Registration No. 33 -_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
____________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________________
OLD REPUBLIC INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
Delware
(State or other jurisdiction of incorporation or organization)
36-2678171
(I.R.S. Employer Identification No.)
307 North Michigan Avenue
Chicago, Illinois 60601
(Address of Principal Executive Offices)
GREAT WEST CASUALTY COMPANY PROFIT SHARING PLAN
(Full title of the plan)
_______________________________________
A. C. Zucaro
Old Republic International Corporation
307 North Michigan Avenue
Chicago, Illinois 60601
(Name and address of agent for service)
(312) 346-8100
(Telephone number, including area code, of agent for service)
_______________________________________
copy to:
Spencer LeRoy III
Senior Vice President, Secretary and General Counsel
Old Republic International Corporation
307 North Michigan Avenue
Chicago, Illinois 60601
<PAGE>
An Exhibit Index Appears on Page 8
CALCULATION OF REGISTRATION FEE
__________________________________________________________________
Title of Amount Proposed Proposed Amount
Securities to be Maximum Maximum of
to be Registered Offering Aggregate Registration
Registered (1) Price Per Offering Fee
Share (2) Price (2)
__________________________________________________________________
Common 23,983.358 $22.4375 $538,126.60 $185.56
Stock, par
value $1.00
per share
_________________________________________________________________
(1) Pursuant to Rule 416 under the Securities Act of 1933, as
amended, the number of shares of the issuer's Common Stock
registered hereunder will be adjusted in the event of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the registration
fee based upon the average of the high and low prices of the
Common Stock as reported by the New York Stock Exchange on
January 24, 1994.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Old Republic International
Corporation (the "Company") or Great West Casualty Company Profit Sharing
Plan (the "Plan") with the Securities and Exchange Commission are
incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1992, as amended under cover of three Forms 8 filed April 30,
1993 (including those portions of the Company's definitive proxy statement
for the Annual Meeting of Shareholders held on May 14, 1993 which are
incorporated by reference in such Annual Report on Form 10-K).
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1993, June 30, 1993 and September 30, 1993.
3. The Plan's Annual Report on Form 11-K for the year ended December
31, 1992.
4. The description of the Company's capital stock contained in the
Company's Registration Statement on Form 8-A filed on August 29, 1990,
including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company or the Plan pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
after the effective date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock and participating interests
offered under the Plan has been passed upon by Spencer LeRoy III, Senior
Vice President, Secretary and General Counsel of the Company. As of
December 31, 1993, Mr. LeRoy beneficially owned 2,538 shares of Common
Stock of the Company and had 7,500 shares exercisable within 60 days under
options previously granted to him by the Company.
<PAGE>
Item. 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law contains
provisions under which corporations organized thereunder are permitted or
required in certain circumstances to indemnify directors, officers and
others against certain liabilities and permitted to maintain insurance to
cover such liabilities and liabilities against which such corporations may
not directly indemnify such persons. Article Thirteenth of the Restated
Certificate of Incorporation of the registrant grants indemnification to
such persons to the extent permitted by Delaware law and authorizes the
purchase of such insurance. Pursuant to the foregoing provisions, the
registrant maintains policies of insurance for its directors and certain of
its officers.
Article Seventeenth of the Restated Certificate of Incorporation of
the registrant eliminates the liability of the registrant's directors for
monetary damages for breach of fiduciary duty as a director except where a
director breaches his duty of loyalty to the registrant and its
stockholders, fails to act in good faith or engages in intentional
misconduct or a knowing violation of law, authorizes the payment of a
dividend or stock repurchase which is illegal under Section 174 of the
Delaware General Corporation Law or obtains an improper personal benefit.
In addition, the registrant has entered or will enter into an
Indemnity Agreement with each of its directors and certain officers. Under
the provisions of the Indemnity Agreement, the registrant agrees with some
limitations, to indemnify directors and officers against all expenses of
investigations, judicial or administrative proceedings or appeals, whether
threatened, pending or completed, amounts paid in settlement, attorneys'
fees and, in third party proceedings, judgments and fines, actually and
reasonably incurred in the defense or settlement of a civil, criminal or
administrative proceeding if the officer or director acted in good faith in
a manner which he believed to be in, or not opposed to, the best interests
of the registrant.
Item 8. EXHIBITS
4 Instruments defining the rights of security holders, including
indentures.
(A) *Certificates of Designations, as amended, with respect to Series
A Preferred Stock, Series B, Series C, Series D Cumulative
Convertible Preferred Stock, Series E Convertible Preferred
Stock, Series F Convertible, Exchangeable Preferred Stock, Series
G Convertible Preferred Stock and Series H Cumulative Preferred
Stock. (Exhibit 4A to Registrant's Annual Report on Form 10-K
for 1991).
<PAGE>
(B) *Form of Indenture dated June 1, 1985 between Old Republic
International Corporation and Morgan Guaranty Trust Company of
New York, as Trustee, regarding the 11-1/2% Sinking Fund
Debentures due 2015 (Exhibit 4.3 to Form S-3 Registration
Statement No. 2-98167).
(C) *Form of Indenture dated as of January 15, 1988 between Old
Republic International Corporation and Morgan Guaranty Trust
Company of New York, as Trustee, regarding the 10% Sinking Fund
Debentures due 2018 (Exhibit 4D to Registrant's Annual Report on
Form 10-K for 1987).
(D) *Agreement to furnish certain long term debt instruments to the
Securities & Exchange Commission upon request (Exhibit 4(D) to
Form 8 dated August 28, 1987).
(E) *Rights Agreement dated as of June 26, 1987 between Old Republic
International Corporation and Morgan Shareholder Services Trust
Company (Exhibit 4 to Registrant's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1987).
(F) *Form of Indenture dated as of December 1, 1988 between Old
Republic International Corporation and Wilmington Trust Company,
as Trustee, regarding the 8% Convertible Subordinated Debentures
due June 1, 2015 (Exhibit 4(F) to Registrant's Annual Report on
Form 10-K for 1988).
(G) *Form of Indenture dated as of August 15, 1992 between Old
Republic International Corporation and Wilmington Trust Company,
as Trustee, regarding the 5-3/4% Convertible Subordinated
Debentures due August 15, 2002 (Exhibit 4(G) to Registrant's
Annual Report on Form 10-K for 1992).
5(a) Opinion of Spencer LeRoy III as to the validity of the securities
being registered.
5(b) Internal Revenue Service determination letter dated May 3, 1989.
10 Great West Casualty Company Profit Sharing Plan.
23(a) Consent of Coopers & Lybrand, independent certified public
accountants.
23(b) Consent of Spencer LeRoy III (included as part of Exhibit 5).
<PAGE>
24 *Powers of Attorney except for Mr. Popp and Mr. White (Exhibit 25
to Registrant's Annual Report on Form 10-K for 1992).
24 Powers of Attorney for Mr. Popp and Mr. White.
28 *Consolidated Schedule P (Exhibit 29 to Registrant's Annual
Report on Form 10-K for 1992).
____________
* Exhibit incorporated herein by reference.
The Registrant has submitted the Plan to the Internal Revenue
Service ("IRS") and undertakes to submit any amendment thereto to
the IRS in a timely manner and has made or will make all changes
required by the IRS in order to qualify the Plan.
Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
<PAGE>
Provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the Securities Exchange Act of 1934) that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the provisions described in
Item 6 above, or otherwise, the Company has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Chicago and State of Illinois on
the 13th day of January, 1994.
OLD REPUBLIC INTERNATIONAL CORPORATION
By_____________________________________
A. C. Zucaro, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 13th day of January, 1994.
Signature Title
______________________________ Chairman of the Board,
A. C. Zucaro President, Chief Executive
Officer and Director
______________________________ Chief Financial Officer and
Paul D. Adams Principal Accounting Officer
Anthony F. Colao* Director and Senior Vice
President
John C. Collopy* Director and Chairman of
Founders Title Group, Inc.
Jimmy A. Dew* Director and Executive Vice
President of Republic Mortgage
Insurance Company
Darrel M. Holt* Director
<PAGE>
Kurt W. Kreyling* Director
Peter Lardner* Director and President of
Bituminous Casualty Corp.
Wilbur S. Legg* Director
John W. Popp* Director
William A. Simpson* Director and President of
Republic Mortgage Insurance
Company
Arnold L. Steiner* Director
William R. Stover* Director
David Sursa* Director
William White* Director
*By:____________________________________
A. C. Zucaro, Attorney-In-Fact
Pursuant to a power of attorney
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of South Sioux City,
State of Nebraska on January 13, 1994.
Great West Casualty Company Profit Sharing Plan
By:_________________________________________
Michael P. Krehbiel
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description Page
4 Instruments defining the rights of
security holders, including
indentures.
(A) *Certificates of Designations, as amended,
with respect to Series A Preferred Stock,
Series B, Series C, Series D Cumulative
Convertible Preferred Stock, Series E
Convertible Preferred Stock, Series F
Convertible, Exchangeable Preferred Stock,
Series G Convertible Preferred Stock and
Series H Cumulative Preferred Stock
(Exhibit 4A to Registrant's Annual Report
on Form 10-K for 1991).
(B) *Form of Indenture dated June 1, 1985 between
Old Republic International Corporation and
Morgan Guaranty Trust Company of New York,
as Trustee, regarding the 11-1/2% Sinking
Fund Debentures due 2015 (Exhibit 4.3 to
Form S-3 Registration Statement No. 2-98167).
(C) *Form of Indenture dated as of January 15,
1988 between Old Republic International
Corporation and Morgan Guaranty Trust Company
of New York, as Trustee, regarding the 10%
Sinking Fund Debentures due 2018 (Exhibit 4D
to Registrant's Annual Report on Form 10-K
for 1987).
(D) *Agreement to furnish certain long term debt
instruments to the Securities & Exchange
Commission upon request (Exhibit 4(D) to
Form 8 dated August 28, 1987).
(E) *Rights Agreement dated as of June 26,
1987 between Old Republic International
Corporation and Morgan Shareholder
Services Trust Company
(Exhibit 4 to Registrant's Quarterly Report
on Form 10-Q for the quarter ended September
30, 1987).
<PAGE>
EXHIBIT LIST
Exhibit No. Description
(F) *Form of Indenture dated as of December
1, 1988 between Old Republic International
Corporation and Wilmington Trust Company,
as Trustee, regarding the 8% Convertible
Subordinated Debentures due June 1, 2015
(Exhibit 4(F) to Registrant's Annual Report
on Form 10-K for 1988).
(G) *Form of Indenture dated as of August 15, 1992 between Old
Republic International Corporation and Wilmington Trust
Company, as Trustee, regarding the 5-3/4% Convertible
Subordinated Debentures due August 15, 2002 (Exhibit 4(G) to
Registrant's Annual Report on Form 10-K for 1992).
5(a) Opinion of Spencer LeRoy III as to the validity of the
securities being registered.
5(b) Internal Revenue Service determination letter dated May 3,
1989.
10 Great West Casualty Company Profit Sharing Plan
23(a) Consent of Coopers & Lybrand, independent certified public
accountants.
23(b) Consent of Spencer LeRoy III (included as part of Exhibit
5).
24(a) *Powers of Attorney except for Mr. Popp and Mr. White
(Exhibit 25 to Registrant's Annual Report on Form 10-K for
1992).
24(b) Powers of Attorney for Mr. Popp and Mr. White.
28 *Consolidated Schedule P (Exhibit 29 to Registrant's Annual
Report on Form 10-K for 1992).
___________
* Exhibit incorporated herein by reference.
<PAGE>
Exhibit 5(a)
OLD REPUBLIC International Corporation
307 North Michigan Avenuye
Chicago, Illinois
January 13, 1994
Old Republic International Corporation
307 North Michigan Avenue
Chicago, Illinois 60601
RE: Registration Statement on Form S-8
Gentlemen:
I am Senior Vice President, Secretary and General Counsel of Old
Republic International Corporation, a Delaware corporation (the "Company").
This opinion is rendered in connection with the Registration Statement on
Form S-8 filed with the Securities and Exchange Commission (the
"Commission") relating to the registration of 23,983.358 shares of the
Company's Common Stock, $1.00 par value per share (the "Shares"), and
participating interests ("Participations") pursuant to the terms of the
Great West Casualty Company Profit Sharing Plan (the "Plan"). In this
connection, I have examined originals or copies identified to my
satisfaction of such documents, corporate and other records, certificates
and other papers as I deemed necessary to examine for purposes of this
opinion, including but not limited to the Restated Certificate of
Incorporation and By-laws of the Company, as amended, resolutions of the
board of directors of the Company, and the Plan.
It is my opinion that the Shares and Participations, when issued
pursuant to the Plan will be legally issued, and that the Shares, when
issued pursuant to the Plan, will be fully paid and non-assessable.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to my name under "Interests of
Named Experts and Counsel" in the Registration Statement and under "Legal
Opinions" in the related Prospectus.
Very truly yours,
Spencer LeRoy III
Senior Vice President,
Secretary and General Counsel
WJD:bm
<PAGE>
EXHIBIT 5(B)
Internal Revenue Service
District Attorney
P.O. BOX A-3617 DPN20-6
CHICAGO, IL 60690
Employer Identification Number:
Date: MAY 03, 1989 47-6024508
File Folder Number
470000079
GREAT WEST CSASUALTY COMPANY AND
OTHER PLAN EMPLOYERS Person to Contact:
C/O JP MULHERN TECHNICAL SCREENER
MCDERMOTT WILL & EMERY Contact Telephone Number:
111 WEST MONROE STREET (312) 435-1040
CHICAGO, IL 60603 Plan Name:
PROFIT SHARING PLAN
Plan Number: 001
Dear Applicant:
Based on the information supplied, we have made a favorable
determination on your application identified above. Please keep this
letter in your permanent records.
Continued qualification of the plan will depend on its effect in
operation under its present form. (See section 1.401-l(b)(3) of the Income
Tax Regulations.) The status of the plan in operation will be reviewed
periodically.
The enclosed document describes the impact of Notice 86-13 and some
events that could after you receive this letter that would automatically
nullify it without specific notice from us. The document also explains how
operation of the plan may affect a favorable determination letter, and
contains information about filing requirements.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other
Federal or local statues.
This determination letter is applicable for the amendment(s) adopted
on January 21, 1988.
The form of the plan satisfies those requirements of the Tax Reform
Act of 1986 and the other laws, regulations, revenue rulings, and notices
listed in section 4.01 of Rev. Proc. 88-42, 1988-85 I.R.B. 27 that are
effective for plan years beginning before 1989.
The information on the enclosed addendum is an integral part of this
defemination. 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.
<PAGE>
GREAT WEST CSASUALTY COMPANY AND
If you have any questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ R. S. Wintrode, Jr.
R. S. Wintrode, Jr.
District Director
Enclosures:
Publication 794
PWBA 515
Addendum
<PAGE>
GREAT WEST CASUALTY COMPANY PROFIT SHARING PLAN
(As Amended and Restated Effective January 1, 1989)
<PAGE>
TABLE OF CONTENTS
SECTION I INTRODUCTION
1.1 Purpose
1.2 Effective Date, Plan Year
1.3 Employers
1.4 Administration of the Plan
1.5 Funding of Benefits
1.6 Plan Supplements
SECTION II ELIGIBILITY
2.1 Participation
2.2 Notice of Participation
2.3 Leave of Absence
2.4 Controlled Group Member
2.5 Leased Employees
SECTION III PARTICIPANT AFTER-TAX CONTRIBUTIONS
3.1 General.
3.2 Amount of Participant After-Tax Contributions
3.3 Deduction or Payment of Participant After-Tax Contributions
3.4 Variation of Participant After-Tax Contributions
3.5 Suspension and Resumption of Participant After-Tax
Contributions
3.6 Earnings
3.7 ACP Discrimination Test
3.8 Correction of Excess Aggregate Contributions - ACP Test
SECTION IV PARTICIPANT PRE-TAX CONTRIBUTIONS
4.1 Election of Participant
4.2 Changes in Pre-Tax Contributions
4.3 Limitations on Contributions
4.4 Excess Deferrals
4.5 ADP Discrimination Test
4.6 Correction of Excess Contributions - ADP Test
4.7 Multiple Use Test - ACP/ADP Test
SECTION V EMPLOYER CONTRIBUTIONS
5.1 Pre-Tax Contributions
5.2 Matching Contributions
5.3 Discretionary Employer Contributions
5.4 Payment of Employer Contributions
5.5 Verification of Employer Contributions
5.6 No Interest in Employers
SECTION VI LIMITATIONS ON ALLOCATIONS
6.1 General
6.2 Correction
6.3 Defined Benefit Plans
SECTION VII PERIOD OF PARTICIPATION
7.1 Settlement Date
7.2 Restricted Participation
SECTION VIII PROFIT SHARING PLAN COMMITTEE
<PAGE>
8.1 Appointment
8.2 Secretary
8.3 Duties
8.4 Decisions
8.5 Indemnification
8.6 Compensation
8.7 Counsel and Agents
8.8 Records
8.9 Successor
8.10 Information to Be Furnished to Committee
8.11 Funding Policy
8.12 Resignations
8.13 Replacements
SECTION IX INVESTMENTS AND ACCOUNTING
9.1 Participants' Accounts
9.2 Investment Funds
9.3 Elections by Participants
9.4 Transfers Between Funds
9.5 Accounting Dates
9.6 Adjustment of Participant's Accounts
9.7 Crediting of Participant and Matching Contributions.
9.8 Allocation and Crediting of Discretionary Employee
Contributions and Remainders
9.9 Dividends and Other Allocations
9.10 Voting of Old Republic Stock; Tender Offers
9.11 Charging Distributions
9.12 Statement of Account
SECTION X PAYMENT OF ACCOUNT BALANCES
10.1 Retirement or Death
10.2 Resignation or Dismissal
10.3 Remainders
10.4 Manner of Distribution
10.5 Commencement of Distributions
10.6 Joint and Survivor Annuity
10.7 Designation of Beneficiaries
10.8 Missing Participants or Beneficiaries
10.9 Facility of Payment
SECTION XI WITHDRAWALS
11.1 General
11.2 Withdrawal of Participant After-Tax Contributions
11.3 Withdrawal of Participant Pre-Tax Contributions
11.4 Withdrawals of Other Contributions
11.5 Accounting.
11.6 Procedures
SECTION XII LOANS
12.1 Availability
12.2 Limitations.
12.3 Note and Terms
12.4 Permissible Conditions
12.5 Accounting
12.6 Procedures
SECTION XIII REEMPLOYMENT
<PAGE>
13.1 Resumption of Participation
13.2 Reinstatement of Remainder
SECTION XIV AMENDMENT AND TERMINATION
14.1 Amendment
14.2 Termination
14.3 Vesting and Distribution on Termination
14.4 Notice of Amendment or Termination
14.5 Plan Merger, Consolidation, Etc.
SECTION XV SPECIAL RULES FOR TOP-HEAVY PLANS
15.1 Purpose and Effect
15.2 Top-Heavy Plan
15.3 Key Employees
15.4 Minimum Vesting
15.5 Minimum Employer Contribution
15.6 Aggregation of Plans
15.7 No Duplication of Benefits
15.8 Adjustment of Combined Benefit Limitations
SECTION XVI CLAIMS PROCEDURES
16.1 Claims Procedure
16.2 Review Procedure
SECTION XVII TRANSFER FROM BITCO SAVINGS PLAN
17.1 Introduction; Purpose
17.2 Transfer
17.3 Transfer of Assets
SECTION XVIII GENERAL PROVISIONS
18.1 Information Required by Administrator
18.2 Uniform Rules
18.3 Review of Benefit Determinations
18.4 Administrator's Decision Final
18.5 Additional Employers
18.6 Action by Employers
18.7 Waiver of Notice
18.8 Gender and Number
18.9 Controlling Law
18.10 Employment Rights
18.11 Litigation by Participants
18.12 Interests Not Transferable
18.13 Absence of Guaranty
18.14 Evidence
<PAGE>
GREAT WEST CASUALTY COMPANY PROFIT SHARING PLAN
(As Amended and Restated Effective January 1, 1989)
WHEREAS, Great West Casualty Company, a corporation organized under
the laws of the State of Nebraska (hereinafter the "company") heretofore
had established and maintained a qualified retirement plan to provide
retirement benefits for certain of its employees known as the Great West
Casualty Company Profit Sharing Plan (the "plan");
WHEREAS, the company deems it desirable to amend and restate the plan
to incorporate changes required by the Tax Reform Act of 1986, Technical
and Miscellaneous Revenue Act of 1988 and regulations issued by the
Internal Revenue Service.
NOW THEREFORE, the company hereby restates the Great West Casualty
Company Profit Sharing Plan to provide as follows effective January 1,
1989; provided, however, that benefits for an employee that terminated
service or retired prior the effective date of this restatement shall be
governed under the terms of the plan on the date of such termination or
retirement.
SECTION I. INTRODUCTION
A. Purpose.
The plan is maintained by the company to allow eligible employees to
elect to defer a portion of their compensation pursuant to section 401(k)
of the Internal Revenue Code and to enable them to provide for their future
security by accumulating funds and sharing in the profits of the employers.
B. Effective Date, Plan Year.
The plan was established as of January 1, 1972 and was known as First
Greatwest Corporation Employees' Profit Sharing Plan and Trust. The plan
was subsequently amended and restated effective January 1, 1976 and again
August 1, 1982. The effective date of the amendment and restatement of the
plan as set forth herein is January 1, 1989. A "plan year" is the calendar
year.
C. Employers.
Any subsidiary or affiliate of the company may adopt the plan with the
company's consent, as described in subsection 18.5. A "subsidiary" of the
company is any corporation more than 50 percent of the voting stock which
is owned, directly or indirectly, by the company. An "affiliate" of the
company is any corporation more than 50 percent of the voting stock of
which is owned, directly or indirectly, by the owner or owners of more than
50 percent of the voting stock of the company. The company and any other
subsidiaries or affiliates of company which adopt the plan are referred to
collectively as the "employers" and sometimes individually as an
"employer." Effective as of January
1, 1994, the employers are:
<PAGE>
Central Data Services, Inc.
Great West Casualty Company
Joe Morten & Son, Inc.
Midwest Insurance, Inc.
Motor Ways Inc.
Truckmen's Underwriters Agency, Inc.
D. Administration of the Plan.
The plan is administered by the administrator. Prior to January 1,
1994, the administrator shall be the individual trustees (the "trustees")
appointed by the company. Effective January 1, 1994, the administrator
shall be the profit sharing plan committee appointed pursuant to Section
VIII hereof. The administrator from time to time may adopt such rules and
regulations as may be necessary or desirable for the proper and efficient
administration of the plan and as are consistent with the terms of the
plan.
E. Funding of Benefits.
Funds contributed under the plan are held and invested, until
distribution, by the trustees in accordance with the terms of a trust
agreement between the company and the trustees which implements and forms a
part of the plan. Assets held by the trustees are to be invested under a
group annuity contract issued by Connecticut General Life Insurance Company
(the "insurance company"). Copies of the plan and trust agreement, and any
amendments thereto, will be on file with the trustees where they may be
examined by any participant or other person entitled to benefits under the
plan. The provisions of and benefits under the plan are subject to the
terms and provisions of the trust agreement.
F. Plan Supplements.
The provisions of the plan may be modified by supplements to the plan.
The terms and provisions of each supplement are a part of the plan and
supersede the provisions of the plan to the extent necessary to eliminate
inconsistencies between the plan and the supplement.
SECTION I. ELIGIBILITY
A. Participation.
1. Each employee of an employer who is a participant in the plan
immediately preceding December 31, 1989 will continue as a participant on
and after that date.
2. Beginning January 1, 1989, each other employee of an employer
will become a participant in the plan on the first June 30 or December 31
on which he meets both of the following requirements:
a. he has attained age 21 years; and
b. he has completed 1,000 hours of service during the 12-month
period commencing on his date of hire or during a plan year.
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An "hour of service" means each hour for which an employee is directly or
indirectly paid or entitled to payment by an employer for the performance
of duties and for reasons other than the performance of duties including
each hour for which back pay, irrespective of mitigation of damages, has
been either awarded or agreed to by an employer or controlled group member,
determined and credited in accordance with Department of Labor Reg. Section
2530.200b-2(b) and (c). Service with an entity that is a controlled group
member (but only service with such entity after it became a controlled
group member) shall be treated as service with an employer for all purposes
under the plan except subsection 9.8(b). The administrator may in its
discretion give credit under the plan for service with an entity prior to
the date on which it became a controlled group member provided that such
prior service credit does not violate section 401(a)(4) of the Code.
3. Beginning January 1, 1993, each other employee of an employer
will become a participant in the plan on the December 31 following the
later of the first day he completes an hour of service (his date of hire)
or his 21st birthday.
B. Notice of Participation.
The administrator will notify each employee of the date on which he
becomes eligible for plan participation. An eligible employee may become a
participant in the plan by signing and filing an enrollment application and
a salary reduction authorization with the administrator at such time and in
such form as the administrator determine.
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C. Leave of Absence.
A leave of absence will not interrupt continuity of service or
participation in the plan. A "leave of absence" for plan purposes means an
absence from work which is not treated by the employers as a termination of
employment or which is required by law to be treated as a leave of absence.
Leaves of absence will be granted under rules established by the employers
applied uniformly to all employees similarly situated. In the case of a
maternity or paternity absence (as defined below) which commences on or
after January 1, 1985, an employee shall be credited, for the plan year in
which he otherwise would have incurred a one-year break in service as
defined in subsection 10.3 (and solely for purposes of determining whether
such a break in service has occurred), with the hours of service which
normally would have been credited to him but for such absence (or, if the
administrator is unable to determine the hours which would have been so
credited, 8 hours for each work day of such absence), but in no event more
than 501 hours for any one absence. A "maternity or paternity absence"
means an employee's absence from work because of the pregnancy of the
employee or birth of a child of the employee, the placement of a child with
the employee in connection with the adoption of such child by the employee,
or for purposes of caring for the child immediately following such birth or
placement. The administrator may require the employee to furnish such
information as the administrator considers necessary to establish that the
employee's absence was for one of the reasons specified above.
D. Controlled Group Member.
A "controlled group member" means:
1. any corporation which is not an employer but is a member
of a controlled group of corporations (within the
meaning of section 1563(a) of the Internal Revenue Code
(the "Code"), determined without regard to sections
1563(a)(4) and 1563(e)(3)(C) thereof) which contains an
employer;
2. any trade or business (whether or not incorporated)
which is under common control with an employer
(within the meaning of section 414(c) of the Code);
3. any organization (whether or not incorporated) which is part of
an affiliated service group with an employer (within the
meaning of section 414(m) of the Code); or
4. any other entity required to be aggregated with an employer
pursuant to Code section 414(o).
However, "controlled group member" shall not include any corporation or
unincorporated trade or business prior to the date on which such
corporation, trade or business satisfies the affiliation or control tests
of (a), (b), (c), or (d) above.
E. Leased Employees.
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Notwithstanding anything herein to the contrary, neither leased
employees nor temporary employees (as defined below) shall be eligible to
participate in the plan. A "leased employee" means any person who is not
an employee of the employer, but who has provided services to the employer
of a type which have historically (within the business field of the
employer) been provided by employees, on a substantially full-time basis
for a period of at least one year, pursuant to an agreement between the
employer and a leasing organization. The period during which a leased
employee performs services for the employer shall be taken into account for
purposes of subsections 2.1 and 10.2 of the plan; unless (i) such leased
employee is a participant in a money purchase pension plan maintained by
the leasing organization that provides a non-integrated employer
contribution rate of at least 10 percent of compensation, immediate
participation for all employees (except for those individuals who perform
substantially all of their services for the leasing organization or whose
compensation is less than $1,000 in each plan year during the 4-year period
ending with the plan year) and full and immediate vesting, and (ii) leased
employees do not constitute more than 20 percent of the company's nonhighly
compensated workforce. A temporary employee is any employee hired by an
employer who is expected to be released upon a certain date or upon
completion of certain specified pre-determined conditions of employment,
and who is classified on the records of the employer as a temporary
employee.
SECTION II. PARTICIPANT AFTER-TAX CONTRIBUTIONS
A. General.
A participant may, but is not required to, make after-tax
contributions to this plan on the terms stated below subject to any
limitations contained in the plan. Such contributions shall be called
"participant after-tax contributions".
B. Amount of Participant After-Tax Contributions.
(a) Subject to limitations of subsections 3.7, 4.5 and Section VII, a
participant may elect to make participant after-tax contributions under the
plan to be credited to his after-tax contributions account for any plan
year, beginning with the plan year in which he becomes a participant, in an
amount not more than ten percent of his earnings (as defined in subsection
3.6) for that year.
(b) A participant making participant after-tax contributions also may
elect to make additional participant after-tax contributions in excess of
those permitted under the preceding sentence, but only to the extent that
the aggregate amount of participant after-tax contributions made by him
since he became a participant in the plan does not exceed ten percent of
his aggregate earnings for plan years in which he has been a participant in
the plan.
(c) Each such election by a participant under this subsection must be
in writing and filed with his employer at such time and in such form as the
employer determines.
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C. Deduction or Payment of Participant After-Tax Contributions.
Participant after-tax contributions may be made by lump sum payment at
any time during the plan year; provided, however, that any such lump sum
payment after December 31, 1993, shall not be less than $1,000.
Participant after-tax contributions also may be made by regular payroll
deductions (in an amount not less than two percent of earnings); provided,
however, that no such contributions can be made by payroll deduction after
December 31, 1993. A participant's participant after-tax contributions
made by payroll deduction will be paid to the trustee within thirty days
after the end of the month in which the deductions were made.
D. Variation of Participant After-Tax Contributions.
A participant may elect during each plan year, as of the election date
specified by the administrator, to change his contribution rate for future
participant after-tax contributions within the limits specified in
subsection 3.2 above by filing a written request to do so with his employer
at least fifteen days in advance of the date on which the election is to
take effect.
E. Suspension and Resumption of Participant After-Tax Contributions.
A participant may elect at any time to suspend his participant after-
tax contributions made by payroll deduction by filing a written request to
do so with his employer at least fifteen days in advance of the date on
which the election is to take effect. If a participant shall become absent
from employment on account of a leave of absence, his participant after-tax
contributions shall be suspended effective as of the date payment of his
earnings ceases and until payment of his earnings is resumed. A
participant who has elected to suspend contributions pursuant to this
subsection may subsequently elect (but not sooner than three months after
the date such contributions were last suspended) to resume payroll
deductions of participant after-tax contributions by filing a written
request to do so with his employer at least fifteen days in advance of the
date on which the election is to take effect.
F. Earnings.
A participant's "earnings" for any year shall mean the total salary,
overtime pay, and cash bonuses that are paid to him by an employer for
services rendered by him to the employer and subject to tax under section
3101(a) of the Code (but without the dollar limitation of section
3121(a)(1) of the Code) plus contributions made on behalf of the
participant pursuant to the participant's salary reduction agreement under
any plan sponsored by an employer which plan meets the requirements of
either sections 401(a) and 401(k) of the Code or section 125 of the Code.
The earnings of a employee for any plan year beginning on or after
January 1, 1989 for determining benefits under the plan shall not exceed
$200,000 ($150,000 for plan years beginning after 1993), as adjusted by the
Secretary of Treasury to take into account cost-of-living increases under
Code sections 401(a)(17) and 415(d). In determining the earnings of an
employee for purposes of this limitation, the rules of Code section
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414(q)(6) shall apply, except in applying such rules, the term "family"
shall include only the spouse of the participant and any lineal descendants
of the participant who have not attained age 19 before the close of the
year. If, as a result of the application of such rules the adjusted dollar
limitation is exceeded, then the limitation shall be prorated among the
affected individuals in proportion to each such individual's earnings
determined under this subsection 3.6 prior to the application of this
limitation.
G. ACP Discrimination Test.
Pre-tax contributions to this plan for any plan year shall not exceed
the maximum amount permitted under Code section 401(m)(2) and Treasury
Regulation 1.401(m)-1(b)(2) of the regulations thereunder. These
provisions are incorporated herein by reference and generally require that:
1. the ACP for eligible highly compensated employees not exceed
that of all other eligible employees by more than two
percentage points, and that the ACP for eligible highly
compensated employees be not more than that of all other
eligible employees multiplied by 2.0; or
2. the ACP of eligible highly compensated employees not exceed
that of the other eligible employees multiplied by 1.25.
The "ACP" of a group of eligible employees for a plan year means the
average of the ratios (determined separately for each eligible employee in
such group) of: (i) the participant after-tax contributions credited to
each such eligible employee's account (as described in subsection 9.1)
under this plan for such plan year; to (ii) the eligible employee's
earnings (as defined in subsection 3.6) for such plan year. For purposes
of the preceding sentence, in computing the ACP for any eligible employee
who is a highly compensated employee and who is eligible to have employee
after-tax or employer matching contributions other than qualified matching
contributions allocated to his accounts under two or more plans maintained
by the employer and described in sections 401(a) or 401(k) of the Internal
Revenue Code, the employee after-tax and employer matching contributions
credited to such highly compensated employee's accounts under all such
plans shall be aggregated.
For purposes of applying the limitations on contributions described in
this subsection 3.7 and subsection 4.5, a "highly compensated employee"
means any present or former eligible employee who, during the current or
immediately preceding plan year:
(A) was a 5 percent owner of the employer or a controlled group
member;
(B) received annual compensation from the employer and/or
controlled group member of more than $75,000 (or such greater
amount as may be determined by the Commissioner of Internal
Revenue for that year);
<PAGE>
(C) received annual compensation from the employer and/or
controlled group member of more than $50,000 (or such greater
amount as may be determined by the Commissioner of Internal
Revenue for that year) and was in the top-paid 20% of the
employees; or
(D) was an officer of the employer and/or controlled group member
receiving annual compensation greater than 50% of the
limitation in effect under section 415(b)(1)(A) of the Internal
Revenue Code; provided, that for purposes of this subparagraph
(D), no more than 50 employees of the employer (or if lesser,
the greater of 3 employees or 10 percent of the employees)
shall be treated as officers.
H. Correction of Excess Aggregate Contributions - ACP Test.
The administrator shall, to the extent necessary to meet the
requirements of subsection 3.7, on or before March 15 following the end of
the plan year, but in no event later than the close of the following plan
year, distribute excess aggregate contributions (participant after-tax
contributions in excess of the limitations of subsection 3.7) to highly
compensated employees together with any income and minus any loss allocable
to such excess aggregate contributions for the year of contribution,
beginning with the highest ACPs until either such requirements are
satisfied or the next highest ACP of a highly compensated employee is
reached. This process shall continue until the plan conforms to the
requirements described in subsection 3.7. However, if a highly compensated
employee's ACP is determined by use of the family aggregation rules under
Code 414(q)(6) and if such ACP must be reduced pursuant to Treasury
Regulation 1.401(m)-1(e)(2), such highly compensated employee's ACP shall
be reduced by allocating the excess contributions for the family group
among the family members in proportion to each family member's matching
contributions.
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