<PAGE>
As filed with the Securities and Exchange Commission on November 18, 1994
Registration Statement No. 33-32415
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
Post-Effective Amendment No. 3
to
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
MORRISON KNUDSEN CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 82-0393735
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE MORRISON KNUDSEN PLAZA, BOISE, IDAHO 83729; (208) 386-5000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
MORRISON KNUDSEN CORPORATION SAVINGS PLAN
MORRISON KNUDSEN CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN
(Full title of the Plans)
----------------------
DAVID A. CHANNER, ESQ.
ASSOCIATE GENERAL COUNSEL
MORRISON KNUDSEN CORPORATION
ONE MORRISON KNUDSEN PLAZA
BOISE, IDAHO 83729
(208) 386-5395
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------
Approximate date of proposed sale:
From time to time after the effective date of this Registration Statement.
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<PAGE>
Page 2 of the Prospectus, "Incorporation of Certain Documents by
Reference", is amended as follows:
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<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company under the Exchange
Act with the Commission are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for fiscal year ended
December 31, 1993;
2. The Company's Quarterly Reports on Form 10-Q for fiscal quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994;
3. The Company's Current Reports on Form 8-K relating to events occurring
January 10, 1994, January 31, 1994, February 8, 1994, February 10, 1994, April
26, 1994, May 13, 1994, July 19, 1994 and October 6, 1994.
4. The description of the Common Stock contained in "Business to be
Transacted - 2. Plan of Reorganization - Holding Company Common" in the
Company's Proxy Statement/Prospectus dated March 5, 1985, which is filed as
Exhibit 28.4 to the Company's Registration Statement on Form 8-B filed pursuant
to Section 12(b) of the Exchange Act, dated May 6, 1985;
5. The description of the Company's Common Stock Purchase Rights under
the Company's Stockholder Rights Plan contained under the caption "Description
of Capital Stock-Stockholder Rights Plan" in the Company's Registration
Statement on Form S-3 (No. 33-33934) filed with the Commission on March 26,
1990;
6. Form 11-K Annual Reports for the Morrison Knudsen Corporation Savings
Plan for the year ended December 31, 1992 and year ended December 31, 1993.
All other documents filed by the Company and the Savings Plan and ESOP
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of this Prospectus shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof until from the date of filing
such documents until a post-effective amendment to the Registration Statement of
which this Prospectus is a part is filed which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold. Any statement contained in this Prospectus or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus 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 to constitute a
part of this Prospectus, except as so modified or superseded.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, upon the written or oral request of such
person, a copy of any or all of the documents referred to above which have been
or may be incorporated in this Prospectus by reference, other than exhibits to
such documents not incorporated by reference therein, together with any other
documents required to be delivered to such persons pursuant to Rule 428(b) under
the Securities Act of 1933, as amended (the "Securities Act"). Requests for
copies should be directed to Morrison Knudsen Corporation, Attention: Corporate
Secretary, P. O. Box 73, Boise, Idaho 83729, telephone: 208-386-5000.
- 2 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing a Post-Effective Amendment No. 3 to Registration
Statement and has duly caused this Registration Statement, or amendment thereto,
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Boise, State of Idaho, on October 28, 1994.
MORRISON KNUDSEN CORPORATION
By /s/ Stephen G. Hanks
-------------------------------
Stephen G. Hanks
Executive Vice President -
Finance and Administration
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement, or amendment thereto, has been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William J. Agee * Chairman, President and October 28, 1994
- ------------------------------ Chief Executive Officer
William J. Agee (Principal Executive
Officer and Director)
/s/ Stephen G. Hanks Executive Vice President - October 28, 1994
- ------------------------------ Finance and Administration
Stephen G. Hanks Principal Financial Officer)
/s/ Mark E. Howland Vice President and Controller October 28, 1994
- ------------------------------ (Principal Accounting Officer)
Mark E. Howland
/s/ John Arrillaga * Director October 28, 1994
- ------------------------------
John Arrillaga
/s/ Zbigniew Brzezinski * Director October 28, 1994
- ------------------------------
Zbigniew Brzezinski
/s/ William P. Clark * Director October 28, 1994
- ------------------------------
William P. Clark
/s/ Lindsay E. Fox * Director October 28, 1994
- ------------------------------
Lindsay E. Fox
/s/ Christopher B. Hemmeter * Director October 28, 1994
- ------------------------------
Christopher B. Hemmeter
/s/ Peter S. Lynch * Director October 28, 1994
- ------------------------------
Peter S. Lynch
II-1
<PAGE>
Signature Title Date
--------- ----- ----
Director
- ------------------------------
Robert A. McCabe
/s/ Irene C. Peden * Director October 28, 1994
- ------------------------------
Irene C. Peden
/s/ Gerard R. Roche * Director October 28, 1994
- ------------------------------
Gerard R. Roche
/s/ John W. Rogers, Jr. * Director October 28, 1994
- ------------------------------
John W. Rogers, Jr.
Director
- ------------------------------
Peter V. Ueberroth
<FN>
* Stephen G. Hanks, by signing his name hereto, does hereby sign this
Post-Effective Amendment No. 3 to Registration Statement on behalf of
each of the above-named officers and directors of Morrison Knudsen
Corporation on the 28th day of October, 1994, pursuant to powers of
attorney executed on behalf of each such officer and director.
</TABLE>
By: /s/ Stephen G. Hanks
--------------------------------------
Stephen G. Hanks, Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, the Morrison
Knudsen Corporation Savings Plan has duly caused this Post-Effective Amendment
No. 3 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Boise, State of Idaho, on the 28th of
October, 1994.
MORRISON KNUDSEN CORPORATION
SAVINGS PLAN (The Plan)
By: /s/ Stephen G. Hanks
--------------------------------------
Stephen G. Hanks
Plan Administration Committee Member
II-2
<PAGE>
EXHIBITS INDEX
Exhibit No. Description
- ----------- -----------
4.1 * Morrison Knudsen Corporation Savings Plan, as amended.
4.2 * Morrison Knudsen Corporation Employee Stock Ownership Plan, as
amended.
5.1 * Opinion of David A. Channer, Counsel for the Company.
5.2 Internal Revenue Service Determination Letter for the Morrison
Knudsen Corporation Savings Plan (filed as Exhibit 5.2 to Form S-
8 Registration Statement No. 33-32415 dated December 6, 1989 and
incorporated herein by reference.)
5.3 Internal Revenue Service Determination Letter for the Morrison
Knudsen Corporation Employee Stock Ownership Plan (filed as
Exhibit 5.4 to Post-Effective Amendment No. 1 to Form S-8
Registration Statement No. 33-32415 dated October 24, 1990 and
incorporated herein by reference.)
23.1 * Consent of David A. Channer, Esq. (included in Exhibit No. 5.1
filed herewith).
24.1 * Powers of Attorney.
- ------------------
* Filed herewith.
<PAGE>
Exhibit 4.1
MORRISON KNUDSEN CORPORATION
SAVINGS PLAN
EFFECTIVE DATE: JANUARY 1, 1986
RESTATED DECEMBER 29, 1993
TO INCLUDE AMENDMENTS 1 THROUGH 20
<PAGE>
MORRISON KNUDSEN CORPORATION
SAVINGS PLAN
CONTENTS
SECTION 1 - DEFINITIONS.................................................... 1
1.1 Account........................................................ 1
1.2 Accrued Benefit................................................ 1
1.3 Affiliated Company............................................. 1
1.3A Allocation Date................................................ 1
1.3B Amendment Date................................................. 1
1.4 Anniversary Date............................................... 1
1.5 Annual Addition................................................ 1
1.6 Beneficiary.................................................... 2
1.7 Board.......................................................... 2
1.8 Break In Service............................................... 2
1.9 Code........................................................... 3
1.10 Committee...................................................... 3
1.11 Company........................................................ 3
1.12 Company Account................................................ 3
1.12A Company Stock.................................................. 3
1.13 Compensation................................................... 4
1.14 Date of Severance.............................................. 5
1.15 Date of Termination............................................ 5
1.16 Disability..................................................... 5
1.17 Effective Date................................................. 5
1.18 Eligible Employee.............................................. 5
1.18A Eligible Participant........................................... 6
1.19 Employee....................................................... 6
1.20 Employment Commencement Date................................... 6
1.21 Entry Date..................................................... 6
1.22 ERISA.......................................................... 6
1.23 Forfeiture..................................................... 6
1.24 Hour of Service................................................ 7
1.25 Investment Fund or Fund........................................ 7
1.26 Leave of Absence............................................... 7
1.27 (Reserved)..................................................... 8
1.28 Normal Retirement Date......................................... 8
1.29 Participant.................................................... 8
1.30 Period of Severance............................................ 8
1.31 Plan........................................................... 8
1.32 Plan Year or Limitation Year................................... 8
1.33 Reemployment Commencement Date................................. 8
1.34 Retirement Plan................................................ 8
1.35 Salary Deferral................................................ 8
1.36 Salary Deferral Account........................................ 9
1.37 Separation from Service Date................................... 9
1.38 Spousal Consent................................................ 9
1.39 Trust.......................................................... 9
1.40 Trust Agreement................................................ 9
1.41 Trust Fund..................................................... 9
1.42 Trustee........................................................ 9
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<PAGE>
1.43 Valuation Date................................................. 9
1.44 Voluntary Contribution......................................... 9
1.45 Voluntary Contribution Account................................. 10
1.46 Year of Service................................................ 10
SECTION 2 - PARTICIPATION.................................................. 11
2.1 Continuation of Existing Participation......................... 11
2.2 Eligibility of Other Participants.............................. 11
2.3 Loss of Active Participant Status.............................. 11
2.4 Rehire of Former Employee...................................... 11
SECTION 3 - CONTRIBUTIONS.................................................. 12
3.1 Company Contributions.......................................... 12
3.2 Timing of Company Contributions................................ 12
3.3 Salary Deferrals............................................... 13
3.4 Timing of Salary Deferrals..................................... 14
3.5 Adjustment of Salary Deferrals................................. 14
3.6 Return of Company Contributions and Salary Deferrals to the
Company........................................................ 15
3.7 Participant Voluntary Contributions............................ 15
3.8 Code Section 401(k)(3) Discrimination Test Requirements........ 16
3.9 Rollovers...................................................... 18
3.10 Code Section 401(m) Discrimination Test Requirements........... 20
3.11 Adjustment of Matching Contributions........................... 21
3.12 Multiple Use of the Alternative Limitation..................... 22
SECTION 4 - PARTICIPANT'S CREDIT IN THE TRUST FUND......................... 23
4.1 Accounts....................................................... 23
4.2 Allocation of Company Contributions and Forfeitures............ 23
4.3 Maximum Annual Addition........................................ 24
4.4 Investment of Accounts......................................... 25
4.5 Allocation of Fund Earnings.................................... 26
4.6 Accounting..................................................... 27
4.7 Limitation..................................................... 27
4.8 Forfeiture of Benefits Where Recipient Cannot Be Located....... 27
SECTION 5 - PARTICIPANT'S RIGHT TO PAYMENT................................. 27
5.1 Amount of Distribution from Participant's Accounts............. 27
5.2 Forfeiture..................................................... 28
5.3 Form of Distribution........................................... 29
5.4 Timing of Distribution......................................... 29
5.5 Latest Benefit Commencement Date............................... 30
5.6 Rehire of Former Plan Participant.............................. 30
5.7 In Service Withdrawals of Salary Deferrals and Voluntary
Contributions.................................................. 31
5.8 Loans.......................................................... 33
5.9 Direct Rollover Distributions.................................. 34
SECTION 6 - DESIGNATION OF BENEFICIARY..................................... 35
6.1 General........................................................ 35
6.2 Absence of Proper Designation.................................. 35
6.3 Consent of Spouse.............................................. 35
SECTION 7 - COMMITTEE...................................................... 35
7.1 Designation of Committee Members............................... 35
7.2 Transaction of Committee Business.............................. 36
7.3 Delegation to Act in Behalf of Committee....................... 36
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<PAGE>
7.4 Compensation of Committee Members.............................. 36
7.5 Disqualification of Committee Member........................... 36
7.6 Powers and Duties of Committee in Administering the Plan....... 36
7.7 Powers and Duties of Committee in Administering the Trust Fund. 37
7.8 Responsibility for Distributions from the Trust Fund........... 37
7.9 Company Information............................................ 37
7.10 Claims Procedure............................................... 37
7.11 Procedure for Qualified Domestic Relations Orders.............. 38
7.12 Fiduciaries.................................................... 39
7.13 Indemnification................................................ 39
SECTION 8 - TRUST FUND..................................................... 39
8.1 General Responsibilities of the Trustee........................ 39
8.2 Appointment of Investment Manager.............................. 39
8.3 Right to Invest in Company Stock............................... 39
8.4 Master Trust................................................... 40
SECTION 9 - RIGHTS OF PARTICIPANTS......................................... 40
9.1 Participants' Rights to Plan Benefits.......................... 40
9.2 Employment Rights under the Plan............................... 40
9.3 Assignment of Rights........................................... 40
9.4 Incompetency................................................... 40
SECTION 10 - AMENDMENT OF PLAN............................................. 40
10.1 Right to Amend Plan............................................ 40
10.2 Protection of Participants' Rights............................. 40
10.3 Mergers, Consolidations and Transfers.......................... 41
SECTION 11 - TERMINATION OF PLAN........................................... 41
11.1 General........................................................ 41
11.2 Nonforfeitability of Accrued Benefit........................... 41
11.3 Distribution................................................... 41
SECTION 12 - FAILURE OF INITIAL QUALIFICATION.............................. 42
12.1 Submission to Internal Revenue Service......................... 42
12.2 Determination That Plan Is Not Qualified....................... 42
12.3 Determination That Plan Is Qualified........................... 42
SECTION 13 - CONSTRUCTION AND ENFORCEMENT OF PLAN.......................... 43
13.1 Governing Legal Entity......................................... 43
13.2 Text to Control................................................ 43
13.3 Gender......................................................... 43
13.4 Severability................................................... 43
13.5 Liability...................................................... 43
SECTION 14 - TOP HEAVY PLAN................................................ 43
14.1 Precedence of Section.......................................... 43
14.2 Definitions.................................................... 43
14.3 Determination of Top Heavy Plan................................ 44
14.4 Compensation in Top Heavy Plan................................. 45
14.5 Minimum Benefit Under Top Heavy Plan........................... 45
14.6 Maximum Limitation Under Top Heavy Plan........................ 45
14.7 Vesting in Top Heavy Plan Year................................. 45
SECTION 15 - VOTING RULES REGARDING COMPANY STOCK.......................... 45
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<PAGE>
15.1 Voting Company Stock........................................... 45
15.2 Sale of Company Stock.......................................... 46
15.3 Tender Offer for Company Stock................................. 46
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<PAGE>
MORRISON KNUDSEN CORPORATION
SAVINGS PLAN
STATEMENT OF PURPOSE
Morrison Knudsen Corporation hereby establishes and intends to operate the
Morrison Knudsen Corporation Savings Plan for the purpose of enabling Eligible
Employees of the Company and their Beneficiaries to accumulate funds to provide
for their retirement income requirements. The Plan is intended to qualify, and
the Trust established pursuant to the related Trust Agreement is intended to be
exempt from federal income tax, under the pertinent provisions of the Internal
Revenue Code of 1954, as amended, and any successor Federal Income Tax statute
of the same or similar effect.
<PAGE>
MORRISON KNUDSEN CORPORATION
SAVINGS PLAN
Morrison Knudsen Corporation adopts the Morrison Knudsen Corporation Savings
Plan upon the following terms and conditions:
SECTION 1 - DEFINITIONS
Whenever used in this Plan and capitalized, unless a different meaning is
plainly required by the context, the following terms shall have the meanings set
forth below:
1.1 ACCOUNT
"Account" means the record(s) maintained to record a Participant's, or his
Beneficiary's, interest in the Trust Fund. Each Participant (or, when
applicable, Beneficiary) may have a Salary Deferral Account as described under
Section 4.1(a), a Company Account as described under Section 4.1(b), a Voluntary
Contribution Account as described under Section 4.1(c), and a Rollover/Transfer
Account as described under Section 4.1(d).
1.2 ACCRUED BENEFIT
"Accrued Benefit" means the balance in a Participant's (or Beneficiary's)
Accounts on any Valuation Date, plus any Salary Deferrals and/or Voluntary
Contributions made by a Participant subsequent to such date and minus any
distributions made to the Participant (or Beneficiary) since that date, if any.
1.3 AFFILIATED COMPANY
"Affiliated Company" means each organization which is a member of a controlled
group, as defined in Section 414(b) or 414(c) of the Code, or an affiliated
service group as defined in Section 414(m) of the Code, with Morrison Knudsen
Corporation.
1.3A ALLOCATION DATE
"Allocation Date" means each Participant's payroll date (except for those
Participants on a weekly payroll, whose Allocation Date shall be the same as
that of those Participants paid on a bi-weekly basis.
1.3B AMENDMENT DATE
"Amendment Date" means January 1, 1988.
1.4 ANNIVERSARY DATE
"Anniversary Date" means the last day of any Plan Year.
1.5 ANNUAL ADDITION
"Annual Addition" means, with respect to each Participant for any Plan Year, the
aggregate of:
(a) Company Contributions:
Contributions made by the Company to this Plan and allocated to his
Company Account;
(b) Forfeitures:
Forfeitures allocated under this Plan to his Company Account;
(c) Salary Deferrals:
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<PAGE>
Salary Deferrals made by the Participant under this Plan and credited to
his Salary Deferral Account, including excess Salary Deferrals that are
corrected through distribution, under Section 3.3(d) and Section 3.5(b)(2)
of this Plan;
(d) Voluntary Contributions:
Contributions made by the Participant into his Voluntary Contribution
Account; and
(e) Post-Retirement Medical Benefits:
In the event the Company pre-funds post-retirement medical benefits in
accordance with Section 419A(d) of the Code, any amount allocated to the
separate account of a Participant who is a Key Employee as defined in
Section 14.2(b).
1.6 BENEFICIARY
"Beneficiary" means any person (or persons) actually entitled, as provided in
Section 6 hereof, to receive benefits by reason of the death of a Participant.
Whenever the rights of a Participant are stated or limited herein, his
Beneficiary(s) shall be bound by such statement or limitation.
1.7 BOARD
"Board" means the Board of Directors of Morrison Knudsen Corporation.
1.8 BREAK IN SERVICE
"Break In Service" means:
(a) Prior to Amendment Date:
For the period prior to the Amendment Date, a Period of Severance of at
least twelve (12) months following an Employee's Date of Severance and
prior to his Reemployment Commencement Date. In the event an Employee
terminates his service from the Company or an Affiliated Company for a
reason described in Section 1.14(b) and, prior to the expiration of twelve
(12) months following such Employee's Date of Termination, he quits,
retires, is discharged or dies, such employee's Period of Severance, for
purposes of determining the length of his Break in Service, shall commence
to be measured as of the date he quits, retires, is discharged or dies.
(b) On or After Amendment Date:
For periods on or after the Amendment Date, a Plan Year in which the
Employee is credited with five hundred (500) or fewer Hours of Service
with the Company or an Affiliated Company. For the purpose of determining
years of service under section 1.46, a Participant shall be granted up to
five hundred and one (501) Hours of Service during an approved Leave of
Absence, subject to the following rules:
(1) Hours of Service shall be credited at a rate of eight (8) hours for
each day that the Participant is on an approved Leave of Absence, up
to the maximum described under Section 1.8(b)(2) below.
(2) Hours of Service credited to a Participant under Section 1.8(b)(1)
above may not exceed the difference between five hundred and one
(501) and the lesser number of hours credited to the Participant
under Section 1.24.
(3) Leaves of Absence shall be granted by the Company or an Affiliated
Company on a uniform basis for sickness, accident, or other cause;
provided, however, that an Employee granted such Leave of Absence
who fails to return to active employment at or before the expiration
of his Leave of Absence shall, for purposes of this Plan, be deemed
to have terminated his employment as of the date of commencement of
his Leave of Absence.
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<PAGE>
(4) Notwithstanding the general rule contained in Section 1.8(b)(3),
should an Employee fail to return to work after completing an
approved Leave of Absence because of death or Disability, his
service and participation shall be deemed to have continued until
the date of his death or Disability.
(5) In granting Leaves of Absences pursuant to the provisions of this
Section, the Company or an Affiliated Company shall not discriminate
as between individuals covered by this Plan, and shall apply the
same rules with respect to Leaves of Absence to all individuals
covered hereby.
(c) Transition Rule:
Were an Employee commenced a Period of Severance prior to the Amendment
Date but had not yet returned to the employ of the Company on such date,
Periods of Severance (including fractional years) accrued as of the
December 31, 1987 will be carried forward as years (including fractional
years) of Break In Service under this Plan.
1.9 CODE
"Code" means the Internal Revenue Code of 1954, as amended, or any similar
statute enacted in lieu thereof.
1.10 COMMITTEE
"Committee" means the Committee appointed and acting in accordance with the
terms of Section 7.
1.11 COMPANY
"Company" means:
(a) Morrison Knudsen Corporation and Adopting Subsidiaries: Morrison Knudsen
Corporation and/or (as the context hereof requires) any corporation,
partnership, joint venture or other organization which is a subsidiary of,
or affiliated or associated with Morrison Knudsen Corporation, and which,
with the consent of Morrison Knudsen Corporation or the Committee, elects
to adopt the Plan;
(b) Joint Venture:
A joint venture sponsored by Morrison Knudsen Corporation or an adopting
subsidiary to which Employees of a Company are temporarily transferred; or
(c) Designated Subsidiaries:
Any foreign or domestic subsidiary corporation which is designated as a
participant herein by Morrison Knudsen Corporation or the Committee for
the Employees of which Morrison Knudsen Corporation is entitled under the
Code to make contributions. Except as provided under Section 1.20,
service for, or compensation paid by, one or more of such companies shall
be combined for all purposes of the Plan. Any above-described corporation
or other organization which adopts the Plan for its Employees shall
thereafter promptly deliver to the Trustee a certified copy of the
resolutions and other documentation evidencing its adoption of the Plan,
together with a written instrument evidencing consent by the Board of
Directors or the Committee to its adoption of the Plan.
1.12 COMPANY ACCOUNT
"Company Account" means an Account established on a Participant's behalf, in
which the Company's contributions and Forfeitures allocated on behalf of such
Participant, plus earnings thereon as described under Section 4.1(b), are
recorded.
1.12A COMPANY STOCK
"Company Stock" means the voting common stock of Morrison Knudsen Corporation, a
Delaware corporation.
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<PAGE>
1.13 COMPENSATION
"Compensation" means:
(a) In General:
Subject to Section 1.13(b), (c), and (d), Compensation shall mean the
total amount paid to an Employee by the Company during a Plan Year. Such
compensation shall include salary, commissions, bonuses and overtime as is
required to be included in the annual calendar year compensation reported
on Internal Revenue Service Form W-2, but shall exclude any Salary
Deferral under this plan and elective contributions made by the Employee
to a plan described in Section 125 of the Code sponsored by the Company,
and Company contributions to this Plan or to any other plan of deferred
compensation maintained by the Company, amounts realized from the exercise
of a non-qualified stock option, amounts realized when restricted stock is
no longer subject to substantial risk of forfeiture, amounts realized from
the disposition of a qualified stock option, and other amounts which
receive special tax benefits.
(b) For Allocation, Salary Deferral, and Voluntary Contribution Purposes:
For purposes of Sections 3.3, 3.7, and 4.2, Compensation shall mean the
total of all amounts described under (1) and (2) paid to or awarded by the
Company to an Employee during a Plan Year for services rendered, excluding
any amounts described under (3), as follows:
(1) Amount Paid:
(A) Weekly or monthly base salary or wages;
(B) Commissions and overtime payments;
(C) Cash bonus payments, other than bonuses awarded under the
Executive Incentive Plan;
(D) Salary Deferrals made by the Participant under this Plan; and
(E) Elective contributions made by the Participant to a plan
described in Section 125 of the Code and sponsored by the
Company.
(2) Amounts Awarded:
Annual amounts awarded under the Executive Incentive Plan.
(3) Amounts Excluded:
(A) Imputed income;
(B) Living allowances;
(C) Tax allowances;
(D) Other special allowances;
(E) Overseas differentials;
(F) Other project-oriented differentials;
(G) In the case of Participants to whom Section 406 or 407 of the
Code applies, any amount not qualifying as "total
compensation" within the meaning of Code Section 406 or 407;
and
(H) Relocation allowances
(c) For Discrimination Test Purposes:
For purposes of Sections 3.8 and 3.10, Compensation shall mean the total
of all amounts described under (b) above as defined in this Section 1.13
but shall include Salary Deferrals made by the Employees under this Plan
and elective contributions made by the Employee to a plan described in
Section 125 of the Code sponsored by the Company.
(d) Limitation:
For Plan Years commencing on or after January 1, 1989, annual compensation
shall be limited to $200,000, or such greater amount as may be recognized
for increases in the cost of living as determined by the Secretary of the
Treasury under Code Section 415.
1.14 DATE OF SEVERANCE
-4-
<PAGE>
"Date of Severance" means the applicable of (a) or (b):
(a) Date of Termination:
An Employee's Date of Termination from the Company or an Affiliated
Company where the Employee quits, retires (other than by reason of
Disability), dies or is discharged for any reason other than that
described in Section 1.14( b), or
(b) First Anniversary of Date of Termination:
In general, the first anniversary of an Employee's Date of Termination
where he retires by reason of Disability or he is absent from service with
the Company or an Affiliated Company based on an approved Leave of Absence
and the Company continues his life and medical benefits at the Company's
cost or, where an Employee terminates on account of maternity or paternity
leave as described in Code Section 410(a)(5)(E)(i) or 411(a)(6)(E)(i), the
second anniversary of his Date of Termination.
1.15 DATE OF TERMINATION
"Date of Termination" means the date an Employee last performs an Hour of
Service (in accordance with Section 1.24(a)) prior to a Period of Severance.
1.16 DISABILITY
"Disability" means the permanent incapacity of a Participant, by reason of
physical or mental illness, to perform any duties for the Company or an
Affiliated Company, resulting in termination of his service with the Company or
an Affiliated Company. Disability shall be determined by the Committee in its
sole discretion in a uniform and nondiscriminatory manner after consideration of
such evidence as it may require, which may include a report of such physician or
physicians as it may designate.
1.17 EFFECTIVE DATE
"Effective Date" means January 1, 1986.
1.18 ELIGIBLE EMPLOYEE
"Eligible Employee" means each Employee of the Company who meets the following
requirements:
(a) Salaried Employee:
He is compensated on a salaried (non-hourly) basis;
(b) United States Citizen or Resident:
He is included under one of the categories described in (1), (2) or (3),
as follows:
(1) he is a citizen of the United States of America,
(2) he was lawfully admitted to the United States of America for
permanent residence under valid immigrant visa or as a special
immigrant, and he has not given up or lost such immigration status
even though he may be working outside of the United States, or
(3) he resides in and is rendering services as described under Section
1.18(a) above within the United States of America;
(c) Over Age 21:
He has attained age twenty-one (21);
(d) Non-Union Employee:
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His conditions of employment are not covered under the terms of a
collective bargaining agreement in which retirement benefits were the
subject of good faith bargaining, unless such agreement specifically
provides for coverage of the bargaining unit members under this Plan; and
(e) Leased Employee:
He is not a "leased employee" providing services to the Company within the
meaning of Section 414(n) of the Code.
1.18A ELIGIBLE PARTICIPANT
"Eligible Participant" means a Participant who remains an Eligible Employee on
the last day of the Plan Year.
1.19 EMPLOYEE
"Employee" means any person receiving Compensation for services rendered to the
Company or an Affiliated Company, excluding the following:
(a) Director:
Any person serving as a director only; or
(b) Independent Contractor:
Any person who is an independent contractor and/or for whom the Company or
an Affiliated Company is not required to make Social Security
contributions.
Notwithstanding the foregoing, "Employee" shall include any individual who is a
"leased employee" providing services to the Company or an Affiliated Company
within the meaning of Section 414(n) of the Code.
1.20 EMPLOYMENT COMMENCEMENT DATE
"Employment Commencement Date" means the date an Employee is first credited with
an Hour of Service with the Company or an Affiliated Company. Unless otherwise
provided for in an adoption agreement or resolution executed by the Board, the
Employment Commencement Date of employees of an acquired company shall be the
date the company is acquired by Morrison Knudsen Corporation, its affiliates or
its predecessor. Notwithstanding the preceding statement, the Employment
Commencement Date of former employees of National Steel and Shipbuilding Company
(NASSCO) who later become employees of the Company shall be their date of hire
by NASSCO.
1.21 ENTRY DATE
"Entry Date" means the first day of each pay period and any other date as the
Committee, in its discretion, shall determine.
1.22 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, and
amendments thereto.
1.23 FORFEITURE
"Forfeiture" means any portion of the Company Account of a Participant which he
loses, as determined under Section 5.2, as of the Valuation Date immediately
following his termination of employment from the Company or an Affiliated
Company.
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1.24 HOUR OF SERVICE
"Hour of Service" means, and each Employee will be credited with an Hour of
Service, as follows:
(a) Employees for Whom Hourly Services Records Maintained: For each Employee
for whom the Company or an Affiliated Company maintains an hourly service
record,
(1) Each hour for which an Employee is directly or indirectly paid or
entitled to payment by the Company or an Affiliated Company for the
performance of duties. These hours shall be credited to the
Employee for the computation period or periods in which the duties
are performed; and
(2) Each hour for which an Employee is directly or indirectly paid or
entitled to payment by the Company or an Affiliated Company for
reasons (such as vacation, sickness, or Disability) other than for
the performance of duties. These hours shall be credited to the
Employee for the computation period or periods in which such hours
accrued; and
(3) Each hour for which back pay, irrespective of mitigation of damage,
has been either awarded or agreed to by the Company or an Affiliated
Company. These hours shall be credited to the Employee for the
computation period or periods to which the award or agreement
pertains rather than the computation period in which the award,
agreement, or payment is made.
(b) Other Employees:
For each Employee for whom the Company or an Affiliated Company does not
maintain an hourly service record, the Employee shall be credited with
forty-five (45) Hours of Service for each week during which the Employee
would have otherwise been credited with at least one Hour of Service under
Section 1.24(a).
(c) Military Service:
For each Employee in the compulsory or wartime military service of the
United States, the Employee shall be credited with his normally scheduled
Hours of Service for each week of such military service, provided that he
returns to the employ of the Company or an Affiliated Company within the
period provided by law after completing such compulsory or wartime service
(unless failure to return is caused by his death or Disability).
(d) Department of Labor Regulations:
For each Employee, the number of his Hours of Service and the Plan Year or
other computation period to which they are to be credited shall be
determined in accordance with Section 2530.200b-2 (b) and (c) of the
Department of Labor Regulations for Minimum Standards for Employee Pension
Benefit Plans, which section is hereby incorporated by reference into this
Plan.
1.25 INVESTMENT FUND OR FUND
"Investment Fund" or "Fund" means the investment fund(s) established as
described in Section 4.4(a).
1.26 LEAVE OF ABSENCE
"Leave of Absence" means a period of time designated as a Leave of Absence and
granted in accordance with rules adopted by the Committee. Such period includes
absence by an Employee for services in the Armed Forces, Public Health Service
or United Nations (including service in the U.S. Merchant Marine during a period
of declared national emergency or state of war) provided that the Employee makes
application for reemployment with the Company or an Affiliated Company within
ninety (90) days after honorable discharge from such Armed Forces was first
available to the Employee, or such longer period as may be stipulated by the
laws of the United States of America applicable thereto. Provided the Member
resumes employment with the Company or an Affiliated Company within the time
permitted after the Leave of Absence, the period of such Leave of Absence shall
count as Years of Service.
1.27 (RESERVED)
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1.28 NORMAL RETIREMENT DATE
"Normal Retirement Date" means a Participant's sixty-fifth (65th) birthday, or
the date he has attained age fifty-five (55) and been credited with ten (10)
Years of Service.
1.29 PARTICIPANT
"Participant" means any Eligible Employee who has become a Participant in the
Plan under the provisions of Section 2. "Inactive Participant" means a
Participant who remains an Employee but ceases to be an Eligible Employee or who
is granted an authorized Leave of Absence. "Former Participant" means any
former Employee who is entitled to receive a distribution from the Trust.
Except with respect to the allocation of Company contributions, Forfeitures and
Trust Fund income (loss), and the right to make Salary Deferrals and Voluntary
Contributions under the Plan, the term "Participant" shall include "Inactive
Participant" and "Former Participant".
1.30 PERIOD OF SEVERANCE
"Period of Severance" means the period during which a former Employee is not
performing services for the Company or an Affiliated Company following a Date of
Termination and prior to a Reemployment Commencement Date.
1.31 PLAN
"Plan" means the Morrison Knudsen Corporation Savings Plan, as described herein,
and all subsequent amendments hereto.
1.32 PLAN YEAR OR LIMITATION YEAR
"Plan Year" or "Limitation Year" means the annual fiscal accounting period,
commencing on or after the Effective Date, adopted by the Company for federal
income tax purposes, which period currently begins on January 1 and ends on
December 31.
1.33 REEMPLOYMENT COMMENCEMENT DATE
"Reemployment Commencement Date" means the date an Employee is first credited
with an Hour of Service following a prior termination from the Company or an
Affiliated Company.
1.34 RETIREMENT PLAN
"Retirement Plan" means the Morrison Knudsen Corporation Retirement Plan.
1.35 SALARY DEFERRAL
"Salary Deferral" means an amount which a Participant elects to defer by payroll
withholding from his current Compensation, which amount is contributed to the
Plan by the Company and allocated to his Salary Deferral Account, as described
in Section 3.3.
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1.36 SALARY DEFERRAL ACCOUNT
"Salary Deferral Account" means the Account established on a Participant's
behalf to hold his Salary Deferrals, plus earnings thereon, as described in
Section 4.1(a).
1.37 SEPARATION FROM SERVICE DATE
"Separation from Service Date" means the date a Participant terminates his
employment with the Company or an Affiliated Company, as determined under the
Company's or Affiliated Company's personnel policy.
1.38 SPOUSAL CONSENT
"Spousal Consent" means the written consent of the Participant's spouse to an
election or Beneficiary designation by the Participant, which consent shall
acknowledge the effect of such an election of Beneficiary designation and shall
be witnessed by a notary public, provided that written consent to an election or
Beneficiary designation shall not be required if it is established to the
satisfaction of the Committee that such consent cannot be obtained because there
is no spouse, or the spouse cannot be located, or such other circumstances exist
as may be prescribed by applicable regulation. A Beneficiary designation to
which a spouse has consented may not be changed by the Participant without
Spousal Consent, unless the spouse's consent expressly permits new Beneficiary
designations by the Participant without any further consent of the spouse. Any
written Spousal Consent, or establishment that such consent cannot obtained,
shall be effective with respect to such spouse.
1.39 TRUST
"Trust" means the legal entity created under the Trust Agreement to hold the
Trust Fund.
1.40 TRUST AGREEMENT
"Trust Agreement" means the separate agreement entered into by Morrison Knudsen
Corporation and the Trustee for the purpose of holding the Trust Fund.
1.41 TRUST FUND
"Trust Fund" means all monies, securities and assets held by the Trustee for the
benefit of Participants and Beneficiaries.
1.42 TRUSTEE
"Trustee" means the Trustee appointed by the Board under the Trust Agreement and
any duly appointed successor(s).
1.43 VALUATION DATE
"Valuation Date" means the last day of each calendar quarter and any other date
on which the Committee directs the Trustee to determine the fair market value of
assets held under the Trust.
1.44 VOLUNTARY CONTRIBUTION
"Voluntary Contribution" means an amount which a Participant elects to
contribute to the Plan as described under Section 3.7, which amount is allocated
to his Voluntary Contribution Account.
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1.45 VOLUNTARY CONTRIBUTION ACCOUNT
"Voluntary Contribution Account" means the Account established on a
Participant's behalf to record his Voluntary Contributions made in accordance
with Section 3.7, his "Voluntary Contributions Account" which was transferred
from the Retirement Plan, and his reclassified Salary Deferrals as described in
Section 3.5(b), plus earnings thereon, as described in Section 4.1(c).
1.46 YEAR OF SERVICE
"Year of Service" means the total of (a) and (b), as follows:
(a) Service after December 31, 1987:
The number of Plan years , commencing on or after January 1, 1988, in
which an Employee has been credited with one thousand (1,000) or more
Hours of Service, subject to the following:
(1) In the event an Employee who has not vested in any portion of his
Plan benefits in accordance with Section 5.1(b)(2) terminates from
the Company or an Affiliated Company on or after January 1, 1988 and
incurs a period of consecutive one (1) year Breaks In service, his
Years of Service prior to his Date of Termination shall not be
counted if the number of his consecutive Breaks In Service equals or
exceeds the greater of six (6) or his Years of Service completed
prior to the date of Termination.
(2) As of the Amendment Date, any fraction of a Year of Service accrued
on behalf of a Participant prior to the Amendment Date shall be
converted to Hours of Service and applied to the Plan Year
commencing on January 1, 1988. The method of conversion shall
consist of multiplying the number of the Participant's weeks of
service for the fraction of a Year of service prior to the Amendment
Date by forty-five (45) Hours of Service, in accordance with the
Department of Labor Regulations referenced in Section 1.24(d).
(3) Any Employee who was credited with years of service under the
Centennial Engineering, Inc. Salary Reduction Plan and Trust (the
"CEI 401(k) Plan") through plan year commencing May 27, 1990, shall
receive credit for Years of Service under this Plan for all years of
service credited to such Employee under the CEI 401(k) Plan through
plan year commencing May 27, 1990. Furthermore, any Employee who
was employed by Centennial Engineering, Inc. as of July 1, 1990 and
who remained continuously employed by Centennial Engineering, Inc.
until December 31, 1990 shall be credited with a Year of Service
under the Plan for purposes of determining the Employee's vested and
nonforfeitable percentage of his Account, provided, however, nothing
in this latter sentence shall require the Plan to credit an Employee
with a Year of Service that is already credited to such Employee
under the prior sentence.
(b) Service Prior to January 1, 1988:
For the period prior to January 1, 1988, an Employee shall be credited
with the total number of years and days of employment with the Company or
an Affiliated Company between his Employment Commencement Date or
Reemployment Commencement Date and the earlier of each following Date of
Severance or December 31, 1987. The following rules shall be applicable
with respect to the calculation of Years of Service for periods of such
service.
(1) In the event an Employee terminates service with the Company or an
Affiliated Company for a reason described in Section 1.14(a), and
later returns to the service of the Company or an Affiliated Company
prior to his completion of a one year period of Severance, his
Period of Severance shall count as Years of Service.
(2) In the event an Employee terminates service with the Company or an
Affiliated Company for a reason described in Section 1.14(b) and,
prior to the first anniversary of his Date of Termination, his
reason for continued termination becomes one described in Section
1.14(a), if such Employee
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later returns to the service of the Company or an Affiliated Company
prior to his completion of a one year Period of Severance, such
Period of Severance shall count as Years of Service.
(3) In the event an Employee which has not vested in all or a portion of
his Plan benefits based on Company contribution in accordance with
Section 5.1(b)(2) terminates form the Company or an Affiliated
Company and incurs a Break in Service, his Years of Service prior to
his Date of Severance shall not be continued if the number of his
consecutive Breaks In Service equals or exceeds the greater of five
(5) or his Years of Service completed prior to the Date of
severance.
SECTION 2 - PARTICIPATION
2.1 CONTINUATION OF EXISTING PARTICIPATION
Each Eligible Employee who was a Participant on June 30, 1990 shall continue to
be a Participant on July 1, 1990.
2.2 ELIGIBILITY OF OTHER PARTICIPANTS
Each other Eligible Employee shall become a Participant on the Entry Date
coincident with or next following the date he first becomes an Eligible Employee
or the date he attains age 21, whichever is later.
2.3 LOSS OF ACTIVE PARTICIPANT STATUS
(a) Inactive Participant:
An Employee who loses his status as an Eligible Employee, but remains an
Employee of the Company or an Affiliated Company, shall become an Inactive
Participant. During such periods as an Employee is an Inactive
Participant, his Company Account shall not be credited with any share of
the Company's contributions or Forfeitures. However, his Accounts shall
continue to share in Trust Fund gains and losses until the Valuation Date
coincident with or next preceding the date he receives distribution of his
Account balances and he shall continue to vest in his Company Account
balance in accordance with Section 5.1(b)(2).
(b) Former Participant:
A former Employee will cease to be an active Participant in the Plan upon
his retirement, death, permanent disability or other termination of
service with the Company or an Affiliated Company, and will, thereafter,
become a Former Participant until such time as he is paid from the Trust,
under the provisions of Section 5, the Plan benefit to which he is
entitled. A Former Participant shall not be credited with any share of
the Company's contribution or Forfeitures. However, his Accounts shall
continue to share in Trust Fund gains and losses until the Valuation Date
coincident with or next preceding the date he receives distribution of his
Account balances.
2.4 REHIRE OF FORMER EMPLOYEE
Each Employee who:
(a) Prior Plan Participant:
Was previously a Plan Participant, or
(b) Prior Service:
Had completed one (1) Year of Service but did not become a Participant
because he had not attained the status of Eligible Employee,
who terminates for the Company or otherwise loses the status of Eligible
Employee and, thereafter, again becomes an Eligible Employee, shall, upon
subsequent rehire or return to the status of Eligible Employee, become an active
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Participant as of the applicable of his Reemployment Commencement Date or the
Entry date coincident with or next following the date that he reattains the
status of Eligible Employee.
SECTION 3 - CONTRIBUTIONS
3.1 COMPANY CONTRIBUTIONS
(a) Matching Contribution:
Subject to Sections 3.1(c) and (d) below, each Plan Year the Company shall
contribute to the Trust on behalf of each Participant as a matching
contribution, by delivering to the Trustee, an amount equal to one hundred
percent (100%) of the lesser of (A) and (B), where (A) equals the first
two percent (2%) of each such Participant's aggregate Compensation for
such Plan Year, minus the aggregate Company matching contribution paid
pursuant to this Section 3.1(a) for such Plan Year to such Participant's
Company Account; and (B) equals the total amount deferred into a Salary
Deferral Account as a Salary Deferral and not invested in the Restricted
Company Stock Fund for such Plan Year, minus the aggregate Company
matching contribution paid pursuant to this Section 3.1(a) for such Plan
Year to such Participant's Company Account. Amounts that are invested in
the Restricted Company Stock Fund and which are subsequently transferred
to the Unrestricted Company Stock Fund as described in Section
4.4(b)(1)(D) of the Plan shall not be considered as Compensation deferred
and invested in the Restricted Stock Fund. Contributions made by the
Company pursuant to this Section 3.1(a) shall be credited to each
Participant's Company Account, subject to the Company's discretion to
credit such amounts to the Participant's Salary Deferral Account as set
forth in Section 3.5(c) of the Plan.
(b) Subject to Sections 3.1(c) and (d) below, the Company may contribute on
behalf of each Participant that amount as may be approved by the Board.
(c) Allocation of Contributions Among Participating Companies: The total
Company contributions for a Plan Year shall be allocated among Morrison
Knudsen Corporation and each adopting subsidiary in proportion to the
amounts allocated on behalf of the Employees of each such organization in
accordance with Section 4.2.
(d) Limitation:
The Company contributions for a Plan Year, together with Participant
Salary Deferrals, shall not exceed in total the maximum amount deductible
under the provisions of Section 404(a) of the Code.
3.2 TIMING OF COMPANY CONTRIBUTIONS
(a) The Company's contribution to the Trust for a Plan Year consisting of
matching contributions made pursuant to Section 3.1(a) shall generally be
made on a payroll period basis, within thirty (30) days after the end of
each payroll period, but in no event later than ninety (90) days after the
end of such payroll period. However, for discrimination test purposes,
any matching contributions for a Plan Year that are paid by the Company to
the Trustee after the end of the Plan Year but prior to the end of the
twelve (12) month period immediately following such Plan Year shall be
included in such Plan Year, provided that such matching contributions were
allocated to either the Participant's Company Account or Salary Deferral
Account under the Plan within such Plan Year, and the matching
contributions relate to Compensation that would have been received by the
Employee in the Plan Year but for Employee's election to defer under the
Plan.
(b) The Company's contribution to the Trust for a Plan Year consisting of
contributions made pursuant to Section 3.1(b) shall be made in one or more
cash installments, but the total amount to be contributed for any Plan
Year shall be paid by the Company to the Trustee not later than the date
the Company is required to file its federal corporate income tax return
(with extensions) with respect to such year.
3.3 SALARY DEFERRALS
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Commencing on the Effective Date, and as of each subsequent Entry Date or other
date as of which an Employee becomes eligible to participate in the Plan, such
Participant may elect, subject to the right of the Committee to establish
uniform and nondiscriminatory rules and, from time to time, to modify or change
such rules governing the manner and method by which Salary Deferrals shall be
made and the amount of such salary Deferrals, to reduce his Compensation by a
deferral percentage, which amount the Company shall then contribute to the Trust
and allocate to his Salary Deferral Account in accordance with the following
provisions:
(a) Election to Participate:
At least thirty (30) days prior to each Entry Date, or at some other time
as may be designated by the Committee, each Participant shall have the
opportunity to elect, or to change a prior election, to defer a percentage
of his Compensation, subject to the limitations described in Section
3.3(c). Salary Deferrals shall generally be made by a Participant by
entering into written agreement authorizing regular payroll withholdings
by the Company.
(b) Cessation of Salary Deferrals:
Notwithstanding the provisions of Section 3.3(a) above, a Participant may
direct the Company to cease withholding Salary Deferrals as soon as
practicable after written notice to such effect has been delivered by such
Participant to the Company.
(c) Amount of Salary Deferrals:
With respect to Salary Deferrals, a Participant shall be entitled, subject
to the right of the Committee to change such limitation on a
nondiscriminatory basis, to elect to defer at least one percent (1%) but
no more than fifteen percent (15%) of his Compensation for the Plan Year.
For any calendar year commencing on or after January 1, 1987, the Salary
Deferrals of each Participant shall not exceed in the aggregate seven
thousand dollars ($7,000) (or such greater amount as may be recognized for
increases in the cost of living in accordance with Section 402(g)(5) of
the Code) of Compensation earned during such calendar year.
(d) Correction of Excess Salary Deferrals:
If the aggregate of the Participant's Salary Deferrals made under this
Plan and his elective deferrals made under any other qualified cash or
deferred arrangements for any calendar year exceed the applicable dollar
limitation stated in Section 3.3(c) above, the Committee shall make
corrective distribution of such excess Salary Deferrals as follows:
(1) Corrective Distribution of Excess Salary Deferrals After the
Calendar Year:
(A) Notification of Excess Salary Deferrals by Participant:
The Participant shall notify the Committee, in writing, of the
amount of excess Salary Deferrals to be corrected under this
Plan no later than the first March 15 following the close of
the calendar year in which such excess Salary Deferrals arose.
(B) Corrective Distribution made by April 15:
Upon proper notification by the Participant under Section
3.3(d)(1)(A) above, the Committee shall make a corrective
distribution of the amount specified by the Participant as
excess Salary Deferrals under this Plan (and income allocable
thereto in accordance with regulations promulgated from time
to time by the Secretary of the Treasury) no later than the
first April 15 following the close of the calendar year in
which such excess Salary Deferrals arose.
3.4 TIMING OF SALARY DEFERRALS
The Company's contribution to the Trust for a Plan Year consisting of Salary
Deferrals shall generally be made on a payroll period basis, within thirty (30)
days after the end of each payroll period, but in no event later than ninety
(90) days after the end of such payroll period. However, for discrimination
test purposes, any Salary Deferrals for a Plan Year that are paid by the Company
to the Trustee after the end of the Plan Year but prior to the end of the twelve
(12) month period immediately following such Plan Year shall be included in such
Plan Year, provided that
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such Salary deferrals were allocated to the Participant's Salary deferral
Account under the Plan within such Plan Year, and the Salary Deferrals relate to
Compensation that would have been received by the Employee in the Plan Year but
for Employee's election to defer under the Plan.
3.5 ADJUSTMENT OF SALARY DEFERRALS
If Participant Salary Deferrals made to the Plan for any Plan Year would cause
the Plan to fail to meet the special nondiscrimination requirements of Code
Section 401(k)(3), then the Committee, at its discretion, shall take one or more
of the following steps:
(a) Reduce Future Salary Deferrals:
Reduce as necessary the Salary Deferral contributions for some or all of
the Highly Compensated Employees, as defined in Section 3.8(c), for the
remainder of the Plan Year;
(b) Return Salary Deferrals:
Return as necessary the Salary Deferral contribution (with income
allocable thereto in accordance with regulations promulgated from time to
time by the Secretary of the Treasury) for some or all of the Highly
Compensated Employees, as defined in Section 3.8(c) below, as follows:
(1) Amount of Salary Deferrals to be Returned to Highly Compensated
Employee(s):
The amount of Salary Deferrals to be returned to the Highly
Compensated Employee(s) is to be determined by the following
leveling method, under which the Actual Deferral Ratio, as defined
in Section 3.8(c)(4) below, of the Highly Compensated Employee(s)
with the highest Actual Deferral Ratio is reduced to the extent
required to:
(A) satisfy the Average Deferral Percentage Test as described in
Section 3.8(a) or (b), or
(B) cause the Actual Deferral Ratio of such Highly Compensated
Employee(s) to equal the ratio of the Highly Compensated
Employee(s) with the next highest Actual Deferral Ratio.
The above process must be repeated until the Plan satisfies the
Average Deferral Percentage Test as described in Section 3.8(a) or
(b). In no event shall the amount of the Salary Deferral
contributions to be returned under this section 3.5(b) exceed the
amount of Salary Deferrals made by such Highly Compensated
Employee(s) for such Plan Year.
(2) Determination of Amount of Salary Deferral for Each Highly
Compensated Employee:
The amount of excess Salary Deferrals for each Highly Compensated
Employee is the amount of his Salary Deferrals for the Plan Year
(determined prior to the application of the Section 3.5(b)) minus
the amount determined by multiplying such Highly Compensated
Employee's Actual Deferral Ratio (determined after the application
of this Section 3.5(b)) by his Compensation used in determining such
ratio.
(3) Timing of return of Salary Deferrals:
Salary Deferral contributions (and income allocable thereto) that
are to be returned under this Section 3.5(b) to Highly Compensated
Employee(s) shall be distributed to such Highly Compensated
Employee(s) within two and one half (2-1/2) months after the close
of the Plan Year immediately following the Plan Year in which such
Salary Deferral contributions were made to the Plan, but in no event
later than the last day of the Plan Year immediately following such
Plan Year, or, in the event of a complete termination of the Plan
during the Plan Year in which such Salary Deferral contributions
were made, no later than the close of the twelve (12) month period
immediately following the date of such termination.
(c) Reallocate Company Matching Contributions:
Reallocate, to the extent necessary, a portion or all of the Company
matching contributions made pursuant to Section 3.1(a) of the Plan for the
Plan Year, as determined under Section 4.2(a) of the Plan, to the Salary
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Deferral Accounts of the Participants who do not qualify as Highly
Compensated Employees, rather than to their Company Accounts.
(d) Notwithstanding the foregoing provisions of this Section 3.5, in the case
of a Highly Compensated Employee whose Actual Deferral Ratio is determined
under the family aggregation rules, the determination and correction of
the amount of the excess deferrals shall be made by reducing the Actual
Deferral Ratio in accordance with the "leveling" method described in
Treasury Regulations Section 1.401(k)-1(f)(2) and allocating the excess
deferrals for the family group among its members in proportion to the
Salary Deferrals of each member of the family group that is combined to
determine the Actual Deferral Ratio.
3.6 RETURN OF COMPANY CONTRIBUTIONS AND SALARY DEFERRALS TO THE COMPANY
(a) Return of Contributions:
Company contributions and/or Salary Deferrals may be returned by the
Trustee to the Company from the Trust if they were made because of a
reasonable mistake as to the facts and circumstances existing at the time
the contributions were made. As soon as possible following the return of
funds to the Company under this Section 3.6(a), such funds shall, if they
were originally Salary Deferrals, be paid by the Company to the
Participants making such original contributions.
(b) Limitation:
Any return of Company contributions or Salary Deferrals under Section
3.6(a) shall be limited to that portion attributable to a reasonable
mistake of fact and, further provided that such return must be made within
one (1) year of the date the mistaken contribution or Salary Deferral was
made.
3.7 PARTICIPANT VOLUNTARY CONTRIBUTIONS
(a) No Participant Voluntary Contributions for Plan Years commencing on or
after January 1, 1989:
For Plan Years commencing on or after January 1, 1989, no Participant
Voluntary Contributions shall be permitted under the Plan.
(b) Conditions for Making Voluntary Contributions for Plan Years prior to
January 1, 1989:
(1) Each Participant may voluntarily elect to make contributions to the
Trust Fund, during any period that he is a Plan Participant, subject
to the provisions of Section 3.7(b) and to the right of the
Committee to establish uniform and nondiscriminatory rules and, from
time to time, to modify or change such rules governing the manner
and method by which Participants' voluntary contributions shall be
made. In general, a Participant may elect to make, and cease,
Voluntary Contributions at the same times that he makes Salary
Deferral elections as described in Section 3.3.
(2) Voluntary contributions by a Participant, other than transfers of
"Voluntary Contributions Accounts" from the Retirement Plan, shall
not exceed in the aggregate during any Plan Year an amount equal to
ten percent (10%) of the Compensation paid to the Participant by the
Company for such year; provided, however, that if a Participant
fails to make a voluntary contribution for a Plan Year or makes a
contribution of less than ten percent (10%) during one or more Plan
Years, then voluntary contributions by such Participant in
subsequent Plan Years may exceed ten percent (10%), so long as the
total contributions made by such Participant for all Plan Years does
not exceed ten percent (10%) of the aggregate Compensation received
by the Employee for all Plan Years since he became a Participant in
the Plan.
(c) Establishment of Voluntary Contribution Account:
A separate Voluntary Contribution Account shall be established for each
Participant who elects to make Voluntary Contributions hereunder and/or
who is credited with the transfer of a "Voluntary Contributions Account"
from the Retirement Plan, in which shall be recorded the amounts of the
Participant's contributions or the transfer made on his behalf,
adjustments for allocations of income or loss, withdrawals,
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and all other information affecting the value of such account. Each
Voluntary Contribution Account shall be 100% vested in the contributing
Participant.
3.8 CODE SECTION 401(K)(3) DISCRIMINATION TEST REQUIREMENTS
Effective January 1, 1987, in no event shall the Average Deferral Percentage for
Highly Compensated Employees for a Plan Year exceed the greater of (a) or (b),
as follows:
(a) 1.25 Test:
The Average Deferral Percentage for Participants during any day of the
Plan Year who do not qualify as Highly Compensated Employees for such Plan
Year times 1.25; or
(b) 2.0 Test:
The Average Deferral Percentage of Participants during any day of the Plan
Year who do not qualify as Highly Compensated Employees for such Plan Year
times 2.0, provided that the Average Deferral Percentage for Highly
Compensated Employees does not exceed the Average Deferral Percentage for
Participants during any day of the Plan Year who do not qualify as Highly
Compensated Employees for such Plan Year by more than two (2) percentage
points.
(c) Definitions:
(1) Average Deferral Percentage:
"Average Deferral Percentage" means, for the group of Highly
Compensated Employees and for the group of Participants during any
day of the Plan Year who do not qualify as Highly Compensated
Employees for each Plan Year, the average of the Actual Deferral
Ratios (as defined in Section 3.8(c)(4) below) calculated separately
for each Eligible Employee in each group of (A) to (B), where (A)
and (B) are defined as follows:
(A) Salary Deferrals:
The amount of Salary Deferrals under the Plan by each
Participant.
(B) Participant Compensation:
The Compensation earned by each Participant.
(2) Highly Compensated Employee:
"Highly Compensated Employee" means, with respect to a Plan Year:
(A) In General:
Subject to Section 3.8(C)(2)(B) below, an Employee at any time
during a Plan Year or the immediately preceding Plan Year:
(i) Who owns five percent (5%) or more of the Company;
(ii) Whose Compensation is in excess of $75,000, or such
greater amount as may be recognized for increases in the
cost of living in accordance with Code Section 415(d);
(iii)Whose Compensation is in excess of $50,000, or such
greater amount as may be recognized for increases in the
cost of living in accordance with Code Section 415(d),
and who is a member of the Top Paid Group; or
(iv)Who is an officer of the Company (but not more than the
lesser of:
Fifty (50) Employees, or
The greater of three (3) or ten percent (10%) of
the Employees of the Company,
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shall be considered officers for this purpose) and whose
Compensation is in excess of $45,000, or such greater
amount as may be recognized for increases in the cost of
living in accordance with Code Section 414(g). (In the
event that no officer of the Company receives such
amount of Compensation for a Plan Year, the officer who
receives the highest Compensation for the Plan Year
included for the purpose of this Section.)
(B) Special Rules:
(i) A former Employee who was a Highly Compensated Employee
on his Separation from Service Date or at anytime on or
after his attainment of age fifty-five (55); or
(ii) An Employee who was not described in Sections
3.8(c)(2)(A)(ii), (iii) or (iv) for the immediately
preceding Plan Year, only if he is one of the top one
hundred (100) most Highly Compensated Employees for the
current Plan Year. The Company may adopt a rule
breaking ties among two or more Employees includible
under this Section 3.8(c)(2)(B)(ii) so long as such rule
is reasonable, nondiscriminatory, and applied uniformly
and consistently.
(iii) If two or more plans which include cash or deferred
arrangements are considered to be one plan for purposes
of sections 401(a)(4) or 410(b) of the Code, such
arrangements included in such plans shall be treated as
one arrangement for the purposes of this Section 3.8;
and if any Highly Compensated Employee is a participant
under two or more cash or deferred arrangements of the
controlled group (as defined under section 414 of the
Code and regulations promulgated thereunder) of which
the Company is a member, all such arrangements shall be
treated as one cash or deferred arrangement for purposes
of determining the Actual Deferral Ratio with respect to
such Highly Compensated Employee.
(C) Special Treatment of Certain Family Members:
If an Employee is a member of the family of an Employee who
owns five percent (5%) or more of the Company, or of a Highly
Compensated Employee who is one of the top ten (10) most
Highly Compensated Employees for a Plan Year, such individual
shall not be treated as a separate Employee, and any
Compensation paid to him (and any contribution on his behalf)
shall be treated as paid to (or contributed on behalf of) the
five percent (5%) owner or Highly Compensated Employee. For
purposes of this Section 3.8(c)(2)(C), "family" shall mean the
applicable Employee's spouse, lineal ascendants or descendants
and the spouses of such lineal ascendants or descendants.
(3) Top Paid Group:
"Top Paid Group" means the top twenty percent (20%) of Employees
when ranked in order of Compensation for a Plan Year. In
determining the number of Employees to be included in the top twenty
percent (20%), the following Employees shall be excluded:
(A) New Hires:
Employees employed for less than six (6) months;
(B) Part-time Employees:
Employees who normally work less than seventeen and one-half
(17-1/2) hours per week;
(C) Seasonal Employees:
Employees who normally work less than six (6) months per year;
(D) Under Age:
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Employees who have not yet attained age twenty-one (21);
(E) Union Employees:
Union-represented Employees, except to the extent provided by
regulations; and
(F) Nonresident Aliens:
Employees who are classified as nonresident aliens and who
have no United States source earned income.
For purposes of determining the number of Employees or identifying
the Employees in the Top Paid Group, the Company may adopt a rule
for rounding calculations or a rule for breaking ties among two or
more Employees so long as such rule(s) is (are) reasonable,
nondiscriminatory and applied uniformly and consistently.
(4) Actual Deferral Ratio:
"Actual Deferral Ratio", for purposes of this Section 3.8, means the
deferral percentage obtained by dividing the amount of Salary
Deferrals made under the Plan on behalf of each Highly Compensated
Employee or each Participant who does not qualify as a Highly
Compensated Employee by the Compensation earned by such Participant
or Highly Compensated Employee for the Plan Year. For Plan Years
beginning on or after January 1, 1989, Actual Deferral Ratios shall
be calculated to the nearest one-hundredth of one percent (0.01%) of
the Employee's Compensation. The Actual Deferral Ratio of a
Participant who elects no Salary Deferral is zero. The Actual
Deferral Ratio of a Participant who elects no Salary Deferral is
zero. The Actual Deferral Ratio of a Participant who receives a
hardship under Section 5.7(a)(2)(B) is zero.
3.9 ROLLOVERS
(a) Rollovers:
Amounts which an Eligible Employee has received from a qualified plan may,
subject to the Committee's approval and in accordance with uniform,
nondiscriminatory procedures designed to protect the qualification and the
integrity of the administrative design of the Plan, be rolled over by an
Eligible Employee as a nontaxable rollover contribution to this Plan in
cash, provided the following conditions are satisfied:
(1) Amounts that have previously been distributed to the Eligible
Employee from the plan making the distribution shall be credited to
the Eligible Employee's Rollover/Transfer Account in this Plan and
shall be fully vested and nonforfeitable at all times.
(2) The amounts tendered to the Committee must have previously been
received by the Eligible Employee as a qualified total distribution
described in Code section 402(a)(5) and must be transferred
following a distribution from:
(A) A plan qualified under Code section 401(a); or
(B) A rollover or conduit individual retirement account or annuity
which has received a rollover contribution described in Code
section 408(d)(3) (determined without regard to section
408(d)(3)(D) thereof);
(3) The amounts tendered must not include nondeductible employee
contributions to a qualified plan by an Eligible Employee or amounts
attributable to:
(A) Contributions to an individual retirement account or annuity
that are deductible under Code section 219;
(B) Accumulated deductible employee contributions described in
Code section 72(o)(5)(B); or
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(C) A partial distribution described in Code section 402
(a)(5)(D).
(4) The transfer to this Plan of a rollover contribution will be
accepted only if the Eligible Employee presents to the Committee the
Internal Revenue Service Form 1099, or equivalent, and the original
and any other distribution checks, or copies thereof, and/or such
other evidence as the Committee may require to verify the nature of
the amount and ensure that its receipt will not adversely affect the
qualified status of this Plan.
(5) Amounts must be received by the Plan not later than 60 days after a
qualifying distribution was received by the Eligible Employee.
(6) An Eligible Employee who makes a rollover when he is not otherwise a
Participant shall be treated as a Participant for purposes of
implementing Plan provisions related to rollovers.
(7) A rollover contribution is not eligible for Employer matching
contributions under this or any other plan.
(8) Upon approval by the Committee, rollover amounts shall be
transmitted to the Trustee, to be invested in such Investment Funds
as the Eligible Employee may select in accordance with the rules
provided elsewhere in this Plan, provided, however, that no
Investment Funds containing Company Stock shall be made available
for balances in a Participant's Rollover/Transfer Account unless the
Committee has determined that it is permissible to make such
Investment Funds available under applicable securities laws.
(b) Trustee-to-Trustee Transfers:
Subject to the provisions of Section 10.3, the Trustee may receive a
transfer of assets from another plan and trust that satisfy the
requirements of Code Sections 401(a) and 501(a), respectively.
Transferred assets shall be referred to as "transfer contributions."
Transfer contributions made to the Plan on behalf of an Eligible Employee
shall be fully vested and nonforfeitable at all times.
(1) Transfer contributions (and earnings attributable thereto) of each
type (i.e., Voluntary Contributions, Salary Deferrals, etc.) shall
be credited to that account under the Plan which is established and
designed to hold contributions of such type, (i.e., Voluntary
Contribution Account, Salary Deferral Account, etc.); provided,
however, to the extent it is not administratively feasible to
account for transfer contributions in such manner, such transfer
contributions shall be credited to the Eligible Employee's
Rollover/Transfer Account in this Plan and shall be subject to all
the rights and restrictions of the type of account (i.e., Voluntary
Contribution Account, Salary Deferral Account, etc.) to which they
would otherwise have been transferred.
(2) An Eligible Employee who is credited with transfer contributions
prior to the date the Eligible Employee satisfies the Plan's
conditions for participation shall be treated as a Participant;
provided, however, such Eligible Employee shall not be treated as a
Participant for purposes of sharing in Company contributions under
Section 3.1 and Participant forfeitures under the Plan until he
actually satisfies the Plan's conditions for participation.
(3) Plan provisions to the contrary notwithstanding, a transfer
contribution is not eligible for Employer matching contributions
under this or any other plan.
(4) Upon approval by the Committee, transfer contributions shall be
transmitted to the Trustee, to be invested in such Investment Funds
as the Eligible Employee may select in accordance with the rules
provided elsewhere in this Plan, provided, however, that no
Investment Funds containing Company Stock shall be made available
for balances in a Participant's Rollover/Transfer Account unless the
Committee has determined that it is permissible to make such
Investment Funds available under applicable securities laws.
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3.10 CODE SECTION 401(M) DISCRIMINATION TEST REQUIREMENTS
In no event shall the Average Contribution Percentage for Highly Compensated
Employees for a Plan Year exceed the greater of (a) or (b), as follows:
(a) 1.25 Test:
The Average Contribution Percentage for Participants during any day of the
Plan Year who do not qualify as Highly Compensated Employees for such Plan
Year times 1.25; or
(b) 2.0 Test:
The Average Contribution Percentage of Participants during any day of the
Plan Year who do not qualify as Highly Compensated Employees for such Plan
Year times 2.0, provided that the Average Contribution Percentage for
Highly Compensated Employees does not exceed the Average Contribution
Percentage for Participants during any day of the Plan Year who do not
qualify as Highly Compensated Employees for such Plan Year by more than
two (2) percentage points.
(c) Definitions:
(1) Average Contribution Percentage:
"Average Contribution Percentage" means, for the group of Highly
Compensated Employees and for the group of Participants during any
day of the Plan Year who do not qualify as Highly Compensated
Employees for each Plan Year, the average of the Actual Contribution
Ratios (as defined in Section 3.10(c)(4) below) calculated
separately for each Eligible Employee in each group of (A) to (B),
where (A) and (B) are defined as follows:
(A) Matching Contributions:
The amount of Company matching contributions made pursuant to
Section 3.1(a) of the Plan and any Voluntary Contributions
paid under the Plan by or on behalf of each such participant
for such Plan Year.
(B) Participant Compensation:
The Compensation earned by each Participant.
(2) Highly Compensated Employee:
"Highly Compensated Employee" shall have the same meaning as set
forth in Section 3.8(c)(2) of the Plan.
(3) Top Paid Group:
"Top Paid Group" shall have the same meaning as set forth in Section
3.8(c)(3) of the Plan.
(4) Actual Contribution Ratio:
"Actual Contribution Ratio", for purposes of this Section 3.10,
means the contribution percentage obtained by dividing the amount of
Company matching contributions made pursuant to Section 3.1(a) of
the Plan and any Voluntary Contributions made under the Plan on
behalf of each Highly Compensated Employee or each Participant who
does not qualify as a Highly Compensated Employee by the
Compensation earned by such Participant or Highly Compensated
Employee for the Plan Year. For Plan Years beginning on or after
January 1, 1989, Actual Contribution Ratios shall be calculated to
the nearest one-hundredth of one percent (0.01%) of the Employee's
Compensation.
(5) Special Rules:
If two or more plans which include cash or deferred arrangements are
considered to be one plan for purposes of sections 401(a)(4) or
410(b) of the Code, such arrangements included in such plans shall
be treated as one arrangement for the purposes of this Section 3.10;
and if any Highly Compensated Employee is a participant under two or
more cash or deferred arrangements of the
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controlled group (as defined under section 414 of the Code and
regulations promulgated thereunder) of which the Company is a
member, all such arrangements shall be treated as one cash or
deferred arrangement for purposes of determining the Actual
Contribution Ratio with respect to such Highly Compensated Employee.
3.11 ADJUSTMENT OF MATCHING CONTRIBUTIONS
If Voluntary Contributions or Company matching contributions made to the Plan
for any Plan Year would cause the Plan to fail to meet the special
nondiscrimination requirements of Code Section 401(m), then the Committee, at
its discretion, shall take one or more of the following steps:
(a) Reduce Future Company Matching Contributions:
Reduce as necessary, any future Company matching contributions under
Section 3.1(a) of the Plan, for some or all of the Highly Compensated
Employees, as defined in Section 3.10(c)(2), for the remainder of the Plan
Year;
(b) Return Matching Contributions:
Return as necessary Company matching contributions made pursuant to
Section 3.1(a) (with income allocable thereto in accordance with
regulations promulgated from time to time by the Secretary of the
Treasury) for some or all of the Highly Compensated Employees, as defined
in Section 3.10(c)(2), as follows:
(1) Amount of Contributions to be Returned to Highly Compensated
Employee(s):
The amount of Company matching contributions to be returned to the
Highly Compensated Employee(s) is to be determined by the following
leveling method, under which the Actual Contribution Ratio, as
defined in Section 3.10(c)(4) above, of the Highly Compensated
Employee(s) with the highest Actual Contribution Ratio is reduced to
the extent required to:
(A) satisfy the Average Contribution Percentage Test as described
in Section 3.10(a) or (b), or
(B) cause the Actual Contribution Ratio of such Highly Compensated
Employee(s) to equal the ratio of the Highly Compensated
Employee(s) with the next highest Actual Contribution Ratio.
The above process must be repeated until the Plan satisfies the
Average Contribution Percentage Test as described in Section 3.10(a)
or (b). In no event shall the amount of the Company matching
contributions to be returned under this section exceed the amount of
Company matching contributions made by such Highly Compensated
Employee(s) for such Plan Year.
(2) Determination of Amount of Company Matching Contributions for Each
Highly Compensated Employee:
The amount of excess Company matching contributions for each Highly
Compensated Employee is the amount of his Company matching
contributions made pursuant to Section 3.1(a) for the Plan Year
(determined prior to the application of the Section 3.11(b)) minus
the amount determined by multiplying such Highly Compensated
Employee's Actual Contribution Ratio (determined after the
application of this Section 3.11(b)) by his Compensation used in
determining such ratio.
(3) Timing of return of Excess Company Matching Contributions:
Company matching contributions (and income allocable thereto) that
are to be returned under this Section 3.11(b) to Highly Compensated
Employee(s) shall be distributed to such Highly Compensated
Employee(s) within two and one half (2-1/2) months after the close
of the Plan Year immediately following the Plan Year in which such
Company matching contributions were made to the Plan, but in no
event later than the last day of the Plan Year immediately following
such Plan Year, or, in the event of a complete termination of the
Plan during the Plan Year in which
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such Company matching contributions were made, no later than the
close of the twelve (12) month period immediately following the date
of such termination.
(c) Notwithstanding the foregoing provisions of this Section 3.11, in the case
of a Highly Compensated Employee whose Actual Contribution Ratio is
determined under the family aggregation rules, the determination and
correction of the amount of the excess contributions shall be made by
reducing the Actual Contribution Ratio in accordance with the "leveling"
method described in Treasury Regulations Section 1.401(k)-1(f)(2) and
the excess contributions for the family group among its members in
proportion to the Company matching contributions of each member of the
family group that is combined to determine the Actual Contribution Ratio.
3.12 MULTIPLE USE OF THE ALTERNATIVE LIMITATION
(a) Notwithstanding the foregoing provisions of this Section 3, if, after the
application of Sections 3.3(c), 3.5, 3.6, 3.10 and 3.11, the sum of the
Average Deferral Percentage and Average Contribution Percentage for the
group of Highly Compensated Employees (as defined in Section 3.8(c)(4)
exceeds the aggregate limit (as defined in paragraph (b) of this Section),
then the Average Contribution Percentage of the group of Highly
Compensated Employees will be reduced (beginning with such Highly
Compensated Employee whose Actual Contribution Ratio is the highest) so
that the aggregate limit is not exceeded. The amount by which each such
Highly Compensated Employee's Actual Contribution Ratio is reduced shall
be treated as an excess Company matching contribution under Section 3.10
and 3.11. For the purposes of this Section, the Average Deferral
Percentage and the Average Contribution Percentage of the Highly
Compensated Employees are determined after any reductions required to meet
such tests under Sections 3.8 and 3.10. Notwithstanding the foregoing
provisions of this Section, no reduction shall be required by this
subsection (a) if either (i) the Average Deferral Percentage of the Highly
Compensated Employees does not exceed 1.25 multiplied by the Average
Deferral Percentage of the non-Highly Compensated Employees, or (ii) the
Average Contribution Percentage of the Highly Compensated Employees does
not exceed 1.25 multiplied by the Average Contribution Percentage of the
non-Highly Compensated Employees.
(b) For purposes of this Section, the term "aggregate limit" means the sum of
(A) 125% of the greater of (i) the Average Deferral Percentage of the
non-Highly Compensated Employees for the Plan Year, or (ii) the Average
Contribution Percentage of the non-Highly Compensated Employees for the
Plan Year, and (B) the lesser of (i) two hundred percent (200%), or (ii)
two (2) plus the lesser of such Average Deferral Percentage or Average
Contribution Percentage. If it would result in a larger aggregate limit,
the word "lesser" is substituted for the word "greater" in subpart (A) of
this subsection and, and the word "greater" is substituted for the word
"lesser" in subpart (B)(ii) of this subsection.
SECTION 4 - PARTICIPANT'S CREDIT IN THE TRUST FUND
4.1 ACCOUNTS
(a) Salary Deferral Account:
A Salary Deferral Account shall be opened and maintained by the Committee
for each Participant electing to make Salary Deferrals under Section 3.3,
in which shall be recorded, as of each Valuation Date, the amounts of his
Salary Deferrals, adjustments for allocation of income or loss,
distributions, withdrawals and all other information affecting the value
of such Account.
(b) Company Account:
A Company Account shall be opened and maintained by the Committee for each
Participant on whose behalf Company matching contributions have been made
pursuant to Section 3.1(a) in which shall be recorded, as of each
Valuation Date, the amounts of such Company matching contributions
allocated on his behalf under Section 4.2, adjustments for allocation of
income or loss, distributions and all other information affecting the
value of such Account.
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(c) Voluntary Contribution Account:
A Voluntary Contribution Account shall be opened and maintained by the
Committee for each Participant to hold his Voluntary Contributions made in
accordance with Section 3.7, amounts allocated to the Participant's
"Voluntary Contributions Accounts" under the Retirement Plan and
transferred to this Plan, his reclassified Salary Deferrals as described
in Section 3.5(b), and in which shall be recorded, as of each Valuation
Date, adjustments for allocation of income or loss, distributions,
withdrawals and all other information affecting the value of such Account.
(d) Rollover/Transfer Account:
A Rollover/Transfer Account shall be opened and maintained by the
Committee for each Participant on whose behalf a rollover contribution or
transfer contribution has been made under Section 3.9, in which shall be
recorded, as of each Valuation Date, the amounts of his rollover and/or
transfer contributions, adjustments for allocation of income or loss,
distributions, withdrawals and all other information affecting the value
of such Account.
4.2 ALLOCATION OF COMPANY CONTRIBUTIONS AND FORFEITURES
(a) Company Salary Deferrals:
The Salary Deferrals made on behalf of each Participant since the
preceding Allocation Date, shall be allocated, as of each Allocation Date,
to the Salary Deferral Account of each Participant in the amount of such
Participant's Salary Deferral.
(b) Company Matching Contributions:
Company matching contributions made on behalf of a Participant in
accordance with Section 3.1(a) to the Trust Fund since the preceding
Allocation Date, shall be allocated, as of each Allocation Date, to the
Company Account of each Participant in the amount of such contribution.
Alternatively, the Committee may direct that the some or all of the
allocations described above be credited to the Salary Deferral Accounts of
non-Highly Compensated Participants as provided under Section 3.5(c).
(c) Additional Allocations:
In the event the Company makes contributions pursuant to Section 3.1(b)
for a Plan Year, such contributions shall be allocated, as of each
Allocation Date, to the Company Accounts of each Participant who has a
balance in his Company Account at the time of allocation in the proportion
that each such Participant's Compensation for the Plan Year bears to the
total Compensation of all such Participants for the Plan Year.
(d) Forfeitures:
Any Forfeitures arising under the Plan during the Plan Year shall be used
by the Company to offset the Company matching contribution under Section
3.1(a) of the Plan next coming due.
4.3 MAXIMUM ANNUAL ADDITION
(a) Maximum Annual Addition:
Subject to the cost of living adjustments provided under Section 4.3(d),
the maximum Annual Addition to a Participant's Accounts for any Limitation
Year shall in no event exceed the lesser of:
(1) $30,000 or, if greater, twenty-five percent (25%) of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code, or
(2) Twenty-five percent (25%) of his Compensation.
(b) Excess Annual Addition:
In the event there is an excess Annual Addition for a Participant for a
Limitation Year, if the Participant had made Voluntary Contributions for
such Plan Year, the Voluntary Contributions shall first be returned to the
Participant to the extent necessary to avoid an excess Annual Addition.
If an excess Annual Addition
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remains thereafter and if the Participant had made Salary Deferrals for
such Plan Year, such Salary Deferrals shall be held in a suspense account
in the Trust Fund and shall be credited as Salary Deferrals on the
Participant's behalf in the following Limitation Year. During any period
that such a suspense account is maintained,
(1) investment gains and losses or other income shall not be allocated
to the suspense account; and
(2) the suspense account shall continue to be credited to the
Participant's Salary Deferral Account until the suspense account is
exhausted.
(c) Multiple Defined Contribution Plans:
If the Company or an Affiliated Company is contributing to another defined
contribution plan, as that term is defined in Section 414(i) of the Code,
for Employees of the Company, some or all of whom may be Participants in
this Plan, then any such Participant's Annual Addition in such other plan
shall be aggregated with such Participant's Annual Addition derived from
this Plan for purposes of applying the limitations under Section 4.3(a)
above.
(d) Adjustment of Limitation:
The limitation imposed by Section 4.3(a)(1) above shall be adjusted
annually (or when allowable) for increases in the cost of living, in
accordance with the Regulations issued by the Secretary of the Treasury
pursuant to the provisions of Section 415(d) of the Code. Each adjustment
(when allowable) shall be limited to the scheduled annual increase
determined by the Commissioner of the Internal Revenue Service. Such cost
of living adjustment (when allowable) shall be effective not earlier than
January 1 of the year in which it is made.
(e) Limitation for Multiple Plans:
In any case in which an Employee is a participant in both one or more
tax-qualified defined benefit plans and one or more tax-qualified defined
contribution plans maintained by the Company or an Affiliated Company, the
sum of the defined benefit plan fraction and the defined contribution plan
fraction for any Limitation Year shall not exceed 1.0.
(1) The defined benefit plan fraction for any Limitation Year is a
fraction:
(A) the numerator of which is the projected annual benefit of the
participant in the plan(s), determined as of the close of the
Limitation Year, and
(B) the denominator of which is the lesser of (i) or (ii), as
follows:
(i) 1.25 multiplied by the defined benefit plan dollar
limitation in effect for such year, or
(ii) 1.4 multiplied by one hundred percent (100%) of the
Participant's average Compensation for the three (3)
consecutive Limitation Years during which he was a
Participant and had the greatest aggregate Compensation
from the Company, determined as of the close of the
Limitation Year.
(2) The defined contribution plan fraction for any Limitation Year is a
fraction:
(A) the numerator of which is the sum of the Annual Additions made
on behalf of a Participant as of the close of the Limitation
Year, and
(B) the denominator of which is the sum of the lesser of (i) or
(ii) for such year and each prior year of service with the
Company:
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(i) 1.25 multiplied by the defined contribution plan dollar
limitation under Section 4.3(a)(1) in effect for such
year, or
(ii) 1.4 multiplied by twenty-five percent (25%) of the
Participant's Compensation for such year.
In determining the limitation for multiple plans under this Section
4.3(e), the defined contribution plan fraction for the Limitation
Year shall be calculated first and then the defined benefit plan
fraction shall be calculated, such that the benefit provided under
the defined benefit plan shall be reduced, as necessary, to comply
with the requirements of this Section 4.3(e).
4.4 INVESTMENT OF ACCOUNTS
(a) In General:
Participants' Accounts shall be held in the Trust Fund and invested,
generally at the direction of each Participant, in Investment Funds
selected by the Committee for this purpose, which shall always include the
Company Stock Funds as described in 4.4(b) below. The Committee shall
have the right to determine, from time to time, the options a Participant
shall have with respect to the investment of his Accounts, including
percentage increments in which such Accounts may be divided among
Investment Funds, the maximum number of Investment Funds in which Accounts
may be invested at one time, the times and effective dates of elections by
Participants to change investment of such Accounts applicable to both past
and future contributions to such Accounts, the frequency as of which
Participants may change investment elections, and the Investment Fund(s)
in which Accounts will be held in the event an investment election is not
made by a Participant.
(b) Company Stock funds:
The Investment Funds selected by the Committee for the investment of Plan
assets shall include the Company Stock Funds described in (1) and (2)
below:
(1) Restricted Company Stock Fund:
A Restricted Company Stock Fund shall be established, effective
January 1, 1990, subject to the following provisions:
(A) Investment in Company Stock Only:
The restricted Company Stock Fund shall primarily be invested
in Company Stock.
(B) Available for Salary Deferral Only:
For Plan Years commencing on or after January 1, 1990, each
Participant may elect to invest a percentage of his
Compensation for a Plan Year, which is allocated to his Salary
Deferral Account for that Plan Year, in the Restricted Company
Stock Fund, up to a maximum of three percent (3%) of his
Compensation for the Plan Year.
(C) Restrictions on Transfers to or from Other Investment Funds:
Except as provided in Subsections (D) and (E) below, no
Participant shall be permitted to reallocate his prior Account
balance(s) either from other Investment Fund(s) into the
Restricted Company Stock Fund, or from the Restricted Company
Stock Fund among other Investment Fund(s).
(D) Automatic Transfer from Restricted Stock Fund to Unrestricted
Stock Fund:
Notwithstanding the restrictions defined in (C) above of this
Subsection 4.4(b)(1), any Salary Deferrals for each Plan year
which are invested in the Restricted Stock Fund and which do
not receive a "Matching Contribution", as defined below, shall
be automatically transferred, effective at the end of such
Plan Year, to the Unrestricted Company Stock Fund, as defined
in Subsection 4.4(b)(2) below. For purposes of this
Subsection, a Matching Contribution shall mean an allocation
to the Account of a Participant under
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Section 3.5 of the Morrison Knudsen Corporation Employee Stock
Ownership Plan that equals or exceeds one hundred percent
(100%) of the first three percent (3%) of the Participant's
Compensation for the Plan Year that is deferred under this
Plan and invested in the Restricted Stock Fund.
(E) Elective Transfer from Investment Funds to Restricted Company
Stock Fund:
Salary Deferrals for a Plan Year which were invested in
Investment Funds other than the Restricted Company Stock Fund
may, at the election of each Participant who failed to invest
three percent (3%) of his or her Compensation for such Plan
Year in the Restricted Company Stock Fund, be transferred to
such Restricted Company Stock Fund; provided, however, the
following rules shall apply: (i) Salary Deferrals that
received a "Matching Contribution," as defined below, shall
not be eligible for transfer; (ii) Salary Deferrals
transferred from other Investment Funds will be accepted only
to the point where such Participant has invested in the
Restricted Company Stock Fund three percent (3%) of his
Compensation for such Plan Year; and (iii) the election to
transfer Salary Deferrals shall be made as soon as
administratively practicable following the end of each Plan
Year. For purposes of this Subsection, a Matching
Contribution shall mean an allocation to the Account of a
Participant under Section 3.1(a) of this Plan.
(2) Unrestricted Company Stock Fund:
An Unrestricted Company Stock Fund subject to the general provision
under Section 4.4(a) above and which is invested primarily in
Company Stock.
4.5 ALLOCATION OF FUND EARNINGS
As of each Valuation Date, the net earnings and gains or losses during the
period since the preceding Valuation Date of the assets invested in each
Investment Fund shall be allocated among the Accounts of Participants, Inactive
Participants and Former Participants in the proportion that the value of the
Accounts of each Participant, Inactive Participant and Former Participant,
determined as of the previous Valuation Date and adjusted to reflect the time
weighted value of any interim distributions charged to his Accounts, Salary
Deferrals credited to his Salary Deferral Account, Voluntary Contributions
credited to his Voluntary Contribution Account and contributions and forfeitures
credited to his Company Account, bears to the time-weighted value of the
Accounts of all such Participants, Inactive Participants and Former Participants
eligible to share in the allocation. "Net earnings" shall be deemed to mean net
earnings and gains on each of the Investment Fund assets, whether realized or
not, less all expenses allocable to each of the Investment Fund assets.
4.6 ACCOUNTING
All accounting for the Trust, other than adjustment of the Accounts to reflect
the market value of Trust assets, shall be rendered on a cash basis, except that
Salary Deferrals shall be credited to Salary Deferral Accounts, Voluntary
Contributions shall be credited to Voluntary Contribution Accounts and Company
contributions shall be credited to Company Accounts no later than the Valuation
Date immediately following the last day of the Company's payroll period for
which the contributions are made.
4.7 LIMITATION
Nothing herein contained shall be deemed to give any Participant any interest in
any specific property of the Trust Fund or vest in him any right, title or
interest in or to any asset of the Trust Fund. Each Participant shall have only
the right to receive payment at the time or times and upon the terms and
conditions expressly set forth in the Plan.
4.8 FORFEITURE OF BENEFITS WHERE RECIPIENT CANNOT BE LOCATED
(a) Forfeiture of Benefits:
Except as provided in Section 4.8(b) below, if a Participant is entitled
to receive a benefit under this Plan and such benefit has not been paid
for a period of five (5) years from the date such benefit was to
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commence because the Company has been unable to locate said Participant or
his Beneficiary, the Committee shall declare the benefit to be a
Forfeiture and shall allocate it in accordance with Section 4.2.
(b) Subsequent Appearance of recipient:
Should a Participant or Beneficiary, whose benefit had been forfeited
under the provisions of Section 4.8(a), later be located, the Committee
shall immediately direct the Trustee to make payment of benefits to said
Participant or his Beneficiary according to the terms of the Plan. The
resulting deficiency in the Trust Fund shall be made up in the manner
described in Section 5.2(b)(1).
SECTION 5 - PARTICIPANT'S RIGHT TO PAYMENT
5.1 AMOUNT OF DISTRIBUTION FROM PARTICIPANT'S ACCOUNTS
Payments to or on behalf of a Participant shall be made from the Trust Fund, in
accordance with Sections 5.3 and 5.4, in the amounts and upon the events stated
below:
(a) Salary Deferral, Voluntary Contribution, and Rollover/Transfer Accounts:
A Participant (or his Beneficiary in the event of his death) who reaches
his Separation from Service Date for any reason shall then become a Former
Participant and be entitled to receive one hundred percent (100%) of the
amount credited to his Salary Deferral, Voluntary Contribution, and
Rollover/Transfer Accounts as of the Valuation Date coincident with or
next preceding the date he receives distribution of his Account balance(s)
plus any Salary Deferrals, Voluntary Contributions, rollover or transfer
contributions made after such date and less any interim distributions made
after such date.
(b) Company Account:
(1) Retirement, Disability or Death:
A Participant who reaches his Separation from Service Date after
attaining his Normal Retirement Date, or by reason of Disability or
death, shall be entitled (or his Beneficiary shall be entitled in
the event of his death) to receive one hundred percent (100%) of the
amount credited to his Company Account as of the Valuation Date
coincident with or immediately preceding the date he receives
distribution of his Account balance.
(2) Other Termination of Service:
A Participant who reaches his Separation from Service Date prior to
his Normal Retirement Date (and other than by reason of his
Disability or death), and who has completed at least one (1) Year of
Service, shall be entitled to his Company Account balance as of the
Valuation Date coincident with or next preceding the date he
receives distribution of his Account balance, multiplied by the
vesting percentage determined by reference to the applicable of the
following schedules:
(A) Prior to January 1, 1989, the schedule shall be as follows:
Vesting
Years of Service Percentage
---------------- -----------
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Less than 1 0%
1 but less than 2 10%
2 but less than 3 20%
3 but less than 4 30%
4 but less than 5 40%
5 but less than 6 50%
6 but less than 7 60%
7 but less than 8 70%
8 but less than 9 80%
9 but less than 10 90%
10 or more 100%
(B) On or after January 1, 1989, the schedule shall be as follows:
Vesting
Years of Service Percentage
---------------- ----------
Less than 1 0%
1 but less than 2 20%
2 but less than 3 40%
3 but less than 4 60%
4 but less than 5 80%
5 or more 100%
5.2 FORFEITURE
When a Participant terminates employment with the Company or an Affiliated
Company, Forfeiture of his Company Account shall be in accordance with the
following:
(a) Timing of Forfeiture:
Where the Participant is entitled to a distribution of less than one
hundred percent (100%) of the amount credited to his Company Account as
described under Section 5.1(b)(2), the nonvested portion of the Former
Participant's Company Account shall be forfeited as of the earlier of the
date a distribution is made to him from his Company Account or the
incurrence of six (6) consecutive one (1) year Breaks In Service.
(b) Rehire Prior to Incurring Six Consecutive One Year Breaks In Service:
In the event such Former Participant is rehired prior to incurring six (6)
consecutive one (1) year Breaks In Service, the Participant will, if he
repays the amount of the distribution from his Company Account which he
previously received upon termination no later than the earlier of:
(1) The fifth (5th) anniversary of his return to the employment of the
Company or an Affiliated Company, if applicable, or
(2) the close of a period of five (5) consecutive one (1) year Breaks In
Service commencing after the date of the distribution
have recredited to a special account ("Special Account"), as of the first
day of the Plan Year coinciding with or next preceding his date of
repayment, the portion of his Company Account balance which he forfeited
upon his prior termination from the Company or Affiliated Company. The
sources for recrediting a prior Forfeiture in a subsequent Plan Year will
be, in order of priority:
(1) Forfeitures occurring in the Plan Year in which the Special Account
is credited; if not sufficient then
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(2) Contributions made by the Company for the Plan Year in which the
Special Account is credited; if still not sufficient then
(3) Earnings allocable to his Company Account and realized during the
Plan Year in which the Special Account is created.
(c) Rehire After Incurring Six One Year Breaks In Service:
In the event such Former Participant is not rehired by the Company or an
Affiliated Company prior to incurring six (6) consecutive one (1) year
Breaks in Service, the portion of the Participant's Company Account
balance which he forfeited upon his prior termination from the Company or
an Affiliated Company shall be deemed to be a permanent Forfeiture and
shall not be recredited to the Participant's Company Account should he
subsequently become eligible for participation in the Plan.
5.3 FORM OF DISTRIBUTION
Distribution of benefits under the Plan shall be made by the Trustee in the form
of lump sum cash payments except that, to the extent a Participant's Accounts
are invested in one or both of the Company Stock Funds described in Section
4.4(b) of the Plan at the time of distribution, the Participant (the
Participant's Beneficiary in the case of a distribution on account of death or
the Participant's duly appointed legal representative in the case of
incompetency), shall have the right to require the Committee to direct the
Trustee to distribute the number of whole shares of Company Stock held under the
Participant's Accounts in such Company Stock Funds, in lieu of the cash value of
such shares of Company Stock. The foregoing to the contrary notwithstanding, a
distribution of Company Stock shall not be available in connection with an
in-service withdrawal under Section 5.7 of the Plan.
5.4 TIMING OF DISTRIBUTION
The Committee shall direct the Trustee to distribute benefits under the Plan as
soon as practicable following the Participant's Separation from Service Date,
subject to the following:
(a) Accrued Benefit $3,500 or Less:
Where a Participant's distribution is $3,500 or less, such distribution
shall be made to the Participant within one (1) year of his Separation
from Service Date.
(b) Accrued Benefit Greater than $3,500:
Where a Participant's distribution exceeds $3,500 and the Participant has
not yet attained age sixty-five (65), such distribution shall not be made
to such Participant prior to his attainment of age sixty-five (65) unless
the Participant consents, in writing, to an immediate distribution of his
Plan benefits, which consent shall be made as specified by the
Participant, either as soon as practicable following the Participant's
Separation from Service Date, or as soon as practicable following the end
of the Plan Year that includes such Separation from Service Date.
(c) Retirement:
In no event shall distribution of Accrued Benefit be made later than April
1st of the calendar year following the calendar year in which the Employee
allocating attains age seventy and one-half (70- 1/2). If the Participant
be an Eligible Employee after the last day of the calendar year in which
he attains age seventy and one-half (70- 1/2), his Accrued Benefit earned
for such Subsequent Plan Year shall be distributed no later than April 1st
of each calendar year following such year.
(d) Death:
In the event of the death of a Participant prior to payment of Plan
benefits to the Participant:
(1) if the designated Beneficiary is other than the Participant's
spouse, distribution to such Beneficiary shall generally be made
within one (1) year of the Participant's date of death; or
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(2) if the designated Beneficiary is the Participant's spouse,
distribution to such Beneficiary shall generally commence by the
date on which the Participant would have attained age seventy and
one-half (70-1/2)
subject to the provision that if the applicable of the rules described in
Section 5.4(d)(1) or (2) is not complied with, distribution of the
Participant's entire Accrued Benefit shall be made within five (5) years
of the Participant's death.
5.5 LATEST BENEFIT COMMENCEMENT DATE
Unless otherwise elected by a Participant, the payment of benefits under the
Plan shall be made no later than the sixtieth (60th) day after the close of the
Plan Year in which the latest of the following events occurs:
(a) Normal Retirement Date:
The Participant's Normal Retirement Date;
(b) Ten Years of Participation:
The tenth (10th) anniversary of the year in which the Participant
commenced participation in the Plan; or
(c) Termination:
The Participant's Separation from Service Date.
5.6 REHIRE OF FORMER PLAN PARTICIPANT
In the event that a Former Participant who is entitled to receive a distribution
under the Plan is rehired by the Company or an Affiliated Company prior to
receiving such distribution, the distribution shall be delayed until he again
terminates his employment with the Company or an Affiliated Company. Upon his
reemployment, such Employee may again become an active Participant under the
provisions of Section 2.4.
5.7 IN SERVICE WITHDRAWALS OF SALARY DEFERRALS AND VOLUNTARY CONTRIBUTIONS
(a) General Requirements:
Subject to the approval of the Committee, Participants may withdraw from
their Salary Deferral and Voluntary Contribution Account balances in
accordance with the following:
(1) Withdrawal of Voluntary Contributions:
A Participant may withdraw from his Voluntary Contribution Account
an amount not in excess of his Voluntary Contribution Account
balance.
(2) Withdrawal of Salary Deferrals:
A Participant may withdraw from his Salary Deferral Account an
amount not in excess of those Salary Deferrals and income allocable
to such Salary Deferrals credited to his Salary Deferral Account no
later than December 31, 1988, plus Salary Deferrals credited to his
Salary Deferral Account after December 31, 1988, excluding income
allocable to such Salary Deferrals. Withdrawals may be made in
accordance with (A) or (B) as follows:
(A) Attainment of Age 59- 1/2:
After a Participant has attained the age of 59- 1/2, provided,
however, that amounts invested in the Restricted Company Stock
Fund may not be withdrawn under this alternative (A) and may
therefore be withdrawn only to the extent permissible under
alternative (B) below; or
(B) Hardship Distributions:
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On account of Hardship. Hardship shall be determined by the
Committee in its sole discretion in a uniform and
nondiscriminatory manner. Hardship distributions will be
granted to a Participant only if he can demonstrate to the
Committee that:
(i) he has immediate and heavy financial need as described
in Section 5.7(a)(2)(C)(i) below ("deemed hardships");
and
(ii) that a distribution from his Salary Deferral Account is
necessary to satisfy such need, as described in Section
5.7(a)(2)(C)(ii) below ("deemed necessity").
(C) Definitions:
(i) Deemed Hardships:
A distribution made on account of any of the following
will be deemed to be a distribution on account of an
immediate and heavy financial need:
(a) medical expenses described in Section 213(d) of
the Code incurred by the Participant, his spouse
or his dependents as defined in Section 152 of the
Code; or
(b) the purchase (excluding mortgage payments) of a
principal residence of the Participant; or
(c) the payment of tuition for the next semester or
quarter of post-secondary education for the
Participant, his spouse, children or dependents;
or
(d) the need to prevent eviction of the Participant
from his principal residence or foreclosure on the
mortgage of the Participant's principal residence.
(ii) Deemed Necessity:
A distribution will be deemed to be necessary to satisfy
an immediate and heavy financial need after the
satisfaction of the following requirements by the
Participant:
(a) the amount requested does not exceed the amount
required to satisfy the need enumerated under
Section 3.7(a)(2)(C)(i), (ii), (iii) or (iv)
above; and
(b) the Participant has obtained all available
distributions, including distributions from his
Voluntary Contribution Account, if any, and all
nontaxable loans, if any, available from this Plan
and other plans maintained by the Company; and
(c) the Participant does not make any Salary Deferrals
to his Salary Deferral Account until the day after
the second Anniversary Date immediately following
the date of hardship distribution, nor employee
contributions or elective contributions to any
other plan maintained by the Company or a period
of twelve (12) months immediately following the
date of hardship distribution; and
(d) the Participant's Salary Deferrals under this Plan
as well as elective contributions (within the
meaning of Treasury Regulation 1.401(k)-(1)(g)(4)
made under any other plan maintained by the
Company, if
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any, at the end of the twelve (12) month period
immediately following the date of the hardship
distribution under this Plan shall be reduced by
the Salary Deferrals credited to his Salary
Deferral Account in the calendar year in which
occurs his hardship distribution.
(D) Facts and Circumstances Hardships:
Notwithstanding any other provision in this Section 5.7(2)(B)
and (C), the Company may, at its discretion, adopt
nondiscriminatory and objective standards in determining the
distribution(s) which will qualify as an immediate and heavy
financial need under Section 5.7(2)(B)(i) above, which
distribution(s) may be in addition to or in lieu of the deemed
hardships described in Section 5.7(2)(C)(i) above.
(b) Timing of Withdrawals:
Any withdrawal pursuant to this Section 5.7 will be paid at a time
determined by the Committee, which shall generally be as soon as
practicable after receipt by the Committee of the withdrawal request and
any required supporting documentation.
(c) Limitation on Withdrawals:
No Participant shall make more than one withdrawal from his Voluntary
Contribution Account per calendar quarter pursuant to Section 5.7(a)(1),
or more than one withdrawal from his Salary Deferral Account during any
twelve (12) month period pursuant to Section 5.7(a)(2).
(d) Penalty for Withdrawals:
A Participant who elects to make a withdrawal pursuant to Section
5.7(a)(2)(B) shall not be entitled to make any elective contribution to
the Plan (e.g., Salary Deferrals) or any other elective or employee
contribution to any other qualified or nonqualified plan maintained by the
Company (except the Morrison Knudsen Corporation Group Comprehensive
Medical and Dental Plan or any other health or welfare plan maintained by
the Company, including the Morrison Knudsen Corporation Flexible Benefits
Plan) for at least 12 months following the date of the hardship
distribution.
5.8 LOANS
5.8.1 A Participant may submit an application to the Committee to borrow
from his or her Salary Deferral Account (on such terms and
conditions as the Committee shall prescribe) an amount which when
added to the outstanding balance of all other loans to the
Participant would not exceed the lesser of (a) $50,000 reduced by
the excess (if any) of the highest outstanding balance of all loans
to the Participant from the Plan during the one year period ending
on the day before the loan is made, over the outstanding balance of
all loans to the Participant from the Plan on the date the loan is
made, or (b) 50% of the vested portion of his or her Salary Deferred
Account as of the date on which the Trustee debits the Participant's
Salary Deferred Account for such loan. For purposes of this Section
5.8.1, all loans from qualified plans of the Employer shall be
aggregated.
5.8.2 If approved, each such loan shall comply with the following
conditions:
(a) it shall be evidenced by a negotiable promissory note;
(b) the rate of interest payable on the unpaid balance of such
loan shall be a reasonable rate determined by the Committee;
(c) the Participant must obtain the consent of his or her spouse,
if any, within the 90-day period before the time the Salary
Deferral Account balance is used as security for the loan. A
new consent is required if the Salary Deferral Account balance
is used for any increase in the amount of security. The
consent shall comply with the requirements of Section 1.38 of
the Plan, but shall be deemed to meet any requirements
contained in Section 1.38 relating to the consent of any
subsequent spouse. A new consent shall be
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required if the Salary Deferral Account balance is used for
renegotiation, extension, renewal, or other revision of the
loan;
(d) the loan, by its terms, must require that repayment of
principal and interest be amortized in level payments, not
less frequently than quarterly, over a period not extending
beyond five years from the date of the loan; provided,
however, that if the proceeds of the loan are used to acquire
a dwelling unit which, within a reasonable time (determined at
the time the loan is made) will be used as the principal
residence of the Participant, the repayment schedule may be
for a term in excess of 5 years; and
(e) the loan shall be adequately secured and must be secured by
the Participant's vested interest in the Salary Deferral
Account balance of his or her Accounts.
5.8.3 Principal and interest payments with respect to the loan shall be
credited solely to the Salary Deferral Account of the borrowing
Participant. Any loss caused by nonpayment or default on a
Participant's loan obligations shall be charged solely to that
Participant's Salary Deferral Account.
5.8.4 Anything herein to the contrary notwithstanding:
(a) in the event of a default, foreclosure on the promissory note
shall not occur until a distributable event otherwise occurs
under this Section 5.
(b) The amount of a loan to a Participant shall not exceed the
value of the Participant's Salary Deferral Account at the time
the Trustee debits such Salary Deferral Account for such loan,
less the value of the portion of the account that is invested
in the Restricted Company Stock Fund.
(c) A Participant shall never have more than one loan outstanding
at any time; and
(d) Loans shall not be made available to Highly Compensated
Employees, as defined in Section 3.8(c)(2) of the Plan, in an
amount greater than the amount made available to other
Employees.
(f) If a valid spousal consent has been obtained in accordance
with Section 5.8.2(c), then, notwithstanding any other
provision of this Plan, the portion of the Participant's
vested Salary Deferral Account balance used as a security
interest held by the Plan by reason of a loan outstanding to
the Participant shall be taken into account for purposes of
reducing the amount of the Salary Deferral Account balance
payable at the time of death or distribution; but only if the
reduction is used as repayment of the loan. If less than 100%
of the Participant's vested Salary Deferral Account balance
(determined without regard to the preceding sentence) is
payable to the surviving spouse, then the Salary Deferral
Account balance shall be adjusted by first reducing the vested
Salary Deferral Account balance by the amount of the security
used as repayment of the loan, and then determining the
benefit payable to the Surviving Spouse.
5.9 DIRECT ROLLOVER DISTRIBUTIONS
(a) Direct Rollover Election:
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section 5.9, a
distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by the
distributee in a direct rollover.
(b) Definitions:
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(1) Eligible rollover distribution:
An eligible rollover distribution is any distribution of all or any
portion of the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible retirement plan:
An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution. However, in the case
of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(3) Distributee:
A distributee includes an employee or former employee. In addition,
the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(4) Direct rollover:
A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
SECTION 6 - DESIGNATION OF BENEFICIARY
6.1 GENERAL
Subject to Section 6.3 below, each Participant may designate in writing, in a
form and manner acceptable to the Committee, a Beneficiary or Beneficiaries to
receive the benefits payable under the Plan by reason of his death. Also
subject to Section 6.3, Participants shall have the right to change such
designated Beneficiaries by similar notice filed with the Committee.
6.2 ABSENCE OF PROPER DESIGNATION
Wherever provision is made hereunder for the payment of any death benefit to the
Beneficiary of a Participant, and there shall be no properly designated
Beneficiary surviving him, such benefit shall be paid to the following classes
of survivors, in the listed sequence:
(a) Spouse:
Surviving spouse; if none, then
(b) Children:
Children, including adopted children, PER STIRPES; if none, then
(c) Parents:
Surviving parents, share and share alike; if none, then
(d) Siblings:
Surviving brothers and sisters, share and share alike; if none, then
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(e) Estate:
The deceased Participant's estate.
6.3 CONSENT OF SPOUSE
In the event a Participant is married and designates an individual other than
his spouse as the Beneficiary, Spousal Consent must be on file with the
Committee if such Beneficiary designation is to be honored.
SECTION 7 - COMMITTEE
7.1 DESIGNATION OF COMMITTEE MEMBERS
The Plan shall be administered by a Committee consisting of not less than three
members. The Committee members shall be appointed and shall be removable (with
or without cause) at any time by the Board. In the event of removal,
resignation, death or retirement of any Committee member, the Board shall
appoint a successor. The Board may vest in the remaining Committee members the
power and authority to appoint successor members. Committee members may be, but
need not be, Participants in the Plan. Committee members may be appointed to
succeed themselves.
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7.2 TRANSACTION OF COMMITTEE BUSINESS
A majority of the Committee members at the time in office shall constitute a
quorum for the transaction of business and all resolutions or other actions
taken by the Committee at any meeting at which a quorum shall be present shall
be by a simple majority of those present. Resolutions may be adopted or other
action taken without a meeting by written consent signed by a majority of the
members of the Committee.
7.3 DELEGATION TO ACT IN BEHALF OF COMMITTEE
The Committee may, by written direction signed by a majority of its members,
delegate one or more of its members or an agent to act on its behalf; to give
notice in writing of any action taken by the Committee; to provide for such
bonding of Committee members as they shall deem appropriate; and to contract for
legal, accounting, clerical, and other services to carry out this Plan and
Trust. The Committee shall notify the Trustee in writing as to the name or
names of the member or members authorized to act. The Trustee thereafter shall
accept and rely upon any document or written direction executed by those so
authorized as representing action by the Committee until the Committee shall
file with the Trustee a written revocation of such designation. The costs of
such services and expenses of the Committee shall be paid by the Company or, at
the written direction of the Committee, by the Trustee from Trust Fund assets
first out of Forfeitures and then out of Trust Fund income.
7.4 COMPENSATION OF COMMITTEE MEMBERS
No fee or compensation shall be paid to any Committee member for his services as
such. Except as may be required by law, no bond, surety or other security shall
be required of any Committee member for the faithful performance of his duties
hereunder, nor shall any Committee member be liable or responsible for any
action taken in good faith or for the exercise of any power given the Committee
or for the acts of other Committee members.
7.5 DISQUALIFICATION OF COMMITTEE MEMBER
No member of the Committee shall participate in any decision of the Committee
which involves the payment of benefits to him or in which he has a financial
interest other than as a Participant in the Plan. If the entire Committee is
disqualified to act by reason of this Section, the Board shall act as the
Committee, or appoint temporary members to act as the Committee.
7.6 POWERS AND DUTIES OF COMMITTEE IN ADMINISTERING THE PLAN
The Committee shall have the duty and power of directing the administration of
this Plan; of interpreting and construing the rights of Participants and
Beneficiaries under the terms of this Plan; of determining the eligibility of
Employees to become Participants in accordance with the provisions of this Plan;
of determining the rights of Participants and Beneficiaries to benefits
hereunder; and of amending, in whole or in part, any or all of the provisions of
this Plan; provided, however, that no such amendment shall authorize or permit,
at any time prior to the satisfaction of all liabilities in respect to the
Participants or Beneficiaries under the Plan, any part of the Trust Fund to be
used for or diverted to purposes other than for their exclusive benefit. In
addition, the Committee shall have the right to establish and eliminate
Investment Funds pursuant to Section 4.4 and to appoint an investment manager
pursuant to Section 8.2. The Company shall furnish the Committee all
information and data in the possession of or known to the Company which the
Committee may deem necessary for the performance of the duties or the exercise
of the powers of the Committee hereunder, and the Committee may rely, and shall
be fully protected in relying, on any information or data so furnished. The
decision of the Committee on all matters within its jurisdiction shall be final,
binding and conclusive upon the Company and upon each Participant and
Beneficiary and every other person or party interested or concerned therewith.
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7.7 POWERS AND DUTIES OF COMMITTEE IN ADMINISTERING THE TRUST FUND
Subject to the provisions of the Plan and Trust Agreement, the Committee shall
have the power, at its discretion, to direct the Trustee in writing, from time
to time, to invest and reinvest the Trust Fund, without distinction between
principal and income, in such property (as herein defined) as the Committee
shall deem advisable, if the Trust Agreement so provides. As and wherever used
herein, the term "property" shall mean and include real, personal, and mixed
property of any and every kind and nature, including but not by way of
limitation, bonds, preferred or common stocks, mortgages and interests in any
kind of investment trust or common trust fund.
7.8 RESPONSIBILITY FOR DISTRIBUTIONS FROM THE TRUST FUND
The Committee shall have the duty and power to direct the Trustee to make
payment or distribution of benefits under this Plan at the time, in the manner
and to the person or persons entitled thereto, and the Trustee shall be fully
protected in relying upon and acting in accordance with any such direction by
the Committee set forth in writing and signed by such person or persons as the
Committee may, by resolution, authorize and direct to sign such directions. In
making such directions, the Committee shall adhere to the provisions of this
Plan and shall not at any time direct that any payment be made which could cause
any part of the Trust Fund to be used for or diverted to any purpose other than
for the exclusive benefit of Participants and Beneficiaries including payment of
the expenses of administration of the Plan and Trust.
7.9 COMPANY INFORMATION
To enable the Committee to perform its functions, the Company shall supply full
and timely information to the Committee on all matters relating to the
Compensation of all Employees and Participants, or their retirement, disability,
death, or other cause for termination of service, and such other pertinent
information as the Committee may require; and the Committee shall advise the
Trustee of such of the foregoing information as may be required hereunder by the
Trustee.
7.10 CLAIMS PROCEDURE
(a) Claims for Plan Benefits:
Distributions under the Plan will normally be made without a Participant
(or Beneficiary) having to file a claim for benefits. However, a
Participant (or Beneficiary) who does not receive a distribution to which
he believes he is entitled may present a claim to the Committee for any
unpaid benefits in accordance with the procedure described in the balance
of this Section 7.10.
(b) Applications for Benefits:
All applications for benefits under the Plan shall be submitted to the
Committee. Applications for benefits must be in writing and must be
signed by the Participant, or in the case of a death benefit, by his
Beneficiary or legal representative. The Committee reserves the right to
require proof of age prior to processing any application. Each
application shall be acted upon and approved or disapproved within sixty
(60) days following its receipt by the Committee. In the event any
application for benefits is denied, in whole or in part, the Company shall
notify the applicant in writing of such denial and of his right to a
review by the Committee and shall set forth in a manner calculated to be
understood, specific reasons for such denial, specific references to
pertinent Plan provisions on which the denial is based, a description of
any additional material or information necessary to perfect the
application, an explanation of why such material or information is
necessary, and an explanation of the Plan's review procedure.
(c) Denial of Application:
If the application for benefits is denied in whole or in part, the
applicant may appeal to the Committee for a review of the decision by
submitting to the Committee, within sixty (60) days after receiving
written notice of the denial of his claim, a written statement:
(1) Requesting a review of the application for benefits by the
Committee;
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(2) Setting forth all of the grounds upon which the request for review
is based and any facts in support thereof; and
(3) Setting forth any issues or comments which the applicant deems
pertinent to his application.
(d) Committee Review:
The Committee shall act upon each application within sixty (60) days after
receipt of the applicant's request for review. The Committee shall make a
full and fair review of each such application and any written materials
submitted by the applicant or the Company in connection therewith and may
require the Company or the applicant to submit such additional facts,
documents, or other evidence as the Committee, in its sole discretion,
deems necessary or advisable in making such a review. On the basis of its
review, the Committee shall make an independent determination of the
applicant's eligibility for benefits under the Plan. The decision of the
Committee on any application for benefits shall be final and conclusive
upon all persons if supported by any substantial evidence in the record.
(e) Written Notice of Final Denial:
In the event the Committee denies an application in whole or in part,
written notice of its decision shall be given to the applicant setting
forth in a manner calculated to be understood by the applicant the
specific reasons for such denial and specific reference to the pertinent
Plan provisions on which the decision was based.
7.11 PROCEDURE FOR QUALIFIED DOMESTIC RELATIONS ORDERS
(a) Upon receipt of a domestic relations order related to the benefit of a
Plan Participant, the Committee shall promptly notify the Participant and
proposed alternate payee of its receipt of the order. In addition, the
Committee shall adopt nondiscriminatory procedures, in accordance with the
requirements of ERISA, to determine whether a domestic relations order
received by the Committee is a "qualified domestic relations order" as
defined in Section 206(d)(3)(B)(i) of ERISA. A "qualified domestic
relations order" shall specify:
(1) Name and Address:
The name and last known mailing address (if any) of the Participant
and each alternate payee covered by the order;
(2) Amount of Plan Benefits:
The amount or percentage of the Participant's benefits to be paid by
the Plan to each such alternate payee, or the manner in which such
amount or percentage is to be determined;
(3) Payment Period:
The number of payments or period to which such order applies; and
(4) Applicable Plans(s):
Each plan to which it applies.
In addition, it shall not require the Plan to provide any type or form of
benefits or any option not otherwise provided under the Plan; and it shall
not require the payment of benefits to an alternate payee which are
required to be paid to another alternate payee under another order
previously determined to be a "qualified domestic relations order."
(b) Plan provisions to the contrary notwithstanding, the alternate payee shall
have the right (irrespective of whether the Participant has achieved his
or her earliest retirement age, as defined under Section 414(p) of the
Code) to elect to commence receiving his/her benefit at the earliest date
that is administrably feasible
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following the determination that the applicable order is a qualified
domestic relations order. Provided, however, if prior to such date,
benefits from the Plan should become distributable to or for the benefit
of Participant (or Participant's estate or beneficiary), whether by reason
of Participant's death, disability, termination of employment, regular or
special retirement, full or partial termination of the Plan or any other
cause, then the benefits assigned to alternate payee shall also become
immediately distributable to the alternate payee in a form set forth in
Section 4.
Notwithstanding the foregoing, the alternate payee may elect to defer the
commencement of benefit distributions to the extent authorized for
beneficiaries generally under the applicable terms of the Plan.
7.12 FIDUCIARIES
In the exercise of any discretion, the Committee shall act as fiduciaries on
behalf of the Participants in the Plan and shall act on a nondiscriminatory
basis.
7.13 INDEMNIFICATION
The Company shall indemnify each member of the Committee against all claims,
losses, damages, expenses and liabilities arising from any action or failure to
act, except when the same is judicially determined to be due to the gross
negligence or willful misconduct of such member.
SECTION 8 - TRUST FUND
8.1 GENERAL RESPONSIBILITIES OF THE TRUSTEE
All contributions under the Plan will be made into a Trust Fund held by a
Trustee appointed by the Company or the Committee under a Trust Agreement
entered into between the Company and the Trustee. The Trustee shall invest and
hold contributions to the Trust Fund and the income and gains therefrom in
accordance with the terms of the Plan and Trust Agreement. Distributions under
the Plan will be drawn from the Trust Fund and paid by the Trustee as directed
in writing by the Committee.
8.2 APPOINTMENT OF INVESTMENT MANAGER
The Committee, by appropriate action, may appoint an investment manager, as
defined in Section 3(38) of ERISA, to direct the investment and management of
all or part of the assets of the Trust. A certified copy of any such Committee
resolution shall be provided to the Trustee whereupon the investment manager
shall be the fiduciary with respect to the investment and management of such
designated Trust Fund and the Trustee shall have no responsibility therefor.
Any transfer of investment and management to an investment manager may be
revoked upon receipt by the Trustee of a notice to that effect by the Company
through its Committee.
8.3 RIGHT TO INVEST IN COMPANY STOCK
The Trustee may, without limitation, acquire and hold qualifying employer
securities and/or qualifying employer real property (as defined under Sections
407(d) and 407(e) of ERISA).
8.4 MASTER TRUST
Trust Fund assets may be held in a master trust, wherein the assets of all
participating plans are managed by the same Trustee, and commingled with the
assets of other retirement plans qualified under Section 401(a) of the Code
maintained by the Company. However, each plan participating in the master trust
shall be administered independently.
SECTION 9 - RIGHTS OF PARTICIPANTS
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9.1 PARTICIPANTS' RIGHTS TO PLAN BENEFITS
No Participant or Beneficiary shall have any right or claim to benefits under
the Plan except in accordance with the provisions of the Plan and then only to
the extent that there are funds available therefor in the hands of the Trustee.
9.2 EMPLOYMENT RIGHTS UNDER THE PLAN
Nothing contained in the Plan shall be deemed to give any Employee the right to
be retained in the services of the Company.
9.3 ASSIGNMENT OF RIGHTS
The right of any Participant or Beneficiary in any benefit hereunder shall not
be subject to alienation or assignment, and no Participant shall assign,
transfer, or dispose of such right, nor shall any such right be subjected to
attachment, execution, garnishment, sequestration, or other legal or equitable
process, unless the assignment of such benefit or right is pursuant to a
"qualified domestic relations order" as defined at Section 206(d)(3)(B)(i) of
ERISA, as amended by the Retirement Equity Act of 1984, and related regulations.
9.4 INCOMPETENCY
If a Participant or Beneficiary to whom benefits shall be due under the Plan
shall be or become incompetent either physically or mentally, in the judgment of
the Committee, the Committee shall have the right to determine to whom such
benefit shall be paid for the benefit of such Participant or Beneficiary.
SECTION 10 - AMENDMENT OF PLAN
10.1 RIGHT TO AMEND PLAN
The Board or Administrative Committee may at any time amend, in whole or in
part, any or all of the provisions of this Plan; provided, however, that no such
amendment shall authorize or permit, at any time prior to the satisfaction of
all liabilities in respect to the Participants or Beneficiaries under the Plan,
any part of the Trust Fund to be used for or diverted to purposes other than for
their exclusive benefit.
10.2 PROTECTION OF PARTICIPANTS' RIGHTS
(a) No Decrease of Vested Percentage:
No amendment of the Plan may decrease the vested percentage of any
Participant's Accrued Benefit. Commencing on January 1, 1989, should the
Plan be further amended to change its vesting schedule, any Participant
with at least three (3) Years of Service may elect to have his vested
percentage computed under the Plan without regard to such future
amendment. Such election must be made within sixty (60) days after the
latest of the following:
(1) The date the Plan amendment is adopted,
(2) The date the Plan amendment becomes effective, or
(3) The date the Participant is issued written notice of the Plan
amendment by the Company or Committee.
(b) No Decrease of Accrued Benefit:
The Accrued Benefit of any Participant may not be decreased by amendment
of this Plan.
10.3 MERGERS, CONSOLIDATIONS AND TRANSFERS
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The Trustee may not consent to, or be a party to, any merger or consolidation
with another plan, or to a transfer of assets or liabilities to another plan,
unless immediately after the merger, consolidation or transfer, the surviving
Plan provides each Participant a benefit equal to or greater than the benefit
each Participant would have received had the Plan terminated immediately before
the merger or consolidation or transfer. The Trustee possesses the specific
authority to enter into a merger, consolidation or transfer of assets to or from
another plan and trust that satisfy the requirements of Code Sections 401(a) and
501(a), respectively.
The Trustee may accept a trustee-to-trustee transfer of plan assets on behalf of
an Employee prior to the date the Employee satisfies the Plan's eligibility
conditions; provided, however, that such Employee shall be a Participant for all
purposes of the Plan except for purposes of sharing in Company contributions
under Section 3.1 and Participant forfeitures under the Plan until he becomes an
actual participant in the Plan.
SECTION 11 - TERMINATION OF PLAN
11.1 GENERAL
The Company established the Plan with the bona fide intention and expectation
that it will be able to make its contributions indefinitely, but the Company is
not and shall not be under any obligation or liability whatsoever to continue
its contributions and may discontinue such contributions or terminate the Plan
at any time without any liability whatsoever for such discontinuance or
termination. The Plan shall terminate upon the dissolution of the Company
unless, upon such dissolution, a successor to the Company elects to continue the
Plan.
11.2 NONFORFEITABILITY OF ACCRUED BENEFIT
Upon termination of the Plan, partial termination of the Plan or complete
discontinuance of contributions under the Plan, each affected Participant's
Accrued Benefit shall immediately vest in full and be nonforfeitable, and the
Committee shall revalue the assets of the Trust and the Accounts of each
Participant as of the date of termination or discontinuance of contributions,
and, after satisfying current obligations of the Plan and setting aside funds
for anticipated future obligations of the Plan, shall allocate all unallocated
assets to the Accounts of the Participants at the date of termination, in the
proportion that the value of the Accounts of each individual Participant bears
to the aggregate value of all such Accounts as of such date. The Trustee shall
then pay over to each affected Participant, in accordance with the instructions
of the Committee, the net value of his Accounts. In the event of such
termination, after payment of all expenses, all assets of the Trust shall be
used for the exclusive benefit of Participants and their Beneficiaries, as their
interests may appear in accordance with the terms of this Plan. In no event,
except to provide for the satisfaction of all liabilities under the Plan, may
any part of the Trust be used for or diverted to, purposes other than for the
exclusive benefit of Participants and Beneficiaries.
11.3 DISTRIBUTION
Notwithstanding any other provision in this Section 11, distribution of benefits
under this Section shall be subject to the following:
(a) Termination of Plan:
In the event of a termination of the Plan, distribution of benefits from a
Participant's Salary Deferral Account shall be made only if there is no
establishment of a successor plan as defined in Section
1.401(k)-1(d)(1)(ii)(B) or Section 1.401(k)-1(d)(1)(iii)(B) of the
Proposed Treasury Regulations under Section 401(k) of the Code and any
successor regulations.
(b) Sale of Assets:
For Plan Years beginning on or after January 1, 1989, in the event of a
sale or other disposition by the Company of substantially all of the
assets (within the meaning of Section 409(d)(2) of the Code) used in its
trade or business to a company other than an Affiliated Company, an
Employee who continues his employment with such company shall be entitled
to receive a distribution of benefits from his Salary Deferral Account
determined as of the date of such sale or other disposition if the
requirements of Section
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4.101(k)-1(d)(4) of the Treasury Regulations under Section 401(k) of the
Code are satisfied with respect to the distribution of benefits.
(c) Sale of Interest in a Subsidiary:
For Plan Years beginning on or after January 1, 1989, in the event of a
sale or other disposition by the Company of its interest in a subsidiary
(within the meaning of Section 409(d)(3) of the Code) to a company other
than an Affiliated Company, an Employee who continues his employment with
such company shall be entitled to receive a distribution of benefits from
his Salary Deferral Account determined as of the date of such sale or
other disposition if the requirements of Section 1.401(k)-1(d)(4) of the
Treasury Regulations under Section 401(k) of the Code are satisfied with
respect to the distribution of benefits.
SECTION 12 - FAILURE OF INITIAL QUALIFICATION
12.1 SUBMISSION TO INTERNAL REVENUE SERVICE
The Company adopts the Plan and related Trust Agreement contingent upon their
approval by the Internal Revenue Service. The Company shall cause the Plan and
Trust Agreement to be submitted promptly to the Internal Revenue Service for a
determination of their status. Until such a determination has been received by
the Company from the Internal Revenue Service, a Participant or Beneficiary
shall have no vested interest in his Company Account and shall not be entitled
to any distribution therefrom.
12.2 DETERMINATION THAT PLAN IS NOT QUALIFIED
Upon determination by the Internal Revenue Service that the Plan and Trust
Agreement as adopted or amended do not meet the qualification requirements of
the Code for the first Plan Year, unless the Company by resolution of its Board
causes it to be maintained in force, the Trustee shall terminate the Trust
Agreement, liquidate all assets and, after deducting any amounts which are
properly due it, return the net balance held under the Trust Agreement to the
Company which, in turn, will return Salary Deferrals to the applicable
Participants.
12.3 DETERMINATION THAT PLAN IS QUALIFIED
In the event that the Internal Revenue Service determines that the Plan and
Trust Agreement meet the qualification requirements for the year with respect to
which it is established, this Section 12 is inoperative and of no effect after
such determination.
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SECTION 13 - CONSTRUCTION AND ENFORCEMENT OF PLAN
13.1 GOVERNING LEGAL ENTITY
The Plan shall be construed, administered and enforced according to the laws of
the United States and the laws of the State of Idaho, to the extent the latter
are not preempted by the former.
13.2 TEXT TO CONTROL
The headings of the sections and subsections are included solely for convenience
of reference and, if there is any conflict between such headings and the text of
this Plan, the text shall control.
13.3 GENDER
The masculine pronoun wherever used includes the feminine pronoun.
13.4 SEVERABILITY
In the event any provision of this Plan shall be considered illegal or invalid
for any reason, said illegality or in validity shall not affect the remaining
provisions of this Plan, but shall be fully severable, and the Plan shall be
construed and enforced as if said illegal or invalid provisions had never been
inserted therein.
13.5 LIABILITY
All benefits payable under the Plan shall be paid or provided for solely as
provided in the Plan and Trust Agreement and the Company assumes no liability or
responsibility therefor.
SECTION 14 - TOP HEAVY PLAN
14.1 PRECEDENCE OF SECTION
Anything in this Plan to the contrary notwithstanding, the provisions of this
Section 14 shall supersede and take precedence over any other provisions of the
Plan for any Plan Year in which the Plan is determined to be a Top Heavy Plan as
determined under Section 14.3.
14.2 DEFINITIONS
For purposes of determining whether the Plan is a Top Heavy Plan for any
Plan Year, the following terms, wherever capitalized, shall have the
meanings set forth below:
(a) Determination Date:
"Determination Date" means the date on which the Plan is tested to
determine if it is a Top Heavy Plan, which date shall generally be the
last day of the Plan Year preceding the Plan Year for which the
determination is being made. However, the first Determination Date shall
be December 31, 1986.
(b) Key Employee:
"Key Employee" means an Employee (or the Beneficiary of an Employee) who,
at any time during a Plan Year or any of the four (4) preceding Plan
Years, is or was:
(1) Officer:
An officer of the Company (but not more than the lesser of:
(A) fifty (50) Employees, or
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(B) the greater of three (3) or ten percent of the Employees of
the Company shall be considered officers for this purpose)
whose annual Compensation is at least $45,000 or such greater
amount as may be recognized for increases in the cost of
living in accordance with Code Section 416(i)(1)(A)(i),
(2) Employee Owner:
One (1) of the ten (10) Employees owning the largest interests in
the Company provided that his annual Compensation is at least
$30,000 or such greater amount as may be recognized for increases in
the cost of living in accordance with Code Section 416(i)(1)(A)(ii)
(for purposes of this Section 14.2(b)(2), if two (2) Employees have
the same interest in the Company, the Employee with the greater
annual Compensation shall be treated as having a larger interest),
(3) Five Percent Shareholder:
An Employee who is an owner of five percent (5%) or more of the
Company, or
(4) Highly Compensated Shareholder:
An Employee who is an owner of one percent (1%) or more of the
Company and who has annual Compensation from the Company in excess
of $150,000.
(c) Former Key Employee:
"Former Key Employee" means a Participant in the Plan who, at any time
during the four (4) preceding Plan Years, was a Key Employee but who is
not a Key Employee in the current Plan Year, or who terminated his service
with the Company in one of the four (4) preceding Plan Years and was not a
Key Employee in the Plan Year in which he terminated.
(d) Non-Key Employee:
"Non-Key Employee" means a Participant in the Plan who, at any time during
the current Plan Year, is neither a Key Employee nor a Former Key
Employee.
(e) Top Heavy Plan:
"Top Heavy Plan" means a Plan which is determined to be a Top Heavy Plan
for a Plan Year, as described in Section 14.3.
14.3 DETERMINATION OF TOP HEAVY PLAN
With respect to any Plan Year, the Plan shall be a Top Heavy Plan if, as of the
applicable Determination Date, the aggregate of the Accounts of Key Employees
(excluding Former Key Employees) under the Plan exceeds sixty percent (60%) of
the aggregate of the Accounts of all Key Employees (excluding Former Key
Employees) and all Non-Key Employees under the Plan. In making such
determination, distributions made from Accounts during the five (5) year period
ending on the Determination Date shall be included and the Accounts of all
individuals who were not employed by the Company during the five (5) year period
ending on the Determination Date shall be excluded. In determining if the Plan
is a Top Heavy Plan, it shall be aggregated with each other plan of the Company
in the required aggregation group as described below and it may be aggregated
with any other plan of the Company in the permissive aggregation group as
described below. Required aggregation group means each qualified plan of the
Company or an Affiliated Company in which at least one Key Employee
participates, and any other qualified plan of the Company or an Affiliated
Company which enables each such qualified plan to meet the requirements of
Section 401(a)(4) and 410 of the Code. Permissive aggregation group means any
other plan or plans of the Company or an Affiliated Company which, when
considered as a group with the required aggregation group, would continue to
satisfy the requirements of Section 401(a)(4) and 410 of the Code.
14.4 COMPENSATION IN TOP HEAVY PLAN
With respect to any Plan Year for which the Plan is determined to be a Top Heavy
Plan, Compensation as defined under Section 1.13 shall be limited to $200,000,
or such amount as adjusted under Section 416(d)(2).
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14.5 MINIMUM BENEFIT UNDER TOP HEAVY PLAN
With respect to any Plan Year for which the Plan is determined to be a Top Heavy
Plan, the contributions (other than Participant Voluntary Contributions as
described in Section 3.7) allocated to the Accounts of Participants who are
Non-Key Employees, who are not members of the Retirement Plan and who are
employed by the Company on the last day of the Plan Year shall not be less than
three percent (3%) of each such Participant's Compensation for the Plan Year.
Contributions allocated to the Accounts of Participants for purposes of
providing the minimum benefit required under this Section 14.5 shall not be
considered for nondiscrimination test purposes under Section 401(k) and 401(m)
of the Code, and as set forth in Section 3.8 and Section 4.2(c), respectively,
of this Plan.
14.6 MAXIMUM LIMITATION UNDER TOP HEAVY PLAN
With respect to any Plan Year for which the Plan is determined to be a Top Heavy
Plan, a 1.0 limitation shall be substituted for the 1.25 limitations at Plan
Sections 4.3(e)(1)(B)(i) and 4.3(e)(2)(B)(i).
14.7 VESTING IN TOP HEAVY PLAN YEAR
When a Plan is determined to be a Top Heavy Plan for a Plan Year, each
Participant's Accrued Benefit shall be subject to the following vesting
schedule, in lieu of the schedule described in Section 5.1(b)(2):
Vesting
Years of Service Percentage
---------------- ----------
Less than 1 0%
1 but less than 2 10%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
SECTION 15 - VOTING RULES REGARDING COMPANY STOCK
15.1 VOTING COMPANY STOCK
Before each annual or special meeting of its shareholders, the Committee through
the Trustee shall cause to be sent to each Participant and Beneficiary who has
Company Stock credited to his Account on the record date of such meeting, a copy
of the proxy solicitation material therefor, together with a form requesting
confidential instructions on how to vote the shares of Company Stock credited to
his Account. Upon receipt of such instructions, the Trustee shall vote the
shares credited to such Participant's or Beneficiary's Account as instructed.
The Trustee shall vote all shares of Company Stock credited to the Account of a
Participant or Beneficiary for which it does not receive proper instructions
(e.g., the proxy card is not timely received or not correctly completed) in the
same manner and proportion as instructed by the Participants and Beneficiaries
for those shares for which the Trustee receives proper instructions. A
Participant's right to instruct the Trustee with respect to voting shares of
Company Stock will not include rights concerning (i) the exercise of any
appraisal rights, dissenters' rights or similar rights granted by applicable law
to the registered or beneficial holders of Company Stock or (ii) the choice of
consideration to be received by shareholders in any transaction involving
Company Stock. These matters will be decided by the Trustee in its discretion.
15.2 SALE OF COMPANY STOCK
Subject to the rights of Participants in a tender offer as described in Section
15.3, the Committee may direct the Trustee to sell shares of Company Stock to
any person, including the Company, provided that any sale to the Company or
other "disqualified person" within the meaning of Code Section 4975 or "party in
interest" within the
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meaning of ERISA Section 3(14) is made at a price which is not less than
"adequate consideration" as defined in ERISA Section 3(18) and no commission is
charged with respect to the sale.
15.3 TENDER OFFER FOR COMPANY STOCK
In the event of a tender offer for shares of Company Stock subject to Section
14(d)(1) of the Securities Exchange Act of 1934 or subject to Rule 13e-4
promulgated under that Act (as those provisions may from time to time be amended
or replaced by successor provisions of federal securities laws), the Committee
through the Trustee will advise each Participant who has shares of Company Stock
credited to his Account in writing of the terms of the tender offer as soon as
practicable after its commencement and will furnish each Participant with a form
by which he may instruct the Trustee confidentially whether or not to tender
shares credited to his Account. The Trustee will tender those shares it has
been properly instructed to tender, and will not tender those shares which it
has been properly instructed not to tender. The Trustee's notification to
Participants will include (i) a notice that shares for which no proper
instructions are received will be tendered in the same manner and proportion as
those shares for which the Trustee received a proper instruction and (ii) such
related documents as are prepared by any person and provided to the shareholders
of the Company pursuant to the Securities Exchange Act of 1934. The Committee
may also provide Participants with such other material concerning the tender
offer as the Committee in its discretion determines to be appropriate, provided,
however, that prior to any such distribution, the Trustee shall be furnished
with complete copies of all such materials to be distributed to the
Participants. A Participant's instructions to the Trustee to tender shares will
not be deemed a withdrawal or suspension from the Plan or a forfeiture of any
portion of the Participant's interest in the Plan. The number of shares to
which a Participant's instructions apply will be the total number of shares
credited to his Account, whether or not the shares are vested, as of the close
of business on the day preceding the date on which the tender offer commences.
Funds received in exchange for tendered stock will be credited to the Account of
The Participant whose stock was tendered.
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Exhibit 4.2
MORRISON KNUDSEN CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
EFFECTIVE DATE: SEPTEMBER 30, 1988
RESTATED DECEMBER 29, 1993
TO INCLUDE AMENDMENTS 1 THROUGH 10
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MORRISON KNUDSEN CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
CONTENTS
ARTICLE 1 - DEFINITIONS..................................................... 1
1.1 Account........................................................ 1
1.2 Beneficiary.................................................... 1
1.3 Board of Directors or Board.................................... 1
1.4 Code........................................................... 1
1.5 Committee or Administrative Committee.......................... 1
1.6 Company........................................................ 1
1.7 Company Stock.................................................. 1
1.8 Company Stock Loan............................................. 2
1.9 Compensation................................................... 2
1.10 Controlled Group............................................... 2
1.11 Controlled Group Member........................................ 2
1.12 Disability or Disabled......................................... 3
1.13 Effective Date................................................. 3
1.14 Eligibility Computation Period................................. 3
1.15 Eligible Employee.............................................. 3
1.16 Employee....................................................... 4
1.17 Employer....................................................... 4
1.18 Entry Date..................................................... 4
1.19 ERISA.......................................................... 4
1.20 Hour of Service................................................ 4
1.21 Includable Compensation........................................ 5
1.22 Loan Suspense Account.......................................... 5
1.23 One Year Break in Service...................................... 5
1.24 Participant.................................................... 5
1.25 Plan........................................................... 5
1.26 Plan Year...................................................... 6
1.27 Qualified Plan................................................. 6
1.28 Reversion Suspense Account..................................... 6
1.29 Trust Agreement................................................ 6
1.30 Trust Fund..................................................... 6
1.31 Trustee........................................................ 6
1.32 Valuation Date................................................. 6
1.33 Year of Service................................................ 6
ARTICLE 2 - PARTICIPATION................................................... 7
2.1 Eligibility to Participate..................................... 7
2.2 Exclusions from Participation.................................. 7
2.3 Reemployment Provisions........................................ 7
ARTICLE 3 - CONTRIBUTIONS................................................... 8
3.1 Employer Contributions......................................... 8
3.2 Time of Payment................................................ 8
3.3 Participant Contributions Prohibited........................... 8
3.4 Rollover and Transfer Contributions............................ 8
3.5 Matching Contributions......................................... 8
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ARTICLE 4 - ALLOCATIONS TO PARTICIPANTS' ACCOUNTS........................... 10
4.1 Establishment of Accounts...................................... 10
4.2 Allocation of Contributions and Forfeitures.................... 10
4.3 Investments in Company Stock................................... 10
4.4 Borrowing to Purchase Company Stock............................ 10
4.5 Release of Shares from Loan Suspense Accounts.................. 11
4.6 Charges and Credits to Accounts................................ 11
4.7 Limitation on Allocations...................................... 11
4.8 Participants' Rights to Diversify.............................. 11
4.9 Allocation of Trust Fund Income and Loss....................... 12
4.10 Valuation of Trust Fund........................................ 12
4.11 No Guarantee................................................... 12
4.12 Annual Statement of Accounts................................... 13
ARTICLE 5 - VESTING......................................................... 13
5.1 Determination of Vested Interest............................... 13
5.2 Forfeiture of Nonvested Amounts................................ 13
5.3 Unclaimed Distribution......................................... 14
5.4 Allocation of Forfeited Amounts................................ 14
5.5 Reemployment Provisions........................................ 14
ARTICLE 6 - PARTICIPANT'S RIGHT TO PAYMENT.................................. 14
6.1 Basic Rules Governing Distributions............................ 14
6.2 Reemployment of Participant.................................... 15
6.3 Valuation of Accounts.......................................... 15
6.4 Restrictions on Distributions.................................. 15
6.5 Direct Rollover Distributions.................................. 15
ARTICLE 7 - DISTRIBUTIONS TO BENEFICIARIES.................................. 16
7.1 Designation of Beneficiary..................................... 16
7.2 Consent of Spouse Required..................................... 16
7.3 Failure to Designate Beneficiary............................... 16
7.4 Distributions to Beneficiaries................................. 17
7.5 Restrictions on Distributions.................................. 17
ARTICLE 8 - RULES REGARDING COMPANY STOCK................................... 17
8.1 Voting Company Stock........................................... 17
8.2 Sale of Company Stock.......................................... 17
8.3 Tender Offer for Company Stock................................. 17
ARTICLE 9 - ADMINISTRATION OF THE PLAN AND TRUST AGREEMENT.................. 18
9.1 Appointment of Committee Members............................... 18
9.2 Officers and Employees of the Committee........................ 18
9.3 Action of the Committee........................................ 18
9.4 Expenses and Compensation...................................... 18
9.5 General Powers and Duties of the Committee..................... 18
9.6 Specific Powers and Duties of the Committee.................... 19
9.7 Allocation of Fiduciary Responsibility......................... 19
9.8 Information to be Submitted to the Committee................... 19
9.9 Notices, Statements and Reports................................ 19
9.10 Claims Procedure............................................... 20
9.11 Service of Process............................................. 20
9.12 Correction of Participants' Accounts........................... 20
9.13 Payment to Minors or Persons Under Legal Disability............ 21
9.14 Uniform Application of Rules and Policies...................... 21
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9.15 Funding Policy................................................. 21
9.16 The Trust Fund................................................. 21
9.17 Procedure for Qualified Domestic Relations Orders.............. 21
ARTICLE 10 - LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS........... 22
10.1 Priority over Other Allocation Provisions...................... 22
10.2 Definitions Used in this Article............................... 22
10.3 General Limitation............................................. 24
10.4 Excess Allocations............................................. 24
10.5 Aggregate Benefit Limitation................................... 25
10.6 Aggregation of Plans........................................... 25
ARTICLE 11 - RESTRICTIONS ON DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES 26
11.1 Priority Over Other Distribution Provisions.................... 26
11.2 Restrictions on Commencement of Distributions.................. 26
11.3 Restrictions on Delay of Distributions......................... 26
11.4 Limitation to Assure Benefits Payable to Beneficiaries are
Incidental..................................................... 26
11.5 Restrictions in the Event of Death............................. 26
11.6 Compliance with Regulations.................................... 26
11.7 Delayed Payments............................................... 26
ARTICLE 12 - TOP-HEAVY PROVISIONS........................................... 27
12.1 Priority over Other Plan Provisions............................ 27
12.2 Definitions Used in this Article............................... 27
12.3 Compensation Taken Into Account................................ 28
12.4 Minimum Allocation............................................. 28
12.5 Modification of Aggregate Benefit Limit........................ 29
12.6 Minimum Vesting................................................ 30
ARTICLE 13 - ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS................... 30
13.1 Adoption Procedure............................................. 30
13.2 Effect of Adoption by Controlled Group Member.................. 30
ARTICLE 14 - AMENDMENT OF THE PLAN.......................................... 31
14.1 Right of Company to Amend Plan................................. 31
14.2 Amendment Procedure............................................ 31
14.3 Effect on Employers............................................ 31
ARTICLE 15 -TERMINATION, PARTIAL TERMINATION AND COMPLETE DISCONTINUANCE OF
CONTRIBUTIONS......................................................... 31
15.1 Continuance of Plan............................................ 31
15.2 Complete Vesting............................................... 31
15.3 Disposition of the Trust Fund.................................. 32
15.4 Disposition of Company Stock Loans at Termination.............. 32
15.5 Withdrawal by an Employer...................................... 32
ARTICLE 16 - MISCELLANEOUS.................................................. 32
16.1 Reversion Prohibited........................................... 32
16.2 Bonding, Insurance and Indemnity............................... 33
16.3 Merger, Consolidation or Transfer of Assets.................... 33
16.4 Spendthrift Clause............................................. 33
16.5 Rights of Participants......................................... 33
16.6 Gender, Tense and Headings..................................... 34
16.7 Governing Law.................................................. 34
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ARTICLE 17 - QUALIFIED PLAN REVERSIONS..................................... 34
17.1 Application of Article......................................... 34
17.2 Definitions Used in This Article............................... 34
17.3 Investment in Company Stock.................................... 34
17.4 Release of Shares from Reversion Suspense Accounts............. 35
17.5 Allocations Treated as Employer Contributions.................. 35
17.6 Limited Application............................................ 36
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MORRISON KNUDSEN CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
Morrison Knudsen Corporation, a Delaware corporation, adopts this employee stock
ownership plan effective September 30, 1988. The Plan is a stock bonus plan
intended to qualify under Code section 401, and also constitutes an employee
stock ownership plan within the meaning of Code section 4975(e)(7). The Company
and the Trustee have executed the Morrison Knudsen Corporation Employee Stock
Ownership Trust Agreement, which provides for the investment and reinvestment of
the assets of the Plan. The Plan initially is being funded with the transfer of
a portion of a pension reversion from the former Morrison Knudsen Corporation
Retirement Plan, which was terminated effective December 12, 1987.
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ARTICLE 1 - DEFINITIONS
1.1 ACCOUNT
"Account" means the records, including subaccounts, maintained by the Trustee in
the manner provided in Article 4 to determine the interest of each Participant
in the assets of the Plan.
1.2 BENEFICIARY
"Beneficiary" means the one or more persons or entities entitled to receive a
distribution of a Participant's interest in the Plan in the event of his death
as provided in Article 7.
1.3 BOARD OF DIRECTORS OR BOARD
"Board of Directors" or "Board" means the Board of Directors of the Company.
1.4 CODE
"Code" means the Internal Revenue Code of 1986, as amended from time to time,
and all valid Treasury Regulations promulgated thereunder.
1.5 COMMITTEE OR ADMINISTRATIVE COMMITTEE
"Committee" or "Administrative Committee" means the Committee appointed under
Article 9.
1.6 COMPANY
"Company" means:
(a) Morrison Knudsen Corporation and Adopting Subsidiaries: Morrison Knudsen
Corporation and/or (as the context hereof requires) any corporation,
partnership, joint venture or other organization which is a subsidiary of,
or affiliated or associated with Morrison Knudsen Corporation, and which,
with the consent of Morrison Knudsen Corporation or the Administrative
Committee, elects to adopt the Plan;
(b) Joint Venture:
A joint venture sponsored by Morrison Knudsen Corporation or an adopting
subsidiary to which Employees of a Company are temporarily transferred; or
(c) Designated Subsidiaries:
Any foreign or domestic subsidiary corporation which is designated as a
participant herein by Morrison Knudsen Corporation or the Administrative
Committee for the Employees of which Morrison Knudsen Corporation is
entitled under the Code to make contributions. Except as provided under
Section 1.20, service for, or compensation paid by, one or more of such
companies shall be combined for all purposes of the Plan. Any
above-described corporation or other organization which adopts the Plan
for its Employees shall thereafter promptly deliver to the Trustee a
certified copy of the resolutions and other documentation evidencing its
adoption of the Plan, together with a written instrument evidencing
consent by Morrison Knudsen Corporation or the Administrative Committee to
its adoption of the Plan.
1.7 COMPANY STOCK
"Company Stock" means the voting common stock of the Company.
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1.8 COMPANY STOCK LOAN
"Company Stock Loan" means each loan, assumption of an obligation, or obligation
(including a subscription for shares) obtained by the Trustee for the purpose of
acquiring shares of Company Stock (i) from a "disqualified person" within the
meaning of Code section 4975 or a "party in interest" within the meaning of
ERISA section 3(14) or (ii) from any other person if the obligation payable to
such other person is guaranteed by a "disqualified person" or a "party in
interest". The terms of each Company Stock Loan and any related note or
security agreements executed by the Trustee shall be subject to the provisions
set forth in the Trust Agreement.
1.9 COMPENSATION
"Compensation" means the total of all amounts paid or awarded by an Employer to
an Employee during a Plan Year for services rendered which shall be the sum of
(1) plus (2), but excluding any amounts described under (3), as follows:
(1) Amounts Paid:
(A) Weekly or monthly salary or wages,
(B) Commissions and overtime payments,
(C) Cash bonus payments, other than bonuses awarded under the
Executive Incentive Plan, and
(D) Salary deferrals made by Participants under the Morrison
Knudsen Corporation Savings Plan, or under any other plan of
an Employer pursuant to Code section 125.
(2) Amounts Awarded:
Annual amounts awarded under the Executive Incentive Plan.
(3) Amounts Excluded:
(A) Living allowances,
(B) Tax allowances,
(C) Overseas differentials,
(D) Other project-oriented differentials, and
(E) In the case of Participants to which section 406 or 407 of the
Code applies, any amount not qualifying as "total
compensation" within the meaning of Code section 406 or 407.
Compensation includes only those amounts earned as an Eligible Employee, except
that for any Plan Year in which an Employee becomes a Participant as a result of
attaining age 21, all amounts earned by such Participant during such Plan Year
shall be treated as Compensation. Notwithstanding any other provision of the
Plan the annual Compensation of an Employee taken into account for any purpose
under the Plan, including the definition of Includable Compensation under
Section 1.21 of the Plan, shall not exceed $200,000 or such greater amount as
may be permitted by the Secretary of the Treasury pursuant to Code section
401(a)(17).
1.10 CONTROLLED GROUP
"Controlled Group" means the Company and any and all other corporations, trades
or businesses, the employees of which, together with employees of the Company,
are required, by the first sentence of subsection (b), by subsection (c), by
subsection (m) or by subsection (o) of Code section 414 to be treated as if they
were employed by a single employer.
1.11 CONTROLLED GROUP MEMBER
"Controlled Group Member" means each corporation or unincorporated trade or
business that is or was a member of the Controlled Group, but only during such
period as it is or was such a member.
1.12 DISABILITY OR DISABLED
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"Disability" or "Disabled" means the permanent incapacity of a Participant, by
reason of a physical or mental illness, to perform any duties for the Company or
a Controlled Group Member, resulting in termination of his service with the
Controlled Group. Disability shall be determined by the Committee in its sole
discretion in a uniform and nondiscriminatory manner after consideration of such
evidence as it may require, which may include a report of such physician or
physicians as it may designate.
1.13 EFFECTIVE DATE
"Effective Date" means the thirtieth day of September, 1988.
1.14 ELIGIBILITY COMPUTATION PERIOD
"Eligibility Computation Period" means the period of 12 consecutive months
beginning on the date an Employee first performs an Hour of Service and on each
anniversary of that date.
1.15 ELIGIBLE EMPLOYEE
"Eligible Employee" means each Employee who meets the following requirements:
(a) Salaried Employee:
He is compensated on a salaried (non-hourly) basis;
(b) United States Citizen or Resident:
He is included under one of the categories described in (1), (2) or (3),
as follows:
(1) he is a citizen of the United States of America,
(2) he was lawfully admitted to the United States of America for
permanent residence under a valid immigrant visa or as a special
immigrant, and he has not given up or lost such immigration status
even though he may be working outside of the United States, or
(3) he resides in and is rendering services as described under Section
1.18(a) above within the United States of America;
(c) Over Age 21:
He has attained age 21;
(d) Non-Union Employee:
His conditions of employment are not covered under the terms of a
collective bargaining agreement in which retirement benefits were the
subject of good faith bargaining, unless such agreement specifically
provides for coverage of the bargaining unit members under this Plan; and
(e) Leased Employee:
He is not a "leased employee" providing services to an Employer within the
meaning of section 414(n) of the Code. For this purpose, a "leased
employee" means any person who is not an employee of an Employer and who
provides services to an Employer if (1) such services are provided
pursuant to an agreement between the Employer and any other person, (2)
such person providing the services has performed such services for the
Employer on a substantially full-time basis for a period of at least one
year, and (3) such services are of a type historically performed, in the
business field of the Employer, by employees.
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1.16 EMPLOYEE
"Employee" means any person who is: (i) employed by any Employer if their
relationship is, for federal income tax purposes, that of employer and employee,
or (ii) a "leased employee" of an Employer as defined in subsection 1.15(e), but
only for purposes of the requirements of Code section 414(n)(3).
1.17 EMPLOYER
"Employer" means the Company and any Controlled Group Member or organizational
unit of either which is designated as an Employer under the Plan by the Board of
Directors.
1.18 ENTRY DATE
"Entry Date" means the first day of each pay period and any other date as the
Committee, in its discretion, shall determine.
1.19 ERISA
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time, and all valid Department of Labor Regulations promulgated
thereunder.
1.20 HOUR OF SERVICE
"Hour of Service" means each hour credited in accordance with the following
rules:
(a) Credit for Services Performed. An Employee shall be credited with one
Hour of Service for each hour for which he is paid, or entitled to
payment, by one or more Controlled Group Members for the performance of
duties.
(b) Credit for Periods in Which No Services Are Performed. An Employee shall
be credited with one Hour of Service for each hour for which he is paid,
or entitled to payment, by one or more Controlled Group Members on account
of a period of time during which no duties are performed (irrespective of
whether the employment relationship has terminated); except that (i) no
more than 501 Hours of Service shall be credited under this subsection (b)
to an Employee on account of any single continuous period during which he
performs no duties (whether or not such period occurs in a single Plan
Year), (ii) an hour for which an Employee is directly or indirectly paid,
or entitled to payment, on account of a period during which no duties are
performed shall not be credited to the Employee if the payment is made or
due under a plan maintained solely for the purpose of complying with
applicable workers' compensation or unemployment compensation or
disability insurance laws, and (iii) Hours of Service shall not be
credited for a payment which solely reimburses an Employee for medical or
medically related expenses incurred by the Employee. For purposes of this
subsection (b), an Employee shall be credited with Hours of Service on the
basis of his regularly scheduled working hours per week (or per day if he
is paid on a daily basis) or, in the case of an Employee without a regular
work schedule, on the basis of 40 Hours of Service per week (or eight
Hours of Service per day if he is paid on a daily basis) for each week (or
day) during the period of time during which no duties are performed;
except that an Employee shall not be credited with a greater number of
Hours of Service for a period during which no duties are performed than
the number of hours for which he is regularly scheduled for the
performance of duties during the period or, in the case of an Employee
without a regular work schedule, on the basis of 40 Hours of Service per
week (or eight Hours of Service per day if he is paid on a daily basis).
(c) Credit for Back Pay. An Employee shall be credited with one Hour of
Service for each hour for which back pay, irrespective of mitigation of
damages, has been either awarded or agreed to by one or more Employers;
except that an hour shall not be credited under both subsection (a) or
(b), as the case may be, and this subsection (c), and Hours of Service
credited under this subsection (c) with respect to periods described in
subsection (b) shall be subject to the limitations and provisions under
subsection (b).
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(d) Manner of Counting Hours. No hour shall be counted more than once or be
counted as more than one Hour of Service even though the Employee may
receive more than straight-time pay for it. With respect to Employees
whose compensation is not determined on the basis of certain amounts for
each hour worked during a given period and for whom hours are not required
to be counted and recorded by any federal law (other than ERISA), Hours
of Service shall be credited on the basis of 10 Hours of Service daily, 45
Hours of Service weekly, 95 Hours of Service semi-monthly, or 190 Hours of
Service monthly, if the Employee's compensation is determined on a daily,
weekly, semi-monthly or monthly basis, respectively, for each period in
which the Employee would be credited with at least one Hour of Service
under this Section. Except as otherwise provided in subsection (b), Hours
of Service shall be credited to Eligibility Computation Periods and Plan
Years in accordance with the provisions of 29 C.F.R. Sections
2530.200b-2, and 2530.200-3, which provisions are incorporated in this
Plan by reference.
1.21 INCLUDABLE COMPENSATION
"Includable Compensation" means an Employee's total wages from the Controlled
Group as determined for purposes of Internal Revenue Service Form W-2,
excluding, however: (i) moving expense reimbursements that are deductible by
the Employee under Code section 217, (ii) contributions of Employers to a
simplified employee pension plan to the extent such contributions are deductible
by the Employee and contributions of Employers to any other plan of deferred
compensation that are not includable in the Employee's gross income, (iii)
distributions to the Employee from any plan of deferred compensation other than
an unfunded, nonqualified plan of deferred compensation, (iv) amounts realized
from the exercise of a nonqualified stock option, (v) amounts realized under
Code section 83 with respect to restricted property that becomes freely
transferable or is no longer subject to a substantial risk of forfeiture, (vi)
amounts realized from the disposition of stock acquired under a qualified stock
option within the meaning of Code section 422, and (vii) any other amounts that
receive special tax benefits within the meaning of section 1.415-2(d)(2) of the
Treasury Regulations.
1.22 LOAN SUSPENSE ACCOUNT
"Loan Suspense Account" means the record maintained by the Committee of shares
of Company Stock which have been acquired by the Trustee with a Company Stock
Loan and which have not been allocated to the Accounts of Participants.
1.23 ONE YEAR BREAK IN SERVICE
"One Year Break in Service" means: (i) for purposes of determining eligibility
to participate, an Eligibility Computation Period in which the Employee fails to
complete more than 500 Hours of Service, and (ii) for purposes of determining
vesting, a Plan Year in which the Participant fails to complete more than 500
Hours of Service.
1.24 PARTICIPANT
"Participant" means an Employee or former Employee who has met the applicable
eligibility requirements of Article 2 and who has not yet received a
distribution of the entire amount of his vested interest in the Plan.
1.25 PLAN
"Plan" means the Employee Stock Ownership Plan set forth herein, as amended from
time to time.
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1.26 PLAN YEAR
"Plan Year" means the period with respect to which the records of the Plan are
maintained, which shall be the 12-month period beginning on January 1 and ending
on December 31.
1.27 QUALIFIED PLAN
"Qualified Plan" means an employee benefit plan that is qualified under Code
section 401(a).
1.28 REVERSION SUSPENSE ACCOUNT
"Reversion Suspense Account" means the record maintained by the Trustee of
shares of Company Stock which have been acquired by the Trustee with an Employer
Reversion Contribution as defined in Section 17.2 and which have not been
allocated to the Accounts of Participants.
1.29 TRUST AGREEMENT
"Trust Agreement" means the agreement or agreements executed by the Company and
the Trustee which establish a trust fund to provide for the investment,
reinvestment, administration and distribution of contributions made under the
Plan and the earnings thereon, as amended from time to time.
1.30 TRUST FUND
"Trust Fund" means the assets of the Plan held by the Trustee pursuant to the
Trust Agreement.
1.31 TRUSTEE
"Trustee" means the one or more individuals or entities who have entered into
the Trust Agreement as Trustee(s), and any duly appointed successor.
1.32 VALUATION DATE
"Valuation Date" means the date with respect to which the Trustee determines the
fair market value of the assets comprising the Trust Fund or any portion
thereof. The regular Valuation Date shall be the last day of each Plan Year.
However, if the Committee determines that the fair market value of any asset
comprising the Trust Fund has changed substantially since the previous Valuation
Date, or if the Committee determines it to be in the best interests of the Plan
or the Participants to value any asset of the Trust Fund at a time other than
the regular Valuation Date, the Committee may fix, in a uniform and
nondiscriminatory manner, one or more interim Valuation Dates.
1.33 YEAR OF SERVICE
"Year of Service" means a Plan Year in which an Employee completes at least
1,000 Hours of Service, whether or not he has terminated employment prior to the
end of the Plan Year. Any Employee who had credit for years of service under
the Morrison Knudsen Corporation Retirement Plan (the "Retirement Plan") as of
December 31, 1987, including credit for years of service under the former
Morrison Knudsen Corporation Retirement Plan, which terminated as of December
12, 1987, shall receive credit for Years of Service under this Plan for all
years of service credited to such Employee under the Retirement Plan as of
December 31, 1987. Any Employee who was credited with years of service under
the Centennial Engineering, Inc. Salary Reduction Plan and Trust (the "CEI
401(k) Plan") through plan year commencing May 27, 1990, shall receive credit
for Years of Service under this Plan for all years of service credited to such
Employee under the CEI 401(k) Plan through plan year commencing May 27, 1990.
Furthermore, any Employee who was employed by Centennial Engineering, Inc. as of
July 1, 1990 and who remained continuously employed by Centennial Engineering,
Inc. until December 31, 1990 shall be credited with a Year of Service under the
Plan for purposes of determining the Employee's vested and nonforfeitable
percentage of his Account, provided, however, nothing in this latter sentence
shall require the Plan to credit an Employee with a Year of Service that is
already credited to such Employee under the prior sentence.
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ARTICLE 2 - PARTICIPATION
2.1 ELIGIBILITY TO PARTICIPATE
(a) Each Eligible Employee who was a Participant on June 30, 1990, shall
continue to be a Participant on July 1, 1990.
(b) Each other Eligible Employee shall become a Participant on the Entry Date
coincident with or next following the date he first becomes an Eligible
Employee or the date he attains age 21, whichever is later.
2.2 EXCLUSIONS FROM PARTICIPATION
(a) Exclusion after Participation. A Participant who is no longer an Eligible
Employee will continue to receive credit for Hours of Service for purposes
of determining his vested interest in his Account, but during the period
of ineligibility (i) the Participant's Compensation and Hours of Service
will not be taken into account for purposes of determining the allocation
of Employer contributions and forfeitures to his Account and (ii) the
Participant's Includable Compensation will not be taken into account for
purposes of Section 12.4.
(b) Participation after Exclusion. An Employee or Participant who is excluded
from active participation will be eligible to participate in the Plan on
the first day he is an Eligible Employee and is credited with one or more
Hours of Service by an Employer. This subsection will apply to an
Employee who returns from an approved leave of absence or from military
leave and who would otherwise be treated as a new Employee under Section
2.3 only if he returns to employment with the Controlled Group immediately
following the expiration of the leave of absence or, in the case of an
Employee on military leave, during the period in which reemployment rights
are guaranteed by law.
2.3 REEMPLOYMENT PROVISIONS
All Hours of Service are counted in determining eligibility to participate,
except as otherwise provided in this Section.
(a) Termination of Employment before Participation. If an Employee terminates
employment before becoming a Participant and is reemployed by the
Controlled Group before incurring six consecutive One Year Breaks in
Service, he will become a Participant on the later of the date initially
determined under Section 2.1, or the date he is credited with one or more
Hours of Service by an Employer after reemployment; but if he is
reemployed by the Controlled Group after incurring six consecutive One
Year Breaks in Service, he will be treated as a new Employee for purposes
of the Plan and his Hours of Service completed before his reemployment
will be disregarded in determining the date on which he will become a
Participant.
(b) Termination of Employment after Participation. A Participant who has a
vested and nonforfeitable right to all or a portion of his Account balance
at the time of his termination of employment with an Employer will again
become an active Participant immediately upon his reemployment by an
Employer. If any other Participant terminates employment with an Employer
and is reemployed by an Employer before incurring six consecutive One Year
Breaks in Service, he will again become an active Participant on the date
he is credited with one or more Hours of Service by an Employer; but if he
is reemployed by an Employer after incurring six consecutive One Year
Breaks in Service, he will be treated as a new Employee and his Hours of
Service completed before his reemployment will be disregarded for purposes
of determining when he will again become a Participant.
ARTICLE 3 - CONTRIBUTIONS
3.1 EMPLOYER CONTRIBUTIONS
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Each Employer will pay to the Trustee as a contribution for a Plan Year the
amount, if any, determined by its Board of Directors, but no Employer will be
required to make a contribution for any Plan Year. Employer contributions may
be made in cash, in shares of Company Stock or forgiveness of a promissory note,
or any combination of the foregoing.
3.2 TIME OF PAYMENT
Contributions made by an Employer for a Plan Year may be paid to the Trustee on
any date or dates selected by the Employer, but in no event later than the time
prescribed by law (including extensions) for filing the Employer's federal
income tax return for the Employer's tax year ending with or within the Plan
Year.
3.3 PARTICIPANT CONTRIBUTIONS PROHIBITED
A Participant is neither required nor permitted to make contributions to the
Plan.
3.4 ROLLOVER AND TRANSFER CONTRIBUTIONS
The Trustee is not authorized to accept (i) any part of the cash or other assets
distributed to a Participant from a Qualified Plan or from an individual
retirement account or annuity described in Code section 408, or (ii) a direct
transfer of assets to the Plan on behalf of a Participant from the Trustee or
other funding agent of a Qualified Plan.
3.5 MATCHING CONTRIBUTIONS
(a) Each Participant who makes salary deferral contributions under the
Morrison Knudsen Corporation Savings Plan (the "Savings Plan") that are
invested in the Restricted Company Stock Fund under such plan ("Eligible
Deferrals"), shall be entitled to receive an allocation of Company Stock
to his Account from the Reversion Suspense Account. Except as limited by
Code sections 401(m), 410(b) and 415(c), the amount of the allocation will
be equal to one hundred percent (100%) of the lesser of (A) and (B), where
(A) equals the first three percent (3%) of each such Participant's
aggregate Compensation for such Plan Year, minus the aggregate Company
matching contribution made pursuant to this Section 3.5 for such Plan Year
to such Participant's Account; and (B) equals the total Eligible Deferrals
(after any adjustments to such deferrals under the Savings Plan to satisfy
the nondiscrimination requirements under Code section 401(k)) for such
Plan Year, minus the aggregate Company matching contribution paid pursuant
to this Section 3.5 for such Plan Year to such Participant's Company
Account. To the extent the allocations described in the preceding
sentence exceed the shares of Company Stock required to be allocated from
the Reversion Suspense Account under Section 17.4(b) for such Plan Year,
such excess shares shall be obtained first by using any shares forfeited
during such Plan Year and secondly by using shares scheduled to be
released from the Reversion Suspense Account in the immediately succeeding
Plan Year. To the extent that the allocations described in this
subparagraph (a) do not exhaust all of the shares of Company Stock
required to be allocated from the Reversion Suspense Account under Section
17.4(b), the remaining shares required to be allocated from the Reversion
Suspense Account, plus any forfeitures occurring during the Plan Year,
will be allocated to the Accounts of Participants entitled to an
allocation under the first sentence of this subsection (a) in the same
proportion that each such Participant's total Eligible Deferrals for the
Plan Year relate to the total of all such Participants' Eligible Deferrals
for the Plan Year, provided that the Committee shall have the discretion
to adjust such allocations to the extent required to satisfy the
nondiscrimination requirements of Code sections 401(m) and 410(b) or the
maximum limitations under Code section 415(c). The allocation of Company
Stock pursuant to this Section 3.5 shall be made first from the Reversion
Suspense Account and then, to the extent required, from discretionary
Employer contributions. Allocations pursuant to this Section 3.5 shall be
made on a biweekly basis. The number of shares of Company Stock to be
allocated to a Participant's Account pursuant to this Section 3.5 shall be
determined based on the closing price of Company Stock as reported in The
Wall Street Journal for the date immediately preceding the date on which
the allocations are made.
(b) Notwithstanding the foregoing provisions of this Section 3.5, for any Plan
Year the Contribution Percentage (as defined in subsection (c) of this
Section 3.5) for the group of Eligible Employees who are Highly
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Compensated Employees (as defined in subsection (f) of this Section 3.5)
for such Plan Year shall not exceed the greater of:
(1) 125 percent of the Contribution Percentage for all other Eligible
Employees or
(2) The lesser of 200 percent of the Contribution Percentage for all
other Eligible Employees, or the Contribution Percentage for all
other Eligible Employees plus 2 percentage points.
If two or more plans of the Controlled Group to which matching
contributions, employee after-tax contributions or before-tax
contributions are made are treated as one plan for purposes of Code
Section 410(b), such plans shall be treated as one plan for purposes of
this subsection (b) and if an Eligible Employee who is a Highly
Compensated Employee participates in two or more plans of the Controlled
Group to which such contributions are made, all such contributions shall
be aggregated for purposes of this subsection (b). Notwithstanding the
foregoing provisions of this subsection (b), for Plan Years beginning on
or after January 1, 1989, the disparity between the Contribution
Percentage for the group of Eligible Employees who are Highly Compensated
Employees and for the group of all other Eligible Employees shall be
reduced to the extent, if any, required by Treasury Regulation Section
1.401(m)-2.
(c) For the purposes of this Section 3.5, the "Contribution Percentage" for a
specified group of Eligible Employees for a Plan Year shall be the average
of the ratios (calculated separately for each Eligible Employee in such
group) of (1) the sum of the matching contributions under this Section 3.5
and, at the election of the Employer, any qualified nonelective
contributions within the meaning of Code Section 401(m)(4)(C) paid under
the Plan by or on behalf of each such Eligible Employee for such Plan Year
to (2) the Eligible Employee's Includable Compensation for such Plan Year.
(d) In the event that Excess Aggregate Contributions (as defined below) are
made to the Trust Fund for any Plan Year, then, Prior to March 15 of the
following Plan Year, such Excess Aggregate Contributions (and any income
allocable thereto) shall be forfeited (if forfeitable) and applied as
provided in Section 4.2 or (if not forfeitable) shall be distributed to
the Eligible Employees who are Highly Compensated Employees on the basis
of the respective portions of the Excess Aggregate Contributions
attributable to each such Eligible Employee. For the purposes of this
Section 3.5, the term "Excess Aggregate Contributions" shall mean, for any
Plan Year, the excess of (1) the aggregate amount of the matching
contributions actually paid to the Trust Fund by or on behalf of Eligible
Employees who are Highly Compensated Employees for such Plan Year over (2)
the maximum amount of such matching contributions permitted for such Plan
Year under subsection (b) of this Section 3.5, determined by reducing such
matching contributions made by or on behalf of Eligible Employees who are
Highly Compensated Employees in order of their Contribution Percentages
beginning with the highest of such Percentages.
(e) The determination of Excess Aggregate Contributions under this Section 3.5
shall be made after (1) first determining the excess deferrals (within the
meaning of Section 402(g)(2) of the Code) under the Savings Plan and any
other plan of the Controlled Group that contains a cash or deferred
arrangement and (2) then determining the excess contributions (within the
meaning of Section 401(k)(8)(B) of the Code) under the Savings Plan and
any other plan of the Controlled Group that contains a cash or deferred
arrangement.
(f) For purposes hereof, a "Highly Compensated Employee" for a particular Plan
Year, is any Employee who (1) during the preceding Plan Year, (A) was at
any time a 5-percent owner as such term is defined in Section 416(i)(1) of
the Code), (B) received Compensation from the Controlled Group in excess
of $75,000 (as such amount may be adjusted for increases in the cost of
living pursuant to regulations prescribed by the Secretary of the
Treasury, (C) received Compensation from the Controlled Group in excess of
$50,000 (as such amount may be adjusted for increases in the cost of
living pursuant to regulations prescribed by the Secretary of the
Treasury), and was in the Top-Paid Group of Employees (as defined below)
for such Year, or (D) was at any time an officer (limited to no more than
50 Employees, or, if lesser, the greater of 3 Employees or 10 percent of
the Employees) and received Compensation greater than 50 percent of the
amount in effect under Section 415(b)(1)(A) of the Code for such Year, or
(2) who during the particular Plan Year (but not the prior Plan Year) (A)
was at any time a 5-percent owner (as such term is defined in
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Section 416(i)(1) of the Code) or (B) was included in the foregoing
clauses (B), (C) or (D) of Paragraph (1) of this subsection (f) and was in
the group consisting of the 100 Employees paid the greatest Compensation
by the Controlled Group during such Plan Year. For the purposes of this
Section 3.5, the term "Top-Paid Group of Employees" shall mean that group
of Employees of the Controlled Group consisting of the top 20 percent of
such Employees when ranked on the basis of Compensation paid by the
Controlled Group during the Plan Year.
ARTICLE 4 - ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
4.1 ESTABLISHMENT OF ACCOUNTS
The Trustee will establish an Account for each Participant and may establish one
or more subaccounts of a Participant's Account, if the Committee determines that
subaccounts are necessary or desirable in administering the Plan.
4.2 ALLOCATION OF CONTRIBUTIONS AND FORFEITURES
Except as otherwise provided under Section 3.5, (i) each Participant who is an
Eligible Employee on the last day of the Plan Year shall be eligible to share in
the allocation of Employer contributions and forfeitures for the Plan Year; and
(ii) contributions made by an Employer with respect to a Plan Year, including
amounts released from a Reversion Suspense Account, and all forfeitures arising
during that Plan Year, will be allocated by the Trustee to Participant's
Accounts in the ratio that the Compensation for the Plan Year of each
Participant eligible to share in the allocation bears to the total Compensation
for the Plan Year of all Participants eligible to share in the allocation.
4.3 INVESTMENTS IN COMPANY STOCK
The primary purpose of the Plan is to enable Participants to acquire an
ownership interest in the Company and to provide deferred compensation benefits
to Participants and Beneficiaries in the form of shares of Company Stock.
Accordingly, the Plan has been established and designed to provide for
investment primarily in shares of Company Stock. The Trustee shall invest the
assets of the Trust Fund in accordance with the provisions of the Trust
Agreement. Except as provided under the Trust Agreement, the Trustee shall
invest the assets of the Trust Fund in Company Stock.
4.4 BORROWING TO PURCHASE COMPANY STOCK
The Committee may direct the Trustee to incur Company Stock Loans from time to
time to finance the purchase of Company Stock or to repay prior loans. The
terms of any Company Stock Loan will contain the conditions and restrictions set
forth in Article 3 of the Trust Agreement, including terms regarding the pledge
of Company Stock as collateral for any loan and the release of those shares from
the pledge.
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4.5 RELEASE OF SHARES FROM LOAN SUSPENSE ACCOUNTS
(a) Dividends on Loan Suspense Account Shares. The Trustee will establish a
separate Loan Suspense Account for shares of Company Stock acquired with
the proceeds of each Company Stock Loan. Any dividends (other than stock
dividends) on shares of Company Stock in a Loan Suspense Account will be
accounted for separately from other assets of the Trust Fund and at the
discretion of the Board or the Committee either will be distributed to
Participants in proportion to their Account balances or will be used to
pay interest and/or principal under a Company Stock Loan until the
indebtedness has been retired.
(b) Principal and Interest Release Method. As of the last day of each Plan
Year a fractional part of the shares of Company Stock then held in a Loan
Suspense Account will be released for allocation to Participants'
Accounts. The numerator of the fraction will be the amount of principal
and interest payments under the applicable Company Stock Loan made for
that Plan Year, and the denominator of the fraction will be the sum of (i)
the numerator and (ii) the principal and interest to be paid under the
Company Stock Loan for all future Plan Years without regard to any
possible extensions or renewals. If the interest rate under a Company
Stock Loan is variable, the calculation of the interest to be paid in
future Plan Years for the denominator of the fraction will be based on the
interest rate in effect at the end of the Plan Year.
(c) Principal Only Release Method. Notwithstanding the foregoing, in the
discretion of the Committee and subject to the terms of a Company Stock
Loan the Trustee may release shares of Company Stock from a Loan Suspense
Account solely with reference to principal payments made under a Company
Stock Loan, if (i) this method of release is consistent with the terms of
the Company Stock Loan; (ii) the Company Stock Loan provides for annual
payments of principal and interest at a cumulative rate that is not less
rapid at any time than level annual payments of such amounts for 10 years;
and (iii) the interest portion of any annual payment would be determined
to be interest under standard loan amortization tables. If a Company
Stock Loan is renewed, extended or refinanced, and the sum of (i) the
expired duration of the original loan and (ii) the renewal period,
extension period or the duration of the new Company Stock Loan, whichever
applies, exceeds 10 years, then shares of Company Stock held in the Loan
Suspense Account will thereafter be released with reference to principal
and interest payments in the manner set forth in subsection (b), provided,
however, that any renewal, refinancing or extension of a Company Stock
Loan will not cause the release of any remaining shares of Company Stock
in the Loan Suspense Account attributable to that Loan.
(d) Allocation in Shares. The interest of each Participant in Company Stock
released from a Loan Suspense Account will be allocated to his Account in
shares of Company Stock.
4.6 CHARGES AND CREDITS TO ACCOUNTS
Each Participant's Account will be charged with any cash or other assets
allocated to his Account and used by the Trustee to purchase Company Stock or to
release Company Stock from a Loan Suspense Account. Any shares of Company Stock
so purchased or released will be allocated to the Participant's Account. If
Company Stock is acquired from a Participant's Account to provide for
distributions, his Account will be credited with the cash or other assets used
to acquire the Company Stock.
4.7 LIMITATION ON ALLOCATIONS
Article 10 sets forth certain rules under Code section 415 that limit the amount
of contributions and forfeitures that may be allocated to a Participant's
Account for a Plan Year.
4.8 PARTICIPANTS' RIGHTS TO DIVERSIFY
(a) Diversification Election. A Participant who has attained age 55 and
completed at least 10 years of participation in the Plan may elect in
writing, within 90 days after the close of each Plan Year during the
Qualified Election Period, to receive a distribution of a portion of his
Account balance equal to 25% of his Account balance less the amounts
subject to all prior elections under this Section 4.8. With respect to
the last Plan Year during the Qualified Election Period of a Participant,
50% shall be substituted for 25% in
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the preceding sentence. For purposes of this Section 4.8, a year of
participation shall mean each Plan Year in which an Eligible Employee is a
Participant for at least one day during the Plan Year.
(b) Qualified Election Period. For purposes of this Section, Qualified
Election Period means, with respect to a Participant, the five Plan Year
period beginning with the Plan Year following the later of (i) the Plan
Year in which the Participant attains age 55 or (ii) the Plan year in
which the Participant completes 10 years of participation in the Plan.
(c) Distributions. The amount a Participant elects to diversify pursuant to
Section 4.8(a) shall be distributed to such Participant as soon as
practicable after the Committee has received the Participant's written
election. Such distribution will be made in cash, unless such Participant
elects to receive the distribution in shares of Company Stock. The
distribution shall be satisfied first from assets in the Participant's
Account, if any, that are not attributable to allocations from a Reversion
Suspense Account pursuant to Section 17.4.
4.9 ALLOCATION OF TRUST FUND INCOME AND LOSS
(a) Accounting Records. The Trustee, through its accounting records, will
clearly segregate each Account and subaccount and will maintain a separate
and distinct record of all income and losses of the Trust Fund
attributable to each Account or subaccount. Income or loss of the Trust
Fund will include any unrealized increase or decrease in the fair market
value of the assets of the Trust Fund other than Company Stock held in a
Loan Suspense Account.
(b) Method of Allocation. The share of net income or net loss of the Trust
Fund to be credited to, or deducted from, each Account will be the
allocable portion of the net income or net loss of the Trust Fund
attributable to each Account determined by the Trustee as of each
Valuation Date in a uniform and nondiscriminatory manner, based upon the
ratio that each Account balance as of the previous Valuation Date bears to
all Account balances after adjustment for withdrawals, distributions and
other additions or subtractions that may be appropriate. The share of net
income or net loss to be credited to, or deducted from, any subaccount
will be an allocable portion of the net income or net loss credited to or
deducted from the Account under which the subaccount is established.
(c) Pass-Through of Dividends on Company Stock. Subject to the discretion of
the Board, the amount of dividends (including stock dividends) declared by
the Company with respect to shares of Company Stock held in the Trust Fund
and allocated to the Account of each Participant on the record date will
be paid by the Company to the Trustee at the same time dividends are
distributed by the Company to all shareholders of the Company. The
Trustee will allocate such dividends to the Accounts of the Participants
when they are received and, at the direction of the Committee, will
distribute to each Participant the cash dividends held in his Account
within 90 days after the end of the Plan Year in which such dividends are
paid.
4.10 VALUATION OF TRUST FUND
The fair market value of the total net assets comprising the Trust Fund will be
determined by the Trustee as of each Valuation Date in accordance with the
provisions of the Trust Agreement.
4.11 NO GUARANTEE
Neither the Employers nor any Plan fiduciary guarantees the Participants or
their Beneficiaries against loss or depreciation or fluctuation of the value of
the assets of the Trust Fund.
4.12 ANNUAL STATEMENT OF ACCOUNTS
The Trustee will furnish each Participant and each Beneficiary of a deceased
Participant, at least annually, a statement showing (i) the value of his Account
at the end of the Plan Year, (ii) the allocations to and distributions from his
Account during the Plan Year, and (iii) his vested and nonforfeitable interest
in his Account at the end of
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the Plan Year. No statement will be provided to a Participant or Beneficiary
after the Participant's entire vested and nonforfeitable interest in his Account
has been distributed.
ARTICLE 5 - VESTING
5.1 DETERMINATION OF VESTED INTEREST
(a) Years of Service. The interest of each Participant in his Account will
become vested and nonforfeitable in accordance with the following
schedule:
Percentage Vested
Years of Service and Nonforfeitable
Less than 1 0
1 but less than 2 20
2 but less than 3 40
3 but less than 4 60
4 but less than 5 80
5 or more 100
(b) Accelerated Vesting. A Participant's interest in his Account will become
100% vested and nonforfeitable without regard to his Years of Service on
the earliest of the following: (i) the first date on which the
Participant has attained at least age 65 and is an Eligible Employee, (ii)
his death while he is an Eligible Employee, or (iii) his Disability while
he is an Eligible Employee.
5.2 FORFEITURE OF NONVESTED AMOUNTS
(a) Timing of Forfeiture. In the case of a Participant who upon termination
of employment with the Controlled Group receives a distribution of less
than 100% of the amounts credited to his Account, the nonvested portion of
such Participant's Account shall be forfeited immediately upon the
distribution of his vested Account balance, provided, however, that such
forfeiture shall not occur earlier than the occurrence of a One Year Break
in Service. For purposes of this Section 5.2, a Participant who is not
vested in any portion of his Account balance will be deemed to have
received a distribution of zero.
(b) Rehire Prior to Breaks in Service. In the event such former Participant
is rehired by a Controlled Group Member prior to incurring six consecutive
One Year Breaks in Service and the Participant repays the full amount of
the distribution he received from the Plan upon termination no later than
the earlier of:
(1) The fifth anniversary of the date of his reemployment by a
Controlled Group Member, or
(2) The close of a period of five consecutive One Year Breaks in Service
commencing after the date on which he received his prior
distribution, the amount forfeited shall be recredited to the
Participant's Account as of the first day of the Plan Year
coinciding with or next preceding the date of repayment. Such
repayment shall be made in cash or Company Stock, provided that the
aggregate fair market value of the repayment equals the fair market
value of the prior distribution. The sources for recrediting a
prior forfeiture in a subsequent Plan Year will be, in order of
priority:
(i) Forfeitures occurring in the Plan Year of the repayment;
(ii) Contributions made by the Company for the Plan Year of the
repayment, including amounts released from the Reversion
Suspense Account;
(iii) Earnings allocable to his Account during the same Plan Year.
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(c) Rehire After Incurring Breaks in Service. In the event that such former
Participant is not rehired by the Controlled Group prior to incurring six
consecutive One Year Breaks in Service, the portion of the Participant's
Account balance which he forfeited upon his prior termination of
employment with the Controlled Group shall be deemed to be a permanent
forfeiture and shall not be recredited to the Participant's Account should
he subsequently become eligible for participation in the Plan. In the
case of a Participant who, upon termination of employment with the
Controlled Group, does not consent to the distribution of his vested
Account balance pursuant to Section 6.1(c), the nonvested portion of his
Account balance shall be forfeited upon the earlier of the distribution of
his vested Account balance or the date on which he incurs six consecutive
One Year Breaks in Service.
5.3 UNCLAIMED DISTRIBUTION
If the Committee cannot locate a person who is entitled to receive a benefit
under the Plan within a reasonable period (as determined by the Committee in its
discretion), the amount of the benefit will be treated as a forfeiture during
the Plan Year in which the period ends. If, before final distributions are made
from the Trust Fund following termination of the Plan, a person who was entitled
to a benefit which has been forfeited under this Section makes a claim to the
Committee or the Trustee for his benefit, he will be entitled to receive, as
soon as administratively feasible, a benefit equal to a number of shares of
Company Stock with a fair market value on the date the claim is received equal
to the fair market value of the forfeited shares on the date of forfeiture, plus
cash for any fractional shares. This benefit will be reinstated first from
forfeitures that would otherwise be allocated for the Plan Year in which the
benefit is reinstated and then from Employer contributions for that Plan Year.
5.4 ALLOCATION OF FORFEITED AMOUNTS
The amount of a Participant's Account which is forfeited will be allocated as
provided in Section 4.2.
5.5 REEMPLOYMENT PROVISIONS
If a Participant who has a vested and nonforfeitable right to all or a portion
of his Account balance terminates employment and again becomes an Employee, his
Years of Service completed before his reemployment will be included in
determining his vested and nonforfeitable interest after he again becomes an
Employee. If any other Employee or Participant terminates employment and again
becomes an Employee before incurring six consecutive One Year Breaks in Service,
his Years of Service completed before his reemployment will be included in
determining his vested and nonforfeitable interest after he again becomes an
Employee; but if he is reemployed after incurring six consecutive One Year
Breaks in Service, his Years of Service completed before his reemployment will
be disregarded for purposes of determining his vested and nonforfeitable
interest after he again becomes an Employee.
ARTICLE 6 - PARTICIPANT'S RIGHT TO PAYMENT
6.1 BASIC RULES GOVERNING DISTRIBUTIONS
(a) Timing of Distributions. Distribution of a Participant's vested Account
balance shall be made as soon as practicable after the Participant's
termination of employment with an Employer. Unless the Participant elects
otherwise, however, such distribution in no event will be made later than
(i) one year after the last day of the Plan Year in which his employment
terminates, if the Participant's employment terminates at or after age 65,
or before age 65 because of Disability; or (ii) one year after the last
day of the fifth Plan Year following the Plan Year in which his employment
terminates, if the Participant's employment terminates before age 65 for
any reason other than Disability. If shares of Company Stock acquired
with the proceeds of a Company Stock Loan are credited to the
Participant's Account, the distribution rules in the second sentence of
this subsection will not apply to those shares (unless the Committee
determines otherwise) until one year after the last day of the Plan Year
in which that Company Stock Loan has been repaid in full.
(b) Form of Distributions. All distributions will be made in a single lump
sum payment. All distributions will be in the form of cash, unless a
Participant elects prior to such distribution to receive whole shares of
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Company Stock plus cash for any fractional shares. If the Participant's
vested Account balance exceeds the value of the whole shares of Company
Stock allocated to his Account, the excess will be distributed in the form
of whole shares of Company Stock acquired by the Trustee from any source
(including the Accounts of other Participants) other than a Loan Suspense
Account, plus cash for any fractional shares.
(c) Participant's Consent to Certain Payments. Notwithstanding the provisions
of this Section 6.1, except in the case of a distribution of a dividend on
Company Stock, if the amount of a Participant's vested Account balance
exceeds $3,500, the Committee shall not distribute the Participant's
vested Account balance to him prior to his attainment of age 65 unless he
consents to the distribution in the manner provided by the Committee.
6.2 REEMPLOYMENT OF PARTICIPANT
Notwithstanding the provisions of Section 6.1, if a Participant who terminated
employment again becomes an Employee prior to the distribution of his Account
balance, no distribution from the Trust Fund will be made to him while he is an
Employee, and amounts distributable to him on account of his termination will be
held in the Trust Fund until he is again entitled to a distribution under the
Plan.
6.3 VALUATION OF ACCOUNTS
A Participant's distributable Account balance attributable to shares of Company
Stock in his Account shall be an amount equal to the proceeds received by the
Committee upon the sale of Company Stock in such Participant's Account.
6.4 RESTRICTIONS ON DISTRIBUTIONS
The provisions of this Article 6 are subject to Article 11, which sets forth
certain rules under various provisions of the Code relating to restrictions on
distributions to Participants.
6.5 DIRECT ROLLOVER DISTRIBUTIONS
(a) Direct Rollover Election:
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Section 6.5, a
distributee may elect, at the time and in the manner prescribed by the
Plan Administrator, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by the
distributee in a direct rollover.
(b) Definitions:
(1) Eligible rollover distribution:
An eligible rollover distribution is any distribution of all or any
portion of the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any
distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or
life expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(2) Eligible retirement plan:
An eligible retirement plan is an individual retirement account
described in Section 408(a) of the Code, an individual retirement
annuity described in Section 408(b) of the Code, an annuity plan
described in Section 403(a) of the Code, or a qualified trust
described in Section 401(a) of the Code, that accepts the
distributee's eligible rollover distribution. However, in the case
of an
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eligible rollover distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or individual
retirement annuity.
(3) Distributee:
A distributee includes an employee or former employee. In addition,
the employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(4) Direct rollover:
A direct rollover is a payment by the Plan to the eligible
retirement plan specified by the distributee.
ARTICLE 7 - DISTRIBUTIONS TO BENEFICIARIES
7.1 DESIGNATION OF BENEFICIARY
Each Participant will have the right to designate a Beneficiary or Beneficiaries
to receive his vested Account balance upon his death. The designation will be
made on forms prescribed by the Committee and will be effective upon receipt by
the Committee. A Participant will have the right to change or revoke any
designation by filing a new designation or notice of revocation with the
Committee, but the revised designation or revocation will be effective only upon
receipt by the Committee.
7.2 CONSENT OF SPOUSE REQUIRED
A Participant who is married may not designate a Beneficiary other than, or in
addition to, his spouse, unless his spouse consents to the designation by means
of a writing that is signed by the spouse, contains an acknowledgment by the
spouse of the effect of the consent, and is witnessed by a member of the
Committee (other than the Participant) or by a notary public. The designation
will be effective only with respect to the consenting spouse, whose consent will
be irrevocable. A Beneficiary designation to which a spouse has consented may
not be changed by the Participant without spousal consent, unless the spouse's
consent expressly permits new Beneficiary designations by the Participant
without any further consent of the spouse.
7.3 FAILURE TO DESIGNATE BENEFICIARY
In the event a Participant has not designated a Beneficiary, or in the event no
Beneficiary survives a Participant, the distribution of the Participant's vested
Account balance upon his death will be made (i) to the Participant's spouse, if
living, (ii) if his spouse is not then living, to his then living issue by right
of representation, (iii) if neither his spouse nor his issue are then living, to
his then living parents, and (iv) if none of the above are then living, to his
estate.
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7.4 DISTRIBUTIONS TO BENEFICIARIES
Distribution of a Participant's vested Account balance to the Participant's
Beneficiary will be made no later than one year after the last day of the Plan
Year in which the Participant's death occurs. The Participant's vested Account
balance will be distributed to the Beneficiary in a single lump sum payment.
The distribution will be in the same form as provided for in Section 6.1(c) by
substituting the Beneficiary for the Participant.
7.5 RESTRICTIONS ON DISTRIBUTIONS
All distributions pursuant to this Article 7 are subject to Article 11, which
sets forth certain rules under various provisions of the Code relating to
restrictions on distributions to Beneficiaries.
ARTICLE 8 - RULES REGARDING COMPANY STOCK
8.1 VOTING COMPANY STOCK
Before each annual or special meeting of its shareholders, the Committee through
the Trustee shall cause to be sent to each Participant and Beneficiary who has
Company Stock allocated to his Account on the record date of such meeting a copy
of the proxy solicitation material therefor, together with a form requesting
confidential instructions on how to vote the shares of Company Stock allocated
to his Account. Upon receipt of such instructions, the Trustee shall vote the
shares allocated to such Participant's or Beneficiary's Account as instructed.
The Trustee shall vote all allocated shares of Company Stock for which it does
not receive instructions and all unallocated shares of Company Stock held in the
Reversion Suspense Account and Loan Suspense Account in the same manner and
proportion as instructed by the Participants and Beneficiaries with respect to
allocated shares. A Participant's right to instruct the Trustee with respect to
voting shares of Company Stock will not include rights concerning (i) the
exercise of any appraisal rights, dissenters' rights or similar rights granted
by applicable law to the registered or beneficial holders of Company Stock or
(ii) the choice of consideration to be received by shareholders in any
transaction involving Company Stock. These matters will be decided by the
Trustee in its discretion.
8.2 SALE OF COMPANY STOCK
Subject to the rights of Participants in a tender offer as described in Section
8.3, the Committee may direct the Trustee to sell shares of Company Stock to any
person, including the Company, provided that any sale to the Company or other
"disqualified person" within the meaning of Code section 4975 or "party in
interest" within the meaning of ERISA section 3(14) is made at a price which is
not less than "adequate consideration" as defined in ERISA section 3(18) and no
commission is charged with respect to the sale. If the Trustee is unable to
make payments of principal or interest on a Company Stock Loan when due, the
Committee may direct the Trustee to sell any shares of Company Stock not yet
released from the Loan Suspense Account or to obtain another Company Stock Loan
in an amount sufficient to make such a payment.
8.3 TENDER OFFER FOR COMPANY STOCK
In the event of a tender offer for shares of Company Stock subject to Section
14(d)(1) of the Securities Exchange Act of 1934 or subject to Rule 13e-4
promulgated under that Act (as those provisions may from time to time be amended
or replaced by successor provisions of federal securities laws), the Trustee
will advise each Participant who has shares of Company Stock credited to his
Account in writing of the terms of the tender offer as soon as practicable after
its commencement and will furnish each Participant with a form by which he may
instruct the Trustee confidentially whether or not to tender shares credited to
his Account. The Trustee will tender those shares it has been properly
instructed to tender, and will not tender those shares which it has been
properly instructed not to tender. The Trustee's notification to Participants
will include (i) a notice that allocated shares for which no instructions are
received will be tendered in the same proportion as those shares for which the
Trustee receives a proper instruction and (ii) such related documents as are
prepared by any person and provided to the shareholders of the Company pursuant
to the Securities Exchange Act of 1934. The Committee may also provide
Participants with such other material concerning the tender offer as the
Committee in its discretion determines to be appropriate,
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provided, however, that prior to any such distribution the Trustee shall be
furnished with complete copies of all such materials to be distributed to the
Participants. A Participant's instructions to the Trustee to tender shares will
not be deemed a withdrawal or suspension from the Plan or a forfeiture of any
portion of the Participant's interest in the Plan. The number of shares to
which a Participant's instructions apply will be the total number of shares
credited to his Account, whether or not the shares are vested, as of the close
of business on the day preceding the date on which the tender offer commences.
Funds received in exchange for tendered stock will be credited to the Account of
the Participant whose stock was tendered or the Reversion Suspense Account or
Loan Suspense Account from which such shares were tendered and will be used by
the Trustee to purchase Company Stock, as soon as practicable. In the interim,
the Trustee will invest such funds in short term investments permitted under the
Trust Agreement. The Trustee will accept and decline any tender offer with
respect to the shares of Company Stock not allocated to Participants' Accounts
in the same proportion as the tender offer is accepted and declined with respect
to shares of Company Stock allocated to Participants' Accounts for which the
Trustee receives a proper direction.
ARTICLE 9 - ADMINISTRATION OF THE PLAN AND TRUST AGREEMENT
9.1 APPOINTMENT OF COMMITTEE MEMBERS
The Board will appoint an Administrative Committee consisting of at least three
or more members, to hold office at the pleasure of the Board. Members of the
Committee may, but are not required to, be Employees or Participants. Any
member may resign by giving 30 days' notice, in writing, filed with the Board.
9.2 OFFICERS AND EMPLOYEES OF THE COMMITTEE
The Committee will choose from its members a Chairman and a Secretary. The
Secretary will keep a record of the Committee's proceedings and all dates,
records and documents pertaining to the Committee's administration of the Plan.
The Committee may employ and suitably compensate such persons or organizations
to render advice with respect to the duties of the Committee under the Plan as
the Committee determines to be necessary or desirable.
9.3 ACTION OF THE COMMITTEE
Action of the Committee may be taken with or without a meeting of Committee
members, provided that action will be taken only upon the vote or other
affirmative expression of a majority of the Committee's members qualified to
vote with respect to such action. The Chairman or the Secretary of the
Committee may execute any certificate or other written direction on behalf of
the Committee. In the event the Committee members qualified to vote on any
question are unable to determine such question by a majority vote or other
affirmative expression of a majority of the Committee members qualified to vote
on such question, such question will be determined by the Board. A member of
the Committee who is a Participant may not vote on any question relating
specifically to himself unless he is the sole member of the Committee.
9.4 EXPENSES AND COMPENSATION
The expenses of the Committee properly incurred in the performance of its duties
under the Plan will be paid from the Trust Fund, unless the Employers in their
discretion pay such expenses. The members of the Committee will not be
compensated for their services as Committee members.
9.5 GENERAL POWERS AND DUTIES OF THE COMMITTEE
The Committee will have the full power and responsibility to administer the Plan
and Trust Agreement and to construe and apply their provisions. For purposes of
ERISA, the Committee and the Board shall be the named fiduciary with respect to
the operation and administration of the Plan and the Trust Agreement. In
addition the Committee will have the powers and duties granted by the terms of
the Trust Agreement. The Committee shall also have the power to amend the Plan.
The Committee, and all other persons with discretionary control respecting the
operation, administration, control, and/or management of the Plan, the Trust
Agreement, and/or the Trust Fund, will perform their duties under the Plan and
Trust Agreement solely in the interests of Participants and their Beneficiaries.
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9.6 SPECIFIC POWERS AND DUTIES OF THE COMMITTEE
The Committee will administer the Plan and have all powers necessary to
accomplish that purpose, including the following: (i) resolving all questions
relating to the eligibility of Employees to become Participants, (ii)
determining the amount of benefits payable to Participants or their
Beneficiaries, and determining the time and manner in which such benefits are to
be paid, (iii) authorizing and directing all disbursements by the Trustee from
the Trust Fund, (iv) engaging any administrative, legal, medical, accounting,
clerical, or other services it deems appropriate in administering the Plan or
the Trust Agreement, (v) construing and interpreting the Plan and the Trust
Agreement and adopting rules for administration of the Plan and the Trust
Agreement which are not inconsistent with the terms of such documents, (vi)
compiling and maintaining all records it determines to be necessary, appropriate
or convenient in connection with the administration of the Plan and the Trust
Agreement, (vii) determining the disposition of assets in the Trust Fund in the
event the Plan is terminated, (viii) to the extent permitted by law, changing or
waiving any required notice or notice period under the Plan and (ix) reviewing
the performance of the Trustee with respect to the Trustee's administrative
duties, responsibilities and obligations under the Plan and the Trust Agreement,
reporting to the Board regarding such administrative performance of the Trustee,
and, if necessary, removing the Trustee and appointing a successor Trustee.
9.7 ALLOCATION OF FIDUCIARY RESPONSIBILITY
The Committee or the Board from time to time may allocate to one or more of its
members and may delegate to any other persons or organizations any of its
rights, powers, duties and responsibilities with respect to the operation and
administration of the Plan and the Trust Agreement that are permitted to be
delegated under ERISA. Any such allocation or delegation will be made in
writing, will be reviewed periodically by the Committee or the Board, and will
be terminable upon such notice as the Committee or the Board in its discretion
deems reasonable and proper under the circumstances. Whenever a person or
organization has the power and authority under the Plan or the Trust Agreement
to delegate discretionary authority respecting the administration of the Plan or
the Trust Fund to another person or organization, the delegating party's
responsibility with respect to such delegation is limited to the selection of
the person to whom authority is delegated and the periodic review of such
person's performance and compliance with applicable law and regulations. Any
breach of fiduciary responsibility by the person to whom authority has been
delegated which is not proximately caused by the delegating party's failure to
properly select or supervise, and in which breach the delegating party does not
otherwise participate, will not be considered a breach by the delegating party.
9.8 INFORMATION TO BE SUBMITTED TO THE COMMITTEE
To enable the Committee to perform its functions, the Employers will supply full
and timely information to the Committee on all matters relating to Employees and
Participants as the Committee may require and will maintain such other records
required by the Committee to determine the benefits due to Participants or their
Beneficiaries under the Plan.
9.9 NOTICES, STATEMENTS AND REPORTS
The Company will be the "administrator" of the Plan as defined in ERISA section
3(16)(A) for purposes of the reporting and disclosure requirements imposed by
ERISA and the Code. The Committee will assist the Company, as requested, in
complying with such reporting and disclosure requirements.
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9.10 CLAIMS PROCEDURE
(a) Filing Claim for Benefits. If a Participant or Beneficiary believes he
has not received the benefits he is entitled to receive under the terms of
the Plan, he may file a claim for benefits with the Committee. All claims
will be made in writing and will be signed by the claimant. If the
claimant does not furnish sufficient information to determine the validity
of the claim, the Committee will indicate to the claimant any additional
information which is required.
(b) Notification by the Committee. Each claim will be approved or disapproved
by the Committee within 90 days following the receipt of the information
necessary to process the claim. In the event the Committee denies a claim
for benefits in whole or in part, the Committee will notify the claimant
in writing of the denial of the claim. Such notice by the Committee will
also set forth, in a manner calculated to be understood by the claimant,
the specific reason for such denial, the specific Plan provisions on which
the denial is based, a description of any additional material or
information necessary to perfect the claim with an explanation of why such
material or information is necessary, and an explanation of the Plan's
claim review procedure as set forth in subsection (c). If no action is
taken by the Committee on a claim within 90 days, the claim will be deemed
to be denied for purposes of the review procedure.
(c) Review Procedure. A claimant may appeal a denial of his claim by
requesting a review of the decision by the Committee or a person
designated by the Committee, which person will be a named fiduciary under
ERISA section 402(a)(2) for purposes of this Section. An appeal must be
submitted in writing within six months after the denial and must (i)
request a review of the claim for benefits under the Plan, (ii) set forth
all of the grounds upon which the claimant's request for review is based
and any facts in support thereof, and (iii) set forth any issues or
comments which the claimant deems pertinent to the appeal. The Committee
or the named fiduciary designated by the Committee will make a full and
fair review of each appeal and any written materials submitted in
connection with the appeal. The Committee or the named fiduciary
designated by the Committee will act upon each appeal within 60 days after
receipt thereof, unless special circumstances require an extension of the
time for processing, in which case a decision will be rendered as soon as
possible, but not later than 120 days after the appeal is received. The
claimant will be given the opportunity to review pertinent documents or
materials upon submission of a written request to the Committee or named
fiduciary, provided the Committee or named fiduciary finds the requested
documents or materials are pertinent to the appeal. On the basis of its
review, the Committee or named fiduciary will make an independent
determination of the claimant's eligibility for benefits under the Plan.
The decision of the Committee or named fiduciary on any claim for benefits
will be final and conclusive upon all parties thereto. In the event the
Committee or named fiduciary denies an appeal in whole or in part, it will
give written notice of the decision to the claimant, which notice will set
forth in a manner calculated to be understood by the claimant the specific
reasons for such denial and which will make specific reference to the
pertinent Plan provisions on which the decision was based.
9.11 SERVICE OF PROCESS
The Committee may from time to time designate an agent of the Plan for the
service of legal process. The Committee will cause such agent to be identified
in materials it distributes or causes to be distributed when such identification
is required under applicable law. In the absence of such a designation, the
Company will be the agent of the Plan for the service of legal process.
9.12 CORRECTION OF PARTICIPANTS' ACCOUNTS
If an error or omission is discovered in the Accounts of a Participant, or in
the amount distributed to a Participant, the Committee will make such equitable
adjustments in the records of the Plan as may be necessary or appropriate to
correct such error or omission as of the Plan Year in which such error or
omission is discovered. Further, an Employer may, in its discretion, make a
special contribution to the Plan which will be allocated by the Committee only
to the Account of one or more Participants to correct such error or omission.
9.13 PAYMENT TO MINORS OR PERSONS UNDER LEGAL DISABILITY
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If any benefit becomes payable to a minor or to a person under a legal
disability, payment of such benefit will be made only to the conservator or the
guardian of the estate of such person appointed by a court of competent
jurisdiction or such other person or in such other manner as the Committee
determines is necessary to ensure that the payment will legally discharge the
Plan's obligation to such person.
9.14 UNIFORM APPLICATION OF RULES AND POLICIES
The Committee in exercising its discretion granted under any of the provisions
of the Plan or the Trust Agreement will do so only in accordance with rules and
policies established by it which will be uniformly applicable to all
Participants and Beneficiaries.
9.15 FUNDING POLICY
The Plan is to be funded through Employer contributions and earnings on such
contributions; and benefits will be paid to Participants and Beneficiaries only
as provided in the Plan. The assets of the Plan will be invested primarily in
shares of Company Stock and, to the extent such shares are not available for
purchase by the Trustee, in such other investments that are permitted under the
Trust Agreement.
9.16 THE TRUST FUND
The Trust Fund will be held by the Trustee for the exclusive benefit of
Participants and Beneficiaries. The assets held in the Trust Fund will be
invested and reinvested in accordance with the terms of the Trust Agreement,
which is hereby incorporated into and made a part of the Plan. All benefits
will be paid solely out of the Trust Fund, and no Employer will be otherwise
liable for benefits payable under the Plan.
9.17 PROCEDURE FOR QUALIFIED DOMESTIC RELATIONS ORDERS
(a) Upon receipt of a domestic relations order related to a benefit of a
Participant, the Committee, or its designee, shall promptly notify the
Participant and proposed alternate payee of its receipt of the order. In
addition, the Committee shall adopt non-discriminatory procedures, in
accordance with the requirements of the Code, to determine whether a
domestic relations order received by the Committee is a "qualified
domestic relations order" as defined in Section 414(p) of the Code.
(b) A qualified domestic relations order shall generally specify the
following:
(1) Name and Address:
The name and last known mailing address (if any) of the Participant
and each alternate payee covered by the order;
(2) Amount of Plan Benefits:
The amount or percentage of the Participant's benefits to be paid by
the Plan to each such alternate payee, or the manner in which such
amount or percentage is to be determined;
(3) Payment Period:
The number of payments or period to which such order applies; and
(4) Applicable Plans(s):
Each plan to which the order applies.
In addition, the order shall not require the Plan to provide any type or
form of benefits or any option not otherwise provided under the Plan; and
it shall not require the payment of benefits to an alternate payee which
are required to be paid to another alternate payee under another order
previously determined to be a qualified domestic relations order.
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(c) Plan provisions to the contrary notwithstanding, the alternate payee shall
have the right (irrespective of whether the Participant has achieved his
or her earliest retirement age, as defined under Section 414(p) of the
Code) to elect to commence receiving his/her benefit at the earliest date
that is administrably feasible following the determination that the
applicable order is a qualified domestic relations order. Provided,
however, if prior to such date, benefits from the Plan should become
distributable to or for the benefit of Participant (or Participant's
estate or beneficiary), whether by reason of Participant's death,
disability, termination of employment, regular or special retirement, full
or partial termination of the Plan or any other cause, then the benefits
assigned to alternate payee shall also become immediately distributable to
the alternate payee in a form set forth in Section 4.
Notwithstanding the foregoing, the alternate payee may elect to defer the
commencement of benefit distributions to the extent authorized for
beneficiaries generally under the applicable terms of the Plan."
ARTICLE 10 - LIMITATIONS ON ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
10.1 PRIORITY OVER OTHER ALLOCATION PROVISIONS
The provisions set forth in this Article will supersede any conflicting
provisions of Section 3.5 and Article 4.
10.2 DEFINITIONS USED IN THIS ARTICLE
The following words and phrases, when used with initial capital letters, will
have the meanings set forth below.
(a) "Annual Addition" means the sum of the following amounts with respect to
all Qualified Plans and Welfare Benefit Funds maintained by the Employers:
(i) the amount of Employer contributions with respect to the Limitation
Year allocated to the Participant's account, including allocations
from the Reversion Suspense Account as described in Section 17.4;
(ii) the amount of any forfeitures for the Limitation Year allocated to
the Participant's account;
(iii) the amount, if any, carried forward pursuant to Section 10.4 or a
similar provision in another Qualified Plan and allocated to the
Participant's account;
(iv) the amount of a Participant's voluntary nondeductible contributions
for the Limitation Year, provided, however, that the Annual Addition
for any Limitation Year beginning before January 1, 1987 will not be
recomputed to treat all of the Participant's nondeductible voluntary
contributions as part of the Annual Addition;
(v) the amount allocated after March 31, 1984 to an individual medical
benefit account (as defined in Code section 415(1)(2)) which is part
of a Defined Benefit Plan or an annuity plan; and
(vi) the amount derived from contributions paid or accrued that are
attributable to post-retirement medical benefits allocated to the
separate account of a key employee (as defined in Code section
419A(d)(3)) under a Welfare Benefit Fund.
(vii) a Participant's Annual Addition will not include any nonvested
amounts restored to his account following his reemployment before
incurring five consecutive One Year Breaks in Service, and a
corrective allocation pursuant to Section 9.12 will be considered an
Annual Addition for the Limitation Year to which it relates. If no
more than one-third of the Employer contributions to the Plan for a
Plan Year which are deductible under Code section 404(a)(9) are
allocated to the Accounts of Employees who are highly compensated
employees within the meaning of Code section 414(q), there will be
excluded in determining the Annual Addition of each Participant for
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such Plan Year the amount of Employer contributions applied by the
Trustee to the payment of interest on a Company Stock Loan and the
amount of any forfeitures of Company Stock acquired with the
proceeds of a Company Stock Loan.
(b) "Defined Benefit Dollar Limitation" means for any Limitation Year, $90,000
or such amount as determined by the Commissioner of Internal Revenue under
Code section 415(d)(1) as of the January 1 falling within such Limitation
Year.
(c) "Defined Benefit Fraction" means a fraction, the numerator of which is the
Projected Annual Benefit of a Participant under all Defined Benefit Plans
maintained by an Employer determined as of the close of the Limitation
Year and the denominator of which is the lesser of (i) 140% of the
Participant's average Includable Compensation that may be taken into
account for the Limitation Year under Code section 415(b)(1)(B), or (ii)
125% of the Defined Benefit Dollar Limitation, determined as of the close
of the Limitation Year. If the Participant was a participant in a Defined
Benefit Plan maintained by an Employer in existence on July 1, 1982, or on
May 6, 1986, the denominator of the Defined Benefit Fraction will not be
less than 125% of the greater of the Participant's accrued Projected
Annual Benefit under such plan as of the end of the last Limitation Year
beginning before January 1, 1983, or his accrued Projected Annual Benefit
of the end of the last Limitation Year beginning January 1, 1987. The
preceding sentence applies only if the Defined Benefit Plan satisfied the
requirements of Code section 415 as in effect at the end of such
Limitation Year.
(d) "Defined Benefit Plan" means a Qualified Plan other than a Defined
Contribution Plan.
(e) "Defined Contribution Dollar Limitation" means for any Limitation Year,
$30,000 or, if greater, 25% of the Defined Benefit Dollar Limitation for
the same Limitation Year. Notwithstanding the foregoing, if no more than
one-third of the Employer contributions to the Plan for a Plan Year are
allocated to the Accounts of Employees who are highly compensated
employees within the meaning of Code section 414(q), the Defined
Contribution Dollar Limitation will be the sum of (i) the dollar
limitation as set forth above and (ii) the lesser of an amount equal to
such dollar limitation or the amount of Company Stock allocated to the
Account of the Participant. If a short Limitation Year is created because
of a Plan amendment changing the Limitation Year to a different
12-consecutive-month period, the Defined Contribution Dollar Limitation
for the short Limitation Year shall not exceed the amount determined in
the preceding sentences multiplied by a fraction, the numerator of which
is the number of months in the short Limitation Year and the denominator
of which is 12.
(f) "Defined Contribution Fraction" means a fraction, the numerator of which
is the sum of the Annual Additions allocated to the Participant's accounts
for the applicable Limitation Year and each prior Limitation Year, and the
denominator of which is the sum of the lesser of the following products
for each Limitation Year in which the Participant was an Employee
(regardless of whether a Defined Contribution Plan was in existence for
such Limitation Year) (i) the Defined Contribution Dollar Limitation
(determined for this purpose without regard to the provisions of Code
section 415(c)(6)) effective for the Limitation Year multiplied by 125%,
or (ii) 35% of the Participant's Includable Compensation for such
Limitation Year.
(g) "Defined Contribution Plan" means a Qualified Plan described in Code
section 414(i).
(h) "Limitation Year" means the 12-consecutive-month period used by a
Qualified Plan for purposes of computing the limitations on benefits and
annual additions under Code section 415. The Limitation Year for this
Plan is the Plan Year.
(i) "Maximum Annual Addition" means with respect to a Participant for any
Limitation Year an amount equal to the lesser of (i) the Defined
Contribution Dollar Limitation or (ii) 25% of the Participant's Includable
Compensation.
(j) "Projected Annual Benefit" means the annual benefit (as defined in Code
section 415(b)(2)) to which a Participant would be entitled under the
terms of a Defined Benefit Plan maintained by an Employer,
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assuming that the Participant will continue employment until his normal
retirement age under the Defined Benefit Plan (or current age, if later)
and that the Participant's Includable Compensation for the current
Limitation Year and all other relevant factors used to determine benefits
under the Defined Benefit Plan will remain constant for all future
Limitation Years.
(k) "Welfare Benefit Fund" means an organization described in paragraph (7),
(9), (17) or (20) of Code section 501(c), a trust, corporation or other
organization not exempt from federal income tax, or to the extent provided
in Treasury Regulations, any account held for an employer by any person,
which is part of a plan of an employer through which the employer provides
benefits to employees or their beneficiaries, other than a benefit to
which Code sections 83(h), 404 (determined without regard to section
404(b)(2)) or 404A applies, or to which an election under Code section 463
applies.
10.3 GENERAL LIMITATION
The Annual Addition of a Participant for any Limitation Year shall not exceed
the Maximum Annual Addition. If, except for the application of this Section,
the Annual Addition of Participant for any Limitation Year would exceed the
Maximum Annual Addition, the excess Annual Addition attributable to this Plan
will not be allocated to the Participant's Account for the Plan Year included in
such Limitation Year, but will be subject to the provisions of Section 10.4.
The limitations contained in this Article will apply on an aggregate basis to
all Defined Contribution Plans and all Defined Benefit Plans (whether or not any
of such plans have terminated) established by the Employers.
10.4 EXCESS ALLOCATIONS
(a) Participants Covered by One Defined Contribution Plan. If the Participant
is not covered under another Defined Contribution Plan or a Welfare
Benefit Fund maintained by the Controlled Group during the Limitation Year
and the amount otherwise allocable to his Account would exceed the Maximum
Annual Addition, the Employer contributions and forfeitures which would
cause the Participant's Annual Addition to exceed the Maximum Annual
Addition will be successively allocated in the manner described in Section
4.2 among the Accounts of eligible Participants whose Annual Additions do
not exceed the Maximum Annual Addition. If, after such allocations have
been made, there remain Employer contributions or forfeitures which cannot
be allocated without causing the Annual Addition of a Participant to
exceed the Maximum Annual Addition, the forfeitures which cause the Annual
Addition to exceed the Maximum Annual Addition and the Employer
contributions which result from a reasonable error in estimating the
Participant's Includable Compensation or from any other limited facts and
circumstances which the Commissioner of Internal Revenue finds justifiable
under section 1.415-6(b)(6) of the Treasury Regulations and which cause
the Participant's Annual Addition to exceed the Maximum Annual Addition
will be held in a suspense account in the Trust Fund to be carried forward
and allocated in subsequent Limitation Years as provided in Section 4.2.
Such suspense account will not participate in the allocation of the net
income or net loss of the Trust Fund.
(b) Participants Covered by Two or More Defined Contribution Plans. If, in
addition to this Plan, the Participant is covered under another Defined
Contribution Plan or a Welfare Benefit Fund maintained by an Employer
during the Limitation Year, the following provisions will apply. The
Annual Addition which may be credited to a Participant's Account under
this Plan for any such Limitation Year will not exceed the Maximum Annual
Addition reduced by the Annual Addition credited to a Participant's
accounts under the other Defined Contribution Plans and Welfare Benefit
Funds for the same Limitation Year. If the Annual Addition with respect
to the Participant under the other Defined Contribution Plans and Welfare
Benefit Funds maintained by an Employer is less than the Maximum Annual
Addition and the Employer contribution that would otherwise be contributed
or allocated to the Participant's Account under this Plan would cause the
Annual Addition for the Limitation Year to exceed the Maximum Annual
Addition, the amount to be contributed or allocated to the Participant's
Account under this Plan will be reduced so that the Annual Addition under
all such Defined Contribution Plans and Welfare Benefit Funds for the
Limitation Year will equal the Maximum Annual Addition. If the aggregate
Annual Addition with respect to the Participant under such other Defined
Contribution Plans and Welfare Benefit Funds is equal to or greater than
the Maximum Annual Addition, no amount will be contributed or allocated to
the Participant's
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Account under this Plan for the Limitation Year. An excess Annual
Addition will be reduced in the manner described in subsection (c).
(c) Reduction of Excess Allocations. As soon as is administratively feasible
after the end of the Limitation Year, the Maximum Annual Addition for the
Limitation Year will be determined on the basis of the Participant's
Includable Compensation for the Limitation Year. If a Participant's
Annual Addition under this Plan and the other Defined Contribution Plans
and Welfare Benefit Funds maintained by Employers would result in the
Annual Addition exceeding the Maximum Annual Addition for the Limitation
Year, the excess amount will be deemed to consist of the Annual Addition
last allocated. In making this determination, the Annual Addition
attributable to a Welfare Benefit Fund will be deemed to have been
allocated first regardless of the actual date of allocation. If an excess
amount was allocated to a Participant on an allocation date of this Plan
that coincides with an allocation date of another plan, the excess amount
attributed to this Plan will be the product of (i) the total excess amount
allocated as of such date and (ii) the ratio of the Annual Addition
allocated to the Participant for the Limitation Year as of such date under
this Plan to the total Annual Addition allocated to the Participant for
the Limitation Year as of such date under this and all the other Defined
Contribution Plans. Any excess amount attributed to this Plan will be
disposed of in the manner described in subsection (a).
10.5 AGGREGATE BENEFIT LIMITATION
If the Controlled Group maintains, or at any time maintained, one or more
Defined Benefit Plans covering any Participant in this Plan, the sum of the
Defined Benefit Fraction and the Defined Contribution Fraction for any
Limitation Year will equal no more than one (1.0). The provisions of the
Defined Benefit Plans will govern the order of reduction of Annual Additions or
benefit accruals necessary to meet this limitation. If the provisions of the
Defined Benefit Plans are silent, the current Annual Addition under this Plan
will be reduced first, and then the rate of accrual under the Defined Benefit
Plans will be reduced, if necessary to meet this limitation. If the Defined
Contribution Plans taken into account in determining the Participant's Annual
Addition under this Article satisfied the requirements of Code section 415 as in
effect for all Limitation Years beginning before January 1, 1987, an amount will
be subtracted from the numerator of the Defined Contribution Fraction (not
exceeding such numerator) as prescribed by the Secretary of the Treasury so that
the sum of the Defined Contribution Fraction and the Defined Benefit Fraction
does not exceed one (1.0). For purposes of this Section, a Participant's
voluntary nondeductible contributions to a Defined Benefit Plan will be treated
as being part of a separate Defined Contribution Plan.
10.6 AGGREGATION OF PLANS
For purposes of this Article, all Defined Benefit Plans ever maintained by an
Employer will be treated as one Defined Benefit Plan, and all Defined
Contribution Plans ever maintained by an Employer will be treated as one Defined
Contribution Plan.
ARTICLE 11 - RESTRICTIONS ON DISTRIBUTIONS TO PARTICIPANTS AND BENEFICIARIES
11.1 PRIORITY OVER OTHER DISTRIBUTION PROVISIONS
The provisions set forth in this Article will supersede any conflicting
provisions of Article 6 or Article 7.
11.2 RESTRICTIONS ON COMMENCEMENT OF DISTRIBUTIONS
The provisions of this Section will apply to restrict the Committee's ability to
delay the commencement of distributions. Unless a Participant elects otherwise
in writing, distribution of the Participant's vested interest in his Account
will begin no later than the 60th day after the close of the Plan Year in which
occurs the latest of (i) the date on which the Participant attains age 65, (ii)
the tenth anniversary of the Plan Year in which the Participant began
participation in the Plan, or (iii) the Participant's termination of employment.
11.3 RESTRICTIONS ON DELAY OF DISTRIBUTIONS
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Notwithstanding any other provision of the plan, the following provisions will
apply to limit a Participant's ability to delay the distribution of benefits.
Distribution of a Participant's entire vested and nonforfeitable interest will
be made or commence not later than April 1 following the calendar year in which
he attains age 70-1/2.
11.4 LIMITATION TO ASSURE BENEFITS PAYABLE TO BENEFICIARIES ARE INCIDENTAL
Under any distribution option, the present value of payments projected to be
paid to a Participant (or to the Participant and his spouse, if his spouse is
the Beneficiary) will be more than 50% of the present value of the total
benefit.
11.5 RESTRICTIONS IN THE EVENT OF DEATH
Upon the death of a Participant, the following distribution provisions will
apply to limit the Beneficiary's ability to delay distributions. If the
Participant dies after distribution of his benefit has begun, the remaining
portion of his benefit will continue to be distributed at least as rapidly as
under the method of distribution being used prior to the Participant's death;
but if he dies before distribution of his benefit commences, his entire benefit
will be distributed no later than five years after his death, unless an
individual who is a designated Beneficiary elects to receive distributions in
substantially equal installments over the Beneficiary's life or life expectancy
beginning no later than one year after the Participant's death. If the
designated Beneficiary is the Participant's surviving spouse, the date
distributions are required to begin will not be earlier than the date on which
the Participant would have attained age 70-1/2, and, if the spouse dies before
payments begin, subsequent distributions will be made as if the spouse had been
the Participant. Any amount paid to a child of the Participant will be treated
as if it had been paid to the surviving spouse if the amount becomes payable to
the surviving spouse when the child reaches the age of majority.
11.6 COMPLIANCE WITH REGULATIONS
Distributions under the Plan to Participants or Beneficiaries shall be made in
accordance with Treasury Regulations issued under Code section 401(a)(9).
11.7 DELAYED PAYMENTS
If the amount of a distribution required to begin on a date determined under the
applicable provisions of the Plan cannot be ascertained by such date, or if it
is not possible to make such payment on such date because the Committee has been
unable to locate a Participant or Beneficiary after making reasonable efforts to
do so, a payment retroactive to such date may be made no later than 60 days
after the earliest date on which the amount of such payment can be ascertained
or the date on which the Participant or Beneficiary is located (whichever is
applicable).
ARTICLE 12 - TOP-HEAVY PROVISIONS
12.1 PRIORITY OVER OTHER PLAN PROVISIONS
If the Plan is or becomes a Top-Heavy Plan in any Plan Year, the provisions of
this Article will supersede any conflicting provisions of the Plan. However,
the provisions of this Article will not operate to increase the rights or
benefits of Participants under the Plan except to the extent required by Code
section 416 and other provisions of law applicable to Top-Heavy Plans.
12.2 DEFINITIONS USED IN THIS ARTICLE
The following words and phrases, when used with initial capital letters, will
have the meanings set forth below.
(a) "Defined Benefit Dollar Limitation" means the limitation described in
Section 10.2(b).
(b) "Defined Benefit Plan" means the Qualified Plan described in Section
10.2(d).
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(c) "Defined Contribution Dollar Limitation" means the limitation described in
Section 10.2(e).
(d) "Defined Contribution Plan" means the Qualified Plan described in Section
10.2(g).
(e) "Determination Date" means for the first Plan Year of the Plan the last
day of the Plan Year and for any subsequent Plan Year the last day of the
preceding Plan Year.
(f) "Determination Period" means the Plan Year containing the Determination
Date and the four preceding Plan Years.
(g) "Includable Compensation" means the compensation described in Section
1.21.
(h) "Key Employee" means any Employee or former Employee (and the Beneficiary
of a deceased Employee) who at any time during the Determination Period
was (i) an officer of an Employer, if such individual's Includable
Compensation exceeds 1.5 times the Defined Contribution Dollar Limitation,
(ii) an owner (or considered an owner under Code section 318) of one of
the 10 largest interests in an Employer, if such individual's Includable
Compensation exceeds the Defined Contribution Dollar Limitation, (iii) a
5% owner of an Employer, or (iv) a 1% owner of an Employer who has annual
Includable Compensation of more than $150,000. The determination of who
is a Key Employee will be made in accordance with Code section 416(i).
"Non-Key Employee" means any Employee or former Employee who is not a Key
Employee. Such term also includes a former Key Employee and the
Beneficiary of a Non-Key Employee in the event of his death.
(i) "Minimum Allocation" means the allocation described in the first sentence
of Section 12.4(a).
(j) "Permissive Aggregation Group" means the Required Aggregation Group of
Qualified Plans plus any other Qualified Plan or Qualified Plans of an
Employer which, when considered as a group with the Required Aggregation
Group, would continue to satisfy the requirements of Code sections
401(a)(4) and 410 (including simplified employee pension plans).
(k) "Present Value" means present value based only on the interest and
mortality rates specified in a Defined Benefit Plan.
(l) "Required Aggregation Group" means the group of plans consisting of (i)
each Qualified Plan (including simplified employee pension plans) of an
Employer in which at least one Key Employee participates, and (ii) any
other Qualified Plan (including simplified employee pension plans) of an
Employer which enables a Qualified Plan to meet the requirements of Code
sections 401(a)(4) or 410.
(m) "Top-Heavy Plan" means the Plan for any Plan Year in which any of the
following conditions exists: (i) if the Top-Heavy Ratio for the Plan
exceeds 60% and the Plan is not a part of any Required Aggregation Group
or Permissive Aggregation Group of Qualified Plans; (ii) if the Plan is a
part of a Required Aggregation Group but not part of a Permissive
Aggregation Group of Qualified Plans and the Top-Heavy Ratio for the
Required Aggregation Group exceeds 60%; or (iii) if the Plan is a part of
a Required Aggregation Group and part of a Permissive Aggregation Group of
Qualified Plans and the Top-Heavy Ratio for the Permissive Aggregation
Group exceeds 60%.
(n) "Top-Heavy Ratio" means a fraction, the numerator of which is the sum of
the Present Value of accrued benefits and the account balances (as
required by Code section 416)) of all Key Employees with respect to such
Qualified Plans as of the Determination Date (including any part of any
accrued benefit or account balance distributed during the five-year period
ending on the Determination Date), and the denominator of which is the sum
of the Present Value of the accrued benefits and the account balances
(including any part of any accrued benefit or account balance distributed
in the five-year period ending on the Determination Date) of all Employees
with respect to such Qualified Plans as of the Determination Date. The
value of account balances and the
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Present Value of accrued benefits will be determined as of the most recent
Top-Heavy Valuation Date that falls within or ends with the 12-month
period ending on the Determination Date, except as provided in Code
section 416 for the first and second Plan Years of a Defined Benefit Plan.
The account balances and accrued benefits of a participant who is a
Non-Key Employee but who was a Key Employee in a prior year will be
disregarded. The calculation of the Top-Heavy Ratio, and the extent to
which distributions, rollovers, transfers and contributions unpaid as of
the Determination Date are taken into account will be made in accordance
with Code section 416. Employee contributions described in Code section
219(e)(2) will not be taken into account for purposes of computing the
Top-Heavy Ratio. When aggregating plans, the value of account balances
and accrued benefits will be calculated with reference to the
Determination Dates that fall within the same calendar year. The accrued
benefit of any Employee other than a Key Employee will be determined under
the method, if any, that uniformly applies for accrual purposes under all
Qualified Plans maintained by all Employers and included in a Required
Aggregation Group or a Permissive Aggregation Group or, if there is no
such method, as if the benefit accrued not more rapidly than the slowest
accrual rate permitted under the fractional accrual rate of Code section
411(b)(1)(C). Notwithstanding the foregoing, the account balances and
accrued benefits of any Employee who has not performed services for an
employer maintaining any of the aggregated plans during the five-year
period ending on the Determination Date will not be taken into account for
purposes of this subsection.
(o) "Top-Heavy Valuation Date" means the last day of each Plan Year.
12.3 COMPENSATION TAKEN INTO ACCOUNT
For any Plan Year in which the Plan is a Top-Heavy Plan, the amount of each
Participant's Includable Compensation taken into account for purposes of
determining allocations under the Plan will not exceed the first $200,000 (or
such larger amount as may be prescribed by the Secretary of the Treasury or his
delegate) of such Participant's Includable Compensation for such Plan Year.
12.4 MINIMUM ALLOCATION
(a) Calculation of Minimum Allocation. For any Plan Year in which the Plan is
a Top-Heavy Plan, each Participant who is a Non-Key Employee will receive
an allocation of Employer contributions and forfeitures of not less than
the lesser of 3% of his Includable Compensation for such Plan Year or, in
the event that the Employers maintain no Defined Benefit Plan which covers
a Participant in this Plan, the percentage of Includable Compensation that
equals the largest percentage of Employer contributions and forfeitures
allocated to a Key Employee expressed as a percentage of the first
$200,000 of Includable Compensation received by such Key Employee in that
Plan Year. The Minimum Allocation is determined without regard to any
Social Security contribution. The Minimum Allocation applies even though
under other Plan provisions the Participant would not otherwise be
entitled to receive an allocation, or would have received a lesser
allocation for the Plan Year because (i) the Non-Key Employee fails to
make mandatory contributions to the Plan, (ii) the Non-Key Employee's
Compensation is less than a stated amount, or (iii) the Non-Key Employee
fails to complete 1,000 Hours of Service in the Plan Year. If the largest
percentage allocated to a Key Employee for a Plan Year in which the Plan
is a Top-Heavy Plan is less than 3%, amounts contributed as a result of a
salary reduction agreement shall be included in determining contributions
made on behalf of Key Employees.
(b) Limitation on Minimum Allocation. No Minimum Allocation will be provided
pursuant to subsection (a) to a Participant who is not employed by an
Employer on the last day of the Plan Year.
(c) Minimum Allocation When Participant is Covered by Another Qualified Plan.
If an Employer maintains one or more other Defined Contribution Plans
covering Employees who are Participants in this Plan, the Minimum
Allocation will be provided under this Plan, unless such other Defined
Contribution Plans make explicit reference to this Plan and provide that
the Minimum Allocation will not be provided under this Plan, in which case
the provisions of subsection (a) will not apply to any Participant covered
under such other
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Defined Contribution Plans. If an Employer maintains one or more Defined
Benefit Plans covering Employees who are Participants in this Plan, and
such Defined Benefit Plans provide that Employees who are participants
therein will accrue the minimum benefit applicable to top-heavy Defined
Benefit Plans notwithstanding their participation in this Plan (making
explicit reference to this Plan), then the provisions of subsection (a)
will not apply to any Participant covered under such Defined Benefit
Plans. If an Employer maintains one or more Defined Benefit Plans
covering Employees who are Participants in this Plan, and the provisions
of the preceding sentence do not apply, then each Participant who is a
Non-Key Employee and who is covered by such Defined Benefit Plans will
receive a Minimum Allocation determined by applying the provisions of
subsection (a) with the substitution of "5%" in each place that "3%"
occurs therein.
(d) Nonforfeitability. The Participant's Minimum Allocation required under
this Section, to the extent required to be nonforfeitable under Code
section 416(b) and the special vesting schedule provided in this Article,
may not be forfeited under Code section 411(a)(3)(B) (relating to
suspension of benefits on reemployment) or 411(a)(3)(D) (relating to
withdrawal of mandatory contributions).
12.5 MODIFICATION OF AGGREGATE BENEFIT LIMIT
(a) Modification. Subject to the provisions of subsection (b), in any Plan
Year in which the Top-Heavy Ratio exceeds 60%, the aggregate benefit limit
described in Article 10 will be modified by substituting "100%" for "125%"
in Sections 10.2 (c) and (f).
(b) Exception. The modification of the aggregate benefit limit described in
subsection (a) will not be required if the Top-Heavy Ratio does not exceed
90% and one of the following conditions is met: (i) Employees who are
Non-Key Employees do not participate in both a Defined Benefit Plan and a
Defined Contribution Plan which are in the Required Aggregation Group, and
the Minimum Allocation requirements of Section 12.4(a) are met when such
requirements are applied with the substitution of "4%" for "3%"; (ii) The
Minimum Allocation requirements of Section 12.4(c) are met when such
requirements are applied with the substitution of "7-1/2%" for "5%"; or
(iii) Employees who are Non-Key Employees accrue a benefit for such Plan
Year of not less than 3% of their average Includable Compensation for the
five consecutive Plan Years in which they had the highest Includable
Compensation (not to exceed a total such benefit of 30%), expressed as a
life annuity commencing at the Participant's normal retirement age in a
Defined Benefit Plan which is in the Required Aggregation Group.
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12.6 MINIMUM VESTING
(a) Required Vesting. For any Plan Year in which this Plan is a Top-Heavy
Plan, the minimum vesting schedule set forth in subsection (b) will
automatically apply to the Plan to the extent it provides a higher vested
percentage than the regular vesting schedule set forth in Article 5. The
minimum vesting schedule applies to all Account balances including amounts
attributable to Plan Years before the effective date of Code section 416
and amounts attributable to Plan Years before the Plan became a Top-Heavy
Plan. Further, no reduction in vested Account balances may occur in the
event the Plan's status as a Top-Heavy Plan changes for any Plan Year, and
any change in the effective vesting schedule from the schedule set forth
in subsection (b) to the regular schedule set forth in Article 5 will be
treated as an amendment subject to Section 14.1(iii). However, this
subsection does not apply to the Account balances of any Employee who does
not have an Hour of Service after the Plan has initially become a
Top-Heavy Plan, and such Employee's Account balances will be determined
without regard to this Section.
(b) Minimum Vesting Schedule.
Percentage Vested
Years of Service and Nonforfeitable
Less than 2 0
2 but less than 3 20
3 but less than 4 40
4 but less than 5 60
5 but less than 6 80
6 or more 100
ARTICLE 13 - ADOPTION OF PLAN BY CONTROLLED GROUP MEMBERS
13.1 ADOPTION PROCEDURE
Any Controlled Group Member may become an Employer under the Plan provided that
(i) the Board or Administrative Committee approves the adoption of the Plan by
the Controlled Group Member and designates the Controlled Group Member as an
Employer; (ii) the Controlled Group Member adopts the Plan and Trust Agreement
together with all amendments then in effect by appropriate resolutions of the
board of directors of the Controlled Group Member; and (iii) the Controlled
Group Member by appropriate resolutions of its board of directors agrees to be
bound by any other terms and conditions which may be required by the Board or
Administrative Committee, provided that such terms and conditions are not
inconsistent with the purposes of the Plan.
13.2 EFFECT OF ADOPTION BY CONTROLLED GROUP MEMBER
A Controlled Group Member that adopts the Plan pursuant to this Article will be
deemed to be an Employer for all purposes hereunder, unless otherwise specified
in the resolutions of the Board or Administrative Committee designating the
Controlled Group Member as an Employer. In addition, the Board or
Administrative Committee may provide, in its discretion and by appropriate
resolutions, that the Employees of the Controlled Group Member will receive
credit for their employment with the Controlled Group Member prior to the date
it became a Controlled Group Member for purposes of determining either or both
the eligibility of such Employees to participate in the Plan and the vested and
nonforfeitable interest of such Employees in their Account balances provided
that such credit will be applied in a uniform and nondiscriminatory manner with
respect to all such Employees.
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ARTICLE 14 - AMENDMENT OF THE PLAN
14.1 RIGHT OF COMPANY TO AMEND PLAN
The Company reserves the right to amend the Plan at any time and from time to
time to the extent it may deem advisable or appropriate, provided that (i) no
amendment will increase the duties or liabilities of the Trustee without its
written consent; (ii) no amendment will cause a reversion of Plan assets to the
Employers not otherwise permitted under the Plan; (iii) no amendment will have
the effect of reducing the percentage of the vested and nonforfeitable interest
of any Participant in his Account nor will the vesting provisions of the Plan be
amended unless each Participant with at least five Years of Service (including
Years of Service disregarded pursuant to the reemployment provisions of Article
5) is permitted to elect to continue to have the prior vesting provisions apply
to him, within 60 days after the latest of the date on which the amendment is
adopted, the date on which the amendment is effective, or the date on which the
Participant is issued written notice of the amendment; and (iv) no amendment
will be effective to the extent that it has the effect of decreasing a
Participant's Account balance or eliminating an optional form of distribution as
it applies to an existing Account balance in accordance with Code section
411(d)(6).
14.2 AMENDMENT PROCEDURE
Any amendment to the Plan will be made only pursuant to action of the Board or
Administrative Committee. A certified copy of the resolutions adopting any
amendment and a copy of the adopted amendment as executed by the Company will be
delivered to the Committee and to the Trustee. Upon such action by the Board or
Administrative Committee, the Plan will be deemed amended as of the date
specified as the effective date by such Board or Administrative Committee action
or in the instrument of amendment. The effective date of any amendment may be
before, on or after the date of such Board or Administrative Committee action.
14.3 EFFECT ON EMPLOYERS
Unless an amendment expressly provides otherwise, all Employers will be bound by
any amendment to the Plan.
ARTICLE 15 -TERMINATION, PARTIAL TERMINATION AND COMPLETE DISCONTINUANCE OF
CONTRIBUTIONS
15.1 CONTINUANCE OF PLAN
The Employers expect to continue the Plan indefinitely, but they do not assume
an individual or collective contractual obligation to do so, and the right is
reserved to the Company, by action of the Board, to terminate the Plan or to
completely discontinue contributions thereto at any time. In addition, subject
to remaining provisions of this Article, any Employer at any time may
discontinue its participation in the Plan with respect to its Employees.
15.2 COMPLETE VESTING
If the Plan is terminated, or if there is a complete discontinuance of
contributions to the Plan by the Employers, the amounts allocated or to be
allocated to the Accounts of all affected Participants will become 100% vested
and nonforfeitable without regard to their Years of Service. For purposes of
this Section, a Participant who has terminated employment and is not again an
Employee at the time that either the Plan is terminated or there is a complete
discontinuance of Employer contributions will not be an affected Participant
entitled to full vesting if the Participant either had no vested interest in his
Account balance attributable to Employer contributions at his termination of
employment or had received a distribution of his entire account balance. In the
event of a partial termination of the Plan, the amounts allocable to the
Accounts of those Participants who cease to participate on account of the facts
and circumstances which result in the partial termination will become 100%
vested and nonforfeitable without regard to their Years of Service.
15.3 DISPOSITION OF THE TRUST FUND
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If the Plan is terminated, or if there is a complete discontinuance of
contributions to the Plan, the Committee will instruct the Trustee either (i) to
continue to administer the Plan and pay benefits in accordance with the Plan
until the Trust Fund has been depleted, or (ii) to distribute the assets
remaining in the Trust Fund. If the Trust Fund is to be distributed, the
Committee will make, after deducting estimated expenses for termination of the
Trust Fund and distribution of its assets, the allocations required under the
Plan as though the date of completion of the Trust Fund termination were a
Valuation Date. The Trustee will distribute to each Participant the amount
credited to his Account as of the date of completion of the Trust Fund
termination.
15.4 DISPOSITION OF COMPANY STOCK LOANS AT TERMINATION
If, at the date of termination of the Plan, the Plan remains indebted with
respect to a Company Stock Loan, the Committee may instruct the Trustee, prior
to making the final Plan allocations, to pay the accrued principal and interest
and to repay the remaining principal balance of the Company Stock Loan with the
shares of Company Stock held in the Loan Suspense Account or with the proceeds
of a sale or other disposition of such Company Stock. If any assets remain in
the Loan Suspense Account after all Company Stock Loans have been fully
discharged, such assets will be allocated as income of the Trust Fund for the
Plan Year in which the Plan terminates.
15.5 WITHDRAWAL BY AN EMPLOYER
An Employer may withdraw from participation in the Plan or completely
discontinue contributions to the Plan only with the approval of the Board. If
any Employer withdraws from the Plan or completely discontinues contributions to
the Plan, a copy of the resolutions of the board of directors of the Employer
adopting such action, certified by the secretary of such board of directors and
reflecting approval by the Board, will be delivered to the Committee as soon as
it is administratively feasible to do so, and the Committee will communicate
such action to the Trustee and to the Employees of the Employer.
ARTICLE 16 - MISCELLANEOUS
16.1 REVERSION PROHIBITED
(a) General Rule. Except as provided in subsections (b), (c) and (d), it will
be impossible for any part of the Trust Fund either (i) to be used for or
diverted to purposes other than those which are for the exclusive benefit
of Participants and their Beneficiaries (except for the payment of taxes
and administrative expenses), or (ii) to revert to a Controlled Group
Member.
(b) Disallowed Contributions. Each contribution of the Employers under the
Plan is expressly conditioned upon the deductibility of the contribution
under Code section 404. If all or part of an Employer's contribution is
disallowed as a deduction under Code section 404, such disallowed amount
(reduced by any Trust Fund losses attributable thereto) may be returned by
the Trustee to the Employer with respect to which the deduction was
disallowed (upon the direction of the Committee) within one year after the
disallowance.
(c) Mistaken Contributions. If a contribution is made by an Employer by
reason of a mistake of fact, then so much of the contribution as was made
as a result of the mistake (reduced by any Trust Fund losses attributable
thereto) may be returned by the Trustee to the Employer (upon direction of
the Committee) within one year after the mistaken contribution was made.
(d) Failure to Qualify. In the event the Internal Revenue Service determines
that the Plan and the Trust Agreement, as amended by amendments acceptable
to the Company, initially fail to constitute a qualified plan and
establish a tax-exempt trust under the Code, then notwithstanding any
other provisions of the Plan or the Trust Agreement, the contributions
made by the Employers prior to the date of such determination shall be
returned to the Employers and the Plan and Trust Agreement shall
terminate.
16.2 BONDING, INSURANCE AND INDEMNITY
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(a) Bonding. To the extent required under ERISA, the Employers will obtain,
pay for and keep current a bond or bonds with respect to each Committee
member and each Employee who receives, handles, disburses, or otherwise
exercises custody or control of, any of the assets of the Plan.
(b) Insurance. The Employers, in their discretion, may obtain, pay for and
keep current a policy or policies of insurance, insuring the Committee
members, the members of the board of directors of each Employer and other
Employees to whom any fiduciary responsibility with respect to the
administration of the Plan has been delegated against any and all costs,
expenses and liabilities (including attorneys' fees) incurred by such
persons as a result of any act, or omission to act, in connection with the
performance of their duties, responsibilities and obligations under the
Plan and any applicable law.
(c) Indemnity. If the Employers do not obtain, pay for and keep current the
type of insurance policy or policies referred to in subsection (b), or if
such insurance is provided but any of the parties referred to in
subsection (b) incur any costs or expenses which are not covered under
such policies, then the Employers will indemnify and hold harmless, to the
extent permitted by law, such parties against any and all costs, expenses
and liabilities (including attorneys' fees) incurred by such parties in
performing their duties and responsibilities under this Plan, provided
that such party or parties were acting in good faith within what was
reasonably believed to have been the best interests of the Plan and its
Participants.
16.3 MERGER, CONSOLIDATION OR TRANSFER OF ASSETS
There will be no merger or consolidation of all or any part of the Plan with, or
transfer of the assets or liabilities of all or any part of the Plan to, any
other Qualified Plan unless each Participant who remains a Participant hereunder
and each Participant who becomes a participant in the other Qualified Plan would
receive a benefit immediately after the merger, consolidation or transfer
(determined as if the other Qualified Plan and the Plan were then terminated)
which is equal to or greater than the benefit they would have been entitled to
receive under the Plan immediately before the merger, consolidation or transfer
if the Plan had then terminated.
16.4 SPENDTHRIFT CLAUSE
The rights of any Participant or Beneficiary to and in any benefits under the
Plan will not be subject to assignment or alienation, and no Participant or
Beneficiary will have the power to assign, transfer or dispose of such rights,
nor will any such rights to benefits be subject to attachment, execution,
garnishment, sequestration, the laws of bankruptcy or any other legal or
equitable process. This Section will not apply to a "qualified domestic
relations order". A "qualified domestic relations order" means a judgment,
decree or order made pursuant to a state domestic relations law which satisfies
the requirements of Code section 414(p).
16.5 RIGHTS OF PARTICIPANTS
Participation in the Plan will not give any Participant the right to be retained
in the employ of any member of the Controlled Group or any right or interest in
the Plan or the Trust Fund except as expressly provided herein.
16.6 GENDER, TENSE AND HEADINGS
Whenever any words are used herein in the masculine gender, they will be
construed as though they were also used in the feminine gender in all cases
where they would so apply. Whenever any words used herein are in the singular
form, they will be construed as though they were also used in the plural form in
all cases where they would so apply. Headings of Articles, Sections and
subsections as used herein are inserted solely for convenience and reference and
constitute no part of the Plan.
16.7 GOVERNING LAW
The Plan will be construed and governed in all respects in accordance with
applicable federal law and, to the extent not preempted by such federal law, in
accordance with the laws of the State of Idaho.
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ARTICLE 17 - QUALIFIED PLAN REVERSIONS
17.1 APPLICATION OF ARTICLE
This Article will apply to any Employer Reversion Contribution received by the
Plan.
17.2 DEFINITIONS USED IN THIS ARTICLE
The following words and phrases, when used with initial capital letters, will
have the meanings set forth below.
(a) "Employer Reversion Contribution" means any amounts received by the Plan
from a Terminated Plan to the extent that if such amounts had been
received by the Company, such amounts would have constituted an Employer
Reversion.
(b) "Employer Reversion" means an amount of cash and the fair market value of
other property that could be received (directly or indirectly) by the
Company from a Terminated Plan; provided, however, that the term Employer
Reversion will not include (i) amounts distributed from a Terminated Plan
to or on behalf of an Employee if such amounts could have been distributed
prior to the termination of the Plan without violating any provision of
section 401 of the Code, or (ii) any distribution from a Terminated Plan
to the Employer which is permitted under section 401(a)(2) of the Code (A)
by reason of a mistake of fact, or (B) by reason of the failure of the
plan to initially qualify under section 401 of the Code or the failure of
contributions to be deductible under section 404 of the Code.
(c) "Terminated Plan" means a defined benefit plan sponsored by the Company
that was qualified under section 401 of the Code and was terminated by the
Company.
17.3 INVESTMENT IN COMPANY STOCK
Within 90 days after the receipt of an Employer Reversion Contribution (or such
longer period as may be prescribed or permitted by the Internal Revenue
Service), the Trustee will invest the amount received in Company Stock, or use
the amount received to repay Company Stock Loans. Company Stock acquired with
an Employer Reversion Contribution and Company Stock released from a Loan
Suspense Account as a result of the repayment of all or a portion of a Company
Stock Loan with funds received as an Employer Reversion Contribution will remain
in the Trust Fund until distribution to Participants or their Beneficiaries in
accordance with the provisions of Article 6 or Article 7 of the Plan, provided
that any shares of Company Stock remaining in the Reversion Suspense Account
upon the earlier of the termination of the Plan or upon the final allocation of
Company Stock from the Reversion Suspense Account pursuant to Section 17.4, if
any, shall revert to the Company.
-34-
<PAGE>
17.4 RELEASE OF SHARES FROM REVERSION SUSPENSE ACCOUNTS
The Trustee will establish a separate Reversion Suspense Account for shares of
Company Stock acquired with the proceeds of each Employer Reversion
Contribution.
(a) (1) Dividends on Reversion Suspense Account Shares. Any dividends
(including stock dividends) received by the Trustee on shares of
Company Stock held in a Reversion Suspense Account will be accounted
for separately from other assets of the Trust Fund and will be
allocated to Participants' Accounts in proportion to their Account
balances. At the direction of the Committee, within 90 days after
the end of the Plan Year in which such dividends are received by the
Trustee, the Trustee will distribute the cash dividends to the
Participants from their Accounts. Notwithstanding the foregoing,
dividends payable pursuant to this subsection (a) will not be
distributed to any Participant who has terminated employment with an
Employer but has not received a distribution of the vested portion
of his Account balance pursuant to Article 6.
(2) Dividends on Reversion Suspense Account Shares After December 31,
1989. Commencing on the later of January 1, 1990 or the effective
date of Section 3.5(a) hereof, any dividends (including stock
dividends) received by the Trustee on shares of Company Stock held
in a Reversion Suspense Account will be accounted for separately
from other assets of the Trust Fund and shall be allocated to the
account of each active Participant who makes salary deferral
contributions under the Savings Plan and which are invested in the
Restricted Company Stock Fund under such plan. Such dividends shall
be allocated to Participants' Accounts in proportion to their
Account balances. At the direction of the Committee, within 90 days
after the end of the Plan Year in which such dividends are received
by the Trustee, the Trustee will distribute the cash dividends to
the Participants from their Accounts.
(b) Allocation of Shares. Except as otherwise required by Section 3.5,
Company Stock held in a Reversion Suspense Account will be released from
the Reversion Suspense Account and allocated to the Accounts of
Participants at the direction of the Committee in the manner provided in
Section 4.2. For the Plan Year in which the Employer Reversion
Contribution is made, the amount allocated to Participants' Accounts will
not be less than the lesser of: (i) the maximum amount allowable under
section 415 of the Code; or (ii) one-eighth (1/8) of the Company Stock
held in the Reversion Suspense Account. Company Stock held in a Reversion
Suspense Account which is not allocated to Participants' Accounts for the
Plan Year in which the Employer Reversion Contribution is made will be
allocated to Participants' Accounts no less rapidly than ratably over a
period not to exceed seven years at the discretion of the Committee.
Notwithstanding the foregoing, if the Committee so directs or the Code so
requires, Company Stock held in a Reversion Suspense Account will be
released from the Reversion Suspense Account more rapidly than the
procedure described above.
(c) Limitation on Additional Employer Contributions. Notwithstanding any
other provision of this Plan, for any Plan Year in which Company Stock is
held in a Reversion Suspense Account no Employer contribution will be made
for such Plan Year to the extent that the allocation of amounts in the
Reversion Suspense Account together with the allocation of such Employer
contribution would exceed the maximum limitations under Code section
415(c).
17.5 ALLOCATIONS TREATED AS EMPLOYER CONTRIBUTIONS
To the extent that shares of Company Stock are released from a Reversion
Suspense Account and allocated to Participants' Accounts, an amount not to
exceed the value of such shares at the time they were credited to the Reversion
Suspense Account will be treated as an Annual Addition for purposes of Article
10 of the Plan and section 415(c) of the Code.
-35-
<PAGE>
17.6 LIMITED APPLICATION
This Article 17 will apply only under circumstances where at least 50% of the
participants in the Terminated Plan are Participants in this Plan as of the
close of the first Plan Year for which an allocation of Company Stock is
required under this Article 17. This Article 17 will apply only to transfers of
cash or other property made (i) before January 1, 1989, or (ii) after December
31, 1988, pursuant to a termination which occurs after March 31, 1985, and
before January 1, 1989.
- 36 -
<PAGE>
Exhibit 5.1
MORRISON KNUDSEN CORPORATION
MORRISON KNUDSEN CORPORATION
P. O. BOX 73/BOISE, IDAHO U.S.A. 83729
PHONE: (208)386-5395/TELEX:368439
FAX: (208)386-6421
DAVID A. CHANNER
ASSOCIATE GENERAL COUNSEL
November 18, 1994
Morrison Knudsen Corporation
Morrison Knudsen Plaza
Boise, ID 83707
RE: POST-EFFECTIVE AMENDMENT TO FORM S-8 REGISTRATION STATEMENT NO. 33-32415
RELATING TO THE MORRISON KNUDSEN CORPORATION SAVINGS PLAN AND
THE MORRISON KNUDSEN CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN
Ladies and Gentlemen:
I refer to the Post-Effective Amendment No. 3 to the registration statement on
Form S-8 Registration Statement No. 33-32415 (the "Registration Statement")
filed by Morrison Knudsen Corporation, a Delaware corporation ("MK"), with the
Securities and Exchange Commission today under the Securities Act of 1933, as
amended, relating to $100,000,000 of interests in the Morrison Knudsen
Corporation Savings Plan (the "Plan") and 2,300,000 shares of common stock,
$1.66-2/3 par value, of MK ("MK Common Stock"), to be acquired and allocated
under the Plan. This opinion relates to the interests of the Plan and the
shares of MK Common Stock covered by the Registration Statement (the "Subject
Securities").
I am associate general counsel for MK and as such have acted as counsel to MK in
connection with the preparation of the Registration Statement. As such counsel,
it is my opinion that MK Common Stock acquired and allocated to Plan
participants pursuant to this Plan will be validly issued, fully paid and
nonassessable. Further, it is my opinion that the interests in the Plan when
acquired by Plan participants will be duly authorized and issued in connection
with the Plan.
It is also my opinion that all changes to the Plan since it last received a
favorable determination letter from the Internal Revenue Service are consistent
and in compliance with the requirements applicable thereto under the Employee
Retirement Income Security Act of 1974, as amended.
<PAGE>
Morrison Knudsen Corporation
November 18, 1994
Page 2
In arriving at the foregoing opinions, I have examined and relied upon, and am
familiar with, originals or copies, certified or otherwise identified to my
satisfaction, of such documents, corporate records, certificates of officers of
MK and of public officials, and other instruments as I have deemed necessary or
appropriate for the purposes of the opinions set forth above.
I consent to the use of this opinion in the Registration Statement and to the
reference to me in the section captioned "Legal Matters" in the prospectus
constituting part of the Registration Statement.
Very truly yours,
/s/ David A. Channer
David A. Channer
DAC:smb
s:\smb\sec\sp-amd3.s8
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ William J. Agee
------------------------------------
William J. Agee
Chairman, President and
Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ William P. Clark
------------------------------------
William P. Clark
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ John Arrillaga
------------------------------------
John Arrillaga
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Lindsay E. Fox
------------------------------------
Lindsay E. Fox
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Christopher B. Hemmeter
------------------------------------
Christopher B. Hemmeter
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Peter S. Lynch
------------------------------------
Peter S. Lynch
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, her true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as her own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Irene C. Peden
------------------------------------
Irene C. Peden
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ John W. Rogers, Jr.
------------------------------------
John W. Rogers, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Gerard R. Roche
------------------------------------
Gerard R. Roche
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, a director or officer
or both, of Morrison Knudsen Corporation, a Delaware corporation (the
"Company"), does hereby appoint James F. Cleary, Jr., Stephen G. Hanks, and Mark
E. Howland, and each of them, jointly and severally, with full power of
substitution and resubstitution, his true and lawful attorneys-in-fact and
agents (with full power and authority to act alone) to do any and all acts and
things and to execute any and all instruments which said attorneys-in-fact and
agents, or any one of them, may deem necessary or advisable to enable the
Company to comply with the requirements of the Securities and Exchange
Commission (the "Commission") and any rules, regulations or requirements of any
other regulatory authority, whether federal, state or otherwise, in connection
with the filing under the Securities Act of 1933, as amended, of the any and all
amendments and post-effective amendments to the Company's Form S-8 Registration
Statement No. 33-32415 (collectively, the "Registration Statement"), relating to
the registration of interests in the Morrison Knudsen Corporation Savings Plan
and shares of Morrison Knudsen Corporation Common Stock, $1.66-2/3 par value, to
be acquired under said Plan, including specifically, but without limiting the
generality of the foregoing, the power and authority to sign for and on behalf
of the undersigned the name of the undersigned as officer and/or director of the
Company to the Registration Statement filed with the Commission and to any
instruments or documents filed as a part of, as an exhibit to, or in connection
with said Registration Statement; and the undersigned does hereby ratify and
confirm as his own act and deed all that said attorneys-in-fact and agents, and
each of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this 12th
day of August, 1994.
/s/ Zbigniew Brzezinski
--------------------------------------
Zbigniew Brzezinski
