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As filed with the Securities and Exchange Commission on December 18, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GARTNER GROUP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 06-3099750
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
P.O. Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
(203) 964-0096
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Gartner Group, Inc. Savings and Investment Plan
(FULL TITLE OF THE PLAN)
John F. Halligan
Executive Vice President, Chief Financial Officer and Secretary
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, CT 06904-2212
(203) 964-0096
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
Frank J. Marco, Esq.
Shipman & Goodwin LLP
One American Row
Hartford, CT 06103
(860) 251-5000
CALCULATION OF REGISTRATION FEE
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================================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Amount Offering Aggregate Amount of
of Securities to be to be Price per Offering Registration
Registered (1) Registered (1) Share (2) Price (2) Fee
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Common Stock, Class A, par 1,000,000 $33.50 $33,500,000 $9,882.50
value $0.0005
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(1) 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.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(h), the proposed maximum offering price per share
is based on the average of the high and low price per share of $33.50
on December 15, 1997, as reported by the National Association of
Securities Dealers Automated Quotation System.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information statement being delivered by Gartner Group, Inc. (the
"Company") to participants in the Company's Savings and Investment Plan (the
"Plan"), as required by Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), has been prepared in accordance with the requirements of
Form S-8 and relates to shares of common stock, par value $0.0005 per share,
(the "Shares") to be issued pursuant to the Plan. The information with respect
to the Plan required in the Section 10(a) prospectus is included in documents
being maintained and delivered by the Company as required by Rule 428 under the
Securities Act. The Company shall provide to participants a written statement
advising them of the availability without charge, upon written or oral request,
of documents incorporated by reference herein, as is required by Item 2 of Part
I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, previously filed with the Commission, are
hereby incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1996;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") since the end
of the fiscal year covered by the document referred to in (a) above; and
(c) The description of the Shares contained in the Registration
Statement on Form 8-A filed on August 18, 1993, filed pursuant to Section 12(g)
of the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
In addition, all documents subsequently filed by the Company and the
Plan pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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. Any statement contained
in a document incorporated or deemed to be incorporated by reference in this
registration statement shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
This item is not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
This item is not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law
("Delaware Law") provides that a corporation may indemnify a director, officer,
employee or agent made a party to an action by reason of the fact that he was a
director, officer, employee or agent of the corporation, or was serving at the
request of the corporation, against expenses actually and reasonably incurred,
including attorneys' fees, in connection with such action, if he acted in good
faith and in a manner he reasonably believed to be in, or not opposed to, the
best interests of the corporation and, with respect to any criminal action, had
no reasonable cause to believe his conduct was unlawful.
The Company's Certificate of Incorporation limits, to the
maximum extent permitted by Delaware Law, the personal liability of a director
to the Company or its shareholders for monetary damages for breach of fiduciary
duty as a director. The Company's By-laws provide that the Company shall
indemnify its officers and directors to the fullest extent permitted by
Delaware Law against all expense, liability and loss, including attorneys'
fees, actually and reasonably incurred and may purchase and maintain insurance
against any liability asserted and incurred by reason of serving as such,
whether or not the Company has the power to indemnify against such liability.
The Company has entered into indemnification agreements with its officers and
directors containing provisions which are in some respects broader than the
specific indemnification provisions contained in Delaware Law and which require
that, to the extent the Company maintains liability insurance applicable to
officers or directors, each officer and director shall be covered by such
policies to the same extent as are accorded the most favorably insured of the
Company's officers or directors, as the case may be.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions and agreements, the Company
has been informed that in the opinion of the staff of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
This item is not applicable.
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ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement
or incorporated by reference herein:
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Exhibit Number Description of Exhibits
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4.1(a) Restated Certificate of Incorporation of the Company
(filed as Exhibit 3.1 to the Company's Annual Report on
Form 10-K (File No. 0-15144) for the year ended
September 30, 1995 and incorporated herein by reference).
4.1(b) Amendment dated March 18, 1996 to Restated Certificate of
Incorporation of the Company (filed as Exhibit 4.1(c) to
the Company's Registration Statement on Form S-8 (File
No. 333-35169) and incorporated herein by reference).
4.2 Amended By-laws of the Company, as of April 24, 1997 (filed
as Exhibit 4.2 to the Company's Registration Statement on
Form S-8 (File No. 333-35169) and incorporated herein by
reference).
4.3 Form of certificate for the Company's common stock
(filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-1 (File No. 33-67576) and
incorporated herein by reference).
4.4* Gartner Group, Inc. Savings and Investment Plan, as
amended through July 31, 1997.
5.1 Pursuant to Item 8(a) of Form S-8, an opinion of counsel as to the
legality of the Company's Common Stock is not required in as much
as the Common Stock offered hereby are not original issuance
securities.
5.2* Internal Revenue Service ("IRS") determination letter dated July 24,
1995 stating that the Gartner Group, Inc. Savings and Investment
Plan is qualified under Section 401 of the Internal Revenue Code.
With respect to any amendments to the Plan subsequent to such
determination letter, the Company will submit the Plan, as so
amended, to the IRS in a timely manner and will make all changes
required by the IRS to qualify the Plan.
23.1* Independent Auditors' Consent, KPMG Peat Marwick LLP.
23.2* Consent of Independent Accountants, Price Waterhouse LLP.
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Exhibit Number Description of Exhibits
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24.1* Powers of Attorney.
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* Filed herewith.
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
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.
(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.
(b) 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 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.
(c) Insofar as indemnification of liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent,
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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.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 Stamford and State of
Connecticut on the 15th day of December, 1997.
GARTNER GROUP, INC.
-------------------
(Registrant)
BY /s/Manuel A. Fernandez*
----------------------------------------
Manuel A. Fernandez
Chairman, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/s/Manuel A. Fernandez* Chairman, President and Chief December 15, 1997
----------------------- Executive Officer (principal
MANUEL A. FERNANDEZ executive officer)
/s/John F. Halligan* Executive Vice President, Chief December 15, 1997
----------------------- Financial Officer and Secretary
JOHN F. HALLIGAN (principal financial and
accounting officer)
/s/William O. Grabe* Director December 15, 1997
-----------------------
WILLIAM O. GRABE
/s/Max D. Hopper* Director December 15, 1997
-----------------------
MAX D. HOPPER
/s/John P. Imlay, Jr.* Director December 15, 1997
-----------------------
JOHN P. IMLAY, JR.
/s/Stephen G. Pagliuca* Director December 15, 1997
-----------------------
STEPHEN G. PAGLIUCA
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Director December , 1997
-----------------------
DENNIS G. SISCO
Director December , 1997
-----------------------
ROBERT E. WEISSMAN
*By /s/John F. Halligan December 15, 1997
-----------------------
ATTORNEY-IN-FACT
</TABLE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
as amended, the administrator of the Gartner Group, Inc. Savings and Investment
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Stamford and State
of Connecticut on the 15th day of December, 1997.
GARTNER GROUP, INC.
SAVINGS AND INVESTMENT PLAN
---------------------------
(Plan)
BY: /s/Ronald Carroll
-----------------------
Ronald Carroll
Trustee
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EXHIBIT INDEX
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SEQUENTIALLY
EXHIBIT NUMBER DESCRIPTION OF EXHIBITS NUMBERED PAGE
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4.1(a) Restated Certificate of Incorporation of the Company
(filed as Exhibit 3.1 to the Company's Annual Report on
Form 10-K (File No. 0-15144) for the year ended
September 30, 1995 and incorporated herein by reference).
4.1(b) Amendment dated March 18, 1996 to Restated Certificate of
Incorporation of the Company (filed as Exhibit 4.1(c) to the
Company's Registration Statement on Form S-8 (File No. 333-35169)
and incorporated herein by reference).
4.2 Amended By-laws of the Company, as of April 24, 1997 (filed as
Exhibit 4.2 to the Company's Registration Statement on Form S-8
(File No. 33-35169) and incorporated herein by reference).
4.3 Form of certificate for the Company's common stock
(filed as Exhibit 4.2 to the Company's Registration
Statement on Form S-1 (File No. 33-67576) and
incorporated herein by reference).
4.4* Gartner Group, Inc. Savings and Investment Plan, as
amended through July 31, 1997.
5.1 Pursuant to Item 8(a) of Form S-8, an opinion of counsel as to the
legality of the Company's Common Stock is not required in as much
as the Common Stock offered hereby are not original issuance
securities.
5.2* Internal Revenue Service ("IRS") determination letter dated July 24,
1995 stating that the Gartner Group, Inc. Savings and Investment
Plan is qualified under Section 401 of the Internal Revenue Code.
23.1* Independent Auditors' Consent, KPMG Peat Marwick LLP.
23.2* Consent of Independent Accountants, Price Waterhouse LLP.
24.1* Powers of Attorney.
</TABLE>
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* Filed herewith.
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EXHIBIT 4.4
GARTNER GROUP, INC.
SAVINGS AND INVESTMENT PLAN
(As Amended Through July 31, 1997)
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TABLE OF CONTENTS
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Page
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Article 1. Definitions.................................................................................1
Article 2. Participation..............................................................................20
Article 3. Participants' Contributions................................................................22
Article 4. Employer Matching Contributions; Employer Contributions....................................26
Article 5. Limitations on Contributions...............................................................31
Article 6. Investment Options.........................................................................37
Article 7. Withdrawals from Accounts..................................................................38
Article 8. Loans......................................................................................41
Article 9. Valuation, Allocation and Accounting.......................................................44
Article 10. Vesting....................................................................................47
Article 11. Distributions..............................................................................49
Article 12. Funding....................................................................................59
Article 13. Administration of Plan.....................................................................60
Article 14. Management of Trust Fund...................................................................64
Article 15. Benefit Claims Procedure...................................................................65
Article 16. Non-Alienation of Benefits.................................................................66
Article 17. Designation of Beneficiary.................................................................67
Article 18. Amendment..................................................................................68
Article 19. Adoption and Withdrawal from Plan by Affiliated Company....................................69
Article 20. Termination; Merger, Consolidation or Transfer of Assets...................................70
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Article 21. Top Heavy Provisions.......................................................................72
Article 22. Miscellaneous..............................................................................76
Schedule A - Effective Dates...........................................................................78
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GARTNER GROUP, INC.
RETIREMENT PLAN
Gartner Group, Inc., a corporation, with its principal office at 56 Top
Gallant Road, Stamford, Connecticut 06904 amends and restates (except as
otherwise provided in Schedule A to this Plan) effective as of January 1, 1989
the savings and investment plan for its employees (which initially become
effective as of April 1, 1984), as follows:
As of January 1, 1994, the Gartner Group, Inc. Pension Plan was merged
into this Plan.
Article 1. Definitions
The following definitions and the definitions contained in Section 22.1
apply for purposes of this Plan:
1.1 Accounts - a Participant's Before Tax Savings Account, (Employee
Contribution Account), After Tax Savings Account, (Voluntary Contribution
Account) Employer Matching Account, (Company Matching Account), Employer
Account, (Profit Sharing Account), Pension Plan Account, Recharacterized
Contribution Account, Rollover Account and Savings and Investment Account.
1.2 Accrued Benefits - the sum of the credit balances in a
Participant's Accounts.
1.3 Actual Contribution Percentage -
(a) A percentage for a Plan Year determined for each
Participant equal to a fraction (for Plan Years beginning after 1988, rounded to
the nearest one-hundredth of a percent).
The numerator of the fraction is the sum of the amount of the
Participant's Employer Matching Contributions, After Tax Savings Contributions,
not taken into account in determining the maximum Average Actual Deferral
Percentage for
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Highly Compensated Employees and Recharacterized Contribution for a Plan Year.
The denominator of the fraction is the Participant's Compensation (as defined in
paragraph (e) of this definition) for that Plan Year.
(b) The Committee may elect to take into account in computing
the numerator of the fraction any or all of the amount of Participant's Before
Tax Savings Contributions and Qualified Employer Contributions for the Plan Year
provided that (1) the Average Actual Deferral Percentage for Highly Compensated
Employees satisfies Section 5.3 both (i) by taking into account all Before Tax
Savings Contributions and (ii) by taking into account Before Tax Savings
Contributions but excluding those Before Tax Savings Contributions taken into
account in determining the maximum Average Actual Contribution Percentage for
Highly Compensated Employees and (2) those Before Tax Savings Contributions and
Qualified Employer Contributions taken into account in determining the maximum
Average Actual Contribution Percentage for Highly Compensated Employees are not
taken into account for determining the maximum Average Actual Deferral
Percentage for Highly Compensated Employees.
(c) For purposes of this definition, in the case of a Highly
Compensated Employee who (1) is a Five Percent Owner or is among the ten Highly
Compensated Employees with the greatest Compensation and (2) has a family member
(as defined in Section 414(q)(6)(B) of the Internal Revenue Code) who is a
Participant, the combined Actual Contribution Percentage for the Highly
Compensated Employee and such family members shall be determined by using the
combined contributions taken into account under clauses (a) and (b) of this
definition and the combined Compensation of the Highly Compensated Employee and
such family members.
(d) In the case of a Highly Compensated Employee who is
eligible to participate in more than one Defined Contribution Plan which permits
after tax contributions or includes employer matching contributions, his or her
Actual
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Contribution Percentage shall be determined by treating all such Defined
Contribution Plans as one plan.
(e) For purposes of this definition, Compensation shall mean
compensation as defined in Section 414(s) of the Internal Revenue Code and shall
include any amounts contributed on behalf of an Employee to a cafeteria plan or
cash or deferred arrangements and not includible in income under Section 125 or
402(a)(8) of the Internal Revenue Code. A Participant's Compensation while he or
she is not eligible to make Before Tax Savings Contributions shall be
disregarded.
1.4 Actual Deferral Percentage -
(a) A percentage for a Plan Year determined for each
Participant equal to a fraction (for Plan Years beginning after 1988, rounded to
the nearest one-hundredth of a percent). Subject to clause (b)(2) of Section 1.2
(Actual Contribution Percentage), the numerator of the fraction is the amount of
the Before Tax Savings Contributions contributed by the Participant during a
Plan Year (excluding any contributions returned (i) under Section 5.6 and (ii)
in the case of a Participant who is not a Highly Compensated Employee, under
Section 3.4). The denominator of the fraction is the Participant's Compensation
(as defined in paragraph (e) of this definition) for that Plan Year.
(b) Subject to clause (b)(2) of Section 1.2 (Actual
Contribution Percentage), the Committee may take into account in computing the
numerator of the fraction any (or all) of a Participant's Qualified Employer
Contributions.
(c) For purposes of this definition, in the case of a Highly
Compensated Employee who (1) is a Five Percent Owner or among the ten Highly
Compensated Employees with the greatest Compensation and (2) has a family member
(as defined in Section 414(q)(6)(B) of the Internal Revenue Code) who is a
Participant, the combined Actual Deferral Percentage for the Highly Compensated
Employee and such family members shall be determined by using the combined
contributions taken into
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account under clauses (a) and (b) of this definition and the combined
Compensation of the Highly Compensated Employee and all such family members.
(d) In the case of a Highly Compensated Employee who is
eligible to participate in more than one Defined Contribution Plan which permits
before tax savings contributions, his or her Actual Deferral Percentage shall be
determined by treating all such Defined Contribution Plans as one plan.
(e) For purposes of this definition, Compensation shall mean
compensation as defined in Section 414(s) of the Internal Revenue Code and shall
include any amounts contributed on behalf of an Employee to a cafeteria plan or
cash or deferred arrangements and not includible in income under Section 125 or
402(e)(3) of the Internal Revenue Code. A Participant's Compensation while he or
she is not eligible to make Before Tax Savings Contributions shall be
disregarded.
1.5 Affiliated Company - (a) the Company, (b) a member of a controlled
group of corporations of which an Employer is a member, (c) an unincorporated
trade or business which is under common control with an Employer as determined
in accordance with Section 414(c) of the Internal Revenue Code or (d) a member
of an affiliated service group with any Employer as defined in Section 414(m) of
the Internal Revenue Code or (e) any other entity that must be aggregated with
an Employer under Section 414(o) (and Income Tax Regulations thereunder) of the
Internal Revenue Code. A corporation or an unincorporated trade or business
shall not be considered an Affiliated Company during any period while it does
not satisfy clause (a), (b), (c), (d) or (e) of this definition. For purposes of
this definition, a "controlled group of corporations" is a controlled group of
corporations as defined in Section 1563(a) of the Internal Revenue Code
(determined without regard to Sections 1563(a)(4) and (e)(3)(c) of the Internal
Revenue Code). In determining whether the Annual Addition must be reduced under
Section 5.4, the percentage in Section 1563(a)(1) of the Internal Revenue Code
or in the
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regulations under Section 414(c) of the Internal Revenue Code shall be deemed to
be more than 50% instead of at least 80%.
1.6 After Tax Savings Account - a separate account maintained for each
Participant reflecting his or her After Tax Savings Contributions and any other
amounts allocable to or chargeable against that account.
1.7 After Tax Savings Contributions - a Participant's contributions to
the Trust after June 30, 1991 under Section 3.1(b).
1.8 Annual Addition - an amount for a Plan Year equal to the sum of:
(a) the aggregate amount (including Forfeitures) credited for
the Plan Year to the Participant's Employer Matching Account under Section 4.1,
Employer Account under Section 4.2, and Qualified Employer Account under Section
4.3;
(b) the amount of a Participant's Before Tax Savings
Contributions for the Plan Year under Section 3.1(a);
(c) the amount of a Participant's After Tax Savings
Contribution, for the Plan Year under Section 3.1(b).
(d) in the case of a Participant who is a Key Employee as
defined in Section 21.1(b) the amount allocated for the Plan Year to a
Participant under an individual medical benefit account as defined in Section
415(l)(2) of the Internal Revenue Code.
(e) in the case of a Participant who is a Key Employee (as
defined in Section 22.1(b)), the amount attributable to retiree medical benefits
allocated for the Plan Year to a separate account under a welfare benefit fund
as defined under Section 419A(d) of the Internal Revenue Code.
1.9 Average Actual Contribution Percentage -
(a) The average (rounded to the nearest one-hundredth of a
percent) for a group of Participants for a Plan Year of their Actual
Contribution Percentages.
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(b) For purposes of this definition, the term "Participant"
shall include any Employee who is eligible to make Before Tax Savings
Contributions under Section 3.1 whether or not he or she makes such
contributions.
(c) If for a Plan Year the Plan satisfies the requirements of
Section 401(k), 401(a)(4) or 410(b) of the Internal Revenue Code only if
aggregated with one or more Defined Contribution Plans, or if for a Plan Year
one or more Defined Contribution Plans satisfies any of those requirements only
if aggregated with the Plan, the Average Actual Contribution Percentage shall be
determined as if all such plans were a single plan.
(d) If for a Plan Year portions of the Plan must be
mandatorily disaggregated into separate "plans" in accordance with Section
401(m) of the Internal Revenue Code, the Average Actual Contribution Percentage
shall be determined separately for each separate plan (except that a
determination shall not be made for any separate plan benefiting collectively
bargained employee).
1.10 Average Actual Deferral Percentage -
(a) The average (rounded to the nearest one-hundredth of a
percent) for a group of Participants for a Plan Year of their Actual Deferral
Percentages.
(b) For purposes of this definition, the term "Participant"
shall include any Employee who is eligible to make Before Tax Savings
Contributions under Section 3.1 whether or not he or she makes such
contributions.
(c) If for a Plan Year the Plan satisfies the requirements of
Section 401(k), 401(a)(4) or 410(b) of the Internal Revenue Code only if
aggregated with one or more Defined Contribution Plans, or if for a Plan Year
one or more Defined Contribution Plans satisfies any of those requirements only
if aggregated with the Plan, the Average Actual Deferral Percentage shall be
determined as if all such plans were a single plan.
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(d) If for a Plan Year portions of the Plan must be
mandatorily disaggregated into separated "plans" in accordance with Section
401(k) of the Internal Revenue Code, the Average Actual Deferral Percentage (but
in the case of Plan Years beginning before January 1, 1993, the Average Actual
Deferral Percentage shall not be determined for any separate plan benefiting
collectively bargained employees).
1.11 Before Tax Savings Account - a separate account maintained for
each Participant reflecting his or her Before Tax Savings Contributions and any
other amounts allocable to or chargeable against that account.
1.12 Before Tax Savings Contributions - a Participant's contributions
to the Trust Fund after June 30, 1991 under Section 3.1(a).
1.13 Beneficiary - a person who is entitled to receive distributions
under this Plan upon or after the death of a Participant.
1.14 Board - the board of directors of the Company.
1.15 Break in Service - a Plan Year in which an Employee (or former
Employee) is not credited with more than 500 Hours of Service. For purposes of
determining whether there has been a Break in Service, an Employee shall be
credited with Hours of Service for the period during which he or she is on
Medical or Family Leave as follows: (a) the Employee shall be credited with the
number of Hours of Service he or she would normally be credited with but for the
absence (or if the Employee's normal Hours of Service cannot be determined,
eight Hours of Service for each day of the absence), (b) the total number of
Hours of Service credited for the absence shall not exceed 501 and (c) the Hours
of Service credited for the absence shall be credited to the Plan Year in which
the absence begins if the Employee would be prevented from incurring a Break in
Service in that Plan Year solely because of the crediting of Hours of Service in
accordance with clauses (a) and (b) of this definition, or in any other case,
the immediately following Plan Year. Solely for purposes of
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<PAGE> 11
determining whether there has been a Break in Service a Participant shall be
credited with 45 hours for each week he or she is on Permitted Leave.
1.16 Company - the Gartner Group, Inc. or any successor by merger,
consolidation or sale of assets.
1.17 Committee - the committee appointed by the Board under Section
14.1.
1.18 Compensation - except as otherwise provided below with respect to
on an Employer Contributions and Employer Matching Contributions, compensation
reported Employee's Form W-2 for that Plan Year but excluding the following
amounts (even if such amounts are includible in gross income): (a)
reimbursements and other expense allowances, (b) fringe benefits (cash and
non-cash), such as income relative to qualified and non-qualified stock options
and the Company's Employee Stock Purchase Plan, (c) moving expenses, (d)
deferred compensation and (e) welfare benefits including any severance payments
and including: (x) a Participant's Before Tax Savings Contributions or before
tax savings contributions to another Defined Contribution Plan which includes a
cash or deferred arrangement and (y) any amounts contributed on behalf of the
Employee to a cafeteria plan and not includible in income under Section 125 of
the Internal Revenue Code.
For purposes of Section 4.2 (Employer Contributions),
Compensation shall be defined as base rate of pay.
For Plan Years beginning after December 31, 1988, but
before January 1, 1994 an Employee's Compensation shall not exceed $200,000 (or
such higher amount as may be determined by the Secretary of the Treasury in
accordance with Section 401(a)(17) of the Internal Revenue Code to reflect
increases in the cost of living). For Plan Years beginning on or after January
1, 1994, an Employee's Compensation shall not exceed $150,000 (or such higher
amount as maybe determined by the Secretary of Treasury in accordance with
Section 401(a)(17) of the Internal
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<PAGE> 12
Revenue Code to reflect increases in the cost of living). For purposes of
applying the 401(a)(17) limitations of the prior sentences, the family
aggregation rules of Section 414(q)(6) of the Internal Revenue Code shall apply,
except that the term "family" shall include only the Participant's spouse and
his or her lineal descendants who have not attained age 19 before the last day
of the Plan Year.
For purposes of Section 5.5, Compensation shall mean
compensation as that term is used in Section 415(c)(3) of the Internal Revenue
Code.
Additional special definitions of Compensation are provided
for purposes of Section 1.3 (Actual Contribution Percentage), Section 1.4
(Actual Deferral Percentage), Section 1.33 (Highly Compensated Employee),
Section 5.5 (Maximum Annual Addition), Section 22.1(b) (Key Employee) and
Section 22.3 (minimum top heavy benefit).
1.19 Deferral Amount - the aggregate amount the Participant deferred
during a calendar year under the Plan and under other plans or arrangements
described in Sections 401(k), 408(k), 403(b) or 501(c)(18) of the Internal
Revenue Code.
1.20 Defined Benefit Plan - an employee benefit plan, as defined in
Section 3(3) of ERISA, that (a) is maintained by an Affiliated Company, (b) is
qualified under Sections 401 and 501 of the Internal Revenue Code and (c) is not
a Defined Contribution Plan.
1.21 Defined Contribution Plan - an employee benefit plan, as defined
in Section 3(3) of ERISA, that (a) is maintained by an Affiliated Company, (b)
is qualified under Sections 401 and 501 of the Internal Revenue Code and (c)
provides for an individual account for each Participant and for benefits based
solely on the amounts in those accounts.
1.22 Eligible Employee - an Employee of an Employer who (a) has
attained age 21 and (b) either (i) is customarily employed on the basis of at
least 20 Hours of Service per week or (ii) is not customarily employed on a
basis of at least 20
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<PAGE> 13
Hours of Service per week and has been credited with at least 1,000
Hours of Service for the 12- consecutive month period beginning with the
Employee's first Hour of Service or for any Plan Year beginning after his or her
first Hour of Service, (c) is not covered by a collective bargaining agreement
as defined in Section 410(b)(3)(A) of the Internal Revenue Code and related
regulations (unless the collective bargaining agreement expressly provides for
inclusion of the Employee as a Participant) and (d) is not a nonresident alien
as defined in Section 410(b)(3)(C) of the Internal Revenue Code and related
regulations).
Any Employee who is not an Eligible Employee on the
Restatement Date and who is customarily employed on the basis of at least 20
Hours of Service per week shall become an Eligible Employee on the day he or she
satisfies the conditions of clauses (a), ((b)(i), (c) and (d) above. An Employee
who is not an Eligible Employee on the Restatement Date and who is not
customarily employed or the basis of at least 20 Hours of Service per week shall
become an Eligible Employee on the day he or she satisfies the conditions of
clauses (a); (c) and (d) above and the last day of the 12-month period he
satisfies the conditions of clause (b)(ii) above, whichever is later. A Rehired
Employee shall be deemed to be an Eligible Employee as of the day his or her
employment recommences if the Employee has satisfied the requirements of this
definition by the day his or her employment recommences and if applicable his
most recent period of service has not been disregarded under Section 2.5(b).
A leased employee (as defined in Section 414(n) of the
Internal Revenue Code) shall not be an Eligible Employee.
Notwithstanding any provision of this Plan to the contrary,
Transferred Employees (as defined in Section 6(d)(i) of the Stock and Asset
Purchase Agreement between The McGraw-Hill Companies, Inc., McGraw-Hill
Information Systems Company of Canada Limited, and McGraw-Hill International
(U.K.) Limited (the "Sellers" as defined therein) and Gartner Group, Inc.,
Gartner Group Canada, Inc., Gartner Group U.K.
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<PAGE> 14
Limited, DQ Research PTE Limited, and Gartner Group Acquisition Company, Inc.
(the "Buyer" as defined therein), dated July 16, 1997, (the "Agreement")),
except part-time employees who are excluded from the Plan, shall receive credit
under the Plan for all periods of employment with Sellers (as defined in the
Agreement) and the Acquired Business (as defined in the Agreement) for purposes
of calculating eligibility as an Eligible Employee under the Plan.
1.23 Employee - anyone who is employed by an Affiliated Company. A
leased employee (as defined in Section 414(n) of the Internal Revenue Code)
shall be treated as an Employee for purposes of this Plan.
1.24 Employer - the Company or any other Affiliated Company which has
adopted this Plan under Article 19.
1.25 Employer Account - a separate account maintained for each
Participant reflecting amounts attributable to Employer Contributions and
amounts allocable to or chargeable against that account.
1.26 Employer Contributions - an Employer's contributions to the Trust
after June 30, 1991 under Section 4.2.
1.27 Employer Matching Account - a separate account maintained for each
Participant reflecting amounts attributable to Employer Matching Contributions
and amounts allocable to or chargeable against that account.
1.28 Employer Matching Contributions - an Employer's matching
contributions to the Trust under Section 4.1.
1.29 ERISA - the Employee Retirement Income Security Act of 1974, as it
may from time to time be amended or supplemented. References to any section of
ERISA shall be to that section as it may be renumbered, amended, supplemented or
reenacted.
1.30 Fiscal Year - the fiscal year of the Company used for federal
income tax purposes.
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<PAGE> 15
1.31 Five Percent Owner - an Employee who owns more than five percent
of his or her Affiliated Company (within the meaning of Section 416(i)(1)(B)(i)
of the Internal Revenue Code).
1.32 Forfeiture - the amount forfeited by a Participant under Section
4.7.
1.33 Highly Compensated Employee - an Employee described in Section
414(q) of the Internal Revenue Code (and regulations promulgated by the
Secretary of the Treasury thereunder) for a Plan Year who either satisfies the
requirements of (a) or (b) set forth below.
(a) The Employee during the "look back year" (as defined
below) (1) was a Five Percent Owner, (2) received Compensation in excess of
$50,000 (adjusted by the Secretary of Treasury at the same time and in the same
manner as under Section 415(d) of the Internal Revenue Code to reflect increases
in the cost of living), (3) received Compensation in excess of $50,000 (adjusted
by the Secretary of Treasury at the same time and in the same manner as under
Section 415(d) of the Internal Revenue Code to reflect increases in the cost of
living) and was among the top 20% of Employees on the basis of Compensation for
the Plan Year or (4) was at any time an officer of an Affiliated Company and
received Compensation greater than 50% of the amount in effect under Section
415(b)(1)(A) of the Internal Revenue Code for the Plan Year.
(b) Subject to the following sentence, the employee during
"determination year" (as defined below) (1) was a Five Percent Owner, (2)
received Compensation in excess of $75,000 (adjusted by the Secretary of
Treasury at the same time and in the same manner as under Section 415(d) of the
Internal Revenue Code to reflect increases in the cost of living), (3) received
Compensation in excess of $50,000 (adjusted by the Secretary of Treasury at the
same time and in the same manner as under Section 415(d) of the Internal Revenue
Code to reflect increases in the cost of living), and was among the top 20% of
Employees on the basis of Compensation for the Plan Year, or (4) was at any time
an officer of an Affiliated Company and received
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<PAGE> 16
Compensation greater than 50% of the amount in effect under Section 415(b)(1)(A)
of the Internal Revenue Code for the Plan Year. For purposes of determining
whether an Employee is described in clause (2), (3) or (4) for a Plan Year, an
Employee shall only be included in this paragraph (b) if he or she is among the
top 100 Employees on the basis of Compensation for the Plan Year.
For purposes of this definition, the number of officers
included under paragraph (a)(4) or (b)(4) shall be limited to the lesser of (i)
50 and (ii) the greater of 3 and 10% of the number of all Employees.
The Plan Administrator may determine with respect to each Plan
Year whether to make the calendar year election described in Section 1.414(q)-1
of the Income Tax Regulations.
For any Plan Year in which the Plan Administrator does not
make a calendar year election (1) the "look back year" shall be the preceding
Plan Year and (2) the "determination year" shall be the Plan Year. For any Plan
Year in which the calendar year election is made, (1) the "look back year" shall
be the calendar year ending with or within the current Plan Year and (2) the
"determination year" shall be the period (if any) by which the current Plan Year
extends beyond the calendar year described in clause (1). However, if the Plan
Year is the calendar year and a calendar year election is made, then the Plan
Administrator may elect to define the "look back year" and "determination year"
for the Plan as though no such calendar year election had been made.
For purposes of this definition, Compensation shall be
compensation as defined in Section 414(q)(7) of the Internal Revenue Code.
1.34 Hour of Service - an hour for which an Employee directly or
indirectly receives, or is entitled to receive, remuneration from an Affiliated
Company in relation to his or her employment (which shall be credited to the
Employee for the computation period in which the duties are performed), hours
credited for vacation,
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<PAGE> 17
sickness or disability and hours for which back pay has been paid, awarded or
agreed to (irrespective of mitigation of damages) by an Affiliated Company
(which shall be credited to an Employee with respect to the period for which
remuneration is paid). In no event shall more than 501 Hours of Service be
credited to an Employee on account of any single period during which the
Employee performs no duties. Hours of Service shall be credited to an Employee
in accordance with the records of his Affiliated Company and Department of Labor
Regulations Section 2530.200b-2.
Notwithstanding any provision of this Plan to the contrary,
Transferred Employees (as defined in Section 6(d)(i) of the Stock and Asset
Purchase Agreement between The McGraw-Hill Companies, Inc., McGraw-Hill
Information Systems Company of Canada Limited, and McGraw-Hill International
(U.K.) Limited (the "Sellers" as defined therein) and Gartner Group, Inc.,
Gartner Group Canada, Inc., Gartner Group U.K. Limited, DQ Research PTE
Limited, and Gartner Group Acquisition Company, Inc. (the "Buyer" as defined
therein), dated July 16, 1997, (the "Agreement")), except part-time employees
who are excluded from the Plan, shall be credited under the Plan with all of
their hours of service with Sellers (as defined in the Agreement) and the
Acquired Business (as defined in the Agreement) for purposes of calculating
their Hours of Service as an Employee under the Plan.
1.35 Internal Revenue Code - the Internal Revenue Code of 1986, as it
may from time to time be amended or supplemented. References to any section of
the Internal Revenue Code shall be to that section as it may be renumbered,
amended, supplemented or reenacted.
1.36 Investment Fund - a portion of the assets of the Trust Fund that
is (a) maintained as a separate fund within the Trust Fund and (b) is equal in
value to the aggregate portion of the credit balance of all Accounts invested in
that Investment Fund. The Investment Funds are those set forth in Section 6.1
and any other such funds designated by the Committee under Section 6.1.
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<PAGE> 18
1.37 Investment Manager - anyone who (a) is granted the power to
manage, acquire, or dispose of any asset of the Plan, (b) acknowledges in
writing that it is a fiduciary with respect to the Plan and (c) is (1) an
investment adviser registered under the Investment Advisers Act of 1940, (2) a
bank (as defined in the Investment Advisers Act of 1940) or (3) an insurance
company qualified under the laws of more than one state to manage the assets of
employee benefit plans (as defined in Section 3(3) of ERISA).
1.38 Limitation Year - the Plan Year.
1.39 Medical or Family Leave - an Employee's leave of absence from
employment with an Affiliated Company because of: (a) pregnancy, birth of the
Employee's child, placement of a child with the Employee in connection with
adoption of the child or caring for a child immediately following birth or
adoption or (b) any other reason that would entitle the Employee to take a leave
under the Family and Medical Leave Act of 1993. The Affiliated Company shall
determine the first and last day of any Family or Medical Leave.
1.40 Merged Plan - any plan designated by the Board as a merged plan
under Section 23.3.
1.41 Normal Retirement Date - a Participant's 65th birthday.
1.42 Participant - a participant in this Plan. A Participant includes
an Employee who contributes to a Rollover Account.
1.43 Pension Plan Account - a separate account maintained for each
Participant reflecting his or her credit balance under the Gartner Group, Inc.
Pension Plan (which was merged into the Plan as of January 1, 1994) and any
amounts allocatable to a chargeable or against that account.
1.44 Permanent Disability - a disability which causes a Participant to
be eligible to receive disability benefits under the Social Security Act or, in
the case of a Participant who is not covered by the Social Security Act, a
disability which would cause
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<PAGE> 19
the Participant to be eligible for disability benefits under that Act had he or
she been covered.
1.45 Permitted Leave - an Employee's approved leave of absence from
employment with an Affiliated Company for any reason other than Termination of
Employment, including but not limited to military service, illness, disability,
pregnancy, educational pursuits, service as a juror, temporary employment with a
government agency, or any other leave of absence approved by that Affiliated
Company. In approving a Permitted Leave, an Employer's Affiliated Company shall
determine the date as of which the Permitted Leave begins and ends.
1.46 Plan - the savings and investment plan as set forth in this
document and as it may from time to time be amended or supplemented. The Plan is
intended to qualify as a profit sharing plan under Section 401(a) of the
Internal Revenue Code.
1.47 Plan Administrator - the person, as provided in Section 13.4.
1.48 Qualified Employer Account - the calendar year.
1.49 Qualified Joint and Survivor Annuity - an annuity for the life of
a Participant with a survivor annuity for the life of the Participant's spouse
where the survivor annuity is 50% of the amount of the annuity payable during
the joint lives of the Participant and the Participant's spouse and the joint
and survivor annuity is actuarially equivalent in value to the Participant's
Vested Interest.
1.50 Recharacterized Contributions - a Participant's Before Tax Savings
Contributions which are recharacterized under Section 5.4(a).
1.51 Recharacterized Contribution Account - a separate account
maintained for each Participant reflecting Recharacterized Contributions and
amounts allocable to or chargeable against that account.
1.52 Rehired Employee - an Employee who is rehired by an Affiliated
Company after he or she has had a Termination of Employment, or Retirement. The
sections which include provisions relating to a Rehired Employee are Section
1.22
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<PAGE> 20
(Eligible Employee), Section 1.65 (Vesting Years of Service), Section 2.5
(participation upon reemployment), Section 4.8 (crediting forfeitures upon
reemployment), Section 4.9 (repayment upon reemployment) and Section 10.2
(vesting upon reemployment).
1.53 Restatement Date - January 1, 1989.
1.54 Rollover Account - a separate account maintained for an Employee
reflecting a Rollover Amount contributed to the Trust under Section 3.6 and
amounts allocable to or chargeable against that account.
1.55 Rollover Amount - any (a) eligible rollover distribution described
in Section 402(f)(2) of the Internal Revenue Code (relating to certain
distributions described in Section 401(a) or 403(a) of the Internal Revenue
Code) or (b) any rollover distribution described in Section 408(d)(3)(A)(ii) of
the Internal Revenue Code (relating to certain distributions from an individual
retirement account or an individual retirement annuity).
1.56 Savings and Investment Account - a separate account maintained for
each Participant reflecting contributions to the Plan made on his or her behalf
before July 1, 1991 and amounts allocable or chargeable against that account.
1.57 Termination of Employment - a Participant's termination of
employment with an Affiliated Company, whether voluntary or involuntary, for any
reason, including but not limited to quit or discharge and other than for
Medical or Family Leave, Permitted Leave, or transfer to another Affiliated
Company.
1.58 Trust - the trust established or maintained under the Trust
Agreement.
1.59 Trust Agreement - the agreement which provides for the
continuation of the Trust, as that agreement may from time to time be amended or
supplemented.
1.60 Trust Fund - the total of the assets held in the Trust.
1.61 Trustee - anyone serving as trustee under the Trust Agreement.
1.62 Valuation Date - each business day.
1.63 Vested Interest - an amount equal to the portion of a
Participant's Accrued Benefits which is nonforfeitable under Article 10.
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<PAGE> 21
1.64 Vesting Years of Service - all Years of Service credited to an
Employee (and any periods that are required by law to be credited to the
Employee for his or her period of military service), except that the following
Years of Service are disregarded:
(a) Years of Service preceding the adoption of this Plan (or,
if earlier, the date of adoption of any Predecessor Plan or Merged Plan in which
he or she was a Participant);
(b) Years of Service preceding at least five consecutive
Breaks in Service, if the Employee has no Vested Interest (excluding a Vested
Interest attributable solely to his or her Before Tax Savings Account, After Tax
Savings Account, Recharacterized Contribution Account and Rollover Account) at
the end of the five consecutive Breaks in Service and has a number of
consecutive Breaks in Service equal to (or greater than) the number of his or
her Years of Service (excluding Years of Service previously disregarded under
this clause(b)) preceding the Breaks in Service;
(c) Years of Service credited to the Employee during which the
Employee's Employer is not at any time an Affiliated Company or a predecessor
employer within the meaning of Section 414(a) of the Internal Revenue Code; and
Notwithstanding any provision of this Plan to the contrary,
Transferred Employees (as defined in Section 6(d)(i) of the Stock and Asset
Purchase Agreement between The McGraw-Hill Companies, Inc., McGraw-Hill
Information Systems Company of Canada Limited, and McGraw-Hill International
(U.K.) Limited (the "Sellers" as defined therein) and Gartner Group, Inc.,
Gartner Group Canada, Inc., Gartner Group U.K. Limited, DQ Research PTE Limited,
and Gartner Group Acquisition Company, Inc. (the "Buyer" as defined therein),
dated July 16, 1997, (the "Agreement")), except part-time employees who are
excluded from the Plan, shall receive credit under the Plan for all periods of
employment with Sellers (as defined in the Agreement) and the Acquired
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<PAGE> 22
Business (as defined in the Agreement) for purposes of calculating Vesting
Years of Service under the Plan.
1.65 Year of Service - a Plan Year for which an Employee is credited
with at least 1,000 Hours of Service.
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<PAGE> 23
Article 2. Participation
2.1 Eligibility to Participate on the Restatement Date. All Employees
who were Participants as of the Restatement Date shall remain such and all other
Employees who are Eligible Employees on the Restatement Date shall be eligible
to become Participants in accordance with Section 2.3 on that date.
2.2 Eligibility to Participate After the Restatement Date. After the
Restatement Date, an Employee shall be eligible to become a Participant in
accordance with Section 2.3 on the day the Participant becomes an Eligible
Employee.
2.3 Enrollment.
(a) Subject to Section 2.3(c), an Employee may become a
Participant as soon as practicable after the date he or she becomes eligible to
Participate in accordance with Section 2.1 or 2.2 by enrolling within the time
prescribed by the Committee.
(b) A Participant's enrollment information (in addition to any
other information required by the Committee) shall (a) designate the percentage
or amount of his or her Compensation the Participant would like to contribute as
Before Tax Savings Contributions under Section and After Tax Savings
Contributions under Sections 3.1(a) or (b)1, respectively (b) select investment
options in accordance with Section 6.1 and (c) designate a Beneficiary in
accordance with Section 17.1.
(c) For purposes of Sections 4.2 (Employer Contributions) and
4.3 (Qualified Employee Contributions), an Employee shall become a Participant
on the first day he or she is eligible to participate in the Plan under Section
2.2
2.4 Cessation of Participation. For purposes of this Article 2, Article
3 and Article 4, and for determining a Participant's Vesting Years of Service, a
Participant shall cease to be a Participant as of the day he or she has a
Termination of Employment; or dies. For all other purposes under this Plan, a
Participant shall cease to be a
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<PAGE> 24
Participant as of the day he or she incurs a Break in Service and the date that
all distributions due to the Participant or his or her Beneficiary are made.
2.5 Participation Upon Reemployment - (a) As subject to Section 2.5(b)
A Rehired Employees shall become a Participant in accordance with Section 2.2.
(b) In the case of a Rehired Employee who was not customarily
employed on the basis of at least 20 Hours of Service per week, has no Vested
Interest and has a number of Breaks in Service equal to the greater of 5 and the
number of his or her previous Years of Service (excluding Years of Service
previously disregarded under this Section 2.4(c)), the Rehired Employee's
previous service as an Employee shall be disregarded for purposes of determining
when he or she again becomes an Eligible Employee. For purposes of this Section
2.5(b), as Employee who is credited with a Year of Service both in the 12-month
consecutive period beginning with the Employees' first Hour of Service and the
first Plan Year beginning after his or her first Hour of Service shall be
credited with two Years of Service.
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<PAGE> 25
Article 3. Participants' Contributions
3.1 General. Subject to Article 5 and Section 3.3, a Participant may
upon notice (at such time and in such manner as the Committee shall prescribe)
make Before Tax Savings Contributions, and After Tax Savings Contributions, to
the Trust of up to an aggregate of 20% (in whole percentages) of his or her
Compensations to be withheld as payroll deduction as follows:
(a) Before Tax Savings Contributions. A Participant may make
Before Tax Savings Contributions of up to 10% (in whole percentages) of his or
her Compensation;
(b) After Tax Savings Contributions. A Participant may make
After Tax Savings Contributions of up to 10% of his or her Compensation (in
whole percentages) of his or her Compensation.
3.2 Election to Change Amount of Contributions. Upon notice to his or
her Employer (at such time and in such manner as the Committee may prescribe), a
Participant may:
(a) change his or her designation of the amount of his or her
Before Tax Savings Contributions, and After Tax Savings Contributions, or
(b) suspend his or her Before Tax Savings Contribution, or
After Tax Savings Contributions; or
(c) resume making his or her Before Tax Savings Contribution,
or After Tax Savings Contributions.
Any such change under Section 3.2(a), suspension under Section 3.2(b) or
resumption under 3.2(c) shall be effective as soon as practicable after
reasonable notice (as determined by the Committee).
3.3 Limit on Before Tax Savings Contributions. The amount of a
Participant's Before Tax Savings Contributions (and any other before tax savings
contributions under a Defined Contribution Plan) for a calendar year shall not
exceed
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<PAGE> 26
$7,000 or such higher amount as may be determined by the Secretary of the
Treasury in accordance with Section 402(g)(5) of the Internal Revenue Code to
reflect increases in the cost of living.
3.4 Return of Excess Before Tax Savings Contributions.
(a) No later than the April 15 immediately following the last
day of a calendar year, a Participant whose Deferral Amount for that calendar
year exceeds the maximum amount described in Section 402(g) of the Internal
Revenue Code may request in writing that the Committee direct that a portion (or
all) of his or her Before Tax Savings Contributions for that Plan Year be
distributed to him or her. The Participant's request shall include a statement
that if the amount requested to be distributed remained in the Plan, his or her
Deferral Amount for that calendar year would exceed the maximum amount described
in Section 402(g) of the Internal Revenue Code. The Committee shall direct that
the amount of Before Tax Savings Contributions set forth in the Participant's
request under Section 3.4(a) be distributed to the Participant by the April 15
following the date of his or her request or the close of the taxable year.
(b) A Participant whose Deferral Amount for a calendar year
exceeds the maximum amount described in Section 402(g) of the Internal Revenue
Code may request in writing during that calendar year that the Committee direct
that a part (or all) of his or her Before Tax Savings Contributions made up
through the date of his or her request be distributed to him or her. The
Committee shall direct the amount of Before Tax Savings Contribution set forth
in the Participant's request be distributed as soon as practicable after the
date of the request.
(c) A Participant who for a calendar year has contributed
Before Tax Savings Contributions (and before tax savings contributions under any
other Defined Contribution Plan) in excess of the amount specified in Section
3.3 shall be deemed to have requested to receive a distribution under Section
3.4(b).
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<PAGE> 27
(e) The amount of Employer Matching Contributions attributable
to the Participant's returned Before Tax Savings Contributions shall be or
forfeited.
(f) The amount of a Participant's Before Tax Savings
Contributions and Employer Matching Contributions shall be distributed or
forfeited under this Section 3.4 before any distribution or forfeiture is made
under Section 5.4(a).
(g) The amount of Before Tax Savings Contributions and
Employer Matching Contributions returned or forfeited under this Section 3.4
shall be adjusted as determined by the Committee for allocable gains and losses
(in accordance with the Income Tax Regulations under Section 402(g) of the
Internal Revenue Code) for the calendar year with respect to which the
contribution was made and the period between the end of that calendar year and
the date of distribution.
3.5 Payroll Deduction for Savings Contributions. Before Tax Savings
Contributions, and After Tax Savings Contributions, and under this Article 3
shall be made by payroll deduction in accordance with the rules and procedures
established by the Committee. An amount of cash equal to the aggregate amount of
those contributions shall be forwarded to the Trustee by the Employers as soon
as practicable after each Payroll Period. The amount of contributions shall be
credited to the Participant's appropriate Accounts.
3.6 Rollover Contributions. Upon an Employee's request, the Committee,
in its discretion, may permit him or her either to contribute a Rollover Amount
to the Trust or have a Rollover Amount transferred in cash to the Trust in a
direct trustee to trustee transfer. If the Committee permits the contribution
or transfer, the Rollover Amount shall be credited to the Employee's Rollover
Account. If an Employee contributes or directs the transfer of a Rollover Amount
and subsequently becomes a Participant under Section 2.1, the Plan Administrator
shall continue to maintain his or her separate Rollover Account. No other
contributions shall be allocated to the Rollover Account.
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<PAGE> 28
3.7 Trustee Transfer. The Company may in its discretion direct the
Trustee to receive a trustee to trustee transfer of amounts held under a
retirement plan qualified under Section 401(a) of the Internal Revenue Code.
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<PAGE> 29
Article 4. Employer Matching Contributions; Employer Contributions
4.1 Employer Matching Contributions.
(a) For each month, a Participant shall be entitled to have
credited to his or her Employer Matching Account an amount of Employer Matching
Contributions equal to 100% of the amount of the Participant's Before Tax
Savings Contributions which is not in excess of 2% of his or her Compensation
for that month. Effective as of January 1, 1993, in no event shall the amount of
Employer Matching Contributions credited to a Participant's Employer Matching
Account for a Plan Year under this Section 4.1(a) exceed 20% of the dollar limit
for that Plan Year under Section 402(g) of the Internal Revenue Code. Effective
before January 1, 1993, in no event shall the maximum amount of Employer
Matching Contributions credited to a Participant's Employee Matching Account
exceeds $800.
(b) Effective as of January 1, 1994, subject to Section
4.1(d), as of the last day of each Plan Year, the Company, in its sole
discretion, may determine that a Participant shall be entitled to have credited
to his or her Employer Matching Account an additional amount of Employer
Matching Contributions. The additional amount of Employer Matching Contributions
shall be equal to 100% of the Participant's Before Tax Savings Contributions for
that Plan Year in excess of the "Designated Percentage" (as defined in Section
4.1(c)) of his or her Compensation for that Plan Year. In no event shall the
amount of Employer Matching Contributions credited to a Participant's Employee
Matching Account under this Section 4.1(a) exceed 20% the dollar limit of
Section 402(g) of the Internal Revenue Code for that or his Plan Year.
(c) For purposes of Section 4.1(b), the "Designated
Percentage" shall mean a percentage designated by the Company, in its sole
discretion, that is at least 2 percent and no greater than 4 percent.
(d) Only a Participant who at the close of business on the
last day of the Plan Year is an Eligible Employee in the employ of an Employer
or is on
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Permitted Leave or is an Eligible Employee and dies, has a Termination of
Employment on or after his or her Normal Retirement Date or incurs a Permanent
Disability during the Plan Year shall be entitled to be credited with the
additional Employer Matching Contributions under Section 4.1(b) (and the term
"Participant" in Section 4.1(b) refers to only those Participants).
4.2 Employer Contributions.
(a) Subject to Sections 4.2(c) and (d) effective as of January
1, 1993 for each Plan Year, a Participant's Employer Account shall be credited
with an Employer Contribution equal to 1% of his or her Compensation.
Subject to Sections 4.2(c) and (d) the Company may at its
discretion, contribute additional Employee Contributions to the Plan. The
additional Employer Contribution shall be allocated to Participants in
proportion to their Compensation.
(b) Only a Participant who (A) has been credited with at least
1,000 Hours of Service (excluding Hours of Service with an Affiliated Company
which is not an Employer) during the Plan Year and (B) at the close of business
on the last day of the Plan Year is an Eligible Employee in the employ of an
Employer or is on Permitted Leave or (2) is an Eligible Employee and dies, has a
Termination of Employment on or after his or her Normal Retirement Date or
incurs a Permanent Disability during the Plan Year shall be entitled under
Section 4.2(c) to share in the allocation of the Employer Contribution for that
Plan Year (and the term "Participant" in this Section 4.2 refers to only those
Participants).
(c) This Section 4.2 shall not apply to a Participant who is
employed by GG Sales for Plan Years beginning before January 1, 1995.
4.3 Qualified Employer Matching Contributions and Qualified Employer
Contributions. The Employers shall make contributions under this Article 4 in
cash.
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<PAGE> 31
4.4 Time for Making and Crediting Contributions by Employer. Subject to
the following sentence, Employer Matching Contributions to be credited under
Section 4.1 and Employer Contributions credited under Section 4.2 for a Fiscal
Year shall be forwarded to the Trustee by the Employers no later than the due
date for the Employer's federal income tax return for that Fiscal Year. The
amount of a Participant's Employer Matching Contributions, Employer
Contributions and Qualified Employer Contributions shall be credited to his or
her appropriate Account as soon as practicable after are forwarded to the
Trustee.
4.5 Time for Making and Crediting Contributions by Employer. If a
Participant is transferred from one Employer to another Employer during a month
and he or she is entitled to be credited for that month with an amount under
this Article 4, each such Employer for the month of transfer shall contribute a
portion of the amount to be credited (based on its proportionate share of the
Participant's total Compensation for that month.
4.6 Forfeitures. If a Participant has a Termination of Employment an
amount equal to the excess, if any, of the Participant's credit balance in his
or her Employer Account and Employer Matching Account (as of the Valuation Date
coincident with or next following the day of the Forfeiture after allocation of
net value under Section 9.3) over the amount of the Participant's Vested
Interest in his or her Employer Account and Employer Matching Account (as of
that Valuation Date) shall be forfeited as of the earlier of: (a) the Valuation
Date coincident with or next following the day distribution of his or her Vested
Interest commences (or is deemed to commence under Section 4.9(a)) or (b) the
day he or she has incurred a Break in Service of five consecutive years.
Forfeitures shall not increase the Accrued Benefits of any Participant and,
shall be used to reduce the aggregate amount to be contributed by the Employer
to the Trust or defray plan expenses.
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<PAGE> 32
4.7 Crediting of Forfeitures upon Resuming Employment. If a Participant
who had a Termination of Employment (a) resumes employment with an Employer
without having least five consecutive Breaks in Service and (b) if Section 4.9
applies to the Participant, he or she repays in accordance with that Section the
amount previously distributed to him or her, the amount, if any, of his or her
Forfeiture under Section 4.7 shall be credited to his or her Employer Account
Employer Matching Account as of the Valuation Date immediately following the day
he or she resumes employment. The amount credited under this Section 4.8 shall
be funded first by Forfeitures which have not been previously taken into account
under this Section 4.8 or Sections 12.1 and, if that is insufficient, by
contributions by an Employer and if that is insufficient, finally by increases
or gains to the Plan.
4.8 Repayment upon Reemployment After Cash-Out.
(a) If a Participant (1) receives, upon his or her Termination
of Employment, a distribution of his or her entire nonforfeitable interest in
his or her Accounts and the amount of that distribution is less than the amount
of the aggregate credit balance in his or her Accounts and (2) he or she
subsequently resumes employment with an Employer and becomes a Participant, he
or she may repay to the Trust the full amount of the distribution from his or
her Employer Account and Employer Matching Account Accounts provided that the
repayment is made no later than the earlier of (x) five years after resumption
of employment and (y) the last day of the first period of five consecutive
Breaks in Service beginning after the distribution.
A Participant who has a Termination of Employment and has no
nonforfeitable interest in the credit balances in his or her Accounts (excluding
a Vested Interest attributable solely to his or her Before Tax Savings Account,
Basic After Tax Savings Account, Recharacterized and Rollover Account) shall be
deemed (i) to have received a distribution described in clause (1) of this
Section 4.9(a) upon his or her Termination of
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<PAGE> 33
Employment and (ii) to have repaid that amount upon his or her subsequent
reemployment with an Employer and becoming a Participant.
(b) The repayment under Section 4.9(b) may be made as a cash
contribution to the Trust which shall be credited to the Participant's Employer
Account and Employer Matching Account, as applicable. Alternatively, the
repayment may be made as a Rollover Amount and credited to the Participant's
Rollover Account.
4.9 Continuation of Employer Contributions. The Employers intend but
are not obligated to continue this Plan and to make contributions under it.
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Article 5. Limitations on Contributions
5.1 General. Section 5.3 sets forth nondiscrimination tests which limit
certain contributions made for a Plan Year with respect to Participants who are
Highly Compensated Employees. Section 5.5 sets forth the limitations on the
Annual Additions to Participants' Accounts for a Plan Year. At any time during a
Plan Year, the Committee may limit the amount of Before Tax Savings
Contributions, or After Tax Savings Contributions made by Participants who are
Highly Compensated Employees to comply with the nondiscrimination tests set
forth in Section 5.3.
5.2 Committee Determination. The Committee shall determine for each
Plan Year (a) which Participants are Highly Compensated Employees, (b) the
Average Actual Deferral Percentage for Participants who are Highly Compensated
Employees and for Participants who are not Highly Compensated Employees and (c)
the Average Actual Contribution Percentage for Participants who are Highly
Compensated Employees and for Participants who are not Highly Compensated
Employees. The Committee's determinations shall be based on data provided to it
by the Company.
5.3 Maximum Average Actual Deferral Percentage and Average Actual
Contribution Percentage.
(a) Subject to Section 5.3(b), for any Plan Year, each of the
maximum Average Actual Deferral Percentage and the maximum Average Actual
Contribution Percentage for Participants who are Highly Compensated Employees
shall
be:
(1) if the Average Actual Deferral Percentage or the
Average Actual Contribution Percentage for Participants who are not Highly
Compensated Employees is less than 2%, the product of 2.0 and such percentage,
(2) if the Average Actual Deferral Percentage or the
Average Actual Contribution Percentage for Participants who are not Highly
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<PAGE> 35
Compensated Employees is equal to or greater than 2%, but less than 8%, such
percentage plus 2%,
(3) if the Average Actual Deferral Percentage or the
Average Actual Contribution Percentage for Participants who are not Highly
Compensated Employees is equal to or greater than 8%, the product of 1.25 and
such percentage.
(b) For any Plan Year, if any Highly Compensated Employee is
eligible to make Before Tax Contributions to this Plan and is eligible to make
After Tax Contributions to this Plan (or after tax contributions to another
Defined Contribution Plan) or to receive an allocation of Employer Matching
Contributions under this Plan (or employer matching contributions under another
Defined Contribution Plan)], then in no event shall the sum of the Average
Actual Deferral Percentage and the "relevant average actual contribution
percentage" for Participants who are Highly Compensated Employees exceed the
greater of the amount determined under (1) and (2):
(1) the sum of:
(a) the product of 1.25 and the Average Actual
Deferral Percentage for Participants who are not Highly Compensated Employees;
and
(b) the lesser of (i) the sum of 2% and the
relevant average actual contribution percentage for Participants who are not
Highly Compensated Employees or (ii) the product of 2 and the relevant average
actual contribution percentage for Participants who are not Highly Compensated
Employees; or
(2) the sum of:
(a) the product of 1.25 and the relevant
average actual contribution percentage for Participants who are not Highly
Compensated Employees; and
(b) the lesser of (i) the sum of 2% and the
Average Actual Deferral Percentage for Participants who are not Highly
Compensated
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<PAGE> 36
Employees; or (ii) the product of 2 and the Average Actual Deferral Percentage
for Participants who are not Highly Compensated Employees.
For purposes of this Section 5.3(b) the relevant average actual
contribution percentage shall mean the Average Actual Contribution Percentage or
the average actual contribution percentage under each applicable Defined
Contribution Plan for the plan year of that plan beginning with or within the
Plan Year.
5.4 Return of Highly Compensated Employees' Contributions. If for any
Plan Year the Average Actual Deferral Percentage or the Average Actual
Contribution Percentage for Participants who are Highly Compensated Employees
exceeds the maximum percentages determined under Section 5.3, amounts shall be
returned, distributed or forfeited [not later than the last day of the following
Plan Year or recharacterized within 2-1/2 months after the close of that Plan
Year as follows:
(a) First, if the Average Actual Deferral Percentage of
Participants who are Highly Compensated Employees exceeds the maximum under
Section 5.3(a) for a Plan Year, the Actual Deferral Percentage for such
Participants shall be reduced beginning with the highest percentage until the
Average Actual Deferral Percentage for such Participants does not exceed such
maximum. A Participant's Actual Deferral Percentage shall be reduced by
returning to him or her a specified portion (or all) of his or her Before Tax
Savings Contributions for that Plan Year and by recharacterizing a specified
portion (or all) of his or her Before Tax Savings Contributions as After Tax
Savings Contributions, but only to the extent that the amount of Before Tax
Savings Contributions so recharacterized when added to the amount of his or her
After Tax Savings Contributions for the Plan Year does not exceed 10% of his or
her Compensation. The amount of Before Tax Savings Contributions to be returned
to the Participant or recharacterized shall be reduced by the amount of any
Before Tax Savings Contributions previously returned to him or her with respect
to that Plan Year under Section 3.4. The Plan Administrator shall notify Highly
Compensated Employees
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<PAGE> 37
within 2-1/2 months after the close of a Plan Year of any amounts
recharacterized under this Section 5.4(a).
(b) Second, in the case of a Participant to whom Before Tax
Savings Contributions are returned under clause (a), subject to the following
sentence, the amount of his or her Employer Matching Contributions attributable
to those Before Tax Savings Contributions shall be forfeited.
(c) Third, if the Average Actual Contribution Percentage of
Participants who are Highly Compensated Employees exceeds the maximum under
5.3(a), the Actual Contribution Percentages of such Participants shall be
reduced in order of Actual Contribution Percentages beginning with the highest
until the Average Actual Contribution Percentage for such Participants does not
exceed such maximum. A Participant's Actual Contribution Percentage shall be
reduced by reducing the amount of his or her After Tax Savings Contributions and
if that is insufficient reducing the amount of his or her Employer Matching
Contributions. The amount of a Participant's After Tax Savings Contributions
reduced under this Section 5.4(c) by returning to the Participant all (or a
portion) of those contributions. The amount of a Participant's Employer Matching
Contributions reduced under clause (c) shall be reduced by first returning to
him or her all (or a portion) of such contributions for that Plan Year which are
nonforfeitable under Article 11 and, if that is insufficient, by forfeiting all
(or a portion) of those contributions that are not nonforfeitable under Article
11.
(d) Fourth, if the Average Actual Deferral Percentage and
relevant average actual contribution percentage (as defined in Section 5.3(b))
of Participants who are Highly Compensated Employees (each determined after
reduction, if any, under Section 5.4(a) or (b) respectively, or the analogous
section of the applicable Defined Contribution Plan) would result in a violation
of the rule preventing the multiple use of the alternative limitation under
Section 5.3(b), the Average Actual Deferral Percentage and the Average Actual
Contribution Percentage of Highly
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<PAGE> 38
Compensated Employees who are eligible to make After Tax Contributions to the
Plan (or after tax contributions to another Defined Contribution Plan) or to
receive an allocation of Employer Matching Contributions under the Plan (or
employer matching contributions under another Defined Contribution Plan) shall
be reduced in the same manner as in Section 5.4.
In the case of a Participant whose Actual Deferral Percentage
or Actual Contribution Percentage was determined using the family aggregation
rules in Section 1.4 (c) and 1.3 (c), respectively, the amount of the
Participant's Before Tax Savings Contributions and After Tax Savings
Contributions which are returned, recharacterized distributed or forfeited under
paragraphs (a), (b), (c) and (d) of this Section 5.4, if any, shall be
determined by first determining this amount of each type of contribution to be
returned, recharacterized distributed or forfeited for the entire family group.
Then the amount of each type of contribution shall be allocated to each
Participant included in the family group in proportion to the amount of his
contributions of that type for the Plan Year.
The amount of a Participant's contributions which are
returned, recharacterized distributed or forfeited under paragraphs (a), (b),
(c) and (d) of this Section 5.4 shall be adjusted as determined by the Committee
for allocable gains and losses (in accordance with Income Tax Regulations under
Sections 401(k) and 401(m) of the Internal Revenue Code) for the Plan Year with
respect to which the contributions were made and for the period between the end
of that Plan Year and the date of distribution, return, recharacterization or
forfeiture.
5.5 Maximum Annual Addition. Notwithstanding any other provision of
this Plan, the Annual Addition to a Participant's Accounts for any Plan Year
shall be reduced to the extent that it plus the aggregate amount, if any, of the
annual addition, as defined in Section 415(c)(2) of the Internal Revenue Code,
to the Participant's accounts under all other Defined Contribution Plans in
which he or she was a Participant during
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<PAGE> 39
that Plan Year exceeds the lesser of (1) $30,000, or such higher amount as may
be permitted under regulations promulgated by the Secretary of the Treasury in
accordance with Section 415(c) of the Internal Revenue Code to reflect increases
in the cost of living, and (b) 25% of the Participant's Compensation (as defined
in Section 415(c)(3) of the Internal Revenue Code) for that Plan Year.
5.6 Reduction of Annual Addition. If the Annual Addition to a
Participant's Accounts must be reduced under Section 5.5, it shall be reduced
(a) first by returning After Tax Savings Contributions included in that amount,
(b) if that is insufficient, secondly by returning Before Tax Savings
Contributions included in that amount, and holding any Employer Matching
Contributions attributable to those Before Tax Savings Contributions in a
suspense account to be allocated to the Participant in subsequent years and (d)
if that is insufficient, finally by reducing the amount of his or her Employer
Contributions, Employer Matching Contributions, and Qualified Employer
Contributions in that order (included in that amount) and holding that amount in
a suspense account to be allocated to the Participant in subsequent years. If
the Participant has a Termination of Employment or a death or a before all
amounts in the suspense account under this Section 5.6 held on the Participant's
behalf have been allocated to him or her, then such amounts shall be treated as
a Forfeiture in accordance with Section used to reduce contributions by the
Employers.
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<PAGE> 40
Article 6. Investment Options
6.1 Investment of Accounts.
(a) Investment Funds. A Participant may direct the investment
of his or her Accounts in accordance with the provisions of the Article 6 in the
following Investment Funds: (1) Fidelity Growth Company Fund, (2) Fidelity
Magellan Fund, (3) Fidelity Puritan Fund, (4) Fidelity Equity Fund, (5) Fidelity
Money Market Trust: Retirement Money Market Portfolio, (6) Fidelity OTC
Portfolio, (7) Fidelity Overseas Fund, (8) Fidelity Intermediate Bond Fund, (9)
Gartner Group Stock Fund and any other Investment Funds designated by the
Committee from time to time.
(b) Initial Election. A Participant shall designate on upon
enrollment the portion (in 1% multiples) of the aggregate amounts credited to
his or her Accounts, among the Investment Funds.
6.2 Change in Investment Elections
(a) Subsequent Contributions. Upon notice to the Committee (at
such time and in such manner as the Committee shall prescribe), a Participant
may change effective as of the Valuation Date following the notice the portion
(in 1% multiples) of the aggregate amounts subsequently credited to his or her
Accounts, invested among the Investment Funds.
(b) Account Balance. Upon notice to the Committee (at such
time and in such manner as the Committee shall prescribe), a Participant may
change effective as of Valuation Date following the notice the portion (in 1%
multiples) of the aggregate credit balances in his or her Accounts to be
invested among the Investment Funds.
A Participant's designation of investments under this Section
6.2 shall remain in effect until effectively changed. In the absence of an
effective investment election under this Section 6.2, amounts credited to the
Participant's Accounts and the credit balances in the Accounts shall be invested
in Fidelity Money Market Trust: Retirement Money Market Portfolio.
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Article 7. Withdrawals from Accounts
7.1 General. Upon notice to the Committee (at such time and in such
manner as the Committee shall prescribe), a Participant may withdraw certain
amounts from his or her Accounts. A Participant who is not an Employee may not
make any withdrawals under this Article 7.
7.2 Amount of Withdrawal. A Participant may withdraw the amounts set
forth below:
(a) An amount equal to all or a portion of the credit balance
in his or her After Tax Savings Account;
(b) An amount equal to all or a portion of the credit balance
in his or her Rollover Account;
(c) In the case of a Participant who has attained age 59-1/2,
an amount equal to all or a portion of the credit balance in his or her Before
Tax Savings Account, and Recharacterized Contribution Account; and
(d) In the case of a Participant who has suffered a financial
hardship that meets the requirements of Section 7.4, an amount equal to all or a
portion of the aggregate credit balances in his or her Before Tax Savings
Account and Recharacterized Contribution Account. The aggregate amount of
withdrawals under this clause (f) shall not exceed the sum of (i) the amount of
the Participant's Before Tax Savings Contributions credited to the Participant's
Before Tax Savings Account and Recharacterized Contribution Account as of the
date of the withdrawal, (ii) the portion of the income allocable to the Before
Tax Savings Contributions which has been credited to a Participant's Before Tax
Savings Account and Recharacterized Account as of the last day of the Plan Year
ended before July 1, 1989 and (iii) the credit balance in his or her Employer
Matching Account.
7.3 Special Definition of Hardship for Withdrawal of Before Tax Savings
Contributions. A Participant may make withdrawals under paragraph (e) of Section
7.2
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<PAGE> 42
if he or she has an immediate and heavy financial need of the type described in
paragraph (a) and the distribution is necessary to satisfy the financial need as
determined in accordance with paragraph (b).
(a) Immediate and Heavy Financial Need. A Participant must
have at least one of the following immediate and heavy financial needs:
(1) the purchase (excluding mortgage payments) of the
Participant's principal residence;
(2) unreimbursed medical expenses described in Section
213 of the Internal Revenue Code previously incurred by the Participant, his or
her spouse, children or dependents or unreimbursable medical expenses described
in Section 213 of the Internal Revenue Code necessary for such persons to obtain
medical care;
(3) tuition expenses and related educational fees for
the next twelve months of post-secondary education for the Participant or the
Participant's spouse, children or dependents;
(4) rent or mortgage payments to prevent the eviction
from or foreclosure on a Participant's principal residence;
(5) any other type of financial hardship designated by
the Secretary of the Treasury through the publication of documents of general
applicability in accordance with Section 1.401(k)-1(d)(2)(ii)(3) of the Income
Tax Regulations; or
(b) Distribution Necessary to Satisfy the Financial Need. A
distribution is necessary to satisfy a Participant's financial need if all of
the following requirements are met:
(1) The distribution is not in excess of the amount of
the immediate and heavy financial need of the Participant. The amount of an
immediate and heavy financial need may include any amounts needed to pay any
federal, state or local income taxes or penalties reasonably anticipated to
result from the distribution.
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<PAGE> 43
(2) The Participant has withdrawn all amounts available
under Section 7.2 (other than hardship withdrawals under Section 7.2(f)) and has
taken all nontaxable loans available under Article 8;
(3) The Participant may not make any Before Tax Savings
or After Tax Savings Contributions, under the Plan or any elective contributions
or employee contributions to any other plan maintained by an Affiliated Company
for a period of 12 months beginning on the first day of the month following the
receipt of a hardship withdrawal.
(4) For the Participant's taxable year immediately
following the taxable year of the withdrawal, the Participant may not make
Before Tax Savings Contributions to the Plan (or elective contributions to any
other plan maintained by an Affiliated Company) in an aggregate amount greater
than the excess of (i) the applicable dollar amount under Section 402(g) of the
Internal Revenue Code for that next taxable year over (ii) the amount of the
Participant's Before Tax Savings Contributions (and other elective
contributions) for the taxable year of the hardship withdrawal.
7.4 Payment Made by Trustee. The Committee shall direct the Trustee to
make payment to the Participant in cash of the amount to be withdrawn; the
payment shall be made as soon as practicable after receipt of the Participant's
notice. The Plan Administrator shall reduce the credit balance (pro rata from
each of the relevant investment funds) in the appropriate Accounts of the
Participant to reflect the withdrawal.
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Article 8. Loans
8.1 General. The Committee, in accordance with the provisions of this
Article 8 and procedures it shall establish, may make loans to Participants who
are Employees or former Employees who are parties in interest (as defined in
Section 3(14) of ERISA with respect to the Plan. These procedures shall include
a review of the loan application based upon those factors which would be
considered in a normal commercial setting by an entity in the business of making
similar loans. Loans under this Article 8 (a) must be made available to all
Participants on a reasonably equivalent basis, (b) may not be made available to
Participants who are Highly Compensated Employees in an amount equal to a
greater percentage of their Accrued Benefits than the percentage made available
to other Employees (and the amount of the loan shall not exceed the limitations
imposed by Section 4975 of the Internal Revenue Code), (c) must bear a
reasonable rate of interest and (d) must be adequately secured by the Vested
Interest of the Participant.
8.2 Application for Loan; Frequency. A Participant must apply for a
loan and execute such promissory notes and other documents that the Committee
may require. The Participant's loan application must (a) include his or her
consent to the Trustee's execution on its security in the event of a default
under Section 8.8 and (b) his or her spouse's consent in accordance with Section
11.11 to the use of his or her Vested Interest as security for the loan which
consent must be given during the 90-day period ending on the date on which the
loan is to be secured. Effective as of January 1, 1993, a Participant may not
have more than one loan outstanding under this Article 8.
8.3 Amount of Loan. The minimum amount of a loan shall be $1,000. The
amount of a Participant's loan shall not exceed the lesser of (a) 50% of the
value of the Participant's Vested Interest and (b) $50,000 reduced by the
highest outstanding balance of the Participant's loans from the Plan during the
one year period ending on the date the loan is made. For purposes of this
Section 8.3, a Participant's Vested Interest
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<PAGE> 45
shall be determined as of the Valuation Date coincident with or immediately
following the day of the Participant's application for a loan.
8.4 Reduction of Employee's Accounts. The Committee shall reduce the
account balances credited to the Participant's Accounts to reflect the principal
amount of the loan in proportion to the amount of the credit balances in those
accounts in the following order:
(a) From his or her Employer Account;
(b) From his or her Employer Matching Account;
(c) From his or her After Tax Savings Account;
(d) From his or her Rollover Account;
(e) From his or her Before Tax Savings Account;
(f) From his or her Recharacterized Contribution Account
(g) From his or her Pension Account; and
(h) From his or her Savings and Investment Account.
Amounts shall be reduced pro rata from the Investment Funds in which the
Participant's Accounts are invested. A Participant's payments of principal or
interest on a loan shall be applied to credit the Participant's accounts in the
reverse order that those accounts were reduced and shall be invested in
accordance with his or her investment elections in effect for contributions
under Article 6.
8.5 Interest. The rate of interest on loans shall be a reasonable rate
determined by the Committee from time to time to be commensurate with the
prevailing interest rate charged on similar commercial loans made within the
same locale and time period.
8.6 Security. A loan to a Participant under this Article 8 shall be
secured by 50 percent of his or her Vested Interest. The grant of a security
interest under this Section 8.1 shall not be a violation of Section 16.1.
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<PAGE> 46
8.7 Duration and Repayment of Loans. Loans shall be repaid within five
years in substantially level installments payable at least quarterly. In the
case of a loan which the Committee determines at the time made is to be used to
acquire the principal residence of the Participant, the repayment period may be
extended by the Committee in its discretion to 15 years. All loans shall be
repaid in full upon the Participant's Termination of Employment, or death. The
Committee shall require repayment by payroll deduction. The Participant may
prepay all of the outstanding principal and interest on a loan at but not
earlier than 12 months after the loan was made.
8.8 Default on Loan. A Participant's failure to repay a loan in full
within 30 days of his or her Termination of Employment, Retirement, death or the
Committee's inability to satisfy the scheduled loan repayments by a payroll
deduction as specified in Section 8.7 shall constitute a default on the loan. If
a Participant defaults on a loan, the Trustee, at the direction of the
Committee, shall execute on its security interest with respect to the loan. The
Trustee shall not levy against any portion of the Participant's security
interest attributable to any of his or her accounts until a distribution from
that account may otherwise be made in accordance with the requirements of
Section 401(a) of the Internal Revenue Code.
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<PAGE> 47
Article 9. Valuation, Allocation and Accounting
9.1 Valuation of Assets. As soon as practicable after each Valuation
Date, the Trustee shall make a separate determination of the net value of the
assets of the Investment Funds as of that Valuation Date . In making the
determination of net value, (a) all income accrued since the previous Valuation
Date shall be included, (b) Before Tax Savings Contributions, After Tax Savings
Contributions, Employer Contributions, Employer Matching Contributions, Rollover
Amounts and loan repayments received since the preceding Valuation Date shall be
excluded, (c) investment changes under Article 6, withdrawals under Article 7,
loans under Article 8 and (d) distributions under Article 12 since the preceding
Valuation Date shall be taken into account.
9.2 Method of Valuing Non-Cash Assets. In determining the net value of
the assets of the Trust Fund, the value of any asset other than cash (including
Employer Stock) shall be determined in accordance with the customary method of
valuation employed by the Trustee or, if no one method is customarily employed
by the Trustee, as follows:
(a) any security listed on a national securities exchange
shall be valued at its closing price on the Valuation Date and any security
traded only in the over-the-counter market shall be valued at the mean of the
closing bid and asked prices for the security on the Valuation Date (or if it
was not traded or quoted on the Valuation Date, on the most recent day prior to
the Valuation Date on which it was traded or quoted), as reported in the Wall
Street Journal (or if not reported in the Wall Street Journal, as reported by
any recognized broker or dealer regularly trading in that security); and
(b) any other assets of the Trust Fund shall be valued at
their fair market value as determined by the Trustee, as of the Valuation Date.
The Trustee's determination of the value of any asset shall be conclusive and
binding upon all Employers, the Committee and all Participants and
Beneficiaries. In making its
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<PAGE> 48
determination of value, the Trustee may rely upon the opinion of any appraiser
or other expert that it believes appropriate to consult.
9.3 Allocation of Net Value. As soon as practicable after each
Valuation Date, the Plan Administrator shall allocate the total net value of
each of Investment Funds and as determined under Section 9.2, among the Accounts
of all Participants as of that date in the respective proportions that the
credit balance in each Account that is invested in each of those funds as of the
immediately preceding Valuation Date bears to the sum of the credit balances in
all Accounts invested in that fund as of that Valuation Date. This allocation
shall be made for each Valuation Date (a) before crediting the Before Tax
Savings Contributions, After Tax Savings Contributions, Employer Contributions,
Employer Matching Contributions, Qualified Employer Contributions, Rollover
Amounts and loan repayments made since the preceding Valuation Date and (b)
after taking into account investment changes under Article 6, any withdrawals
under Article 7, loans under Article 8 and distributions under Article 12 since
the preceding Valuation Date.
9.4 Participant Transfers. The following rules shall apply in the case
of a Participant who is transferred from an Employer to another Affiliated
Company.
(a) If a Participant transfers from the employ of one Employer
to another, the credit balance then in each of his or her accounts (after all
adjustments in accounts under Section 9.1 have been made for the month of
transfer) shall be transferred to accounts for him or her as an Employee of his
or her new Employer, and the Participant shall be deemed an Employee of his or
her new Employer for all purposes.
(b) If a Participant is transferred to an Affiliated Company
which has not adopted this Plan, he or she shall no longer be permitted to make
Before Tax Savings Contributions, and After Tax Savings Contributions, nor will
he or she be credited with Employer Matching Contributions, Employer
Contributions, or Qualified
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<PAGE> 49
Employer Contributions. The credit balance in his or her Accounts shall remain
in those Accounts and he or she shall continue to receive an allocation of the
net value of the Trust Fund under Section 9.1 and his or her rights and
obligations with respect to his or her Accounts shall continue to be governed by
the provisions of the Plan and Trust Agreement.
9.5 Employee's Accounts. The Plan Administrator shall maintain a
separate Before Tax Savings Account, After Tax Savings Account, Employer
Matching Account, Employer Account, Recharacterized Contribution Account,
Pension Plan Account, Savings and Investment Account and Rollover Account. All
distributions and payments to a Participant or his or her Beneficiary shall be
charged against the appropriate Accounts of that Participant.
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<PAGE> 50
Article 10. Vesting
10.1 Employer Account and Pension Plan Account.
(a) Subject to Section 10.1(b), if a Participant has been
credited with one or more Vesting Years of Service, a portion of the
Participant's credit balances in his or her Employer Account and Pension Plan
Account shall be nonforfeitable. The nonforfeitable portion shall be an amount
equal to a Participant's credit balances in his or her Employer Account and
Pension Account multiplied by a percentage based upon the number of the
Participant's Vesting Years of Service as follows:
<TABLE>
<CAPTION>
Number of the
Participant's
Vesting Years of Nonforfeitable
Service Percentage
------- ----------
<S> <C>
0 0%
1 20%
2 40%
3 60%
4 80%
5 100% or more
</TABLE>
(b) The credit balances in a Participant's Employer Account
and Pension Plan Account shall become nonforfeitable upon the earliest (1) the
Participant's Normal Retirement Date, if he or she is an Employee at that time,
(2) the Participant's incurrence of a Permanent Disability while an Employee and
(3) the Participant's death while an Employee.
10.2 Vesting Upon Reemployment. The nonforfeitable portion of a
Participant's Employer Account and Pension Plan Account shall be determined
under this Section 10.2 instead of Section 10.1 if the Participant (1) receives,
upon his or her Termination of Employment, a distribution from his or her
Employer Account and Pension Plan Account in an amount less than the credit
balance in those Accounts and (2)
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<PAGE> 51
subsequently resumes employment with an Employer without having a at least five
consecutive Breaks in Service. In that event, the nonforfeitable portion of the
Participant's Employer Account shall be an amount equal to the excess, if any,
of (i) the sum of the credit balance in each of the Participant's Employer
Account and Pension Account (including the amount credited under Section 4.8)
plus the amount previously distributed to him or her upon Termination of
Employment, multiplied by the nonforfeitable percentage determined in accordance
with Section 10.1 over (ii) the amount of the distribution upon Termination of
Employment.
10.3 Other Accounts. The credit balances in each of the Participant's
Before Tax Savings Account, After Tax Savings Account, Employer Matching
Account, Qualified Employer Account, Recharacterized Contribution Account, and
Rollover Account shall be nonforfeitable at all times.
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<PAGE> 52
Article 11. Distributions
11.1 Forms of Distribution. Subject to Sections 11.2, 11.3 and 11.6, a
Participant shall be entitled to elect to receive distribution of his or her
Vested Interest (determined under Section 11.5) by one of the following methods:
(a) Single distribution of the full amount payable;
(b) Installments - monthly, quarterly, semi-annually,
annual
installments over a period not exceeding the Participant's life expectancy or
subject to Section 11.12(c), the joint life expectancy of the Participant and
his Beneficiary. The amount of each installment shall equal the amount of the
Participant's unpaid Vested Interest (determined as of the Valuation Date
preceding the payment) divided by the number of remaining payments to be made.
(c) Single life annuity with no ancillary features.
(d) Qualified Joint and Survivor Annuity.
(e) A joint and 100% or 75% survivor annuity with his or
her spouse;
A Participant's election under this Section 11.1 (which
includes the designation of a contingent Beneficiary) must be made during the
90-day period preceding the Participant's Annuity Starting Date. This election
may not be changed after the Participant's Annuity Starting Date. In the absence
of an effective election under this Section 11.1 a Participant shall be deemed
to have elected a distribution in the form of a Qualified Joint and Survivor
Annuity. In the case of a Participant who is not married, a single life annuity
shall be deemed a Qualified Joint and Survivor Annuity.
Subject to Sections 11.3 and 11.9, a Beneficiary's
distribution shall be in the form of a lump sum.
11.2 Vested Interest Not in Excess of $3,500. If the value of a
Participant's Vested Interest (determined under Section 9.5) does not exceed
$3,500, the
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<PAGE> 53
method of distribution as to that Participant shall be as a single payment of
the full amount payable.
11.3 Direct Transfer - Subject to Section 11.7 and the rules set forth
below, a Participant who receives distribution of his or her Vested Interest in
a form which qualifies as an eligible rollover distribution (as defined in
Section 401(a)(31) of the Internal Revenue Code) may elect, at the time and in
the manner prescribed by the Committee, to have all or any portion of that
distribution paid directly to any eligible retirement plan (as defined in
Section 402(c)(8)(B) of the Internal Revenue Code.) The Committee shall notify
the Participant of this option no earlier than 30 days and no more than 90 days
before distribution of benefits is to begin under Section 11.4. This option
shall apply only to a Participant, his or her surviving spouse, or his or her
former spouse who is entitled to a distribution under the Plan as an alternate
payee under a qualified domestic relations order as defined in Section 414(p) of
the Internal Revenue Code. The following rules shall apply with respect to
direct transfers under this Section 11.3.
(a) A Participant who is reasonably expected to have an
eligible rollover distribution during the calendar year that totals less than
$200 may not elect a direct transfer under this Section 11.3.
(b) If a Participant elects a direct transfer of a portion of
an eligible rollover distribution, that portion must be equal to at least $500.
(c) A Participant may not divide his or her eligible rollover
distribution into separate distributions to be transferred to two or more
eligible retirement plans.
(d) A Participant's election to make or not make a direct
rollover with respect to one payments in a series of periodic payments which
qualify as an eligible rollover distribution shall apply to all subsequent
payment in the series unless the Participant elects otherwise.
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<PAGE> 54
(e) If a Participant does not make an election with respect
to an eligible rollover distribution before distribution of his benefit is to
begin. he or she will be treated as not having elected a direct transfer under
this Section 11.3.
11.4 Timing of Distribution.
(a) Distribution of a Participant's Vested Interest
(determined under Section 11.6) shall begin on the earliest of:
(1) as soon as practicable after the day of the
Participant has a Termination of Employment on or after his or her Normal
Retirement Date;
(2) as soon as practicable after the Participant's
Termination of Employment before attaining age 65 if the value of his Vested
Interest does not exceed $3,500,
(3) as soon as practicable after the Participant's
Normal Retirement Date, if the Participant has a Termination of Employment prior
to that time, unless the Participant elects under Section 11.5 to commence to
receive distribution at a different time,
(4) effective for all Participants (other than those
who attained age 70-1/2 before January 1, 1988 and are not Five Percent Owners
during the Plan Year ending with or within the calendar year in which they
attain age 66-1/2 or any subsequent Plan Year), the first day of April
immediately following the Plan Year in which he or she attains age 70-1/2, but
no earlier than April 1, 1990. For purposes of clause (iv) of this Section 9.3,
a Participant shall be deemed to be a Five Percent Owner if he or she was a Five
Percent Owner at any time during the five Plan Year period ending in the
calendar year in which he or she attains age 70-1/2.
(5) Subject to Section 11.9(c), as soon as practicable
after the Participant's death.
In no event shall a Participant receive distribution of his or
her Vested Interest later than 60 days after the end of the Plan Year in which
occurs the later of (1)
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<PAGE> 55
the Participant's Retirement, (2) the date the Participant attains age 65 or (3)
the tenth anniversary of the Participant's participation in the Plan.
11.5 Election to Receive Distribution Before Normal Retirement Date. A
Participant who has a Termination of Employment before (a) his Normal Retirement
Date and (b) has a Vested Interest (determined under Section 11.6) which exceeds
$3,500 in value may elect (at such time and in such manner as the Committee
shall prescribe) to have distribution of his Vested Interest commence as of a
date before his Normal Retirement Date. In that event, distribution of the
Participant's Vested Interest shall commence as soon as practicable following
the election.
11.6 Valuation of Vested Interest. Except as otherwise provided in the
following sentence, for purposes of Sections 11.1, 11.4, 11.5 11.7 and 11.9, the
amount of a Participant's Vested Interest shall be valued as of the Valuation
Date of the distribution. For purposes of determining whether a Participant's
Vested Interest does not exceed $3,500 under Sections 11.2, 11.4, 11.5, 11.7 and
11.9, a Participant's Vested Interest shall be valued as of the Valuation Date
immediately following the event that entitles him or her to a distribution under
Section 11.3.
11.7 Qualified Joint and Survivor Annuity. If the value of the Vested
Interest of a married Participant exceeds $3,500, he or she shall receive
distribution of his benefits in the form of a Qualified Joint and Survivor
Annuity, unless within the 90 day period immediately before the Participant's
Annuity Starting Date the Participant has elected not to receive distribution of
benefits in this form of annuity and his spouse has consented to that election
under Section 11.11. Both the Participant's waiver and the spouse's consent must
state the particular optional form of benefit to be distributed and any
nonspouse Beneficiary or class of nonspouse Beneficiaries. Alternatively the
spouse's consent may permit the Participant to elect any optional form of
benefit available under the Plan and designate any contingent Beneficiary. Such
a general consent must acknowledge that the spouse has voluntarily relinquished
rights to limit
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<PAGE> 56
consent to a specific form of benefit or Beneficiaries or both. Any such
election may be revoked at any time before distribution of benefits commences
and, once revoked, may be made again.
11.8 Notification of Right to Waive Qualified Joint and Survivor
Annuity. Within the period beginning no earlier than 90 days before the
Participant's Annuity Starting Date and no later than 30 days before his or her
Annuity Starting Date, the Retirement Committee shall provide each Participant
(whether a not married) with notice (in the manner provided in regulations
promulgated by the Secretary of the Treasury) of the Participant's right to
elect to waive his or her right to receive distribution of his or her Vested
Interest in the form of a Qualified Joint and Survivor Annuity. The notice shall
contain an explanation in non-technical language of (a) the terms and conditions
of the election and its effects upon the Participant's benefit (in terms of
dollars per annuity payment), (b) the requirement that the Participant's spouse
must consent to the election in accordance with Section 11.11, (c) the
Participant's right to revoke the election in the manner provided in regulations
promulgated by the Secretary of the Treasury and (d) a general description of
the eligibility conditions and other features of the optional forms of benefit
under the Plan and sufficient information to explain the relative values of
these optional forms of benefits. For purposes of this Section 11.8, a Qualified
Joint and Survivor Annuity for an unmarried Participant shall be a single life
annuity with no ancillary benefits.
11.9 Death Benefit.
(a) Married Participants. The following provisions shall apply
in the case a Participant who has been married for at least one year upon his
death before distribution of his or her benefits begin:
(1) His or her spouse shall be entitled to receive a
benefit equal in value to 50% of the Participant's Vested Interest unless he or
she has previously elected that his or her spouse not receive this benefit and
his or her spouse has
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<PAGE> 57
consented to that election in accordance with Section 11.11. The benefit under
this Section 11.9(a)(1) shall be distributed to the Participant's spouse at the
time specified in Section 11.9(c) and shall be paid in the form of a single life
annuity for the life of the Participant's spouse unless (a) the Participant's
spouse elects to receive the benefit in a single cash payment under Section 9.2
(a) or (b) the value of the benefit is $3,500 or less and then it will be
distributed as a single cash payment.
(2) The portion of a Participant's Vested Interest not
distributed to his spouse under this Section 11.9 shall be distributed to the
Participant's Beneficiary in a single cash payment at the time specified in
Section 11.4.
(3) The period during which a Participant may elect not
to have his spouse receive the 50% death benefit described in this Section
11.9(a)(1) shall begin on the first day of the Plan Year in which he attains age
35 (or, if later within a reasonable period after the individual becomes a
Participant) and shall end on the day of his death. A Participant may elect not
to have his or her spouse receive the death benefit described in this Section
11.9 before the Participant attains age 35, except that such a waiver shall
become invalid on the first day of the Plan Year in which the Participant
attains age 35. In order for a waiver to be effective after the first day of the
Plan Year in which the Participant attains age 35, it must be made again.
(b) Unmarried Participants. If a Participant is not married
for at least one year before distribution of his benefits begin, upon his death,
his or her Beneficiary shall receive a death benefit equal to his Vested
Interest in the form of a single cash payment.
(c) Timing of Distributions. If the Participant's spouse is
the Beneficiary of the 50% death benefit described in the first Section of
Section 11.9(a), the death benefit shall be distributed to the Participant's
spouse as soon as practicable after the Participant's Normal Retirement Date had
the Participant lived, unless the spouse elects (at such time and in such manner
as the Committee shall prescribed) an earlier
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<PAGE> 58
distribution. In that event, distribution of the death benefit shall commence as
soon as practicable after the spouse's election. All other death benefits shall
be distributed as soon as practicable after the Participant's death in
accordance with Section 11.4(e).
11.10 Notification of Right to Waive Spousal Death Benefit. The Plan
Administrator shall give each Participant written notice of his right to waive
his right to have his spouse receive the death benefit under Section 11.9(a)(1).
The notice shall be given both (a) in the case of an individual who becomes a
Participant before age 35, within the period beginning one year before the
individual becomes a Participant and ending one year after the individual
becomes a Participant and (b) within the period beginning on the first day of
the Plan Year in which the Participant attains age 32 and ending on the last day
of the Plan Year in which he attains age 35 (or (i) if the Employee becomes a
Participant after the first day of the Plan Year in which he attains age 32,
within the period beginning one year before the individual becomes a Participant
and ending one year after the individual becomes a Participant or (ii) if the
Participant has a Termination of Employment before he attains age 35, within the
one year period beginning one year before the Participant's Termination of
Employment and ending one year after the Participant's Termination of
Employment). The notice, which shall be given in the manner provided in
regulations promulgated by the Secretary of the Treasury, shall contain an
explanation of the terms and conditions of the election and its effects upon the
Participant's benefit (in terms of dollars per annuity payment), the requirement
that the Participant's spouse must consent to the election in accordance with
Section 11.11 and the Participant's right to revoke the election in the manner
provided in regulations promulgated by the Secretary of the Treasury.
11.11 Spousal Consent. A Participant's waiver of a Qualified Joint and
Survivor Annuity described in Section 11.6 or the spouse's death benefit under
Section 11.9(a)(1) shall be valid only if the Participant's spouse executes a
written consent to that election acknowledging the effect of the election and
the consent is witnessed by a
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<PAGE> 59
notary public or Plan official. The spouse's consent is not required if (a) the
Participant establishes that the spouse's consent cannot be obtained because the
Participant does not have a spouse, the Participant's spouse cannot be located
or for such other circumstances as may be provided in regulations promulgated by
the Secretary of the Treasury, (b) the Participant is legally separated from the
spouse or (c) the Participant has been abandoned by his or her spouse (within
the meaning of local law) and the Participant has a court order to that effect.
A Participant's waiver of a Qualified Joint and Survivor Annuity or spouse's
death benefit shall only be effective with respect to the spouse who consents to
it as provided in this Section 11.11.
11.12 Minimum Distribution.
(a) In the case of a Participant who remains an Employee after
he attains age 70-1/2 (other than a Participant who attains age 70-1/2 before
January 1, 1988 and is not a Five Percent Owner during the Plan Year ending with
or within which he attains age 66-1/2 or any subsequent Plan Year), distribution
of his Accrued Benefit shall begin no later than the April 1 immediately
following the calendar year in which he attains age 70-1/2. With respect to each
calendar year beginning with the calendar year the Participant attains age
70-1/2 and ending with the calendar year before the calendar year in which the
Participant has a Termination of Employment, he or she shall receive the
distribution of the "minimum distribution amount" described in paragraph (b) of
this Section 9.12. Upon the Participant's Termination of Employment his or her
Accrued Benefit shall be distributed to him or her in accordance with Section
8.1.
(b) The "minimum distribution amount" for each calendar year
shall be equal to the quotient of the Participant's Accrued Benefit (determined
as of the last day of the calendar year preceding the calendar year with respect
to which the distribution is being made) divided by the applicable life
expectancy. The applicable life expectancy shall be no greater than the joint
life expectancy of the Participant and his Beneficiary. The life expectancy of
the Participant (and his Beneficiary) shall be
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<PAGE> 60
determined using the Participant's (and the Beneficiary's) attained age as of
the Participant's most recent birthday (and the Beneficiary's most recent
birthday) in the year in which the Participant attains age 70-1/2. The life
expectancy of the Participant and his spouse shall not be recalculated annually
after it has been determined under the previous sentence.
(c) Any distribution under this Plan shall satisfy the minimum
distribution incidental benefit requirements under Section 401(a)(9) of the
Internal Revenue Code.
(d) If a Participant dies after distribution of his or her
benefits has commenced, the remaining portion, if any, of his or her benefit
shall be distributed to his or her Beneficiary at least as rapidly as it would
have been distributed under the method of distribution in effect on the day of
his death.
(e) If a Participant dies before distribution of benefits to
him or her has commenced, his or her entire benefit shall be distributed to his
Beneficiary within five years of the Participant's death or, if later, in the
case of a Beneficiary who is the Participant's spouse, the December 31 of the
year the Participant would have attained age 70-1/2. Alternatively, if the
distribution of benefits commences as of the December 31 of the year after the
Participant's death (or, if later, in the case of a Beneficiary who is the
Participant's spouse, the December 31 of the year the Participant would have
attained age 70-1/2), then the benefit may be distributed over a period not
extending beyond the life expectancy of the Beneficiary.
11.13 Annuities. Any distribution of benefits in the form of an annuity
shall be made by the purchase of a nontransferable immediate or deferred payment
annuity contract from an insurance company selected by the Retirement Committee.
11.14 Form of Distribution. Distribution under this Article 9 shall be
made in cash or property.
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11.15 Release. Upon any distribution, the Trustee, the Retirement
Committee or any Employer may require execution of a receipt and release, in
form and substance satisfactory to it, of all claims under this Plan.
11.16 Incapacity. If, in the judgment of the Retirement Committee, any
person is legally, physically or mentally incapable of personally receiving and
executing a receipt for any distribution or payment due him or her under this
Plan, the distribution or payment may be made to the person's guardian or other
legal representative (or if none is known to the Firm, to any other person or
institution who has custody of the person) and that distribution or payment
shall constitute a full discharge of any obligation with respect to the amount
paid or distributed.
11.17 Lost Participant. Neither the Retirement Committee nor the
Trustee shall be obligated to search for or ascertain the whereabouts of any
Participant or Beneficiary (other than to write to the Participant at his or her
last mailing address shown in the Retirement Committee's records). If it is
determined that a Participant or Beneficiary cannot be located, the
Participant's or Beneficiary's Vested Interest shall be forfeited as of the
Valuation Date immediately following that determination, but shall be reinstated
(without interest) upon the Participant's or Beneficiary's claim for the Vested
Interest before that Vested Interest escheats under applicable state law. If a
benefit is required to be reinstated it will be done within sixty days after the
close of the Plan Year in which the Participant or Beneficiary makes a claim for
the benefit.
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<PAGE> 62
Article 12. Funding
12.1 Funding Policy. Each Employer shall contribute cash or property to
the Trust in an amount equal to the aggregate amount credited under Article 3
and the aggregate amount credited under Article 4. If, with respect to an
Employer, the amount of Forfeitures for any Plan Year exceeds its share of the
Employer Matching Contributions, Employer Contributions, and Plan expenses (and
allocations under Section 4.8) for that Plan Year, the excess shall be treated
under this Section 13.1 as Forfeitures arising in succeeding Plan Years.
12.2 Establishment and Review of Funding Policy. The Committee shall
establish a funding policy and method consistent with the objectives of the Plan
and the requirements of Title I of ERISA. The Committee shall review the funding
policy and method at least annually. In establishing and reviewing the funding
policy and method, the Board shall try to determine the Plan's short-term and
long-term objectives and financial needs, taking into account the need for
liquidity to pay benefits and the need for investment growth.
12.3 Employer Contributions Irrevocable. Subject to Section 13.4, any
contribution made by an Employer shall be irrevocable and shall be held and
disposed of by the Trustee solely in accordance with the provisions of this Plan
and the Trust Agreement.
12.4 Exceptions to Irrevocability. Each contribution made by an
Employer or an Employee shall be deemed to be conditioned upon the deductibility
of the contribution under Section 404 of the Internal Revenue Code. If the
deduction of all or part of any contribution is disallowed, it shall, to the
extent disallowed, be repaid to the Employer within one year after the date of
disallowance. A contribution also will be repaid to an Employer, within one year
after the date made, to the extent it was made in error because of a mistake of
fact.
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Article 13. Administration of Plan
13.1 The Board. The Board shall appoint the members of the Committee,
the Trustee and any Investment Manager, and shall be responsible for the
establishment of the Trust and the amendment and termination of this Plan and
the Trust Agreement.
13.2 The Committee. This Plan shall be administered by the Committee,
which shall have the responsibilities and duties and powers delegated to it in
this Plan and any responsibilities and duties under this Plan which are not
specifically delegated to anyone else.
13.3 The Trustee. The Trustee (who shall be appointed by the Committee)
shall have exclusive authority and discretion to manage and control the Trust
Fund except to the extent that authority to manage the assets held by the Trust
is delegated by the Board to an Investment Manager. The Trustee may designate
agents or others to carry out certain of the administrative responsibilities in
connection with management of the Trust.
13.4 The Plan Administrator. The Plan Administrator (who shall be
appointed by the Committee) shall be responsible for (a) the maintenance of all
records of Participants and Beneficiaries necessary for the administration of
this Plan and (b) the taking of any action necessary to meet the reporting and
disclosure requirements imposed by ERISA. The Committee may authorize the Plan
Administrator to designate agents to carry out certain of his or her
responsibilities.
13.5 Decisions and Actions of the Committee. The Committee from time to
time may establish rules for the administration of this Plan. The Committee
shall have the sole discretion to make decisions and take any other actions with
respect to questions arising in connection with the Plan, including the
construction of the Plan and the Trust Agreement. The decisions and actions of
the Committee as to any questions arising in connection with the Plan, including
the construction and interpretation of the Plan and the Trust Agreement, shall
be final and binding upon all Participants and Beneficiaries.
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<PAGE> 64
13.6 Investment Responsibilities of the Committee. The Committee shall
have the responsibility and authority to determine the objectives, policies and
guidelines for the investment of the Trust Fund and each investment fund
established as a part thereof, including, but not by way of limitation, the
establishment of additional investment funds or the consolidation of one or more
of the existing funds. The Committee shall have the authority to select,
appoint, monitor or discharge Investment Managers or mutual funds managed by an
investment adviser registered under the Investment Advisors Act of 1940, or
contracts issued by insurance companies, for purposes of investing the assets of
the Trust Fund and each investment fund established as a part thereof.
13.7 Membership of the Committee. The Committee shall consist of at
least 2. Each person appointed a member of the Committee shall file his or her
acceptance of the appointment with the secretary of the Company. Any member of
the Committee may resign by delivering his or her written resignation to the
secretary of the Company; the resignation shall become effective when received
by the secretary of the Company (or at any other time agreed upon by the member
and the Board). The Board may remove any member of the Committee at any time,
with or without cause, upon notice to the member being removed. Notice of the
appointment, resignation, or removal of a member of the Committee shall be given
by the Board to the Trustee and to the members of the Committee.
13.8 Officers and Meetings of the Committee. The Committee shall elect
a chairman and a secretary (who need not be a member of the Committee) and shall
hold meetings upon such notice and at such times and places as it may from time
to time determine. Notice of a meeting need not be given to any member of the
Committee who submits a signed waiver of notice before or after the meeting or
who attends the meeting.
13.9 Procedures of the Committee. A majority of the total number of
members of the Committee shall constitute a quorum for the transaction of
business.
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The vote of a majority of the members of the Committee present at the time of a
vote, if a quorum is present at the time, shall be required for action by the
Committee. Resolutions may be adopted or other action taken without a meeting
upon the written consent of all members of the Committee. Any person dealing
with the Committee shall be entitled to rely upon a certificate of any member of
the Committee, or its secretary, as to any act or determination of the
Committee.
13.10 Subcommittee, Advisors and Agents of The Committee. The Committee
may (a) appoint subcommittees with such powers as the Committee shall determine
advisable, (b) authorize one or more of its members or an agent to execute any
instrument, and (c) utilize the services of Employees and engage accountants,
agents, clerks, legal counsel, medical advisers, and professional consultants
(any of whom may also be serving an Employer or an Affiliated Company) to assist
in the administration of this Plan or to render advice with regard to any
responsibility under the Plan.
13.11 Liability of the Committee. The members of the Committee and the
Employers shall have no liability with respect to any action or omission made by
them in good faith nor from any action made in reliance upon (a) the action of
the Trustee, (b) the advice or opinion of any accountant, legal counsel, medical
adviser or other professional consultant or (c) any resolutions of the Board
certified by the secretary or assistant secretary of the Company.
13.12 Allocation of Plan Expenses. All expenses relating to the Plan
prior to the termination of the Plan shall be borne ratably by the Employers to
the extent not paid from the Trust. Brokerage commissions, transfer taxes and
other charges or expenses in connection with the purchase or sale of securities
shall be included in the cost of the securities. Notwithstanding the foregoing,
the Committee may charge an application fee in connection with a loan under
Article 8. Any Employee who serves as a Trustee, Plan Administrator, or member
of the Committee shall receive no compensation for such service. The Company may
require any Trustee, Plan
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<PAGE> 66
Administrator or member of the Committee to furnish a fidelity bond satisfactory
to the Company; the premium for any
fidelity bond shall be an expense of the Plan, except to the extent paid by an
Affiliated Company.
13.13 Service in More than One Capacity. Any person or group of persons
may service the Plan in more than one capacity, including service both as Plan
Administrator and as a member of the Committee.
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<PAGE> 67
Article 14. Management of Trust Fund
14.1 The Trust Fund. The Trust Fund shall be held in trust by the
Trustee appointed from time to time (before or after termination of this Plan)
by the Committee pursuant to the Trust Agreement. The Trustee shall have the
powers specified in the Trust Agreement.
14.2 Exclusive Benefit. The Trust Fund shall be used in accordance with
the provisions of this Plan and for the exclusive purpose of providing benefits
for Participants and their Beneficiaries and for defraying reasonable expenses
of the Plan and of the Trust. The Trustee shall cause the Trust Fund to consist
of the Investment Funds.
14.3 Liability. The Company, the Trustee, and the Committee shall have
no liability with respect to a Participant's investment designation under
Section 6.1.
14.4 Trust Fund. Subject to Section 14.1, the Trust Fund may be
invested in accordance with the Trust Agreement.
14.5 Trust Agreement. The Trust Agreement shall be a part of this Plan
and any rights or benefits under this Plan shall be subject to all the terms and
provisions of the Trust Agreement.
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<PAGE> 68
Article 15. Benefit Claims Procedure
15.1 Claim for Benefits. Any claim for benefits under this Plan shall
be made in writing to the Committee. If a claim for benefits is wholly or
partially denied, the Committee so notify the Participant or Beneficiary within
90 days after receipt of the claim. The notice of denial shall be written in a
manner calculated to be understood by the Participant or Beneficiary and shall
contain (a) the specific reason or reasons for denial of the claim, (b) specific
references to the pertinent Plan provisions upon which the denial is based, (c)
a description of any additional material or information necessary to perfect the
claim together with an explanation of why such material or information is
necessary and (d) an explanation of the claims review procedure.
15.2 Review of Claim. Within 60 days after the receipt by the
Participant or Beneficiary of notice of denial of a claim (or at such later time
as may be reasonable in view of the nature of the benefit subject to the claim
and other circumstances), the Participant or Beneficiary may (a) file a request
with the Committee that it conduct a full and fair review of the denial of the
claim, (b) review pertinent documents and (c) submit questions and comments to
the Committee in writing.
15.3 Decision After Review. Within 60 days after the receipt of a
request for review under Section 15.2, the Committee shall deliver to the
Participant or Beneficiary a written decision with respect to the claim, except
that if there are special circumstances (such as the need to hold a hearing)
which require more time for processing, the 60-day period shall be extended to
120 days upon notice to the Participant or Beneficiary to that effect. The
decision shall be written in a manner calculated to be understood by the
Participant or Beneficiary and shall (a) include the specific reason or reasons
for the decision and (b) contain a specific reference to the pertinent Plan
provisions upon which the decision is based.
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<PAGE> 69
Article 16. Non-Alienation of Benefits
16.1 Non-Alienation. Subject to Section 16.2, Accrued Benefits under or
interests in this Plan shall not be assignable or subject to alienation,
hypothecation, garnishment, attachment, execution or levy of any kind. Any
action in violation of this provision shall be void.
16.2 Qualified Domestic Relations Orders. Section 16.1 shall not apply
to the creation, assignment or recognition of a right to the Accrued Benefits of
a Participant pursuant to a qualified domestic relations order (as defined in
Section 414(p) of the Internal Revenue Code). The Committee shall establish
reasonable procedures for determining whether a domestic relations order is a
qualified domestic relations order and for administering distributions under a
qualified domestic relations order.
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<PAGE> 70
Article 17. Designation of Beneficiary
17.1 Designation of Beneficiary. Subject to Sections 11.7 and 11.9,
Participants may designate a Beneficiary in the form and manner prescribed by
the Committee. The Committee, in its discretion, may specify conditions or other
provisions with respect to the designation of a Beneficiary. Any designation of
a Beneficiary may be revoked by filing a later designation or revocation. In the
absence of an effective designation of a Beneficiary by a Participant or upon
the death of all Beneficiaries, a Participant's Accrued Benefit shall be paid to
the Participant's estate.
17.2 Effective Date of Designation. Any designation or revocation of a
designation of a Beneficiary shall become effective when actually received by
the Committee but shall not affect any distribution previously made pursuant to
a prior designation.
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<PAGE> 71
Article 18. Amendment
18.1 Amendment. The Board may amend this Plan at any time but no
amendment may (a) entitle an Employer to receive any part of the Trust Fund, (b)
substantially increase the duties or liabilities of the Trustee without its
prior written consent, or (c) have the effect of reducing the accrued benefit
(within the meaning of Section 411(d)(6) of the Internal Revenue Code) of anyone
who is a Participant on the date the amendment is adopted or becomes effective,
whichever is later.
18.2 Amendment to Vesting Provisions. If the vesting provisions set
forth in Article 11 are amended, any Participant who, as of the effective date
of the amendment has been credited with three or more Years of Service in the
aggregate, may irrevocably elect to have his nonforfeitable interest computed
without regard to the amendment. Notice of the amendment and the availability of
the election shall be given to each such Participant, and the election may be
exercised by the Participant by notice to the Committee within 60 days after the
later of (a) his or her receipt of the notice, (b) the day the amendment is
adopted or (c) the effective date of the amendment.
18.3 Amendment to Maintain Qualified Status. Notwithstanding anything
to the contrary in Section 19.1, the Board, in its discretion, may make any
modifications or amendments to the Plan, retroactively or prospectively, which
it deems appropriate to establish or maintain the Plan and the Trust Agreement
as a qualified employee's plan and trust under Sections 401 and 501 of the
Internal Revenue Code.
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<PAGE> 72
Article 19. Adoption and Withdrawal from Plan by Affiliated Company
19.1 Adoption by Affiliated Company. Any Affiliated Company, whether or
not presently existing, may, with the approval of the Board, adopt this Plan by
proper corporate actions.
19.2 Withdrawal by Employer. Any Employer may at any time withdraw from
the Plan upon giving the Board, the Committee and the Trustee at least 30 days
notice of its intention to withdraw. The Board in its discretion may direct that
any Employer withdraw from the Plan.
19.3 Segregation of Assets Upon Withdrawal. Upon the withdrawal of an
Employer under Section 19.2, the Trustee shall in accordance with the directions
of the Committee segregate a share of the assets in the Trust Fund equal in
value to the total Accrued Benefits of Participants who are Employees of that
Employer.
19.4 Applicability. The withdrawal provisions of this Article 20 shall
be applicable only if the withdrawing Employer continues to cover its
Participants and eligible Employees in a comparable plan and trust qualified
under Sections 401 and 501 of the Internal Revenue Code. Otherwise, the
termination provisions of this Plan shall apply with respect to the withdrawing
Employer.
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<PAGE> 73
Article 20. Termination; Merger, Consolidation or Transfer of Assets
20.1 Full Vesting Upon Plan Termination. Upon the termination or
partial termination (as that term is defined for purposes of Section 411(d)(3)
of the Internal Revenue Code) of this Plan or upon the complete discontinuation
of contributions by an Employer, the entire Accrued Benefits as of the date of
termination in the Employer Accounts and Employer Matching Accounts of the
affected Participants shall be nonforfeitable.
20.2 The Committee and Trustee. If the entire Plan is terminated, the
Committee shall continue to function and may fill any vacancies which may occur
in its own membership (if the Board fails to do so) until the Trustee has
rendered its final account and that account has been approved (in the manner
provided in the Trust Agreement).
20.3 Merger, Consolidation or Transfer of Assets. Neither this Plan nor
the Trust may be merged or consolidated with, nor may its assets or liabilities
be transferred to any other plan or trust unless each Participant would receive
a benefit immediately after the merger, consolidation or transfer, if the Plan
then terminated, which is equal to or greater than the benefit he or she would
have been entitled to receive immediately before the merger, consolidation, or
transfer if this Plan had then been terminated.
20.4 Restrictions on Distribution upon Plan Termination. Upon the
termination of this Plan with respect to an Employer, (a) in no event shall a
Participant receive a distribution of the portion of his or her Vested Interest
attributable to Before Tax Savings Contributions [Qualified Employer
Contributions and Recharacterized unless there is no successor plan established
or maintained (as defined for purposes of Section 401(k)(10)(A) of the Internal
Revenue Code and related regulations) and (b) in no event shall a Participant
receive a distribution of his or her Vested Interest without his or her consent
before his or her attainment of age 65 (or, if earlier, death) unless there is
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<PAGE> 74
no other Defined Contribution Plan maintained by the Employer or the value of
that Vested Interest does not exceed $3,500.
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<PAGE> 75
Article 21. Top Heavy Provisions
21.1 Definitions. The following definitions apply for purposes of
this Article 22:
(a) Determination Date - with respect to any plan year of the
Plan, a Defined Benefit Plan or a Defined Contribution Plan, the last day of the
preceding plan year (or in the case of the first plan year of a plan, the last
day of that plan year).
(b) Key Employee - an Employee (or former Employee) who at any
time during a Plan Year or any of the preceding four Plan Years is (1) an
officer of his or her Employer with Compensation greater than 50% of the amount
in effect under Section 415(b)(1)(A) of the Internal Revenue Code on the last
day of the Plan Year, (2) one of the ten Employees with Compensation greater
than the amount in effect under Section 415(c)(1)(A) of the Internal Revenue
Code on the last day of the Plan Year and owning the largest percentage (in
excess of one half of one percent) interest in value of an Affiliated Company,
(3) an owner of more than five percent of his or her Employer and (d) an owner
of more than one percent of his or her Employer with Compensation in excess of
$150,000. The determination of whether an Employee is a Key Employee shall be
made in accordance with Section 416(i) of the Internal Revenue Code. The
Beneficiary of a Key Employee shall be treated as a Key Employee.
For purposes of this definition Compensation shall be
compensation as defined in Section 414(q)(7) of the Internal Revenue Code.
(c) Permissive Aggregation Group of Plans - a group of
employee benefit plans including a Required Aggregation Group of Plans and any
other Defined Benefit Plans or Defined Contribution Plans which when considered
as a group meet the requirements of Sections 401(a)(4) and 410 of the Internal
Revenue Code.
(d) Required Aggregation Group of Plans - a group of employee
benefit plans including each Defined Contribution Plan (1) in which any Key
Employee
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<PAGE> 76
is or was a Participant or (2) which enables a plan described in clause (1) to
meet the requirements of Section 401(a)(4) or Section 410 of the Internal
Revenue Code.
(e) Top Heavy Fraction - (1) with respect to the Plan, a
fraction for a Plan Year, the numerator of which is the aggregate of the credit
balances under the Plan as of the applicable Determination Date of all
Participants who are Key Employees and the denominator of which is the aggregate
of the credit balances under the Plan as of the applicable Determination Date of
all Participants or (2) with respect to a Required Aggregation Group of Plans or
a Permissive Aggregation Group of Plans, a fraction (A) the numerator of which
is the sum of (i) the aggregate of the present values of the accrued benefits as
of the applicable Determination Date of all participants who are Key Employees
under all Defined Benefit Plans included in that group and (ii) the aggregate
credit balances as of the applicable Determination Date in the accounts of all
participants who are Key Employees under all Defined Contribution Plans included
in the group and (B) the denominator of which is the sum of (i) the aggregate of
the present values of the accrued benefits as of the applicable Determination
Date of all participants under all Defined Benefit Plans included in the group
and (ii) the aggregate credit balances as of the applicable Determination Date
in the accounts of all participants under all Defined Contribution Plans
included in the group.
In computing a Top Heavy Fraction for a Plan Year, the
following rules shall apply: (I) the present value of accrued benefits as of a
Determination Date under each Defined Benefit Plan and the aggregate account
balances as of a Determination Date under each Defined Contribution Plan shall
be increased by the aggregate distributions made from that plan to participants
during the five year period ending on the Determination Date, (II) the accrued
benefit under any Defined Benefit Plan and the account balances under any
Defined Contribution Plan of a Participant who has not performed services for an
Employer at any time during the five-year period ending on the Determination
Date shall be disregarded, (III) the present value of accrued
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<PAGE> 77
benefits under a Defined Benefit Plan as of a Determination Date and the account
balances under a Defined Contribution Plan shall be determined as of that plan's
valuation date which occurs during the 12-month period ending on the
Determination Date, (IV) in the case of a Required Aggregation Group of Plans or
a Permissive Aggregation Group of Plans, the Determination Date of each plan
included in the group shall be the Determination Date that occurs in the same
calendar year as the Determination Date of the Plan, (V) in the case of a
Required Aggregation Group of Plans or a Permissive Aggregation Group of Plans,
in determining the present value of accrued benefits the actuarial assumptions
set forth in any Defined Benefit adopted by an Employer shall be used for all
Defined Benefit Plans, and (VI) in the case of a Required Aggregation Group of
Plans or Permissive Aggregation Group of Plans, the accrued benefits under all
Defined Benefit Plan(s) of Participants other than Key Employees shall be
determined based upon the method used uniformly for accrual purposes for all
Defined Benefit Plans but if there is no uniform method, based upon the benefit
accrual rate which does not exceed the slowest accrual rate permitted under the
fractional accrual rule of Section 411(b)(1) of the Internal Revenue Code.
(f) Top Heavy Plan - the Plan for any Plan Year if the Top
Heavy Fraction for that Plan Year exceeds 60% for (a) if the Plan is not part of
a Required Aggregation Group of Plans, the Plan, (b) if the Plan is part of a
Required Aggregation Group of Plans, but not a Permissive Aggregation Group of
Plans, the Required Aggregation Group of Plans or (c) if the Plan is part of a
Permissive Aggregation Group of Plans and a Required Aggregation Group of Plans,
the Permissive Aggregation Group of Plans.
21.2 When Top Heavy Provisions Apply. Notwithstanding any other
provision of this Plan, the provisions of this Article 21 shall apply with
respect to any Plan Year for which the Plan is a Top Heavy Plan.
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<PAGE> 78
21.3 Minimum Benefit. For any Plan Year for which the Plan is a Top
Heavy Plan, a Participant who is employed on the last day of the Plan Year shall
be entitled to have his or her Employer Account credited with an amount equal to
the excess, if any, of (a) the lesser of (1) 3%, of his or her Compensation for
that Plan Year and (2) a percentage of his or her Compensation equal to the
greatest percentage of Compensation credited as a contribution to any Key
Employee for that Plan Year, taking into account the amount of contributions
credited to that Key Employee's Before Tax Savings Account, Employer Matching
Account, Employer Account, and Recharacterized Contribution Account over (b) the
sum, if any, of the amount credited to the Participant's Employer Matching
Account, and Employer Account. Employer Matching Contributions taken into
account with respect to a Participant under clause (b) of this Section 21.3
shall not be taken into account for purposes of determining the Participant's
Actual Contribution Percentage (Section 1.3). For purposes of this Section 21.3,
Compensation shall be defined as in Section 414(q)(7) of the Internal Revenue
Code.
21.4 Vesting. For any Plan Year the Plan is a Top Heavy Plan, the
nonforfeitable portion of the Accrued Benefit of a Participant who is credited
with at least one Hour of Service during that Plan Year shall be the percentage
determined under Article 11.
21.5 Change From Top Heavy Vesting. If the Plan is a Top Heavy Plan for
a Plan Year and ceases to be a Top Heavy Plan for the subsequent Plan Year, the
change in the vesting provision under this Section 21.5 to the vesting provision
under Article 11 shall for purposes of Section 19.2 be treated as an amendment
of the vesting provisions of the Plan.
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<PAGE> 79
Article 22. Miscellaneous
22.1 No Employment Rights. Nothing in this Plan shall be construed as a
contract of employment between an Affiliated Company and any Employee, nor as a
guarantee of any Employee to be continued in the employment of an Affiliated
Company, nor as a limitation on the right of an Affiliated Company to discharge
any of its Employees with or without cause or with or without notice at the
option of the Affiliated Company.
22.2 Discretion. Any discretionary acts under this Plan by an Employer
or by the Committee shall be uniform and applicable to all persons similarly
situated. No discretionary act shall be taken which constitutes prohibited
discrimination under the provisions of Section 401(a) of the Internal Revenue
Code or prohibited reduction of accrued benefits under Section 411 of the
Internal Revenue Code.
22.3 Merged Plan. The Company may for purposes of this Plan (a)
designate any employee pension benefit plan (as defined in Section 3(2) of
ERISA) as a Merged Plan and (b) give credit for participation in a Merged Plan
to the extent the Board determines desirable. The Board shall notify the
Committee of the designation of any Merged Plan, and of credit to be given for
participation in the Merged Plan.
22.4 No Interest in Trust Fund. Irrespective of the amount of a
Participant's Accrued Benefits, neither the Participant nor his or her
Beneficiary or any other person shall have any interest or right to any of the
assets of the Trust Fund except as and to the extent expressly provided in this
Plan.
22.5 Governing Law. The provisions of this Plan shall be governed by
and construed and administered in accordance with ERISA, the Internal Revenue
Code, and, where not inconsistent, the laws of the State in which the Company is
incorporated.
22.6 Participant Information. Each Participant shall notify the
Committee of (a) his or her mailing address and each change of mailing address,
(b) the Participant's, the Participant's Beneficiary's and, if applicable, the
Participant's spouse's
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<PAGE> 80
date of birth, and (c) his or her marital status and any change of his or her
marital status and (d) any other information required by the Committee. The
information provided by the Participant under this Section 22.6 shall be binding
upon the Participant and the Participant's Beneficiary for all purposes of the
Plan.
22.7 Severability. If any provision of this Plan is held illegal or
invalid for any reason, the other provisions of this Plan shall not be affected.
22.8 Notices. Any notice, request, election, designation, revocation or
other communication under this Plan shall be in writing and shall be considered
given when delivered personally or mailed by registered mail, return receipt
requested, except that any communication furnished to all Participants shall be
considered given when delivered personally or mailed by first class mail.
22.9 Headings. The headings in this Plan are for convenience of
reference and shall not be given substantive effect.
Dated: GARTNER GROUP, INC.
By
-------------------------------
Executive Vice President
and Chief Financial Officer
Attest:
- ---------------------------------
Secretary
- 77 -
<PAGE> 81
Schedule A - Effective Dates
The provisions of this amended and restated Plan are effective as of
January 1, 1989 except as otherwise provided in the Plan or below:
(a) The following provisions are amended and restated effective as of
January 1, 1985.
(1) Sections 12.10(a), (b) and (c) - minimum distribution.
(b) The following provisions are amended and restated effective as of
January 1, 1987:
(1) Section 1.3 - Actual Contribution Percentage
(2) Section 1.4 - Actual Deferral Percentage
(3) Section 1.8 - Annual Addition
(4) Section 1.9 - Average Actual Contribution Percentage
(5) Section 1.10 - Average Actual Deferral Percentage
(6) Section 1.27 - Employer Matching Account
(7) Section 1.28 - Employer Matching Contributions
(8) Section 1.33 - Highly Compensated Employee
(9) Section 1.35 - Internal Revenue Code
(10) Section 1.48 - Qualified Employer Account
(11) Section 1.49 - Qualified Employer Contribution
(12) Section 3.1(a) - Before Tax Savings Contribution
(13) Section 3.3 - Limit on Before Tax Savings Contributions
(14) Section 3.4 - Return of Excess Before Tax Savings
Contributions.
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<PAGE> 82
(15) Section 4.3 - Qualified Employer Matching Contributions
and Qualified Employer Contributions.
(16) Section 4.5 - Time for Making and Crediting Contributions
by Employer.
(17) Section 5.1 - General.
(18) Section 5.2 - Committee Determination.
(19) Section 5.3 - Maximum Average Actual Deferral
Percentage and Average Actual Contribution Percentage.
(20) Section 5.4 - Return of Highly Compensated Employee's
Excess Contributions.
(21) Section 5.5 - Maximum Annual Addition.
(22) Section 5.6 - Reduction of Annual Addition.
(23) Section 22.1(e) - Top Heavy Fraction.
(c) The following provisions is amended and restated as of calendar
years beginning after December 31, 1988:
Section 11.9 - Death Benefit
- 79 -
<PAGE> 1
EXHIBIT 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: July 24, 1995 04-3099750
File Folder Number:
063000490
GARTNER GROUP INC Person to Contact:
56 TOP GALLANT ROAD JOHN LILJEHULT
STAMFORD, CT 06904 Contact Telephone Number:
(718) 488-2411
Plan Name:
GARTNER GROUP INC SAVINGS AND
INVESTMENT PLAN
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
and local statutes.
This determination letter is applicable for the amendment(s) adopted on
November 17, 1994.
This plan satisfies the nondiscrimination in amount requirement of
section 1.401(a)(4)-1(b)(2) of the regulations on the basis of a design-based
safe harbor described in the regulations.
<PAGE> 2
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise specified
in this letter.
This plan satisfies the nondiscriminatory current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with respect to
those benefits, rights, and features that are currently available to all
employees in the plan's coverage group. For this purpose, the plan's coverage
group consists of those employees treated as currently benefiting for purposes
of demonstrating that the plan satisfies the minimum coverage requirements of
section 410(b) of the Code.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
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,
/s/ Herbert J. Duff
---------------------
Herbert J. Huff
District Director
Enclosures:
Publication 794
Letter 835 (DO/CG)
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Boards of Directors and Stockholders of
Gartner Group, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Gartner Group, Inc. of our report dated October 31, 1997, relating to the
consolidated balance sheets of Gartner Group, Inc. and subsidiaries as of
September 30, 1997 and 1996 and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for the years then
ended, and the related schedule, which reports appears in the September 30, 1997
annual report on Form 10-K of Gartner Group, Inc.
KPMG Peat Marwick LLP
Stamford, Connecticut
December 17, 1997
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 1, 1995 which is
incorporated by reference in Gartner Group Inc.'s Annual Report on Form 10-K
for the year ended September 30, 1997. We also consent to the incorporation by
reference of our report on the Financial Statement schedule, which appears in
such Annual Report on Form 10-K.
Price Waterhouse LLP
Stamford, CT
December 15, 1997
<PAGE> 1
EXHIBIT 24.1
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Manuel A. Fernandez and John F. Halligan
jointly and severally, his attorneys-in-fact, each with the power of
substitution for him in any and all capacities, to sign the Registration
Statement filed by Gartner Group, Inc. on Form S-8 with respect to the Gartner
Group, Inc. Savings and Investment Plan, and any and all amendments thereto, and
to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may do or cause to be done by virtue hereof.
----------------------------
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/Manuel A. Fernandez Chairman, President and Chief December 15, 1997
- ----------------------- Executive Officer (principal
MANUEL A. FERNANDEZ executive officer)
/s/John F. Halligan Executive Vice President, Chief December 12, 1997
--------------------- Financial Officer and Secretary
JOHN F. HALLIGAN (principal financial and
accounting officer)
/s/William O. Grabe Director July 24, 1997
- -----------------------
WILLIAM O. GRABE
/s/Max D. Hopper Director July 24, 1997
- -----------------------
MAX D. HOPPER
/s/John P. Imlay, Jr. Director July 24, 1997
- -----------------------
JOHN P. IMLAY, JR.
/s/Stephen G. Pagliuca Director July 24, 1997
- -----------------------
STEPHEN G. PAGLIUCA
Director July __, 1997
- -----------------------
DENNIS G. SISCO
Director July __, 1997
- -----------------------
ROBERT E. WEISSMAN
</TABLE>
