As filed with the Securities and Exchange Commission on September 4, 1998
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
BERRY PETROLEUM COMPANY
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
77-0079387
(I.R.S. Employer Identification No.)
28700 Hovey Hills Road
P.O. Bin X
Taft, California 93268
(805) 769-8811
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Berry Petroleum Company Thrift Plan
(Full Title of the Plan)
JERRY V. HOFFMAN
Chairman of the Board,
President and Chief Executive Officer
28700 Hovey Hills Road
P.O. Bin X
Taft, California 93268
(805) 769-8811
(Address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Laura K. McAvoy, Esq.
Nordman, Cormany, Hair & Compton
1000 Town Center Drive, Sixth Floor
P.O. Box 9100
Oxnard, California 93031-9100
<PAGE> 2
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered per Share Price Fee
Interests 50,000 Shares $12.4688 (4) $623,440 (4) $ 183.92 (4)
Related to the Amount of Plan
Berry Petroleum Interests (1) (2)
Company Thrift
Plan
Rights to 50,000 Shares (3)
Purchase Shares
of Common Stock
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement covers an estimate of the amount of interests to
be offered or sold pursuant to the Berry Petroleum Company Thrift Plan
described herein. All shares covered by this Registration Statement
will be derived from shares purchased in the open market. No shares
for the Plan will be newly issued shares.
(2) This Registration Statement also covers such additional number of
shares, presently indeterminable, as may become issuable in the event
of stock dividends, stock splits, recapitalizations or other changes
in the Class A Common Stock.
(3) Includes Rights that could be purchased upon the occurrence of
certain events pursuant to the Berry Petroleum Company Rights Plan.
(4) Pursuant to Rule 457(c) and Rule 457(h), the maximum offering price
per share is a recent average of the high and low sales prices for the
Class A Common Stock as reported by the New York Stock Exchange of
$12.4688 per share.
2
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be included herein.
Item 2. Registrant Information and Employee Plan Annual
Information.
Not required to be included herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, for the fiscal year
ended December 31, 1997, as filed with the Securities and Exchange
Commission on or about March 11, 1998;
(b) The Registrant's Quarterly Reports on Form 10-Q, for the quarters
ended March 31, 1998 and June 30, 1998;
(c) The information under the caption "Item 1. Description of
Registrant's Securities to be Registered" on Pages 2 and 3 of the
Registrant's Registration Statement on Form 8-A which was declared
effective by the Securities and Exchange Commission on or about
October 20, 1987.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not required to be included herein.
Item 5. Interests of Named Experts and Counsel.
None.
3
<PAGE> 4
Item 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware (the "Delaware
GCL") provides that a director or officer of a corporation (i) shall be
indemnified by the corporation for all expenses of litigation or other legal
proceedings when he is successful in the merits, (ii) may be indemnified by
the corporation for the expenses, judgments, fines and amounts paid in
settlement of such litigation (other than a derivative suit) even if he is
not successful on the merits if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation (and, in the case of a criminal proceeding, had no reason to
believe his conduct was unlawful), and (iii) may be indemnified by the
corporation for expenses of a derivative suit (a suit by a shareholder
alleging a breach by a director or officer of a duty owed to the
corporation), even if he is not successful on the merits, if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, provided that no such indemnification
may be made in accordance with this clause (iii) if the director or officer
is adjudged liable to the corporation, unless a court determines that,
despite such adjudication but in view of all of the circumstances, he is
entitled to indemnification of such expenses. The indemnification described
in clauses (ii) and (iii) above shall be made only upon a determination by
(i) a majority of a quorum of disinterested directors, (ii) independent
legal counsel or (iii) the shareholders, that indemnification is proper
because the applicable standard of conduct is met. Expenses incurred by a
director or officer in defending an action may be advanced by the
corporation prior to the final disposition of such action upon receipt of an
undertaking by such director or officer to repay such expenses if it is
ultimately determined that he is not entitled to be indemnified in
connection with the proceeding to which the expenses relate.
As permitted by the Delaware GCL, the Registrant's Certificate of
Incorporation includes a provision eliminating, to the fullest extent
permitted, director liability for monetary damages for breaches of fiduciary
duty.
The Bylaws of the Registrant provide, in effect, that, to the extent
and under the circumstances permitted by Section 145 of the Delaware GCL,
the Registrant may indemnify any person who was or is a party or is
threatened to be made a party to any action, suit or proceeding of the type
described above by reason of the fact that he or she is or was a director,
officer, employee or agent of the Registrant or is or was serving at the
request of the Registrant as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including without limitation service with respect to employee benefit plans.
The Registrant has entered into, and may from time to time enter into,
a form of indemnity agreement (the "Indemnity Agreement") with each director
or officer designated by the Board of Directors, depending on the then
current status of directors' and officers' insurance coverage. The
Indemnity Agreement requires that the Registrant indemnify directors and
officers who are parties thereto in all cases to the fullest extent
permitted by applicable law. Under the Delaware GCL, except in the case of
litigation in
4
<PAGE> 5
which a director or officer is successful on the merits,
indemnification of a director or officer is discretionary rather than
mandatory. The Indemnity Agreement requires the Registrant to make prompt
payment of litigation expenses at the request of the director or officer in
advance of indemnification provided that he undertakes to repay the amounts
if it is ultimately determined that he is not entitled to indemnification
for such expenses and provided further that such advance shall not be made
if it is determined that the director or officer acted in bad faith or
deliberately breached his duty to the Registrant and its shareholders and,
as a result, it is more likely than not that he will not be entitled to
indemnification under the terms of the Indemnity Agreement. The advance of
litigation expenses is mandatory absent a special determination to the
contrary; under the Delaware GCL and the Registrant's Bylaws, such advance
would be discretionary. Under the Indemnity Agreement, the director or
officer is permitted to petition the court to seek recovery of amounts due
under the Indemnity Agreement and to recover the expenses of seeking such
recovery if he is successful. Without the Indemnity Agreement, the
Registrant would not be required to pay or reimburse the director or officer
for his expenses in seeking indemnification recovery against the Registrant.
By the terms of the Indemnity Agreement, its benefits are not available if
the director or officer has other indemnification or insurance coverage for
the subject claim or, with respect to the matters giving rise to the claim,
(i) received a personal benefit, (ii) violated Section 16(b) of the
Securities Exchange Act of 1934 or analogous provisions of law, or (iii)
committed certain acts of dishonesty. Absent the Indemnity Agreement,
indemnification that might be made available to directors and officers could
be changed by amendments to the Registrant's Certificate of Incorporation or
Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Berry Petroleum Company Thrift Plan.
5.1 Opinion of Nordman, Cormany, Hair & Compton regarding validity of
securities.
23.1 Consent of Nordman, Cormany, Hair & Compton (included in Exhibit
5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
The Registrant will submit or has submitted the Thrift Plan, and hereby
undertakes to submit any amendments thereto, to the Internal Revenue Service
in a timely manner and has made or will make all changes required by the
Internal Revenue Service in order to qualify said Thrift Plan.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
5
<PAGE> 6
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the Plan of Distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
6
<PAGE> 7
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Taft, State of
California, on this 1 day of September, 1998.
BERRY PETROLEUM COMPANY
By: s/s Jerry V. Hoffman
Jerry V. Hoffman, Chairman of
the Board, President and Chief
Executive Officer (Principal
Executive Officer)
By: s/s Ralph J. Goehring
Ralph J. Goehring, Senior Vice
President and Chief Financial
Officer (Principal Financial
Officer)
By: s/s Donald A. Dale
Donald A. Dale, Controller
(Principal Accounting Officer)
7
<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURES TITLE DATE
s/s Jerry V. Hoffman Chairman of the September 1, 1998
Jerry V. Hoffman Board, President
and Director
s/s William F. Berry Director September 1, 1998
William F. Berry
s/s Gerry A. Biller Director September 1, 1998
Gerry A. Biller
s/s Ralph B. Busch, III Director September 1, 1998
Ralph B. Busch, III
s/s William E. Bush, Jr. Director September 1, 1998
William E. Bush, Jr.
s/s Richard F. Downs Director September 1, 1998
Richard F. Downs
s/s John A. Hagg Director September 1, 1998
John A. Hagg
s/s Thomas J. Jamieson Director September 1, 1998
Thomas J. Jamieson
s/s Roger G. Martin Director September 1, 1998
Roger G. Martin
s/s James A. Middleton Director September 1, 1998
James A. Middleton
8
<PAGE> 9
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Committee appointed under the Berry Petroleum Company Thrift Plan has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Taft, State of
California, on this 1 day of September, 1998.
BERRY PETROLEUM COMPANY THRIFT PLAN
By: s/s Jerry V. Hoffman
Jerry V. Hoffman, Committee Member
By: s/s Ralph J. Goehring
Ralph J. Goehring, Committee Member
By: s/s Kenneth A. Olson
Kenneth A. Olson, Committee Member
9
<PAGE> 10
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Pages
4.1 Berry Petroleum Company 11
Thrift Plan, as amended.
5.1 Opinion of Nordman, Cormany, 104
Hair & Compton regarding
validity of securities.
23.1 Consent of Nordman, Cormany, 104
Hair & Compton (included in
Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP. 105
10
<PAGE> 11
EXHIBIT 4.1
BERRY PETROLEUM COMPANY THRIFT PLAN
(July 1, 1998 Restatement)
Fidelity Management Trust Company, its affiliates
and employees may not provide you with legal or tax
advice in connection with the execution of this
document. It should be reviewed by your attorney
and/or accountant prior to execution.
CORPORATEplan for RETIREMENT sm
VOLUME SUBMITTER
PLAN DOCUMENT SYSTEMS tm
<PAGE> 12 (i)
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 -Plan Definitions
1.2 -Interpretation
ARTICLE II
SERVICE
2.1 -Definitions
2.2 -Crediting of Hours of Service
2.3 -Hours of Service Equivalencies
2.4 -Limitations on Crediting of Hours of Service
2.5 -Department of Labor Rules
2.6 -Years of Eligibility Service
2.7 -Crediting of Continuous Service
2.8 -Vesting Service
2.9 -Crediting of Service on Transfer or Amendment
ARTICLE III
ELIGIBILITY
3.1 -Eligibility
3.2 -Transfers of Employment
3.3 -Reemployment
3.4 -Notification Concerning New Eligible Employees
3.5 -Effect and Duration
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 -Tax-Deferred Contributions
4.2 -Amount of TaxDeferred Contributions
4.3 -Changes in Reduction Authorization
4.4 -Suspension of Tax-Deferred Contributions
4.5 -Resumption of Tax-Deferred Contributions
4.6 -Delivery of Tax-Deferred Contributions
4.7 -Vesting of Tax-Deferred Contributions
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 -AfterTax Contributions
5.2 -Amount of AfterTax Contributions by Payroll Withholding
5.3 -Changes in Payroll Withholding Authorization
5.4 -Suspension of AfterTax Contributions by Payroll Withholding
5.5 -Resumption of AfterTax Contributions by Payroll Withholding
5.6 -Rollover Contributions
5.7 -Delivery of After-Tax Contributions
5.8 -Vesting of After-Tax Contributions and Rollover Contributions
(i)
<PAGE> 13 (ii)
ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 -Contribution Period
6.2 -Matching Contributions
6.3 -Allocation of Matching Contributions
6.4 -Verification of Amount of Employer Contributions by the Sponsor
6.5 -Payment of Employer Contributions
6.6 -Eligibility to Participate in Allocation
6.7 -Vesting of Employer Contributions
6.8 -Election of Former Vesting Schedule
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 -Definitions
7.2 -Code Section 402(g) Limit
7.3 -Distribution of Excess Deferrals
7.4 -Limitation on TaxDeferred Contributions of Highly Compensated
Employees
7.5 -Distribution of Excess TaxDeferred Contributions
7.6 -Limitation on Matching Contributions and AfterTax Contributions of
Highly Compensated Employees
7.7 -Forfeiture or Distribution of Excess Contributions
7.8 -Multiple Use Limitation
7.9 -Determination of Income or Loss
7.10 -Code Section 415 Limitations on Crediting of Contributions and
Forfeitures
7.11 -Coverage Under Other Qualified Defined Contribution Plan
7.12 -Coverage Under Qualified Defined Benefit Plan
7.13 -Scope of Limitations
ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 -General Fund
8.2 -Investment Funds
8.3 -Loan Investment Fund
8.4 -Income on Trust
8.5 -Separate Accounts
8.6 -Sub-Accounts
ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 -No Life Insurance Contracts
ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 -Future Contribution Investment Elections
10.2 -Deposit of Contributions
10.3 -Election to Transfer Between Funds
(ii)
<PAGE> 14 (iii)
ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 -Crediting Separate Accounts
11.2 -Valuing Separate Accounts
11.3 -Plan Valuation Procedures
11.4 -Finality of Determinations
11.5 -Notification
ARTICLE XII
LOANS
12.1 -Application for Loan
12.2 -Reduction of Account Upon Distribution
12.3 -Requirements to Prevent a Taxable Distribution
12.4 -Administration of Loan Investment Fund
12.5 -Default
12.6 -Special Rules Applicable to Loans
12.7 -Loans Granted Prior to Amendment
ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 -Withdrawals of After-Tax Contributions
13.2 -Withdrawals of Rollover Contributions
13.3 -Withdrawals of Employer Contributions
13.4 -Withdrawals of Tax-Deferred Contributions
13.5 -Conditions and Limitations on Hardship Withdrawals
13.6 -Order of Withdrawal from a Participant's SubAccounts
ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 -Termination of Employment and Settlement Date
14.2 -Separate Accounting for NonVested Amounts
14.3 -Disposition of NonVested Amounts
14.4 -Recrediting of Forfeited Amounts
ARTICLE XV
DISTRIBUTIONS
15.1 -Distributions to Participants
15.2 -Distributions to Beneficiaries
15.3 -Cash Outs and Participant Consent
15.4 -Required Commencement of Distribution
15.5 -Reemployment of a Participant
15.6 -Restrictions on Alienation
15.7 -Facility of Payment
15.8 -Inability to Locate Payee
15.9 -Distribution Pursuant to Qualified Domestic Relations Orders
(iii)
<PAGE> 15 (iv)
ARTICLE XVI
FORM OF PAYMENT
16.1 -Form of Payment
16.2 -Direct Rollover
16.3 -Notice Regarding Form of Payment
16.4 -Distribution in the Form of Employer Stock
ARTICLE XVII
BENEFICIARIES
17.1 -Designation of Beneficiary
17.2 -Spousal Consent Requirements
ARTICLE XVIII
ADMINISTRATION
18.1 -Authority of the Sponsor
18.2 -Action of the Sponsor
18.3 -Claims Review Procedure
18.4 -Qualified Domestic Relations Orders
18.5 -Indemnification
18.6 -Actions Binding
ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 -Amendment
19.2 -Limitation on Amendment
19.3 -Termination
19.4 -Reorganization
19.5 -Withdrawal of an Employer
ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 -Adoption by Related Companies
20.2 -Effective Plan Provisions
ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 -No Commitment as to Employment
21.2 -Benefits
21.3 -No Guarantees
21.4 -Expenses
21.5 -Precedent
21.6 -Duty to Furnish Information
21.7 -Withholding
21.8 -Merger, Consolidation, or Transfer of Plan Assets
21.9 -Back Pay Awards
21.10 -Condition on Employer Contributions
21.11 -Return of Contributions to an Employer
21.12 -Validity of Plan
(iv)
<PAGE> 16 (v)
21.13 -Trust Agreement
21.14 -Parties Bound
21.15 -Application of Certain Plan Provisions
21.16 -Leased Employees
21.17 -Transferred Funds
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 -Definitions
22.2 -Applicability
22.3 -Minimum Employer Contribution
22.4 -Adjustments to Section415 Limitations
22.5 -Accelerated Vesting
ARTICLE XXIII
EFFECTIVE DATE
23.1 -Effective Date of Amendment and Restatement
(v)
<PAGE> 17
PREAMBLE
The Berry Petroleum Company Thrift Plan, originally effective as
of January 1, 1989, is hereby amended and restated in its
entirety. The Plan, as amended and restated hereby, is intended
to qualify as a profit-sharing plan under Section 401(a) of the
Code, and includes a cash or deferred arrangement that is
intended to qualify under Section 401(k) of the Code. The Plan
is maintained for the exclusive benefit of eligible employees and
their beneficiaries.
Notwithstanding any other provision of the Plan to the contrary,
a Participant's vested interest in his Separate Account under the
Plan on and after the effective date of this amendment and
restatement shall be not less than his vested interest in his
account on the day immediately preceding the effective date. In
addition, notwithstanding any other provision of the Plan to the
contrary, the forms of payment and other Plan provisions that
were available under the Plan immediately prior to the later of
the effective date of this amendment and restatement or the date
this amendment and restatement is adopted and that may not be
eliminated under Section 411(d)(6) of the Code shall continue to
be available to Participants who had an account under the Plan on
the day immediately preceding the later of the effective date or
the date this amendment and restatement is adopted.
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<PAGE> 18
ARTICLE I
DEFINITIONS
1.1 - Plan Definitions
As used herein, the following words and phrases have the meanings
hereinafter set forth, unless a different meaning is plainly
required by the context:
The "Administrator" means the Sponsor unless the Sponsor
designates another person or persons to act as such.
An "After-Tax Contribution" means any after-tax employee
contribution made by a Participant as may be permitted under
Article V.
The "Beneficiary" of a Participant means the person or persons
entitled under the provisions of the Plan to receive distribution
hereunder in the event the Participant dies before receiving
distribution of his entire interest under the Plan.
The "Code" means the Internal Revenue Code of 1986, as amended
from time to time. Reference to a section of the Code includes
such section and any comparable section or sections of any future
legislation that amends, supplements, or supersedes such section.
The "Compensation" of a Participant for any period means the
wages as defined in Section 3401(a) of the Code, determined
without regard to any rules that limit compensation included in
wages based on the nature or location of the employment or
services performed, and all other payments made to him for such
period for services as an Employee for which his Employer is
required to furnish the Participant a written statement under
Sections 6041(d), 6051(a)(3), and 6052 of the Code, and excluding
reimbursements or other expense allowances, fringe benefits,
moving expenses, deferred compensation, and welfare benefits, but
determined prior to any exclusions for amounts deferred under
Section 125, 402(e)(3), 402(h)(1)(B), 403(b), or 457(b) of the
Code or for certain contributions described in Section 414(h)(2)
of the Code that are picked up by the employing unit and treated
as employer contributions.
Notwithstanding the foregoing, Compensation shall not include the
following:
* bonuses.
* overtime pay.
* commissions.
2
<PAGE> 19
* the value of any qualified or non-qualified stock
option granted to the Participant by his Employer
to the extent such value is includible in the
Participant's taxable income.
In no event, however, shall the Compensation of a Participant
taken into account under the Plan for any Plan Year exceed
(1) $200,000 for Plan Years beginning prior to January 1, 1994,
or (2) $150,000 for Plan Years beginning on or after January 1,
1994 (subject to adjustment annually as provided in Section
401(a)(17)(B) and Section 415(d) of the Code; provided, however,
that the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in such
calendar year). If the Compensation of a Participant is
determined over a period of time that contains fewer than 12
calendar months, then the annual compensation limitation
described above shall be adjusted with respect to that
Participant by multiplying the annual compensation limitation in
effect for the Plan Year by a fraction the numerator of which is
the number of full months in the period and the denominator of
which is 12; provided, however, that no proration is required for
a Participant who is covered under the Plan for less than one
full Plan Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In determining
the Compensation, for purposes of applying the annual
compensation limitation described above, of a Participant who is
a five percent owner or among the ten Highly Compensated
Employees receiving the greatest Compensation for the Plan Year,
the Compensation of the Participant's spouse and of his lineal
descendants who have not attained age 19 as of the close of the
Plan Year shall be included as Compensation of the Participant
for the Plan Year. If as a result of applying the family
aggregation rule described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation shall
be prorated among the affected family members in proportion to
each member's Compensation as determined prior to application of
the family aggregation rules.
A "Contribution Period" means the period specified in Article VI
for which Employer Contributions shall be made.
An "Eligible Employee" means any Employee who has met the
eligibility requirements of Article III to have Tax-Deferred
Contributions made to the Plan on his behalf.
The "Eligibility Service" of an employee means the period or
periods of service credited to him under the provisions of
Article II for purposes of determining his eligibility to
participate in the Plan as may be required under Article III or
Article VI.
3
<PAGE> 20
An "Employee" means any employee of an Employer other than an
employee who is covered by a collective bargaining agreement.
An "Employer" means the Sponsor and any entity which has adopted
the Plan as may be provided under Article XX.
An "Employer Contribution" means the amount, if any, that an
Employer contributes to the Plan as may be provided under
Article VI or Article XXII.
An "Enrollment Date" means the first day of each calendar month
of the Plan Year.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time. Reference to a section of
ERISA includes such section and any comparable section or
sections of any future legislation that amends, supplements, or
supersedes such section.
The "General Fund" means a Trust Fund maintained by the Trustee
as required to hold and administer any assets of the Trust that
are not allocated among any separate Investment Funds as may be
provided in the Plan or the Trust Agreement. No General Fund
shall be maintained if all assets of the Trust are allocated
among separate Investment Funds.
A "Highly Compensated Employee" means an Employee or former
Employee who is a highly compensated active employee or highly
compensated former employee as defined hereunder.
A "highly compensated active employee" includes any Employee who
performs services for an Employer during the determination year
and who (i) was a five percent owner at any time during the
determination year or the look back year, (ii) received
compensation from an Employer during the look back year in excess
of $75,000 (subject to adjustment annually at the same time and
in the same manner as under Section 415(d) of the Code),
(iii) was in the top paid group of employees for the look back
year and received compensation from an Employer during the look
back year in excess of $50,000 (subject to adjustment annually at
the same time and in the same manner as under Section 415(d) of
the Code), (iv) was an officer of an Employer during the look
back year and received compensation during that year in excess of
50 percent of the dollar limitation in effect for that year under
Section 415(b)(1)(A) of the Code or, if no officer received
compensation in excess of that amount for the look back year or
the determination year, received the greatest compensation for
the look back year of any officer, or (v) was one of the 100
employees paid the greatest compensation by an Employer for the
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<PAGE> 21
determination year and would be described in (ii), (iii), or (iv)
above if the term "determination year" were substituted for "look
back year".
A "highly compensated former employee" includes any Employee who
separated from service from an Employer and all Related Companies
(or is deemed to have separated from service from an Employer and
all Related Companies) prior to the determination year, performed
no services for an Employer during the determination year, and
was a highly compensated active employee for either the
separation year or any determination year ending on or after the
date the Employee attains age 55.
The determination of who is a Highly Compensated Employee
hereunder, including determinations as to the number and identity
of employees in the top paid group, the 100 employees receiving
the greatest compensation from an Employer, the number of
employees treated as officers, and the compensation considered,
shall be made in accordance with the provisions of Section 414(q)
of the Code and regulations issued thereunder. For purposes of
this definition, the following terms have the following meanings:
(a) The "determination year" means the Plan Year or, if the
Administrator makes the election provided in paragraph (b)
below, the period of time, if any, which extends beyond
the look back year and ends on the last day of the Plan
Year for which testing is being performed (the "lag
period"). If the lag period is less than 12 months long,
the dollar amounts specified in (ii), (iii), and (iv)
above shall be prorated based upon the number of months in
the lag period.
(b) The "look back year" means the 12-month period immediately
preceding the determination year; provided, however, that
the Administrator may elect instead to treat the calendar
year ending with or within the determination year as the
"look back year".
An "Hour of Service" with respect to a person means each hour, if
any, that may be credited to him in accordance with the
provisions of Article II.
An "Investment Fund" means any separate investment Trust Fund
maintained by the Trustee as may be provided in the Plan or the
Trust Agreement or any separate investment fund maintained by the
Trustee, to the extent that there are Participant Sub-Accounts
under such funds, to which assets of the Trust may be allocated
and separately invested.
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<PAGE> 22
A "Matching Contribution" means any Employer Contribution made to
the Plan on account of a Participant's Tax-Deferred Contributions
or After-Tax Contributions as provided in Article VI.
The "Normal Retirement Date" of an employee means the date he
attains age 65.
A "Participant" means any person who has a Separate Account in
the Trust.
The "Plan" means Berry Petroleum Company Thrift Plan, as from
time to time in effect.
A "Plan Year" means the 12-consecutive-month period ending each
December 31.
A "Related Company" means any corporation or business, other than
an Employer, which would be aggregated with an Employer for a
relevant purpose under Section 414 of the Code.
A "Rollover Contribution" means any rollover contribution to the
Plan made by a Participant as may be permitted under Article V.
A "Separate Account" means the account maintained by the Trustee
in the name of a Participant that reflects his interest in the
Trust and any Sub-Accounts maintained thereunder, as provided in
Article VIII.
The "Settlement Date" of a Participant means the date on which a
Participant's interest under the Plan becomes distributable in
accordance with Article XV.
The "Sponsor" means Berry Petroleum Company, and any successor
thereto.
A "Sub-Account" means any of the individual sub-accounts of a
Participant's Separate Account that is maintained as provided in
Article VIII.
A "Tax-Deferred Contribution" means the amount contributed to the
Plan on a Participant's behalf by his Employer in accordance with
his reduction authorization executed pursuant to Article IV.
The "Trust" means the trust, custodial accounts, annuity
contracts, or insurance contracts maintained by the Trustee under
the Trust Agreement.
The "Trust Agreement" means the agreement entered into between
the Sponsor and the Trustee relating to the holding, investment,
and reinvestment of the assets of the Plan, together with all
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<PAGE> 23
amendments thereto and shall include any agreement establishing a
custodial account, an annuity contract, or an insurance contract
(other than a life, health or accident, property, casualty, or
liability insurance contract) for the investment of assets if the
custodial account or contract would, except for the fact that it
is not a trust, constitute a qualified trust under Section 401 of
the Code.
The "Trustee" means the trustee or any successor trustee which at
the time shall be designated, qualified, and acting under the
Trust Agreement and shall include any insurance company that
issues an annuity or insurance contract pursuant to the Trust
Agreement or any person holding assets in a custodial account
pursuant to the Trust Agreement. The Sponsor may designate a
person or persons other than the Trustee to perform any
responsibility of the Trustee under the Plan, other than trustee
responsibilities as defined in Section 405(c)(3) of ERISA, and
the Trustee shall not be liable for the performance of such
person in carrying out such responsibility except as otherwise
provided by ERISA. The term Trustee shall include any delegate
of the Trustee as may be provided in the Trust Agreement.
A "Trust Fund" means any fund maintained under the Trust by the
Trustee.
A "Valuation Date" means the date or dates designated by the
Sponsor and communicated in writing to the Trustee for the
purpose of valuing the General Fund and each Investment Fund and
adjusting Separate Accounts and Sub-Accounts hereunder, which
dates need not be uniform with respect to the General Fund, each
Investment Fund, Separate Account, or Sub-Account; provided,
however, that the General Fund and each Investment Fund shall be
valued and each Separate Account and Sub-Account shall be
adjusted no less often than once annually.
The "Vesting Service" of an employee means the period or periods
of service credited to him under the provisions of Article II for
purposes of determining his vested interest in his Employer
Contributions Sub-Account, if Employer Contributions are provided
for under either Article VI or Article XXII.
1.2 - Interpretation
Where required by the context, the noun, verb, adjective, and
adverb forms of each defined term shall include any of its other
forms. Wherever used herein, the masculine pronoun shall include
the feminine, the singular shall include the plural, and the
plural shall include the singular.
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<PAGE> 24
ARTICLE II
SERVICE
2.1 - Definitions
For purposes of this Article, the following terms shall have the
following meanings:
(a) A "break in service" means any computation period during
which a person completes less than 501 Hours of Service
except that no person shall incur a break in service
solely by reason of temporary absence from work not
exceeding 12 months resulting from illness, layoff, or
other cause if authorized in advance by an Employer or a
Related Company pursuant to its uniform leave policy, if
his employment shall not otherwise be terminated during
the period of such absence.
(b) A "computation period" for purposes of determining an
employee's years of Eligibility Service means (i) the
12-consecutive-month period beginning on the first date he
completes an Hour of Service, and (ii) each
12-consecutive-month period beginning on an anniversary of
such date.
(c) The "continuous service" of an employee means the service
credited to him in accordance with the provisions of
Section 2.7 of the Plan.
(d) The "employment commencement date" of an employee means
the date he first completes an Hour of Service.
(e) A "maternity/paternity absence" means a person's absence
from employment with an Employer or a Related Company
because of the person's pregnancy, the birth of the
person's child, the placement of a child with the person
in connection with the person's adoption of the child, or
the caring for the person's child immediately following
the child's birth or adoption. A person's absence from
employment will not be considered a maternity/paternity
absence unless the person furnishes the Administrator such
timely information as may reasonably be required to
establish that the absence was for one of the purposes
enumerated in this paragraph and to establish the number
of days of absence attributable to such purpose.
(f) The "reemployment commencement date" of an employee means
the first date following a severance date on which he
again completes an Hour of Service.
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<PAGE> 25
(g) The "severance date" of an employee means the earlier of
(i) the date on which he retires, dies, or his employment
with an Employer and all Related Companies is otherwise
terminated, or (ii) the first anniversary of the first
date of a period during which he is absent from work with
an Employer and all Related Companies for any other
reason; provided, however, that if he terminates
employment with or is absent from work with an Employer
and all Related Companies on account of service with the
armed forces of the United States, he shall not incur a
severance date if he is eligible for reemployment rights
under the Uniformed Services Employment and Reemployment
Rights Act of 1994 and he returns to work with an Employer
or a Related Company within the period during which he
retains such reemployment rights.
2.2 - Crediting of Hours of Service
A person shall be credited with an Hour of Service for:
(a) each hour for which he is paid, or entitled to payment,
for the performance of duties for an Employer or a Related
Company during the applicable computation period;
provided, however, that hours compensated at a premium
rate shall be treated as straight-time hours;
(b) subject to the provisions of Section 2.4, each hour for
which he is paid, or entitled to payment, by an Employer
or a Related Company on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship has terminated) due to vacation,
holiday, illness, incapacity (including disability),
lay-off, jury duty, military duty, or leave of absence;
(c) each hour for which he would have been scheduled to work
for an Employer or a Related Company during the period
that he is absent from work because of service with the
armed forces of the United States provided he is eligible
for reemployment rights under the Uniformed Services
Employment and Reemployment Rights Act of 1994 and returns
to work with an Employer or a Related Company within the
period during which he retains such reemployment rights;
and
(d) each hour for which back pay, irrespective of mitigation
of damages, is either awarded or agreed to by an Employer
or a Related Company; provided, however, that the same
Hour of Service shall not be credited both under paragraph
(a) or (b) or (c) of this Section, as the case may be, and
under this paragraph (d); and provided, further, that the
crediting of Hours of Service for back pay awarded or
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<PAGE> 26
agreed to with respect to periods described in such
paragraph (b) shall be subject to the limitations set
forth therein and in Section 2.4.
Notwithstanding the foregoing and solely for purposes of
determining whether a person who is on a maternity/paternity
absence beginning on or after the first day of the first Plan
Year that commences on or after January 1, 1985, has incurred a
break in service, Hours of Service shall include those hours with
which such person would otherwise have been credited but for such
maternity/paternity absence, or shall include eight Hours of
Service for each day of maternity/paternity absence if the actual
hours to be credited cannot be determined; except that not more
than 501 hours are to be credited by reason of any
maternity/paternity absence. Any hours included as Hours of
Service pursuant to the immediately preceding sentence shall be
credited to the computation period in which the absence from
employment begins, if such person otherwise would incur a break
in service in such computation period, or, in any other case, to
the immediately following computation period.
2.3 - Hours of Service Equivalencies
Notwithstanding any other provision of the Plan to the contrary,
an Employer may elect to credit Hours of Service to its employees
in accordance with one of the following equivalencies, and if an
Employer does not maintain records that accurately reflect actual
hours of service, such Employer shall credit Hours of Service to
its employees in accordance with one of the following
equivalencies:
(a) If the Employer maintains its records on the basis of days
worked, an employee shall be credited with 10 Hours of
Service for each day on which he performs an Hour of
Service.
(b) If the Employer maintains its records on the basis of
weeks worked, an employee shall be credited with 45 Hours
of Service for each week in which he performs an Hour of
Service.
(c) If the Employer maintains its records on the basis of
semi-monthly payroll periods, an employee shall be
credited with 95 Hours of Service for each semi-monthly
payroll period in which he performs an Hour of Service.
(d) If the Employer maintains its records on the basis of
months worked, an employee shall be credited with 190
Hours of Service for each month in which he performs an
Hour of Service.
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<PAGE> 27
2.4 - Limitations on Crediting of Hours of Service
In the application of the provisions of paragraph (b) of Section
2.2, the following shall apply:
(a) An hour for which a person 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 him
if such payment is made or due under a plan maintained
solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or
disability insurance laws.
(b) Hours of Service shall not be credited with respect to a
payment which solely reimburses a person for medical or
medically-related expenses incurred by him.
(c) For purposes of such paragraph (b), a payment shall be
deemed to be made by or due from an Employer or a Related
Company (i) regardless of whether such payment is made by
or due from such employer directly or indirectly, through
(among others) a trust fund or insurer to which any such
employer contributes or pays premiums, and (ii) regardless
of whether contributions made or due to such trust fund,
insurer, or other entity are for the benefit of particular
persons or are on behalf of a group of persons in the
aggregate.
(d) No more than 501 Hours of Service shall be credited under
such paragraph (b) to a person on account of any single
continuous period during which he performs no duties
(whether or not such period occurs in a single computation
period), unless no duties are performed due to service
with the armed forces of the United States for which the
person retains reemployment rights as provided in
paragraph (c) of Section 2.2.
2.5 - Department of Labor Rules
The rules set forth in paragraphs (b) and (c) of Department of
Labor Regulations Section 2530.200b-2, which relate to determining Hours
of Service attributable to reasons other than the performance of
duties and crediting Hours of Service to computation periods, are
hereby incorporated into the Plan by reference.
2.6 - Years of Eligibility Service
An employee shall be credited with a year of Eligibility Service
for each computation period in which he completes at least 500
Hours of Service.
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<PAGE> 28
2.7 - Crediting of Continuous Service
A person shall be credited with continuous service for the
aggregate of the periods of time between his employment
commencement date or any reemployment commencement date and the
severance date that next follows such employment commencement
date or reemployment commencement date; provided, however, that
an employee who has a reemployment commencement date within the
12-consecutive-month period following the earlier of the first
date of his absence or his severance date shall be credited with
continuous service for the period between such severance date and
reemployment commencement date.
2.8 - Vesting Service
Years of Vesting Service shall be determined in accordance with
the following provisions:
(a) An employee shall be credited with years of Vesting
Service equal to his period of continuous service.
(b) Notwithstanding the provisions of paragraph (a),
continuous service completed by an employee prior to a
severance date shall not be included in determining the
employee's years of Vesting Service unless the employee
had a nonforfeitable right to any portion of his Separate
Account, excluding that portion of his Separate Account
that is attributable to After-Tax or Rollover
Contributions, as of the severance date, or the period of
time between the severance date and his reemployment
commencement date is less than the greater of five years
or his period of continuous service determined as of the
severance date; provided, however, that solely for
purposes of applying this paragraph, if a person is on a
maternity/paternity absence beyond the first anniversary
of the first day of such absence, his severance date shall
be the second anniversary of the first day of such
maternity/paternity absence.
2.9 - Crediting of Service on Transfer or Amendment
Notwithstanding any other provision of the Plan to the contrary,
if an Employee is transferred from employment covered under a
qualified plan maintained by an Employer or a Related Company for
which eligibility service is credited based on elapsed time in
accordance with Treasury Regulations Section 1.410(a)-7 to employment
covered under the Plan or, prior to amendment, the Plan provided
for crediting of Eligibility Service on the basis of elapsed
time, an affected Employee shall be credited with Eligibility
Service hereunder equal to:
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<PAGE> 29
(a) the number of one year periods of service credited to the
Employee under the elapsed time method before the transfer
date or the effective date of the amendment, plus
(b) his service under the Hours of Service method provided
hereunder for the computation period in which the transfer
or the effective date of the amendment occurs applying one
of the equivalencies set forth in Section 2.3 to any
fractional part of a year credited to the Employee under
the elapsed time method as of the transfer date or the
effective date of the amendment; provided, however that
the same equivalency shall be used for all similarly
situated Employees, plus
(c) the service credited to such Employee under the Hours of
Service method provided hereunder for computation periods
beginning after the computation period in which the
transfer or the effective date of the amendment occurs.
In addition, notwithstanding any other provision of the Plan to
the contrary, if an Employee is transferred from employment
covered under a qualified plan maintained by an Employer or a
Related Company for which vesting service is credited based on
Hours of Service and computation periods in accordance with
Department of Labor Regulations Section 2530.200 through 2530.203 to
employment covered under the Plan or, prior to amendment, the
Plan provided for crediting of service on the basis of Hours of
Service and computation periods, an affected Employee shall be
credited with Vesting Service hereunder equal to:
(a) the Employee's years of service credited to him under the
Hours of Service method before the computation period in
which the transfer or the effective date of the amendment
occurs, plus
(b) the greater of (i) the period of service that would be
credited to the Employee under the elapsed time method
provided hereunder for his employment during the entire
computation period in which the transfer or the effective
date of the amendment occurs or (ii) the service taken
into account under the Hours of Service method for such
computation period as of the transfer date or the
effective date of the amendment, plus
(d) the service credited to such Employee under the elapsed
time method provided hereunder for the period of time
beginning on the day after the last day of the computation
period in which the transfer or the effective date of the
amendment occurs
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ARTICLE III
ELIGIBILITY
3.1 - Eligibility
Each Employee who was an Eligible Employee immediately prior to
the effective date of this amendment and restatement shall
continue to be an Eligible Employee. Each Employee who is not
classified as a part-time or temporary employee shall become an
Eligible Employee as of the Enrollment Date coinciding with or
next following the date on which he has completed six months of
continuous service (as defined in Article II). Each Employee who
is classified as a part-time or temporary employee shall become
an Eligible Employee as of the earlier of (i) the Enrollment Date
coinciding with or next following the date on which he has
completed one year of Eligibility Service or (ii) the Enrollment
Date coinciding with or next following the date on which he has
completed 500 Hours of Service (as defined in Article II) during
a 6 consecutive month period.
3.2 - Transfers of Employment
If a person is transferred directly from employment with an
Employer or with a Related Company in a capacity other than as an
Employee to employment as an Employee, he shall become an
Eligible Employee as of the date he is so transferred if prior to
an Enrollment Date coinciding with or preceding such transfer
date he has met the eligibility requirements of Section 3.1.
Otherwise, the eligibility of a person who is so transferred to
elect to have Tax-Deferred Contributions made to the Plan on his
behalf or to make After-Tax Contributions to the Plan shall be
determined in accordance with Section 3.1.
3.3 - Reemployment
If a person who terminated employment with an Employer and all
Related Companies is reemployed as an Employee and if he had been
an Eligible Employee prior to his termination of employment, he
shall again become an Eligible Employee on the Enrollment Date
next following the date he is reemployed. Otherwise, the
eligibility of a person who terminated employment with an
Employer and all Related Companies and who is reemployed by an
Employer or a Related Company to elect to have Tax-Deferred
Contributions made to the Plan on his behalf or to make After-Tax
Contributions to the Plan shall be determined in accordance with
Section 3.1 or 3.2.
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3.4 - Notification Concerning New Eligible Employees
Each Employer shall notify the Administrator as soon as
practicable of Employees becoming Eligible Employees as of any
date.
3.5 - Effect and Duration
Upon becoming an Eligible Employee, an Employee shall be entitled
to elect to have Tax-Deferred Contributions made to the Plan on
his behalf and to make After-Tax Contributions to the Plan and
shall be bound by all the terms and conditions of the Plan and
the Trust Agreement. A person shall continue as an Eligible
Employee eligible to have Tax-Deferred Contributions made to the
Plan on his behalf and to make After-Tax Contributions to the
Plan only so long as he continues in employment as an Employee.
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<PAGE> 32
ARTICLE IV
TAX-DEFERRED CONTRIBUTIONS
4.1 - Tax-Deferred Contributions
Effective as of the date he becomes an Eligible Employee, or any
subsequent Enrollment Date, each Eligible Employee may elect in
writing in accordance with rules prescribed by the Administrator
to have Tax-Deferred Contributions made to the Plan on his behalf
by his Employer as hereinafter provided. An Eligible Employee's
written election shall include his authorization for his Employer
to reduce his Compensation and to make Tax-Deferred Contributions
on his behalf and his election as to the investment of his
contributions in accordance with Article X. Tax-Deferred
Contributions on behalf of an Eligible Employee shall commence
with the first payment of Compensation made on or after the date
on which his election is effective.
4.2 - Amount of Tax-Deferred Contributions
The amount of Tax-Deferred Contributions to be made to the Plan
on behalf of an Eligible Employee by his Employer shall be an
integral percentage of his Compensation of not less than one
percent nor more than 16 percent; provided, however, that the
aggregate Tax-Deferred Contributions and After-Tax Contributions
made by or on behalf of any Eligible Employee for a Contribution
Period must equal or exceed six percent of his Compensation but
may not exceed 16 percent of his Compensation. In the event an
Eligible Employee elects to have his Employer make Tax-Deferred
Contributions on his behalf, his Compensation shall be reduced
for each payroll period by the percentage he elects to have
contributed on his behalf to the Plan in accordance with the
terms of his currently effective reduction authorization.
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<PAGE> 33
4.3 - Changes in Reduction Authorization
An Eligible Employee may change the percentage of his future
Compensation that his Employer contributes on his behalf as
Tax-Deferred Contributions at such time or times during the Plan
Year as the Administrator may prescribe by filing an amended
reduction authorization with his Employer such number of days
prior to the date such change is to become effective as the
Administrator shall prescribe; provided, however, that in no
event shall such change be effective earlier than the first day
of the month following the date such amended reduction
authorization is filed with the Employer. An Eligible Employee
who changes his reduction authorization shall be limited to
selecting a percentage of his Compensation that is otherwise
permitted hereunder. Tax-Deferred Contributions shall be made on
behalf of such Eligible Employee by his Employer pursuant to his
amended reduction authorization filed in accordance with this
Section commencing with Compensation paid to the Eligible
Employee on or after the date such filing is effective, until
otherwise altered or terminated in accordance with the Plan.
4.4 - Suspension of Tax-Deferred Contributions
An Eligible Employee on whose behalf Tax-Deferred Contributions
are being made may have such contributions suspended at any time
by giving such number of days advance written notice to his
Employer as the Administrator shall prescribe. Any such
voluntary suspension shall take effect commencing with
Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in
effect until Tax-Deferred Contributions are resumed as
hereinafter set forth; provided, however, that in no event shall
such suspension be effective earlier than the first day of the
month following the date notice of suspension is filed with the
Employer.
4.5 - Resumption of Tax-Deferred Contributions
An Eligible Employee who has voluntarily suspended his
Tax-Deferred Contributions may have such contributions resumed at
such time or times during the Plan Year as the Administrator may
prescribe, by filing a new reduction authorization with his
Employer such number of days prior to the date as of which such
contributions are to be resumed as the Administrator shall
prescribe; provided, however, that in no event shall
contributions be resumed earlier than the first day of the month
following the date the new reduction authorization is filed with
the Employer.
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<PAGE> 34
4.6 - Delivery of Tax-Deferred Contributions
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets,
each Employer shall cause to be delivered to the Trustee in cash
all Tax-Deferred Contributions attributable to such amounts.
4.7 - Vesting of Tax-Deferred Contributions
A Participant's vested interest in his Tax-Deferred Contributions
Sub-Account shall be at all times 100 percent.
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<PAGE> 35
ARTICLE V
AFTER-TAX AND ROLLOVER CONTRIBUTIONS
5.1 - After-Tax Contributions
An Eligible Employee may elect in writing in accordance with
rules prescribed by the Administrator to make After-Tax
Contributions to the Plan. After-Tax Contributions shall be made
by payroll withholding. If the Eligible Employee does not
already have an investment election on file with the
Administrator, his election to make After-Tax Contributions to
the Plan shall include his election as to the investment of his
contributions in accordance with Article X. An Eligible
Employee's election to make After-Tax Contributions by payroll
withholding may be made effective as of any Enrollment Date
occurring on or after the date on which he becomes an Eligible
Employee. After-Tax Contributions by payroll withholding shall
commence with the first payment of Compensation made on or after
the Enrollment Date on which the Eligible Employee's election is
effective.
5.2 - Amount of After-Tax Contributions by Payroll Withholding
The amount of After-Tax Contributions made by an Eligible
Employee by payroll withholding shall be an integral percentage
of his Compensation of not less than one percent nor more than 16
percent; provided, however, that the aggregate Tax-Deferred
Contributions and After-Tax Contributions made by or on behalf of
any Eligible Employee for a Contribution Period must equal or
exceed six percent of his Compensation but may not exceed 16
percent of his Compensation.
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<PAGE> 36
5.3 - Changes in Payroll Withholding Authorization
An Eligible Employee may change the percentage of his future
Compensation that he contributes to the Plan as After-Tax
Contributions by payroll withholding at such time or times during
the Plan Year as the Administrator may prescribe by filing an
amended payroll withholding authorization with his Employer such
number of days prior to the date such change is to become
effective as the Administrator shall prescribe; provided,
however, that in no event shall such change be effective earlier
than the first day of the month following the date such amended
reduction authorization is filed with the Employer. An Eligible
Employee who changes his payroll withholding authorization shall
be limited to selecting a percentage of his Compensation that is
otherwise permitted under Section 5.2. After-Tax Contributions
shall be made pursuant to an Eligible Employee's amended payroll
withholding authorization filed in accordance with this Section
commencing with Compensation paid to the Eligible Employee on or
after the date such filing is effective, until otherwise altered
or terminated in accordance with the Plan.
5.4 - Suspension of After-Tax Contributions by Payroll
Withholding
An Eligible Employee who is making After-Tax Contributions by
payroll withholding may have such contributions suspended at any
time by giving such number of days advance written notice to his
Employer as the Administrator shall prescribe. Any such
voluntary suspension shall take effect commencing with
Compensation paid to such Eligible Employee on or after the
expiration of the required notice period and shall remain in
effect until After-Tax Contributions are resumed as hereinafter
set forth; provided, however, that in no event shall such
suspension be effective earlier than the first day of the month
following the date notice of suspension is filed with the
Employer.
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<PAGE> 37
5.5 - Resumption of After-Tax Contributions by Payroll
Withholding
An Eligible Employee who has voluntarily suspended his After-Tax
Contributions made by payroll withholding in accordance with
Section 5.4 may have such contributions resumed at such time or
times during the Plan Year as the Administrator may prescribe by
filing a new payroll withholding authorization with his Employer
such number of days prior to the date as of which such
contributions are to be resumed as the Administrator shall
prescribe; provided, however, that in no event shall
contributions be resumed earlier than the first day of the month
following the date the new reduction authorization is filed with
the Employer.
5.6 - Rollover Contributions
An Employee who was a participant in a plan qualified under
Section 401 or 403 of the Code and who receives a cash
distribution from such plan that he elects either (i) to roll
over immediately to a qualified retirement plan or (ii) to roll
over into a conduit IRA from which he receives a later cash
distribution, may elect to make a Rollover Contribution to the
Plan if he is entitled under Section 402(c), Section 403(a)(4),
or Section 408(d)(3)(A) of the Code to roll over such
distribution to another qualified retirement plan. The
Administrator may require an Employee to provide it with such
information as it deems necessary or desirable to show that he is
entitled to roll over such distribution to another qualified
retirement plan. An Employee shall make a Rollover Contribution
to the Plan by delivering, or causing to be delivered, to the
Trustee the cash that constitutes the Rollover Contribution
amount within 60 days of receipt of the distribution from the
plan or from the conduit IRA in the manner prescribed by the
Administrator. If the Employee does not already have an
investment election on file with the Administrator, the Employee
shall also deliver to the Administrator his election as to the
investment of his contributions in accordance with Article X.
5.7 - Delivery of After-Tax Contributions
As soon after the date an amount would otherwise be paid to an
Employee as it can reasonably be separated from Employer assets
or as soon as reasonably practicable after an amount has been
delivered to an Employer by an Employee, the Employer shall cause
to be delivered to the Trustee in cash the After-Tax
Contributions attributable to such amount.
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<PAGE> 38
5.8 - Vesting of After-Tax Contributions and Rollover
Contributions
A Participant's vested interest in his After-Tax Contributions
Sub-Account and his Rollover Contributions Sub-Account shall be
at all times 100 percent.
22
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ARTICLE VI
EMPLOYER CONTRIBUTIONS
6.1 - Contribution Period
The Contribution Period for Matching Contributions under the Plan
shall be monthly.
6.2 - Matching Contributions
Each Employer shall make a Matching Contribution to the Plan for
each Contribution Period in an amount not less than 6% nor more
than 9%, as determined by the Employer, in its discretion, of its
Employees' Compensation during the Contribution Period who are
eligible to participate in the allocation of Matching
Contributions for the Contribution Period, as determined under
this Article, excluding Compensation with respect to any period
ending prior to the date on which the Employee became eligible to
participate in the allocation of Matching Contributions.
6.3 - Allocation of Matching Contributions
Any Matching Contribution made by an Employer for the
Contribution Period shall be allocated among its Employees during
the Contribution Period who are eligible to participate in the
allocation of Matching Contributions for the Contribution Period,
as determined under this Article. The allocable share of each
such Employee shall be an amount not less than 6% nor more than
9%, as determined by the Employer, in its discretion, of his
Compensation for the Contribution Period, excluding Compensation
with respect to any period ending prior to the date on which the
Employee became eligible to participate in the allocation of
Matching Contributions.
6.4 - Verification of Amount of Employer Contributions by the
Sponsor
The Sponsor shall verify the amount of Employer Contributions to
be made by each Employer in accordance with the provisions of the
Plan. Notwithstanding any other provision of the Plan to the
contrary, the Sponsor shall determine the portion of the Employer
Contribution to be made by each Employer with respect to an
Employee who transfers from employment with one Employer as an
Employee to employment with another Employer as an Employee.
23
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6.5 - Payment of Employer Contributions
Employer Contributions made for a Contribution Period shall be
paid in cash or in qualifying employer securities, as defined in
Section 407(d)(5) of ERISA, to the Trustee within the period of
time required under the Code in order for the contribution to be
deductible by the Employer in determining its Federal income
taxes for the Plan Year.
6.6 - Eligibility to Participate in Allocation
Each Employee shall be eligible to participate in the allocation
of Employer Contributions beginning on the date he becomes, or
again becomes, an Eligible Employee in accordance with the
provisions of Article III.
6.7 - Vesting of Employer Contributions
A Participant's vested interest in his Matching Contributions
Sub-Account shall be determined in accordance with the following
schedule:
Years of Vesting Service Vested Interest
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%
Notwithstanding the foregoing, if a Participant is employed by an
Employer or a Related Company on his Normal Retirement Date, the
date he becomes physically or mentally disabled such that he can
no longer continue in the service of his Employer and is eligible
to receive a disability benefit under the terms of the Social
Security Act, or the date he dies, his vested interest in his
Matching Contributions Sub-Account shall be 100 percent.
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<PAGE> 41
6.8 - Election of Former Vesting Schedule
If the Sponsor adopts an amendment to the Plan that directly or
indirectly affects the computation of a Participant's vested
interest in his Employer Contributions Sub-Account, any
Participant with three or more years of Vesting Service shall
have a right to have his vested interest in his Employer
Contributions Sub-Account continue to be determined under the
vesting provisions in effect prior to the amendment rather than
under the new vesting provisions, unless the vested interest of
the Participant in his Employer Contributions Sub-Account under
the Plan as amended is not at any time less than such vested
interest determined without regard to the amendment. A
Participant shall exercise his right under this Section by giving
written notice of his exercise thereof to the Administrator
within 60 days after the latest of (i) the date he receives
notice of the amendment from the Administrator, (ii) the
effective date of the amendment, or (iii) the date the amendment
is adopted. Notwithstanding the foregoing, a Participant's
vested interest in his Employer Contributions Sub-Account on the
effective date of such an amendment shall not be less than his
vested interest in his Employer Contributions Sub-Account
immediately prior to the effective date of the amendment.
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<PAGE> 42
ARTICLE VII
LIMITATIONS ON CONTRIBUTIONS
7.1 - Definitions
For purposes of this Article, the following terms have the
following meanings:
(a) The "actual deferral percentage" with respect to an
Eligible Employee for a particular Plan Year means the
ratio of the Tax-Deferred Contributions made on his behalf
for the Plan Year to his test compensation for the Plan
Year; provided, however, that contributions made on a
Participant's behalf for a Plan Year shall be included in
determining his actual deferral percentage for such Plan
Year only if the contributions are made to the Plan prior
to the end of the 12-month period immediately following
the Plan Year to which the contributions relate. The
determination and treatment of the actual deferral
percentage amounts for any Participant shall satisfy such
other requirements as may be prescribed by the Secretary
of the Treasury.
(b) The "aggregate limit" means the sum of (i) 125 percent of
the greater of the average contribution percentage for
eligible participants other than Highly Compensated
Employees or the average actual deferral percentage for
Eligible Employees other than Highly Compensated Employees
and (ii) the lesser of 200 percent or two plus the lesser
of such average contribution percentage or average actual
deferral percentage, or, if it would result in a larger
aggregate limit, the sum of (iii) 125 percent of the
lesser of the average contribution percentage for eligible
participants other than Highly Compensated Employees or
the average actual deferral percentage for Eligible
Employees other than Highly Compensated Employees and (iv)
the lesser of 200 percent or two plus the greater of such
average contribution percentage or average actual deferral
percentage.
(c) The "annual addition" with respect to a Participant for a
limitation year means the sum of the Tax-Deferred
Contributions, Employer Contributions, After-Tax
Contributions, and forfeitures allocated to his Separate
Account for the limitation year (including any excess
contributions that are distributed pursuant to this
Article), the employer contributions, employee
contributions, and forfeitures allocated to his accounts
for the limitation year under any other qualified defined
contribution plan (whether or not terminated) maintained
by an Employer or a Related Company concurrently with the
26
<PAGE> 43
Plan, and amounts described in Sections 415(l)(2) and
419A(d)(2) of the Code allocated to his account for the
limitation year.
(d) The "Code Section 402(g) limit" means the dollar limit
imposed by Section 402(g)(1) of the Code or established by
the Secretary of the Treasury pursuant to Section
402(g)(5) of the Code in effect on January 1 of the
calendar year in which an Eligible Employee's taxable year
begins.
(e) The "contribution percentage" with respect to an eligible
participant for a particular Plan Year means the ratio of
the sum of the matching contributions made to the Plan on
his behalf and the After-Tax Contributions made by him for
the Plan Year to his test compensation for such Plan Year,
except that, to the extent permitted by regulations issued
under Section 401(m) of the Code, the Sponsor may elect to
take into account in computing the numerator of each
eligible participant's contribution percentage the
Tax-Deferred Contributions made to the Plan on his behalf
for the Plan Year; provided, however, that any Tax-
Deferred Contributions that were taken into account in
computing the numerator of an eligible participant's
actual deferral percentage may not be taken into account
in computing the numerator of his contribution percentage;
and provided, further, that contributions made by or on a
Participant's behalf for a Plan Year shall be included in
determining his contribution percentage for such Plan Year
only if the contributions are made to the Plan prior to
the end of the 12-month period immediately following the
Plan Year to which the contributions relate. The
determination and treatment of the contribution percentage
amounts for any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
(f) An "elective contribution" means any employer contribution
made to a plan maintained by an Employer or any Related
Company on behalf of a Participant in lieu of cash
compensation pursuant to his written election to defer
under any qualified CODA as described in Section 401(k) of
the Code, any simplified employee pension cash or deferred
arrangement as described in Section 402(h)(1)(B) of the
Code, any eligible deferred compensation plan under
Section 457 of the Code, or any plan as described in
Section 501(c)(18) of the Code, and any contribution made
on behalf of the Participant by an Employer or a Related
Company for the purchase of an annuity contract under
Section 403(b) of the Code pursuant to a salary reduction
agreement.
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<PAGE> 44
(g) An "eligible participant" means any Employee who is
eligible to make After-Tax Contributions or to have Tax-
Deferred Contributions made on his behalf (if Tax-Deferred
Contributions are taken into account in computing
contribution percentages) or to participate in the
allocation of matching contributions (including
forfeitures).
(h) An "excess deferral" with respect to a Participant means
that portion of a Participant's Tax-Deferred Contributions
that when added to amounts deferred under other plans or
arrangements described in Sections 401(k), 408(k), or
403(b) of the Code, would exceed the Code Section 402(g)
limit and is includable in the Participant's gross income
under Section 402(g) of the Code.
(i) A "family member" of an Employee means the Employee's
spouse, his lineal ascendants, his lineal descendants, and
the spouses of such lineal ascendants and descendants.
(j) A "limitation year" means the calendar year.
(k) A "matching contribution" means any employer contribution
allocated to an Eligible Employee's account under the Plan
or any other plan of an Employer or a Related Company
solely on account of elective contributions made on his
behalf or employee contributions made by him.
(l) The "test compensation" of an Eligible Employee for a Plan
Year means compensation as defined in Section 414(s) of
the Code and regulations issued thereunder, limited,
however, to (1) $200,000 for Plan Years beginning prior to
January 1, 1994, or (2) $150,000 for Plan Years beginning
on or after January 1, 1994 (subject to adjustment
annually as provided in Section 401(a)(17)(B) and Section
415(d) of the Code; provided, however, that the dollar
increase in effect on January 1 of any calendar year, if
any, is effective for Plan Years beginning in such
calendar year). If the test compensation of a Participant
is determined over a period of time that contains fewer
than 12 calendar months, then the annual compensation
limitation described above shall be adjusted with respect
to that Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the
period and the denominator of which is 12; provided,
however, that no proration is required for a Participant
who is covered under the Plan for less than one full Plan
Year if the formula for allocations is based on
Compensation for a period of at least 12 months.
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<PAGE> 45
In determining the test compensation, for purposes of
applying the annual compensation limitation described
above, of a Participant who is a five-percent owner or
among the ten Highly Compensated Employees receiving the
greatest test compensation for the limitation year, the
test compensation of the Participant's spouse and of his
lineal descendants who have not attained age 19 as of the
close of the limitation year shall be included as test
compensation of the Participant for the limitation year.
If as a result of applying the family aggregation rule
described in the preceding sentence the annual
compensation limitation would be exceeded, the limitation
shall be prorated among the affected family members in
proportion to each member's test compensation as
determined prior to application of the family aggregation
rules.
7.2 - Code Section 402(g) Limit
In no event shall the amount of the Tax-Deferred Contributions
made on behalf of an Eligible Employee for his taxable year, when
aggregated with any elective contributions made on behalf of the
Eligible Employee under any other plan of an Employer or a
Related Company for his taxable year, exceed the Code
Section 402(g) limit. In the event that the Administrator
determines that the reduction percentage elected by an Eligible
Employee will result in his exceeding the Code Section 402(g)
limit, the Administrator may adjust the reduction authorization
of such Eligible Employee by reducing the percentage of his
Tax-Deferred Contributions to such smaller percentage that will
result in the Code Section 402(g) limit not being exceeded. If
the Administrator determines that the Tax-Deferred Contributions
made on behalf of an Eligible Employee would exceed the Code
Section 402(g) limit for his taxable year, the Tax-Deferred
Contributions for such Participant shall be automatically
suspended for the remainder, if any, of such taxable year.
If an Employer notifies the Administrator that the Code
Section 402(g) limit has nevertheless been exceeded by an
Eligible Employee for his taxable year, the Tax-Deferred
Contributions that, when aggregated with elective contributions
made on behalf of the Eligible Employee under any other plan of
an Employer or a Related Company, would exceed the Code
Section 402(g) limit, plus any income and minus any losses
attributable thereto, shall be distributed to the Eligible
Employee no later than the April 15 immediately following such
taxable year. Any Tax-Deferred Contributions that are
distributed to an Eligible Employee in accordance with this
Section shall not be taken into account in computing the Eligible
Employee's actual deferral percentage for the Plan Year in which
the Tax-Deferred Contributions were made, unless the Eligible
29
<PAGE> 46
Employee is a Highly Compensated Employee. If an amount of
Tax-Deferred Contributions is distributed to a Participant in
accordance with this Section, matching contributions that are
attributable solely to the distributed Tax-Deferred
Contributions, plus any income and minus any losses attributable
thereto, shall be forfeited by the Participant. Any such
forfeited amounts shall be treated as a forfeiture under the Plan
in accordance with the provisions of Article XIV as of the last
day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.3 - Distribution of Excess Deferrals
Notwithstanding any other provision of the Plan to the contrary,
if a Participant notifies the Administrator in writing no later
than the March 1 following the close of the Participant's taxable
year that excess deferrals have been made on his behalf under the
Plan for such taxable year, the excess deferrals, plus any income
and minus any losses attributable thereto, shall be distributed
to the Participant no later than the April 15 immediately
following such taxable year. Any Tax-Deferred Contributions that
are distributed to a Participant in accordance with this Section
shall nevertheless be taken into account in computing the
Participant's actual deferral percentage for the Plan Year in
which the Tax-Deferred Contributions were made. If an amount of
Tax-Deferred Contributions is distributed to a Participant in
accordance with this Section, matching contributions that are
attributable solely to the distributed Tax-Deferred
Contributions, plus any income and minus any losses attributable
thereto, shall be forfeited by the Participant. Any such
forfeited amounts shall be treated as a forfeiture under the Plan
in accordance with the provisions of Article XIV as of the last
day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
7.4 - Limitation on Tax-Deferred Contributions of Highly
Compensated Employees
Notwithstanding any other provision of the Plan to the contrary,
the Tax-Deferred Contributions made with respect to a Plan Year
on behalf of Eligible Employees who are Highly Compensated
Employees may not result in an average actual deferral percentage
for such Eligible Employees that exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
actual deferral percentage for all other Eligible
Employees; or
(b) a percentage that is not more than 200 percent of the
average actual deferral percentage for all other Eligible
Employees and that is not more than two percentage points
30
<PAGE> 47
higher than the average actual deferral percentage for all
other Eligible Employees.
In order to assure that the limitation contained herein is not
exceeded with respect to a Plan Year, the Administrator is
authorized to suspend completely further Tax-Deferred
Contributions on behalf of Highly Compensated Employees for any
remaining portion of a Plan Year or to adjust the projected
actual deferral percentages of Highly Compensated Employees by
reducing their percentage elections with respect to Tax-Deferred
Contributions for any remaining portion of a Plan Year to such
smaller percentages that will result in the limitation set forth
above not being exceeded. In the event of any such suspension or
reduction, Highly Compensated Employees affected thereby shall be
notified of the reduction or suspension as soon as possible and
shall be given an opportunity to make a new Tax-Deferred
Contribution election to be effective the first day of the next
following Plan Year. In the absence of such an election, the
election in effect immediately prior to the suspension or
adjustment described above shall be reinstated as of the first
day of the next following Plan Year. For purposes of applying the
limitation contained in this Section, the Tax-Deferred Contributions
and test compensation of any Eligible Employee who is a family member
of another Eligible Employee who is a five percent owner or among the
ten Highly Compensated Employees receiving the greatest test compensation
for the Plan Year shall be aggregated with the Tax-Deferred
Contributions and test compensation of such other Eligible
Employee, and such family member shall not be considered an
Eligible Employee for purposes of determining the average actual
deferral percentage for all other Eligible Employees.
In determining the actual deferral percentage for any Eligible
Employee who is a Highly Compensated Employee for the Plan Year,
elective contributions made to his accounts under any other plan
of an Employer or a Related Company shall be treated as if all
such contributions were made to the Plan; provided, however, that
if such a plan has a plan year different from the Plan Year, any
such contributions made to the Highly Compensated Employee's
accounts under the plan for the plan year ending with or within
the same calendar year as the Plan Year shall be treated as if
such contributions were made to the Plan. Notwithstanding the
foregoing, such contributions shall not be treated as if they
were made to the Plan if regulations issued under Section 401(k)
of the Code do not permit such plan to be aggregated with the
Plan.
If one or more plans of an Employer or Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, then
actual deferral percentages under the Plan shall be calculated as
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<PAGE> 48
if the Plan and such one or more other plans were a single plan.
For Plan Years beginning after December 31, 1991, plans may be
aggregated to satisfy Section 401(k) of the Code only if they
have the same plan year.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year.
7.5 - Distribution of Excess Tax-Deferred Contributions
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.4 is
exceeded in any Plan Year, the Tax-Deferred Contributions made
with respect to a Highly Compensated Employee that exceed the
maximum amount permitted to be contributed to the Plan on his
behalf under Section 7.4, plus any income and minus any losses
attributable thereto, shall be distributed to the Highly
Compensated Employee prior to the end of the next succeeding Plan
Year. If excess amounts are attributable to Participants
aggregated under the family aggregation rules described in
Section 7.4, the excess shall be allocated among family members
in proportion to the Tax-Deferred Contributions made with respect
to each family member. If such excess amounts are distributed
more than 2 1/2 months after the last day of the Plan Year for
which the excess occurred, an excise tax may be imposed under
Section 4979 of the Code on the Employer maintaining the Plan
with respect to such amounts.
The maximum amount permitted to be contributed to the Plan on a
Highly Compensated Employee's behalf under Section 7.4 shall be
determined by reducing Tax-Deferred Contributions made on behalf
of Highly Compensated Employees in order of their actual deferral
percentages beginning with the highest of such percentages. The
determination of the amount of excess Tax-Deferred Contributions
shall be made after application of Section 7.3, if applicable.
If an amount of Tax-Deferred Contributions is distributed to a
Participant in accordance with this Section, matching
contributions that are attributable solely to the distributed
Tax-Deferred Contributions, plus any income and minus any losses
attributable thereto, shall be forfeited by the Participant. Any
such forfeited amounts shall be treated as a forfeiture under the
Plan in accordance with the provisions of Article XIV as of the
last day of the month in which the distribution of Tax-Deferred
Contributions pursuant to this Section occurs.
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<PAGE> 49
7.6 - Limitation on Matching Contributions and After-Tax
Contributions of Highly Compensated Employees
Notwithstanding any other provision of the Plan to the contrary,
the matching contributions and After-Tax Contributions made with
respect to a Plan Year by or on behalf of eligible participants
who are Highly Compensated Employees may not result in an average
contribution percentage for such eligible participants that
exceeds the greater of:
(a) a percentage that is equal to 125 percent of the average
contribution percentage for all other eligible
participants; or
(b) a percentage that is not more than 200 percent of the
average contribution percentage for all other eligible
participants and that is not more than two percentage
points higher than the average contribution percentage for
all other eligible participants.
For purposes of applying the limitation contained in this
Section, the matching contributions, After-Tax Contributions,
Tax-Deferred Contributions (to the extent that such Tax-Deferred
Contributions are taken into account in computing contribution
percentages), and test compensation of any eligible participant
who is a family member of another eligible participant who is a
five percent owner or among the ten Highly Compensated Employees
receiving the greatest test compensation for the Plan Year shall
be aggregated with the matching contributions, After-Tax
Contributions, Tax-Deferred Contributions, and test compensation
of such other eligible participant, and such family member shall
not be considered an eligible participant for purposes of
determining the average contribution percentage for all other
eligible participants.
In determining the contribution percentage for any eligible
participant who is a Highly Compensated Employee for the Plan
Year, matching contributions, employee contributions, and
elective contributions (to the extent that elective contributions
are taken into account in computing contribution percentages)
made to his accounts under any other plan of an Employer or a
Related Company shall be treated as if all such contributions
were made to the Plan; provided, however, that if such a plan has
a plan year different from the Plan Year, any such contributions
made to the Highly Compensated Employee's accounts under the plan
for the plan year ending with or within the same calendar year as
the Plan Year shall be treated as if such contributions were made
to the Plan. Notwithstanding the foregoing, such contributions
shall not be treated as if they were made to the Plan if
regulations issued under Section 401(m) of the Code do not permit
such plan to be aggregated with the Plan.
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<PAGE> 50
If one or more plans of an Employer or a Related Company are
aggregated with the Plan for purposes of satisfying the
requirements of Section 401(a)(4) or 410(b) of the Code, the
contribution percentages under the Plan shall be calculated as if
the Plan and such one or more other plans were a single plan.
For Plan Years beginning after December 31, 1989, plans may be
aggregated to satisfy Section 401(m) of the Code only if they
have the same plan year.
The Administrator shall maintain records sufficient to show that
the limitation contained in this Section was not exceeded with
respect to any Plan Year and the amount of the elective
contributions taken into account in computing contribution
percentages for any Plan Year.
7.7 - Forfeiture or Distribution of Excess Contributions
Notwithstanding any other provision of the Plan to the contrary,
in the event that the limitation contained in Section 7.6 is
exceeded in any Plan Year, the matching contributions and
After-Tax Contributions made by or on behalf of a Highly
Compensated Employee that exceed the maximum amount permitted to
be contributed to the Plan by or on behalf of such Highly
Compensated Employee under Section 7.6, plus any income and minus
any losses attributable thereto, shall be forfeited, to the
extent forfeitable, or distributed to the Participant prior to
the end of the next succeeding Plan Year as hereinafter provided.
If excess amounts are attributable to Participants aggregated
under the family aggregation rules described in Section 7.5, the
excess shall be allocated among family members in proportion to
the matching contributions and After-Tax Contributions made with
respect to each family member. If such excess amounts are
distributed more than 2 1/2 months after the last day of the Plan
Year for which the excess occurred, an excise tax may be imposed
under Section 4979 of the Code on the Employer maintaining the
Plan with respect to such amounts.
The maximum amount permitted to be contributed to the Plan by or
on behalf of a Highly Compensated Employee under Section 7.6
shall be determined by reducing matching contributions and
After-Tax Contributions made by or on behalf of Highly
Compensated Employees in order of their contribution percentages
beginning with the highest of such percentages. The distribution
or forfeiture requirement of this Section shall be satisfied by
reducing contributions made by or on behalf of the Highly
Compensated Employee to the extent necessary in the following
order:
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<PAGE> 51
After-Tax Contributions made by the Highly Compensated
Employee that have not been matched, if any, shall be
distributed.
Pro rata amounts of After-Tax Contributions made by the
Highly Compensated Employee that have been matched, if
any, and the matching contributions attributable thereto
shall be distributed or forfeited, as appropriate.
Matching contributions attributable to Tax-Deferred
Contributions shall be distributed or forfeited, as
appropriate.
Any amounts forfeited with respect to a Participant pursuant to
this Section shall be treated as a forfeiture under the Plan in
accordance with the provisions of Article XIV as of the last day
of the month in which the distribution of contributions pursuant
to this Section occurs. The amount of excess After-Tax
Contributions of a Participant shall in all cases be
distributable; the excess matching contributions shall be
distributable to the extent the Participant has a vested interest
in his Employer Contributions Sub-Account that is attributable to
matching contributions. The determination of the amount of
excess matching contributions and After-Tax Contributions shall
be made after application of Section 7.3, if applicable, and
after application of Section 7.5, if applicable.
7.8 - Multiple Use Limitation
Notwithstanding any other provision of the Plan to the contrary,
the following multiple use limitation as required under
Section 401(m) of the Code shall apply: the sum of the average
actual deferral percentage for Eligible Employees who are Highly
Compensated Employees and the average contribution percentage for
eligible participants who are Highly Compensated Employees may
not exceed the aggregate limit. In the event that, after
satisfaction of Section 7.5 and Section 7.7, it is determined
that contributions under the Plan fail to satisfy the multiple
use limitation contained herein, the multiple use limitation
shall be satisfied by further reducing the actual deferral
percentages of Eligible Employees who are Highly Compensated
Employees (beginning with the highest such percentage) to the
extent necessary to eliminate the excess, with such further
reductions to be treated as excess Tax-Deferred Contributions and
disposed of as provided in Section 7.5, or in an alternative
manner, consistently applied, that may be permitted by
regulations issued under Section 401(m) of the Code.
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<PAGE> 52
7.9 - Determination of Income or Loss
The income or loss attributable to excess contributions that are
distributed pursuant to this Article shall be determined for the
preceding Plan Year under the method otherwise used for
allocating income or loss to Participant's Separate Accounts.
7.10 - Code Section 415 Limitations on Crediting of Contributions
and Forfeitures
Notwithstanding any other provision of the Plan to the contrary,
the annual addition with respect to a Participant for a
limitation year shall in no event exceed the lesser of
(i) $30,000 (adjusted as provided in Section 415(d) of the Code,
with the first adjustment being made for limitation years
beginning on or after January 1, 1996) or (ii) 25 percent of the
Participant's compensation, as defined in Section 415(c)(3) of
the Code and regulations issued thereunder, for the limitation
year. If the annual addition to the Separate Account of a
Participant in any limitation year would otherwise exceed the
amount that may be applied for his benefit under the limitation
contained in this Section, the limitation shall be satisfied by
reducing contributions made by or on behalf of the Participant to
the extent necessary in the following order:
After-Tax Contributions made by the Participant for the
limitation year that have not been matched, if any, shall
be reduced.
After-Tax Contributions made by the Participant for the
limitation year that have been matched and the matching
contributions attributable thereto, if any, shall be
reduced pro rata.
Tax-Deferred Contributions made on the Participant's
behalf for the limitation year that have not been matched,
if any, shall be reduced.
Tax-Deferred Contributions made on the Participant's
behalf for the limitation year that have been matched and
the matching contributions attributable thereto, if any,
shall be reduced pro rata.
Employer Contributions (other than matching contributions)
and forfeitures otherwise allocable to the Participant's
Separate Account for the limitation year shall be reduced.
The amount of any reduction of Tax-Deferred Contributions or
After-Tax Contributions (plus any income attributable thereto)
shall be returned to the Participant. The amount of any
reduction of Employer Contributions shall be deemed a forfeiture
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<PAGE> 53
for the limitation year. Amounts deemed to be forfeitures under
this Section shall be held unallocated in a suspense account
established for the limitation year and shall be applied against
the Employer's contribution obligation for the next following
limitation year (and succeeding limitation years, as necessary).
If a suspense account is in existence at any time during a
limitation year, all amounts in the suspense account must be
allocated to Participants' Separate Accounts (subject to the
limitations contained herein) before any further Tax-Deferred
Contributions, Employer Contributions, or After-Tax Contributions
may be made to the Plan by or on behalf of Participants. No
suspense account established hereunder shall share in any
increase or decrease in the net worth of the Trust. For purposes
of this Article, excesses shall result only from the allocation
of forfeitures, a reasonable error in estimating a Participant's
annual compensation (as defined in Section 415(c)(3) of the Code
and regulations issued thereunder), a reasonable error in
determining the amount of Tax-Deferred Contributions that may be
made with respect to any Participant under the limits of
Section 415 of the Code, or other limited facts and circumstances
that justify the availability of the provisions set forth above.
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7.11 - Coverage Under Other Qualified Defined Contribution Plan
If a Participant is covered by any other qualified defined
contribution plan (whether or not terminated) maintained by an
Employer or a Related Company concurrently with the Plan, and if
the annual addition for the limitation year would otherwise
exceed the amount that may be applied for the Participant's
benefit under the limitation contained in Section 7.10, such
excess shall be reduced first by returning the employee
contributions made by the Participant for the limitation year
under all of the defined contribution plans other than the Plan
and the income attributable thereto to the extent necessary. If
the limitation contained in Section 7.10 is still not satisfied
after returning all of the employee contributions made by the
Participant under all such other plans, the excess shall be
reduced by returning the elective contributions made on the
Participant's behalf for the limitation year under all such other
plans and the income attributable thereto to the extent necessary
on a pro rata basis among all of such plans. If the limitation
contained in Section 7.10 is still not satisfied after returning
all of the elective contributions made on the Participant's
behalf under all such other plans, the procedure set forth in
Section 7.10 shall be invoked to eliminate any such excess. If
the limitation contained in Section 7.10 is still not satisfied
after invocation of the procedure set forth in Section 7.10, the
portion of the employer contributions and of forfeitures for the
limitation year under all such other plans that has been
allocated to the Participant thereunder, but which exceeds the
limitation set forth in Section 7.10, shall be deemed a
forfeiture for the limitation year and shall be disposed of as
provided in such other plans; provided, however, that if the
Participant is covered by a money purchase pension plan, the
forfeiture shall be effected first under any other defined
contribution plan that is not a money purchase pension plan and,
if the limitation is still not satisfied, then under such money
purchase pension plan.
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7.12 - Coverage Under Qualified Defined Benefit Plan
If a Participant in the Plan is also covered by a qualified
defined benefit plan (whether or not terminated) maintained by an
Employer or a Related Company, in no event shall the sum of the
defined benefit plan fraction (as defined in Section 415(e)(2) of
the Code) and the defined contribution plan fraction (as defined
in Section 415(e)(3) of the Code) exceed 1.0 in any limitation
year. If, before October 3, 1973, the Participant was an active
participant in a qualified defined benefit plan maintained by an
Employer or a Related Company and otherwise satisfies the
requirements of Section 2004(d)(2) of ERISA, then for purposes of
applying this Section, the defined benefit plan fraction shall
not exceed 1.0. In the event the special limitation contained in
this Section is exceeded, the benefits otherwise payable to the
Participant under any such qualified defined benefit plan shall
be reduced to the extent necessary to meet such limitation.
7.13 - Scope of Limitations
The limitations contained in Sections 7.10, 7.11, and 7.12 shall
be applicable only with respect to benefits provided pursuant to
defined contribution plans and defined benefit plans described in
Section 415(k) of the Code.
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ARTICLE VIII
TRUST FUNDS AND SEPARATE ACCOUNTS
8.1 - General Fund
The Trustee shall maintain a General Fund as required to hold and
administer any assets of the Trust that are not allocated among
the Investment Funds as provided in the Plan or the Trust
Agreement. The General Fund shall be held and administered as a
separate common trust fund. The interest of each Participant or
Beneficiary under the Plan in the General Fund shall be an
undivided interest. The General Fund may be invested in whole or
in part in equity securities issued by an Employer or a Related
Company that are publicly traded and are "qualifying employer
securities" as defined in Section 407(d)(5) of ERISA.
8.2 - Investment Funds
The Sponsor shall determine the number and type of Investment
Funds and select the investments for such Investment Funds. The
Sponsor shall communicate the same and any changes therein in
writing to the Administrator and the Trustee. Each Investment
Fund shall be held and administered as a separate common trust
fund. The interest of each Participant or Beneficiary under the
Plan in any Investment Fund shall be an undivided interest.
The Sponsor may determine to offer one or more Investment Funds
that are invested in whole or in part in equity securities issued
by an Employer or a Related Company that are publicly traded and
are "qualifying employer securities" as defined in Section
407(d)(5) of ERISA.
8.3 - Loan Investment Fund
If a loan from the Plan to a Participant is approved in
accordance with the provisions of Article XII, the Sponsor shall
direct the establishment and maintenance of a loan Investment
Fund in the Participant's name. The assets of the loan
Investment Fund shall be held as a separate trust fund. A
Participant's loan Investment Fund shall be invested in the note
reflecting the loan that is executed by the Participant in
accordance with the provisions of Article XII. Notwithstanding
any other provision of the Plan to the contrary, income received
with respect to a Participant's loan Investment Fund shall be
allocated and the loan Investment Fund shall be administered as
provided in Article XII.
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8.4 - Income on Trust
Any dividends, interest, distributions, or other income received
by the Trustee with respect to any Trust Fund maintained
hereunder shall be allocated by the Trustee to the Trust Fund for
which the income was received.
8.5 - Separate Accounts
As of the first date a contribution is made by or on behalf of an
Employee, there shall be established a Separate Account in his
name reflecting his interest in the Trust. Each Separate Account
shall be maintained and administered for each Participant and
Beneficiary in accordance with the provisions of the Plan. The
balance of each Separate Account shall be the balance of the
account after all credits and charges thereto, for and as of such
date, have been made as provided herein.
8.6 - Sub-Accounts
A Participant's Separate Account shall be divided into individual
Sub-Accounts reflecting the portion of the Participant's Separate
Account that is derived from Tax-Deferred Contributions, After-
Tax Contributions, Rollover Contributions, or Employer
Contributions. Each Sub-Account shall reflect separately
contributions allocated to each Trust Fund maintained hereunder
and the earnings and losses attributable thereto. Such other
Sub-Accounts may be established as are necessary or appropriate
to reflect a Participant's interest in the Trust.
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ARTICLE IX
LIFE INSURANCE CONTRACTS
9.1 - No Life Insurance Contracts
There shall be no life insurance contracts purchased under the
Plan.
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ARTICLE X
DEPOSIT AND INVESTMENT OF CONTRIBUTIONS
10.1 - Future Contribution Investment Elections
Each Eligible Employee shall make an investment election in the
manner and form prescribed by the Administrator directing the
manner in which his Tax-Deferred Contributions, After-Tax
Contributions, Rollover Contributions, and Employer Contributions
shall be invested. An Eligible Employee's investment election
shall specify the percentage, in the percentage increments
prescribed by the Administrator, of such contributions that shall
be allocated to one or more of the Investment Funds with the sum
of such percentages equaling 100 percent. The investment
election by a Participant shall remain in effect until his entire
interest under the Plan is distributed or forfeited in accordance
with the provisions of the Plan or until he files a change of
investment election with the Administrator, in such form as the
Administrator shall prescribe. A Participant's change of
investment election may be made effective as of the date or dates
prescribed by the Administrator.
10.2 - Deposit of Contributions
All Tax-Deferred Contributions, After-Tax Contributions, Rollover
Contributions, and Employer Contributions shall be deposited in
the Trust and allocated among the Investment Funds in accordance
with the Participant's currently effective investment election;
provided, however, that any contributions made to the Plan in
qualifying employer securities shall be allocated to the Employer
securities Investment Fund established by the Sponsor, pending
directions to the Administrator regarding their future
investment. If no investment election is on file with the
Administrator at the time contributions are to be deposited to a
Participant's Separate Account, the Participant shall be notified
and an investment election form shall be provided to him. Until
such Participant shall make an effective election under this
Section, his contributions shall be allocated among the
Investment Funds as directed by the Administrator.
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10.3 - Election to Transfer Between Funds
A Participant may elect to transfer investments from any
Investment Fund to any other Investment Fund. The Participant's
transfer election shall specify either (i) a percentage, in the
percentage increments prescribed by the Administrator, of the
amount eligible for transfer, which percentage may not exceed
100 percent, or (ii) a dollar amount that is to be transferred.
Subject to any restrictions pertaining to a particular Investment
Fund, a Participant's transfer election may be made effective as
of the date or dates prescribed by the Administrator.
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ARTICLE XI
CREDITING AND VALUING SEPARATE ACCOUNTS
11.1 - Crediting Separate Accounts
All contributions made under the provisions of the Plan shall be
credited to Separate Accounts in the Trust Funds by the Trustee,
in accordance with procedures established in writing by the
Administrator, either when received or on the succeeding
Valuation Date after valuation of the Trust Fund has been
completed for such Valuation Date as provided in Section 11.2, as
shall be determined by the Administrator.
11.2 - Valuing Separate Accounts
Separate Accounts in the Trust Funds shall be valued by the
Trustee on the Valuation Date, in accordance with procedures
established in writing by the Administrator, either in the manner
adopted by the Trustee and approved by the Administrator or in
the manner set forth in Section 11.3 as Plan valuation
procedures, as determined by the Administrator.
11.3 - Plan Valuation Procedures
With respect to the Trust Funds, the Administrator may determine
that the following valuation procedures shall be applied. As of
each Valuation Date hereunder, the portion of any Separate
Accounts in a Trust Fund shall be adjusted to reflect any
increase or decrease in the value of the Trust Fund for the
period of time occurring since the immediately preceding
Valuation Date for the Trust Fund (the "valuation period") in the
following manner:
(a) First, the value of the Trust Fund shall be determined by
valuing all of the assets of the Trust Fund at fair market
value.
(b) Next, the net increase or decrease in the value of the
Trust Fund attributable to net income and all profits and
losses, realized and unrealized, during the valuation
period shall be determined on the basis of the valuation
under paragraph (a) taking into account appropriate
adjustments for contributions, loan payments, and
transfers to and distributions, withdrawals, loans, and
transfers from such Trust Fund during the valuation
period.
(c) Finally, the net increase or decrease in the value of the
Trust Fund shall be allocated among Separate Accounts in
the Trust Fund in the ratio of the balance of the portion
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of such Separate Account in the Trust Fund as of the
preceding Valuation Date less any distributions,
withdrawals, loans, and transfers from such Separate
Account balance in the Trust Fund since the Valuation Date
to the aggregate balances of the portions of all Separate
Accounts in the Trust Fund similarly adjusted, and each
Separate Account in the Trust Fund shall be credited or
charged with the amount of its allocated share.
Notwithstanding the foregoing, the Administrator may adopt
such accounting procedures as it considers appropriate and
equitable to establish a proportionate crediting of net
increase or decrease in the value of the Trust Fund for
contributions, loan payments, and transfers to and
distributions, withdrawals, loans, and transfers from such
Trust Fund made by or on behalf of a Participant during
the valuation period.
11.4 - Finality of Determinations
The Trustee shall have exclusive responsibility for determining
the balance of each Separate Account maintained hereunder. The
Trustee's determinations thereof shall be conclusive upon all
interested parties.
11.5 - Notification
Within a reasonable period of time after the end of each Plan
Year, the Administrator shall notify each Participant and
Beneficiary of the balances of his Separate Account and
Sub-Accounts as of a Valuation Date during the Plan Year.
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ARTICLE XII
LOANS
12.1 - Application for Loan
A Participant who is a party in interest may make written
application to the Administrator for a loan from his Separate
Account.
As collateral for any loan granted hereunder, the Participant
shall grant to the Plan a security interest in his vested
interest under the Plan equal to the amount of the loan;
provided, however, that in no event may the security interest
exceed 50 percent of the Participant's vested interest under the
Plan determined as of the date as of which the loan is originated
in accordance with Plan provisions. In the case of a Participant
who is an active employee, the Participant also shall enter into
an agreement to repay the loan by payroll withholding. No loan
in excess of 50 percent of the Participant's vested interest
under the Plan shall be made from the Plan. Loans shall not be
made available to Highly Compensated Employees in an amount
greater than the amount made available to other employees.
A loan shall not be granted unless the Participant consents in
writing to the charging of his Separate Account for unpaid
principal and interest amounts in the event the loan is declared
to be in default.
12.2 - Reduction of Account Upon Distribution
Notwithstanding any other provision of the Plan, the amount of a
Participant's Separate Account that is distributable to the
Participant or his Beneficiary under Article XIII or XV shall be
reduced by the portion of his vested interest that is held by the
Plan as security for any loan outstanding to the Participant,
provided that the reduction is used to repay the loan. If
distribution is made because of the Participant's death prior to
the commencement of distribution of his Separate Account and less
than 100 percent of the Participant's vested interest in his
Separate Account (determined without regard to the preceding
sentence) is payable to his surviving spouse, then the balance of
the Participant's vested interest in his Separate Account shall
be adjusted by reducing the vested account balance by the amount
of the security used to repay the loan, as provided in the
preceding sentence, prior to determining the amount of the
benefit payable to the surviving spouse.
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12.3 - Requirements to Prevent a Taxable Distribution
Notwithstanding any other provision of the Plan to the contrary,
the following terms and conditions shall apply to any loan made
to a Participant under this Article:
(a) The interest rate on any loan to a Participant shall be a
reasonable interest rate commensurate with current
interest rates charged for loans made under similar
circumstances by persons in the business of lending money.
(b) The amount of any loan to a Participant (when added to the
outstanding balance of all other loans to the Participant
from the Plan or any other plan maintained by an Employer
or a Related Company) shall not exceed the lesser of:
(i) $50,000, reduced by the excess, if any, of the
highest outstanding balance of any other loan to
the Participant from the Plan or any other plan
maintained by an Employer or a Related Company
during the preceding 12-month period over the
outstanding balance of such loans on the date a
loan is made hereunder; or
(ii) 50 percent of the vested portions of the
Participant's Separate Account and his vested
interest under all other plans maintained by an
Employer or a Related Company.
(c) The term of any loan to a Participant shall be no greater
than five years.
(d) Except as otherwise permitted under Treasury regulations,
substantially level amortization shall be required over
the term of the loan with payments made not less
frequently than quarterly.
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12.4 - Administration of Loan Investment Fund
Upon approval of a loan to a Participant, the Administrator shall
direct the Trustee to transfer an amount equal to the loan amount
from the Investment Funds in which it is invested, as directed by
the Administrator, to the loan Investment Fund established in the
Participant's name. Any loan approved by the Administrator shall
be made to the Participant out of the Participant's loan
Investment Fund. All principal and interest paid by the
Participant on a loan made under this Article shall be deposited
to his Separate Account and shall be allocated upon receipt among
the Investment Funds in accordance with the Participant's
currently effective investment election. The balance of the
Participant's loan Investment Fund shall be decreased by the
amount of principal payments and the loan Investment Fund shall
be terminated when the loan has been repaid in full.
12.5 - Default
If a Participant fails to make or cause to be made, any payment
required under the terms of the loan within 90 days following the
date on which such payment shall become due or there is an
outstanding principal balance existing on a loan after the last
scheduled repayment date, the Administrator shall direct the
Trustee to declare the loan to be in default, and the entire
unpaid balance of such loan, together with accrued interest,
shall be immediately due and payable. In any such event, if such
balance and interest thereon is not then paid, the Trustee shall
charge the Separate Account of the borrower with the amount of
such balance and interest as of the earliest date a distribution
may be made from the Plan to the borrower without adversely
affecting the tax qualification of the Plan or of the cash or
deferred arrangement.
12.6 - Special Rules Applicable to Loans
Any loan made hereunder shall be subject to the following rules:
(a) Minimum Loan Amount: A Participant may not request a loan
for less than $1,000.
(b) Maximum Number of Outstanding Loans: A Participant may
not have more than two outstanding loans at any time. A
Participant with two outstanding loans may not apply for
another loan until all but one of the existing loans is
repaid in full and may not refinance an existing loan or
obtain a third loan for the purpose of paying off an
existing loan.
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(c) Pre-Payment Without Penalty: A Participant may pre-pay
the balance of any loan hereunder prior to the date it is
due without penalty.
12.7 - Loans Granted Prior to Amendment
Notwithstanding any other provision of this Article to the
contrary, any loan made under the provisions of the Plan as in
effect prior to this amendment and restatement shall remain
outstanding until repaid in accordance with its terms or the
otherwise applicable Plan provisions.
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ARTICLE XIII
WITHDRAWALS WHILE EMPLOYED
13.1 - Withdrawals of After-Tax Contributions
A Participant who is employed by an Employer or a Related Company
may elect in writing, subject to the limitations and conditions
prescribed in this Article, to make a cash withdrawal from his
After-Tax Contributions Sub-Account.
13.2 - Withdrawals of Rollover Contributions
A Participant who is employed by an Employer or a Related Company
and is determined by the Administrator to have incurred a
hardship as defined in this Article may elect in writing, subject
to the limitations and conditions prescribed in this Article, to
make a cash withdrawal from his Rollover Contributions Sub-
Account.
13.3 - Withdrawals of Employer Contributions
A Participant who is employed by an Employer or a Related Company
and is determined by the Administrator to have incurred a
hardship as defined in this Article may elect in writing, subject
to the limitations and conditions prescribed in this Article to
make a cash withdrawal from his vested interest in his Employer
Contributions Sub-Account. The maximum amount that a Participant
may withdraw pursuant to this Section shall be an amount ("X")
determined by the following formula:
X = P(AB + D) - D
For purposes of the formula:
P = The Participant's vested interest in his Employer
Contributions Sub-Account on the date distribution
is to be made.
AB = The balance of the Participant's Employer
Contributions Sub-Account as of the Valuation Date
immediately preceding the date distribution is to
be made.
D = The amount of all prior withdrawals from the
Participant's Employer Contributions Sub-Account
made pursuant to this Section.
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13.4 - Withdrawals of Tax-Deferred Contributions
A Participant who is employed by an Employer or a Related Company
and who is determined by the Administrator to have incurred a
hardship as defined in this Article may elect in writing, subject
to the limitations and conditions prescribed in this Article, to
make a cash withdrawal from his Tax-Deferred Contributions Sub-
Account. The maximum amount that a Participant may withdraw
pursuant to this Section because of a hardship is the balance of
his Tax-Deferred Contributions Sub-Account, exclusive of any
earnings credited to such Sub-Account.
13.5 - Limitations on Withdrawals Other than Hardship Withdrawals
Withdrawals made pursuant to this Article, other than hardship
withdrawals, shall be subject to the following conditions and
limitations:
A Participant must file a written withdrawal application
with the Administrator such number of days prior to the date
as of which it is to be effective as the Administrator shall
prescribe.
Withdrawals may be made effective as soon as reasonably
practicable following the Administrator's receipt of the
Participant's directions.
A Participant who makes a withdrawal from his After-Tax
Contributions Sub-Account may not make a further withdrawal
of After-Tax Contributions, other than a hardship
withdrawal, under this Article during the remainder of the
Plan Year in which the fourth such withdrawal in that Plan
Year is effective.
13.6 - Conditions and Limitations on Hardship Withdrawals
A Participant must file a written application for a hardship
withdrawal with the Administrator such number of days prior to
the date as of which it is to be effective as the Administrator
may prescribe. Hardship withdrawals may be made effective as
soon as reasonably practicable following the Administrator's
receipt of the Participant's directions. The Administrator shall
grant a hardship withdrawal only if it determines that the
withdrawal is necessary to meet an immediate and heavy financial
need of the Participant. An immediate and heavy financial need
of the Participant means a financial need on account of:
(a) expenses previously incurred by or necessary to obtain for
the Participant, the Participant's spouse, or any
dependent of the Participant (as defined in Section 152 of
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the Code) medical care described in Section 213(d) of the
Code;
(b) costs directly related to the purchase (excluding mortgage
payments) of a principal residence for the Participant;
(c) payment of tuition, related educational fees, and room and
board expenses for the next 12 months of post-secondary
education for the Participant, the Participant's spouse,
or any dependent of the Participant; or
(d) the need to prevent the eviction of the Participant from
his principal residence or foreclosure on the mortgage of
the Participant's principal residence.
A withdrawal shall be deemed to be necessary to satisfy an
immediate and heavy financial need of a Participant only if all
of the following requirements are satisfied:
The withdrawal is not in excess of the amount of the
immediate and heavy financial need of the Participant.
The Participant has obtained all distributions, other than
hardship distributions, and all non-taxable loans
currently available under all plans maintained by an
Employer or any Related Company.
The Participant's Tax-Deferred Contributions and After-Tax
Contributions and the Participant's elective tax-deferred
contributions and employee after-tax contributions under
all other tax-qualified plans maintained by an Employer or
any Related Company shall be suspended for at least twelve
months after his receipt of the withdrawal.
The Participant shall not make Tax-Deferred Contributions
or elective tax-deferred contributions under any other
tax-qualified plan maintained by an Employer or any
Related Company for the Participant's taxable year
immediately following the taxable year of the withdrawal
in excess of the applicable limit under Section 402(g) of
the Code for such next taxable year less the amount of the
Participant's Tax-Deferred Contributions and elective tax-
deferred contributions under any other plan maintained by
an Employer or any Related Company for the taxable year of
the withdrawal.
The minimum hardship withdrawal that a Participant may make is
$1,000. The amount of a hardship withdrawal may include any
amounts necessary to pay any Federal, state, or local income
taxes or penalties reasonably anticipated to result from the
distribution. A Participant shall not fail to be treated as an
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Eligible Employee for purposes of applying the limitations
contained in Article VII of the Plan merely because his Tax-
Deferred Contributions are suspended in accordance with this
Section.
13.7 - Order of Withdrawal from a Participant's Sub-Accounts
Distribution of a withdrawal amount shall be made from a
Participant's Sub-Accounts, to the extent necessary, in the order
prescribed by the Administrator, which order shall be uniform
with respect to all Participants and non-discriminatory. If the
Sub-Account from which a Participant is receiving a withdrawal is
invested in more than one Investment Fund, the withdrawal shall
be charged against the Investment Funds as directed by the
Administrator.
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ARTICLE XIV
TERMINATION OF EMPLOYMENT AND SETTLEMENT DATE
14.1 - Termination of Employment and Settlement Date
A Participant's Settlement Date shall occur on the date he
terminates employment with an Employer and all Related Companies
because of death, disability, retirement, or other termination of
employment. Written notice of a Participant's Settlement Date
shall be given by the Administrator to the Trustee.
14.2 - Separate Accounting for Non-Vested Amounts
If as of a Participant's Settlement Date the Participant's vested
interest in his Employer Contributions Sub-Account is less than
100 percent, that portion of his Employer Contributions
Sub-Account that is not vested shall be accounted for separately
from the vested portion and shall be disposed of as provided in
the following Section. If prior to his Settlement Date such a
Participant made a withdrawal in accordance with the provisions
of Article XIII, the vested portion of his Employer Contributions
Sub-Account shall be equal to the maximum withdrawable amount as
determined under Article XIII.
14.3 - Disposition of Non-Vested Amounts
That portion of a Participant's Employer Contributions
Sub-Account that is not vested upon the occurrence of his
Settlement Date shall be disposed of as follows:
(a) If the Participant has no vested interest in his Separate
Account upon the occurrence of his Settlement Date or his
vested interest in his Separate Account as of the date of
distribution does not exceed $3,500 resulting in the
Participant's receipt of a single sum payment of such
vested interest, the non-vested balance remaining in the
Participant's Employer Contributions Sub-Account will be
forfeited and his Separate Account closed as of (i) the
Participant's Settlement Date, if the Participant has no
vested interest in his Separate Account, or (ii) the date
the single sum payment occurs.
(b) If the Participant's vested interest in his Separate
Account exceeds $3,500 and the Participant is eligible for
and consents in writing to a single sum payment of his
vested interest in his Separate Account, the non-vested
balance remaining in the Participant's Employer
Contributions Sub-Account will be forfeited and his
Separate Account closed as of the date the single sum
payment occurs, provided that such distribution occurs
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prior to the end of the second Plan Year beginning on or
after the Participant's Settlement Date.
(c) If neither paragraph (a) nor paragraph (b) is applicable,
the non-vested portion of the Participant's Employer
Contributions Sub-Account will continue to be held in such
Sub-Account and will not be forfeited until the end of the
five-year period beginning on his Settlement Date.
Whenever the non-vested portion of a Participant's Employer
Contributions Sub-Account is forfeited under the provisions of
the Plan with respect to a Plan Year, the amount of such
forfeiture, as of the last day of the Plan Year, shall be
allocated among the Separate Accounts of Participants who have a
Tax-Deferred Contribution or After-Tax Contribution election in
effect as of the last day of the Plan Year in which the
forfeiture occurs. Any forfeited amounts shall be allocated such
that each such Employee shall be equal to the product of (1) the
sum of all eligible Employees' "service units" and (2) the
"dollar unit value" for the Plan Year. For purposes of this
section, an eligible Employee shall be awarded one "service unit"
for each month of service completed by him during the Plan Year.
Also, for purposes of this section, the "dollar unit value" for a
Plan Year shall be equal to the amount of forfeitures for the
Plan Year divided by the total "service units" awarded to all
eligible Employees for such Plan Year. Forfeitures credited to a
Participant's Separate Account hereunder shall be credited to his
Employer Contributions Sub-Account. A Participant's vested
interest in amounts attributable to forfeitures allocated to his
Employer Contributions Sub-Account shall be determined in the
same way as his vested interest in Employer Contributions.
14.4 - Recrediting of Forfeited Amounts
A former Participant who forfeited the non-vested portion of his
Employer Contributions Sub-Account in accordance with the
provisions of this Article and who is reemployed by an Employer
or a Related Company shall have such forfeited amounts recredited
to a new Separate Account in his name, without adjustment for
interim gains or losses experienced by the Trust, if:
(a) he returns to employment with an Employer or a Related
Company before the end of the five-year period beginning
on the later of his Settlement Date or the date he
received distribution of his vested interest in his
Separate Account; and
(b) he resumes employment covered under the Plan before the
end of the five-year period beginning on the date he is
reemployed.
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Funds needed in any Plan Year to recredit the Separate Account of
a Participant with the amounts of prior forfeitures in accordance
with the preceding sentence shall come first from forfeitures
that arise during such Plan Year, and then from Trust income
earned in such Plan Year, with each Trust Fund being charged with
the amount of such income proportionately, unless his Employer
chooses to make an additional Employer Contribution, and shall
finally be provided by his Employer by way of a separate Employer
Contribution.
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ARTICLE XV
DISTRIBUTIONS
15.1 - Distributions to Participants
A Participant whose Settlement Date occurs shall receive
distribution of his vested interest in his Separate Account in
the form provided under Article XVI beginning as soon as
reasonably practicable following his Settlement Date or the date
his application for distribution is filed with the Administrator,
if later. In addition, a Participant who continues in employment
with an Employer or a Related Company after his Normal Retirement
Date may elect to receive distribution of all or any portion of
his Separate Account in the form provided under Article XVI at
any time following his Normal Retirement Date.
15.2 - Distributions to Beneficiaries
If a Participant dies prior to the date distribution of his
vested interest in his Separate Account begins under this
Article, his Beneficiary shall receive distribution of the
Participant's vested interest in his Separate Account in the form
provided under Article XVI beginning as soon as reasonably
practicable following the date the Beneficiary's application for
distribution is filed with the Administrator. Unless
distribution is to be made over the life or over a period certain
not greater than the life expectancy of the Beneficiary,
distribution of the Participant's entire vested interest shall be
made to the Beneficiary no later than the end of the fifth
calendar year beginning after the Participant's death. If
distribution is to be made over the life or over a period certain
no greater than the life expectancy of the Beneficiary,
distribution shall commence no later than:
(a) If the Beneficiary is not the Participant's spouse, the
end of the first calendar year beginning after the
Participant's death; or
(b) If the Beneficiary is the Participant's spouse, the later
of (i) the end of the first calendar year beginning after
the Participant's death or (ii) the end of the calendar
year in which the Participant would have attained age
70 1/2.
If distribution is to be made to a Participant's spouse, it shall
be made available within a reasonable period of time after the
Participant's death that is no less favorable than the period of
time applicable to other distributions. If a Participant dies
after the date distribution of his vested interest in his
Separate Account begins under this Article, but before his entire
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vested interest in his Separate Account is distributed, his
Beneficiary shall receive distribution of the remainder of the
Participant's vested interest in his Separate Account beginning
as soon as reasonably practicable following the Participant's
date of death in a form that provides for distribution at least
as rapidly as under the form in which the Participant was
receiving distribution.
15.3 - Cash Outs and Participant Consent
Notwithstanding any other provision of the Plan to the contrary,
if a Participant's vested interest in his Separate Account does
not exceed $3,500, distribution of such vested interest shall be
made to the Participant in a single sum payment as soon as
reasonably practicable following his Settlement Date. If a
Participant's vested interest in his Separate Account is $0, he
shall be deemed to have received distribution of such vested
interest as of his Settlement Date. If a Participant's vested
interest in his Separate Account exceeds $3,500, distribution
shall not commence to such Participant prior to his Normal
Retirement Date without the Participant's written consent. If at
the time of a distribution or deemed distribution to a
Participant from his Separate Account, the Participant's vested
interest in his Separate Account exceeded $3,500, then for
purposes of this Section, the Participant's vested interest in
his Separate Account on any subsequent date shall be deemed to
exceed $3,500.
15.4 - Required Commencement of Distribution
Notwithstanding any other provision of the Plan to the contrary,
distribution of a Participant's vested interest in his Separate
Account shall commence to the Participant no later than the
earlier of:
(a) Unless the Participant elects a later date, 60 days after
the close of the Plan Year in which (i) the Participant's
Normal Retirement Date occurs, (ii) the 10th anniversary
of the year in which he commenced participation in the
Plan occurs, or (iii) his Settlement Date occurs,
whichever is latest; or
(b) the April 1 following the close of the calendar year in
which he attains age 70 1/2, whether or not his Settlement
Date has occurred, except that if a Participant attained
age 70 1/2 prior to January 1, 1988, and was not a
five-percent owner (as defined in Section 416 of the Code)
at any time during the five-Plan-Year period ending within
the calendar year in which he attained age 70 1/2,
distribution of such Participant's vested interest in his
Separate Account shall commence no later than the April 1
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following the close of the calendar year in which he
attains age 70 1/2 or retires, whichever is later.
Distributions required to commence under this Section shall be
made in the form provided under Article XVI and in accordance
with Section 401(a)(9) of the Code and regulations issued
thereunder, including the minimum distribution incidental benefit
requirements.
15.5 - Reemployment of a Participant
If a Participant whose Settlement Date has occurred is reemployed
by an Employer or a Related Company, he shall lose his right to
any distribution or further distributions from the Trust arising
from his prior Settlement Date and his interest in the Trust
shall thereafter be treated in the same manner as that of any
other Participant whose Settlement Date has not occurred.
15.6 - Restrictions on Alienation
Except as provided in Section 401(a)(13) of the Code relating to
qualified domestic relations orders and Section 1.401(a)-13(b)(2)
of Treasury regulations relating to Federal tax levies and
judgments, no benefit under the Plan at any time shall be subject
in any manner to anticipation, alienation, assignment (either at
law or in equity), encumbrance, garnishment, levy, execution, or
other legal or equitable process; and no person shall have power
in any manner to anticipate, transfer, assign (either at law or
in equity), alienate or subject to attachment, garnishment, levy,
execution, or other legal or equitable process, or in any way
encumber his benefits under the Plan, or any part thereof, and
any attempt to do so shall be void.
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15.7 - Facility of Payment
If the Administrator finds that any individual to whom an amount
is payable hereunder is incapable of attending to his financial
affairs because of any mental or physical condition, including
the infirmities of advanced age, such amount (unless prior claim
therefor shall have been made by a duly qualified guardian or
other legal representative) may, in the discretion of the
Administrator, be paid to another person for the use or benefit
of the individual found incapable of attending to his financial
affairs or in satisfaction of legal obligations incurred by or on
behalf of such individual. The Trustee shall make such payment
only upon receipt of written instructions to such effect from the
Administrator. Any such payment shall be charged to the Separate
Account from which any such payment would otherwise have been
paid to the individual found incapable of attending to his
financial affairs and shall be a complete discharge of any
liability therefor under the Plan.
15.8 - Inability to Locate Payee
If any benefit becomes payable to any person, or to the executor
or administrator of any deceased person, and if that person or
his executor or administrator does not present himself to the
Administrator within a reasonable period after the Administrator
mails written notice of his eligibility to receive a distribution
hereunder to his last known address and makes such other diligent
effort to locate the person as the Administrator determines, that
benefit will be forfeited. However, if the payee later files a
claim for that benefit, the benefit will be restored.
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ARTICLE XVI
FORM OF PAYMENT
16.1 - Form of Payment
Distribution shall be made to a Participant, or his Beneficiary,
if the Participant has died, in a single sum payment.
Notwithstanding the foregoing, if a Participant continues in
employment with an Employer or a Related Company after the date
as of which distribution of his vested interest must commence in
accordance with the requirements of Section 401(a)(9) of the
Code, such Participant may elect to receive distribution in
periodic payments, made not less frequently than annually, equal
to the minimum amount necessary to satisfy the distribution
requirements of Section 401(a)(9) of the Code and regulations
issued thereunder for the remainder of the period that he
continues in employment with an Employer or a Related Company.
Distribution of the fair market value of the Participant's
Separate Account shall be made in cash or in kind, as elected by
the Participant.
16.2 - Direct Rollover
Notwithstanding any other provision of the Plan to the contrary,
in lieu of receiving distribution in the form of payment provided
under this Article, a "qualified distributee" may elect in
writing, in accordance with rules prescribed by the
Administrator, to have any portion or all of a distribution made
on or after January 1, 1993, that is an "eligible rollover
distribution" paid directly by the Plan to the "eligible
retirement plan" designated by the "qualified distributee";
provided, however, that this provision shall not apply if the
total distribution is less than $200 and that a "qualified
distributee" may not elect this provision with respect to a
portion of a distribution that is less than $500. Any such
payment by the Plan to another "eligible retirement plan" shall
be a direct rollover. For purposes of this Section, the
following terms have the following meanings:
(a) An "eligible retirement plan" means an individual
retirement account described in Section 408(a) of the
Code, an individual retirement annuity described in
Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described
in Section 401(a) of the Code that accepts rollovers;
provided, however, that, in the case of a direct rollover
by a surviving spouse, an eligible retirement plan does
not include a qualified trust described in Section 401(a)
of the Code.
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(b) An "eligible rollover distribution" means any distribution
of all or any portion of the balance of a Participant's
Separate Account; provided, however, that an eligible
rollover distribution does not include: any distribution
to the extent such distribution is required under Section
401(a)(9) of the Code; and the portion of any distribution
that consists of the Participant's After-Tax
Contributions.
(c) A "qualified distributee" means a Participant, his
surviving spouse, or his spouse or former spouse who is an
alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code.
16.3 - Notice Regarding Form of Payment
Within the 60 day period ending 30 days before the date as of
which distribution of a Participant's Separate Account commences,
the Administrator shall provide the Participant with a written
explanation of his right to defer distribution until his Normal
Retirement Date, or such later date as may be provided in the
Plan, his right to make a direct rollover, and the form of
payment provided under the Plan. Distribution of the
Participant's Separate Account may commence less than 30 days
after such notice is provided to the Participant if (i) the
Administrator clearly informs the Participant of his right to
consider his election of whether or not to make a direct rollover
or to receive a distribution prior to his Normal Retirement Date
for a period of at least 30 days following his receipt of the
notice and (ii) the Participant, after receiving the notice,
affirmatively elects an early distribution.
16.4 - Distribution in the Form of Employer Stock
Notwithstanding any other provision of the Plan to the contrary,
a Participant may elect to receive distribution of the fair
market value of that portion of his Separate Account that is
invested in Employer stock in the form of Employer stock.
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ARTICLE XVII
BENEFICIARIES
17.1 - Designation of Beneficiary
A married Participant's Beneficiary shall be his spouse, unless
the Participant designates a person or persons other than his
spouse as Beneficiary with his spouse's written consent. A
Participant may designate a Beneficiary on the form prescribed by
the Administrator. If no Beneficiary has been designated
pursuant to the provisions of this Section, or if no Beneficiary
survives the Participant and he has no surviving spouse, then the
Beneficiary under the Plan shall be the Participant's estate. If
a Beneficiary dies after becoming entitled to receive a
distribution under the Plan but before distribution is made to
him in full, and if no other Beneficiary has been designated to
receive the balance of the distribution in that event, the estate
of the deceased Beneficiary shall be the Beneficiary as to the
balance of the distribution.
17.2 - Spousal Consent Requirements
Any written spousal consent given pursuant to this Article must
acknowledge the effect of the action taken and must be witnessed
by a Plan representative or a notary public. In addition, the
spouse's written consent must either (i) specify any non-spouse
Beneficiary designated by the Participant and that such
Beneficiary may not be changed without written spousal consent or
(ii) acknowledge that the spouse has the right to limit consent
to a specific Beneficiary, but permit the Participant to change
the designated Beneficiary without the spouse's further consent.
A Participant's spouse will be deemed to have given written
consent to the Participant's designation of Beneficiary if the
Participant establishes to the satisfaction of a Plan
representative that such consent cannot be obtained because the
spouse cannot be located or because of other circumstances set
forth in Section 401(a)(11) of the Code and regulations issued
thereunder. Any written consent given or deemed to have been
given by a Participant's spouse hereunder shall be valid only
with respect to the spouse who signs the consent.
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ARTICLE XVIII
ADMINISTRATION
18.1 - Authority of the Sponsor
The Sponsor, which shall be the administrator for purposes of
ERISA and the plan administrator for purposes of the Code, shall
be responsible for the administration of the Plan and, in
addition to the powers and authorities expressly conferred upon
it in the Plan, shall have all such powers and authorities as may
be necessary to carry out the provisions of the Plan, including
the power and authority to interpret and construe the provisions
of the Plan, to make benefit determinations, and to resolve any
disputes which arise under the Plan. The Sponsor may employ such
attorneys, agents, and accountants as it may deem necessary or
advisable to assist in carrying out its duties hereunder. The
Sponsor shall be a "named fiduciary" as that term is defined in
Section 402(a)(2) of ERISA. The Sponsor may:
(a) allocate any of the powers, authority, or responsibilities
for the operation and administration of the Plan (other
than trustee responsibilities as defined in Section
405(c)(3) of ERISA) among named fiduciaries; and
(b) designate a person or persons other than a named fiduciary
to carry out any of such powers, authority, or
responsibilities;
except that no allocation by the Sponsor of, or designation by
the Sponsor with respect to, any of such powers, authority, or
responsibilities to another named fiduciary or a person other
than a named fiduciary shall become effective unless such
allocation or designation shall first be accepted by such named
fiduciary or other person in a writing signed by it and delivered
to the Sponsor.
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18.2 - Action of the Sponsor
Any act authorized, permitted, or required to be taken under the
Plan by the Sponsor and which has not been delegated in
accordance with Section 18.1, may be taken by a majority of the
members of the board of directors of the Sponsor, either by vote
at a meeting, or in writing without a meeting, or by the employee
or employees of the Sponsor designated by the board of directors
to carry out such acts on behalf of the Sponsor. All notices,
advice, directions, certifications, approvals, and instructions
required or authorized to be given by the Sponsor as under the
Plan shall be in writing and signed by either (i) a majority of
the members of the board of directors of the Sponsor or by such
member or members as may be designated by an instrument in
writing, signed by all the members thereof, as having authority
to execute such documents on its behalf, or (ii) the employee or
employees authorized to act for the Sponsor in accordance with
the provisions of this Section.
18.3 - Claims Review Procedure
Whenever a claim for benefits under the Plan filed by any person
(herein referred to as the "Claimant") is denied, whether in
whole or in part, the Sponsor shall transmit a written notice of
such decision to the Claimant within 90 days of the date the
claim was filed or, if special circumstances require an
extension, within 180 days of such date, which notice shall be
written in a manner calculated to be understood by the Claimant
and shall contain a statement of (i) the specific reasons for the
denial of the claim, (ii) specific reference to pertinent Plan
provisions on which the denial is based, and (iii) a description
of any additional material or information necessary for the
Claimant to perfect the claim and an explanation of why such
information is necessary. The notice shall also include a
statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of such
decision in accordance with the procedures hereinafter set forth.
Within such 60-day period, the Claimant or his authorized
representative may request that the claim denial be reviewed by
filing with the Sponsor a written request therefor, which request
shall contain the following information:
(a) the date on which the Claimant's request was filed with
the Sponsor; provided, however, that the date on which the
Claimant's request for review was in fact filed with the
Sponsor shall control in the event that the date of the
actual filing is later than the date stated by the
Claimant pursuant to this paragraph;
(b) the specific portions of the denial of his claim which the
Claimant requests the Sponsor to review;
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(c) a statement by the Claimant setting forth the basis upon
which he believes the Sponsor should reverse the previous
denial of his claim for benefits and accept his claim as
made; and
(d) any written material (offered as exhibits) which the
Claimant desires the Sponsor to examine in its
consideration of his position as stated pursuant to
paragraph (c) of this Section.
Within 60 days of the date determined pursuant to paragraph (a)
of this Section or, if special circumstances require an
extension, within 120 days of such date, the Sponsor shall
conduct a full and fair review of the decision denying the
Claimant's claim for benefits and shall render its written
decision on review to the Claimant. The Sponsor's decision on
review shall be written in a manner calculated to be understood
by the Claimant and shall specify the reasons and Plan provisions
upon which the Sponsor's decision was based.
18.4 - Qualified Domestic Relations Orders
The Sponsor shall establish reasonable procedures to determine
the status of domestic relations orders and to administer
distributions under domestic relations orders which are deemed to
be qualified orders. Such procedures shall be in writing and
shall comply with the provisions of Section 414(p) of the Code
and regulations issued thereunder.
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18.5 - Indemnification
In addition to whatever rights of indemnification the members of
the board of directors of the Sponsor or any employee or
employees of the Sponsor to whom any power, authority, or
responsibility is delegated pursuant to Section 18.2, may be
entitled under the articles of incorporation or regulations of
the Sponsor, under any provision of law, or under any other
agreement, the Sponsor shall satisfy any liability actually and
reasonably incurred by any such person or persons, including
expenses, attorneys' fees, judgments, fines, and amounts paid in
settlement (other than amounts paid in settlement not approved by
the Sponsor), in connection with any threatened, pending or
completed action, suit, or proceeding which is related to the
exercising or failure to exercise by such person or persons of
any of the powers, authority, responsibilities, or discretion as
provided under the Plan, or reasonably believed by such person or
persons to be provided hereunder, and any action taken by such
person or persons in connection therewith, unless the same is
judicially determined to be the result of such person or persons'
gross negligence or willful misconduct.
18.6 - Actions Binding
Subject to the provisions of Section 18.3, any action taken by
the Sponsor which is authorized, permitted, or required under the
Plan shall be final and binding upon the Employers, the Trustee,
all persons who have or who claim an interest under the Plan, and
all third parties dealing with the Employers or the Trustee.
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ARTICLE XIX
AMENDMENT AND TERMINATION
19.1 - Amendment
Subject to the provisions of Section 19.2, the Sponsor may at any
time and from time to time, by action of its board of directors,
or such officers of the Sponsor as are authorized by its board of
directors, amend the Plan, either prospectively or retroactively.
Any such amendment shall be by written instrument executed by the
Sponsor.
19.2 - Limitation on Amendment
The Sponsor shall make no amendment to the Plan which shall
decrease the accrued benefit of any Participant or Beneficiary,
except that nothing contained herein shall restrict the right to
amend the provisions of the Plan relating to the administration
of the Plan and Trust. Moreover, no such amendment shall be made
hereunder which shall permit any part of the Trust to revert to
an Employer or any Related Company or be used or be diverted to
purposes other than the exclusive benefit of Participants and
Beneficiaries.
19.3 - Termination
The Sponsor reserves the right, by action of its board of
directors, to terminate the Plan as to all Employers at any time
(the effective date of such termination being hereinafter
referred to as the "termination date"). Upon any such
termination of the Plan, the following actions shall be taken for
the benefit of Participants and Beneficiaries:
(a) As of the termination date, each Investment Fund shall be
valued and all Separate Accounts and Sub-Accounts shall be
adjusted in the manner provided in Article XI, with any
unallocated contributions or forfeitures being allocated
as of the termination date in the manner otherwise
provided in the Plan. The termination date shall become a
Valuation Date for purposes of Article XI. In determining
the net worth of the Trust, there shall be included as a
liability such amounts as shall be necessary to pay all
expenses in connection with the termination of the Trust
and the liquidation and distribution of the property of
the Trust, as well as other expenses, whether or not
accrued, and shall include as an asset all accrued income.
(b) All Separate Accounts shall then be disposed of to or for
the benefit of each Participant or Beneficiary in
accordance with the provisions of Article XV as if the
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termination date were his Settlement Date; provided,
however, that notwithstanding the provisions of
Article XV, if the Plan does not offer an annuity option
and if neither his Employer nor a Related Company
establishes or maintains another defined contribution plan
(other than an employee stock ownership plan as defined in
Section 4975(e)(7) of the Code), the Participant's written
consent to the commencement of distribution shall not be
required regardless of the value of the vested portions of
his Separate Account.
(c) Notwithstanding the provisions of paragraph (b) of this
Section, no distribution shall be made to a Participant of
any portion of the balance of his Tax-Deferred
Contributions Sub-Account prior to his separation from
service (other than a distribution made in accordance with
Article XIII or required in accordance with Section
401(a)(9) of the Code) unless (i) neither his Employer nor
a Related Company establishes or maintains another defined
contribution plan (other than an employee stock ownership
plan as defined in Section 4975(e)(7) of the Code, a tax
credit employee stock ownership plan as defined in
Section 409 of the Code, or a simplified employee pension
as defined in Section 408(k) of the Code) either at the
time the Plan is terminated or at any time during the
period ending 12 months after distribution of all assets
from the Plan; provided, however, that this provision
shall not apply if fewer than two percent of the Eligible
Employees under the Plan were eligible to participate at
any time in such other defined contribution plan during
the 24-month period beginning 12 months before the Plan
termination, and (ii) the distribution the Participant
receives is a "lump sum distribution" as defined in
Section 402(e)(4) of the Code, without regard to clauses
(i), (ii), (iii), and (iv) of sub-paragraph (A),
sub-paragraph (B), or sub-paragraph (H) thereof.
Notwithstanding anything to the contrary contained in the Plan,
upon any such Plan termination, the vested interest of each
Participant and Beneficiary in his Employer Contributions
Sub-Account shall be 100 percent; and, if there is a partial
termination of the Plan, the vested interest of each Participant
and Beneficiary who is affected by the partial termination in his
Employer Contributions Sub-Account shall be 100 percent. For
purposes of the preceding sentence only, the Plan shall be deemed
to terminate automatically if there shall be a complete
discontinuance of employee and employer contributions hereunder
by all Employers.
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19.4 - Reorganization
The merger, consolidation, or liquidation of any Employer with or
into any other Employer or a Related Company shall not constitute
a termination of the Plan as to such Employer. If an Employer
disposes of substantially all of the assets used by the Employer
in a trade or business or disposes of a subsidiary and in
connection therewith one or more Participants terminates
employment but continues in employment with the purchaser of the
assets or with such subsidiary, no distribution from the Plan
shall be made to any such Participant prior to his separation
from service (other than a distribution made in accordance with
Article XIII or required in accordance with Section 401(a)(9) of
the Code), except that a distribution shall be permitted to be
made in such a case, subject to the Participant's consent (to the
extent required by law), if (i) the distribution would constitute
a "lump sum distribution" as defined in section 402(e)(4) of the
Code, without regard to clauses (i), (ii), (iii), or (iv) of
sub-paragraph (A), sub-paragraph (B), or sub-paragraph (H)
thereof, (ii) the Employer continues to maintain the Plan
after the disposition, (iii) the purchaser does not maintain the
Plan after the disposition, and (iv) the distribution is made by
the end of the second calendar year after the calendar year in
which the disposition occurred.
19.5 - Withdrawal of an Employer
An Employer other than the Sponsor may withdraw from the Plan at
any time upon notice in writing to the Administrator (the
effective date of such withdrawal being hereinafter referred to
as the "withdrawal date"), and shall thereupon cease to be an
Employer for all purposes of the Plan. An Employer shall be
deemed automatically to withdraw from the Plan in the event of
its complete discontinuance of employee and employer
contributions, or, subject to Section 19.4 and unless the Sponsor
otherwise directs, it ceases to be a Related Company of the
Sponsor or any other Employer. Upon the withdrawal of an
Employer, the withdrawing Employer shall determine whether a
partial termination has occurred with respect to its Employees.
In the event that the withdrawing Employer determines a partial
termination has occurred, the action specified in Section 19.3
shall be taken as of the withdrawal date, as on a termination of
the Plan, but with respect only to Participants who are employed
solely by the withdrawing Employer, and who, upon such
withdrawal, are neither transferred to nor continued in
employment with any other Employer or a Related Company.
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The interest of any Participant employed by the withdrawing
Employer who is transferred to or continues in employment with
any other Employer or a Related Company, and the interest of any
Participant employed solely by an Employer or a Related Company
other than the withdrawing Employer, shall remain unaffected by
such withdrawal; no adjustment to his Separate Accounts shall be
made by reason of the withdrawal; and he shall continue as a
Participant hereunder subject to the remaining provisions of the
Plan.
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ARTICLE XX
ADOPTION BY OTHER ENTITIES
20.1 - Adoption by Related Companies
A Related Company that is not an Employer may, with the consent
of the Sponsor, adopt the Plan and become an Employer hereunder
by causing an appropriate written instrument evidencing such
adoption to be executed in accordance with the requirements of
its organizational authority. Any such instrument shall specify
the effective date of the adoption.
20.2 - Effective Plan Provisions
An Employer who adopts the Plan shall be bound by the provisions
of the Plan in effect at the time of the adoption and as
subsequently in effect because of any amendment to the Plan.
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ARTICLE XXI
MISCELLANEOUS PROVISIONS
21.1 - No Commitment as to Employment
Nothing contained herein shall be construed as a commitment or
agreement upon the part of any person to continue his employment
with an Employer or Related Company, or as a commitment on the
part of any Employer or Related Company to continue the
employment, compensation, or benefits of any person for any
period.
21.2 - Benefits
Nothing in the Plan nor the Trust Agreement shall be construed to
confer any right or claim upon any person, firm, or corporation
other than the Employers, the Trustee, Participants, and
Beneficiaries.
21.3 - No Guarantees
The Employers, the Administrator, and the Trustee do not
guarantee the Trust from loss or depreciation, nor do they
guarantee the payment of any amount which may become due to any
person hereunder.
21.4 - Expenses
The expenses of administration of the Plan, including the
expenses of the Administrator and fees of the Trustee, shall be
paid from the Trust as a general charge thereon, unless the
Sponsor elects to make payment. Notwithstanding the foregoing,
the Sponsor may direct that administrative expenses that are
allocable to the Separate Account of a specific Participant shall
be paid from that Separate Account and the costs incident to the
management of the assets of an Investment Fund or to the purchase
or sale of securities held in an Investment Fund shall be paid by
the Trustee from such Investment Fund.
21.5 - Precedent
Except as otherwise specifically provided, no action taken in
accordance with the Plan shall be construed or relied upon as a
precedent for similar action under similar circumstances.
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21.6 - Duty to Furnish Information
The Employers, the Administrator, and the Trustee shall furnish
to any of the others any documents, reports, returns, statements,
or other information that the other reasonably deems necessary to
perform its duties hereunder or otherwise imposed by law.
21.7 - Withholding
The Trustee shall withhold any tax which by any present or future
law is required to be withheld, and which the Administrator
notifies the Trustee in writing is to be so withheld, from any
payment to any Participant or Beneficiary hereunder.
21.8 - Merger, Consolidation, or Transfer of Plan Assets
The Plan shall not be merged or consolidated with any other plan,
nor shall any of its assets or liabilities be transferred to
another plan, unless, immediately after such merger,
consolidation, or transfer of assets or liabilities, each
Participant in the Plan would receive a benefit under the Plan
which is at least equal to the benefit he would have received
immediately prior to such merger, consolidation, or transfer of
assets or liabilities (assuming in each instance that the Plan
had then terminated).
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21.9 - Back Pay Awards
The provisions of this Section shall apply only to an Employee or
former Employee who becomes entitled to back pay by an award or
agreement of an Employer without regard to mitigation of damages.
If a person to whom this Section applies was or would have become
an Eligible Employee after such back pay award or agreement has
been effected, and if any such person who had not previously
elected to make Tax-Deferred Contributions pursuant to
Section 4.1 shall within 30 days of the date he receives notice
of the provisions of this Section make an election to make
Tax-Deferred Contributions in accordance with such Section 4.1
(retroactive to any Enrollment Date as of which he was or has
become eligible to do so), then such Participant may elect that
any Tax-Deferred Contributions not previously made on his behalf
but which, after application of the foregoing provisions of this
Section, would have been made under the provisions of Article IV
and any After-Tax Contributions which he had not previously made
but which, after application of the foregoing provisions of this
Section, he would have made under the provisions of Article V,
shall be made out of the proceeds of such back pay award or
agreement. In addition, if any such Employee or former Employee
would have been eligible to participate in the allocation of
Employer Contributions under the provisions of Article VI for any
prior Plan Year after such back pay award or agreement has been
effected, his Employer shall make an Employer Contribution equal
to the amount of the Employer Contribution which would have been
allocated to such Participant under the provisions of Article VI
as in effect during each such Plan Year. The amounts of such
additional contributions shall be credited to the Separate
Account of such Participant. Any additional contributions made
by such Participant and by an Employer pursuant to this Section
shall be made in accordance with, and subject to the limitations
of the applicable provisions of Articles IV, V, VI, and VII.
21.10 - Condition on Employer Contributions
Notwithstanding anything to the contrary contained in the Plan or
the Trust Agreement, any contribution of an Employer hereunder is
conditioned upon the continued qualification of the Plan under
Section 401(a) of the Code, the exempt status of the Trust under
Section 501(a) of the Code, and the deductibility of the
contribution under Section 404 of the Code. Except as otherwise
provided in this Section and Section 21.11, however, in no event
shall any portion of the property of the Trust ever revert to or
otherwise inure to the benefit of an Employer or any Related
Company.
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21.11 - Return of Contributions to an Employer
Notwithstanding any other provision of the Plan or the Trust
Agreement to the contrary, in the event any contribution of an
Employer made hereunder:
(a) is made under a mistake of fact, or
(b) is disallowed as a deduction under Section 404 of the
Code,
such contribution may be returned to the Employer within one year
after the payment of the contribution or the disallowance of the
deduction to the extent disallowed, whichever is applicable. In
the event the Plan does not initially qualify under Section
401(a) of the Code, any contribution of an Employer made
hereunder may be returned to the Employer within one year of the
date of denial of the initial qualification of the Plan, but only
if an application for determination was made within the period of
time prescribed under Section 403(c)(2)(B) of ERISA.
21.12 - Validity of Plan
The validity of the Plan shall be determined and the Plan shall
be construed and interpreted in accordance with the laws of the
State or Commonwealth in which the Sponsor has its principal
place of business, except as preempted by applicable Federal law.
The invalidity or illegality of any provision of the Plan shall
not affect the legality or validity of any other part thereof.
21.13 - Trust Agreement
The Trust Agreement and the Trust maintained thereunder shall be
deemed to be a part of the Plan as if fully set forth herein and
the provisions of the Trust Agreement are hereby incorporated by
reference into the Plan.
21.14 - Parties Bound
The Plan shall be binding upon the Employers, all Participants
and Beneficiaries hereunder, and, as the case may be, the heirs,
executors, administrators, successors, and assigns of each of
them.
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21.15 - Application of Certain Plan Provisions
A Participant's Beneficiary, if the Participant has died, or
alternate payee under a qualified domestic relations order shall
be treated as a Participant for purposes of directing investments
as provided in Article X. For purposes of the general
administrative provisions and limitations of the Plan, a
Participant's Beneficiary or alternate payee under a qualified
domestic relations order shall be treated as any other person
entitled to receive benefits under the Plan. Upon any
termination of the Plan, any such Beneficiary or alternate payee
under a qualified domestic relations order who has an interest
under the Plan at the time of such termination, which does not
cease by reason thereof, shall be deemed to be a Participant for
all purposes of the Plan.
21.16 - Leased Employees
Any leased employee, other than an excludable leased employee,
shall be treated as an employee of the Employer for which he
performs services for all purposes of the Plan; provided,
however, that contributions to a qualified plan made on behalf of
a leased employee by the leasing organization that are
attributable to services for the Employer shall be treated as
having been made by the Employer and there shall be no
duplication of benefits under this Plan. A "leased employee"
means any person who performs services for an Employer or a
Related Company (the "recipient") (other than an employee of the
recipient) pursuant to an agreement between the recipient and any
other person (the "leasing organization") on a substantially
full-time basis for a period of at least one year, provided that
such services are of a type historically performed, in the
business field of the recipient, by employees. An "excludable
leased employee" means any leased employee of the recipient who
is covered by a money purchase pension plan maintained by the
leasing organization which provides for (i) a nonintegrated
employer contribution on behalf of each participant in the plan
equal to at least ten percent of compensation, (ii) full and
immediate vesting, and (iii) immediate participation by employees
of the leasing organization (other than employees who perform
substantially all of their services for the leasing organization
or whose compensation from the leasing organization in each plan
year during the four-year period ending with the plan year is
less than $1,000); provided, however, that leased employees do
not constitute more than 20 percent of the recipient's nonhighly
compensated work force. For purposes of this Section,
contributions or benefits provided to a leased employee by the
leasing organization that are attributable to services performed
for the recipient shall be treated as provided by the recipient.
78
<PAGE> 95
21.17 - Transferred Funds
If funds from another qualified plan are transferred or merged
into the Plan, such funds shall be held and administered in
accordance with any restrictions applicable to them under such
other plan to the extent required by law and shall be accounted
for separately to the extent necessary to accomplish the
foregoing.
79
<PAGE> 96
ARTICLE XXII
TOP-HEAVY PROVISIONS
22.1 - Definitions
For purposes of this Article, the following terms shall have the
following meanings:
(a) The "compensation" of an employee means compensation as
defined in Section 415 of the Code and regulations issued
thereunder. In no event, however, shall the compensation
of a Participant taken into account under the Plan for any
Plan Year exceed (1) $200,000 for Plan Years beginning
prior to January 1, 1994, or (2) $150,000 for Plan Years
beginning on or after January 1, 1994 (subject to
adjustment annually as provided in Section 401(a)(17)(B)
and Section 415(d) of the Code; provided, however, that
the dollar increase in effect on January 1 of any calendar
year, if any, is effective for Plan Years beginning in
such calendar year). If the compensation of a Participant
is determined over a period of time that contains fewer
than 12 calendar months, then the annual compensation
limitation described above shall be adjusted with respect
to that Participant by multiplying the annual compensation
limitation in effect for the Plan Year by a fraction the
numerator of which is the number of full months in the
period and the denominator of which is 12; provided,
however, that no proration is required for a Participant
who is covered under the Plan for less than one full Plan
Year if the formula for allocations is based on
Compensation for a period of at least 12 months. In
determining the compensation, for purposes of applying the
annual compensation limitation described above, of a
Participant who is a five-percent owner or one of the ten
Highly Compensated Employees receiving the greatest
compensation for the Plan Year, the compensation of the
Participant's spouse and of his lineal descendants who
have not attained age 19 as of the close of the Plan Year
shall be included as compensation of the Participant for
the Plan Year. If as a result of applying the family
aggregation rule described in the preceding sentence the
annual compensation limitation would be exceeded, the
limitation shall be prorated among the affected family
members in proportion to each member's compensation as
determined prior to application of the family aggregation
rules.
(b) The "determination date" with respect to any Plan Year
means the last day of the preceding Plan Year, except that
the determination date with respect to the first Plan Year
of the Plan, shall mean the last day of such Plan Year.
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<PAGE> 97
(c) A "key employee" means any Employee or former Employee who
is a key employee pursuant to the provisions of
Section 416(i)(1) of the Code and any Beneficiary of such
Employee or former Employee.
(d) A "non-key employee" means any Employee who is not a key
employee.
(e) A "permissive aggregation group" means those plans
included in each Employer's required aggregation group
together with any other plan or plans of the Employer, so
long as the entire group of plans would continue to meet
the requirements of Sections 401(a)(4) and 410 of the
Code.
(f) A "required aggregation group" means the group of
tax-qualified plans maintained by an Employer or a Related
Company consisting of each plan in which a key employee
participates and each other plan that enables a plan in
which a key employee participates to meet the requirements
of Section 401(a)(4) or Section 410 of the Code, including
any plan that terminated within the five-year period
ending on the relevant determination date.
(g) A "super top-heavy group" with respect to a particular
Plan Year means a required or permissive aggregation group
that, as of the determination date, would qualify as a
top-heavy group under the definition in paragraph (i) of
this Section with "90 percent" substituted for "60
percent" each place where "60 percent" appears in the
definition.
(h) A "super top-heavy plan" with respect to a particular Plan
Year means a plan that, as of the determination date,
would qualify as a top-heavy plan under the definition in
paragraph (j) of this Section with "90 percent"
substituted for "60 percent" each place where "60 percent"
appears in the definition. A plan is also a "super
top-heavy plan" if it is part of a super top-heavy group.
(i) A "top-heavy group" with respect to a particular Plan Year
means a required or permissive aggregation group if the
sum, as of the determination date, of the present value of
the cumulative accrued benefits for key employees under
all defined benefit plans included in such group and the
aggregate of the account balances of key employees under
all defined contribution plans included in such group
exceeds 60 percent of a similar sum determined for all
employees covered by the plans included in such group.
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<PAGE> 98
(j) A "top-heavy plan" with respect to a particular Plan Year
means (i), in the case of a defined contribution plan
(including any simplified employee pension plan), a plan
for which, as of the determination date, the aggregate of
the accounts (within the meaning of Section 416(g) of the
Code and the regulations and rulings thereunder) of key
employees exceeds 60 percent of the aggregate of the
accounts of all participants under the plan, with the
accounts valued as of the relevant valuation date and
increased for any distribution of an account balance made
in the five-year period ending on the determination date,
(ii), in the case of a defined benefit plan, a plan for
which, as of the determination date, the present value of
the cumulative accrued benefits payable under the plan
(within the meaning of Section 416(g) of the Code and the
regulations and rulings thereunder) to key employees
exceeds 60 percent of the present value of the cumulative
accrued benefits under the plan for all employees, with
the present value of accrued benefits to be determined
under the accrual method uniformly used under all plans
maintained by an Employer or, if no such method exists,
under the slowest accrual method permitted under the
fractional accrual rate of Section 411(b)(1)(C) of the
Code and including the present value of any part of any
accrued benefits distributed in the five-year period
ending on the determination date, and (iii) any plan
(including any simplified employee pension plan) included
in a required aggregation group that is a top-heavy group.
For purposes of this paragraph, the accounts and accrued
benefits of any employee who has not performed services
for an Employer or a Related Company during the five-year
period ending on the determination date shall be
disregarded. For purposes of this paragraph, the present
value of cumulative accrued benefits under a defined
benefit plan for purposes of top-heavy determinations
shall be calculated using the actuarial assumptions
otherwise employed under such plan, except that the same
actuarial assumptions shall be used for all plans within a
required or permissive aggregation group. A Participant's
interest in the Plan attributable to any Rollover
Contributions, except Rollover Contributions made from a
plan maintained by an Employer or a Related Company, shall
not be considered in determining whether the Plan is
top-heavy. Notwithstanding the foregoing, if a plan is
included in a required or permissive aggregation group
that is not a top-heavy group, such plan shall not be a
top-heavy plan.
(k) The "valuation date" with respect to any determination
date means the most recent Valuation Date occurring within
the 12-month period ending on the determination date.
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<PAGE> 99
22.2 - Applicability
Notwithstanding any other provision of the Plan to the contrary,
the provisions of this Article shall be applicable during any
Plan Year in which the Plan is determined to be a top-heavy plan
as hereinafter defined. If the Plan is determined to be a
top-heavy plan and upon a subsequent determination date is
determined no longer to be a top-heavy plan, the vesting
provisions of Article VI shall again become applicable as of such
subsequent determination date; provided, however, that if the
prior vesting provisions do again become applicable, any Employee
with three or more years of Vesting Service may elect in
accordance with the provisions of Article VI, to continue to have
his vested interest in his Employer Contributions Sub-Account
determined in accordance with the vesting schedule specified in
Section 22.5.
22.3 - Minimum Employer Contribution
If the Plan is determined to be a top-heavy plan, the Employer
Contributions and forfeitures allocated to the Separate Account
of each non-key employee who is an Eligible Employee and who is
employed by an Employer or a Related Company on the last day of
such top-heavy Plan Year shall be no less than the lesser of
(i) three percent of his compensation or (ii) the largest
percentage of compensation that is allocated as an Employer
Contribution and/or Tax-Deferred Contribution for such Plan Year
to the Separate Account of any key employee; except that, in the
event the Plan is part of a required aggregation group, and the
Plan enables a defined benefit plan included in such group to
meet the requirements of Section 401(a)(4) or 410 of the Code,
the minimum allocation of Employer Contributions and forfeitures
to each such non-key employee shall be three percent of the
compensation of such non-key employee. Any minimum allocation to
a non-key employee required by this Section shall be made without
regard to any social security contribution made on behalf of the
non-key employee, his number of hours of service, his level of
compensation, or whether he declined to make elective or
mandatory contributions. Notwithstanding the minimum top-heavy
allocation requirements of this Section, if the Plan is a
top-heavy plan, each non-key employee who is an Eligible Employee
and who is employed by an Employer or a Related Company on the
last day of a top-heavy Plan Year and who is also covered under a
top-heavy defined benefit plan maintained by an Employer or a
Related Company will receive the top-heavy benefits provided
under the defined benefit plan in lieu of the minimum top-heavy
allocation under the Plan offset by the benefits provided under
the Plan.
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<PAGE> 100
22.4 - Adjustments to Section 415 Limitations
If the Plan is determined to be a top-heavy plan and an Employer
maintains a defined benefit plan covering some or all of the
Employees that are covered by the Plan, the defined benefit plan
fraction and the defined contribution plan fraction, described in
Article VII, shall be determined as provided in Section 415 of
the Code by substituting "1.0" for "1.25" each place where "1.25"
appears, except that such substitutions shall not be applied to
the Plan if (i) the Plan is not a super top-heavy plan, (ii) the
Employer Contribution for such top-heavy Plan Year for each
non-key employee who is to receive a minimum top-heavy benefit
hereunder is not less than four percent of such non-key
employee's compensation, and (iii) the minimum annual retirement
benefit accrued by a non-key employee who participates under one
or more defined benefit plans of an Employer or a Related Company
for such top-heavy Plan Year is not less than the lesser of three
percent times years of service with an Employer or a Related
Company or thirty percent.
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<PAGE> 101
22.5 - Accelerated Vesting
If the Plan is determined to be a top-heavy plan, a Participant's
vested interest in his Employer Contributions Sub-Account shall
be determined no less rapidly than in accordance with the
following vesting schedule:
Years of Vesting Service Vested Interest
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%
85
<PAGE> 102
ARTICLE XXIII
EFFECTIVE DATE
23.1 - Effective Date of Amendment and Restatement
This amendment and restatement is effective as of July 1, 1998.
* * *
EXECUTED AT
Taft, California,
this 1 day of
September, 1998.
BERRY PETROLEUM COMPANY
By: s/s Jerry V. Hoffman
Title: Chairman, Chief Executive Officer
and President
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<PAGE> 103
ARTICLE XXIII
EFFECTIVE DATE
23.1 - Effective Date of Amendment and Restatement
This amendment and restatement is effective as of July 1, 1998.
* * *
EXECUTED AT
______________________________________________,
_________________________, this _______________ day of
________________, 19_____.
BERRY PETROLEUM COMPANY
By:________________________________
Title:_____________________________
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<PAGE> 104
EXHIBIT 5.1
Law offices of
Nordman, Cormany, Hair & Compton
1000 Town Center Drive
6th Floor
Post Office Box 9100
Oxnard, California 93031-9100
(805) 485-1000
(805) 656-3304
6th Floor Fax (805) 988-8387
5th Floor Fax (805) 988-7790
September 2, 1998
Berry Petroleum Company
28700 Hovey Hills Road
P.O. Bin X
Taft, CA 93268
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel for Berry Petroleum Company, a Delaware
corporation (the "Company"), in connection with the various legal matters
relating to the Registration Statement on Form S-8 to be filed by the
Company with the Securities and Exchange Commission with respect to the
Berry Petroleum Company Thrift Plan (the "Plan").
We have examined such corporate records, certificates, and such
questions of law as we have considered necessary or appropriate for the
purposes of this opinion and on the basis of such examination, advise you
that, subject to compliance with applicable state securities laws, we are
of the opinion that the Plan has been duly and validly authorized and
adopted, and the Plan confers legal interests upon employees participating
in the Plan to the extent and upon the terms and conditions described
herein.
We consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus
constituting any part thereof.
Very truly yours,
s/s Nordman, Cormany, Hair & Compton
NORDMAN, CORMANY, HAIR & COMPTON
<PAGE> 105
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report dated February 20, 1998, on our audit of the
financial statements of Berry Petroleum Company as of December 31, 1997
and 1996 and for the three years in the period ended December 31, 1997.
s/s PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Los Angeles, California
September 1, 1998
