cannot be
reallocated because of the application of
paragraph (a), above, the amount in such
suspense account shall revert to the
Employers.
(c) Notwithstanding the foregoing, the otherwise
permissible annual Additions for any
Participant under this Plan may be further
reduced to the extent necessary, as
determined by the Committee, to prevent
disqualification of the Plan under Section
415 of the Code which imposes the following
additional limitations on the benefits
payable to Participants who also may be
participating in another tax-qualified
pension, profit sharing, savings or stock
bonus plan maintained by his Employer: If an
individual is a Participant at any time in
both a defined benefit plan and a defined
contribution plan maintained the Employers,
the sum of the defined benefit plan fraction
and the defined contribution plan fraction
for any Plan Year may not exceed 1.0. The
defined benefit plan fraction for any Plan
Year is a fraction, the numerator of which is
the Participant's projected annual benefit
under the Plan (determined at the close of
the Plan Year) and the denominator of which
is the lesser of (i) 1.25 multiplied by
$90,000 or such greater amount permitted by
Internal Revenue Service regulations to
reflect cost-of-living adjustments, or (ii)
1.4 multiplied by 100% of the Participant's
average monthly compensation, as defined in
the applicable Income Tax regulations under
Section 415 of the Code during the three
consecutive years when the total compensation
paid to him was highest. The defined
contribution plan fraction for any Plan Year
is a fraction, the numerator of which is the
sum of the annual Additions to the
Participant's accounts in such Plan Year and
for all prior Plan Years and the denominator
-26-<PAGE>
of which is the sum of the applicable maximum
amounts of annual Additions which could have
been made under Section 415(c) of the Code
for such Plan Year and for all prior years of
such Participant's employment (assuming for
this purpose, that said Section 415(c) had
been in effect during such prior years). The
applicable maximum amount for any Plan Year
shall be equal to the lesser of (i) 1.25
multiplied by the dollar limitation in effect
for such Plan Year under Section 415(c)(1)(A)
of the Code, or (ii) 1.4 multiplied by 25% of
the Participant's total compensation for such
Plan Year.
(d) For purposes of this limitation, all defined
benefit plans of the Employers, whether or
not terminated, are to be treated as one
defined benefit plan and all defined
contribution plans of the Employers, whether
or not terminated, are to be treated as one
defined contribution plan. The extent to
which annual Additions under the Plan shall
be reduced as compared to the extent to which
the annual benefit under any defined benefit
plans shall be reduced in order to achieve
compliance with the limitations of Section
415 of the Code shall be determined by the
Committee in such a manner as to maximize the
aggregate benefits payable to such
Participant. If such reduction is under this
Plan, the Committee shall advise affected
Participants of any additional limitation on
their annual benefits required by this
paragraph.
(e) The above limitations are intended to comply
with the provisions of Section 415 of the
Code so that the maximum benefits provided by
plans of the Employers shall be exactly equal
to the maximum amounts all Section 415 of
such Code and regulations thereunder. If
there is any discrepancy between the
provisions of this Section 5.03 and the
provisions of Section 415 of such Code and
regulations thereunder, such discrepancy
shall be resolved in such a way as to give
full effect to the provisions of such Section
415.
(f) For purposes of this Plan, the "limitation
year" shall be the Plan Year.
-27-<PAGE>
5.04 Top-Heavy Provisions
The following provisions shall become effective in any
Year in which the Plan is determined to be a Top-Heavy
Plan:
(a) Determination of Top-Heavy--The Plan will be
considered a Top-Heavy Plan for the Year if
as of the last day of the preceding Year (the
"determination date"), (1) the value of the
sum of Employer Contribution Accounts,
Matching Employer Contribution Accounts,
Salary Reduction Contribution Accounts, plus
Employee Contribution Accounts (but not
including any allocations to be made as of
such last day of the Year except
contributions actually made on or before that
date and allocated pursuant to Sections
5.02(b) and (c)) of Participants who are Key
Employees (as defined below) exceeds 60% of
the value of the sum of Employer Contribution
Accounts, Matching Employer Contribution
Accounts, Salary Reduction Contribution
Accounts, plus Employee Contribution Accounts
(but not including any allocations to be made
as of such last day of the Year except
contributions actually made on or before that
date and allocated pursuant to Sections
5.02(b) and (c)) of all Participants and
their Beneficiaries (the "60% Test"), or (2)
the Plan is part of a required aggregation
group (within the meaning of Section
416(g)(2) of the Code) and the required
aggregation group is top-heavy. However, and
notwithstanding the results of the 60% Test,
the Plan shall not be considered a Top-Heavy
Plan for any Year in which the Plan is a part
of a required or permissive aggregation group
(within the meaning of Section 416(g)(2) of
the Code) which is not top-heavy. For
purposes of the "60% Test" for any Plan Year,
(i) the value of the Employer, Matching
Employer, Salary Reduction and Employee
Contribution Accounts of individuals who are
former Key Employees shall not be taken into
account and (ii) the value of the Employer,
Matching Employer, Salary Reduction and
Employee Contribution Accounts of individuals
who have not performed services for an
Employer for the five (5)-year period ending
on the determination date shall not be taken
into account. Section 416(g)(2) of the Code,
referred to above, provides as follows:
-28-<PAGE>
"(2) AGGREGATION - For purposes of this
subsection
(A) Aggregation Group--
(i) Required Aggregation - The
term 'aggregation group' means--
(I) each plan of the employer
in which a key employee is a
participant;
(II) each other plan of the
employer which enables any plan
described in subclause (I) to meet
the requirements of section
401(a)(4) or 410; and
(III) any plan terminated by
the employer within five years of
the determination date of the plan
year in question that would, but
for the fact that it was
terminated, be described in
subclause (I) or (II). For
purposes of section 416, a
terminated plan is one that has
been formerly terminated, has
ceased crediting service for
benefit accruals and vesting, and
has been or is distributing all
plan assets to participants or
their beneficiaries as soon as
administratively feasible.
(ii) Permissive Aggregation - The
employer may treat any plan not required
to be included in an aggregation group
under clause (i) as being part of such
group if such group would continue to
meet the requirements of section
401(a)(4) and 410 with such plan being
taken into account.
(B) Top-Heavy Group--The term 'top-
heavy group' means any aggregation group if-
(i) the sum (as of the
determination date) of--
(I) the present value of the
cumulative accrued benefits for key
employees under all defined benefit
plans included in such group, and
-29-<PAGE>
(II) the aggregate of the
accounts of key employees under all
defined contribution plans included
in such group,
(ii) exceeds 60 percent of a
similar sum determined for all
employees."
For purposes of this Section 5.04, a "Key
Employee" is an Employee as defined in Code
Section 416(i)(1) and the regulations
thereunder. Generally, any Employee or
former Employee (as well as each of his
Beneficiaries) is considered a Key Employee
if he, at any time during the Plan Year or
any of the preceding four (4) Plan Years, is
or has been--
(1) an officer of an Employer (as that term
is defined in the regulations under
Section 416 of the Code) having annual
Compensation greater than 50 percent of
the amount in effect under Section
415(b)(1)(A) of the Code for any such
Plan Year.
(2) one of the ten Employees having annual
Compensation from the Employers for a
Plan Year greater than the dollar
limitation in effect under Section
415(c)(1)(A) of the Code for the
calendar year in which such Plan Year
ends and owning (or considered as owning
within the meaning of Section 318 of the
Code) the largest interests in the
Employers.
(3) a "five percent owner" of an Employer.
A "five percent owner" is any person who
owns (or is considered as owning within
the meaning of Section 318 of the Code)
more than five percent (5%) of all
outstanding stock of an Employer or
stock possessing more than five percent
(5%) of the total combined voting power
of all stock of such Employer or, in the
case of an unincorporated business, any
person who owns more than five percent
(5%) of the capital or profits interest
in an Employer. In determining
percentage ownership hereunder,
employers that would otherwise be
aggregated under Sections 414(b), (c),
-30-<PAGE>
and (m) of the Code shall be treated as
separate employers.
(4) a "one percent owner" of an Employer
having annual Compensation from the
Employers of more than $150,000. "One
percent owner" means any person who owns
(or is considered as owning within the
meaning of Section 318 of the Code) more
than one percent (1%) of the outstanding
stock of an Employer or stock possessing
more than one percent (1%) of the total
combined voting power of all stock of
such Employer or, in the case of an
unincorporated business, any person who
owns more than one percent (1%) of the
capital or profits interest in an
Employer. In determining percentage
ownership hereunder, employers that
would otherwise be aggregated under
Sections 414(b), (c), and (m) of the
Code shall be treated as separate
employers. However, in determining
whether an individual has Compensation
of more than $150,000, Compensation from
each employer required to be aggregated
under Sections 414(b), (c), and (m) of
the Code shall be taken into account.
The determination of Compensation shall be
made without regard to Sections 125,
402(a)(8), 402(h)(1)(B) of the Code and, in
the case of Employer contributions made
pursuant to a salary reduction agreement,
without regard to Section 403(b) of the Code.
(b) Minimum Allocations--Notwithstanding the
provisions of Sections 5.02(b) and (c), for
any Year during which the Plan is deemed a
Top-Heavy Plan, the amount of Employer
contribution for the Year to be allocated in
the aggregate to the Matching Employer
Contribution Account and the Employer
Contribution Account of each Participant who
is not a Key Employee shall not be less than
the lesser of (i) three percent (3%) of the
Participant's total compensation for the Year
or (ii) the Participant's total compensation
for the Year multiplied by the percentage
obtained by dividing the amount allocated in
the aggregate to the Matching Employer
Contribution Account and the Employer
Contribution Account of the most highly
compensated Key Employee for the Year by so
much of the total compensation of such Key
-31-<PAGE>
Employee for the Year as does not exceed
$200,000 (as automatically increased in
accordance with Treasury Department
regulations providing for cost-of-living
adjustments); provided that the requirements
of this paragraph (b) shall not apply to the
extent that the minimum allocations set forth
herein are made under another defined
contribution plan maintained by an Employer;
provided further that the minimum allocations
required herein shall be offset by any
minimum benefit provided under a defined
benefit plan maintained by an Employer.
(c) Impact on Maximum Benefits--For any Plan Year
in which the Plan is a Top-Heavy Plan,
Section 5.03 shall be read by substituting
the number "1.00" for the number "1.25"
wherever it appears therein; provided,
however, that where the Plan is not a "Super"
Top-Heavy Plan (as defined in Section
416(h)(2)(B) of the Code), no such
substitution shall occur if, for such Plan
Year, the minimum allocations determined
pursuant to paragraph (b) of this Section are
determined by reference to 4%, in lieu of 3%,
of total compensation.
(d) "Total Compensation" Defined--The term "total
compensation" as used in this Section 5.04
shall have the same meaning as that set forth
in Section 5.03(a) hereof.
ARTICLE VI
BENEFITS
6.01 Retirement or Disability
If a Participant's employment with his Employer is
terminated at or after his normal retirement date, or
if his employment is terminated prior to his normal
retirement date because of Disability, he shall be
entitled to receive the entire amount then in each of
his accounts in accordance with Section 6.04. The
"entire amount" in a Participant's accounts at
termination of employment shall include any Employer
contributions to be made pursuant to Section 4.01(a) or
(b) for the Year of termination of employment but not
yet allocated. If a Participant remains in employment
after his normal retirement date, he shall continue to
be treated as an active Participant hereunder. Except
to the extent that Section 1121(d)(4) of the Tax Reform
Act of 1986 provides otherwise, a Participant must
-32-<PAGE>
commence receipt of his benefits no later than April 1
of the calendar year following the calendar year in
which he attains age 70-1/2. For purposes of this
Plan, the term "normal retirement date" means, with
respect to a Participant, the first day of the month
coincident with, or immediately following, his
attainment of age sixty-five (65).
6.02 Death
In the event that the termination of employment of a
Participant is caused by his death, the entire amount
then in each of his accounts shall be paid to his
Beneficiary in accordance with Section 6.04 after
receipt by the Committee of acceptable proof of death.
The "entire amount" in a Participant's accounts at
termination of employment shall include any Employer
contributions to be made pursuant to Section 4.01(a) or
(b) for the Year of termination of employment but not
yet allocated.
6.03 Termination for Other Reasons
If a Participant's employment with his Employer is
terminated before his normal retirement date for any
reason other than Disability or death, the Participant
shall be entitled to receive the entire amount then in
each of his accounts in accordance with Section 6.04.
The "entire amount" in a Participant's accounts at
termination of employment shall include any Employer
contributions to be made pursuant to Section 4.01(a) or
(b) for the Year of termination of employment but not
yet allocated.
6.04 Payments of Benefits
The following provisions shall apply with respect to
the method and timing of benefit payments hereunder:
(a) In General--Payment of a Participant's
benefits shall commence as soon as
practicable after the date on which the
Committee determines the final balances in
such Participant's accounts; provided that
the Participant must consent to a
distribution prior to the date specified
below where the value of his account balances
exceeds $3,500. However, and notwithstanding
anything to the contrary herein contained,
payment of a Participant's benefits must
commence no later than the earliest of: (i)
except to the extent that Section 1121(d) (4)
of the Tax Reform Act of 1986 provides
otherwise, April 1 of the calendar year
following the calendar year in which the
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Participant attains age seventy and one-half
(70-1/2); (ii) one year after the latest of
the close of the Year in which the
Participant terminates employment due to
attainment of normal retirement, Disability
or death or which is the fifth Year following
the Year in which the Participant otherwise
terminates employment; or (iii) the 60th day
after the latest of the close of the Year in
which the Participant attains age sixty-five
(65), in which occurs the date ten years
after the date the Participant first
commenced Participation in the Plan, or in
which the Participant incurs a Severance from
Service. A benefit payment to a Participant
prior to his attainment of age 59-1/2 shall
require the Participant's approval, prior to
which the Participant shall have been advised
by the Committee that an additional income
tax may be imposed equal to ten percent (10%)
of the portion of the amount so received
which is included in his gross income for the
taxable year of receipt unless, among others,
(i) such distribution is made on account of
death or Disability, (ii) such distribution
is part of a scheduled series of
substantially equal periodic payments for the
life of the Participant (or the joint lives
of the Participant and his Beneficiary) or
the life expectancy of the Participant (or
the joint life expectancies of the
Participant and his Beneficiary), (iii) such
distribution is used to pay medical expenses
to the extent deductible under Section 213 of
the Code (determined without regard to
whether the Participant itemizes deductions),
(iv) such distribution is made to an
alternate payee pursuant to a "qualified
domestic relations order" described in
Section 9.03 hereof, or (v) such distribution
is made to a Participant by reason of "early
retirement." For purposes of the preceding
sentence, a Participant who terminates
employment on or after his attainment of age
55 for reasons other than death, Disability
or normal retirement shall be treated as
having separated from service by reason of
"early retirement." Subject to the
provisions of paragraph (b) of this Section,
the Participant's benefits shall in all
events be distributed in a lump sum.
Distributions hereunder to Participants,
Former Participants or Beneficiaries may be
in the form of Company Stock or cash, as
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determined by the Committee; provided,
however, that except to the extent that a
distribution is attributable to that portion,
if any, of a Participant's account balances
invested, pursuant to Section 7.04 hereof, in
the Diversified Fund described in Section
7.05 hereof, any such distributee shall have
the right to demand that distribution be made
to him in the form of Company Stock and shall
have been given written notification of such
right by the Committee prior to the date of
any cash distribution to him; provided
further, that fractional shares shall, in all
events, be paid in cash. In the event that
the Articles of Incorporation or bylaws of
the Company are amended to restrict the
ownership of substantially all outstanding
shares of Company Stock to Employees and/or
to the Trust Fund, then distributions
hereunder to Participants, Former
Participants and Beneficiaries shall, in all
events, be in the form of cash.
(b) Special Rules Applicable to Certain
Participants--Notwithstanding the preceding
provisions of this Section 6.04, the
following special rules shall apply with
respect to payments made to or on behalf of a
Participant who, on or after January 1, 1985,
receives a transfer to this plan of assets
(other than a transfer made pursuant to a
qualifying rollover distribution described in
Section 4.04 hereof) from a plan described in
Section 401(a)(11)(B)(i) or (ii) of the Code:
(1) Unmarried Participant. If the
Participant is unmarried, any benefits
payable to the Participant under Section
6.01 or 6.03 hereof shall be paid in the
form of a life annuity; provided, that
the Participant may elect not to receive
his benefits in such form, in which
event the Committee shall direct the
Trustee to distribute the Participant's
benefits in the method specified in
paragraph (a) of this Section 6.04.
(2) Married Participant. If the Participant
is married, the following provisions
shall apply:
(A) Pre-Retirement Survivor Annuity.
Any death benefits payable pursuant
to Section 6.02 hereof, shall be
paid to the Participant's surviving
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spouse in the form of a life
annuity; provided, however, that,
at any time prior to the
Participant's death, the
Participant and his spouse may, by
written and notarized election
acknowledging the effect of such
election, direct that such death
benefits be payable to one or more
other Beneficiaries and/or in the
form provided under paragraph (a),
above.
(B) Qualified Joint and Survivor
Annuity. Any benefits payable
under Section 6.01 or 6.03 hereof,
shall be paid in the form of a
joint and survivor annuity under
which a monthly amount is payable
to the Participant for his life,
and, upon his death, no less than
fifty percent (50%), nor more than
one hundred percent (100%), of such
monthly amount is payable to his
spouse, if surviving, for the
remainder of the spouse's life;
provided, however, that, within a
period beginning ninety (90) days
prior to the date on which benefits
commence, the Participant and his
spouse may, by a written and
notarized election acknowledging
the effect of such election, direct
that the Participant's benefits be
paid in the form provided under
paragraph (a), above.
(3) Distribution of Small Amounts.
Notwithstanding the preceding provisions
of this paragraph (b), a Participant's
benefits hereunder shall in all events
be paid in a lump sum if the total of
such benefits is $3,500 or less.
6.05 Designation of Beneficiary
Each Participant from time to time may designate any
person or persons (who may be designated contingently
or successively and who may be an entity other than a
natural person) as his Beneficiary or Beneficiaries to
whom his Plan benefits are paid if he dies before
receipt of all such benefits. Each Beneficiary
designation shall be on a form prescribed by the
Committee and will be effective only when filed with
the Committee during the Participant's lifetime. Each
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Beneficiary designation filed with the Committee will
cancel all Beneficiary designations previously filed
with the Committee. Except as otherwise provided
below, the revocation of a Beneficiary designation, no
matter how effected, shall not require the consent of
any designated Beneficiary.
If any Participant fails to designate a Beneficiary in
the manner provided above, or if the Beneficiary
designated by a deceased Participant dies before him or
before complete distribution of the Participant's
benefits, the Committee shall direct the Trustee to
distribute such Participant's benefits (or the balance
thereof) to his surviving spouse or, if he has no
surviving spouse, then, in the Committee's discretion,
to either:
(a) any one or more of the next of kin of such
Participant, and in such proportions as the
Committee determines; or
(b) the estate of the last to die of such
Participant and his Beneficiary or
Beneficiaries.
Notwithstanding any provision to the contrary herein
contained, the designation by a married Participant of
a Beneficiary other than his spouse shall require the
written and notarized consent of such spouse. The
consent must name the designated Beneficiary or
Beneficiaries who are to be the recipient(s) of the
Participant's benefits. The spouse's consent must
acknowledge the effect of the election and be witnessed
by a notary public.
6.06 In-Service Withdrawals
(a) From Salary Reduction Contribution Account--
No amounts may be withdrawn by a Participant
from his Salary Reduction Contribution
Account prior to termination of employment
with the Employers except in accordance with
the following:
(1) If the Participant elects a withdrawal
prior to the date on which he attains
age 59-1/2, such withdrawal (i) may not
include any earnings accrued after 1988
and (ii) will require the consent of the
Committee. Such consent shall be given
only if the Participant is able to
demonstrate financial hardship. The
Committee will determine that the
Participant has properly demonstrated
financial hardship only if the
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Participant demonstrates that the
purpose of the withdrawal is to meet
immediate and heavy financial needs, the
amount of the withdrawal does not exceed
such financial needs, and the amount of
the withdrawal is not reasonably
available from other resources. The
Participant will be considered as having
demonstrated that the purpose of the
withdrawal is to meet his immediate and
heavy financial needs only if he
represents that the distribution is on
account of--
(A) medical expenses (as described in
Section 213(d) of the Code)
incurred by the Participant, his
spouse or any of his dependents;
(B) the purchase (excluding mortgage
payments) of a principal residence
for the Participant;
(C) the payment of tuition for the next
twelve (12) months of post-
secondary education for the
Participant, his spouse, children
or dependents; or
(D) imminent threat of foreclosure on
the mortgage of the Participant's
principal residence.
Moreover, the Participant will be
considered as having demonstrated that
the amount of the withdrawal is
unavailable from his other resources and
in an amount not in excess of that
necessary to satisfy his immediate and
heavy financial needs only if each of
the following requirements is satisfied:
(AA) the Participant represents that the
distribution is not in excess of
the amount of his immediate and
heavy financial needs; and
(BB) the Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable
loans currently available to him
under all plans currently
maintained by the Employers.
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In the event of any withdrawal by a
Participant pursuant to this
subparagraph (1), (i) such Participant's
Salary Reduction Contributions under
this Section 4.03 and his contributions
under all other employee plans
maintained by the Employers shall be
suspended for a period of twelve (12)
months following such withdrawal, and
(ii) for the taxable year following his
taxable year in which such withdrawal
occurred, the amount of the
Participant's Salary Reduction
Contributions may not exceed the
limitation on the amount of Salary
Reduction Contributions which may be
contributed, as set forth in the first
paragraph of this Section 4.03, less the
amount of any Salary Reduction
Contributions made by said Participant
during the taxable year of the
withdrawal. Withdrawal elections under
this subparagraph (1) may be made at any
time but not more frequently than once
each calendar year. All withdrawals
under this subparagraph shall be made in
accordance with the provisions of
Section 6.04 hereof, relating to the
form of payment. The Committee shall
advise any Participant who elects a
withdrawal prior to his attainment of
age 59-1/2 of the potential imposition
of the additional income tax described
in Section 6.04(a) hereof.
(2) If the Participant elects a withdrawal
on or after the date on which he attains
age 59-1/2, such a withdrawal will not
require the consent of the Committee.
(3) Any withdrawal by a Participant may not
exceed the balance then credited to his
Salary Reduction Contribution Account.
All withdrawal elections shall be made
by a Participant on written forms
supplied by the Committee for that
purpose.
(b) From Employer Contribution Account or
Matching Employer Contribution Account--On
any January 1, a Participant may elect to
withdraw any amount in his Employer
Contribution Account or Matching Employer
Contribution Account, but only to the extent
that such amount had been allocated to either
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such account at least two (2) years prior to
withdrawal; provided, however, that a
Participant may withdraw any amount allocated
to either such Account at any time such
Participant properly demonstrates a financial
hardship as described in Section 6.06(a)(1)
hereof. A Participant shall not cease to be
a Participant under the Plan solely because a
distribution is made to such Participant
pursuant to this Section 6.06(b). Withdrawal
elections shall be made by the Participant on
written forms provided by the Committee for
that purpose.
(c) Section 6.04 to Apply--All withdrawals shall
be made in accordance with the provisions of
Section 6.04 hereof, relating to the form of
payment. The Committee shall advise any
Participant who elects a withdrawal prior to
his attainment of age 59-1/2 of the potential
imposition of the additional income tax
described in Section 6.04(a) hereof.
ARTICLE VII
TRUST FUND AND TRUSTEE
7.01 In General
All contributions under this Plan shall be paid to the
Trustee and deposited in the Trust Fund. All assets of
the Trust Fund, including investment income, shall be
retained for the exclusive benefit of Participants,
Former Participants, and Beneficiaries and shall be
used to pay benefits to such persons or to pay
administrative expenses of the Plan and Trust Fund to
the extent not paid by the Employers and shall not
revert to or inure to the benefit of any Employer.
Notwithstanding anything herein to the contrary and
pursuant to Section 403(c)(2) of ERISA, upon an
Employer's request, a contribution which was made by
such Employer under a mistake of fact, or conditioned
upon qualification of the Plan or any amendment thereof
or upon the deductibility of the contribution under
Section 404 of the Code, shall be returned to the
Employer within one (1) year after the payment of the
contribution, the denial of the qualification or the
disallowance of the deduction (to the extent
disallowed), whichever is applicable. The earnings
attributable to the amount to be returned may not be
distributed to the Employer but losses attributable
thereto must reduce the amount to be returned to said
Employer.
-40-<PAGE>
7.02 Investment of the Trust Fund
(a) The Plan is specifically designated as an
"employee stock ownership plan" within the
meaning of Section 4975(e)(7) of the Code.
Accordingly, and subject to the provisions of
paragraph (l) of this Section and Sections
7.04 and 7.05 hereof, the Trustee shall
invest the Trust Fund primarily in Company
Stock. The Trustee may use the funds
contributed by an Employer to purchase
Company Stock from the Company or from any
shareholder of the Company at a price to be
determined in accordance with paragraph (e)
below. Such stock may be treasury stock
which has been purchased by the Company or it
may be stock which has been authorized but
never issued by the Company. In addition to
investing in Company Stock, the Trustee may
invest the Trust Fund in common stocks of
other corporations, preferred stocks, bonds,
debentures, mortgages, notes, investment
trust shares or in any other property, real
or personal. The Trustee may invest any
portion of the Trust Fund in a common trust
fund maintained by any state or national bank
or trust company in Texas or any other state
of the United States specifically for
investments by qualified employee benefit
trusts. The Trustee shall be obliged only to
use good faith and to exercise its honest
judgment as to what investments other than
Company Stock are from time to time for the
best interest of the Trust Fund and those
entitled to benefit hereunder. Furthermore,
the Trustee may hold any portion of the Trust
Fund in cash and uninvested whenever it deems
such holding necessary or advisable.
(b) The Trustee may enter into a stock purchase
agreement with one or more shareholders of
the Company under which the Trust has the
option (but is not bound) to purchase all or
a portion of the shares of Company Stock
owned by such shareholder or shareholders
immediately, from time to time, or upon the
death of such shareholder or shareholders.
The Trustee, however, may not obligate the
Trust to purchase Company Stock at a definite
price at some indefinite time in the future
or upon the happening of an event, such as
death. In order to provide for the funding
of any such purchase of shares of Company
Stock from the estate of a deceased
shareholder, the Trustee may apply for and
-41-<PAGE>
pay premiums on contracts of insurance on the
life of such shareholder for the benefit of
the Trust Fund as a whole. Further, the
Trustee shall have the power to invest in
life insurance on the lives of Employees, and
on any other person in whom an Employer or
the Trustee has an insurable interest. Such
life insurance contracts on Employees and on
such persons shall be held by the Trustee for
the benefit of the Trust Fund as a whole.
(c) All life insurance contracts held by the
Trustee for the benefit of the Trust Fund as
a whole shall be treated as investments of
the Trust Fund. Their cash value shall be
used in valuing the Trust Fund, and all
premiums paid thereon by the Trustee shall be
charged to the Trust Fund. All dividends,
death benefits, and other payments actually
received by the Trustee on account of such
contracts shall be credited to the Trust Fund
the same as proceeds derived from the sale of
an asset held hereunder.
(d) The Trustee shall be the sole owner of all
life insurance contracts held hereunder and
shall take such action with respect thereto
as it deems necessary or proper. The Trustee
may pay the net premium due on any contract
by applying an available dividend to the
reduction of the premium.
(e) So long as a public market exists for Company
Stock, the price to be paid by the Trustee
for such Stock (whether purchased from the
Company, from a shareholder of the Company,
or on the open market) shall be equal to its
public trading price as determined at the
time of each such purchase. If Company Stock
ceases to be publicly traded, the price to be
paid by the Trustee for Company Stock shall
be determined by appraisal each year by an
independent, qualified financial analyst or
consultant who shall determine the current
fair market value of such Company Stock.
Notwithstanding the foregoing, in the event
that it is finally determined in a court of
law or by an agreement among the Trustee, the
Company and the Internal Revenue Service that
the purchase price paid by the Trust for the
purchase of any Company Stock is greater than
the current fair market value of such Company
Stock at the time of the purchase, then, in
that event, said purchase price shall be
considered to have been retroactively reduced
-42-<PAGE>
to the actual fair market value as determined
by such court or by such agreement with the
Internal Revenue Service, and any party who
has sold Company Stock to the Trust shall be
required to remit so much of the funds
received by such party in payment for such
shares as is necessary to adjust the price
paid by the Trust for such shares to the
adjusted fair market value of such shares at
the date of such sale to the Trust as
determined by such court of law or agreement
with the Internal Revenue Service. Any major
shareholder of the Company wishing to sell
his shares to the Trust shall, prior to any
such sale, be required to execute an
agreement with the Trust to remit to the
Trust any such excess payments received by
such person from the Trust on account of his
sale of Company Stock to the Trust.
(f) Notwithstanding the provisions of paragraph
(e), above, the Trustee may purchase Company
Stock at a price lower than that determined
in accordance with the provisions of
paragraph (e) from any source whatsoever,
except that the Trustee shall not purchase
Company Stock from Participants hereunder for
less than the fair market value of such
Stock.
(g) So long as Company Stock is publicly traded,
each Participant or Beneficiary in the Plan
shall have the right to direct the Trustee as
to the manner in which voting rights with
respect to any such Company Stock allocated
to his accounts are to be exercised. Whenever
a Participant or Beneficiary has voting
rights hereunder, the Trustee shall give
written notice of such impending vote as soon
as practicable after receiving notice
thereof, which notice shall explain the
matter to be decided and provide each
Participant or Beneficiary with a ballot to
indicate his vote on such matter. If any
Participant or Beneficiary fails to notify
the Trustee in writing of the manner in which
such Participant or Beneficiary desires for
his vote to be exercised, then the Trustee
shall exercise the voting rights with respect
to such stock in accordance with its best
judgment, taking into account instructions
from the Committee. Any stock which has not
been allocated to the accounts of the
Participants or Beneficiaries shall be voted
by the Trustee in accordance with its best
-43-<PAGE>
judgment, taking into account instructions
from the Committee.
(h) Subject to the provisions of paragraphs (k)
and (i) of this Section 7.02 and Sections
7.04 and 7.05 hereof, any cash received by
the Trustee shall be invested to the extent
deemed advisable by the Trustee in Company
Stock. Pending such investment of cash, the
Trustee may retain cash uninvested without
liability for interest, or may invest all or
any part thereof in securities issued or
guaranteed by the United States of America,
certificates of deposit of national banks,
commercial notes, bonds, equity securities of
other corporations traded on any Exchange or
in any other investment authorized in
paragraph (a), above.
(i) Subject to the provisions of paragraph (k) of
this Section 7.02 and Sections 7.04 and 7.05
hereof, all dividends, income and other
property received by the Trustee shall, to
the extent practicable, be converted by the
Trustee into cash and invested in Company
Stock at such times as the Trustee deems to
be for the best advantages of the Trust and
the Participants thereof; provided, however,
that the Board of Directors of the Company
may, in its sole discretion and as of the
date of declaration of any dividend paid with
respect to Company Stock held in the Trust
Fund, direct the Trustee (i) to apply such
dividend to the repayment of an Exempt Loan
or (ii) to distribute such dividend to each
person then with an account hereunder in
accordance with the ratio of the balance of
shares of Company Stock in such person's
accounts (as of the date of declaration of
such dividend) to such share balance in all
such accounts (as of such date of
declaration). Each person entitled to
payment of a dividend in accordance with
clause (ii), above, shall receive such
payment in cash no later than the ninetieth
(90th) day after the close of the Plan Year
in which such dividend is received by the
Trustee.
(j) At least once a Year the Committee shall
furnish each Participant with a statement
showing the status of his accounts as of the
close of the preceding Year, including the
share of the cost (including brokerage
commissions, transfer taxes, and other
-44-<PAGE>
incidental expenses) properly allocable to
his accounts, of any Company Stock acquired
by purchase during that Year.
(k) The Trustee may borrow reasonable sums of
money for the purchase of Company Stock for
the accounts of Participants on such terms as
the Trustee shall deem reasonable, provided
that the proceeds of such loans shall be used
solely for the purchase of Company Stock.
Any such loan which is an Exempt Loan shall
be subject to the following terms and
conditions:
(1) The Trustee shall use the proceeds of
the loan within a reasonable time after
receipt only for any or all of the
following purposes: (i) to acquire
Company Stock; (ii) to repay such loan;
or (iii) to repay a prior Exempt Loan.
Except as provided under Article XIII of
the Plan, no Loan Securities may be
subject to a put, call or other option,
or buy-sell or similar arrangement while
held by and when distributed from this
Plan, whether or not this Plan is then
an employee stock ownership plan.
(2) The interest rate of the loan shall not
be in excess of a reasonable rate of
interest.
(3) The Trustee shall give as collateral
only Company Stock, which (i) is
acquired with the proceeds of the loan,
or (ii) was used as collateral on a
prior Exempt Loan repaid with the
proceeds of the current Exempt Loan.
(4) The creditor shall have no recourse
against the Trust under the loan except
with respect to the collateral given for
the loan, contributions (other than
contributions of Company Stock) that the
Employers make to the Trust to enable it
to meet its obligations under the loan,
and earnings attributable to such
collateral (including, if applicable,
dividends paid with respect to Company
Stock given as collateral) or to the
investment of such contributions. The
payments made with respect to an Exempt
Loan by the Trust during a Plan Year
must not exceed an amount equal to the
sum of such contributions and earnings
-45-<PAGE>
received during or prior to the Year
less such payments in prior years. The
Trustee must account separately for such
contributions and earnings on the books
of account of the Trust until the loan
is repaid.
(5) The Employers must contribute to the
Trust amounts which, after application
of any earnings attributable to
collateral in accordance with
subparagraph (4), above, will be
sufficient to pay each installment of
principal and interest on the loan on or
before the date such installment is due,
even if no tax benefits result from such
contributions. All Employer
contributions shall be applied first to
the payment of such installments of
principal and interest.
(6) In the event of default upon the loan,
the value of Trust assets transferred in
satisfaction of the loan must not exceed
the amount of the default, and if the
lender is a "disqualified person" (as
defined in Section 4975(e)(2) of the
Code), the loan must provide for a
transfer of Trust assets upon default
only upon and to the extent of the
failure of the Trust to meet the payment
schedule of the loan. For these
purposes, the making of a guarantee does
not make a person a lender.
(7) The Trustee must add to and maintain all
assets acquired with the proceeds of an
Exempt Loan in a Suspense Account. In
withdrawing assets from the Suspense
Account, the Trustee shall apply the
applicable provisions of Treasury
Regulation Sect.54.4975-7(b) as if all
securities in the Suspense Account were
encumbered. Upon the payment of any
portion of the loan, the Trustee shall
effect the release of assets in the
Suspense Account from encumbrances. For
each Plan Year during the duration of
the loan, the number of encumbered Loan
Securities released must equal the
number of encumbered Loan Securities
held immediately before the release for
the current Plan Year multiplied by a
fraction. The numerator of the fraction
is the amount of principal and interest
-46-<PAGE>
paid for the Plan Year. The denominator
of the fraction is the sum of the
numerator plus the principal and
interest to be paid for all future Plan
Years. The number of future Plan Years
under the loan must be definitely
ascertainable and must be determined
without taking into account any possible
extension or renewal. If the interest
rate under the loan is variable, the
interest must be computed by using the
interest rate applicable as of the end
of the Plan Year. If collateral
includes more than one (1) class of
Company Stock, the number of each class
to be released for a Plan Year must be
determined by applying the same fraction
to each class. The Trustee shall
allocate assets withdrawn from the
Suspense Account to the accounts of
Participants who otherwise share in the
allocation of the Employer's
contributions for the Plan Year for
which the Trustee has paid the portion
of the loan resulting in the release of
assets. The Trustee shall consistently
make this allocation as of the Valuation
Date on the basis of non-monetary units,
taking into account the relative
Compensation of all such Participants
for such Plan Year.
(8) The loan must be for a specific term and
may not be payable at the demand of any
person except in the case of default.
(9) The Trustee shall value the Trust Fund
as of each Valuation Date to determine
the fair market value of each
Participant's benefit in the Trust, and
the Trustee shall value the Trust Fund
on such other date(s) as may be
necessary for such purpose.
(10) Dividends or other earnings attributable
to Company Stock held in a Suspense
Account described in subparagraph (7),
above, shall be allocated as of each
Valuation Date in the same manner as
that described in Section 5.02(d)
hereof, except to the extent that such
earnings are to be used in repayment of
an Exempt Loan pursuant to subparagraph
(4), above, and paragraph (i) of this
Section 7.02.
-47-<PAGE>
(l) Notwithstanding any provision to the contrary
herein contained, to the extent that the
accounts of a Participant who was included
under the provisions of the Prior Plan had
been invested in the Fixed Income Fund
described in such provisions, such accounts
shall continue to be so invested; provided
that, effective January 1, 1993, (i) such
Fixed Income Fund shall be merged into a
fixed income fund established as part of the
Diversified Fund described in Section 7.05
hereof and (ii) the Participant shall have
the right to elect that such accounts, to the
extent then invested in such fixed income
fund, be invested in other funds constituting
the Diversified Fund, all in accordance with
procedures established by the Committee
pursuant to such Section 7.05.
7.03 The Trustee
(a) The Trustee shall maintain adequate books and
records reflecting all transactions affecting
the Trust Fund, which books and records shall
be open at all times to the inspection of the
Employers and the Committee or their
authorized representatives. Furthermore, the
Trustee shall furnish the Committee, at least
annually, statements showing the assets then
held in the Trust Fund since the last
preceding statement. Each such statement
shall be conclusive and final as between the
Trustee and all interested parties unless the
Committee delivers written objections thereto
to the Trustee within sixty (60) days after
receipt of such statement.
(b) The Company may remove the Trustee at any
time by giving sixty (60) days written notice
to such Trustee, and the Trustee may resign
at any time by giving sixty (60) days written
notice to the Company. In the event of the
removal or resignation of the Trustee, the
Company shall appoint a successor Trustee.
The receipt by such successor Trustee of all
securities, property and money then held
hereunder shall be a full and complete
acquittance and discharge of the Trustee
which has been removed or resigned.
(c) The Trustee may rely upon any notice,
certificate, letter, telegram or other paper
or document believed by it to be sufficient
in making any payment or in taking any action
whatsoever hereunder.
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(d) The Trustee shall be required to comply with
the fiduciary bonding requirements of ERISA,
but only to the extent required by Section
412 of such Act.
(e) The Trustee shall be paid reasonable
compensation commensurate with the services
and responsibilities involved hereunder from
time to time. The Employers shall pay the
Trustee's compensation; but, if not so paid,
the Trustee may pay itself from the Trust
Fund.
(f) The Trustee may employ counsel, brokers or
agents and may pay for their services and any
other reasonable expenses incurred by the
Trustee on behalf of the Trust from the Trust
Fund if such expenses are not paid by the
Employers. All costs of administration
incurred by the Trustee shall be paid by the
Employers.
(g) Whenever and as often as the Trustee deems
such action desirable, it may by written
instrument appoint any person or corporation
in any state of the United States to act as
ancillary trustee with respect to any portion
of the trust assets then held or about to be
acquired on behalf of the Trust. Each
ancillary trustee shall have such rights,
powers, duties and discretions as are
delegated to it by the Trustee, but shall
exercise the same subject to the limitations
or further directions of the Trustee as shall
be specified in the instrument evidencing its
appointment. The ancillary trustee may
resign or may be removed by the Trustee, as
to all or any portion of the assets so held
at any time or from time to time, by written
instrument delivered one to the other, and
the Trustee may thereupon appoint another
ancillary trustee or successor to whom the
assets shall be transferred, or may itself
receive such assets in termination of the
ancillary trusteeship to that extent. Such
ancillary trustee shall be accountable solely
to the Trustee and shall be entitled to
reasonable compensation.
(h) In addition to the powers granted to the
Trustee by law and those granted elsewhere in
this Plan, and except as otherwise provided
in Section 7.02 hereof, the Trustee shall
have the following powers:
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(1) With respect to securities held
hereunder, the Trustee may vote the same
in person or by proxy, may join in any
merger, reorganization, or capital
adjustment, may exercise or sell any
conversion, subscription or similar
rights, and may hold any assets
hereunder in the name of the Trust.
(2) The Trustee may sell, convey, exchange,
encumber, lease and otherwise deal with
and dispose of the assets in the Trust
Fund upon such terms and conditions as
it deems for the best interest of those
interested in the Trust Fund.
(3) The Trustee may execute any and all
deeds, conveyances, leases, transfers,
proxies and other documents which it
believes necessary or advisable in the
administration of the Trust Fund.
(4) The Trustee may pay or contest any tax
or other governmental charge involving
any assets held hereunder or the income
therefrom and may pay any taxes and
expenses thus incurred as an expense of
the Trust Fund.
(5) The Trustee may execute receipts,
releases, changes of beneficiary and any
other papers or documents relating to
any insurance contracts held hereunder
and may exercise any and all rights,
options and privileges available under
such contracts.
(i) Although it is intended that the foregoing
powers of the Trustee be applicable
hereunder, it is also intended that all
provisions of the Texas Trust Act, and any
amendments thereto, not inconsistent with the
above enumerated powers or other provisions
of this Plan, shall be applicable in the
administration of this Trust.
7.04 Diversification Requirements
(a) In General--Notwithstanding the preceding
provisions of this Article VII, a Qualified
Participant may, during each Election Period
occurring within his Qualified Election
Period, elect that a portion of his aggregate
account balances (with such balances
determined as of the beginning of each
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Election Period) be alternatively invested
pursuant to Section 7.05 hereof in the
Diversified Fund described in such Section.
The maximum amount of the Qualified
Participant's aggregate account balances
available for such alternative investment
shall be (1) or (2), but no greater than (3),
where-
(1) is twenty-five percent (25%) of such
aggregate balances, reduced by amounts
previously so invested, either pursuant
to this Section or Section 7.05 hereof,
in the case of each Election Period
other than the Qualified Participant's
last Election Period;
(2) is fifty percent (50%) of such aggregate
balances, reduced by amounts previously
so invested, either pursuant to this
Section or Section 7.05 hereof, in the
case of the Qualified Participant's last
Election Period; and
(3) is that portion of such aggregate
account balances consisting of Company
Stock acquired after 1986.
In lieu of permitting investment in such
Diversified Fund and notwithstanding the
provisions of Section 6.06(a)(1) or (b)
hereof or any other provision to the contrary
herein contained, the Committee, in its sole
discretion, may distribute to the Qualified
Participant an amount equal to the amount for
which the Qualified Participant elected such
alternative investment.
(b) Definitions--For purposes of this Section
7.04, the following terms shall have the
following respective meanings:
(1) "Qualified Participant" shall mean each
Participant who has attained the age of
fifty-five (55) years; provided,
however, that solely for purposes of
determining a Participant's status as a
Qualified Participant prior to January
1, 1993, such Participant must also have
completed at least ten (10) Years of
Participation.
(2) "Qualified Election Period" shall mean,
with respect to a Qualified Participant,
the five (5)-Year period beginning with
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the Year immediately following the Year
in which the Participant first became a
Qualified Participant.
(3) "Election Period" shall mean the ninety
(90)-day period immediately following
the close of each Year in the Qualified
Election Period.
For purposes of paragraph (1), above, "Years
of Participation" shall not include any
period of participation under the provisions
of the Plan as in effect prior to October 1,
1987.
7.05 Diversification Option
(a) In General--Notwithstanding the preceding
provisions of this Article VII, a Participant
shall have the right, in accordance with the
provisions of this Section 7.05, to direct
the Trustee as to the investment of that
portion of his Salary Reduction Contribution
Account consisting of Excess Salary Reduction
Contributions. Any such investment direction
by a Participant shall consist solely of the
right to direct the extent to which Excess
Salary Reduction Contributions shall be
invested in various investment media
comprising a Diversified Fund. Such
investment directions shall be made in
accordance with procedures established by the
Committee. Should a Participant fail to
provide the Trustee with the investment
directions described herein as to any Excess
Salary Reduction Contribution, such
Contribution shall be invested in Company
Stock.
(b) Definitions--For purposes of this Section
7.05, the following terms shall have the
following respective meanings:
(1) "Excess Salary Reduction Contribution"
shall mean a contribution made on behalf
of a Participant on or after January 1,
1993 pursuant to Section 4.01(a) hereof,
to the extent that such contribution
exceeds the amount of such contribution
eligible for a partial or full matching
Employer contribution pursuant to
Section 4.01(b) hereof.
(2) "Diversified Fund" shall mean a fund,
managed by an individual or entity
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qualified, with respect to the Plan, as
an "investment manager" within the
meaning of Section 3(38) of ERISA,
consisting of a fixed income fund and
such other fund or funds as may be
selected from time to time by the
Committee.
(c) Company Stock--It is expressly understood
that the only amounts eligible for investment
hereunder in the Diversified Fund are the
amounts described in this Section and in
Section 7.04 hereof. Notwithstanding any
provision to the contrary herein contained,
if any such amount is not invested in the
Diversified Fund, it shall be invested in
Company Stock and shall remain so invested
while comprising a part of the Trust Fund.
Any such amount, once invested in Company
Stock, shall never again be eligible for
investment in the Diversified Fund.
ARTICLE VIII
ADMINISTRATION
8.01 Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration
The Fiduciaries shall have only those specific powers,
duties, responsibilities and obligations as are
specifically given them under this Plan. In general,
the Employers shall have the sole responsibility for
making the contributions provided for under Section
4.01. In addition, the Company shall have the sole
authority to appoint and remove the Trustee and members
of the Committee and to amend or terminate, in whole or
in part, this Plan. The Committee shall have the sole
responsibility for the administration of this Plan,
which responsibility is specifically described in this
Plan. The Trustee shall have responsibility for the
administration of the Trust and the management of the
assets held under the Trust to the extent provided in
Article VII hereof. Each Fiduciary warrants that any
directions given, information furnished, or actions
taken by it shall be in accordance with the provisions
of the Plan authorizing or providing for such
direction, information or action. Furthermore, each
Fiduciary may rely upon any such direction, information
or action of another Fiduciary as being proper under
this Plan or the Trust, and is not required under this
Plan or the Trust to inquire into the propriety of any
such direction, information or action. It is intended
under this Plan and the Trust that each Fiduciary shall
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be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations and
shall not be responsible for any act or failure to act
of another Fiduciary. No Fiduciary guarantees the
Trust Fund in any manner against investment loss or
depreciation in asset value.
8.02 Appointment of Committee
The Plan shall be administered by an Employee Stock
Ownership Committee consisting of at least three
persons who shall be appointed by and serve at the
pleasure of the Board of Directors of the Company. All
usual and reasonable expenses of the Committee may be
paid in whole or in part by the Employers, and any
expenses not paid by the Employers shall be paid by the
Trustee out of the principal or income of the Trust
Fund. Any members of the Committee who are Employees
shall not receive compensation with respect to their
services for the Committee.
8.03 Claims Procedure
The Committee shall make all determinations as to the
right of any person to a benefit. Any denial by the
Committee of a claim for benefits under the Plan by a
Participant or Beneficiary shall be stated in writing
by the Committee and delivered or mailed to the
Participant or Beneficiary. Such notice shall set
forth the specific reasons for the denial and shall be
written, to the best of the Committee's ability, in a
manner that may be understood without legal or
actuarial counsel. In addition, the Committee shall
afford a reasonable opportunity to any Participant or
Beneficiary whose claim for benefits has been denied
for a review of the decision denying the claim.
8.04 Records and Reports
The Committee shall exercise such authority and
responsibility as it deems appropriate in order to
comply with ERISA and governmental regulations issued
thereunder relating to records of Participant's
Service, account balances and the percentage of such
account balances which are nonforfeitable under the
Plan; notifications to Participants; annual
registration with the Internal Revenue Service; and
annual reports to the Department of Labor.
8.05 Other Committee Powers and Duties
The Committee shall have such duties and powers as may
be necessary to discharge its responsibilities
hereunder, including, but not by way of limitation, the
following:
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(a) to construe and interpret the Plan, decide
all questions of eligibility and determine
the amount, manner and time of payment of any
benefits hereunder;
(b) to prescribe procedures to be followed by
Participants or Beneficiaries filing
applications for benefits;
(c) to prepare and distribute, in such manner as
the Committee determines to be appropriate,
information explaining the Plan;
(d) to receive from the Employers and from
Participants such information as shall be
necessary for the proper administration of
the Plan;
(e) to furnish the Employers, upon request, such
annual reports with respect to the
administration of the Plan as are reasonable
and appropriate;
(f) to receive, review and keep on file (as it
deems convenient or proper) reports of the
financial condition, and of the receipts and
disbursements, of the Trust Fund from the
Trustee; and
(g) to appoint or employ individuals to assist in
the administration of the Plan and any other
agents it deems advisable, including legal
and actuarial counsel.
The Committee shall have no power to add to, subtract
from or modify any of the terms of the Plan, or to
change or add to any benefits provided by the Plan, or
to waive or fail to apply any requirements of
eligibility for a benefit under the Plan.
8.06 Rules and Decisions
The Committee may adopt such rules as it deems
necessary, desirable, or appropriate. All rules and
decisions of the Committee shall be uniformly and
consistently applied to all Participants in similar
circumstances. When making a determination or
calculation, the Committee shall be entitled to rely
upon information furnished by a Participant or
Beneficiary, the Employers, the legal counsel of the
Employers, or the Trustee.
-55-<PAGE>
8.07 Committee Procedures
The Committee may act at a meeting or in writing
without a meeting. The Committee shall elect one of
its members as chairman, appoint a secretary, who may
or may not be a Committee member, and advise the
Trustee of such actions in writing. The secretary
shall keep a record of all meetings and forward all
necessary communications to the Employers or the
Trustee. The Committee may adopt such bylaws and
regulations as it deems desirable for the conduct of
its affairs. All decisions of the Committee shall be
made by the vote of the majority including actions in
writing taken without a meeting. A dissenting
Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the
majority, registers his dissent in writing delivered to
the other Committee members, the Employers and the
Trustee, shall not be responsible for any such action
or failure to act.
8.08 Authorization of Benefit Payments
The Committee shall issue directions to the Trustee
concerning all benefits which are to be paid from the
Trust Fund pursuant to the provisions of the Plan, and
warrants that all such directions are in accordance
with this Plan.
8.09 Application and Forms for Benefits
The Committee may require a Participant to complete and
file with the Committee an application for a benefit
and all other forms approved by the Committee, and to
furnish all pertinent information requested by the
Committee. The Committee may rely upon all such
information so furnished it, including the
Participant's current mailing address. The failure by
a Participant to file a claim for benefits will not
result in the forfeiture of any benefits which are
otherwise nonforfeitable under this Plan.
8.10 Facility of Payment
Whenever, in the Committee's opinion, a person entitled
to receive any payment of a benefit or installment
thereof hereunder is under a legal disability or is
incapacitated in any way so as to be unable to manage
his financial affairs, the Committee may direct the
Trustee to make payments to such person or to his legal
representative or to a relative or friend of such
person for his benefit, or the Committee may direct the
Trustee to apply the payment for the benefit of such
person in such manner as the Committee considers
advisable. Any payment of a benefit or installment
-56-<PAGE>
thereof in accordance with the provisions of this
Section shall be a complete discharge of any liability
for the making of such payment under the provisions of
the Plan.
8.11 Indemnification
The Employers shall indemnify and hold harmless each
member of the Committee against all loss, cost,
expenses or damages, including attorneys' fees and
court costs: (a) occasioned by any act or omission to
act in connection with the responsibility of such
member for the administration of this Plan; or (b)
arising under or by virtue of the provisions of Part 4,
Subtitle B, Title I of ERISA; provided, however, that
the Employers shall not indemnify and hold harmless any
such member against any loss, cost, expenses and
damages occasioned by the gross negligence or willful
misconduct of such member.
8.12 Unclaimed Benefits
During the time when a benefit hereunder is payable to
any Participant or Beneficiary, the Committee, upon
request by the Trustee, or at its own instance, shall
mail by registered or certified mail to such
Participant or Beneficiary, at his last known address,
a written demand for his then address, or for
satisfactory evidence of his continued life, or both.
If such information is not furnished to the Committee
within twelve (12) months from the mailing of such
demand, then the Committee may, in its sole discretion,
declare such benefit, or any unpaid portion thereof,
suspended, with the result that such unclaimed benefit
shall be allocated to the accounts of eligible
Participants as a discretionary Employer contribution
for the Year within which such twelve (12)-month period
ends in accordance with Section 5.02(c) hereof, but
shall be subject to restoration through an Employer
contribution if the lost Participant or Beneficiary
later files a claim for such benefit.
ARTICLE IX
MISCELLANEOUS
9.01 Nonguarantee of Employment
Nothing contained in this Plan shall be construed as a
contract of employment between any Employer and any
Employee, or as a right of any Employee to be continued
in the employment of any Employer, or as a limitation
on the right of an Employer to discharge any of its
Employees, with or without cause.
-57-<PAGE>
9.02 Rights to Trust Assets
No Employee or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund upon
termination of his employment or otherwise, except as
provided from time to time under this Plan, and then
only to the extent of the benefits payable under the
Plan to such Employee out of the assets of the Trust
Fund. All payments of benefits as provided for in this
Plan shall be made solely out of the assets of the
Trust Fund and none of the Fiduciaries shall be liable
therefor in any manner.
9.03 Nonalienation of Benefits
Except to the extent subject to a "qualified domestic
relations order," as defined in Section 414(p) of the
Code, benefits payable under this Plan shall not be
subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind,
either voluntary or involuntary, prior to actually
being received by the person entitled to the benefit
under the terms of the Plan; and any attempt to
anticipate, alienate, sell, transfer, assign, pledge,
encumber, charge or otherwise dispose of any right to
benefits payable hereunder shall be void. The Trust
Fund shall not in any manner be liable for, or subject
to, the debts, contracts, liabilities, engagements or
torts of any person entitled to benefits hereunder.
9.04 Discontinuance of Employer Contributions
In the event of the permanent discontinuance of
contributions to the Plan by the Employers, the
accounts of all Participants shall, as of the date of
such discontinuance, remain nonforfeitable.
9.05 Certain Social Security Increases
In the case of a Participant or his Beneficiary who is
receiving benefits under this Plan, or in the case of a
Participant who has terminated employment with the
Employer and who has a vested right to benefits
hereunder, such benefits shall not be decreased by
reason of any increase in the benefit levels payable
under Title II of the Social Security Act or any
increase in the wage base under such Title II occurring
after the date of such Participant's termination of
employment.
9.06 Tax Reform Act of 1986; Special Effective Dates
In addition to the other limitations set forth in the
Plan and notwithstanding the provisions of Section
-58-<PAGE>
2.01(l) relating to the Effective Date of the Plan, the
Plan shall be and shall have been administered (i)
according to the applicable provisions (as determined
by the Company) of the Tax Reform Act of 1986 that
became effective prior to the Effective Date, and (ii)
the following provisions, which, for purposes of the
Plan, shall be effective as of the dates specified:
(a) Section 2.01(j), relating to the limit on the
amount of "Compensation" taken into account
under a plan, which was effective January 1,
1989;
(b) Section 2.01(m), relating to the safe harbor
provision for leased employees, effective for
services performed after December 31, 1986;
(c) Section 4.01(b)(2), relating to the
application of the special nondiscrimination
tests to employer matching contributions,
which was effective January 1, 1987;
(d) Section 4.03(e), relating to the modification
of the nondiscrimination tests applicable to
cash or deferred arrangements, which was
effective for taxable years beginning after
December 31, 1986;
(e) Section 5.03(a), relating to the elimination
of the special contribution limit for
employee stock ownership plans, which was
effective for taxable years beginning after
July 12, 1989;
(f) Section 6.04(a), relating to (i) the uniform
benefit commencement date, which was
effective for taxable years beginning after
December 31, 1988, and (ii) the elimination
of the exception to the ten percent (10%)
excise tax for distributions from an employee
stock ownership plan, which was effective
November 5, 1990; and
(g) Section 7.02(g), relating to the voting
rights of Participants or Beneficiaries,
which was applicable to votes on transactions
occurring after December 31, 1986.
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ARTICLE X
AMENDMENTS AND ACTION BY EMPLOYER
10.01 Amendments
The Company reserves the right to make from time to
time any amendment or amendments to this Plan which do
not cause any part of the Trust Fund to be used for, or
diverted to, any purpose other than the exclusive
benefit of Participants, Former Participants or their
Beneficiaries; provided, however, that the Company may
make any amendment it determines necessary or
desirable, with or without retroactive effect, to
comply with ERISA. In addition, no amendment hereof,
unless made to secure the approval of the Internal
Revenue Service or other governmental bureau or agency,
shall operate retroactively to reduce or divest the
then vested interest hereunder of any Participant,
Former Participant or Beneficiary or to reduce or
divest any benefit payable hereunder. No amendment
shall be made hereunder which would increase the duties
and liabilities of the Trustee without the Trustee's
express written consent.
10.02 Action by Employer
Any action by an Employer under this Plan may be by
resolution of its Board of Directors, or by any person
or persons duly authorized by resolution of said Board
to take such action.
ARTICLE XI
SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS
11.01 Successor Employer
In the event of the dissolution, merger, consolidation
or reorganization of an Employer, provisions may be
made by which the Plan and Trust will be continued by
the successor; and, in that event, such successor shall
be substituted for the Employer under the Plan. The
substitution of the successor shall constitute an
assumption of Plan liabilities by the successor and the
successor shall have all of the powers, duties and
responsibilities of the Employer under the Plan.
11.02 Plan Assets
In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and
liabilities of the Trust Fund to, another trust fund
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held under any other plan of deferred compensation
maintained or to be established for the benefit of all
or some of the Participants of this Plan, the assets of
the Trust Fund applicable to such Participants shall be
transferred to the other trust fund only if:
(a) each Participant would (if either this Plan
or the other plan then terminated) receive a
benefit immediately after the merger,
consolidation or transfer which is equal to
or greater than the benefit he would have
been entitled to receive immediately before
the merger, consolidation or transfer (if
this Plan had then terminated);
(b) resolutions of the Boards of Directors of the
Employers under this Plan, or of any new or
successor employer of the affected
Participants, shall authorize such transfer
of assets; and, in the case of a new or
successor employer of the affected
Participants, its resolutions shall include
an assumption of liabilities with respect to
such Participants' inclusion in the new
employer's plan; and
(c) such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
ARTICLE XII
PLAN TERMINATION
12.01 Right to Terminate
In accordance with the procedures set forth in this
Article, the Company may terminate the Plan at any
time. In the event of the withdrawal, dissolution,
merger, consolidation or reorganization of an Employer,
the Plan shall partially terminate and the Trust Fund
shall be liquidated with respect to the Employees of
such Employer unless, if applicable, the Plan is
continued by a successor to the Employer in accordance
with Section 11.01.
12.02 Partial Termination
Upon termination of the Plan with respect to a group of
Participants which constitutes a partial termination of
the Plan, the Trustee shall, in accordance with the
directions of the Committee, allocate and segregate for
the benefit of the Participants with respect to whom
the Plan is being terminated the proportionate interest
of such Participants in the Trust Fund. The funds so
-61-<PAGE>
allocated and segregated shall be used by the Trustee
to pay benefits to or on behalf of Participants in
accordance with Section 12.03.
12.03 Liquidation of the Trust Fund
Upon complete or partial termination of the Plan, the
accounts of all Participants affected thereby shall
remain fully vested, and the Committee shall direct the
Trustee to distribute the assets remaining in the Trust
Fund, after payment of any expenses properly chargeable
thereto, to Participants, Former Participants and
Beneficiaries in proportion to their respective account
balances.
12.04 Manner of Distribution
Distributions after termination of the Plan shall be
made in a form and manner consistent with the
provisions of Section 6.04 hereof.
ARTICLE XIII
RESTRICTIONS ON SHARES
The following rules will apply to Company Stock distributed
hereunder:
(a) Any shares of Company Stock distributed
hereunder may be subject to such restrictions
as to the manner of disposal of such shares
as, in the opinion of the Committee, may be
necessary to ensure that any disposition will
not involve a violation of applicable
security laws.
(b) A Participant, Former Participant or
Beneficiary who receives Loan Securities
which are (1) not publicly traded, or (2)
subject to a trading limitation, may offer
such securities to the Company for purchase.
The Participant, Former Participant or
Beneficiary may not offer Loan Securities to
the Company after a period ending on the
later of (i) the 60th day after such
Securities are distributed to him, or (ii)
the 60th day of the Plan Year following the
Plan Year in which the Securities are so
distributed. If so offered, the Company
shall purchase the shares at their fair
market value upon the terms provided in
paragraph (c) of this Article. The Company
may grant the Trustee an option to assume the
Employer's rights and obligations under this
-62-<PAGE>
paragraph (b). If Loan Securities are
publicly traded without restrictions when
distributed but cease to be so traded within
the period specified above, the Company must
notify each holder of such stock in writing,
on or before the 10th day after such stock
ceases to be so traded, that for the
remainder of such period such stock is
subject to being offered for sale to the
Company under this paragraph (b).
(c) If the Company (or the Trustee) is required
to purchase Company Stock pursuant to an
offer given under paragraph (b), above, the
purchaser shall purchase such securities
pursuant to (1) or (2), as follows:
(1) the purchaser shall pay the total
purchase price in cash at the Closing;
or
(2) the purchaser shall pay at least twenty
percent (20%) of the total purchase
price in cash at the Closing. The
purchaser shall evidence the balance of
the purchase price by executing a
promissory note, delivered to the seller
at the Closing. The note delivered at
the Closing shall bear interest at one
percent (1%) above the prime interest
rate of the Trustee bank in effect at
the Closing Date and in effect at each
subsequent principal payment date. The
note shall provide for no more than four
(4) equal annual installments with
interest payable with each installment,
the first installment being due and
payable no later than one (1) year after
the Closing Date. The note further
shall be adequately secured and shall
provide for acceleration in the event of
thirty (30) days' default in the payment
of interest or principal and shall grant
to the maker of the note the right to
prepay the note in whole or in part at
any time or times without penalty.
(d) A person shall have given Notice permitted or
required under this Article XIII when the
person deposits the Notice in the United
States Mail, First Class, postage prepaid,
addressed to the person entitled to the
Notice, at, in the case of the Company or the
Trustee, such entity's principal place of
business, or, in the case of a Participant,
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Former Participant or Beneficiary, the
address currently listed for him in the
records of the Committee. Any Participant,
Former Participant or Beneficiary affected by
this Article XIII shall have the obligation
of notifying the Committee of any change of
address.
(e) For purposes of this Article XIII--
(1) "Fair Market Value" shall mean the value
of Company Stock determined as of the
most recent Valuation Date.
(2) "Notice" shall mean any written offer,
acceptance of an offer, or any other
communication.
(3) "Closing" shall mean the place, date and
time ("Closing Date") to which the
seller and purchaser may agree for
purposes of a sale and purchase under
this Article XIII, provided that Closing
must take place not later than thirty
(30) days after an offer under paragraph
(b), above.
(f) Notwithstanding the fact that this Plan
ceases to be an employee stock ownership
plan, Loan Securities and any Company Stock
acquired after 1986 shall continue to be
subject to the provisions of this Article
XIII.
IN TESTIMONY WHEREOF, the Company and the Trustee have
caused this instrument to be executed in their names and on their
behalf, by the officers thereunto duly authorized, this 21st day
of November, 1991, effective as of January 1, 1991.
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ATMOS ENERGY CORPORATION
By:/s/Charles K. Vaughan
Title:President, CEO, & Chrmn of
the Board
ATTEST:
/s/Amber Mullins
Assistant Corp. Secretary
-65-<PAGE>
AMARILLO NATIONAL BANK
By:/s/Susan Powers
Title:Vice President & Trust
Officer
ATTEST:
___________________________
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on November 21,
1991, by Charles K. Vaughan , President, CEO, & Chairman of
the Board of Atmos Energy Corporation, a Texas corporation, on
behalf of said corporation.
/s/Olivia Sweat
Notary Public in and for
the State of Texas
My Commission Expires: Print Name of Notary
5/1/95 Olivia Sweat
THE STATE OF TEXAS )
)
COUNTY OF POTTER )
This instrument was acknowledged before me on December 16
, 1991, by Susan Powers ,Vice President & Trust Officer of
Amarillo National Bank, a national banking association, on behalf
of said association.
/s/Jacque R. Polk
Notary Public in and for
the State of Texas
My Commission Expires: Print Name of Notary
2/20/94 Jacque R. Polk
-66-<PAGE>
Exhibit 4.5(b)
--------------
AMENDMENT NO. 1
TO
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION
(AS RESTATED EFFECTIVE JANUARY 1, 1991)
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has
heretofore adopted the EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION (AS RESTATED EFFECTIVE
JANUARY 1, 1991) (the "Plan"); and
WHEREAS, it is intended that the Plan continue to meet the
requirements of Section 401(a) of the Internal Revenue Code of
1986, as amended, and the requirements of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, pursuant to the provisions of the Plan permitting
the Company to amend the Plan from time to time, the Company
desires to amend the Plan in certain respects as hereinafter
provided;
NOW, THEREFORE, ATMOS ENERGY CORPORATION does hereby amend
the Plan in the following particulars:
1. Effective January 1, 1991, Section 4.01 of the Plan is
hereby revised by amending paragraph (b)(1) thereof to be and
read as follows:
"4.01 Employer Contributions
* * * * *
(b) Matching Contributions--(1) In General. For each
Year, each Employer shall contribute on behalf of
each of its Employees for whom a contribution was
made pursuant to paragraph (a) of this Section
4.01, an amount (determined by the Board of
Directors of the Company in its sole discretion
and applied on a uniform and nondiscriminatory
basis) equal to a percentage of such Employee's
Compensation which is at least twenty-five percent
(25%) of a portion or all (as determined by such<PAGE>
Board on such basis) of the annual percentage rate
of salary reduction contributions elected by the
Employee under Section 4.03; provided that, for
purposes of this calculation, a Participant's
annual percentage rate of salary reduction
contributions for a Year shall be equal to a
fraction, the numerator of which is the lesser of
the Participant's salary reduction contributions
for a Year made pursuant to paragraph (a) of this
Section or the limitation amount specified in
Section 402(g)(1) of the Code, and the denominator
of which is the Participant's Compensation for the
Year, it being intended hereby that the total
matching contributions made pursuant to this
paragraph (b) for a Year shall never exceed a
Participant's maximum permissible salary reduction
contributions for such Year; provided further
that, in determining the amount of such
contribution, the portion of the annual percentage
rate of salary reduction contributions to be taken
into account shall be the same for all
Participants; provided further that, an Employer
may decline to make the contribution specified in
this paragraph (b) if it determines, in its sole
discretion, that it will not have sufficient
current or accumulated earnings and profits to
make such contribution; provided further that any
forfeitures under the Prior Plan which have become
available for allocation during such Year in
accordance with the provisions of the Prior Plan
shall be taken into account in determining, and
treated as part of, the aggregate Employer
contributions under this paragraph (b) for such
Year. Contributions made by the Employer for a
given Year pursuant to this paragraph (b) shall be
deposited in the Trust Fund no later than the date
on which the Employer files its Federal income tax
return for its taxable year within which such Year
ends (including extensions which have been granted
for the filing of such tax return) and may be in
the form of cash or Company Stock. For any Year,
an Employer may decline to make any portion of the
contribution specified in this paragraph (b) if
the Employer determines that such action is
necessary to ensure that the discrimination tests
of Section 401(m) of the Internal Revenue Code of
1986 are satisfied; or, in the alternative, the
Employer may direct the Trustee to distribute
'excess aggregate contributions' (as defined in
Section 401(m)(6)(3) of such Code) to the
Participants by or on whose behalf such
contributions were made by the last day of the
following Year.
* * * * *"
2<PAGE>
2. Effective August 1, 1992, "Trust Committee" shall be
substituted for "Amarillo National Bank," wherever such latter
designation appears in the Plan.
3. Effective August 1, 1992, Section 2.01 of the Plan is
hereby revised by amending paragraph (mm) thereof and by adding
at the end thereof a new paragraph (pp). These amended and added
provisions read as follows:
"2.01 Definitions
* * * * *
(mm) TRUSTEE: The Trust Committee, or any corporation,
individual or individuals appointed by the Board
of Directors of the Company to administer the
Trust.
* * * * *
(pp) TRUST COMMITTEE: The individual or individuals
employed by the Company and appointed by the Board
of Directors of the Company to act as Trustee
hereunder. The same provisions applicable to the
Employee Stock Ownership Committee specified in
Sections 8.02 and 8.07 hereof shall apply to,
respectively, the appointment of the members of
the Trust Committee and the procedures to be
adopted by the Trust Committee for the conduct of
its affairs."
4. Effective August 1, 1992, Section 7.03 of the Plan is
hereby revised by amending paragraph (e) thereof to be and read
as follows:
"7.03 The Trustee
* * * * *
(e) The Trustee shall be paid reasonable compensation
commensurate with the services and
responsibilities involved hereunder from time to
time. The Employers shall pay the Trustee's
compensation; but, if not so paid, the Trustee may
pay itself from the Trust Fund. The provisions of
this paragraph (e) shall not apply to any period
during which the Trust Committee is serving as
Trustee hereunder.
3<PAGE>
* * * * *"
IN WITNESS WHEREOF, the Company has caused this AMENDMENT
NO. 1 TO EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST FOR EMPLOYEES OF
ATMOS ENERGY COMPANY (AS RESTATED EFFECTIVE JANUARY 1, 1991) to
be executed in its name and in its behalf this 14th day of
May, 1992, effective as of the dates specified above.
ATMOS ENERGY CORPORATION
By:/s/Don E. James
Title:Sr. VP & General Counsel
ATTEST:
/s/Carolyn Shaffer
Secretary
AMARILLO NATIONAL BANK
By:/s/W. L. Dickey
Title:Sr. VP & Sr. Trust Officer
ATTEST:
/s/Susan Powers
Vice President
4<PAGE>
TRUST COMMITTEE:
By:/s/Don E. James
By:/s/Steve Chenault
By:/s/H. F. Harber
By:/s/Dan L. Lindsey
By:/s/Gordon J. Roy
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on May 14, 1992,
by Don E. James, Sr. VP & General Counsel of ATMOS ENERGY
CORPORATION, a Texas corporation, on behalf of said corporation.
/s/Suzanne Johnson
Notary Public in and for
My Commission Expires: the State of Texas
7/17/94
Printed Name of Notary:
Suzanne Johnson
THE STATE OF TEXAS )
)
COUNTY OF POTTER )
This instrument was acknowledged before me on May 29,
1992, by W. L. Dickey, Sr. V.P. & Sr. Trust Officer of AMARILLO
NATIONAL BANK, a national banking association, on behalf of said
association.
/s/Jacque R. Polk
Notary Public in and for
My Commission Expires: the State of Texas
2-20-94
Printed Name of Notary:
Jacque R. Polk
5<PAGE>
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on June 10,
1992, by Don E. James.
/s/Suzanne Johnson
Notary Public in and for
My Commission Expires: the State of Texas
7/17/94
Printed Name of Notary:
Suzanne Johnson
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on June 11, 1992,
by Steve Chenault.
/s/Jennifer E. Cobb
Notary Public in and for
My Commission Expires: the State of Texas
9/6/95
Printed Name of Notary:
Jennifer E. Cobb
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on June 11, 1992,
by H. F. Harber.
/s/Judy Amos
Notary Public in and for
My Commission Expires: the State of Texas
10-21-95
Printed Name of Notary:
Judy Amos
6<PAGE>
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on June 12, 1992,
by Dan L. Lindsey.
/s/Becky Bruce
Notary Public in and for
My Commission Expires: the State of Texas
2/10/96
Printed Name of Notary:
Becky Bruce
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on June 12, 1992,
by Gordon J. Roy.
/s/Alice M. Bledsoe
Notary Public in and for
My Commission Expires: the State of Texas
7/29/96
Printed Name of Notary:
Alice M. Bledsoe
7<PAGE>
Exhibit 4.5(c)
--------------
AMENDMENT NO. 2
TO
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION
(AS RESTATED EFFECTIVE JANUARY 1, 1991)
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has
heretofore adopted the EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION (AS RESTATED EFFECTIVE
JANUARY 1, 1991) (the "Plan"); and
WHEREAS, it is intended that the Plan continue to meet the
requirements of Section 401(a) of the Internal Revenue Code of
1986, as amended, and the requirements of the Employee Retirement
Income Security Act of 1974; and
WHEREAS, pursuant to the provisions of the Plan permitting
the Company to amend the Plan from time to time, the Company
desires to amend the Plan in certain respects as hereinafter
provided;
NOW, THEREFORE, ATMOS ENERGY CORPORATION does hereby amend
the Plan in the following particulars, effective as of January 1,
1987, except as otherwise provided herein:
1. Section 2.01(g) shall be amended to be and read as
follows:
"(g) COMMON STOCK: Shares of common stock issued by the
Company (or a corporation which is a member of the same
controlled group as defined under Section 409(l)(4) of
the Code) which are readily tradable on an established
securities market."
2. Section 2.01(i) of the Plan shall be amended to be and
read as follows:
"(i) COMPANY STOCK: Common Stock under Section 2.01(g),
Preferred Stock under Section 2.01(ff), and Other Stock
under Section 2.01(bb)."
3. Effective January 1, 1989, Section 2.01(j) of the Plan
shall be amended to be and read as follows:
"(j) COMPENSATION: The total of all amounts paid to a
Participant by the Employers for personal services as
reported on the Participant's Federal Income Tax
Withholding Statement (Form W-2), including any amounts
excluded from such reporting pursuant to Section 125 or
401(k) of the Code, but excluding (i) expense
reimbursements, (ii) bonuses, (iii) any contributions
made under this Plan, any other plan of deferred
compensation or any welfare benefit plan (other than
amounts contributed pursuant to such Sections 125 and
401(k)), and (iv) other special payments of any kind;
provided, however, that for purposes of determining
benefits hereunder, the total Compensation of a
Participant to be taken into account for a given Year
shall not exceed $200,000 (as automatically increased
in accordance with Treasury Department regulations to<PAGE>
reflect cost-of-living adjustments); provided, further,
that for purposes of allocating discretionary Employer
contributions made pursuant to Section 4.01(c) hereof
for the Year in which a Participant begins or resumes
Participation, Compensation before his Participation
began or resumed shall be disregarded. In applying the
$200,000 limitation described above, in the case of a
Highly Compensated Employee who is subject to the
aggregation rules of Section 414(q)(6) of the Code
because such Employee is either a 5% owner of the
Employer or one of the 10 highest paid Highly
Compensated Employees, such Highly Compensated Employee
and his Family Members shall be treated as a single
Participant; provided, however, that "Family Member"
shall mean only the Participant's spouse and any lineal
descendants who have not attained age 19 before the
close of the year. If, as a result of the application
of these rules, the limitation is exceeded, then the
limitation shall be prorated among the Participant and
Family Members in proportion to the Compensation of
each prior to the application of the limitation."
4. Section 2.01(bb) of the Plan shall be amended to be and
read as follows:
"(bb) OTHER STOCK: When no common stock meets the
definition of Common Stock, common stock issued by
the Company (or a corporation which is a member of
the same controlled group as defined under Section
409(l)(4) of the Code) having a combination of
voting power and dividend rights equal to or in
excess of-
(1) that class of common stock of the Company (or
a corporation which is a member of the same
controlled group as defined under Section
409(l)(4) of the Code) having the greatest
voting power, and
(2) that class of common stock of the Company (or
a corporation which is a member of the same
controlled group as defined under Section
409(l)(4) of the Code) having the greatest
dividend rights."
5. Section 2.01(ff) shall be amended to be and read as
follows:
"(ff) PREFERRED STOCK: Shares of non-callable preferred
stock convertible at any time into Common Stock or
Other Stock at a conversion price which (as of the
date of acquisition by the Plan) is reasonable.
Such preferred stock shall be treated as non-
callable if after the call there will be a
reasonable opportunity for such conversion."
6. Effective July 1, 1992, Section 2.01(nn) of the Plan
2<PAGE>
shall be amended to be and read as follows:
"(nn) VALUATION DATE: Each business day."
7. Effective July 1, 1993, Section 3.01(c) of the Plan
shall be amended to be and read as follows:
"(c) The Participation of any eligible Employee who does not
become a Participant in accordance with paragraphs (a)
or (b), above, shall commence as of the first day of
the calendar quarter next following the date on which
he has completed one (1) year of Service."
8. Section 4.01(b)(2) of the Plan shall be amended to be
and read as follows:
(2) Discrimination Tests. The discrimination tests of
Section 401(m) of the Code are satisfied in the
following manner: Each Year, (i) the Average
Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Year shall not
exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Year multiplied by 1.25; or (ii) the Average
Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Year shall not
exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Year multiplied by two (2), provided that the
Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees does
not exceed the Average Contribution Percentage for
Eligible Participants who are Non-Highly Compensated
Employees by more than two (2) percentage points. In
any Plan Year in which the Average Contribution
Percentage for Eligible Participants who are Highly
Compensated Employees for the Year does not satisfy the
limitation set forth above, the contribution rate of
those Eligible Participants who are Highly Compensated
Employees shall be reduced (in whole or less than whole
percentages) in descending order by rate of
contribution until the Average Contribution Percentage
for Eligible Participants who are Highly Compensated
Employees for the Year meets the limitation set forth
above, all in accordance with Treasury Department
regulations. Contributions in excess of that amount
determined on the basis of the reduced contribution
rate hereunder shall be considered "excess aggregate
contributions" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder).
For purposes of this subparagraph (2), an Eligible
Participant's "Contribution Percentage" shall mean the
ratio (expressed as a percentage), of the sum of the
Matching Employer Contributions under the Plan on
behalf of the Eligible Participant for the Year to such
Eligible Participant's Compensation for the Year.
3<PAGE>
"Eligible Participant" shall mean any Employee who is
authorized under the terms of the Plan to have Matching
Employer Contributions allocated to his Matching
Employer Contribution Account for the Year. The
"Average Contribution Percentage" is the average
(expressed as a percentage) of the Contribution
Percentages of all Eligible Participants.
In the event that this Plan satisfies the requirements
of Section 410(b) of the Code only if aggregated with
one or more other plans, or if one or more other plans
satisfy the requirements of Section 410(b) of the Code
only if aggregated with this Plan, then this
subparagraph (2) shall be applied by determining the
Contribution Percentage of Eligible Participants as if
all such plans were a single plan. If a Highly
Compensated Employee participates in two (2) or more
plans of the Employers to which matching contributions
are made then all such contributions shall be
aggregated for purposes of this subparagraph (2).
For purposes of determining the Contribution Percentage
of an Eligible Participant who is a Highly Compensated
Employee during the Year in question, the Matching
Employer Contributions and Compensation of such
Participant shall include the Matching Employer
Contributions and Compensation of Family Members (as
defined in Section 414(q)(6)(B) of the Code), but such
Family Members shall be disregarded in determining the
Contribution Percentage for other Highly Compensated
Employees and for Eligible Participants who are Non-
Highly Compensated Employees. Any "excess aggregate
contributions" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder) determined under these
aggregation rules shall be allocated among all Family
Members in proportion to the contributions of each
Family Member thereunder.
Any "excess aggregate contribution" (as defined in
Section 401(m)(6)(B) of the Code and Treasury
Department regulations promulgated thereunder),
together with the income allocable thereto, shall be
distributed (or, if not vested, forfeited) to the
Participant within two and one-half (2 1/2) months of
the beginning of the subsequent Plan Year.
The income allocable to an "excess aggregate
contribution" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder) shall be determined by
multiplying the income allocable to a Participant's
Employer Contribution Account for the Plan Year by a
fraction, the numerator of which is the "excess
aggregate contributions" (as defined in Section
4<PAGE>
401(m)(6)(B) of the Code and Treasury Department
regulations promulgated thereunder) for the
Participant, as determined above, and the denominator
of which is the balance of the Participant's Employer
Contribution Account on the last day of the Plan Year,
reduced by the income allocable to such account for the
Plan Year and increased by the loss allocable to such
account for the Plan Year.
Under Treasury Department regulations, the Committee
may, in its sole discretion, elect to take
contributions to a Participant's Salary Reduction
Contribution Account into account in computing the
Average Contribution Percentage. However, in such a
case, the Actual Deferral Percentage tests under
Section 4.03(e) must still be computed and met
separately, and in connection therewith, no aggregation
with Matching Employer Contributions shall be
permitted. Alternatively, the Employer may, in its
sole discretion, elect to make qualified nonelective
contributions, in the manner and to the extent provided
by Treasury Department regulations under Section 401(m)
of the Code, that would, in combination with Matching
Employer Contributions under the Plan, satisfy the
limitation set forth above.
Effective January 1, 1989, in order to prevent the
multiple use of the alternative limitations described
in (ii) above and in Section 4.03(e)(ii) hereof, the
limitation on the multiple use of alternative
limitations described in Treasury Department
regulations promulgated under Section 401(m) of the
Code is specifically incorporated herein and shall
apply to reduce the deferral rate or contribution rate
of those Eligible Participants who are Highly
Compensated Employees, as described above and in
Section 4.03(e), so that there is no multiple use of
said alternative limitations. Any "excess
contribution" (as defined in Section 401(k)(8)(B) of
the Code and Treasury Department regulations
promulgated thereunder) resulting from a reduction in
deferral rate shall be distributed in accordance with
Section 4.03(d), and any "excess aggregate
contribution" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder) resulting from a reduction in
contribution rate shall be distributed in accordance
with this Section. In lieu of said reduction, the
Employer may make such additional contributions as
described in this Section and Section 4.03(d) hereof,
in the manner and to the extent provided under Treasury
Department regulations promulgated under Sections
401(k) and 401(m) of the Code, so as to comply with the
limitation on the multiple use of alternative
limitations."
5<PAGE>
9. Effective January 1, 1993 with respect to the maximum
limit on the percentage reduction in a Participant's Compensation
per payroll period, and otherwise effective October 1, 1987, the
introductory language of Section 4.03 of the Plan shall be
amended to be and read as follows:
"Upon commencement of Participation hereunder, each
Participant shall be given the option to execute a
salary reduction agreement. The terms of any such
salary reduction agreement shall provide that the
Participant agrees to accept a reduction in salary from
an Employer equal to any whole percentage of his
Compensation per payroll period, which percentage shall
be neither less than two percent (2%) nor more than ten
percent (10%); provided that the total reduction for
any Year cannot exceed $7,000 (or such greater amount
as permitted under Treasury Department regulations to
reflect cost-of-living adjustments). Notwithstanding
the preceding provisions of this Section 4.03, in the
case of a Participant who has designated a percentage
reduction for a Year in excess of the percentage of
Matching Employer Contribution for the Year (as
determined pursuant to Section 4.01(b) hereof), the
percentage reduction in such Participant's Compensation
for any payroll period during the Year shall not exceed
the percentage (within two decimal points) that, when
applied uniformly over all payroll periods in the Year,
would result in a total reduction for the Year equal to
or less than the maximum deferral amount of $7,000 (or
such greater amount as permitted under Treasury
Department regulations to reflect cost-of-living
adjustments); provided that such reduction in a
Participant's Compensation for any payroll period may
be less than two percent (2%) if necessary not to
exceed that maximum percentage reduction. In
consideration of such agreement, the Employer will make
a salary reduction contribution to the Participant's
Salary Reduction Contribution Account on behalf of the
Participant for each Year in an amount equal to the
total amount by which the Participant's Compensation
from the Employer was reduced during the Year pursuant
to the salary reduction agreement. The Employer may
amend or revoke its salary reduction agreement with any
Participant at any time if the Employer determines that
such revocation or amendment is necessary to ensure
that the reduction in a Participant's Compensation for
any payroll period does not exceed the percentage that
would result in a total reduction for the Year equal to
or less than the maximum deferral amount set forth
above.
In the event that the total reduction on behalf of any
Participant for any of his or her taxable years exceeds
$7000 (or such greater amount as permitted under
Treasury Department regulations to reflect
cost-of-living adjustments), such "excess deferrals"
6<PAGE>
(as defined in Section 402(g)(2) of the Code and
Treasury Department regulations promulgated
thereunder), together with income allocable thereto,
but first reduced by any "excess contributions"
previously distributed for the Plan Year beginning in
that taxable year pursuant to Section 4.03(d) hereof,
shall be distributed to the Participant on whose behalf
such reduction was made not later than April 15
following the close of the Participant's taxable year
in which the reduction was made, in the manner and to
the extent provided under Treasury Department
regulations.
The income allocable to an "excess deferral" (as
defined in Section 402(g)(2) of the Code and Treasury
Department regulations promulgated thereunder) shall be
determined by multiplying the income allocable to a
Participant's Salary Reduction Contribution Account for
the Plan Year by a fraction, the numerator of which is
the "excess deferrals" (as defined in Section 402(g)(2)
of the Code and Treasury Department regulations
promulgated thereunder) of the Participant, as
determined above, and the denominator of which is the
balance of the Participant's Salary Reduction
Contribution Account on the last day of the Plan Year,
reduced by the income allocable to such account for the
Plan Year and increased by the loss allocable to such
account for the Plan Year.
Amounts credited to a Participant's Salary Reduction
Contribution Account pursuant to Section 4.01(a) and
this Section shall be one hundred percent (100%) vested
and non-forfeitable at all times. If a Participant
enters into a salary reduction agreement with his
Employer for a given Year, his Compensation for such
Year for all purposes of this Plan shall be equal to
his Compensation before application of the salary
reduction agreement.
Further, salary reduction agreements shall be governed by
the following:"
10. Effective July 1, 1993, Section 4.03(b) of the Plan
shall be amended to be and read as follows:
"(b) A salary reduction agreement may be entered into or
amended by a Participant effective as of the first day
of any calendar quarter, subject to the requirements of
paragraph (c), below. A salary reduction agreement may
be terminated by a Participant at any time upon written
notice to the Committee. If a Participant terminates
his salary reduction agreement, then, notwithstanding
any provision to the contrary herein contained, he may
not enter into another salary reduction agreement
earlier than the first day of the calendar quarter
immediately following the end of a six (6)-month period
7<PAGE>
beginning on the date of such termination."
11. Section 4.03(d) of the Plan shall be amended to be and
read as follows:
"(d) An Employer may amend or revoke its salary reduction
agreement with any Participant at any time if the
Employer determines that such revocation or amendment
is necessary (i) to ensure that a Participant's
Additions for any Year will not exceed the limitation
of Section 5.03 hereof, (ii) to ensure that Employer
contributions made pursuant to Section 4.01 hereof are
fully deductible by the Employer for Federal income tax
purposes, (iii) to ensure that a Participant's Salary
Reduction Contributions do not exceed the limitation of
Section 4.03 hereof relating to "excess deferrals" (as
defined in Section 402(g)(2) of the Code and Treasury
Department regulations promulgated thereunder), or (iv)
to ensure that the discrimination tests of Section
401(k) of the Code are met for such Year. In any case
in which such discrimination tests are not met for a
Year, the Employer may, in the alternative, (i) direct
the Trustee to distribute "excess contributions" (as
defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated
thereunder), together with the income allocable
thereto, but first reduced by any "excess deferrals"
(as defined in Section 402(g)(2) of the Code and
Treasury Department regulations promulgated thereunder)
previously distributed pursuant to Section 4.03 hereof
for the taxable year ending within the Plan Year, to
the Participant on whose behalf such contributions were
made within two and one-half (2-1/2) months of the
beginning of the subsequent Year, or (ii) make such
additional contributions, subject to the vesting and
distribution requirements under Sections 6.03 and 6.04
hereof, and in the manner and to the extent provided by
Treasury Department regulations under Section 401(k) of
the Code, to the Salary Reduction Contribution Accounts
of Participants who are Non-Highly Compensated
Employees as to cause such tests to be satisfied. In
addition, an Employer may amend or revoke its salary
reduction agreement with any Participant at any time if
the Employer determines that such revocation or
amendment is necessary to ensure that the
discrimination tests of Section 401(k) of the Code are
met for such Year.
The income allocable to an "excess contribution" (as
defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated thereunder)
shall be determined by multiplying the income allocable
to a Participant's Salary Reduction Contribution
Account for the Plan Year by a fraction, the numerator
of which is the "excess contributions" (as defined in
Section 401(k)(8)(B) of the Code and Treasury
8<PAGE>
Department regulations promulgated thereunder) of the
Participant, as determined under Section 4.03(e), and
the denominator of which is the balance of the
Participant's Salary Reduction Contribution Account on
the last day of the Plan Year, reduced by the income
allocable to such account for the Plan Year and
increased by the loss allocable to such account for the
Plan Year."
12. Section 4.03(e) of the Plan shall be amended to be and
read as follows:
"(e) The discrimination tests of Section 401(k) of the Code
are satisfied in the following manner: Each Year, the
Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Year shall
bear a relationship to the Actual Deferral Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the Year whereby (i) the
Actual Deferral Percentage for the group of Eligible
Participants who are Highly Compensated Employees for
the Year is not more than the Actual Deferral
Percentage for Eligible Participants who are Non-Highly
Compensated Employees for the Year multiplied by 1.25;
or (ii) the excess of the Actual Deferral Percentage
for the group of Eligible Participants who are Highly
Compensated Employees for the Year over that of all
Eligible Participants who are Non-Highly Compensated
Employees for the Year shall not be more than two (2)
percentage points, and the Actual Deferral Percentage
for the group of Eligible Participants who are Highly
Compensated Employees for the Year is not more than the
Actual Deferral Percentage of all Eligible Participants
who are Non-Highly Compensated Employees for the Year
multiplied by two (2). In any Plan Year in which the
Average Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Year does
not satisfy the limitation set forth above, the
deferral rate of those Eligible Participants who are
Highly Compensated Employees shall be reduced (in whole
or less than whole percentages) in descending order by
rate of deferral until the Average Deferral Percentage
for Eligible Participants who are Highly Compensated
Employees for the Year meets the limitation set forth
above, all in accordance with Treasury Department
regulations. Contributions in excess of that amount
determined on the basis of the reduced deferral rate
hereunder shall be considered "excess contributions"
(as defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated
thereunder).
For purposes of this paragraph (e), the "Actual
Deferral Percentage" for a specified group of Eligible
Participants for a Year shall be the average of the
ratios (expressed as a percentage and calculated
9<PAGE>
separately for each Eligible Participant in such group)
of (i) the amount of each such Eligible Participant's
Salary Reduction Contributions actually paid over to
the Trust on behalf of the Participant for such Year,
to (ii) such Participant's Compensation for the Year.
The term "Eligible Participant" shall mean any Employee
who is authorized under the terms of the Plan to have
contributions allocated to his Salary Reduction
Contribution Account for the Year.
In the event that this Plan satisfies the requirements
of Section 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of Section
401(a)(4) or 410(b) of the Code only if aggregated with
this Plan, then this paragraph (e) shall be applied by
determining the Contribution Percentage of Eligible
Participants as if all such plans were a single plan.
If a Highly Compensated Employee participates in two
(2) or more plans of the Employers to which salary
reduction contributions are made then all such
contributions shall be aggregated for purposes of this
paragraph (e).
For purposes of determining the Actual Deferral
Percentage of an Eligible Participant who is a Highly
Compensated Employee, the Salary Reduction
Contributions and Compensation of such Participant
shall include the Salary Reduction Contributions and
Compensation of Family Members (as defined in Section
414(q)(6)(B) of the Code), but such Family Members
shall be disregarded in determining the Actual Deferral
Percentage for other Highly Compensated Employees and
for Eligible Participants who are Non-Highly
Compensated Employees. Any "excess contributions" (as
defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated thereunder)
determined under these aggregation rules shall be
allocated among all Family Members in proportion to the
contributions of each Family Member thereunder.
Effective January 1, 1989, the provisions of Section
4.01(b)(2) with respect to the limitation on the
multiple use of the alternative limitations described
in (ii) above and in Section 4.01(b)(2)(ii) shall apply
in the manner provided therein."
13. Effective July 1, 1992, Section 5.02(a) of the Plan
shall be amended to be and read as follows:
"(a) Income--(1) In General. The Income of the Trust Fund
shall be allocated to the accounts of Participants,
Former Participants and Beneficiaries who had unpaid
balances in their accounts on the Valuation Date in
accordance with the ratio of the balance of cash in
each Participant's accounts on such Valuation Date to
10<PAGE>
the balance of cash in all accounts on such Valuation
Date. Each valuation shall be based on the fair market
value of assets in the Trust Fund on the Valuation
Date.
(2) Fixed Income Fund. To the extent that a
Participant's accounts are invested in the Fixed
Income Fund described in Section 7.02(l) hereof,
earnings attributable to the portion so invested
(hereinafter, the "Fixed Income Portion") shall be
allocated on the following basis: such earnings
shall be allocated to the accounts of
Participants, Former Participants and
Beneficiaries who had unpaid balances in the Fixed
Income Portions of their accounts on the Valuation
Date in accordance with the ratio of the Fixed
Income Portions of each Participant's accounts on
such Valuation Date to the Fixed Income Portions
of all accounts on such Valuation Date.
(3) Diversified Investments. To the extent that the
accounts of a Participant are invested, pursuant
to Section 7.04 or 7.05 hereof, in the Diversified
Fund described in such Section 7.05, earnings
attributable to the portion so invested
(hereinafter, the "Diversified Portion") shall be
allocated on the following basis: such earnings
shall be allocated to the accounts of
Participants, Former Participants and
Beneficiaries who had unpaid balances in the
Diversified Portions of their accounts on the
Valuation Date in accordance with the ratio of the
Diversified Portions of each Participant's
accounts on such Valuation Date to the Diversified
Portions of all accounts on such Valuation Date."
14. Effective October 1, 1987, Section 6.06(b) of the Plan
shall be amended to be and read as follows:
"(b) From Employer Contribution Account or Matching Employer
Contribution Account--On any January 1, a Participant
may elect to withdraw any amount in his Employer
Contribution Account or Matching Employer Contribution
Account but only to the extent that such amount was
allocated and paid to either such account at least two
(2) years prior to withdrawal; provided, however, that
a Participant may withdraw any amount allocated to
either such Account at any time such Participant
properly demonstrates a financial hardship as described
in Section 6.06(a)(1) hereof. A Participant shall not
cease to be a Participant under the Plan solely because
a distribution is made to such Participant pursuant to
this Section 6.06(b). Withdrawal elections shall be
made by the Participant on written forms provided by
the Committee for that purpose."
11<PAGE>
15. Effective December 22, 1987, Section 7.01 of the Plan
shall be amended to be and read as follows:
"7.01 In General
All contributions under this Plan shall be paid to
the Trustees and deposited in the Trust Fund. All
assets of the Trust Fund, including investment
income, shall be retained for the exclusive
benefit of Participants, Former Participants, and
Beneficiaries and shall be used to pay benefits to
such persons or to pay administrative expenses of
the Plan and Trust Fund to the extent not paid by
the Employers and shall not revert or inure to the
benefit of any Employer. Notwithstanding anything
herein to the contrary and pursuant to Section
403(c)(2) of ERISA, upon an Employer's request, a
contribution which was made by a mistake of fact
or conditioned upon the deductibility of the
contribution under Section 404 of the Code, shall
be returned to the Employer within one (1) year
after the payment of the contribution or the
disallowance of the deduction (to the extent
disallowed), whichever is applicable. It is
hereby acknowledged that all contributions
hereunder are expressly conditioned on the
deductibility of such contributions."
16. Effective for stock acquired on or after January 1,
1987 or, in the case of Section 7.04(b)(2), upon receipt of a
favorable determination from the Internal Revenue Service,
Section 7.04 of the Plan shall be amended to be and read as
follows:
"7.04 Diversification Requirements
(a) In General--Notwithstanding the preceding
provisions of this Article VII, a Qualified
Participant may, during each Election Period
occurring within his Qualified Election Period,
elect that a portion of his aggregate account
balances (with such balances determined as of the
beginning of each Election Period) be
alternatively invested pursuant to Section 7.05
hereof in the Diversified Fund described in such
Section. The maximum amount of the Qualified
Participant's aggregate account balances available
for such alternative investment shall be one
hundred percent (100%) of such aggregate balances
consisting of Company Stock acquired after 1986,
reduced by amounts previously so invested, either
pursuant to this Section or Section 7.05 hereof.
In lieu of permitting investment in such
Diversified Fund and notwithstanding the
provisions of Section 6.06(a)(1) or (b) hereof or
any other provision to the contrary herein
12<PAGE>
contained, the Committee, in its sole discretion,
may distribute to the Qualified Participant an
amount equal to the amount for which the Qualified
Participant elected such alternative investment.
(b) Definitions--For purposes of this Section 7.04,
the following terms shall have the following
respective meanings:
(1) "Qualified Participant" shall mean each
Participant who has attained the age of
fifty-five (55) years and has completed at
least ten (10) Years of Participation.
(2) "Qualified Election Period" shall mean, with
respect to a Qualified Participant, any Plan
Year beginning with the Plan Year in which
the Participant first became a Qualified
Participant.
(3) "Election Period" shall mean the ninety (90)-
day period immediately following the close of
each Year in the Qualified Election Period.
For purposes of paragraph (1) above, "Years
of Participation" shall include all periods
of participation under the provisions of the
Plan as initially effective February 15,
1984."
IN WITNESS WHEREOF, the Company has caused this AMENDMENT
NO. 2 TO EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST FOR EMPLOYEES OF
ATMOS ENERGY COMPANY (AS RESTATED EFFECTIVE JANUARY 1, 1991) to
be executed in its name and in its behalf this 10th
day of May , 1993, effective as of January 1, 1987,
unless otherwise provided herein.
ATMOS ENERGY CORPORATION
By:/s/Ronald L. Fancher
Title:President &
Chief Operating Officer
ATTEST:
/s/Jeanette Jarman
Assistant Secretary
13<PAGE>
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on this 10th day
of May, 1993, by Ronald L. Fancher, President & Chief Operating
Officer, of ATMOS ENERGY CORPORATION, a Texas corporation, on
behalf of said corporation.
/s/Suzanne Johnson
Notary Public in and for
the State of Texas
My Commission expires: Print Name of Notary Public:
7/17/94 Suzanne Johnson
14<PAGE>
Exhibit 4.5(d)
--------------
AMENDMENT NO. 3 TO
EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION
AS RESTATED EFFECTIVE JANUARY 1, 1991
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has
heretofore adopted the EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST
FOR EMPLOYEES OF ATMOS ENERGY CORPORATION AS RESTATED EFFECTIVE
JANUARY 1, 1991 (the "Plan"); and
WHEREAS, pursuant to the provisions of the Plan permitting
the Company to amend the Plan from time to time, the Company
desires to amend the Plan in certain respects as hereinafter
provided in order to obtain a favorable determination letter from
the Internal Revenue Service with respect to the Plan;
NOW, THEREFORE, ATMOS ENERGY CORPORATION does hereby amend
the Plan as follows, effective January 1, 1994, unless otherwise
specified herein:
1. Section 2.01(j) of the Plan shall be amended to be and
read as follows:
"(j) COMPENSATION: The total of all amounts paid to a
Participant by the Employers for personal services as
reported on the Participant's Federal Income Tax
Withholding Statement (Form W-2), including any amounts
excluded from such reporting pursuant to Section 125 or
401(k) of the Code, but excluding (i) expense
reimbursements, (ii) bonuses, (iii) any contributions
made under this Plan, any other plan of deferred
compensation or any welfare benefit plan (other than
amounts contributed pursuant to such Sections 125 and
401(k)), and (iv) other special payments of any kind;
provided, however, that for purposes of determining
benefits hereunder, the total Compensation of a
Participant to be taken into account for a given Year
shall not exceed $200,000 (as automatically increased
in accordance with Treasury Department regulations to
reflect cost-of-living adjustments) for Plan Years
beginning after 1988 and before 1994, and $150,000 (as
automatically increased in accordance with Treasury
Department regulations to reflect cost-of-living
adjustments) for Plan Years beginning after 1993;
provided, further, that for purposes of allocating
discretionary Employer contributions made pursuant to
Section 4.01(c) hereof for the Year in which a
Participant begins or resumes Participation,
Compensation before his Participation began or resumed
shall be disregarded. In applying the $150,000 and
$200,000 limitations described above, in the case of a
Highly Compensated Employee who is subject to the
aggregation rules of Section 414(q)(6) of the Code
because such Employee is either a 5% owner of the
Employer or one of the 10 highest paid Highly
Compensated Employees, such Highly Compensated Employee<PAGE>
and his Family Members shall be treated as a single
Participant; provided, however, that "Family Member"
shall mean only the Participant's spouse and any lineal
descendants who have not attained age 19 before the
close of the year. If, as a result of the application
of these rules, the limitation is exceeded, then the
limitation shall be prorated among the Participant and
Family Members in proportion to the Compensation of
each prior to the application of the limitation."
2. Effective January 1, 1987, Section 2.01(v) of the Plan
is amended to be and read as follows:
"(v) HIGHLY-COMPENSATED EMPLOYEE: An individual described
in Section 414(q) of the Code and Treasury Department
regulations thereunder. Generally, a Participant or
Former Participant is considered a Highly Compensated
Employee if during the determination year (the Plan
Year for which the determination is being made) or the
look-back year (the 12-month period immediately
preceding the determination year, or, if the Company
elects, the calendar year ending with or within the
determination year):
(1) Such Participant or Former Participant was a "five
percent owner" as defined in Section
416(i)(1)(A)(iii) of the Code.
(2) Such Participant or Former Participant received
Compensation from the Employers in excess of
$75,000 (as adjusted by the Secretary of Treasury
at the same time and in the same manner as under
Section 415(d) of the Code) during the look-back
year.
(3) Such Participant or Former Participant received
Compensation from the Employers in excess of
$50,000 (as adjusted by the Secretary of the
Treasury at the same time and in the same manner
as under Section 415(d) of the Code) during the
look-back year and was in the top-paid group of
Employees for the look-back year. An Employee is
in the top-paid group of Employees for any look-
back year if such Employee is in the group
consisting of the top twenty percent (20%) of the
Employees when ranked on the basis of Compensation
paid during the look-back year.
(4) Such Participant or Former Participant was an
officer as defined in Section 416(i) of the Code
during the look-back year and received
Compensation greater than fifty percent (50%) of
the dollar limitation in effect under Section
415(b)(1)(A) of the Code. If no officer received
Compensation greater than fifty percent (50%) of
the dollar limitation in effect under Section
2<PAGE>
415(b)(1)(A) of the Code, the highest paid officer
shall be treated as a Highly Compensated Employee.
For this purpose, no more than fifty (50)
Employees (or, if lesser, the greater of three (3)
Employees or ten percent (10%) of the Employees)
shall be treated as officers.
(5) Such Participant or Former Participant is
described in the foregoing paragraphs (2), (3) or
(4) during the determination year (rather than the
look-back year) and is one of the 100 employees
who receive the most Compensation from the
Employer during the determination year.
For purposes of this paragraph (v), the determination
of Compensation shall be made without regard to
Sections 125, 402(a)(8), and 402(h)(1)(B) of the Code
and, in the case of Employer contributions made
pursuant to Section 4.01(a) hereof, without regard to
Section 403(b) of the Code, and the Company and
Affiliates shall be treated as a single employer. The
Company may make a uniform election with respect to all
plans of the Company to apply a calendar year
calculation, as permitted by Treasury Department
regulations under Section 414(q) of the Code."
3. Effective January 1, 1994, the last sentence of Section
3.02(b) of the Plan is amended to be and read as follows:
"An Employee who completes a year of Service and, prior
to Participation hereunder, incurs a Severance from
Service shall, upon re-employment, be credited with
such prior year of Service and be entitled to commence
Participation as of the later of (i) the date as of
which such Employee would have commenced Participation
under Section 3.01(c) if he had not incurred a
Severance from Service or (ii) his Re-employment
Commencement Date."
4. Effective January 1, 1987, Section 4.01(b)(2) of the
Plan shall be amended to be and read as follows:
"(2) Discrimination Tests. The discrimination tests of
Section 401(m) of the Code are satisfied in the
following manner: Each Year, (i) the Average
Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Year shall not
exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Year multiplied by 1.25; or (ii) the Average
Contribution Percentage for Eligible Participants who
are Highly Compensated Employees for the Year shall not
exceed the Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the Year multiplied by two (2), provided that the
Average Contribution Percentage for Eligible
Participants who are Highly Compensated Employees does
3<PAGE>
not exceed the Average Contribution Percentage for
Eligible Participants who are Non-Highly Compensated
Employees by more than two (2) percentage points.
In any Plan Year in which the Average Contribution
Percentage for Eligible Participants who are Highly
Compensated Employees for the Year does not satisfy the
limitation set forth above, the contribution rate of
the Highly Compensated Employee with the highest
contribution rate is reduced to the extent necessary to
satisfy the Average Contribution Percentage limitation
set forth above or cause such contribution rate to
equal the contribution rate of the Highly Compensated
Employee with the next highest contribution rate. This
leveling process is repeated until the Average
Contribution Percentage limitation set forth above is
satisfied. Contributions in excess of that amount
determined on the basis of the reduced contribution
rate hereunder shall be considered "excess aggregate
contributions" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder).
For purposes of this subparagraph (2), an Eligible
Participant's "Contribution Percentage" shall mean the
ratio (expressed as a percentage calculated to the
nearest one-hundredth percentage), of the sum of the
Matching Employer Contributions under the Plan on
behalf of the Eligible Participant for the Year to such
Eligible Participant's Compensation for the Year. For
purposes of calculating the Contribution Percentage of
an Eligible Participant, Matching Employer
Contributions shall be taken into account for a Year
only if made on account of the Eligible Participant's
Salary Reduction Contributions, allocated to the
Participant's account as of a date within the Year in
accordance with Treasury Department regulations under
Code Section 401(m), and actually paid over to the
Trust by the end of the following Year. The
Contribution Percentage of an Eligible Participant who
has no Matching Employer Contributions allocated to his
Matching Employer Contribution Account for the Year
shall be zero (0). "Eligible Participant" shall mean
any Employee who is directly or indirectly authorized
under the terms of the Plan to have Matching Employer
Contributions allocated to his Matching Employer
Contribution Account for the Year, and shall include
any Employee who is eligible to make Salary Reduction
Contributions under the terms of the Plan but elects
not to make such contributions for the Year, who is
eligible to participate under the terms of the Plan but
elects not to participate, or who is not eligible to
have Matching Employer Contributions allocated to his
Matching Employer Contribution Account due to the
limitation on Additions set forth in Section 5.03
4<PAGE>
hereof. The "Average Contribution Percentage" is the
average (expressed as a percentage calculated to the
nearest one-hundredth percentage) of the Contribution
Percentages of all Eligible Participants.
In the event that this Plan satisfies the requirements
of Sections 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of Sections
401(a)(4) or 410(b) of the Code only if aggregated with
this Plan, then this subparagraph (2) shall be applied
by determining the Contribution Percentage of Eligible
Participants as if all such plans were a single plan.
If a Highly Compensated Employee participates in two
(2) or more plans of the Employers to which matching
contributions are made then all such contributions
shall be aggregated for purposes of this subparagraph
(2).
For purposes of determining the Contribution Percentage
of an Eligible Participant who is a Highly Compensated
Employee subject to the aggregation rules of Section
414(q)(6) of the Code because such Employee is either a
5% owner or one of the 10 highest paid Highly
Compensated Employees during the Year in question, the
Matching Employer Contributions and Compensation of
such Participant shall include the Matching Employer
Contributions and Compensation of Family Members, but
such Family Members shall be disregarded in determining
the Contribution Percentage for other Highly
Compensated Employees and for Eligible Participants who
are Non-Highly Compensated Employees. For purposes of
this Section and Section 4.03(e), "Family Member" shall
mean, with respect to a Highly Compensated Employee,
such Highly Compensated Employee's spouse and lineal
ascendants and descendants and the spouses of such
lineal ascendants and descendants. Any "excess
aggregate contributions" (as defined in Section
401(m)(6)(B) of the Code and Treasury Department
regulations promulgated thereunder) determined under
these aggregation rules and the leveling process
described above shall be allocated among all Family
Members in proportion to the contributions of each
Family Member thereunder.
Any "excess aggregate contribution" (as defined in
Section 401(m)(6)(B) of the Code and Treasury
Department regulations promulgated thereunder),
together with the income allocable thereto, shall be
distributed (or, if not vested, forfeited) to the
Participant within two and one-half (2-1/2) months of
the beginning of the subsequent Plan Year.
The income allocable to an "excess aggregate
contribution" (as defined in Section 401(m)(6)(B) of
5<PAGE>
the Code and Treasury Department regulations
promulgated thereunder) shall be determined by
multiplying the income allocable to a Participant's
Matching Employer Contribution Account for the Plan
Year by a fraction, the numerator of which is the
"excess aggregate contributions" (as defined in Section
401(m)(6)(B) of the Code and Treasury Department
regulations promulgated thereunder) for the
Participant, as determined above, and the denominator
of which is the balance of the Participant's Matching
Employer Contribution Account on the last day of the
Plan Year, reduced by the income allocable to such
account for the Plan Year and increased by the loss
allocable to such account for the Plan Year.
Under Treasury Department regulations, the Committee
may, in its sole discretion, elect to take
contributions to a Participant's Salary Reduction
Contribution Account into account in computing the
Average Contribution Percentage. However, in such a
case, the Actual Deferral Percentage tests under
Section 4.03(e) must still be computed and met
separately, and in connection therewith, no aggregation
with Matching Employer Contributions shall be
permitted.
Alternatively, the Employer may, in its sole
discretion, elect to make qualified nonelective
contributions that would, in combination with Matching
Employer Contributions under the Plan, satisfy the
limitation set forth above. Such qualified nonelective
contributions shall be subject to the vesting
requirements under Section 6.03 hereof and the
distribution requirements applicable to Salary
Reduction Contributions under Sections 6.01 through
6.04, 6.06, and 12.04 hereof, without regard to whether
such contributions are taken into account as Matching
Employer Contributions hereunder. Such contributions
shall be maintained in a subaccount of a Participant's
Matching Employer Contribution Account, separate and
apart from a subaccount relating to qualified
nonelective contributions made under Section 4.03(d).
Effective January 1, 1989, in order to prevent the
multiple use of the alternative limitations described
in (ii) above and in Section 4.03(e)(ii) hereof, the
limitation on the multiple use of alternative
limitations described in Treasury Department
regulations promulgated under Section 401(m) of the
Code is specifically incorporated herein and shall
apply to reduce the deferral rate or contribution rate
of those Eligible Participants who are Highly
Compensated Employees, as described above and in
Section 4.03(e), so that there is no multiple use of
said alternative limitations. Any "excess
6<PAGE>
contribution" (as defined in Section 401(k)(8)(B) of
the Code and Treasury Department regulations
promulgated thereunder) resulting from a reduction in
deferral rate shall be distributed in accordance with
Section 4.03(d), and any "excess aggregate
contribution" (as defined in Section 401(m)(6)(B) of
the Code and Treasury Department regulations
promulgated thereunder) resulting from a reduction in
contribution rate shall be distributed in accordance
with this Section. In lieu of said reduction, the
Employer may make such additional contributions as
described in this Section and Section 4.03(d) hereof,
in the manner and to the extent provided under Treasury
Department regulations promulgated under Sections
401(k) and 401(m) of the Code, so as to comply with the
limitation on the multiple use of alternative
limitations."
5. Effective January 1, 1987, Section 4.03(d) of the Plan
is amended to be and read as follows:
"(d) An Employer may amend or revoke its salary reduction
agreement with any Participant at any time if the
Employer determines that such revocation or amendment
is necessary (i) to ensure that a Participant's
Additions for any Year will not exceed the limitation
of Section 5.03 hereof, (ii) to ensure that Employer
contributions made pursuant to Section 4.01 hereof are
fully deductible by the Employer for Federal income tax
purposes, (iii) to ensure that a Participant's Salary
Reduction Contributions do not exceed the limitation of
Section 4.02 hereof relating to "excess deferrals" (as
defined in Section 402(g)(2) of the Code and Treasury
Department regulations promulgated thereunder), or (iv)
to ensure that the discrimination tests of Sections
401(k) and 401(m) of the Code are met for such Year.
In any case in which such discrimination tests are not
met for a Year, the Employer may, in the alternative,
(i) direct the Trustee to distribute "excess
contributions" (as defined in Section 401(k)(8)(B) of
the Code and Treasury Department regulations
promulgated thereunder), together with the income
allocable thereto, but first reduced by any "excess
deferrals" (as defined in Section 402(g)(2) of the Code
and Treasury Department regulations promulgated
thereunder) previously distributed pursuant to Section
4.02 hereof for the taxable year ending within the Plan
Year, to the Participant on whose behalf such
contributions were made within two and one-half (2-1/2)
months of the beginning of the subsequent Year,
provided that any Matching Employer Contribution
(whether vested) that relates to "excess contributions"
that are distributed to a Participant shall be
forfeited to the extent required under Section
401(a)(4) of the Code and shall be reallocated in
7<PAGE>
accordance with Section 5.02(c), or (ii) make such
additional qualified nonelective contributions to the
Salary Reduction Contribution Accounts of Participants
who are Non-Highly Compensated Employees as to cause
such tests to be satisfied.
The income allocable to an "excess contribution" (as
defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated thereunder)
shall be determined by multiplying the income allocable
to a Participant's Salary Reduction Contribution
Account for the Plan Year by a fraction, the numerator
of which is the "excess contributions" (as defined in
Section 401(k)(8)(B) of the Code and Treasury
Department regulations promulgated thereunder) of the
Participant, as determined under Section 4.03(e), and
the denominator of which is the balance of the
Participant's Salary Reduction Contribution Account on
the last day of the Plan Year, reduced by the income
allocable to such account for the Plan Year and
increased by the loss allocable to such account for the
Plan Year.
Qualified nonelective contributions hereunder shall be
subject to the vesting requirements under Section 6.03
hereof and the distribution requirements applicable to
Salary Reduction Contributions under Sections 6.01
through 6.04, 6.06, and 12.04 hereof, without regard to
which such contributions are taken into account as
Salary Reduction Contributions hereunder. Such
contributions shall be maintained in a subaccount of a
Participant's Salary Reduction Contribution Account,
separate and apart from a subaccount relating to
qualified nonelective contributions made under Section
4.01(b)(2)."
6. Effective January 1, 1987, Section 4.03(e) of the Plan
shall be amended to be and read as follows:
"(e) The discrimination tests of Section 401(k) of the Code
are satisfied in the following manner: Each Year, the
Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Year shall
bear a relationship to the Actual Deferral Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the Year whereby (i) the
Actual Deferral Percentage for the group of Eligible
Participants who are Highly Compensated Employees for
the Year is not more than the Actual Deferral
Percentage for Eligible Participants who are Non-Highly
Compensated Employees for the Year multiplied by 1.25;
or (ii) the excess of the Actual Deferral Percentage
for the group of Eligible Participants who are Highly
Compensated Employees for the Year over that of all
Eligible Participants who are Non-Highly Compensated
Employees for the Year shall not be more than two (2)
8<PAGE>
percentage points, and the Actual Deferral Percentage
for the group of Eligible Participants who are Highly
Compensated Employees for the Year is not more than the
Actual Deferral Percentage of all Eligible Participants
who are Non-Highly Compensated Employees for the Year
multiplied by two (2).
In any Plan Year in which the Actual Deferral
Percentage for Eligible Participants who are Highly
Compensated Employees for the Year does not satisfy the
limitation set forth above, the deferral rate of the
Highly Compensated Employee with the highest deferral
rate is reduced to the extent necessary to satisfy the
Actual Deferral Percentage limitation set forth above
or cause such deferral rate to equal the deferral rate
of the Highly Compensated Employee with the next
highest deferral rate. This leveling process is
repeated until the Actual Deferral Percentage
limitation set forth above is satisfied. Contributions
in excess of that amount determined on the basis of the
reduced deferral rate hereunder shall be considered
"excess contributions" (as defined in Section
401(k)(8)(B) of the Code and Treasury Department
regulations promulgated thereunder).
For purposes of this paragraph (e), the "Actual
Deferral Percentage" for a specified group of Eligible
Participants for a Year shall be the average of the
ratios (expressed as a percentage calculated to the
nearest one-hundredth percentage and determined
separately for each Eligible Participant in such group)
of (i) the amount of each such Eligible Participant's
Salary Reduction Contributions made on behalf of the
Participant for such Year, to (ii) such Participant's
Compensation for the Year. For purposes of determining
the Actual Deferral Percentage of an Eligible
Participant, Salary Reduction Contributions of all
Eligible Participants shall be taken into account for
the Year if such contributions (i) relate to
Compensation that would have been received during the
Year (but for the deferral election) or relate to
Compensation attributable to services performed during
the Year that would have been received within 2-1/2
months after the close of the Year (but for the
deferral election), and (ii) are allocated to the
Participant's account as of a date within the Year in
accordance with Treasury Regulations under Section
401(k) of the Code. The Actual Deferral Percentage of
an Eligible Participant who has no Salary Reduction
Contributions paid over to the Trust on his behalf for
the Year shall be zero (0). The term "Eligible
Participant" shall mean any Employee who is authorized
under the terms of the Plan to have contributions
allocated to his Salary Reduction Contribution Account
for all or a portion of the Year, and shall include any
9<PAGE>
Employee who is eligible to make Salary Reduction
Contributions under the terms of the Plan but elects
not to make such contributions for the Year, who is
eligible to participate under the terms of the Plan but
elects not to participate, whose right to make Salary
Reduction Contributions has been suspended under
Section 6.06 hereof, or who is not eligible to have
Salary Reduction Contributions allocated to his Salary
Reduction Contribution Account due to the limitation on
Additions set forth in Section 5.03 hereof.
In the event that this Plan satisfies the requirements
of Section 401(a)(4) or 410(b) of the Code only if
aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of Section
401(a)(4) or 410(b) of the Code only if aggregated with
this Plan, then this paragraph (e) shall be applied by
determining the Deferral Percentage of Eligible
Participants as if all such plans were a single plan.
If a Highly Compensated Employee participates in two
(2) or more plans of the Employers to which salary
reduction contributions are made then all such
contributions shall be aggregated for purposes of this
paragraph (e).
For purposes of determining the Actual Deferral
Percentage of an Eligible Participant who is a Highly
Compensated Employee subject to the aggregation rules
of Section 414(q)(6) of the Code because such Employee
is either a 5% owner or one of the 10 highest paid
Highly Compensated Employees, the Salary Reduction
Contributions and Compensation of such Participant
shall include the Salary Reduction Contributions and
Compensation of Family Members (as defined in Section
4.01(b)(2) hereof), but such Family Members shall be
disregarded in determining the Actual Deferral
Percentage for other Highly Compensated Employees and
for Eligible Participants who are Non-Highly
Compensated Employees. Any "excess contributions" (as
defined in Section 401(k)(8)(B) of the Code and
Treasury Department regulations promulgated thereunder)
determined under these aggregation rules and the
leveling process described above shall be allocated
among all Family Members in proportion to the
contributions of each Family Member thereunder.
Effective January 1, 1989, the provisions of Section
4.01(b)(2) with respect to the limitation on the
multiple use of the alternative limitations described
in (ii) above and in Section 4.01(b)(2)(ii) shall apply
in the manner provided therein."
7. Section 5.03(a) of the Plan is amended to be and read
as follows:
10<PAGE>
"(a) Notwithstanding anything contained herein to the
contrary, the total Additions made to the Salary
Reduction, Matching Employer Contribution Account, and
Employer Contribution Account of a Participant for any
Year shall not exceed the lesser of (1) or (2), where--
(1) is the greater of (i) $30,000 (or such greater
amount as permitted under Internal Revenue Service
rulings to reflect increases in the cost-of-
living) or (ii) one-fourth (1/4) of the dollar
limitation in effect under Section 415(b)(1)(A) of
the Code; and
(2) is 25% of the Participant's total compensation for
such Year.
For purposes of this Section 5.03, a Participant's
"total compensation" includes earned income, wages,
salaries, fees for professional service and other
amounts received for personal services actually
rendered in the course of employment with the Employers
(including, but not limited to, commissions paid
salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance
premiums, tips, and bonuses) and excluding the
following: (i) Employer contributions to a plan of
deferred compensation to the extent contributions are
not included in gross income of the Participant for the
taxable year in which contributed, or on behalf of a
Participant to a Simplified Employee Pension plan to
the extent such contributions are deductible under
Section 219(b)(7) of the Code, and any distributions
from a plan of deferred compensation whether or not
includible in the gross income of the Participant when
distributed; (ii) amounts realized from the exercise of
a non-qualified stock option, or when restricted stock
(or property) held by a Participant becomes freely
transferable or is no longer subject to a substantial
risk of forfeiture; (iii) amounts realized from the
sale, exchange or other disposition of stock acquired
under a qualified stock option; (iv) other amounts
which receive special tax benefits, or contributions
made by an Employer (whether or not under a salary
reduction agreement) towards the purchase of a 403(b)
annuity contract (whether or not the contributions are
excludible from the gross income of the Participant);
and (v) compensation for a Year in excess of $200,000
(as automatically increased in accordance with Treasury
Department regulations to reflect cost-of-living
adjustments) for Plan Years beginning after 1988 and
before 1994, and $150,000 (as automatically increased
in accordance with Treasury Department regulations to
reflect cost-of-living adjustments) for Plan Years
beginning after 1993."
11<PAGE>
8. Effective January 1, 1987, Section 5.04(b) of the Plan
shall be amended to be and read as follows:
"(b) Minimum Allocations--Notwithstanding the provisions of
Section 5.02(b) and (c), for any Year during which the
Plan is deemed a Top-Heavy Plan, the amount of Employer
contribution for the Year to be allocated in the
aggregate to the Matching Employer Contribution Account
and Employer Contribution Account of each Participant
who is not a Key Employee shall not be less than the
lesser of (i) three percent (3%) of the Participant's
total compensation for the Year or (ii) the
Participant's total compensation for the Year
multiplied by the highest percentage obtained by
dividing the amount of Employer contribution allocated
in the aggregate to the Salary Reduction Contribution
Account, Matching Employer Contribution Account, and
the Employer Contribution Account of any Key Employee
for the Year by so much of the total compensation of
such Key Employee for the Year as does not exceed
$200,000 (as automatically increased in accordance with
Treasury Regulations) for Years before 1994 and
$150,000 (as automatically increased in accordance with
Treasury Regulations) for Years beginning after 1993;
provided, however, that the requirements of this
paragraph (b) shall not apply to the extent that the
minimum allocations set forth herein are made under
another defined contribution plan maintained by the
Employer; provided, further, that the minimum
allocations required herein shall be offset by any
minimum benefit provided under a defined benefit plan
maintained by an Employer."
9. Effective for stock acquired after 1986, Section
6.04(a) of the Plan is amended to be and read as follows:
"(a) In General--Payment of a Participant's benefits shall
commence as soon as practicable after the date on which
the Committee determines the final balances in such
Participant's accounts; provided that the Participant
must consent to a distribution prior to the date
specified below where the value of his account balances
exceeds $3,500. However, and notwithstanding anything
to the contrary herein contained, payment of a
Participant's benefits must commence no later than the
earliest of: (i) except to the extent that Section
1121(d)(4) of the Tax Reform Act of 1986 provides
otherwise, April 1 of the calendar year following the
calendar year in which the Participant attains age
seventy and one-half (70-1/2); (ii) if the Participant
so elects in writing with respect to Company Stock
acquired after 1986, one year after the latest of the
close of the Year in which the Participant terminates
employment due to attainment of normal retirement,
Disability or death or which is the fifth Year
following the Year in which the Participant otherwise
terminates employment; or (iii) the 60th day after the
12<PAGE>
latest of the close of the Year in which the
Participant attains age sixty-five (65), in which
occurs the date ten years after the date the
Participant first commenced Participation in the Plan,
or in which the Participant incurs a Severance from
Service. A benefit payment to a Participant prior to
his attainment of age 59-1/2 shall require the
Participant's approval, prior to which the Participant
shall have been advised by the Committee that an
additional income tax may be imposed equal to ten
percent (10%) of the portion of the amount so received
which is included in his gross income for the taxable
year of receipt unless, among others, (i) such
distribution is made on account of death or Disability,
(ii) such distribution is part of a scheduled series of
substantially equal periodic payments for the life of
the Participant (or the joint lives of the Participant
and his Beneficiary) or the life expectancy of the
Participant (or the joint life expectancies of the
Participant and his Beneficiary), (iii) such
distribution is used to pay medical expenses to the
extent deductible under Section 213 of the Code
(determined without regard to whether the Participant
itemizes deductions), (iv) such distribution is made to
an alternate payee pursuant to a "qualified domestic
relations order" described in Section 9.03 hereof, or
(v) such distribution is made to a Participant by
reason of "early retirement." For purposes of the
preceding sentence, a Participant who terminates
employment on or after his attainment of age 55 for
reasons other than death, Disability or normal
retirement shall be treated as having separated from
service by reason of "early retirement." Subject to
the provisions of paragraph (b) of this Section, the
Participant's benefits shall in all events be
distributed in a lump sum.
Distributions hereunder to Participants, Former
Participants or Beneficiaries may be in the form of
Company Stock or cash, as determined by the Committee;
provided, however, that except to the extent that a
distribution is attributable to that portion, if any,
of a Participant's account balances invested, pursuant
to Section 7.04 hereof, in the Diversified Fund
described in Section 7.05 hereof, any such distributee
shall have the right to demand that distribution be
made to him in the form of Company Stock and shall have
been given written notification of such right by the
Committee prior to the date of any cash distribution to
him; provided further, that fractional shares shall, in
all events, be paid in cash. In the event that the
Articles of Incorporation or bylaws of the Company are
amended to restrict the ownership of substantially all
outstanding shares of Company Stock to Employees and/or
to the Trust Fund, then distributions hereunder to
13<PAGE>
Participants, Former Participants and Beneficiaries
shall, in all events, be in the form of cash.
Unless the Participant elects otherwise, such
Participant's accounts consisting of Company Stock
acquired after 1986 shall be distributed in a form
providing no more than substantially equal periodic
payments (not less frequently than annually) over a
period not longer than the greater of (i) five (5)
years, or (ii) in the case of a Participant whose
accounts consisting of Company Stock acquired after
1986 exceed $500,000 (as automatically increased in
accordance with Treasury Regulations to reflect cost-
of-living adjustments), five (5) years, plus an
additional one (1) year (up to an additional five (5)
years) for each $100,000 (as automatically increased in
accordance with Treasury Regulations to reflect cost-
of-living adjustments) or fraction thereof by which the
balance exceeds $500,000 (as automatically increased in
accordance with Treasury Regulations to reflect cost-
of-living adjustments). For purposes of this Section
6.04, a Participant's accounts shall not include
Company Stock acquired with the proceeds of an Exempt
Loan until the last day of the Plan Year in which such
Exempt Loan is repaid in full."
10. Effective for distributions made from the Plan on or
after January 1, 1993, Section 6.04 of the Plan is amended by
adding the following new subsection (c) to the end thereof:
"(c) Direct Rollovers--Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a
distributee's election under this Section, a
distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an
eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee
in a direct rollover. For purposes of this Section
6.04(c), the following terms shall have the following
meaning.
(1) `Eligible rollover distribution' means any
distribution of all or any portion of the balance
to the credit of the distributee, except (i) a
distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
Beneficiary, or for a specified period of ten
years or more; (ii) a distribution to the extent
such distribution is required under Section
401(a)(9) of the Code; and (iii) the portion of
any distribution that is not includible in gross
income.
14<PAGE>
(2) `Eligible retirement plan' means an individual
retirement account described in Section 408(a) of
the Code, an individual retirement annuity
described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the
Code, or a qualified trust described in Section
401(a) of the Code, that will accept the
distributee's eligible rollover distribution;
provided, however, that in the case of an eligible
rollover distribution to the surviving spouse, an
eligible retirement plan includes only an
individual retirement account or individual
retirement annuity.
(3) `Distributee' means the Participant and, with
respect to the interest of such spouse or former
spouse, the Participant's surviving spouse and the
Participant's spouse or former spouse who is the
alternate payee under a qualified domestic
relations order, as defined in Section 414(p) of
the Code.
(4) `Direct rollover' is a payment by the Plan to the
eligible retirement plan specified by the
distributee."
11. Section 7.01 of the Plan is amended by adding the
following sentence to the end thereof:
"The earnings attributable to any amount to be returned
pursuant to this Section may not be distributed to the
Employer, but losses attributable thereto must reduce
the amount to be returned to the Employer."
12. Effective for stock acquired after 1986, Section
7.02(e) of the Plan is amended to be and read as follows:
"(e) If Company Stock is readily tradable on an established
securities market, the price to be paid by the Trustee
for such Stock (whether purchased from the Company,
from a shareholder of the Company, or on the open
market) shall be equal to its public trading price as
determined at the time of each such purchase. If
Company Stock is not or ceases to be readily tradable
on an established securities market, the price to be
paid by the Trustee for Company Stock shall be
determ
Exhibit 5(a)
------------
214/740-8495
February 10, 1995
Atmos Energy Corporation
5430 LBJ Freeway
1800 Three Lincoln Center
Dallas, TX 75240-0205
Re: Registration Statement on Form S-8, Atmos Energy
Corporation Employee Stock Ownership Plan and Trust
Gentlemen:
Pursuant to your request, we have examined the Atmos Energy
Corporation Employee Stock Ownership Plan and Trust (the "Plan"),
which was approved by the Board of Directors of Atmos Energy
Corporation (the "Company") to be effective as of
October 1, 1987. We have also examined the Articles of
Incorporation as amended, of the Company, and corporate
proceedings of the Company as reflected in minutes of the Board
of Directors and in minutes of meetings of shareholders of the
Company.
Based upon our examination of the papers and documents
referred to in the preceding paragraph, together with such other
papers and documents and the investigation of such matters of law
as we have deemed relevant or necessary in rendering this
opinion, we hereby advise you that we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Texas.
The Company is authorized by its Articles of Incorporation, as
amended, to issue 75,000,000 shares of Common Stock having no par
value, of which 15,366,864 shares were outstanding on January 31,
1995. All of the outstanding shares were duly and validly issued
and are fully paid and non-assessable.
2. The Plan has been duly adopted by the Board of
Directors of the Company.
3. Shares of Common Stock of the Company issued pursuant
to the Plan will be, when issued by the Company in accordance
with the terms of the Plan, fully paid and non-accessible,
whether such shares shall theretofore have been authorized but
unissued shares of Common Stock of the Company or shares
reacquired by the Company and held by it as treasury shares.<PAGE>
Atmos Energy Corporation
February 10, 1995
Page 2
4. We consent to the use of this opinion in connection
with the Registration Statement on Form S-8 and the Prospectus
constituting a part thereof filed by the Company with the
Securities and Exchange Commission for the registration under the
Securities Act of 1933, as amended, of 1,000,000 shares of the
Common Stock of the Company, and such additional number of shares
as may be issued as a result of the anti-dilution provisions
contained in the Plan.
Very truly yours,
LOCKE PURNELL RAIN HARRELL
(A Professional Corporation)
By: /s/ Dan Busbee
--------------------------------
Dan Busbee<PAGE>
Exhibit 5(b)
------------
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
1100 COMMERCE STREET
DALLAS, TX 75242
Date: April 9, 1994 Employer Identification Number:
75-1743247
File Folder Number:
750019431
ATMOS ENERGY CORPORATION Person to Contact:
5430 LBJ FWY JILL RUTHERFORD
1800 THREE LINCOLN Contact Telephone Number:
DALLAS, TX 75240 (214) 767-6023
Plan Name:
EMPLOYEE STOCK OWNERSHIP PLAN
AND TRUST FOR EMPLOYEES OF
ATMOS
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan,
identified above, based on the information supplied. Please keep
this letter in your permanent records.
Continued qualification of the plan under its present form
will depend on its effect in operation. (See section 1.401-
1(b)(3) of the Income Tax Regulations.) We will review the
status of the plan in operation periodically.
The enclosed document explains the significance of this
favorable determination letter, points out some features that may
affect the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It
is very important that you read the publication.
This letter relates only to the status of your plan under
the Internal Revenue Code. It is not a determination regarding
the effect of other federal or local statutes.
This determination is subject to your adoption of the
proposed amendments submitted in your letter dated 04/04/94. The
proposed amendments should be adopted on or before the date
prescribed by the regulations under Code section 401(b).<PAGE>
ATMOS ENERGY CORPORATION
This letter is based upon the certification and demonstrations
you submitted pursuant to Revenue Procedure 91-66. Therefore,
the certification and demonstrations are considered an integral
part of this letter. Accordingly, YOU MUST KEEP A COPY OF THESE
DOCUMENTS AS A PERMANENT RECORD OR YOU WILL NOT BE ABLE TO RELY
ON THE ISSUES DESCRIBED IN REVENUE PROCEDURE 91-66.
The information on the enclosed addendum is an integral part
of this determination. Please be sure to read and keep it with
this letter.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact
the person whose name and telephone number are shown above.
Sincerely yours,
/s/Bobby E. Scott
Bobby E. Scott
District Director
Enclosures:
Publication 794
Addendum
- 2 -<PAGE>
ATMOS ENERGY CORPORATION
This determination letter expresses the opinion that the plan
meets the requirements of Internal Revenue Code Section
4975(e)(7) regarding Employee Stock Ownership Plans.
This determination letter applies to amendment #5 adopted
02/14/92, and the working copy of the plan submitted on 4/4/94,
which incorporated the restatement adopted 11/21/91, amendment #1
adopted 05/14/92, amendment #2 adopted 05/10/93 and the proposed
amendment #3 received 4/4/94.
- 3 -<PAGE>
Exhibit 15
----------
February 14, 1995
Shareholders and Board of Directors
Atmos Energy Corporation
We are aware of the incorporation by reference in the
Registration Statement (Form S-8) of Atmos Energy Corporation for
the registration of 1,000,000 shares of its common stock of our
report dated February 1, 1995 relating to the unaudited condensed
consolidated interim financial statements of Atmos Energy
Corporation which are included in its Form 10-Q for the quarter
ended December 31, 1994.
Pursuant to Rule 436(c) of the Securities Act of 1933 our report
is not a part of the registration statement prepared or certified
by accountants within the meaning of Section 7 and 11 of the
Securities Act of 1933.
ERNST & YOUNG LLP<PAGE>
Exhibit 23(b)
-------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8), pertaining to the Employee Stock Ownership
Plan and Trust for Employees of Atmos Energy Corporation, of our
report dated November 9, 1994, with respect to the consolidated
financial statements of Atmos Energy Corporation for the year
ended September 30, 1994, included in Atmos Energy Corporation's
Form 10-K, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
February 14, 1995<PAGE>
