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SCHEDULE 14A INFORMATION
PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES EXCHANGE ACT OF 1934
FILED BY THE REGISTRANT /X/ FILED BY A PARTY OTHER THAN THE REGISTRANT / /
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Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Definitive Proxy Statement
/X/ Definitive Additional Materials
/ / Soliciting Material Pursuant to sec.240.14a-11(c) or sec.240.14a-12
UNITED ASSET MANAGEMENT CORPORATION
(Name of Registrant as Specified In Its Charter)
UNITED ASSET MANAGEMENT CORPORATION
(Name of Person(s) Filing Proxy Statement)
PAYMENT OF FILING FEE (CHECK THE APPROPRIATE BOX):
/ / $125 per Exchange Act Rules 0-11(c)(1)(ii), 14a-6(i)(1), or 14a-6(i)(2) or
Item 22(a)(2) of Schedule 14A.
/ / $500 per each party to the controversy pursuant to Exchange Act Rule
14a-6(i)(3).
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed pursuant
to Exchange Act
Rule 0-11:
4) Proposed maximum aggregate value of transaction:
Set forth the amount on which the filing fee is calculated and state how it
was determined.
/X/ Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid: $125.00
2) Form, Schedule or Registration Statement No.: Definitive Proxy Statement
3) Filing Party: United Asset Management Corporation
4) Date Filed: March 29, 1995
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UNITED ASSET MANAGEMENT CORPORATION
DEFERRED COMPENSATION PLAN
Effective January 1, 1994
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UNITED ASSET MANAGEMENT CORPORATION
DEFERRED COMPENSATION PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C>
SECTION 1. ADOPTION AND GENERAL MATTERS
1.1 Adoption
1.2 Purpose of the Plan
1.3 Nature of the Plan
1.4 Applicability of ERISA to the Plan
SECTION 2. DEFINITIONS
2.1 "Account"
2.2 "Allocation"
2.3 "Beneficiary"
2.4 "Benefit"
2.5 "Board"
2.6 "Change of Control"
2.7 "Code"
2.8 "Company"
2.9 "Company Contributions"
2.10 "Compensation"
2.11 "Effective Date"
2.12 "Eligible Employee"
2.13 "Eligible Participant"
2.14 "Entry Date"
</TABLE>
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<TABLE>
<S> <C>
2.15 "Liquidity Fund".......................................7
2.16 "Mutual Fund Election".................................7
2.17 "Notional Shares"......................................7
2.18 "Notional Shares Election".............................7
2.19 "Participant"..........................................7
2.20 "Plan Year"............................................7
2.21 "Qualified Plan".......................................8
2.22 "Retirement Committee".................................8
2.23 "Separation from Service"..............................8
2.24 "Stock"................................................8
2.25 "Valuation Date".......................................8
2.26 "Vesting Percentage"...................................8
SECTION 3. PARTICIPATION ......................................8
3.1 Eligibility.............................................8
3.2 Termination of Eligibility..............................8
SECTION 4. ALLOCATIONS..........................................8
4.1 No Contributions Permitted..............................8
4.2 Allocations to Accounts.................................9
4.3 No Allocation of Forfeitures............................9
4.4 Responsibility for Benefit Payments.....................9
SECTION 5. TIME OF BENEFIT PAYMENT.............................9
5.1 Eligibility for Payment.................................9
5.2 Benefit Commencement Date...............................9
(a) Time of Commencement................................9
(b) Benefit Commencement Election......................10
</TABLE>
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<TABLE>
<S> <C>
SECTION 6. AMOUNT OF BENEFIT PAYMENT................................10
6.1 Amount of Benefit............................................10
6.2 Vested Balance...............................................10
6.3 Forfeitures..................................................11
SECTION 7. FORM AND MEDIUM OF BENEFIT PAYMENTS......................11
7.1 Benefit Form Available.......................................11
7.2 Medium of Payment............................................11
(a) Under Mutual Fund Election...............................11
(b) Under Notional Shares Election...........................11
SECTION 8. PLAN ADMINISTRATION......................................12
8.1 Retirement Committee.........................................12
8.2 Indemnification..............................................12
8.3 Ownership of Assets..........................................13
8.4 Accounts and Expenses........................................13
8.5 Investments..................................................14
(a) Mutual Fund Election.....................................14
(b) Notional Shares Election.................................15
SECTION 9. LIQUIDITY FUND ..........................................16
9.1 Maintenance of Liquidity Fund................................16
9.2 Investment of Liquidity Fund.................................17
9.3 Status of Liquidity Fund.....................................17
SECTION 10. AMENDMENT AND TERMINATION...............................17
10.1 Amendment...................................................17
10.2 Termination.................................................17
</TABLE>
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<TABLE>
<S> <C>
SECTION 11. MISCELLANEOUS............................................................18
11.1 Limitations of Rights; Employment Relationship...............................18
11.2 Determination of Benefits, Claims, Procedure and Administration..............18
(a) Claim....................................................................18
(b) Decision on Claim........................................................18
(c) Request for Review.......................................................19
(d) Review of Decisions......................................................19
11.3 Designation of Beneficiary...................................................19
11.4 Non-Assignability of Benefits................................................20
11.5 Facility of Payments.........................................................20
11.6 Obligations to Withhold and Pay Taxes........................................20
11.7 Representations..............................................................21
11.8 Severability.................................................................21
11.9 Applicable Law...............................................................21
</TABLE>
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Section 1. Adoption and General Matters
1.1 ADOPTION. This Deferred Compensation Plan is hereby adopted as
set forth in the following pages, effective January 1, 1994, by United
Asset Management Corporation.
1.2 PURPOSE OF THE PLAN. The purpose of the Plan is to provide
employees who become covered under the Plan with enhanced retirement security
through tax-deferred benefits which will be payable on account of retirement,
death or other termination from employment or upon the occurrence of a change
of control over United Asset Management Corporation.
1.3 NATURE OF THE PLAN. The Plan shall be maintained for the exclusive
benefit of covered employees and is intended to comply with the requirements of
the Internal Revenue Code of 1986, as amended, and regulations thereunder, and
other applicable laws, as such laws apply to deferred compensation plans that
are not intended to be "qualified plans" pursuant to Section 401(a) of the Code
and are maintained by employers which are not "eligible employers" within the
meaning of Section 457(e)(1) of the Code.
1.4 APPLICABILITY OF ERISA TO THE PLAN. For purposes of the Employee
Retirement Income Security Act of 1974, as amended, the Company and each
Participant intend that this Plan be considered an "unfunded" arrangement
(within the meaning of Sections 201, 301 and 401 of such Act) that is
maintained primarily to provide deferred compensation benefits for the
Participants, each of whom is a member of a select group of management or
highly compensated employees of the Company.
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Section 2. Definitions
For purposes of the Plan, the following terms shall have the following
meanings:
2.1 "ACCOUNT" means the unfunded memorandum account maintained on the
books of the Company to reflect the aggregate sum of all Allocations made on
the Participant's behalf, as adjusted for the Participant's cumulative share of
any income, gains and losses on the imputed investment of such Account pursuant
to the Plan and to reflect all distributions, expenses and other charges or
adjustments allocable to such Account.
2.2 "ALLOCATION" means the amount, if any, credited from time to time
to a Participant's Account pursuant to Section 4.
2.3 "BENEFICIARY" means the individual(s), trust(s), or estate
entitled to receive benefits under this Plan after the death of a Participant
or another Beneficiary.
2.4 "BENEFIT" means the amount due a Participant or Beneficiary under
the Plan as determined under Subsection 6.1.
2.5 "BOARD" means the board of directors of the Company; provided that
to the extent that powers, duties, responsibilities or discretionary acts under
this Plan are delegated, either specifically or generally, to the Compensation
Committee of the Board, "Board" shall mean such Compensation Committee for all
such purposes other than actions described in Section 2.6.
2.6 "CHANGE OF CONTROL" means:
(a) The acquisition by any individual, entity or group (within the
meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934
(the "Act")) (a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Act) of 20 percent or more of either (i) the then
outstanding shares of the Stock or (ii) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of the directors (the "Outstanding Company Voting Securities");
provided, however, that
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the following acquisitions shall not constitute a Change of Control: (A) any
acquisition directly from the Company (excluding an acquisition by virtue of
the exercise of a conversion privilege); (B) any acquisition by the Company or
by any corporation controlled by the Company; (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company; or (D) any acquisition by any
corporation pursuant to a consolidation or merger, if, following such
consolidation or merger, the conditions described in clauses (i), (ii), and
(iii) of paragraph (c) of this Subsection 2.6 are satisfied; or
(b) Individuals who, as of the Effective Date, constitute the Board
(the "Incumbent Board") ceasing for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the Effective Date whose election, or nomination for
election by the Company's shareholders, was approved by a vote or resolution of
at least a majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial assumption
of office occurs as a result of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Act) or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(c) Adoption by the Board of a resolution approving an agreement of
consolidation of the Company with or merger of the Company into another
corporation or business entity in each case, unless, following such
consolidation or merger, (i) more than 60 percent of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
consolidation or merger and/or the combined voting power of the then
outstanding voting
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securities of such corporation or business entity entitled to vote
generally in the election of directors (or other persons having the general
power to direct the affairs of such entity) is then beneficially owned,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Stock and
Outstanding Company Voting Securities immediately prior to such consolidation
or merger in substantially the same proportions as their ownership, immediately
prior to such consolidation or merger, of the Stock and/or Outstanding Company
Voting Securities, as the case may be, (ii) no Person (excluding the Company,
any employee benefit plan (or related trust) of the Company or such corporation
or other business entity resulting from such consolidation or merger and any
Person beneficially owning, immediately prior to such consolidation or merger,
directly or indirectly, 35 percent or more of the Stock and/or Outstanding
Company Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 35 percent or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such consolidation or merger or
the combined voting power of the then outstanding voting securities of such
corporation or business entity entitled to vote generally in the election of
its directors (or other persons having the general power to direct the affairs
of such entity) and (iii) at least a majority of the members of the board of
directors (or other group of persons having the general power to direct the
affairs of the corporation or other business entity) resulting from such
consolidation or merger were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such consolidation or merger;
provided that any right which shall vest by reason of the action of the Board
pursuant to this paragraph (c) shall be divested, with respect to any such
right not already exercised, upon (A) the rejection of such agreement of
consolidation or merger by the
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stockholders of the Company or (B) its abandonment by either party thereto in
accordance with its terms; or
(d) Adoption by the requisite majority of the whole Board, or by the holders
of such majority of stock of the Company as is required by law or by the
Certificate of Incorporation or By-Laws of the Company as then in effect, of a
resolution or consent authorizing (i) the dissolution of the Company or (ii)
the sale or other disposition of all or substantially all of the assets of the
Company, other than to a corporation or other business entity with respect to
which, following such sale or other disposition, (A) more than 60 percent of,
respectively, the then outstanding shares of common stock of such corporation
and/or the combined voting power of the outstanding voting securities of such
corporation or other business entity entitled to vote generally in the election
of directors (or other persons having the general power to direct the affairs
of such entity) is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Stock and Outstanding Company Voting Securities
immediately prior to such sale or other disposition in substantially the same
proportions as their ownership, immediately prior to such sale or other
disposition, of the Stock and/or Outstanding Company Voting Securities, as the
case may be, (B) no Person (excluding the Company and any employee benefit plan
(or related trust) of the Company or such corporation or other business entity
and any Person beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 35 percent or more of the Stock and/or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 35 percent or more of, respectively, the then
outstanding shares of common stock of such corporation and/or the combined
voting power of the then outstanding voting securities of such corporation or
other business entity entitled to vote generally in the election of
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directors (or other persons having the general power to direct the affairs of
such entity) and (C) at least a majority of the members of the board of
directors (or other group of persons having the general power to direct the
affairs of such corporation or other entity) were members of the Incumbent
Board at the time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of the Company;
provided that any right which shall vest by reason of the action of the Board
or the stockholders pursuant to this paragraph (d) shall be divested, with
respect to any such right not already exercised, upon the abandonment by the
Company of such dissolution, or such sale or other disposition of assets, as
the case may be.
2.7 "CODE" means the Internal Revenue Code of 1986, as amended, and
including all regulations thereunder.
2.8 "COMPANY" means United Asset Management Corporation.
2.9 "COMPANY CONTRIBUTIONS" has the meaning defined in Qualified Plan
Section 1.11 or any successor thereto and applied in Qualified Plan Article 4
or any successor thereto.
2.10 "COMPENSATION" has the meaning provided in Qualified Plan Section
1.12 or any successor thereto, provided that no Participant's Compensation for
purposes of this Plan shall be subject to any limitations imposed under the
Code or under the Qualified Plan for purposes of complying with the Code,
including without limitation Code Section 401(a)(17) and the regulations
thereunder.
2.11 "EFFECTIVE DATE" means January 1, 1994.
2.12 "ELIGIBLE EMPLOYEE" means an employee of the Company who meets
all of the following requirements: (a) the employee is eligible pursuant to
Article 2 of the Qualified Plan to receive allocations of Company Contributions
pursuant to Article 4 of the Qualified Plan; (b) the
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employee is designated by the Board as eligible to participate in this
Plan; and (c) the employee is a member of a select group of management or
highly compensated employees of the Company. For purposes of this Plan, such
"select group" shall include only employees who hold the rank of vice president
of the Company or senior and whose Compensation exceeds the limit in effect
from time to time under Code Section 401(a)(17) or any successor thereto.
2.13 "ELIGIBLE PARTICIPANT" means for any Plan Year each Participant
who is eligible pursuant to Article 4 of the Qualified Plan to receive an
allocation of Company Contributions made on account of such Plan Year.
2.14 "ENTRY DATE" means the date specified as such by the Board with
respect to a Participant. No Participant's Entry Date shall precede the
Effective Date.
2.15 "LIQUIDITY FUND" means the investment fund, if any, created and
owned by the Company pursuant to Section 9.
2.16 "MUTUAL FUND ELECTION" means the election available to each
Participant pursuant to Subsection 8.5(a).
2.17 "NOTIONAL SHARES" means fictitious shares of the Company's common
stock that are equivalent in value at all times to shares of Stock.
2.18 "NOTIONAL SHARES ELECTION" means the election available to each
participant pursuant to Subsection 8.5(b).
2.19 "PARTICIPANT" means a present or former Eligible Employee who is
or has been enrolled in the Plan and who retains the right to receive a Benefit
under the Plan.
2.20 "PLAN YEAR" has the meaning defined in Qualified Plan Section
1.29 or any successor thereto; provided that if no such term is therein defined
at any time, "Plan Year" shall mean the Company's fiscal year.
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2.21 "QUALIFIED PLAN" means the United Asset Management Corporation
Profit Sharing and 401(k) Plan, as amended from time to time, and any successor
thereto designated by the Board as such for purposes of this Plan.
2.22 "RETIREMENT COMMITTEE" means the committee appointed pursuant to
Subsection 8.1.
2.23 "SEPARATION FROM SERVICE" means the termination of a
Participant's employment for any reason, including the death of the
Participant.
2.24 "STOCK" means the Company's common stock, $.01 par value.
2.25 "VALUATION DATE" means the date or dates in each Plan Year as of
which Accounts are valued pursuant to Subsection 8.4.
2.26 "VESTING PERCENTAGE" means the percentage of a Participant's
Account which is nonforfeitable from time to time pursuant to Subsection 6.2.
Section 3. Participation
3.1 ELIGIBILITY. Each Eligible Employee shall become a Participant on
his or her Entry Date.
3.2 TERMINATION OF ELIGIBILITY. A Participant whose employment is
terminated for any reason or who otherwise ceases for any reason to be an
Eligible Employee shall remain a Participant in the Plan so long as he or she
retains the right to receive a Benefit under the Plan, but shall immediately
cease to be an Eligible Participant for purposes of receiving additional
Allocations under the Plan.
Section 4. Allocations
4.1 NO CONTRIBUTIONS PERMITTED. This Plan is unfunded and the Company
shall not make any contributions hereunder. Furthermore, no contributions by
Participants shall be required or permitted under this Plan. Notwithstanding
the foregoing, the Company shall make such Allocations under this Plan, if any,
for a Plan Year as are determined by the Board in its
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sole and absolute discretion. All such Allocations for a Plan Year shall be
credited to the Accounts of the Eligible Participants for such Plan Year as
provided in Subsection 4.2.
4.2 ALLOCATIONS TO ACCOUNTS. On account of each Plan Year for which
the Board determines to make Allocations under this Plan, all Eligible
Participants in such Plan Year shall receive an Allocation credited to their
respective Accounts of an identical percentage (subject to the limitations
below) of their respective Compensations; provided that no Participant shall
receive an Allocation that exceeds the lesser of (a) 15 percent of his or her
Compensation for such Plan Year and (b) the amount of (i) $50,000 minus (ii)
the amount of any Company Contribution allocated to the Participant under the
Qualified Plan on account of such Plan Year.
4.3 NO ALLOCATION OF FORFEITURES. No forfeitures arising under this
Plan shall be allocated to any Participant.
4.4 RESPONSIBILITY FOR BENEFIT PAYMENTS. Although the Company will
not make any contributions under this Plan, it shall be responsible for paying
all Benefits as and when they fall due under the Plan.
Section 5. Time of Benefit Payment
5.1 ELIGIBILITY FOR PAYMENT. Benefits shall be paid from the Plan
only upon the occurrence of one or both of the following events: (a) Separation
from Service and (b) Change of Control.
5.2 BENEFIT COMMENCEMENT DATE.
(a) TIME OF COMMENCEMENT. Unless a Participant or Beneficiary (as the
case may be) has made a timely election to defer benefits with the approval of
the Retirement Committee pursuant to paragraph (b) of this Subsection 5.2, the
Participant's benefits under this Plan shall be paid 60 days after the earlier
of (i) the date of the Participant's Separation from Service and (ii) the date
on which a Change of Control occurs. Notwithstanding the foregoing, at any time
after a Participant's Separation from Service and prior to the earlier of (i)
payment of the Participant's Benefit pursuant to this Subsection 5.2 and (ii)
the date on which a Change of Control occurs, the
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Company may elect unilaterally to defer payment of all or any portion of
the Participant's Benefit until the next January following the Participant's
Separation from Service if the Participant was a "covered employee" within the
meaning of Code Section 162(m) at the time of his or her Separation from
Service. Any such election by the Company may be made by either the Board, the
Retirement Committee or the Company's chief executive officer, and shall be
evidenced in writing and sent to the Participant (at his or her last known
address).
(b) BENEFIT COMMENCEMENT ELECTION. Subject to the Retirement Committee's
approval, a Participant or Beneficiary may make a one-time irrevocable election
to defer payment of benefits to any determinable date beyond 60 days after the
Participant's Separation from Service or the date on which a Change of Control
occurs; provided that such election is made on the form prescribed by the
Retirement Committee and is received by the Retirement Committee within 30 days
after the Participant's Separation from Service or the date on which a Change
of Control occurs (as the case may be). The Retirement Committee shall have
absolute discretion to approve, disapprove or modify before approving any such
election to defer benefits.
Section 6. Amount of Benefit Payment
6.1 AMOUNT OF BENEFIT. A Participant's Benefit under the Plan (and the
Benefit of anyone claiming through the Participant, including without
limitation any Beneficiary) shall equal the vested balance (as determined
pursuant to Subsections 6.2 and 8.4) of the Participant's Account.
6.2 VESTED BALANCE. The vested balance of a Participant's Account shall
equal at any time the balance of such Account at such time multiplied by the
Participant's Vesting Percentage at such time. The Participant's Vesting
Percentage at any time prior to the occurrence of a Change of Control shall
equal the nonforfeitable percentage that the Participant is (or would be)
entitled to at such time under Qualified Plan Article 6, or any successor
thereto, in an account for Company Contributions. The Participant's Vesting
Percentage at any time on and after the date on which a Change of Control
occurs shall always be 100 percent.
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6.3 FORFEITURES. Any balance of a Participant's Account that is not
vested pursuant to Subsection 6.2 when the Participant's Benefit is paid shall
be forfeited at such time and shall always remain the sole property of the
Participant's Participating Employer.
Section 7. Form and Medium of Benefit Payments.
7.1 BENEFIT FORM AVAILABLE. Except to the extent that the Company
exercises its discretion pursuant to Subsection 5.2(a), all Benefits under the
Plan shall be paid in one lump sum.
7.2 MEDIUM OF PAYMENT.
(a) UNDER MUTUAL FUND ELECTION. Subject to the Retirement
Committee's approval, the portion of any Benefit for which the Mutual Fund
Election of Subsection 8.5(a) is in effect at the time of payment shall be paid
in cash (equal to the value of such portion of the Benefit as of the final
Valuation Date on or before the date of payment) or in kind (by distribution of
assets in the Liquidity Fund, or otherwise owned by the Company, representing
such portion of the Benefit), or in any combination thereof, at the recipient's
election; provided that such election is made on a form prescribed by the
Retirement Committee and is received by the Retirement Committee by such date
as the Retirement Committee may set. The Retirement Committee shall have
absolute discretion to approve, disapprove or modify before approving any such
election of payment medium.
(b) UNDER NOTIONAL SHARES ELECTION. The portion of any Benefit
for which the Notional Shares Election of Subsection 8.5(b) has been made shall
be paid by the distribution of shares of Stock equal in number to the Notional
Shares representing such portion of the Benefit as of the date of payment;
provided, however, that the aggregate number of shares of Stock that are to be
distributed under the Plan shall not exceed 50,000, subject to adjustment by
the Retirement Committee to equitably reflect the effects of any stock splits,
stock dividends, stock combinations, recapitalizations and other similar
changes in the capital structure of the Company after the Effective Date. At
the Company's sole option, such Stock may either be issued or
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purchased by the Company for delivery to the recipient. The Company shall
register all shares of Stock distributed under the Plan for resale pursuant to
applicable securities laws. Except to the extent that shares of Stock may not
be distributed because of the foregoing limit of this paragraph, no payment in
cash or other property shall be made of any part of the Notional Shares
Election portion of any Participant's Benefit.
Section 8. Plan Administration
8.1 RETIREMENT COMMITTEE. The Plan shall be administered by a Retirement
Committee consisting of one or more members appointed by the Board, and shall
be the committee serving from time to time as the Administrative Committee of
the Qualified Plan unless a different appointment is then in effect under this
Plan. Each member shall serve at the pleasure of the Board. The Retirement
Committee shall act by majority decision of its members; provided that any one
or more members may act singly to perform any ministerial act on behalf of the
Committee. The Committee shall have responsibility for the operation and
administration of the Plan and shall have the power and authority to adopt,
interpret, alter, amend or revoke all forms, rules and regulations necessary to
administer the Plan, to interpret all provisions of the Plan and determine all
questions of eligibility for participation in and benefits under the Plan and
all other issues of administration, and to delegate ministerial duties and
employ such outside professionals as may be required for prudent administration
of the Plan. The Retirement Committee shall also have the authority to enter
into agreements on behalf of any Participating Employer as necessary to
implement this Plan. The members of the Retirement Committee, if otherwise
Eligible Employees, may participate in the Plan, but shall not make decisions
of the Committee solely with respect to their own benefits.
8.2 INDEMNIFICATION. The Company shall indemnify and save harmless any
individual acting as a member of the Retirement Committee or in any other
fiduciary capacity from, against, for and in respect of any and all damages,
losses, obligations, liabilities, liens, deficiencies, attorneys' fees, costs
and expenses incident to the performance of such person's duties unless
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resulting from the gross negligence, willful misconduct, or lack of good faith
of such individual. Such indemnification shall apply to any such individual
even though at the time liability is imposed the individual was no longer
acting in a fiduciary capacity or as a member of the Retirement Committee.
8.3 OWNERSHIP OF ASSETS. All amounts allocated under this Plan, all
property and rights purchased with such amounts, and all income attributable to
such amounts, property or rights shall remain (until made available to the
Participant or Beneficiary or the occurrence of a Change of Control) solely the
property and rights of the Company (without being restricted to the provision
of benefits under this Plan) and shall be subject to the claims of the general
creditors of the Company. No trust is created under this Plan and it is not
otherwise funded in any manner. No Participant or Beneficiary shall have any
preferred claim on, or any beneficial ownership interest in, any assets of the
Company or any benefit Account maintained under the Plan prior to the time such
assets are distributed as a Benefit, and all rights created under the Plan
shall be mere unsecured contractual rights. Notwithstanding the foregoing,
nothing in this Plan shall be construed to prohibit any one or more
Participants or Beneficiaries from purchasing insurance to protect against loss
on account of the provisions of this Subsection 8.3, and the Company shall
cooperate in any effort to obtain such insurance; provided that any such
insurance shall be obtained, owned and paid for solely by the insured persons
and not by the Company.
8.4 ACCOUNTS AND EXPENSES. The Retirement Committee shall establish and
maintain an unfunded bookkeeping Account on behalf of each Participant and
surviving Beneficiary who is awaiting or receiving payment of a Benefit under
the Plan. Accounts shall be valued at least once each Plan Year on the
Valuation Date or Dates determined by the Retirement Committee, and each
Participant (or surviving Beneficiary) shall receive written notice of his or
her Account balance following such valuation. Account balances shall reflect
the cumulative Allocation amounts and any earnings or losses attributable to
the deemed investment of such amounts pursuant to Subsection 8.5, and shall be
reduced by (a) administrative, investment and other fees, in such amounts and
at such times as the Retirement Committee deems appropriate for the
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maintenance of this Plan and (b) benefits paid to or on behalf of the
Participant and/or anyone claiming through the Participant (including without
limitation any Beneficiary). Notwithstanding the foregoing, the Company shall
have the discretion, but not the obligation, to pay all or any portion of the
fees and expenses incurred in administering the Plan.
8.5 INVESTMENTS.
(a) MUTUAL FUND ELECTION.
(i) THE ELECTION. Each Participant may elect to have all or any
portion of his or her Allocations under the Plan be deemed to be invested in
one or more mutual funds selected by the Participant. All such elections
shall be made on a form prescribed by the Retirement Committee and shall be
subject to the following requirements and restrictions:
(1) A maximum of three mutual funds may be utilized by any Participant
at any one time;
(2) The Participant may change his or her designated funds and mix of
investments among such funds a maximum of once during each Plan Year;
(3) The availability of any particular mutual fund shall be subject to
the Retirement Committee's sole discretion; and
(4) No election shall be effective until it is received and approved by
the Retirement Committee.
(ii) THE INVESTMENT. The deemed investment in or sale of a mutual fund
pursuant to a Participant's election shall be made at the daily value of such
fund on the next business day after the Retirement Committee approves the
election.
(iii) INVESTMENT EXPENSES. All loads, fees, commissions, and sales
charges and the like that would have been paid on such deemed mutual fund
investments shall be deducted from the Participant's Account unless the
Company, in its sole discretion, elects to waive such deductions.
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(iv) INCOME REINVESTMENT. The pre-tax amount of all dividends and other
income that would be realized on such deemed investments shall be deemed to be
reinvested in each mutual fund.
(v) CALCULATION OF ACCOUNT BALANCE. The value of the portion of a
Participant's Account for which the Mutual Fund Election is in effect at any
Valuation Date shall equal the daily value of the deemed mutual fund holdings
of such Account on such Valuation Date (or on the last previous business day if
such Valuation Date is not a business day). Such deemed holdings shall reflect
all deductions and deemed reinvestment of income, if any, made pursuant to this
Paragraph (a) of Subsection 8.5.
(b) NOTIONAL SHARES ELECTION.
(i) THE ELECTION. Each Participant may elect to have all or any portion
of his or her Allocations under the Plan (including all or any portion of his
or her existing Account that was previously invested under the Mutual Fund
Election) be deemed to be invested in Notional Shares. All such elections
shall be made on a form prescribed by the Retirement Committee and shall be
subject to the following requirements and restrictions:
(1) The election with respect to any Allocations made for a Plan Year
and/or any portion of an existing Account previously invested under the Mutual
Fund Election shall be received by the Retirement Committee on or before June
30 of such Plan Year for a deemed investment (or reinvestment) in Notional
Shares as of the last day of such Plan Year (provided that elections made for
the Plan Year ending December 31, 1994 were made on or before such date and
shall be deemed to be invested in Notional Shares as of June 30, 1995);
(2) No investment or reinvestment in Notional Shares will be made to the
extent that the Retirement Committee determines that such action would likely
result in more Notional Shares being credited to Accounts under the Plan than
could be paid out as shares of Stock pursuant to paragraph (b) of Subsection
7.2;
(3) To the extent that a Notional Shares Election cannot be carried out
because of clause (2) above, it will be deemed to be a Mutual Fund
Election; and
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(4) Once made, investment of an Allocation or reinvestment of any
portion of an existing Account in Notional Shares is irrevocable.
(ii) THE INVESTMENT. As of the date that any deemed investment in
Notional Shares takes place, the number of Notional Shares credited to the
Participant's Account shall be determined by dividing the amount of the
Allocation to be invested and/or the value of the Account to be reinvested by
the closing price of the Stock on its principal trading exchange as of such
date (or on the last previous business day if such date is not a business day),
with any resulting fractional Notional Share rounded up to the next whole
Share.
(iii) NO INVESTMENT EXPENSES. No loads, commissions, fees, or other sales
charges or the like shall be deducted from a Participant's Account with respect
to such deemed investments in Notional Shares.
(iv) DIVIDEND REINVESTMENT. The pre-tax amount of all dividends that
would have been declared on the Notional Shares credited to a Participant's
Account (if such shares were shares of Stock) shall be deemed to be reinvested
in additional Notional Shares at the closing price of the Stock on its
principal trading exchange on the dividend payment date, with any resulting
fractional Notional Share rounded up to the next whole Share.
(v) CALCULATION OF ACCOUNT BALANCE. The value of the portion of a
Participant's Account for which the Notional Shares Election is in effect at
any Valuation Date shall equal the closing price of the Stock on its principal
trading exchange on such Valuation Date (or on the last previous business day
if such Valuation Date is not a business day) multiplied by the number of
Notional Shares credited to such Account.
Section 9. Liquidity Fund
9.1 Maintenance of Liquidity Fund. The Company at its sole option may
from time to time maintain liquid assets representing all or any portion of
the value of Accounts invested pursuant to Mutual Fund Elections.
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9.2 INVESTMENT OF LIQUIDITY FUND. Any Liquidity Fund maintained
pursuant to Subsection 9.1 shall be invested at the discretion of the
Retirement Committee; provided, however, that it is the intent of the Plan that
any such Liquidity Fund be invested generally in the same kinds and numbers of
mutual fund shares as the Participants' Accounts are deemed to be invested in
from time to time pursuant to the Mutual Fund Elections.
9.3 STATUS OF LIQUIDITY FUND. Any Liquidity Fund maintained pursuant to
Subsection 9.1 shall not be held in trust for any Participant or
Beneficiary and shall in all respects remain subject to the provisions of
Subsection 8.3.
Section 10. Amendment and Termination
10.1 AMENDMENT. The Company shall have the right to amend this Plan, at
any time and from time to time, in whole or in part; provided, however,
that no amendment (a) may reduce the vested balance of any Participant's
Account as of the date of such amendment or (b) except with the approval of the
holders of the Company's capital stock entitled to vote on such matters, (i)
materially increase benefits accruing under the Plan to Participants, (ii)
materially modify the requirements as to eligibility for participation in the
Plan, or (iii) increase the limit specified in paragraph (b) of Subsection 7.2.
10.2 TERMINATION. Although the Company has established this Plan with a
bona fide intention and an expectation to maintain the Plan indefinitely,
the Company may terminate or discontinue this Plan in whole or in part at any
time without any liability for such termination or discontinuance; provided,
however, that no such termination or discontinuance may reduce the vested
balance of any Participant's Account as of the date of such termination or
discontinuance. Upon termination or discontinuance of the Plan, all
Allocations shall cease. At the Retirement Committee's sole discretion, the
vested portion of all Accounts shall be either distributed immediately as
Benefits or retained until each Participant has a Separation from Service or a
Change of Control occurs, and Benefits shall thereafter be paid pursuant to
Sections 5 through 7 of the Plan, as then in effect.
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Section 11. Miscellaneous
11.1 LIMITATIONS OF RIGHTS; EMPLOYMENT RELATIONSHIP. Neither the
establishment of this Plan nor any modification thereof, nor the creation of
any fund or account, nor the payment of any benefits, shall be construed as
giving a Participant or any other person any legal or equitable right against
the Company except as provided in this Plan. In no event shall the terms of
employment of any employee be modified or in any way be affected by the Plan.
11.2 DETERMINATION OF BENEFITS, CLAIMS, PROCEDURE AND ADMINISTRATION.
(a) CLAIM. A person who believes that he or she is being denied a
benefit to which he or she is entitled under the Plan (hereinafter referred to
as a "Claimant") may file a written request for such benefit with the Company,
setting forth his or her claim. The request must be addressed to the
Retirement Committee in care of the Company at its then principal place of
business.
(b) DECISION ON CLAIM. Upon receipt of a claim, the Retirement
Committee shall advise the Claimant that a reply will be forthcoming within 90
days and shall, in fact, deliver such reply within such period. The Retirement
Committee may, however, extend the reply period for an additional 90 days for a
reasonable cause.
If the claim is denied in whole or in part, the Retirement Committee shall
adopt a written opinion, using language calculated to be understood by the
Claimant, setting forth:
(i) The specific reason or reasons for such denial
(ii) The specific reference to pertinent provisions of the Plan on which
such denial is based
(iii) A description of any additional material or information necessary
for the Claimant to perfect his or her claim and an explanation of why such
material or such information is necessary
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(iv) Appropriate information as to the steps to be taken if the Claimant
wishes to submit the claim for review
(v) The time limits for requesting a review and for completing any such
review.
(c) REQUEST FOR REVIEW. Within 60 days after the receipt by the
Claimant of the written opinion described above, the Claimant may request in
writing that the chief executive officer of the Company (or his designee)
review the determination of the Retirement Committee. Such request must be
addressed to the chief executive officer of the Company, at the Company's then
principal place of business. The Claimant or his or her duly authorized
representative may, but need not, review the pertinent documents and submit
issues and comments in writing for consideration by the chief executive officer
or his designee. If the Claimant does not request a review of the Retirement
Committee's determination by the chief executive officer of the Company within
such 60-day period, he or she shall be barred and estopped from challenging the
Retirement Committee's determination.
(d) REVIEW OF DECISIONS. Within 60 days after receipt of a request for
review, the chief executive officer of the Company or his designee shall review
the Retirement Committee's determination. After considering all materials
presented by the Claimant the chief executive officer or his designee shall
render a written opinion, written in a manner calculated to be understood by
the Claimant, setting forth the specific reasons for a decision and containing
specific references to the pertinent provisions of the Plan on which the
decision is based. If special circumstances require that the 60-day time
period be extended, the chief executive officer or his designee shall so notify
the Claimant and shall render the decision as soon as possible, but not later
than 120 days after receipt of the request for review.
11.3 DESIGNATION OF BENEFICIARY. Each Participant (and each surviving
Beneficiary who is awaiting payment of benefits under the Plan) shall have the
right to designate a Beneficiary, and to amend or revoke such designation at
any time. Each such designation, amendment or revocation shall be made on the
form prescribed by the Retirement Committee, and shall be effective only upon
receipt by the Retirement Committee. If no designated
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beneficiary survives the Participant (or a surviving Beneficiary) and benefits
are payable following the Participant's (or surviving Beneficiary's) death,
the Retirement Committee shall direct that payment of benefits be made to the
person or persons in the first of the following classes of successive
preference Beneficiaries:
(a) Spouse
(b) Descendants, Per Stirpes
(c) Parents
(d) Siblings
(e) Estate
11.4 NON-ASSIGNABILITY OF BENEFITS. Neither the Participant nor his or
her Beneficiary nor any other beneficiary under the Plan shall have any
power or right to transfer, assign, anticipate, hypothecate or otherwise
encumber any part or all of the amounts payable hereunder, which are expressly
declared to be nonassignable and non-transferable. Any such attempted
assignment or transfer shall be void. No amount payable under the Plan shall,
prior to actual payment thereof, be subject to seizure by any creditor of any
such person for the payment of any debt, judgment or other obligation, by a
proceeding at law or in equity, or be transferable by operation of law in the
event of the bankruptcy, insolvency, divorce or death of the Participant, his
or her designated Beneficiary or any other beneficiary under this Plan.
11.5 FACILITY OF PAYMENTS. In the event that the Retirement Committee
shall determine that any person to whom a benefit is payable under the Plan
is unable to care for his or her affairs because of illness or accident, or is
otherwise mentally or physically incompetent, or unable to give a valid
receipt, the Committee may cause the payment becoming due to be paid to the
person's spouse, child, grandchild, parent, brother or sister, or to any
appropriate individual appointed by a court of competent jurisdiction, or to
any person deemed by the Committee to have incurred expense for such person
otherwise entitled to payment.
11.6 OBLIGATIONS TO WITHHOLD AND PAY TAXES. Each Participant or other
recipient of benefits under the Plan shall be liable for all tax obligations,
if any, with respect to any sum
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received pursuant to the Plan and for accurately reporting and paying in full
all such taxes to the appropriate federal, state and local authorities. The
Company shall have the right to deduct and withhold from any payment due under
the Plan or from other amounts owed to or with respect to the Participant all
withholding taxes and other amounts required by law.
11.7 REPRESENTATIONS. The Company makes no representation or guarantee
that any particular federal or state income, payroll, personal property or
other tax consequence will result from participation in this Plan. A
Participant should consult with professional tax advisors to determine the tax
consequences of his or her participation. Furthermore, the Company makes no
representation or guarantee of the successful investment of any Allocations,
nor shall the Company be required to repay any loss which may result from such
investment or lack of investment.
11.8 SEVERABILITY. If a court of competent jurisdiction holds any
provision of this Plan to be invalid or unenforceable, the remaining
provisions of the Plan shall continue to be fully effective.
11.9 APPLICABLE LAW. This Plan shall be governed by and construed in
accordance with applicable federal law and, to the extent not preempted by
such federal law, the laws of the Commonwealth of Massachusetts applicable to
contracts that are made and to be wholly performed in such Commonwealth.
IN WITNESS WHEREOF, the Company has caused this Plan to be executed under
seal by its duly authorized representative this 29th day of March, 1995.
UNITED ASSET MANAGEMENT
CORPORATION
By: /s/ William H. Park
-----------------------------
William H. Park
Executive Vice President
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