<PAGE>
AS FILED ELECTRONICALLY WITH
THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1996
Registration No. 333-
=================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ASSOCIATES FIRST CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
06-0876639
(I.R.S. Employer Identification No.)
250 East Carpenter Freeway
Irving, Texas
(Address of principal executive offices)
75062-2729
(Zip Code)
ASSOCIATES SAVINGS AND PROFIT-SHARING PLAN
(Full title of the Plan)
Timothy M. Hayes, Esq.
Associates First Capital Corporation
250 East Carpenter Freeway
Irving, Texas
75062-2729
(214) 541-4000
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
TO BE REGISTERED REGISTERED <F1> MAXIMUM MAXIMUM REGISTRATION
OFFERING AGGREGATE FEE
PRICE OFFERING
PER SHARE PRICE
</TABLE>
- ---------------------------------------------------------------------
<TABLE>
<S> <C> <C> <C> <C>
Class A Common Stock 3,000,000 $37.0625 $111,187,500. $38,341
$.01 par value per Shares
share
- ---------------------------------------------------------------------
<FN>
<F1> The number of shares being registered represents the maximum number of
shares that may be acquired be Fidelity Management Trust Company, as trustee,
under the Plan, during 1996 and during subsequent years until a new
Registration Statement becomes effective.
<F2> Based on the market price of Class A Common Stock of the Company on July
25,1996 in accordance with rule 457(c) under the Securities Act of 1933.
</FN>
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registraton Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Plan described herein.
<PAGE>
ASSOCIATES SAVINGS AND PROFIT SHARING PLAN
______________________
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed or to be filed with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The latest annual report of Associate First Capital Corporation (the
"Company" or "Associates") filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") which contains, either
directly or indirectly by incorporation by reference, certified financial
statements for Associates' latest fiscal year for which such statements have
been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
1934 Act since the end of the fiscal year covered by the annual report
referred to in paragraph (a) above.
(c) The description of Associates Class A Common Stock contained in
registration statement no. 333-817, as amended, filed by Associates under the
Securities Act of 1933 (the "1933 Act").
All documents subsequently filed by Associates pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, 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 a part
hereof from the date of filing such documents.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person was an officer or
director of such corporation, or is or was serving at the request of such
corporation as a director, officer employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit, or proceeding,
provided that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe
his or her conduct was illegal. A Delaware corporation may indemnify officers
and directors against expenses (including attorney's fees) in connection with
the defense or settlement of an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the <PAGE>
corporation must
indemnify him or her against the expenses which such officer
or director actually and reasonably incurred.
In accordance with the Delaware Law, the Restated Certificate of
Incorporation of the Company contains a provision to limit the personal
liability of the directors of the Company for violations of their fiduciary
duty. This provision eliminates each director's liability to the Company or
its stockholders for monetary damages except (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware Law
providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions, or (iv) for any transaction from
which a director derived an improper personal benefit. The effect of this
provision is to eliminate the personal liability of directors for monetary
damages for actions involving a breach of their fiduciary duty of care,
including any such actions involving gross negligence.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities, the underwriters
parties thereto have agreed to indemnify each officer and director of
Associates and each person, if any, who controls Associates within the meaning
of the 1933 Act, against certain liabilities, including liabilities under the
1933 Act.
The directors and officers of the Company are covered by directors' and
officers' insurance policies relating to Ford Motor Company and its
subsidiaries.
The Restated Certificate of Incorporation of the Company provides for
indemnification of the officers and directors of the Company to the full
extent permitted by applicable law.
Item 8. Exhibits.
Exhibit
Number
- -------
*4(a) - Form of Associates Savings and Profit-Sharing Plan, as amended.
*4(b) - Form of Trust Agreement, as amended between the Company and
Fidelity Institutional Retiree Services Company, as Trustee.
*5 - Copy of Internal Revenue Service determination letter that
the Plan is qualified under Section 401 of the Internal Revenue
Code. (An opinion of counsel as to the legality of the securities
is not being filed since the securities being registered are not
original issue securities.)
*23 - Consent of Coopers & Lybrand L.L.P.
*24 - Powers of Attorney.
* Filed with this Registration Statement
<PAGE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof)which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification 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.
<PAGE>
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 Irving, State of Texas, on this
29th day of July, 1996.
ASSOCIATES FIRST CAPITAL CORPORATION
By: /s/ Roy A. Guthrie
---------------------------------
Roy A. Guthrie
Title: Executive Vice President
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.
<TABLE>
<CAPTION>
Signature Title
Date ----------------- ------------------------------------------
<C> <S> <C>
KEITH W. HUGHES* Chairman of the Board,
(Keith W. Hughes) Principal Executive Officer
and Director
/s/ ROY A. GUTHRIE Executive Vice President, Comptroller,
Principal Accounting Officer and Principal
Financial Officer and Director
</TABLE>
JULY 29, 1996
<TABLE>
<C> <S> <C>
HAROLD D. MARSHALL* Director
(Harold D. Marshall)
JOSEPH M. MCQUILLAN* Director
(Joseph M. McQuillan)
</TABLE>
- ---------------------
*By signing his name hereto, Roy A. Guthrie signs this document on behalf of
each of the persons indicated above pursuant to powers of attorney duly
executed by such persons.
By: /s/ ROY A. GUTHRIE
____________________
(Attorney-in-Fact)
<PAGE>
The Plan. Pursuant to the requirements of the Securities Acts of 1933, the
Plan has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of Irving, Texas, on
this 29th day of July, 1996.
ASSOCIATES SAVINGS AND PROFIT-SHARING PLAN
/S/ John W. Lee
------------------------
John W. Lee
Secretary, Associates Savings
And Profit-Sharing Plan Committee<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Exhibit
Number
- -------
<S> <C>
*4(a) - Form of Associates Savings and Profit-Sharing Plan, as amended.
*4(b) - Form of Trust Agreement, as amended between the Company and
Fidelity Institutional Retiree Services Company, as Trustee.
*5 - Copy of Internal Revenue Service determination letter that
the Plan is qualified under Section 401 of the Internal Revenue
Code. (An opinion of counsel as to the legality of the securities
is not being filed since the securities being registered are not
original issue securities.)
*23 - Consent of Coopers & Lybrand L.L.P.
*24 - Powers of Attorney.
* Filed Herewith
</TABLE>
<PAGE>
Exhibit 4(a)
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
Effective December 1, 1989
<PAGE>
TABLE OF CONTENTS
ARTICLE I - DEFINITIONS. . . . . . . . . . . . . . . . . . . . 1
1.1 Actual Contribution Percentage . . . . . . . . . . . 1
1.2 Actual Deferral Percentage . . . . . . . . . . . . . 2
1.3 Affiliated Company . . . . . . . . . . . . . . . . . 3
1.4 Beneficiary. . . . . . . . . . . . . . . . . . . . . 3
1.5 Board of Directors . . . . . . . . . . . . . . . . . 4
1.6 Code . . . . . . . . . . . . . . . . . . . . . . . . 4
1.7 Committee. . . . . . . . . . . . . . . . . . . . . . 4
1.8 Company. . . . . . . . . . . . . . . . . . . . . . . 4
1.9 Covered Compensation . . . . . . . . . . . . . . . . 4
1.10 Disability or Disabled . . . . . . . . . . . . . . . 5
1.11 Early Retirement . . . . . . . . . . . . . . . . . . 6
1.12 Early Retirement Date. . . . . . . . . . . . . . . . 6
1.13 Effective Date . . . . . . . . . . . . . . . . . . . 6
1.14 Employee . . . . . . . . . . . . . . . . . . . . . . 6
1.15 Employer . . . . . . . . . . . . . . . . . . . . . . 7
1.16 ERISA. . . . . . . . . . . . . . . . . . . . . . . . 7
1.17 Excess Aggregate Contribution. . . . . . . . . . . . 7
1.18 Excess Contribution. . . . . . . . . . . . . . . . . 8
1.19 Highly Compensated Employee. . . . . . . . . . . . . 9
1.20 Hours of Service . . . . . . . . . . . . . . . . . . 9
1.21 Investment Funds . . . . . . . . . . . . . . . . . . 9
1.22 Leased Employee. . . . . . . . . . . . . . . . . . . 10
1.23 Matching Contributions . . . . . . . . . . . . . . . 10
1.24 Matching Contributions Account . . . . . . . . . . . 10
1.25 Merged Plans . . . . . . . . . . . . . . . . . . . . 10
1.26 Normal Retirement. . . . . . . . . . . . . . . . . . 10
1.27 Normal Retirement Date . . . . . . . . . . . . . . . 10
1.28 PCI ESOP . . . . . . . . . . . . . . . . . . . . . . 11
1.29 PCI Plan . . . . . . . . . . . . . . . . . . . . . . 11
1.30 Parental Leave . . . . . . . . . . . . . . . . . . . 11
1.31 Participant. . . . . . . . . . . . . . . . . . . . . 11
1.32 Participant's Account or Accounts. . . . . . . . . . 11
1.33 Plan . . . . . . . . . . . . . . . . . . . . . . . . 12
1.34 Plan Fiduciaries . . . . . . . . . . . . . . . . . . 12
1.35 Plan Year. . . . . . . . . . . . . . . . . . . . . . 12
1.36 Post-Tax Contributions . . . . . . . . . . . . . . . 12
1.37 Post-Tax Contributions Account . . . . . . . . . . . 12
1.38 Pre-Tax Contributions. . . . . . . . . . . . . . . . 13
1.39 Pre-Tax Contributions Account. . . . . . . . . . . . 13
1.40 Profit Sharing Contribution. . . . . . . . . . . . . 13
1.41 Profit Sharing Contribution Account. . . . . . . . . 13
1.42 Retire or Retired. . . . . . . . . . . . . . . . . . 13
1.43 Rollover Contributions Account . . . . . . . . . . . 13
1.44 Severance Date . . . . . . . . . . . . . . . . . . . 13
1.45 Trust Agreement. . . . . . . . . . . . . . . . . . . 14
1.46 Trustee. . . . . . . . . . . . . . . . . . . . . . . 14
1.47 Trust Fund . . . . . . . . . . . . . . . . . . . . . 14
1.48 Valuation Date . . . . . . . . . . . . . . . . . . . 14
1.49 Vested Interest. . . . . . . . . . . . . . . . . . . 14
1.50 Year of Eligibility Service or Eligibility Service . 14
1.51 Year of Vesting Service or Vesting Service . . . . . 14
ARTICLE II - ELIGIBILITY FOR PARTICIPATION . . . . . . . . . . 16
2.1 Eligibility For Participation. . . . . . . . . . . . 16
2.2 Excluded Employees . . . . . . . . . . . . . . . . . 17
2.3 Participation Upon Re-employment . . . . . . . . . . 17
2.4 Application For Participant Contributions. . . . . . 18
2.5 Transfer Of Employment Between Employers . . . . . . 18
2.6 Change Of Status . . . . . . . . . . . . . . . . . . 18
2.7 Duration of Participation. . . . . . . . . . . . . . 18
ARTICLE III - SERVICE. . . . . . . . . . . . . . . . . . . . . 20
3.1 Vesting And Eligibility Service. . . . . . . . . . . 20
ARTICLE IV - CONTRIBUTIONS . . . . . . . . . . . . . . . . . . 26
4.1 Pre-Tax Contributions. . . . . . . . . . . . . . . . 26
4.2 Post-Tax Contributions . . . . . . . . . . . . . . . 26
4.3 Participant Contributions In General . . . . . . . . 27
4.4 Rollover Contributions and Transferred
Contributions. . . . . . . . . . . . . . . . . . . . 29
4.5 Employer Matching Contributions and Profit Sharing
Contributions. . . . . . . . . . . . . . . . . . . . 30
4.6 Limitations On Pre-Tax Contributions Affecting
Highly Compensated Employees . . . . . . . . . . . . 32
4.7 Maximum Participant Tax Deferred Contributions . . . 33
4.8 Limitations On Matching Contributions And Post-Tax
Contributions Affecting Highly Compensated
Employees. . . . . . . . . . . . . . . . . . . . . . 34
4.9 Limitations On Annual Additions. . . . . . . . . . . 37
ARTICLE V - INVESTMENT OF ACCOUNTS . . . . . . . . . . . . . . 43
5.1 Establishment Of Investment Funds. . . . . . . . . . 43
5.2 Investment Of Contributions. . . . . . . . . . . . . 45
5.3 Initial Investment . . . . . . . . . . . . . . . . . 45
5.4 Change Of Election . . . . . . . . . . . . . . . . . 45
5.5 Transfers Among Investment Funds . . . . . . . . . . 46
ARTICLE VI - VALUATION AND ACCOUNTING. . . . . . . . . . . . . 47
6.1 Establishment Of Accounts. . . . . . . . . . . . . . 47
6.2 Valuation And Adjustment Of Accounts . . . . . . . . 47
6.3 Post 1987 Post-Tax Contributions . . . . . . . . . . 48
ARTICLE VII - WITHDRAWALS. . . . . . . . . . . . . . . . . . . 49
7.1 Voluntary Withdrawals. . . . . . . . . . . . . . . . 49
7.2 Hardship Withdrawals . . . . . . . . . . . . . . . . 50
7.3 Form And Frequency Of Election . . . . . . . . . . . 52
7.4 Limitation on Withdrawals. . . . . . . . . . . . . . 52
7.5 Withdrawal Of Rollover Contributions
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE VIII - VESTING AND DISTRIBUTIONS UPON RETIREMENT,
DISABILITY, DEATH OR OTHER TERMINATION OF EMPLOYMENT. . . 54
8.1 Vesting. . . . . . . . . . . . . . . . . . . . . . . 54
8.2 Time And Manner Of Distribution. . . . . . . . . . . 55
8.3 Forfeitures. . . . . . . . . . . . . . . . . . . . . 61
8.4 Latest Commencement Of Payments. . . . . . . . . . . 63
8.5 Termination of Employment. . . . . . . . . . . . . . 64
ARTICLE IX - LOANS . . . . . . . . . . . . . . . . . . . . . . 65
9.1 Eligibility For A Loan . . . . . . . . . . . . . . . 65
9.2 Security And Interest. . . . . . . . . . . . . . . . 66
9.3 Other Loan Rules . . . . . . . . . . . . . . . . . . 67
9.4 Loan Repayment . . . . . . . . . . . . . . . . . . . 67
9.5 Repayment Upon Termination Of Employment . . . . . . 68
9.6 Events Of Default; Remedies. . . . . . . . . . . . . 69
ARTICLE X - ADMINISTRATION OF THE PLAN . . . . . . . . . . . . 70
10.1 Appointment Of Committee . . . . . . . . . . . . . . 70
10.2 Organization And Operation Of The Committee. . . . . 70
10.3 Duties And Responsibilities Of The Committee . . . . 71
10.4 Required Information . . . . . . . . . . . . . . . . 73
10.5 Indemnification. . . . . . . . . . . . . . . . . . . 73
10.6 Claims And Appeal Procedure. . . . . . . . . . . . . 73
ARTICLE XI - AMENDMENT AND TERMINATION . . . . . . . . . . . . 76
11.1 Amendment. . . . . . . . . . . . . . . . . . . . . . 76
11.2 Termination, Sale of Assets or Sale of Subsidiary. . 76
11.3 Merger Of Plans. . . . . . . . . . . . . . . . . . . 77
ARTICLE XII - PARTICIPATING EMPLOYERS. . . . . . . . . . . . . 78
12.1 Adoption Of Plan . . . . . . . . . . . . . . . . . . 78
ARTICLE XIII - GENERAL PROVISIONS. . . . . . . . . . . . . . . 79
13.1 Exclusiveness Of Benefits. . . . . . . . . . . . . . 79
13.2 Limitation Of Rights . . . . . . . . . . . . . . . . 79
13.3 Non-Assignability. . . . . . . . . . . . . . . . . . 80
13.4 Construction Of Agreement. . . . . . . . . . . . . . 81
13.5 Severability . . . . . . . . . . . . . . . . . . . . 81
13.6 Titles And Headings. . . . . . . . . . . . . . . . . 81
13.7 Counterparts As Original . . . . . . . . . . . . . . 81
13.8 Construction . . . . . . . . . . . . . . . . . . . . 82
13.9 Internal Revenue Service Approval. . . . . . . . . . 82
13.10 Trust Fund. . . . . . . . . . . . . . . . . . . 82
13.11 Source Of Benefits. . . . . . . . . . . . . . . 83
13.12 Notice of Address and Missing Persons.. . . . . 83
ARTICLE XIV - TOP-HEAVY PROVISIONS . . . . . . . . . . . . . . 85
14.1 General Rule . . . . . . . . . . . . . . . . . . . . 85
14.2 Top-Heavy Plan . . . . . . . . . . . . . . . . . . . 85
14.3 Definitions. . . . . . . . . . . . . . . . . . . . . 86
14.4 Requirements Applicable If Plan Is Top-Heavy . . . . 89
<PAGE>
PREAMBLE
Effective December 1, 1989, Associates First Capital
Corporation ("Associates") established the Associates First
Capital Corporation Retirement Savings and Profit Sharing Plan
(the "Plan") to encourage retirement savings by its employees.
The Plan, as amended from time to time, is intended to be
qualified as a cash or deferred plan under Section 401(k) of the
Internal Revenue Code of 1986, as amended (the "Code"), with a
matching feature that is intended to be qualified under Section
401(m) of the Code, and as a profit sharing plan under Section
401(a) of the Code and the trust underlying the Plan is intended
to be tax-exempt under Section 501(a) of the Code. Unless
otherwise indicated herein or unless otherwise required by the
Tax Reform Act of 1986 or subsequent legislation, the provisions
of the Plan shall be effective January 1, 1989. The Plan shall
be construed and interpreted with these intentions in mind.
On January 1, 1987, the "Supplemental Savings and Profit
Sharing Plan of Associates Corporation of North America" and the
"Employees' Savings and Profit Sharing Plan of Associates
Corporation of North America" (collectively, the "Merged Plans")
were merged into the Gulf & Western Inc. Employees' Savings Plan,
which plan subsequently became the Paramount Communications Inc.
Employee Savings Plan (the "PCI Plan"). As of December 1, 1989,
the assets and liabilities relating to the Merged Plans and the
assets and liabilities relating to employees of Associates First
Capital Corporation and its subsidiaries in the PCI Plan and in
the Paramount Communications Inc. Employee Stock Ownership Plan
("PCI ESOP") were transferred to the Plan. The Plan represents
an amendment and restatement as a successor plan to the Merged
Plans, the PCI Plan and PCI ESOP. All benefits with respect to
persons who terminated, retired or died prior to December 1, 1989
shall be determined under the provisions of the applicable plan,
Merged Plan, PCI Plan or PCI ESOP in effect at the time they
terminated, retired or died, except as expressly provided in this
Plan or as provided by statute or regulation. In addition,
certain other qualified plans have been merged with the Plan from
time to time pursuant to transactions in which other entities
have been acquired by the Associates.
This Plan is applicable only to persons who are or were
employed by a Participating Employer on or after December 1, 1989
and to former Participants of the Merged Plans, PCI Plan or PCI
ESOP who had a balance remaining under one or more of such plans
that was transferred to this Plan.
<PAGE>
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
ARTICLE I - DEFINITIONS
1.1 Actual Contribution Percentage
With respect to a specified group of Employees, each of
whom is a Participant or eligible to become a Participant, the
average of the ratios, calculated separately for each Employee in
that group, of (a) the sum of Matching Contributions, to the
extent the Employer has not elected to include Matching
Contributions for purposes of the limitations under Section 4.6,
and Participant Post-Tax Contributions made pursuant to
Section 4.2 for such Plan Year (including Pre-Tax Contributions
which are recharacterized as Post-Tax Contributions pursuant to
Section 4.6, if any, and Participant Pre-Tax Contributions, to
the extent permitted by the Code or Treasury regulations, which
the Employer has elected to include for purposes of the
limitation under Section 4.8) to (b) the Employee's compensation
for that Plan Year. The Actual Contribution Percentage shall be
adjusted in the event qualified nonelective contributions are
made for a Plan Year pursuant to Section 4.8. Actual
Contribution Percentages will be determined in accordance with
all of the applicable requirements (including the family
aggregation and, to the extent applicable, plan aggregation
requirements) of Section 401(m) of the Code, and the regulations
issued thereunder. The percentage is determined by multiplying
the ratio calculated above by one hundred (100). For purposes of
this Section 1.1 and Sections 1.2, 1.17, 1.18 and 1.19,
"compensation" may, if the Company elects, have the meaning as
"Earnings" as defined in Section 4.9(h) or such other definition
as the Company selects under Section 414(s) of the Code.
Effective January 1, 1989, the maximum annual compensation under
this Section 1.1 and Section 1.2 which may be taken into account
is $200,000 (or such other amount as specified by applicable
law), as adjusted for increases in the cost of living as
prescribed by the Secretary of the Treasury under Section 415(d)
of the Code.
1.2 Actual Deferral Percentage
With respect to a specified group of Employees, each of
whom is a Participant or eligible to become a Participant, the
average of the ratios, calculated separately for each Employee in
that group, of (a) the amount of Pre-Tax Contributions made
pursuant to Section 4.1 for a Plan Year, plus the Employer
Matching Contributions, if any, which the Employer has elected to
include pursuant to Section 401(k)(3)(D) of the Code, to (b) the
Employee's compensation for that Plan Year. The Actual Deferral
Percentage shall be adjusted in the event qualified nonelective
contributions are made for a Plan Year pursuant to Section 4.8.
Actual Deferral Percentages will be determined in accordance with
all of the applicable requirements (including, the family
aggregation and to the extent applicable, plan aggregation
requirements) of Section 401(k) of the Code and the regulations
issued thereunder. The percentage is determined by multiplying
the ratio calculated above by one hundred (100).
1.3 Affiliated Company
A company which together with the Company is part of a
controlled group of corporations (determined under Section
1563(a) of the Code without regard to Section 1563(a)(4) and
(e)(3)(C)). The term "Affiliated Company" shall also include any
trade or business under common control (as defined in Section
414(c) of the Code) with the Company, a company which is part of
an affiliated service group (as defined in Section 414(m) of the
Code) which includes the Company, and any other entity required
to be aggregated with the Company under regulations issued
pursuant to Code Section 414(o).
1.4 Beneficiary
(a) The person or persons designated by the Participant, on
a form prescribed by and filed with the Committee, to receive
benefits under the Plan in the event of death before the
Participant has terminated employment and received a distribution
of his or her benefits. If no designation is so filed with the
Committee or if no designated person survives the Participant,
"Beneficiary" shall mean the Participant's estate.
(b) Notwithstanding the foregoing, in the case of a legally
married Participant, the spouse to whom the Participant is
married on the date of death shall be deemed the designated
"Beneficiary" unless the Participant elects to waive such
designation. Such waiver must be in writing, acknowledging its
effect on the spouse, and such spouse must formally consent in
writing to the waiver with the spouse's signature witnessed by a
notary public or a Plan official. Such consent shall be
irrevocable with regard to that waiver. A married Participant
may designate a non-spouse Beneficiary without spousal consent
only if it is established to the satisfaction of the Committee
that the consent of the spouse could not have been obtained
because there is no spouse, because the spouse cannot be located,
or because of other circumstances prescribed by regulations under
Code Section 417(a).
1.5 Board of Directors
The Board of Directors of the Company.
1.6 Code
The Internal Revenue Code of 1986, as amended from time to
time, together with the regulations thereunder.
1.7 Committee
The persons appointed to administer the Plan, in accordance
with Article X.
1.8 Company
Associates First Capital Corporation and any legal
successor thereof.
1.9 Covered Compensation
The sum of a Participant's (a) base pay and
(b) commissions, in each case for services rendered to an
Employer while an Employee, determined prior to any Pre-Tax
Contributions for the Plan Year which are not includable in gross
income under either Section 402(a)(8) or Section 125 of the Code.
For purposes of determining a Participant's "Covered
Compensation," there shall be excluded from "Covered
Compensation" the cost of fringe benefits, long-term disability
benefits, workers compensation and other such benefits and any
amounts paid or payable to a Participant as shift differential,
overtime, a bonus, severance pay, or as a contribution to any
pension, profit sharing or savings plan except where such
contribution is made pursuant to an election under Section 4.1.
Effective January 1, 1989, the maximum annual Covered
Compensation which may be taken into account for all purposes
under the Plan is $200,000 (or such other amount as specified by
applicable law), as adjusted for increases in the cost of living
as prescribed by the Secretary of the Treasury under Section
415(d) of the Code.
1.10 Disability or Disabled
Any physical or mental condition which results in the
Participant being totally disabled, as determined by the
Committee, in its sole discretion. "Disabled" shall have the
same meaning as defined for purposes of this Plan by the
Committee, which may adopt the criteria used for purposes of the
Company's long-term disability plan or the criteria used by the
Social Security Administration. In making its determination, the
Committee may, in its sole discretion, rely on the determination
of the insurance carrier under the Company's long-term disability
plan or by the Social Security Administration for purposes of
disability benefits.
1.11 Early Retirement
Termination of employment on or after Early Retirement Date
but before the Normal Retirement Date.
1.12 Early Retirement Date
Effective January 1, 1991, the date a Participant reaches
age 55 years and has five Years of Vesting Service under the
Plan; prior to this effective date, the early retirement date was
age 55 with ten Years of Vesting Service under the Plan.
1.13 Effective Date
December 1, 1989.
1.14 Employee
Any individual employed by an Employer (other than Leased
Employees covered by a plan described in Section 414(n)(5) of the
Code, provided that such Leased Employees would not constitute
more than 20% of the Company's non-highly compensated workforce
as defined in Code Section 414(n)(6)) and such other individuals
or classes of individuals specifically designated by the
Committee who are employed by an Affiliated Company which has not
adopted the Plan as provided in Section 12.1. A "Full-Time
Employee" means any Employee who, on the basis of his or her
regular stated work schedule, is classified as a regular
full-time Employee by an Employer. A "Part-Time Employee" means
any Employee who, on the basis of his or her regular stated work
schedule, is classified as a part-time Employee by an Employer.
1.15 Employer
The Company or any successor by merger, purchase or
otherwise and any other Affiliated Company adopting the Plan as
provided in Section 12.1.
1.16 ERISA
The Employee Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
1.17 Excess Aggregate Contribution
With respect to each Highly Compensated Employee, the
amount equal to the total Matching Contributions, if the Company
so elects to include Matching Contributions for purposes of the
limitation under Section 4.8 rather than including such amounts
for purposes of the limitation under Section 4.6, made on his or
her behalf and his or her Post-Tax Contributions (including the
amount of any Pre-Tax Contributions recharacterized pursuant to
Section 4.6 or included for purposes of Section 4.8 by the
Employer as and to the extent permitted by regulations),
determined prior to the application of the leveling procedure
described below, minus the product of the Participant's Actual
Contribution Percentage, as reduced after the application of the
leveling procedure described below, multiplied by the
Participant's compensation (as such term is defined in
Section 1.1). In accordance with the regulations issued under
Section 401(m) of the Code, Excess Aggregate Contributions shall
be determined by a leveling procedure under which the Actual
Contribution Percentage of each Highly Compensated Employee with
the highest such percentage shall be reduced successively to the
extent required to enable the limitation of Section 4.8 to be
satisfied, or, if it results in a lower reduction, to the extent
required to cause such Participant's Actual Contribution
Percentage to equal that of the Highly Compensated Employee with
the next highest Actual Contribution Percentage which satisfies
the limitations in Section 4.8. This leveling procedure is
repeated until the limitation of Section 4.8 is satisfied. In no
case shall the amount of Excess Aggregate Contributions with
respect to any Highly Compensated Employee exceed the Post-Tax
Contributions (and Pre-Tax Contributions, to the extent so
included) and Matching Contributions, if so included for purposes
of the limitation, made on behalf of such Participant in any Plan
Year.
1.18 Excess Contribution
With respect to each Highly Compensated Employee, the
amount equal to total Pre-Tax Contributions made on behalf of the
Participant (determined prior to the application of the leveling
procedure described below) minus the product of the Participant's
Actual Deferral Percentage (as reduced by the leveling procedure
described below) multiplied by the Participant's compensation (as
such term is defined in Section 1.1). In accordance with the
regulations issued under Section 401(k) of the Code, Excess
Contributions shall be determined by a leveling procedure under
which the Actual Deferral Percentage of each Highly Compensated
Employee with the highest such percentage shall be reduced
successively to the extent required to enable the limitation of
Section 4.6 to be satisfied, or, if it results in a lower
reduction, to the extent required to cause such Highly
Compensated Employee's Actual Deferral Percentage to equal the
Actual Deferral Percentage of the Highly Compensated Employee
with the next highest Actual Deferral Percentage which satisfies
the limitation in Section 4.6. This leveling procedure shall be
repeated until the limitation of Section 4.6 is satisfied.
1.19 Highly Compensated Employee
With respect to any Plan Year, an individual described in
Section 414(q) of the Code and the latest of any regulation
(whether or not final), notice or other guidance issued by the
Internal Revenue Service thereunder. The determination of
whether an individual is a Highly Compensated Employee may be
made by the Committee on the basis of any elective provision
permitted under any such regulation, notice or other guidance.
1.20 Hours of Service
See Section 3.1(c).
1.21 Investment Funds
Individual funds for the investment of amounts held under
the Participant's Pre-Tax Contributions Account, Post-Tax
Contributions Account, Matching Contributions Account, Profit
Sharing Contributions Account, Rollover Contributions Account and
any other account designated by the Committee.
1.22 Leased Employee
Any person as so defined in Section 414(n)(2) of the Code.
1.23 Matching Contributions
The discretionary contributions in cash to the Plan by an
Employer for the Plan Year and allocated to a Participant's
Matching Contribution Account by reason of the Participant's
Post-Tax Contributions and Pre-Tax Contributions.
1.24 Matching Contributions Account
The account established for each Participant to record
Matching Contributions made in accordance with Section 4.5(a).
In addition, this account will also hold any qualified
nonelective contributions or additional Matching Contributions
made by an Employer pursuant to Sections 4.6 or 4.8.
1.25 Merged Plans
The Employees' Savings and Profit Sharing Plan of
Associates Corporation of North America and the Supplemental
Savings and Profit Sharing Plan of Associates Corporation of
North America.
1.26 Normal Retirement
Termination of employment on or after Normal Retirement
Date.
1.27 Normal Retirement Date
Effective January 1, 1991, the date a Participant attains
age 65 and has five Years of Vesting Service under the Plan;
prior to this effective date, normal retirement date was the date
on which a Participant attained age 65.
1.28 PCI ESOP
The Employee Stock Ownership Plan of Paramount
Communications Inc.
1.29 PCI Plan
The Paramount Communications Inc. Savings Plan established
by Paramount Communications Inc.
1.30 Parental Leave
A period commencing on or after January 1, 1987 during
which the Employee is absent from work immediately following his
or her active employment because of the Employee's pregnancy, the
birth of the Employee's child or the placement of a child with
the Employee in connection with the adoption of that child by the
Employee, or for purposes of caring for that child for a period
beginning immediately following that birth or placement.
1.31 Participant
An Employee who has met the eligibility requirements of
Article II and is participating in the Plan in accordance with
the terms hereof. A "former Participant" is a person who is no
longer employed by any Employer or Affiliated Company, but who
has a balance remaining in his or her Participant's Accounts.
1.32 Participant's Account or Accounts
Except where otherwise provided in the Plan, the aggregate
amount held on behalf of the Participant or former Participant in
his or her Pre-Tax Contributions Account, Post-Tax Contributions
Account, Matching Contributions Account, Profit Sharing
Contributions Account, Rollover Contributions Account and any
other account designated by the Committee.
1.33 Plan
The "Associates First Capital Corporation Retirement
Savings and Profit-Sharing Plan" established as described herein
and as from time to time supplemented or amended, which is
intended to qualify under Code Sections 401(a), 401(k), and
401(m).
1.34 Plan Fiduciaries
The boards of directors of the Employers, the Committee,
the Trustee, and all other persons who exercise discretionary
authority or have responsibility of a fiduciary nature as
described in Title I of ERISA.
1.35 Plan Year
A period of 12 months commencing on each January lst and
ending on December 31st thereafter, except for Plan Year 1989
which was a short Plan Year commencing on December 1, 1989 and
ending on December 31, 1989.
1.36 Post-Tax Contributions
The contributions made by the Participant in accordance
with Section 4.2.
1.37 Post-Tax Contributions Account
An account established for each Participant to hold
contributions made by the Participant in accordance with Section
4.2.
1.38 Pre-Tax Contributions
The contributions made by an Employer on behalf of the
Participant pursuant to a salary reduction agreement in
accordance with Section 4.1.
1.39 Pre-Tax Contributions Account
An account established for each Participant to hold
contributions made by an Employer based on the Participant's
election in accordance with Section 4.1.
1.40 Profit Sharing Contribution
The discretionary contribution to the Plan by the Company
or an Employer made pursuant to Section 4.5(b) of the Plan.
1.41 Profit Sharing Contribution Account
The account established for each Participant to record
Employer Profit Sharing Contributions, if any, pursuant to
Section 4.5(b).
1.42 Retire or Retired
Leaving or left employment with an Employer on or after
meeting the requirements for Early or Normal Retirement.
1.43 Rollover Contributions Account
An account established for each Participant to hold amounts
rolled over by the Participant from another qualified Plan or an
individual retirement account containing a "rollover" from
another qualified plan in accordance with Section 4.4.
1.44 Severance Date
See Section 3.1(b)(2).
1.45 Trust Agreement
The instrument executed by the Company and the Trustee
fixing the rights and liabilities of each with respect to holding
and administering the Trust Fund for the purposes of the Plan.
1.46 Trustee
The trustee, trustees, or any successor trustee appointed
by the proper officers of the Company and acting at any time
under the terms of the Trust Agreement.
1.47 Trust Fund
All assets held at any time by the Trustee under the terms
of the Trust Agreement.
1.48 Valuation Date
The close of each business day when the securities and
financial markets are open.
1.49 Vested Interest
The nonforfeitable portion of the Participant's Account to
which the Participant would be entitled, in accordance with
Section 8.1, had the Participant terminated employment on the
date of reference.
1.50 Year of Eligibility Service or Eligibility Service
A period of service determined pursuant to Section 3.1(c)
that is counted for determining an Employee's eligibility to
participate in the Plan.
1.51 Year of Vesting Service or Vesting Service
A period of service determined pursuant to Section 3.1(b)
that is counted for determining a Participant's vested percentage
in his or her Participant's Account.
ARTICLE II - ELIGIBILITY FOR PARTICIPATION
2.1 Eligibility For Participation
Except as provided in Section 2.2:
(a) Each Employee on December 1, 1989 who was a participant
in a Merged Plan, the PCI Plan or PCI ESOP shall continue as or
become a Participant on December 1, 1989.
(b) Each other Full-Time Employee, on or after December 1,
1989, shall become a Participant, with respect to Profit Sharing
Contributions, on his or her date of employment, and shall become
a Participant, with respect to Pre-Tax, Post-Tax, and Matching
Contributions, as of the first day of the payroll period
following the earlier of (1) the date on which the Full-Time
Employee attains age 25, or (2) the completion of one year (i.e.,
12 months) of Eligibility Service, as such term is defined in
Section 3.1(a).
(c) Each Part-Time Employee, on or after December 1, 1989,
shall become a Participant, with respect to Profit Sharing
Contributions, as of the first day of the year in which he or she
completes more than 1,000 "Hours of Service," as such term is
defined in Section 3.1(c), and shall become a Participant, with
respect to Pre-Tax, Post-Tax, and Matching Contributions, on the
first day of the payroll period following the completion of a
Year of Eligibility Service under Section 3.1(c).
2.2 Excluded Employees
The following Employees shall be excluded from
participation in the Plan:
(a) An Employee who is (or becomes) a member of a
collective bargaining unit that is a party to a collective
bargaining agreement with an Employer, unless there is an
agreement in effect making the Plan available to Employees
in such unit;
(b) Any individual who is a Leased Employee of an Employer
and who is employed by a leasing organization (as defined
in Code Section 414(n)(2)) which is not an Affiliated
Company; and
(c) Any individual who, on the basis of the Company's human
resources policy, is classified by an Employer as a
temporary Employee.
Notwithstanding the foregoing, the Committee may, by written
resolution, exclude from eligibility for participation in this
Plan any class of Employees. Any such designation shall be made
in a nondiscriminatory manner.
2.3 Participation Upon Re-employment
An Employee who is re-employed by an Employer or who ceases
to be excluded from Participation under Section 2.2, and who had
previously satisfied the requirements for participation in
Section 2.1, shall again become a Participant in this Plan on his
or her date of re-employment; provided he or she continues to be
an Employee on such date.
2.4 Application For Participant Contributions
Each Employee shall, as a condition for contributing to the
savings portion of the plan, complete and file with the Committee
a form prescribed by the Committee and furnish such information
and documents as the Committee may require. By filing such form
the Employee agrees to be bound by all of the terms and
conditions of the Plan as then in effect or as thereafter
amended.
2.5 Transfer Of Employment Between Employers
If a Participant enters directly into the employ of another
Employer he or she shall continue his or her participation
hereunder. Such Participant shall receive credit for his or her
aggregate service (determined pursuant to Article III of the
Plan) with all Employers, but employment with two or more
Employers during the same period of time shall not result in the
duplication of service or contributions during the same period of
time.
2.6 Change Of Status
A Participant who while still employed by an Employer or an
Affiliated Company ceases to be an Employee, as defined in
Section 1.14, or who is on leave of absence shall no longer be
entitled to make Pre-Tax or Post-Tax Contributions to the Plan.
2.7 Duration of Participation
(a) An individual shall cease being a Participant in the
Plan upon:
(1) not being employed by any Employer;
(2) becoming an excluded Employee under Section 2.2;
(3) death;
(4) Disability; or
(5) Early or Normal Retirement.
(b) Except as otherwise specifically provided in
Section 4.5(b), no further Pre-tax, Post-tax, Matching,
Profit Sharing or Rollover Contributions shall be made
after participation has ceased.
(c) A former Participant may continue to have an account
balance in the Plan, subject to all of the relevant
provisions hereof.
ARTICLE III - SERVICE
3.1 Vesting And Eligibility Service
(a) Companies For Whom Credited. Vesting Service and
Eligibility Service with respect to any Full-Time Employee shall
mean periods of employment with the Company, an Affiliated
Company (on and after the date of affiliation unless determined
otherwise by the Committee, and any predecessor corporation of an
Employer, or a corporation merged, consolidated or liquidated
into an Employer or a predecessor of an Employer, or a
corporation, substantially all of the assets of which have been
acquired by an Employer, if an Employer maintains a plan of such
a predecessor corporation, or as a Leased Employee under the
provisions of 414(n) of the Code, provided, however, that such
period of Vesting Service and Eligibility Service shall not be
credited until such time as the Leased Employee actually becomes
an Employee. If an Employer does not maintain a plan maintained
by such a predecessor, periods of employment with such a
predecessor, merged, liquidated or acquired company shall be
credited as Vesting Service and Eligibility Service only to the
extent required under regulations prescribed by the Secretary of
the Treasury pursuant to Section 4l4(a)(2) of the Code or as
granted by the Committee on a non-discriminatory basis. In all
events, periods recognized under a Merged Plan, the PCI Plan or
PCI ESOP on behalf of a Participant shall be recognized as
Vesting Service and as Eligibility Service, as the case may be,
under this Plan on behalf of such an Employee who becomes a
Participant, and in no event will an Employee be credited with
less Vesting Service under the Plan than the service with which
the Employee was credited on November 30, 1989 for vesting
purposes under the terms of a Merged Plan, the PCI Plan or the
PCI ESOP.
(b) Year Of Vesting Service. An Employee's Vesting Service
shall be measured in years and days (with each 365 days of
Vesting Service being equivalent to one Year of Vesting Service)
from the date on which employment commences with the Company or
an Affiliated Company to the Employee's Severance Date as defined
hereinafter. Vesting Service shall include, by way of
illustration but not by way of limitation, the following periods:
(1) Any leave of absence from employment (other than
that period after the second anniversary of a Parental Leave)
which is authorized by the Company or by an Affiliated Company or
predecessor in accordance with uniform rules applied on a
nondiscriminatory basis; and
(2) Any period of military service in the Armed Forces
of the United States required to be credited by law; provided,
however, that the Employee returns to the employment of the
Company, Affiliated Company or predecessor within the period his
or her re-employment rights are protected by law.
Fractional years shall be disregarded; provided, however,
that all periods of Vesting Service prior to and subsequent to
any period of severance shall be aggregated. Notwithstanding the
foregoing, if an Employee's employment with an Employer is
severed after the Effective Date of the PCI Plan or the PCI ESOP
but he or she is re-employed within the l2 consecutive month
period commencing on his or her Severance Date as defined
hereinafter, the period of severance shall constitute Vesting
Service.
An Employee's "Severance Date" means the earlier of the
date on which he or she resigns, retires, is discharged or dies
or the first anniversary of the date on which he or she is first
absent from service, with or without pay, for any other reason,
such as vacation, sickness, disability, layoff or leave of
absence. An Employee's Severance Date shall not be considered to
have occurred if the Employee enters directly into the employ of
another Employer or an Affiliated Company, but shall be
considered to have occurred as of the date a trade or business or
a subsidiary of the Company or of an Affiliated Company for whom
he is employed is sold in accordance with Section 11.2. If an
Employee is absent beyond such first anniversary date by reason
of Parental Leave, his or her Severance Date shall be the second
anniversary of the first date of such absence and the
twelve-month period beginning on the first anniversary of the
first date of such absence and ending on the second anniversary
of such absence shall be a year of absence and shall not be
credited to the Employee as a Year of Vesting Service or as a
Break in Vesting Service under the Plan. A Break in Vesting
Service shall occur if an Employee's employment is severed and
the Employee is not re-employed within the l2 consecutive month
period commencing on his or her Severance Date.
(c) Year Of Eligibility Service. A Part-Time Employee who
is hired prior to reaching age 25 shall complete a Year of
Eligibility Service in a year at the earlier of (1) attainment of
age 25 and completion of 1,000 Hours of Service in a year (with
the first year based on the individual's anniversary date and
later years based on the Plan Year), and (2) completion of a full
year of service (12 months of service) with the Company in which
the individual completes 1,000 Hours of Service in a year (with
the first year based on the individual's anniversary date and
later years based on the Plan Year). A Part-Time Employee who is
hired after reaching age 25 shall complete a Year of Eligibility
Service after completion of 1,000 Hours of Service in a year
(with the first year based on the individual's anniversary date
and later years based on the Plan Year). An "Hour of Service"
means, with respect to any applicable computation period:
(1) each hour for which a Part-Time Employee is
directly or indirectly paid or entitled to payment for the
performance of duties for the Company, an Affiliated Company or a
predecessor;
(2) each hour for which a Part-Time Employee is paid
or entitled to payment by the Company, an Affiliated Company or a
predecessor, on account of a period during which no duties are
performed, whether or not the employment relationship has
terminated, due to vacation, holiday, illness, incapacity
(including Disability), layoff, jury duty, military duty or leave
of absence, but not more than 501 hours for any single continuous
period; provided, however, that no hours shall be credited on
account of any period during which the Part-Time Employee
performs no duties and receives payment solely for the purpose of
complying with unemployment compensation, workers' compensation
or disability insurance laws;
(3) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Company, an Affiliated Company or a predecessor, excluding any
hour credited under (1) or (2), which shall be credited to the
computation period or periods to which the award, agreement or
payment pertains, rather than to the computation period in which
the award, agreement or payment is made;
(4) each hour during which the Employee is serving in
the Armed Forces of the United States, provided that he or she
returns to the employment of an Employer within the period during
which his or her re-employment rights are protected by law; and
(5) each hour during which a Part-Time Employee is on
a leave of absence approved by an Employer, under rules adopted
by the Committee and uniformly applicable to all Employees
similarly situated, provided, that no hours shall be counted
under this Paragraph which are counted as Eligibility Service
under paragraphs (1) and (2) of this Section.
(d) Manner Of Crediting Certain Hours Of Service. The
number of hours credited to a Part-Time Employee for reasons
described in Paragraphs (c)(4) or (5) shall be based on the
number of hours during which an Employee is performing duties
immediately prior to his or her leave of absence or service in
the Armed Forces. Hours of Service described in Paragraphs
(c)(1), (c)(4) or (c)(5) shall be credited to the eligibility
computation period in which the duties are performed or in which
the leave of absence or period of service in the Armed Forces
occurs. The periods to which Hours of Service described in
Paragraphs (c)(2) or (c)(3) are credited shall be determined in
accordance with Department of Labor regulation Sec. 2530.200b-2.
(e) Additional Service Credit. The Committee, in its sole
discretion, may provide additional credit for Vesting Service or
Eligibility Service for periods not required to be credited under
this Article 3, provided that the Committee shall act in a
nondiscriminatory manner.
ARTICLE IV - CONTRIBUTIONS
4.1 Pre-Tax Contributions
Subject to the provisions hereof, a Participant may elect,
on a form prescribed by and filed with the Committee, to reduce
his or her Covered Compensation by not less than one percent and
not more than twelve percent, in multiples of one percent, as a
Pre-Tax Contribution subject to Section 4.7. This election shall
be effective as of the first day of the first payroll period next
following the date of his or her election or as soon thereafter
as administratively feasible. Each payroll period, each Employer
shall contribute to the Plan on behalf of the Participant an
amount equal to the amount of such reduction in Covered
Compensation and such contribution shall be credited to the
Participant's Pre-Tax Contributions Account. Notwithstanding the
foregoing, in no event shall the contributions made under this
Section, when added to the Participant's Post-Tax Contributions
made under Section 4.2, exceed twelve (12) percent.
4.2 Post-Tax Contributions
Subject to the provisions hereof, a Participant may elect,
on a form prescribed by and filed with the Committee, to
contribute not less than one percent and not more than twelve
percent, in multiples of one percent, of his or her Covered
Compensation as a Post-Tax Contribution. This election shall be
effective on the first day of the first payroll period next
following the date of his or her election, or as soon thereafter
as administratively feasible. Such contributions shall be made
solely by payroll deduction each pay period from Covered
Compensation. Each payroll period, each Employer shall pay over
to the Plan on behalf of the Participant the amount of the
Post-Tax Contribution which the Participant elected to be made
and such contribution shall be credited to the Participant's
Post-Tax Contributions Account. Notwithstanding the foregoing,
in no event shall the contributions made under this Section 4.2,
when added to the Participant's Pre-Tax Contributions made under
Section 4.1, exceed twelve percent of the Participant's Covered
Compensation.
4.3 Participant Contributions In General
(a) As discussed in Section 2.1(c) above, a Participant
may, in the manner established by the Committee, elect to change
or suspend his or her elected Pre-Tax Contributions and/or
elected Post-Tax Contributions. Any suspension must be for a
period of not less than three months. Each such change or
suspension shall commence on the next pay period following such
change or suspension or as soon thereafter as administratively
feasible and shall remain in effect until changed in a like
manner. The Committee may establish a limitation on the number
of permissible changes but shall not reduce the number of changes
allowed to less than four times per year. For purposes of the
foregoing, the termination of a Participant's Pre-Tax
Contributions and Post-Tax Contributions due to a leave of
absence, long-term disability or workers compensation disability
shall not constitute a suspension.
(b) Any attempt by the Participant to change or suspend his
or her Pre-Tax Contributions or elected Post-Tax Contributions
which does not comply with the provisions of Subsection (a) shall
be invalid and the last election with respect to Pre-Tax
Contributions and Post-Tax Contributions shall be deemed to have
remained fully in effect.
(c) The Pre-Tax Contributions and Post-Tax Contributions of
a Participant shall automatically cease on the first day of the
payroll period next following the date he or she: (1) begins an
approved leave of absence; (2) has a change of status under
Section 2.6; (3) becomes an excluded Employee under Section 2.2;
or (4) ceases to be a Participant pursuant to Section 2.7 for any
other reason. Such cessation shall end on the first day of the
payroll period subsequent to the date he or she returned from an
approved leave of absence or otherwise becomes eligible to
participate under the Plan.
(d) Unless a Participant specifically elects otherwise in
writing, if the elected Pre-Tax Contributions of a Participant
are curtailed pursuant to Sections 4.6 or 4.7, such contributions
shall be made to the Plan as Post-Tax Contributions. Such
Post-Tax Contributions shall be made to the Plan in addition
to Post-Tax Contributions elected pursuant to Section 4.2.
(e) As discussed in Section 2.1 above, a Participant may
not commence Pre-Tax or Post-Tax Contributions until the first
day of the payroll period following the earlier of (1) the date
on which the Employee attains age 25, or (2) the completion of
one year (i.e., 12 months) of Eligibility Service, as such term
is defined in Section 3.1(a).
(f) The Committee may curtail or reduce the contribution
percentage, whether Pre-tax, Post-tax or both, of any Participant
who is or will be a Highly Compensated Employee for a Plan Year
to a level determined by the Committee to be equivalent to the
maximum amount that would be allowable for all Highly Compensated
Employees under Section 4.8 on a projected basis for such Plan
Year.
4.4 Rollover Contributions and Transferred Contributions
(a) The Committee is authorized to adopt procedures with
respect to accepting a Participant's rollover contributions (as
defined in Code Sections 402, 403 and 408) which a qualified plan
is permitted to receive. In addition, this Plan shall accept
direct rollovers of eligible rollover distributions from other
eligible retirement plans, both terms as defined in Section
402(c) of the Code; provided, however, that the Plan shall only
accept such direct rollovers if the Committee's administrative
rules are satisfied. Such rollover contributions shall be
credited to the Participant's Rollover Contributions Account.
(b) In addition, the Committee may authorize the Trustee to
accept a direct transfer from the trustee of any predecessor plan
or any other qualified plan maintained by the Company or an
Affiliated Company and any such transferred amount shall be
credited to an account established by the Committee for such
Participant. Amounts so transferred shall retain the tax
character which such amounts had in the transferring Plan.
However, the Committee may, in its discretion, refuse to accept
any such transfers if such transfer would have the effect of
preserving or requiring any annuity or special distribution
options which are not available to all Participants under the
Plan.
4.5 Employer Matching Contributions and Profit Sharing
Contributions
(a) At the sole and absolute discretion of the Committee,
and except as provided in Section 4.8(b), an Employer shall
contribute, at such intervals as may be established by the
Committee but not less frequently than monthly, on behalf of each
Participant an amount equal to 50 percent of the aggregate of the
Pre-Tax Contributions and Post-Tax Contributions made on behalf
of the Participant for such month, but, except as provided under
Section 4.8 for purposes of satisfying the requirements of that
Section for a particular Plan Year, only to the extent that the
sum of (1) the Pre-Tax Contributions and (2) the Post-Tax
Contributions, does not exceed six percent of the Participant's
Covered Compensation for such month. Such discretionary
contributions will be in the form of cash. Such contributions
will be allocated to the respective Participant's Matching
Contributions Account.
(b) In addition, an Employer shall make such Profit Sharing
Contribution to this Plan for each Plan Year as the Board of
Directors shall determine. The Profit Sharing Contribution shall
be expressed as a percentage of Covered Compensation during the
Plan Year of those Participants eligible to receive an allocation
and shall be allocated to those Participants who (1) on the last
working day of the Plan Year were actively engaged in rendering
services to an Employer or, were on an approved leave of absence,
or (2) during the Plan Year became Disabled, died or Retired and
in each case were participating during the Plan Year and had
Covered Compensation during such Plan Year, on the basis of their
respective Covered Compensation during such Plan Year. Such
Profit Sharing Contribution shall be deemed made on account of a
Plan Year if either the Board of Directors determines the amount
of such contribution by appropriate action and announces the
amount in writing to its Employees before the close of the Plan
Year or the Employer designates such amount in writing to the
Trustee as payment on account of such Plan Year. All Profit
Sharing Contributions of the Employer shall be paid to the
Trustee and payment shall be made not later than the time
prescribed by law for filing the federal income tax return of the
Employer, including any extensions which have been granted for
filing of such tax return. In no event, however, shall the
contribution for any Plan Year exceed the amount deductible for
such Plan Year for income tax purposes as a contribution to the
Trust under the applicable provisions of the Code.
4.6 Limitations On Pre-Tax Contributions Affecting Highly
Compensated Employees
(a) With respect to each Plan Year, the Actual Deferral
Percentage for Highly Compensated Employees shall not exceed the
Actual Deferral Percentage for all other Employees who are
Participants or eligible to become Participants multiplied by
1.25, except that if the Actual Deferral Percentage for Highly
Compensated Employees exceeds the Actual Deferral Percentage for
all other Employees who are Participants or eligible to become
Participants by no more than two percentage points, the 1.25
multiplier in the preceding sentence shall be replaced by 2.0.
(b) The Committee may implement rules limiting the Pre-Tax
Contributions which may be made on behalf of Highly Compensated
Employees during the Plan Year so that this limitation is
satisfied.
(c) In the event the limitation under this Section 4.6 is
exceeded in any Plan Year, the Committee, to the extent permitted
by regulations issued under Section 401(k)(3), may, under uniform
rules, recharacterize all or part of any Excess Contributions as
Post-Tax Contributions so that the limitation in that year is not
exceeded.
(d) To the extent such Excess Contributions exceeding the
limitation under this Section 4.6 are not recharacterized as
Post-Tax Contributions, or the limitation under this Section 4.6
continues to be exceeded following such recharacterization, the
Committee may, in its discretion, cause to be made additional
contributions to the Participant's Accounts of Participants who
are not Highly Compensated Employees, which additional
contributions shall be qualified nonelective contributions as
described in Section 401(m)(4)(C) of the Code and the regulations
issued thereunder, up to an amount necessary to assure that the
limitation under this Section 4.6 is not exceeded in the Plan
Year. To the extent the limitation under this Section 4.6
continues to be exceeded following the contribution of such
qualified nonelective contributions, if any, such excess Pre-Tax
Contributions made on behalf of Highly Compensated Employees with
respect to a Plan Year and income allocable thereto shall be
distributed to such Highly Compensated Employees as soon as
practicable after the close of such Plan Year, but no later than
twelve months after the close of such Plan Year. The amount of
any distribution made pursuant to this Section will be reduced by
the amount of any amounts distributed pursuant to Section 4.7.
The amount of income allocable to Excess Contributions shall be
determined in accordance with the regulations issued under
Section 401(k) of the Code. The Committee is authorized to
implement rules under which it may utilize any combination of the
foregoing methods to assure that the limitation of this Section
4.6 is satisfied.
4.7 Maximum Participant Tax Deferred Contributions
Notwithstanding any other provision of the Plan, in no
event may the amount of Pre-Tax Contributions to this Plan on
behalf of any Participant, in addition to all such deferrals on
behalf of such Participant under all other cash or deferred
arrangements (as defined in Code Section 401(k)) in which a
Participant participates, exceed $7,000 (indexed as provided in
Section 402(g)(5) of the Code) in any taxable year of a
Participant. If a Participant participates in another cash or
deferred arrangement in any taxable year and his or her total
salary deferral contributions under this Plan and such other plan
exceed $7,000 (as indexed) in a taxable year, he or she may
receive a distribution of the amount of the excess deferral (a
deferral in excess of $7,000, as indexed) that is attributable to
a Pre-Tax Contribution in this Plan together with earnings
thereon, notwithstanding any limitations on distributions
contained in this Plan. Such distribution shall be made by the
April 15 following the Plan Year of the Pre-Tax Contribution
provided that the Participant notifies the Committee of the
amount of the excess deferral that is attributable to a Pre-Tax
Contribution to this Plan and requests such a distribution. The
Participant's notice must be received by the Committee no later
than the March 1 following the Plan Year of the excess deferral.
In the absence of such notice, the amount of such excess deferral
attributable to Pre-Tax Contributions to this Plan shall be
subject to all limitations on withdrawals and distributions in
this Plan.
4.8 Limitations On Matching Contributions And Post-Tax
Contributions Affecting Highly Compensated Employees
(a) With respect to each Plan Year, the Actual Contribution
Percentage for Highly Compensated Employees shall not exceed the
Actual Contribution Percentage for all other Employees who are
Participants or eligible to become Participants multiplied by
1.25, except that if the Actual Contribution Percentage for
Highly Compensated Employees exceeds the Actual Contribution
Percentage for all other Employees who are Participants or
eligible to become Participants by no more than two percentage
points (or such lesser amount as the Secretary of the Treasury
shall prescribe to prevent the multiple use of this alternative
limitation with respect to any Highly Compensated Employee), the
1.25 multiplier in the preceding sentence shall be replaced by
2.0.
(b) The Committee shall implement rules limiting the
Matching Contributions and Participant Post-Tax Contributions
that may be made on behalf of Highly Compensated Employees during
the Plan Year so that this limitation is satisfied.
(c) To the extent such contributions exceed the limitation
under Section 4.8(a), an Employer may, in the discretion of the
Committee, make additional contributions to the Participant's
Accounts of Participants who are not Highly Compensated
Employees, which additional contributions shall either be
qualified nonelective contributions as described in Section
401(m)(4)(C) of the Code and the regulations issued thereunder or
additional Matching Contributions under Section 4.5(a) of the
Plan, which have not been included for meeting the limitation
under Section 4.6, up to an amount necessary to assure that the
limitation under Section 4.8(a) is not exceeded in the Plan Year.
In addition, in accordance with regulations issued under Section
401(m) of the Code, the Committee may elect to treat amounts
attributable to Pre-Tax Contributions as such additional Matching
Contributions solely for the purposes of satisfying the
limitation of this Section.
(d) To the extent the limitation under Section 4.8(a)
continues to be exceeded following the contribution of such
qualified nonelective contributions or additional Matching
Contributions, if any, the amount of Excess Aggregate
Contributions attributable to Post-Tax Contributions, including
recharacterized Pre-Tax Contributions, if any, with respect to
such Plan Year which were not matched pursuant to Section 4.5(a),
and any income attributable thereto, shall be distributed to
Highly Compensated Employees to the extent necessary to satisfy
the limitation under Section 4.8(a) for the Plan Year. To the
extent the limitation under Section 4.8(a) still continues to be
exceeded following the distributions described above, the amount
of Excess Aggregate Contributions attributable to Participant
Post-Tax Contributions which were matched pursuant to
Section 4.5(a), and any income attributable thereto, and the
amount of Excess Aggregate Contributions attributable to Matching
Contributions under the profit sharing portion of the Plan, and
any income attributable thereto, shall be distributed to Highly
Compensated Employees to the extent vested pursuant to
Section 8.1 of the Plan or if not vested, forfeited. Any such
forfeitures will be subject to Section 8.3 of the Plan. The
amount of the Excess Aggregate Contributions attributable to
matched Participant Post-Tax Contributions and Matching
Contributions under the profit sharing portion of the Plan to be
distributed or forfeited shall be determined on a pro-rata basis
in proportion to the matched Post-Tax Contributions and Matching
Contributions under the profit sharing portion of the Plan on
behalf of such Highly Compensated Employee for the Plan Year.
(e) Excess Aggregate Contributions and any income allocable
thereto shall be forfeited or distributed, as described above, as
soon as practicable after the close of the Plan Year in which
they occur, but no later than twelve months after the close of
the Plan Year. The amount of income allocable to any
distribution made pursuant to this Section 4.8 shall be
determined in accordance with the regulations issued under
Section 401(m) of the Code. The Committee is authorized to
implement rules under which it may utilize any combination of the
foregoing methods to assure that the limitation of Section 4.8(a)
is satisfied.
4.9 Limitations On Annual Additions
(a) Basic Limitation. The maximum aggregate annual
addition allocated to a Participant's Account in any Plan Year
shall not exceed the lesser of:
(1) 25 percent of the Participant's Earnings in such
Plan Year, or
(2) $30,000 (or, if greater, one-fourth of the defined
benefit dollar limitation set forth in Section 415(b)(1) of the
Code as in effect for the Plan Year, which shall be the
"Limitation Year").
(b) Limitation For Participants In A Combination of Plans.
In the case of a Participant who participates in this Plan and a
qualified defined benefit plan maintained by an Employer, the sum
of the defined contribution plan fraction (as defined in Section
415(e)(3) of the Code) and the defined benefit plan fraction (as
defined in Section 415(e)(2) of the Code) in any year shall not
exceed 1.0. In the event the sum of such fractions exceeds 1.0,
contributions and benefits shall be reduced by the amount
necessary to meet the rule stated in this Subsection pursuant to
the provisions of Subsection (c) below. Notwithstanding the
foregoing, with respect to Limitation Years beginning after
January 1, 1987, an amount shall be subtracted from the numerator
of the defined contribution plan fraction (not exceeding such
numerator) as prescribed by the Secretary of the Treasury so that
the sum of the defined benefit plan fraction and defined
contribution plan fraction computed under Code Section 415(e)(1)
as amended by the Tax Reform Act of 1986 does not exceed 1.0 for
any Limitation Year.
(c) Preclusion Of Excess Annual Additions; Reduction Of
Benefits. The Committee shall maintain records showing the
contributions allocated to a Participant's Account in any Plan
Year.
(1) In the event that the Committee determines that
the allocation of a contribution would cause the restrictions
imposed by paragraph (a) to be exceeded with respect to this Plan
or when combined with any other defined contribution plan
pursuant to paragraph (e), allocations shall be reduced in the
following order, but only to the extent necessary to satisfy such
restrictions:
(A) First, the annual additions under this Plan;
(B) Second, the annual additions under any other
qualified defined contribution plan maintained by an Employer.
(2) If it becomes necessary to make an adjustment in
annual additions to a Participant's Account under this Plan,
either because of the limitations as applied to this Plan alone
or as applied to this Plan in combination with another plan, the
Plan:
(A) shall pay to the Participant, to the extent
necessary and as soon as administratively feasible, the unmatched
Post-Tax Contributions, if any, made on behalf of the Participant
and any earnings thereon;
(B) shall pay to the Participant, to the extent
necessary and as soon as administratively feasible, the unmatched
Pre-Tax Contributions, if any, made on behalf of the Participant
and any earnings thereon;
(C) shall pay to the Participant, to the extent
necessary and as soon as administratively feasible, the amount of
the matched Post-Tax Contributions made on the Participant's
behalf and any earnings thereon;
(D) shall pay to the Participant, to the extent
necessary and as soon as administratively feasible, the amount of
the matched Pre-Tax Contributions made on the Participant's
behalf and any earnings thereon;
(E) shall allocate to the extent necessary and as
soon as administratively feasible, the amount of the remaining
Employer contributions and earnings thereon to a suspense account
and which amount will then be treated as Employer contributions
made in accordance with Sections 4.1 and 4.5 in the next Plan
Year; and
(F) shall limit other Employer contributions
made.
(3) The Matching Contributions made in accordance with
Section 4.5(a) with respect to the matched Pre-Tax and Post-Tax
Contributions referred to in (2)(C) and (D) above and any
earnings thereon shall be allocated to the extent necessary and
as soon as administratively feasible to a suspense account and
then treated as Employer contributions in the next Plan Year.
For purposes of (2)(D) hereof, Matching Contributions shall be
allocated to the suspense account before the Profit Sharing
Contributions are so allocated.
(4) Notwithstanding paragraph (1), if the combination
limitation prescribed under paragraph (b) hereof would be
exceeded, benefits under the defined benefit plan shall be frozen
or reduced, if necessary, prior to making any reductions in this
Plan or any other qualified defined contribution plan; provided,
however, if in a subsequent year the limitations are increased
due to cost of living adjustments or any other factor, the freeze
or reduction of the Participant's benefits shall lapse to the
extent that additional benefits may be payable under the
increased limitations.
(d) Disposal Of Excess Annual Additions. In the event
that, notwithstanding the foregoing paragraphs, the restrictions
prescribed hereunder are exceeded with respect to any Participant
and such excess arises as a consequence of a reasonable error in
estimating the Participant's compensation, such excess shall be
utilized to reduce future contributions on behalf of the
Participant for the next succeeding calendar year and succeeding
calendar years thereafter as necessary or, if the Participant is
no longer employed in such succeeding year, to reduce future
contributions on behalf of the other Participants entitled to an
allocation.
(e) Aggregation Of Plans. For purposes of this Section,
all qualified defined contribution plans (whether or not
terminated) maintained by an Employer shall be treated as a
single plan, and all qualified defined benefit plans (whether or
not terminated) maintained by an Employer shall be treated as a
single plan.
(f) Definition Of "Annual Addition". For purposes of this
Section, the term "annual addition" shall mean the sum for any
Plan Year of the following amounts allocated to the Participant's
Account:
(1) Employer contributions pursuant to Sections 4.1
and 4.5;
(2) Participant contributions pursuant to Section 4.2.
Rollover and Transferred Contributions made pursuant to Section
4.4, repaid distributions and forfeitures restored in accordance
with Subsection 8.3 shall not be treated as annual additions.
(g) Definition Of "Employer". For purposes of this
Section, the term "Employer" shall include any Affiliated
Company.
(h) Definition Of "Earnings". For purposes of this
Section, the term "Earnings" with respect to any Participant
shall mean the Participant's compensation as determined under
Section 415(c)(3) of the Code and the regulations thereunder.
ARTICLE V - INVESTMENT OF ACCOUNTS
5.1 Establishment Of Investment Funds
Except as otherwise provided, all amounts held in
Participants' Accounts will be invested as elected by the
Participant in those Investment Funds made available to such
Participants by the Committee. Such Investment Funds may
include, but shall not be limited to, a money market fund, an
intermediate bond fund, a stock and bond fund, a common stock
fund and a Ford Stock Fund, as described below. It is one of the
purposes of this Plan to provide for ownership by Employees of
stock in the parent company, Ford Motor Company, as "qualifying
employer securities," as such term is defined in Section 407 of
ERISA. As with each other investment option, the selection of
the Ford Stock Fund for investment of all amounts from every
source is voluntary and solely at the election of the
Participant. The Trustee is specifically authorized to purchase
common stock on the open market or directly from Ford Motor
Company in such manner as will comply with ERISA.
(a) Money Market Fund -- One or more money market funds, as
may be available from time to time, invested in high quality
money market instruments of all kinds which present minimal
credit risk.
(b) Intermediate Bond Fund -- One or more bond funds, as
may be available from time to time, invested in fixed income
obligations rated investment grade or better by a nationally
recognized statistical rating organization, including high grade
corporate obligations of major U.S. banks, prime commercial paper
and U.S. Government obligations.
(c) Stock and Bond Fund -- One or more diversified stock
and bond funds, as may be available from time to time, invested
in high yielding securities, including common stocks, preferred
stocks and bonds.
(d) Common Stock Fund -- One or more diversified stock
funds, as may be available from time to time, invested primarily
in common stock and securities convertible into common stock.
(e) Ford Stock Fund -- A unitized fund consisting of Ford
Motor Company common stock and cash or cash equivalents managed
by the Trustee.
(f) Real Estate Fund -- A real estate fund as may be
available from time to time, invested primarily or entirely in
real estate investments. This fund is currently "frozen" so that
no new contributions are being accepted and no transfers to or
from this fund are available.
The Trustee in its sole discretion may keep such amounts of
cash and cash equivalents as it shall deem necessary or advisable
as a part of such Investment Funds, all within any limitations
specified in the applicable Trust Agreement. Dividends, interest
and other distributions received on the assets held in respect to
each Investment Fund, shall be reinvested in the respective
Investment Fund. The Committee or such other person or
fiduciary designated by the Committee shall provide to each
Participant (1) a written explanation that this Plan is intended
to constitute a plan described in Section 404(c) of ERISA, (2)
the information and materials described in Regulation 404c-1, and
(3) proxy statements and voting information with respect to the
Ford Stock Fund.
5.2 Investment Of Contributions
Contributions under the Plan shall be invested in multiples
of 1 percent, in any one or more of the Investment Funds, as
elected by the Participant.
5.3 Initial Investment
All funds, both transferred and new funds, which were not
subject to a written election filed with the Committee by
November 21, 1989, shall be invested in the Money Market Fund
until the Participant elects to change his or her investment
allocations. In addition, an Employee who is re-employed by an
Employer shall be invested in the Money Market Fund until he or
she elects to change his or her investment allocations.
5.4 Change Of Election
A Participant may elect to change the allocation percentage
of the contributions being invested in his or her Investment
Funds on any business day by notifying the Trustee by means of a
telephone call placed during the Trustee's regular business
hours. The election shall be specified as a flat dollar amount
or as a whole percentage. Changes in a Participant's election
shall be effective as of the business day that the Participant
telephonically notified the Trustee or as soon thereafter as is
administratively feasible.
5.5 Transfers Among Investment Funds
A Participant and a former Participant receiving
installment payments under Section 8.2(c) may elect on any
business day to transfer all or any portion of the value of his
or her Participant's Account in one of the Investment Funds to
any other Investment Fund. Any such election may be made by
telephonically notifying the Trustee on any business day during
its business hours. The election shall be specified as a flat
dollar amount or as a whole percentage. A transfer shall be
effective as of the business day established by the Trustee as
administratively feasible. The Committee may establish
procedures to handle the transfer among Investment Funds.
Notwithstanding the foregoing, the number of times a Participant
may transfer into or out of the individual Investment Funds shall
be limited by the rules of each such Investment Fund as described
in the applicable prospectus or other description or as limited
by the Committee in a nondiscriminatory manner.
ARTICLE VI - VALUATION AND ACCOUNTING
6.1 Establishment Of Accounts
The Committee shall establish and maintain separate
accounts for each Participant, which shall be appropriately
adjusted as herein provided to reflect each Participant's
interest in the Plan.
6.2 Valuation And Adjustment Of Accounts
Each Participant's Account under the Plan shall be valued
at its fair market value and adjusted as soon as administratively
feasible to reflect the following:
(a) Distributions from and earnings, increases and losses
allocated to a Participant's Account;
(b) The Participant's Contributions and Matching
Contributions, if any, and Profit Sharing Contributions, if any,
allocated to each Participant's Accounts;
(c) As of the end of each Plan Year, the Employer's
qualified nonelective contribution, if any, for a Plan Year which
exceeds the contribution allocated to the Pre-Tax Contributions
and the Profit Sharing Contributions, shall be allocated to the
Accounts of those Participants who received an allocation of the
Profit Sharing Contribution. Such Employer Contributions shall
be allocated according to the ratio that each such Participant's
Covered Compensation for the Year bears to the total of the
Covered Compensation of all such eligible Participants for the
Plan Year.
6.3 Post 1987 Post-Tax Contributions
The Committee shall cause such steps to be taken and such
records to be kept as are required pursuant to Section 72(e)(9)
of the Code or any regulation, ruling or notice thereunder in
order to ensure that a Participant's post-1987 Post-Tax
Contributions and earnings thereon are deemed to be a separate
contract under such Section of the Code.
ARTICLE VII - WITHDRAWALS
7.1 Voluntary Withdrawals
Subject to Section 7.4, a Participant may not withdraw from
his or her Accounts, except that a Participant who has not
attained age 59-1/2 may elect to withdraw from his or her
Participant's Account the amount described below, in one or more
withdrawals, according to the order in which paragraphs (a)
through (c) are presented, as the amounts described in each
paragraph are successively exhausted:
(a) An amount equal to all or a part of his or her pre-1987
Post-Tax Contributions, but no more than the current value
thereof in the event such value is less than the amount of such
Post-Tax Contributions net of previous withdrawals.
(b) An amount equal to all or a part of his or her
post-1986 Post-Tax Contributions, and a pro rata portion of the
earnings on such Post-Tax Contributions, but no more than the
current value thereof in the event such value is less than the
amount of such Post-Tax Contributions net of previous
withdrawals.
(c) An amount equal to all of the earnings attributable to
his or her pre-1987 Post-Tax Contributions.
In addition to withdrawals permitted pursuant to
Subsections (a) through (c) above, a Participant who has attained
age 59-1/2 may elect to withdraw his or her Pre-Tax Contributions
and the earnings thereon, less the amount of any outstanding
loan, in one or more withdrawals, after exhausting all amounts
described in paragraphs (a) through (c) above.
7.2 Hardship Withdrawals
Subject to Section 7.4, in addition to voluntary
withdrawals permitted under Section 7.1, in the event of a
financial hardship a Participant may request a withdrawal of his
or her Pre-Tax Contributions, but not the earnings attributable
thereto, after withdrawing all amounts available under Section
7.1. In accordance with the rules set forth below, a financial
hardship, as determined by the Committee, will be deemed to exist
only if a distribution is necessary in light of the immediate and
heavy financial needs of the Participant and the amount of the
withdrawal is necessary to meet the need, which may include the
amount of all taxes and penalties anticipated to be incurred as a
result of the withdrawal. The Committee shall, in its sole
discretion, determine whether an individual has a financial
hardship. The Committee may request such proof of a financial
hardship from a Participant as the Committee deems appropriate.
The Committee shall not be required to independently investigate
a Participant's financial affairs in making its determination but
may rely on the reasonable representation of such affairs by any
such Participant. The Participant must not be able to relieve
the financial need with assets reasonably available from other
resources of the Participant. For these purposes, a Participant
shall be deemed to have no other resources reasonably available
only if: (a) the Participant has obtained all withdrawals,
distributions and loans currently available to the Participant
under the Plan and all other qualified plans maintained by the
Company or an Affiliated Company and loans reasonably available
to the Participant from commercial sources on reasonable
commercial terms; (b) the Participant has obtained all of the
assets that are reasonably available to him or her, as construed
and interpreted in accordance with Section 401(k) of the Code and
the regulations thereunder; (c) the Participant agrees to cease
all Pre-Tax Contributions and Post-Tax Contributions under the
Plan as well as all similar contributions to all other qualified
defined contribution plans and non-qualified deferred
compensation plans maintained by the Company or an Affiliated
Company for a period of at least twelve months from the date of
the hardship withdrawal; and (d) the amount of pre-tax elective
contributions under all qualified defined contribution plans
maintained by the Company or an Affiliated Company for the year
following the year of the withdrawal are limited in accordance
with regulations issued under Section 401(k) of the Code.
For purposes of this Section 7.2, the term "financial
hardship" shall be deemed to include any financial needs arising
from: (a) medical expenses (as defined in Section 213(d) of the
Code) which are not covered by insurance, and which are incurred
by the Participant or a Participant's spouse or dependent or
funds which are necessary to obtain medical care (as described in
Code Section 213(d)); (b) expenses relating to the payment of
tuition for the next 12 months of post-secondary education of a
Participant, his or her spouse or dependent; (c) expenses related
to the purchase (excluding mortgage payments) of a principal
residence for the Participant; or (d) expenses relating to the
need to prevent the eviction of the Participant from his or her
principal residence or foreclosure on the mortgage of the
Participant's principal residence; or (e) such other financial
needs as specified in Treasury regulations or by the Internal
Revenue Service in published guidance which are deemed to be
immediate and heavy financial needs.
7.3 Form And Frequency Of Election
Elections for a withdrawal in accordance with Section 7.1
may not be made more frequently than twice in any calendar year
and shall be made in writing on a form prescribed by and filed
with the Committee to be effective as of the Valuation Date next
following the date of such election or as soon as
administratively feasible thereafter. This same rule applies
with respect to Section 7.2.
7.4 Limitation on Withdrawals
The minimum for which a withdrawal may be requested is the
lesser of (a) $500 or (b) in the case of a withdrawal under
Section 7.1, the aggregate amount available as described in
Section 7.1 and, in the case of a hardship withdrawal under
Section 7.2, the amount permitted thereunder.
7.5 Withdrawal Of Rollover Contributions
Notwithstanding the foregoing, and pursuant to such rules
and regulations established by the Committee, the Committee may
allow Participants to withdraw amounts in their Rollover
Contributions Account. If the Committee elects to allow such
withdrawals, it shall do so in a uniform, nondiscriminatory
manner.
ARTICLE VIII - VESTING AND DISTRIBUTIONS UPON RETIREMENT,
DISABILITY, DEATH OR OTHER TERMINATION OF EMPLOYMENT
8.1 Vesting
(a) A Participant shall at all times be fully vested in his
or her Post-Tax Contributions Account, Pre-Tax Contributions
Account, Rollover Contributions Account, accounts transferred
from the Merged Plans, PCI Plan, PCI ESOP and any qualified
nonelective contributions made pursuant to Sections 4.6 or 4.8 of
the Plan.
(b) If a Participant separates from service before
attaining five Years of Vesting Service (or attaining such lesser
period of time as Congress may require by legislation as the
maximum period for vesting, taking advantage of any grandfather
rule provided in such legislation), he or she shall forfeit the
non-vested portion of his or her Matching Contributions Account
and Profit Sharing Contribution Account and the provisions of
Section 8.3 shall apply.
(1) The Vested Interest in the Matching Contributions
Account (other than any qualified nonelective contributions made
pursuant to Sections 4.6 or 4.8 of the Plan) of all Participants
and the Vested Interest in the Profit Sharing Contribution
Account of those Participants who were employed on December 31,
1991 shall be determined as follows:
<TABLE>
<CAPTION>
Vested Portion of
Matching
Contributions Account
A Participant's Years of and Profit Sharing
Vesting Service Contribution Account
<C> <C>
Less than one year 0 percent
1 year 20 percent
2 years 40 percent
3 years 60 percent
4 years 80 percent
5 or more years 100 percent
</TABLE>
(2) Except as provided in (c) below, all Participants
hired or rehired on or after January 1, 1992 shall have a 100%
Vested Interest in their Profit Sharing Contribution Account
upon attaining five Years of Vesting Service and shall have a 0%
Vested Interest prior to that time.
(c) Any Participant who was hired prior to January 1, 1992
and then rehired on or after January 1, 1992, who had received a
distribution under this Plan and who repays the distribution in
accordance with Section 8.3(b), shall have his or her Vested
Interest in the Profit Sharing Contribution Account determined
under Section 8.1(b)(1).
8.2 Time And Manner Of Distribution
(a) Distribution Upon Termination Of Employment. A former
Participant who is no longer employed by any Employer or any
Affiliated Company shall be entitled, upon written request, in
accordance with procedures established by the Committee, to
receive distribution of his or her entire Vested Interest in his
or her Accounts in accordance with the following rules:
(1) If a former Participant's Vested Interest in his
or her Accounts is $3,500 or less, or if the former Participant
consents in writing within 60 days of receipt of notice by the
Committee of written notice of termination of employment, or
such later time as may be established by the Committee,
distribution of his or her Vested Interest shall be made as soon
as administratively convenient. The amount of such former
Participant's Vested Interest shall be determined:
(A) in the case of a former Participant whose
Vested Interest in such Participant's Account exceeds $3,500, as
of the Valuation Date coinciding with or immediately following
the date upon which the Committee receives a written application
for benefits; or
(B) in the case of a former Participant whose
Vested Interest in his or her Participant's Accounts is $3,500
or less, as of the Valuation Date on which the payment is
processed, which will be the date on which the Committee
receives the appropriate election form or, if no form is
received, 60 days after the Committee receives written notice of
termination of the Participant.
(2) If a former Participant's Vested Interest in his
or her Participant's Accounts exceeds $3,500, determined as of
the Valuation Date immediately following receipt of written
notification by the Committee of such former Participant's
termination of employment, and he or she does not consent in
writing within 60 days of receipt by the Committee of written
notification of the termination of employment, or such later
date as may be established by the Committee, to an immediate
distribution to be made as soon thereafter as administratively
convenient, distribution of his or her Vested Interest shall be
made in an amount determined as of the Valuation Date on or
immediately after the earlier of the former Participant's
attainment of age 65 or death and distribution shall be made as
soon thereafter as administratively feasible; provided that a
former Participant may elect in writing to receive a
distribution in writing within 60 days of the commencement of
retirement benefits under the Associates First Capital
Corporation Pension Plan, in an amount determined as of the
Valuation Date on or immediately after the Committee reviews
such written election, which amount shall be distributed as soon
thereafter as administratively feasible.
(3) In the event an allocation of Profit Sharing
Contributions and/or forfeitures is made to a Participant's
Account pursuant to Article IV following the date on which a
distribution is made hereunder, distribution of such
contributions shall be made to the former Participant or
Beneficiary (so long as the individual was eligible for an
allocation of the contribution in question) in a single sum as
soon as practical following the date on which such allocation is
made.
(b) Manner Of Distribution. Except as provided in (c)
below, distributions shall be paid in a single sum. If the
value of a former Participant's Accounts exceed $3,500 and the
former Participant consents within 60 days of termination of
employment to an immediate payout, the distribution can be made,
with the consent of the Committee, by transfer to another
qualified trust. All such distributions and transfers shall be
made in cash, except a Participant may elect to receive the
portion of his or her Accounts invested in the Ford Stock Fund
in the form of stock certificates.
(c) Installment Payout. Notwithstanding the above, if the
value of the former Participant's Account exceeds $3,500 and the
former Participant has commenced retirement benefits under the
Associates First Capital Corporation Pension Plan or suffered a
Disability, the former Participant may elect to receive the
balance of his or her Participant's Account paid in a series of
annual cash payments commencing not later than the former
Participant's attainment of age 70 over a period of up to 15
years as elected by the former Participant but not to extend
beyond the combined life expectancies of the former Participant
and his or her Beneficiary. Unless the Beneficiary is the
former Participant's spouse, the payout shall be adjusted (if
necessary) so that at least one-half of the balance of the
former Participant's Account is expected to be payable to the
former Participant. The amount of the first installment payment
shall be an amount equal to the product of (1) the value of the
former Participant's Account as of the Valuation Date coincident
with or next preceding the date of distribution and (2) a
fraction with a numerator equal to one and a denominator equal
to the total number of annual installments to be paid. The
amount of each subsequent installment payment shall be equal to
the product of the value of the former Participant's Account as
of the Valuation Date which falls on the anniversary of the
Valuation Date described in the preceding sentence, and a
fraction with a numerator equal to one and a denominator equal
to the number of installment payments remaining (including the
current payment). In no event shall the amount of any
installment payment be less than any amount required under
United States Department of the Treasury rules and regulations.
Installment payments shall be charged against the former
Participant's Account after the processing of all other
accounting items with respect to the applicable Valuation Date.
If a former Participant who is receiving installment payments
returns to employment with any Employer or Affiliated Company,
the installment payments shall cease and such payments shall
resume when the former Participant again terminates employment.
The former Participant may, at any time during periods when
installments are being received, elect to receive the balance in
one payment.
(d) Distribution Upon Death. (i) Upon the death of a
Participant or former Participant (whether before or after any
installment payments have been made in accordance with Section
8.2(c)) at any time prior to a complete distribution of a
Participant's Account, his or her Beneficiary shall receive the
entire value credited to his or her Participant's Account, such
value determined as of the time of payment. Such distribution
will be made as soon as practicable after Trustee receives
written notification of the Participant's or former
Participant's death. Provided, however, a Beneficiary may elect
in writing on a form prescribed by and filed with the Committee,
to defer receipt of the value of the former Participant or
Participant's Account until the calendar year following the
Participant's or former Participant's death, in which case
distribution shall be made as soon as practicable following the
end of the calendar year of the Participant's or former
Participant's death, in an amount determined as of the date of
payment.
(ii) All amounts in the deceased Participant's or former
Participant's Accounts shall be distributed to the designated
Beneficiary in cash. The Committee or its delegate shall notify
the Trustee promptly after the Committee is notified in writing
of the death of the Participant or former Participant on whose
behalf a distribution is to be made and provide such other
information as the Trustee reasonably requests.
(e) Required Money Market Fund Investment. The Accounts
of a Participant or former Participant, except for a former
Participant receiving installment payments under Section 8.2(c),
who does not take an immediate distribution pursuant to Section
8.2(a) and a Beneficiary under Section 8.2(d) who has deferred
receipt of a complete distribution, shall be invested in the
Money Market Fund described in Section 5.1(a). Such
Participant's Accounts shall be invested in the Money Market
Fund described in Section 5.1(a) as soon as administratively
convenient within 30 days after the expiration of the 60 day
period or receipt of the applicable notice as provided in
Subsections 8.2(a) and 8.2(d).
(f) Direct Rollovers. Effective January 1, 1993, any
Participant who is entitled to a distribution may elect, with
respect to an amount which constitutes an eligible rollover
distribution in the manner and in the time prescribed by the
Committee, to have a portion of an eligible rollover
distribution paid directly to an eligible retirement plan
specified by the Participant. In the case of the death of a
Participant, the beneficiary or surviving spouse, as applicable,
and, in the case of an alternate payee under a qualified
domestic relations order, as defined in Section 414(p) of the
Code, the alternate payee shall have the same rights as the
Participant under this Subsection 8.2(f). For purposes of this
Subsection, eligible rollover distribution and eligible
retirement plan shall have the meaning specified in Section
402(c) of the Code.
8.3 Forfeitures
(a) If a Participant terminates employment prior to the
date on which he or she is fully vested in his or her
Participant's Account and receives a distribution of such
Participant's Account (including a deemed distribution of $O),
the non-vested portion of his or her Matching Contribution
Account and Profit Sharing Contribution Account shall be
forfeited.
(b) The amount of the Participant's Matching Contributions
Account and Profit Sharing Contribution Account forfeited in
accordance with (a) above shall be restored if (1) he or she is
re-employed by any Employer or Affiliated Company before he or
she has incurred five consecutive One-Year Breaks in Vesting
Service as described in Section 3.1(b) herein, and (2) the
Participant repays the full taxable amount of any distribution
received before the earlier of (A) the date he or she has
incurred five consecutive One-Year Breaks in Vesting Service as
described in Section 3.1(b) herein, or (B) five years after the
first date on which he or she is subsequently re-employed. The
source for restoring forfeitures shall be current forfeitures
or, if insufficient, an additional Employer contribution.
Repaid distributions and restored forfeitures shall be invested
proportionately in the Investment Funds selected by the
Participant.
(c) If a Participant (1) terminates employment prior to
the date on which he or she is fully vested in his or her
Participant's Account, (2) does not receive a distribution of
such Participant's Account, and (3) is not re-employed by an
Employer before the end of five consecutive One-Year Breaks in
Vesting Service as described in Section 3.1(b) herein, or if re-employed, does
not repay the taxable amount of any distribution
received within the time provided in Section 8.3(b) above, the
non-vested portion of his or her Participant's Account shall be
forfeited.
(d) All forfeitures shall be applied during each Plan
Year, as directed by the Committee, in its sole discretion, to:
(1) restore amounts previously forfeited by Participants but
required to be reinstated upon resumption of employment in
accordance with Subsection (b), (2) the payment of any Matching
Contributions and Profit Sharing Contributions, (3) pay Plan
expenses, to the extent not paid by the Company, or (4) correct
an error made in allocating amounts to Participants' Accounts or
resolve any claim filed under the Plan in accordance with
Section 10.6.
8.4 Latest Commencement Of Payments
(a) Notwithstanding the other provisions of this Article
VIII, a Participant's Account shall begin to be distributed not
later than the 60th day following the end of the Plan Year in
which the latest of the following occurs:
(1) the Participant's 65th birthday,
(2) the tenth anniversary of the date on which he or
she became a Participant, or
(3) the date he or she terminates service with an
Employer.
(b) Notwithstanding the preceding paragraph, in accordance
with Section 401(a)(9) of the Code, in the case of a Participant
who owns either (1) more than five percent of the outstanding
stock of an Employer or (2) stock possessing more than five
percent of the total combined voting power of all stock of an
Employer (a "five percent owner"), the Participant's
distribution shall be made not later than the April 1 following
the calendar year in which he or she attains age 70-1/2. In the
case of any other Participant, distribution of his or her
Account shall be made not later than the April 1 following the
calendar year in which he or she attains age 70-1/2 or retires,
if later. On and after the first day of the Plan Year beginning
on or after January 1, 1989, distribution of any Participant's
Account shall be made not later than April 1 of the calendar
year following the calendar year in which he or she attains age
70-1/2, provided, however, that if a Participant is not a five
percent owner and shall have attained age 70-1/2 before January
1, 1988, distribution shall be made not later than April 1
following the calendar year in which the Participant retires.
8.5 Termination of Employment
For purposes of this Article VIII, a Participant shall not
be considered to have separated from service or terminated
employment if he enters directly into the employ of another
Employer or an Affiliated Company, as determined in accordance
with applicable guidance from the Internal Revenue Service and
the Treasury.
ARTICLE IX - LOANS
9.1 Eligibility For A Loan
Upon written application of a Participant or a former
Participant who is a "party-in-interest" as defined in ERISA,
the Committee, or its designee, subsequent to April 1, 1990, at
its sole and absolute discretion, may authorize a loan or loans
to such Participant or former Participant from the Plan. Loans
shall be made available in a uniform nondiscriminatory manner
and on a reasonably equivalent basis and loans shall not be made
to Highly Compensated Employees in an amount representing a
percentage of such a Participant's Vested Interest greater than
the percentage made available to other Participants. All loans
are subject to the approval of the Committee or its designee at
its or their sole and absolute discretion. In the event that a
member of the Committee makes an application for a loan, such
Committee member shall not participate in the review of his or
her own loan application. The amount of any loan made to a
Participant shall be limited to 50% (or such lesser percentage
as determined by the Committee and applied in a uniform manner
to comfortably assure compliance with all applicable laws
relating to participant loans) of his or her Vested Interest up
to the maximum specified below at the time such loan is
requested, less the amount of any outstanding loans previously
made to such Participant. The minimum amount of any loan shall
be $500. The maximum amount of any loan made to any Participant
when added to the outstanding balance of all other loans shall
not exceed the lesser of (i) $50,000 reduced by the excess, if
any, of (a) the Participant's highest outstanding loan balance
during the preceding 12-month period ending on the day prior to
the date of the loan, over (b) the outstanding balance of loans
on the date the loan is made or (ii) 50% (or such lesser
percentage as determined by the Committee and applied in a
uniform manner to comfortably assure compliance with all
applicable laws relating to participant loans) of the present
value of the Participant's Vested Interest. Notwithstanding the
foregoing, the Committee, at its sole and absolute discretion,
may limit the amount of any loan if its repayment in accordance
with Section 9.3, together with the repayment of any other
outstanding loan, would result in a payroll deduction exceeding
25 percent of the Participant's Covered Compensation. Each
Participant shall be limited to two outstanding loans. The
amount of the Participant's outstanding loans will be
proportionately deducted from each of the Investment Funds in
which a portion of the Participant's Account is invested. The
Committee shall require spousal consent for a loan if and to the
extent required by law; for example, if Treas. Reg.
Sec. 1.401(a)-20 Q&A-24(a) and Section 401(a)(11)(B)(iii)(III)
of the Code apply.
9.2 Security And Interest
All loans made to a Participant shall be fully secured by
not more than 50% of the Participant's Vested Interest in the
Participant's Accounts and bear a reasonable prevailing rate of
interest. The Committee or its designee, may contact local
banks or Trustees of other plans, as reasonably available, to
determine what interest rate the banks or other plans would make
a similar loan taking into consideration applicable prevailing
factors.
9.3 Other Loan Rules
(a) All loans must be evidenced by a written promissory
note and security agreement signed by the Participant where the
Participant secures the loan with the Participant's Account.
(b) The amount used to fund the loan will be obtained by
liquidating on a pro rata basis the Plan investments of the
Participant (excluding any funds that are or were invested
directly in Paramount stock). Excess funds from such
liquidation and repayments of the loan will be reinvested on the
same basis as directed by the Participant for current
contributions.
9.4 Loan Repayment
Any loan or loans made to a Participant shall provide for
repayment on a level amortization basis through payroll
deductions or other Committee approved methods, such repayments
being required no less frequently than quarterly, except that a
Participant may prepay the outstanding principal balance of his
or her loan at any time; provided, however, the Committee may
provide that no repayments are required when the Participant is
on authorized leave of absence without pay for up to one year.
The repayment period for any loan shall not exceed five years,
except that any loan used to acquire any dwelling which is used
or is to be used within a reasonable time as the principal
residence of the Participant may have a repayment period of up
to 25 years, as specified by the Committee, provided, however,
that the Committee in its discretion and using the standard of a
commercial lender in the community, may restrict the maturity of
such loan to any period less than 25 years. The repayment of
both principal and interest on the loan will be credited solely
to the Participant's Account and allocated to the different
Investment Funds maintained thereunder not later than the last
day of the calendar month following receipt in the same
proportion that assets then allocated to the Participant's
Account are invested in such Investment Funds as directed from
time to time by the Participant or as the assets are otherwise
required to be allocated under the terms of this Plan.
9.5 Repayment Upon Termination Of Employment
If a Participant terminates his or her employment with all
Employers prior to repaying any outstanding loan or loans in
full, the unpaid balance shall become due and payable and the
Committee shall satisfy the indebtedness from the Participant's
Vested Interest in his or her Participant's Account before
making any payments to the Participant or Beneficiary. If the
Participant's Vested Interest in his or her Participant's
Account is insufficient to repay in full the unpaid balance, the
Committee shall demand payment from the terminated Participant
or his or her estate. If the Participant or his or her estate
fail to meet such demand the Committee shall take any action its
deems necessary to recover the remaining unpaid balance.
9.6 Events Of Default; Remedies
If a loan is not repaid in accordance with the terms
contained in the promissory note, a default occurs. Upon such
occurrence, the Committee or its designee, shall contact the
Participant to request immediate payment of any overdue amounts.
If the Participant does not make the requested payment within 15
days of said request, the Committee or its designee, shall apply
its security interest in the Participant's Account to satisfy
the debt.
A Participant who defaults on a loan hereunder as provided
under the terms of the applicable note and security agreement
shall not be allowed to make Post-Tax or Pre-Tax Contributions
and shall not receive any Matching Contributions or Profit
Sharing Contributions during the period of default.
ARTICLE X - ADMINISTRATION OF THE PLAN
10.1 Appointment Of Committee
(a) The Board of Directors shall initially appoint the
members of the Committee. The Board of Directors may at any
time remove or replace any members of the Committee. The
Committee shall administer the Plan and shall appoint three of
its members to serve as the Named Fiduciaries of the Plan within
the meaning of Section 402(a)(2) of ERISA.
(b) If no members of the Committee are in office, the
Company shall be deemed the Committee.
(c) Participants of the Plan shall not be precluded from
serving on the Committee in one or more of such individual
capacities.
10.2 Organization And Operation Of The Committee
(a) The Committee shall endeavor to act, in carrying out
its duties and responsibilities in the interest of the
Participants and Beneficiaries, with the care, skill, prudence
and diligence under the prevailing circumstances that a prudent
person, acting in a like capacity and familiar with such
<PAGE>
matters, would use in the conduct of an enterprise of like
character and aims.
(b) A majority of the Committee shall constitute a quorum
and action at a meeting at which a quorum is present shall be
taken by a majority of the members present. Any action may be
taken in writing without the formality of convening a meeting.
No member of the Committee shall act upon any question
pertaining solely to himself, and the other member or members
shall make any determination required by the Plan in respect
thereof.
(c) The Committee may authorize any one or more of its
members, or members of a separate administrative subcommittee it
may form, or a subsidiary of the Company or any Employee of any
subsidiary of the Company to execute any routine administrative
document on behalf of the Committee.
(d) The Committee may, in addition to the execution of
routine administrative documents, delegate specific duties and
powers to one or more of its members or to a separate
administrative subcommittee it may form or to a subsidiary of
the Company or any Employee of any subsidiary of the Company.
Such delegation shall remain in effect until rescinded in
writing by the Committee. The members or persons so designated
shall be solely liable, jointly and severally, for their acts or
omissions with respect to such delegated responsibilities.
(e) The Committee shall endeavor not to engage directly or
indirectly in any prohibited transaction, as set forth in ERISA.
10.3 Duties And Responsibilities Of The Committee
The Committee, except for such investment and other
responsibilities vested in the Trustee or investment manager or
investment committee of the Board of Directors, shall have full
authority and responsibility for administering the Plan in
accordance with its provisions and under applicable law. The
duties and responsibilities of the Committee shall include, but
shall not be limited to, the following:
(a) To appoint such accountants, consultants, adminis-
trators, counsel, or such other persons it deems necessary for
the administration of the Plan.
(b) To determine all benefits and to resolve all questions
arising from the administration, interpretation, and application
of Plan provisions, either by general rules or by particular
decisions, so as not to discriminate against any person and so
as to treat all persons in similar circumstances in a uniform
manner.
(c) To advise the Trustee with respect to all benefits
which become payable under the Plan and to direct the Trustee as
to the manner in which such benefits are to be paid.
(d) To adopt such forms and regulations it deems advisable
for the administration of the Plan and the conduct of its
affairs.
(e) To take such steps as it considers necessary and
appropriate to remedy any inequity resulting from incorrect
information received or communicated or as a consequence of
administrative error.
(f) To assure that its members, the Trustee and every
other person who handles funds or other property of the Plan are
bonded as required by law.
(g) To settle or compromise any claims or debts arising
from the operation of the Plan and to defend any claims in any
legal or administrative proceeding.
10.4 Required Information
Each Employer or Participants and Beneficiaries entitled
to benefits shall furnish the Committee any information or proof
requested by the Committee and required for the proper
administration of the Plan. Failure on the part of any
Participant or Beneficiary to comply with such request shall be
sufficient grounds for the delay in payment of benefits under
the Plan until the requested information or proof is received.
10.5 Indemnification
The Company agrees to indemnify and hold the Committee and
any administrative subcommittee formed by the Committee harmless
against liability incurred in the administration of the Plan.
10.6 Claims And Appeal Procedure
(a) Any request or claim for Plan benefits must be made in
writing and shall be deemed to be filed by a Participant or
Beneficiary when a written request is made by the claimant or
the claimant's authorized representative which is reasonably
calculated to bring the claim to the attention of the Committee.
(b) The Committee shall provide notice in writing to any
Participant or Beneficiary where a claim for benefits under the
Plan has been denied in whole or in part. The Committee shall
have complete discretionary authority to determine eligibility
for benefits and to construe the terms of the Plan. Such notice
shall be made within 90 days of the receipt by the Committee of
the Participant's or Beneficiary's claim or, if special
circumstances require, and the Participant or Beneficiary is so
notified in writing, within 180 days of the receipt by the
Committee of the Participant's or Beneficiary's claim. The
notice shall be written in a manner calculated to be understood
by the claimant and shall:
(1) set forth the specific reasons for the denial of
benefits;
(2) contain specific references to Plan provisions
relative to the denial;
(3) describe any material and information, if any,
necessary for the claim for benefits to be allowed, which had
been requested, but not received by the Committee; and
(4) advise the Participant or Beneficiary that any
appeal of the Committee's adverse determination must be made in
writing to the Committee, within 60 days after receipt of the
initial denial notification, setting forth the facts upon which
the appeal is based.
(c) If notice of the denial of a claim is not furnished
within the time periods set forth above, the claim shall be
deemed denied and the claimant shall be permitted to proceed to
the review procedures set forth below. If the Participant or
Beneficiary fails to appeal the Committee's denial of benefits
in writing and within 60 days after receipt by the claimant of
written notification of denial of the claim (or within 60 days
after a deemed denial of the claim), the Committee's
determination shall become final and conclusive.
(d) If the Participant or Beneficiary appeals the
Committee's denial of benefits in a timely fashion, the
Committee shall re-examine all issues relevant to the original
denial of benefits. Any such claimant, or his or her duly
authorized representative may review any pertinent documents, as
determined by the Committee, and submit in writing any issues or
comments to be addressed on appeal.
(e) The Committee shall advise the Participant or
Beneficiary and such individual's representative its decision
which shall be written in a manner calculated to be understood
by the claimant, and include specific references to the
pertinent Plan provisions on which the decision is based. Such
response shall be made within 60 days of receipt of the written
appeal, unless special circumstances require an extension of
such 60 day period for not more than an additional 60 days.
Where such extension is necessary, the claimant shall be given
written notice of the delay. If the decision on review is not
furnished within the time set forth above, the claim shall be
deemed denied on review.
ARTICLE XI - AMENDMENT AND TERMINATION
11.1 Amendment
(a) The Plan may be wholly or partially amended or
otherwise modified at any time by the Committee, provided that:
(1) no amendment or modification shall authorize or
permit any part of the Trust Fund to be used for or diverted to
purposes other than for the exclusive benefit of the
Participants or their Beneficiaries and/or persons entitled to
benefits under the Plan or cause or permit any portion of the
Trust Fund to revert to or become the property of any Employer;
and
(2) no amendment or modification shall have any
retroactive effect so as to cause any reduction in the
Participant's Account as of the date of such amendment or shall
deprive any Participant or Beneficiary of any benefit accrued
hereunder.
(b) Notwithstanding the provisions of Subsection (a), any
amendment may be retroactive to conform the Plan with
governmental regulations or requirements in order to allow the
Plan to maintain its qualified status and to allow the Trust
Fund to maintain its tax-exempt status and any such amendments
may be made by the Committee.
11.2 Termination, Sale of Assets or Sale of Subsidiary
(a) While the Plan and Trust Fund are intended to be
permanent, they may be terminated at any time at the sole and
absolute discretion of the Board of Directors or its delegate,
solely as to all or any one Employer. Written notification of
such action shall be given to each Employer and the Trustee
setting forth the date of termination and such date of
termination, shall be deemed a Valuation Date. Thereafter, no
further contributions shall be made to the Trust Fund by an
Employer involved in the termination.
(b) Upon the complete or partial termination of the Plan,
or upon the complete discontinuance of all Employer
contributions, the rights of all affected Participants in their
Participant's Accounts shall be fully vested and shall be
distributed at such time and in such manner as provided under
Articles VII and VIII hereof, unless the Committee amends the
Plan to provide for an earlier payout.
11.3 Merger Of Plans
Upon the merger or consolidation of this Plan with any
other plan or the transfer of assets or liabilities from the
Trust Fund to another trust, all Participants shall be entitled
to a benefit at least equal to the benefit they would have been
entitled to receive had the Plan been terminated in accordance
with Section 11.2 immediately prior to such merger,
consolidation or transfer of assets or liabilities.
ARTICLE XII - PARTICIPATING EMPLOYERS
12.1 Adoption Of Plan
If any company is now or becomes a subsidiary or
associated company of an Employer, the Committee or its delegate
may include the employees of that company in the membership of
the Plan upon appropriate action by that company necessary or
appropriate to adopt the Plan, which action may include a
delegation by such company of authority to the Employer, the
Committee or the Plan, as appropriate under the relevant
instruments, to permit employees of such company to become
members of the Plan. In that event, or if any persons become
employees of an Employer as the result of merger or
consolidation or as the result of acquisition of all or part of
the assets or business of another company, the Committee shall
determine to what extent, if any, credit and benefits shall be
granted for previous service with the subsidiary, or other
associated company, but subject to the continued qualification
of the Trust for the Plan as tax-exempt under the Code.
ARTICLE XIII - GENERAL PROVISIONS
13.1 Exclusiveness Of Benefits
(a) The Plan has been created for the exclusive benefit of
the Participants and their Beneficiaries. No part of the Trust
Fund shall ever revert to an Employer nor shall such Trust Fund
ever be used other than for the exclusive benefit of the
Participants and their Beneficiaries, except as provided in
accordance with Subsection (b). No Participant or Beneficiary
shall have any interest in or right to any part of the Trust
Fund, or any equitable right under the Trust Agreement except to
the extent expressly provided in the Plan or Trust Agreement.
(b) Notwithstanding Subsection (a), the Committee and the
Trustee shall comply with a "qualified domestic relations order"
as such term is defined in Section 414(p) of the Code and the
benefits otherwise payable to the Participant shall be adjusted
accordingly. The Committee shall establish reasonable
procedures for determining the qualified status of any domestic
relations order and for administering distributions under any
such order. Unless prohibited by the domestic relations order,
an "alternate payee" under a qualified domestic relations order
may receive an immediate lump sum distribution of any award
under a domestic relations order if he or she elects.
13.2 Limitation Of Rights
The establishment of this Plan shall not be considered as
giving to any Participant or other employee of an Employer the
right to be retained in the employ of the Employer, and all
Participants and other employees shall remain subject to
discharge to the same extent as if the Plan had never been
adopted.
13.3 Non-Assignability
(a) No benefit or interest under the Plan shall be subject
in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance or charge, and any such action
shall be void for purposes of the Plan. No benefit or interest
shall in any manner be subject to the debts, contracts,
liabilities, engagements or torts of any person entitled to such
benefit or interest, nor shall it be subject to attachment or
other legal process for or against any person, except to such
extent as may be required by law.
(b) If any payee or representative of a payee under the
Plan becomes bankrupt or attempts to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge any such benefit
or interest, the Committee may hold or apply the benefit or
interest or any part thereof to or for such person, his or her
spouse, his or her children, or other dependents, or any of them
in such manner and in such proportions as the Committee shall
determine in its sole discretion.
(c) Notwithstanding the foregoing, the Committee and the
Trustee shall comply with a "qualified domestic relations order"
as such term is defined under Section l3.1(b). The Committee
shall develop procedures to determine whether a domestic
relations order is a "qualified domestic relations order."
13.4 Construction Of Agreement
The Plan shall be construed according to the laws of the
State of Texas and all provisions hereof shall be administered
according to, and its validity shall be determined under, the
laws of such State, except where preempted by Federal law.
13.5 Severability
(a) Should any provision of the Plan be deemed or held to
be illegal or invalid for any reason, such invalidity shall not
adversely affect any other Plan provision, and in such case the
appropriate parties shall immediately adopt a new provision or
regulation to take the place of the one deemed or held to be
illegal or invalid.
(b) If the invalidity inhibits the proper operation of
this Plan, a new provision shall be adopted to take the place of
the one deemed or held to be illegal or invalid.
13.6 Titles And Headings
The titles and headings of the Sections in this instrument
are for convenience of reference only. In the event of any
conflict between the text of this instrument and the titles or
headings, the text rather than such titles or headings shall
control.
13.7 Counterparts As Original
The Plan has been prepared in counterparts, each of which
so prepared shall be construed as an original.
13.8 Construction
The singular, where appearing in the Plan shall include
the plural and the plural shall include the singular.
13.9 Internal Revenue Service Approval
If the Plan is not approved as tax-qualified by the
Internal Revenue Service and as meeting the requirements of the
Code so as to permit each Employer to deduct for income tax
purposes its contributions to the Trustee, all of the Employers'
contributions shall be returned to each Employer within one year
of such determination and the Plan shall be null and void.
13.10 Trust Fund
All contributions and all other cash, securities or other
property received by the Trustee from time to time and held by
it shall constitute the Trust Fund. The Trust Fund shall be
held and invested upon such terms and in such manner as set
forth in the Plan and Trust Agreement. The Trustee shall have
exclusive authority and control to manage and control the assets
of the Plan, subject to the terms of the Plan and Trust
Agreement. All contributions by the Employer are conditioned
upon the initial qualification of the Plan under the Code and
upon the deductibility under Section 404 of the Code of such
contribution. Upon the Employer's request a contribution which
was made by a mistake of fact, or conditioned upon initial
qualification of the Plan or any amendment thereof or upon the
deductibility of the contribution, shall be returned to the
Employer within one year after the payment of the contribution,
the denial of the qualification or the disallowance of the
deduction (to the extent disallowed), whichever is applicable.
13.11 Source Of Benefits
All benefits under the Plan shall be provided solely from
the Trust Fund, and neither the Employers nor their officers,
directors or stockholders shall have any liability or
responsibility therefor. Neither the Employers nor the Trustee
shall be liable in any manner should the Trust Fund be
insufficient to provide for the payment of any benefit under the
Plan.
13.12 Notice of Address and Missing Persons.
Each Participant or Beneficiary entitled to benefits under
the Plan must file with the Committee, in writing, such person's
post office address and each change of post office address. Any
communication, statement, or notice addressed to such a person
at the latest reported post office address will be binding upon
such person for all purposes of the Plan and neither the
Committee nor the Company or Trustee shall be obliged to search
for or ascertain such person's whereabouts. In the event that
such person cannot be located, the Committee may direct that
such benefit and all further benefits with respect to such
person shall be discontinued, all liability for the payment
thereof shall terminate and the balance in such Participant's
Account shall be deemed a forfeiture; provided, however, that in
the event of the subsequent reappearance of the Participant or
Beneficiary prior to termination of the Plan, the benefits which
were due and payable and which such person missed shall be paid
<PAGE>
in a single sum and the future benefits due such person shall be
reinstated in full.
ARTICLE XIV - TOP-HEAVY PROVISIONS
14.1 General Rule
The Plan shall meet the requirements of this Article XIV
in the event that the Plan is or becomes a Top-Heavy Plan.
14.2 Top-Heavy Plan
(a) Subject to the aggregation rules set forth in
Subsection (b), the Plan shall be considered a Top-Heavy Plan
pursuant to Section 416(g) of the Code in any Plan Year if, as
of the Determination Date, the value of the cumulative
Participant's Accounts of all Key Employees exceeds 60 percent
of the value of the cumulative Participant's Accounts of all of
the Employees as of such Date, excluding former Key Employees,
and excluding any Employee who has not performed services for an
Employer during the five consecutive Plan Year period ending on
the Determination Date, but taking into account in computing the
ratio any distributions made during the five consecutive Plan
Year period ending on the Determination Date. For purposes of
the above ratio, the Participant's Account of a Key Employee
shall be counted only once each Plan Year, notwithstanding the
fact that an individual may be considered a Key Employee for
more than one reason in any Plan Year.
(b) For purposes of determining whether the Plan is a
Top-Heavy Plan and for purposes of meeting the requirements of
this Article XIV, the Plan shall be aggregated and coordinated
with other qualified plans in a Required Aggregation Group and
may be aggregated or coordinated with other qualified plans in a
Permissive Aggregation Group. If such Required Aggregation
Group is Top-Heavy, this Plan shall be considered a Top-Heavy
Plan. If such Permissive Aggregation Group is not Top-Heavy,
this Plan shall not be a Top-Heavy Plan.
14.3 Definitions
For the purpose of determining whether the Plan is
Top-Heavy, the following definitions shall be applicable:
(a) The term "Determination Date" shall mean, in the case
of any Plan Year, the last day of the preceding Plan Year. The
value of an individual Participant's Account shall be determined
as of the Determination Date.
(b) An individual shall be considered a Key Employee if he
or she is an Employee or former Employee who at any time during
the current Plan Year or any of the four preceding Plan Years:
(1) was an officer of an Employer who has annual
compensation from the Employer in the applicable Plan Year in
excess of 50 percent of the dollar limitation under Section
415(b)(1)(A) of the Code; provided, however, that the number
of individuals treated as Key Employees by reason of being
officers hereunder shall not exceed the lesser of 50 or l0
percent of all Employees, and provided further that if the
number of Employees treated as officers is limited to 50
hereunder, the individuals treated as Key Employees shall be
those who, while officers, received the greatest annual
Compensation in the applicable Plan Year and any of the four
preceding Plan Years (without regard to the limitation set forth
in Section 14.4 hereof); or
(2) was one of the ten Employees owning or considered
as owning the largest interests in an Employer who has annual
Compensation from the Employer in the applicable Plan Year in
excess of the dollar limitation under Section 415(c)(1)(A) of
the Code as increased under Section 415(d) of the Code; or
(3) was a more than 5 percent owner of an Employer;
or
(4) was a more than 1 percent owner of an Employer
whose annual Compensation from the Employer in the applicable
Plan Year exceeded $150,000.
For purposes of determining who is a Key Employee,
ownership shall mean ownership of the outstanding stock of an
Employer or of the total combined voting power of all stock of
an Employer, taking into account the constructive ownership
rules of Section 318 of the Code, as modified by Section
416(i)(1) of the Code.
For purposes of Subparagraph (1) but not for purposes
of (2), (3) and (4) (except for purposes of determining
Compensation under (4)), the term "Employer" shall include any
entity aggregated with an Employer pursuant to Section 4l4(b),
(c), (m), or (o) of the Code.
For purposes of Subparagraph (2), an Employee (or former
Employee) who has some ownership interest is considered to be
one of the top ten owners unless at least ten other Employees
(or former Employees) own a greater interest than such Employee
(or former Employee), provided that if an Employee has the same
ownership interest as another Employee, the Employee having
greater annual Compensation from an Employer is considered to
have the larger ownership interest.
(c) The term "Non-Key Employee" shall mean any Employee
who is a Participant and who is not a Key Employee.
(d) Whenever the term "Key Employee," "former Key
Employee," or "Non-Key Employee" is used herein, it includes the
beneficiary or beneficiaries of such individual. If an
individual is a Key Employee by reason of the foregoing sentence
as well as a Key Employee in his or her own right, both the
value of his or her inherited benefit and the value of his or
her own Participant's Account will be considered his or her
Participant's Account for purposes of determining whether the
Plan is a Top-Heavy Plan.
(e) For purposes of this Article XIV, except as otherwise
<PAGE>
specifically provided, the term "Compensation" has the same
meaning as the term "Earnings" in Section 4.9(h).
(f) The term "Required Aggregation Group" shall mean all
other qualified defined benefit and defined contribution plans
maintained by an Employer in which a Key Employee participates,
and each other plan of an Employer which enables any plan in
which a Key Employee participates to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
(g) The term "Permissive Aggregation Group" shall mean all
other qualified defined benefit and defined contribution plans
maintained by an Employer that meet the requirements of Sections
401(a)(4) and 410 of the Code when considered with a Required
Aggregation Group.
14.4 Requirements Applicable If Plan Is Top-Heavy
In the event the Plan is determined to be Top-Heavy for
any Plan Year, the following requirements shall be applicable:
(a) Minimum Allocations shall be as follows:
(1) In the case of a Non-Key Employee who is covered
under this Plan but does not participate in any qualified
defined benefit plan maintained by an Employer, the Minimum
Allocation of contributions plus forfeitures allocated to the
account of each Non-Key Employee who has not separated from
service at the end of a Plan Year in which the Plan is Top-Heavy
shall equal the lesser of 3 percent of Compensation for such
Plan Year or the largest percentage of Compensation provided on
behalf of any Key Employee for such Plan Year, including any
elective deferrals made by any such Key Employee pursuant to
Section 401(k) of the Code. The Minimum Allocation provided
hereunder may not be suspended or forfeited under Section
411(a)(3)(B) or (D) of the Code.
(2) A Non-Key Employee who is covered under this Plan
and under a qualified defined benefit plan maintained by an
Employer shall not be entitled to the Minimum Allocation under
this Plan but shall receive the minimum benefit provided under
the terms of the qualified defined benefit plan. If a Non-Key
Employee is covered under one or more qualified defined
contribution plans in addition to this Plan, the Minimum
Allocation requirements may be satisfied through contributions
and forfeitures allocated to his or her accounts under such
other plans.
(b) For purposes of computing the defined benefit plan
fraction and defined contribution plan fraction as set forth in
Subsections 415(e)(2)(B) and (e)(3)(B) of the Code, the dollar
limitations on benefits and annual additions applicable to a
limitation year shall be multiplied by 1.0 rather than by 1.25.
Executed this day of , 1993.
ASSOCIATES FIRST CAPITAL CORPORATION
AMENDMENT NO. 1
TO THE
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
_______________, 1996
WHEREAS, Associates First Capital Corporation (the "Company")
maintains the Associates First Capital Corporation Retirement Savings and
Profit Sharing Plan (the "Plan");
WHEREAS, the Committee charged with administering the Plan (the
"Committee") desires to amend the Plan in connection with the Company's
request for an Internal Revenue Service determination letter on the
qualified status of the Plan and to make certain other changes deemed
appropriate by the Committee; and
WHEREAS, pursuant to Section 11.1 of the Plan, the Committee is
authorized to amend the Plan.
NOW, THEREFORE, the Plan is hereby amended in the following respects
only:
1. Effective June 1, 1995, the title page to the Plan shall be
replaced by the title page attached hereto.
2. The first paragraph of the "Preamble" is hereby amended and
restated as follows:
Effective December 1, 1989, Associates First Capital Corporation
("Associates") established the Associates First Capital Corporation
Retirement Savings and Profit Sharing Plan to encourage retirement savings
by its employees. Effective June 1, 1995, the name of the Associates First
Capital Corporation Retirement Savings and Profit Sharing Plan was changed
from its existing name to the "Associates Savings and Profit-Sharing Plan"
(the "Plan"). The Plan, as amended from time to time, is intended to be
qualified as a cash or deferred plan under Section 401(k) of the Internal
Revenue Code of 1986, as amended (the "Code"), with a matching feature that
is intended to be qualified under Section 401(m) of the Code, and as a
profit sharing plan under Section 401(a) of the Code and the trust
underlying the Plan is intended to be tax-exempt under Section 501(a) of the
Code. Unless otherwise indicated herein or unless otherwise required by the
Tax Reform Act of 1986 or subsequent legislation, the provisions of the Plan
shall be effective January 1, 1989. The Plan shall be construed and
interpreted with these intentions in mind.
3. Section 1.1 is hereby amended by the addition of the following
paragraphs:
In accordance with Section 401(m)(2)(B) of the Code, for
purposes of determining whether the Plan satisfies the Actual
Contribution Percentage test of Section 401(m) of the Code, all
Post-Tax Contributions and Matching Contributions that are made under
two or more plans that are aggregated for purposes of Sections
401(a)(4) or 410(b) of the Code (other than Section 410(b)(2)(A)(ii)
of the Code) shall be treated as made under this Plan, and if two or
more plans are permissively aggregated for purposes of Section 401(m)
of the Code, the aggregated plans must also satisfy Sections
401(a)(4) and 410(b) of the Code as though they were a single plan.
In accordance with Treas. Reg. Sec. 1.401(m)-1(f)(1)(ii)(B), in
calculating the Actual Contribution Percentage for purposes of
Section 401(m) of the Code, the actual contribution ratio of a Highly
Compensated Employee will be determined by treating all plans subject
to Section 401(m) of the Code under which the Highly Compensated
Employee is eligible (other than those that may not be permissively
aggregated) as a single plan.
4. Section 1.2 is hereby amended by the addition of the following
Paragraphs:
In accordance with Section 401(k)(3) of the Code and Treas. Reg.
Sec. 1.401(k)-1(b)(3), for purposes of determining whether the Plan
satisfies the Actual Deferral Percentage test of Section 401(k) of
the Code, if two or more plans which include cash or deferred
arrangements are required to be aggregated for purposes of Sections
401(a)(4) or 410(b) of the Code (other than Section 410(b)(2)(A)(ii)
of the Code), the cash or deferred arrangements in such plans shall
be treated as one cash or deferred arrangement under this Plan, and
if two or more plans are permissively aggregated for purposes of
Section 401(k) of the Code, the aggregated plans must also satisfy
Sections 401(a)(4) and 410(b) of the Code as though they were a
single plan.
In accordance with Section 401(k)(3) of the Code, in calculating
the Actual Contribution Percentage for purposes of Section 401(k) of
the Code, the actual deferral ratio of a Highly Compensated Employee
shall be determined by treating all plans subject to Section 401(k)
under which the Highly Compensated Employee is eligible (other than
those that may not be permissively aggregated) as a single plan.
5. Section 1.9 is hereby amended and restated as follows:
1.9 Covered Compensation
The sum of a Participant's (a) base pay and (b) commissions, in
each case for services rendered to an Employer while an Employee,
determined prior to any Pre-Tax Contributions for the Plan Year which
are not includable in gross income under either Section 402(a)(8) or
Section 125 of the Code.
For purposes of determining a Participant's "Covered
Compensation," there shall be excluded from "Covered Compensation"
the cost of fringe benefits, long-term disability benefits, workers
compensation and other such benefits and any amounts paid or payable
to a Participant as shift differential, overtime, a bonus, severance
pay, or as a contribution to any pension, profit sharing or savings
plan except where such contribution is made pursuant to an election
under Section 4.1. Effective January 1, 1989, the maximum annual
Covered Compensation which may be taken into account for all purposes
under the Plan is $200,000 (or such other amount as specified by
applicable law), as adjusted for increases in the cost of living as
prescribed by the Secretary of the Treasury under Section 415(d) of
the Code. Effective January 1, 1994, the maximum annual Covered
Compensation which may be taken into account for all purposes under
the Plan is $150,000, as adjusted pursuant to Section 401(a)(17) of
the Code.
For purposes of applying the annual compensation limitation
under Section 401(a)(17) of the Code, the family aggregation rules of
Section 414(q)(6) of the Code shall apply, except that in applying
such rules, the term "family" shall include only the spouse of the
Employee and any lineal descendants of the Employee who have not
attained age 19 before the close of the year. Thus, if any Employee
is a member of the family of a 5% owner (within the meaning of
Section 414(q)(3) of the Code) or of a Highly Compensated Employee in
the group consisting of the 10 Highly Compensated Employees paid the
greatest compensation (for purposes of this paragraph, as defined in
Section 414(q)(7) of the Code) during the Plan Year, then (i) such
individual and the 5% owner or Highly Compensated Employee shall be
treated as a single "Employee" with one compensation, and (ii) the
annual compensation limit applicable to such "Employee" will be
allocated among the members of the family unit by prorating the
annual compensation limit among the family members according to their
relative compensation (without regard to this paragraph).
6. Section 1.14 is hereby amended and restated as follows:
1.14 Employee
Any individual employed by an Employer (including Leased
Employees) and such other individuals or classes of individuals
specifically designated by the Committee who are employed by an
Affiliated Company which has not adopted the Plan as provided in
Section 12.1. A "Full-Time Employee" means any Employee who, on the
basis of his or her regular stated work schedule, is classified as a
regular full-time Employee by an Employer. A "Part-Time Employee"
means any Employee other than a Full-Time.
7. Section 1.19 is hereby amended and restated as follows:
1.19 Highly Compensated Employee
With respect to any Plan Year( which is a calendar year and
which is the determination year), an Employee who performs services
for an Employer during the Plan Year and who, during the Plan Year or
the preceding Plan Year (the "look-back year"):
(a) was at any time a 5% owner, as defined in Section
416(i)(1)(B)(i);
(b) received compensation from an Employer in excess of
$75,000 (indexed in accordance with Section 415(d) of the Code);
(c) received compensation from an Employer in excess of
$50,000 (indexed in accordance with Section 415(d) of the Code) and
was in the "top-paid group" of Employees for such Plan Year; or
(d) was at any time an officer (within the meaning of
Section 416(i) of the Code and the regulations thereunder) and
received compensation greater than 50% of the amount in effect under
Section 415(b)(1)(A) for such Plan Year.
In the case of the Plan Year for which the relevant
determination is being made, an Employee not described in
subparagraphs (b), (c), or (d) above for the look-back year shall not
be treated as described in such subparagraphs unless such Employee is
a member of the group consisting of the 100 Employees paid the
greatest compensation during the Plan Year for which such
determination is being made.
An Employee is in the "top-paid group" of Employees for any Plan
Year if such Employee is in the group consisting of the top 20% of
the Employees when ranked on the basis of compensation paid during
such Plan Year. For purposes of determining the number of Employees
in the top-paid group, Employees described in Section 414(q)(8) and
Treas. Reg. Sec. 1.414(q)-1T, Q&A-9(b) are excluded. The term
"compensation" as used in this Section means compensation within the
meaning of Section 415(c)(3), including elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement, or
tax-sheltered annuity. For purposes of subparagraph (d) above, no
more than 50 Employees (or, if lesser, the greater of 3 Employees or
10% of the Employees) shall be treated as officers. If for any Plan
Year, no officer of an Employer is described in subparagraph (d)
above, the highest paid officer of an Employer for such Plan Year
shall be treated as described in such subparagraph. Employers that
are required to be aggregated under Sections 414(b), (c), (m), or (o)
shall be treated as a single Employer for purposes of this Section.
If any Employee is a member of the family of a 5% owner or of a
Highly Compensated Employee in the group consisting of the 10 Highly
Compensated Employees paid the greatest compensation during the Plan
Year, then (a) such Employee shall not be considered a separate
employee, and (b) any compensation paid to such Employee (and any
applicable contribution or benefit on behalf of such Employee) shall
be treated as if it were paid to (or on behalf of) the 5% owner or
Highly Compensated Employee. For purposes of this paragraph, the
term "family" means, with respect to any Employee, such Employee's
spouse and lineal ascendants or descendants and the spouses of such
lineal ascendants or descendants.
A former Employee shall be treated as a Highly Compensated
Employee if (a) such individual was a Highly Compensated Employee
when he or she separated from service, or (b) such individual was a
Highly Compensated Employee at any time after attaining age 55.
Notwithstanding the foregoing, the determination of whether an
individual is a Highly Compensated Employee may be made by the
Committee on the basis of any provision permitted under Section
414(q) of the Code (including the simplified method described in
Section 414(q)(12) of the Code), any applicable regulation, notice or
other Internal Revenue Service guidance, provided the requirements
for use of such provision are satisfied.
8. Section 1.22 is hereby amended and restated as follows:
1.22 Leased Employee
Any person as so defined in Section 414(n)(2) of the Code, which
means a Leased Employee shall include any person who is not otherwise
an employee of the Company or an Affiliated Company and who provides
services to the Company or an Affiliated Company (in this Section
referred to as the "recipient") if (a) such services are provided
pursuant to an agreement between the recipient and any other person
(in this Section referred to as the "leasing organization"), (b) such
person has performed such services for the recipient (or for the
recipient and related persons) on a substantially full-time basis for
a period of at least one (1) year, and (c) such services are of a
type historically performed, in the business field of the recipient,
by employees of the recipient.
Notwithstanding the foregoing, a person shall not be considered
a Leased Employee if (a) such person is covered by a "safe harbor
plan" (as defined below) which is maintained by the leasing
organization, and (b) Leased Employees (determined without regard to
this paragraph) do not constitute more than twenty percent (20%) of
the recipient's non-highly compensated work force (as defined in
Section 414(n)(5)(C)(ii) of the Code). A "safe harbor plan" shall
mean a money purchase pension plan (a) with a nonintegrated employer
contribution rate for each participant of at least ten percent (10%)
of compensation, (b) which provides for full and immediate vesting,
and (c) which provides that each employee of the leasing organization
(other than employees who perform substantially all of their services
for the leasing organization) shall immediately participate in such
plan; provided, however, this clause (c) shall not apply to any
individual whose compensation from the leasing organization in each
plan year during the four (4) year period ending with the plan year
is less than $1,000. The term "compensation" as used in this
paragraph shall mean compensation as defined in Section 415(c)(3) of
the Code, except that such term shall include amounts contributed
pursuant to salary reduction agreement which are excludable from the
employee's gross income under Section 125, Section 402(e)(3), Section
402(h), or Section 403(b) of the Code.
9. Section 1.33 is hereby amended and restated as follows:
1.33 Plan
The "Associates Savings and Profit-Sharing Plan" as
described herein and as from time to time supplemented or
amended, which is intended to qualify under Code Sections
401(a), 401(k), and 401(m). The Plan is sometimes referred to
as the "ASAP" or the "ASAP Plan." The Plan was formerly named
the Associates First Capital Corporation Retirement Savings
and Profit Sharing Plan and may retain such name for certain
purposes, such as governmental filings.
10. Section 2.1(b) is hereby amended and restated as follows:
2.1 Eligibility For Participation
(b) Each other Full-Time Employee, on or after December 1,
1989, shall become a Participant, with respect to Profit Sharing
Contributions, on his or her date of employment, and shall become a
Participant, with respect to Pre-Tax, Post-Tax, and Matching
Contributions, as of the first day of the payroll period following
the earlier of (1) the date on which the Full-Time Employee attains
age 25, or (2) the completion of one year (i.e., 12 months) of
Eligibility Service, as such term is defined in Section 3.1(b).
11. Section 2.2 is hereby amended and restated as follows:
2.2 Excluded Employees
The following Employees shall be excluded from participation in
the Plan:
(a) An Employee who is (or becomes) a member of a collective
bargaining unit that is a party to a collective bargaining agreement
with an Employer, unless there is an agreement in effect making the
Plan available to Employees in such unit; and
(b) Any individual who is a Leased Employee of an Employer and
who is employed by a leasing organization (as defined in Code Section
414(n)(2)) which is not an Affiliated Company;
Notwithstanding the foregoing, the Committee may, by written
resolution, exclude from eligibility for participation in this Plan
any class of Employees. Any such designation shall be made in a
nondiscriminatory manner.
12. Section 3.1 is hereby amended and restated as follows:
3.1 Vesting And Eligibility Service
(a) Companies For Whom Credited. Vesting Service and
Eligibility Service with respect to any Employee shall mean periods
of employment with the Company, an Affiliated Company (on and after
the date of affiliation unless determined otherwise by the
Committee)and any predecessor corporation of an Employer, or a
corporation merged, consolidated or liquidated into an Employer or a
predecessor of an Employer, or a corporation, substantially all of
the assets of which have been acquired by an Employer, if an Employer
maintains a plan of such a predecessor corporation, or as a Leased
Employee under the provisions of 414(n) of the Code, provided,
however, that such period of Vesting Service and Eligibility Service
shall not be credited until such time as the Leased Employee actually
becomes an Employee. If an Employer does not maintain a plan
maintained by such a predecessor, periods of employment with such a
predecessor, merged, liquidated or acquired company shall be credited
as Vesting Service and Eligibility Service only to the extent
required under regulations prescribed by the Secretary of the
Treasury pursuant to Section 4l4(a)(2) of the Code or as granted by
the Committee on a non-discriminatory basis. In all events, periods
recognized under a Merged Plan, the PCI Plan or PCI ESOP on behalf of
a Participant shall be recognized as Vesting Service and as
Eligibility Service, as the case may be, under this Plan on behalf of
such an Employee who becomes a Participant, and in no event will an
Employee be credited with less Vesting Service under the Plan than
the service with which the Employee was credited on November 30, 1989
for vesting purposes under the terms of a Merged Plan, the PCI Plan
or the PCI ESOP.
(b) Year Of Vesting Service. An Employee's Vesting Service
shall be measured in years and days (with each 365 days of Vesting
Service being equivalent to one Year of Vesting Service) from the
Employee's "employment commencement date" (which, in accordance with
ERISA Reg. Sec. 2530.202-2(a), means the first day for which the
Employee is entitled to be credited with an hour of service under
such regulations) on with the Company or an Affiliated Company to the
Employee's Severance Date as defined hereinafter. Vesting Service
shall include, by way of illustration but not by way of limitation,
the following periods:
(1) Any leave of absence from employment (other than
that period after the second anniversary of a Parental Leave) which
is authorized by the Company or by an Affiliated Company or
predecessor in accordance with uniform rules applied on a
nondiscriminatory basis; and
(2) Any period service in the Armed Forces of the United
States (including for this and other Plan purposes "uniformed
services" as defined in Section 7 of the Uniformed Services
Employment and Reemployment Rights Act of 1994) required to be
credited by law; provided, however, such Vesting Service shall not be
credited if under Paragraph (1) such service is already.
Fractional years shall be disregarded; provided, however, that
all periods of Vesting Service prior to and subsequent to any period
of severance shall be aggregated. Notwithstanding the foregoing, in
accordance with the service spanning rules in Treas. Reg.
Sec. 1.410(a)-7, if an Employee's employment with an Employer is
severed but he or she is re-employed within the 12 consecutive month
period commencing on his or her Severance Date, as defined
hereinafter (i.e., within a "one year period of severance," as
defined hereinafter), the period of severance shall constitute
Vesting Service.
A "one year period of severance" shall mean a 12 consecutive
month period beginning on the Severance Date during which the
Employee does not perform an hour of service within the meaning of
ERISA Reg. Sec. 2530.200b-2(a)(1) for the Employer.
An Employee's "Severance Date" means the earlier of the date on
which he or she resigns, retires, is discharged or dies or the first
anniversary of the date on which he or she is first absent from
service, with or without pay, for any other reason, such as vacation,
sickness, disability, layoff or leave of absence. An Employee's
Severance Date shall not be considered to have occurred if the
Employee enters directly into the employ of another Employer or an
Affiliated Company, but shall be considered to have occurred as of
the date a trade or business or a subsidiary of the Company or of an
Affiliated Company for whom he is employed is sold in accordance with
Section 11.2. If an Employee is absent beyond such first anniversary
date by reason of Parental Leave, his or her Severance Date shall be
the second anniversary of the first date of such absence and the
twelve-month period beginning on the first anniversary of the first
date of such absence and ending on the second anniversary of such
absence shall be a year of absence and shall not be credited to the
Employee as a Year of Vesting Service or as a Break in Vesting
Service under the Plan. A Break in Vesting Service shall occur if an
Employee's employment is severed and the Employee is not re-employed
within the 12 consecutive month period commencing on his or her
Severance Date.
Notwithstanding any other provision of the Plan to the contrary
and in accordance with Treas. Reg. Sec. 1.410(a)-7(a)(2)(ii), if an
individual is on a leave of absence (including a military or
disability leave) and does not return to the employment of an
Employer or an Affiliated Company within 30 days (or such longer
reemployment period as required by applicable law) of the termination
of the leave or the termination of the circumstances that gave rise
to the leave (whichever is applicable), then such individual shall be
deemed to have "quit" on the date that his or her leave of absence
terminates or the termination of the circumstances that gave rise to
the leave (whichever is applicable) and, thereby, would incur a
Severance Date as of such date.
A Full-Time Employee's Eligibility Service shall be determined
in the same manner as his or her Vesting Service, and where
appropriate in this Subsection (b) the term "Vesting Service" shall
be replaced with the term "Eligibility Service." In accordance with
Treas. Reg. Sec. 1.410(a)-7(c)(2), a Full-Time Employee shall be
considered to have satisfied his or her 1 year of Eligibility Service
requirement on the first anniversary of his employment commencement
date.
(c) Year Of Eligibility Service. A Part-Time Employee who is
hired prior to reaching age 25 shall complete a Year of Eligibility
Service in a year at the earlier of (1) attainment of age 25 and
completion of 1,000 Hours of Service in a year (with the first year
based on the individual's anniversary date and later years based on
the Plan Year), and (2) completion of a full year of service (12
months of service) with the Company in which the individual completes
1,000 Hours of Service in a year (with the first year based on the
individual's anniversary date and later years based on the Plan
Year). A Part-Time Employee who is hired after reaching age 25 shall
complete a Year of Eligibility Service after completion of 1,000
Hours of Service in a year (with the first year based on the
individual's anniversary date and later years based on the Plan
Year). The eligibility computation periods described above shall
commence with the Part-Time Employee's "employment commencement date"
(which, in accordance with ERISA Reg. Sec. 2530.202-2(a), means the
first day for which the Part-Time Employee is entitled to be credited
with an Hour of Service.
An "Hour of Service" means, with respect to any applicable
computation period:
(1) each hour for which a Part-Time Employee is directly
or indirectly paid or entitled to payment for the performance of
duties for the Company, an Affiliated Company or a predecessor;
(2) each hour for which a Part-Time Employee is paid or
entitled to payment by the Company, an Affiliated Company or a
predecessor, on account of a period during which no duties are
performed, whether or not the employment relationship has terminated,
due to vacation, holiday, illness, incapacity (including Disability),
layoff, jury duty, military duty or leave of absence, but not more
than 501 hours for any single continuous period; provided, however,
that no hours shall be credited on account of any period during which
the Part-Time Employee performs no duties and receives payment solely
for the purpose of complying with unemployment compensation, workers'
compensation or disability insurance laws;
(3) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the Company,
an Affiliated Company or a predecessor, excluding any hour credited
under (1) or (2), which shall be credited to the computation period
or periods to which the award, agreement or payment pertains, rather
than to the computation period in which the award, agreement or
payment is made;
(4) each hour during which the Employee is serving in
the Armed Forces of the United States; and
(5) each hour during which a Part-Time Employee is on a
leave of absence approved by an Employer, under rules adopted by the
Committee and uniformly applicable to all Employees similarly
situated, provided, that no hours shall be counted under this
Paragraph which are counted as Eligibility Service under paragraphs
(1) and (2) of this Section.
(d) Manner Of Crediting Certain Hours Of Service. Except as
otherwise required by applicable law, the following rules shall
apply. The number of hours credited to a Part-Time Employee for
reasons described in Paragraphs (c)(4) or (5) shall be based on the
number of hours during which an Employee is performing duties
immediately prior to his or her leave of absence or service in the
Armed Forces. Hours of Service described in Paragraphs (c)(1),
(c)(4) or (c)(5) shall be credited to the eligibility computation
period in which the duties are performed or in which the leave of
absence or period of service in the Armed Forces occurs. The periods
to which Hours of Service described in Paragraphs (c)(2) or (c)(3)
are credited shall be determined in accordance with Department of
Labor regulation Sec. 2530.200b-2.
(e) Additional Service Credit. The Committee, in its sole
discretion, may provide additional credit for Vesting Service or
Eligibility Service for periods not required to be credited under
this Article 3, provided that the Committee shall act in a
nondiscriminatory manner.
13. Section 4.4 is hereby amended and restated as follows:
4.4 Rollover Contributions and Transferred Contributions
(a) The Committee is authorized to adopt procedures with
respect to accepting an Employee's rollover contributions (as defined
in Code Sections 402, 403 and 408) which a qualified plan is
permitted to receive. In addition, this Plan shall accept direct
rollovers of eligible rollover distributions from other eligible
retirement plans, both terms as defined in Section 402(c) of the
Code; provided, however, that the Plan shall only accept such direct
rollovers if the Committee's administrative rules are satisfied.
Such rollover contributions shall be credited to the Employee's
Rollover Contributions Account.
(b) In addition, the Committee may authorize the Trustee to
accept a direct transfer from the trustee of any predecessor plan or
any other qualified plan maintained by the Company or an Affiliated
Company and any such transferred amount shall be credited to an
account established by the Committee for such Employee. Amounts so
transferred shall retain the tax character which such amounts had in
the transferring Plan. However, the Committee may, in its
discretion, refuse to accept any such transfers if such transfer
would have the effect of preserving or requiring any annuity or
special distribution options which are not available to all
Participants under the Plan.
14. Section 4.6 is hereby amended by the addition of the following
paragraphs:
(e) In accordance with Section 414(q)(6) of the Code and
Treas. Reg. Sec. 1.401(k)-1(f)(5)(ii), with respect to any Highly
Compensated Employee whose actual deferral ratio ("ADR"), which is
the ratio determined for each Employee under the Actual Deferral
Percentage, is determined under the family aggregation rules, the
Excess Contributions for such combined "Highly Compensated Employee"
shall be reduced in accordance with the "leveling" method described
in Treas. Reg. Sec. 1.401(k)-1(f)(2) and the Excess Contribution
shall be allocated among the family members in proportion to the
Pre-Tax Contributions of each family member that are combined to
determine the ADR.
In accordance with Section 414(q)(6) of the Code and Treas. Reg.
Sec. 1.401(k)-1 (g)(1)(ii)(C), if a Highly Compensated Employee is
subject to the family aggregation rules of Section 414(q)(6) of the
Code because such Employee is either a 5% owner or one of the 10 most
highly compensated employees, the combined ADR for the family group
(which is treated as one Highly Compensated Employee) shall be
determined by combining the Pre-Tax Contribution, compensation (as
defined in Section 1.1), and amounts treated as Pre-Tax Contributions
of all family members. Except to the extent taken into account in
the preceding sentence, the Pre-Tax Contributions, compensation, and
amounts treated as Pre-Tax Contributions of all family members shall
be disregarded in determining the Actual Deferral Percentages for the
groups of Highly Compensated Employees and non-Highly Compensated
Employees.
15. Section 4.6(c) is hereby amended by the addition of the
following sentence:
Any Excess Contributions that are recharacterized as Post-Tax
Contributions shall remain subject to the nonforfeitability
requirements and distribution limitations that apply to Pre-Tax
Contributions.
16. Section 4.8 is hereby amended by the addition of the following
paragraph (f):
(f) In accordance with Section 414(q)(6) and Treas. Reg.
Sec. 1.401(m)-1(e)(2)(iii) with respect to any Highly Compensated
Employee whose actual contribution ratio ("ACR"), which is the ratio
determined for each Employee under the Actual Contribution
Percentage, is determined under the family aggregation rules, the
Excess Aggregate Contributions for such combined "Highly Compensated
Employee" shall be reduced in accordance with the "leveling" method
described in Treas. Reg. Sec. 1.401(m)-1(e)(2) and the Excess
Aggregate Contributions shall be allocated among the family members
in proportion to the Matching and Post-Tax Contributions of each
family member that are combined to determine the ACR.
17. Section 4.9(f) is hereby amended and restated as follows:
(f) Definition Of "Annual Addition". For purposes of this
Section, the term "annual addition" shall mean the sum for any Plan
Year of the following amounts allocated to the Participant's Account:
(1) Employer contributions pursuant to Sections 4.1 and
4.5;
(2) Participant contributions pursuant to Section 4.2;
and
(3) Forfeitures.
Rollover and Transferred Contributions made pursuant to Section 4.4,
and repaid distributions and forfeitures restored in accordance with
Subsection 8.3 shall not be treated as annual additions. However,
the following two items shall be included as annual additions under
the Plan:
(1) Amounts allocated to an "individual medical account"
as described under Section 415(l)(2) of the Code, which is part of a
pension or annuity plan; and
(2) Amounts attributable to post-retirement medical
benefits allocated to the separate account of a key employee, as
defined in Section 419A(d)(3) of the Code, under a welfare benefit
fund as described in Section 419(e) of the Code.
18. The last paragraph of Section 7.2 is hereby amended and restated
as follows:
For purposes of this Section 7.2, the term "immediate and heavy
financial need" shall be deemed to include any financial needs
arising from: (a) medical expenses (as defined in Section 213(d) of
the Code) which are not covered by insurance, and which are incurred
by the Participant or a Participant's spouse or dependent or funds
which are necessary to obtain medical care (as described in Code
Section 213(d)); (b) expenses relating to the payment of tuition for
the next 12 months of post-secondary education of a Participant, his
or her spouse or dependent; (c) expenses related to the purchase
(excluding mortgage payments) of a principal residence for the
Participant; or (d) expenses relating to the need to prevent the
eviction of the Participant from his or her principal residence or
foreclosure on the mortgage of the Participant's principal residence;
or (e) such other financial needs as specified in Treasury
regulations or by the Internal Revenue Service in published guidance
which are deemed to be immediate and heavy financial needs.
19. Section 8.1 is hereby amended by the addition of the following
paragraph (d):
(d) In the event of the death or Disability of any
Participant, he or she shall become fully vested in his or her
Accounts.
20. Section 8.2(d) is hereby amended and restated as follows:
(d) Distribution Upon Death. (i) Upon the death of a
Participant or former Participant (whether before or after any
installment payments have been made in accordance with Section
8.2(c)) at any time prior to a complete distribution of such
Participant's Account, his or her Beneficiary shall receive the
entire Vested Interest credited to his or her Account, such value
determined as of the time of payment. Such distribution will be
made as soon as practicable after Trustee receives written
notification of the Participant's or former Participant's death.
Provided, however, a Beneficiary may elect in writing on a form
prescribed by and filed with the Committee, to defer receipt of the
value of the former Participant or Participant's Account until the
calendar year following the Participant's or former Participant's
death, in which case distribution shall be made as soon as
practicable following the end of the calendar year of the
Participant's or former Participant's death, in an amount determined
as of the date of payment.
(ii) The Vested Interest in the deceased Participant's or
former Participant's Accounts shall be distributed to the designated
Beneficiary in cash. The Committee or its delegate shall notify the
Trustee promptly after the Committee is notified in writing of the
death of the Participant or former Participant on whose behalf a
distribution is to be made and provide such other information as the
Trustee reasonably requests.
21. Section 8.2(f) is hereby amended and restated as follows:
(f) Direct Rollovers. Effective January 1, 1993, any
Participant who is entitled to a distribution may elect, with respect
to an amount which constitutes an eligible rollover distribution in
the manner and in the time prescribed by the Committee, to have a
portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the Participant. In the case
of the death of a Participant, the surviving spouse, and, in the case
of an alternate payee under a qualified domestic relations order, as
defined in Section 414(p) of the Code, the alternate payee shall have
the same rights as the Participant under this Subsection 8.2(f).
In accordance with Section 402(c) of the Code and the
regulations related thereto, an "eligible rollover distribution"
shall mean any distribution of all or any portion of the balance to
the credit of the Participant in the Plan, except for the following:
(a) Any distribution that is one of a series of
substantially equal periodic payment (not less frequently than
annually) made over any one of the following periods (as applicable):
the life of the Participant (or the joint lives of the Participant
and the Participant's designated beneficiary), the life expectancy of
the Participant (or the joint life and last survivor expectancy of
the Participant and the Participant's designated beneficiary), or a
specified period of ten years or more;
(b) Any distribution to the extent the distribution is
required under Section 401(a)(9) of the Code;
(c) The portion of any distribution that is not
includable in gross income (determined without regard to the
exclusion for net unrealized appreciation described in Section
402(e)(4) of the Code); or
(d) Any other distribution (or any portion thereof) that
is designated by the Internal Revenue Service as not constituting an
eligible rollover distribution.
Further, an "eligible retirement plan" shall mean an individual
retirement plan or a qualified plan. An individual retirement plan
is an individual retirement account described in Section 408(a) of
the Code or an individual retirement annuity (other than an endowment
contract) described in Section 408(b) of the Code. A qualified plan
is a qualified trust described in Section 401(a) of the Code or an
annuity plan described in Section 403(a) of the Code. Any
Participant, surviving spouse, or alternate payee, as applicable, to
whom these direct rollover rules apply shall be defined as a
distributee.
22. Section 8.4(b) is hereby amended by the addition of the
following paragraph:
Distributions under the Plan will be made in accordance with
Section 401(a)(9) of the Code and the regulations promulgated
thereunder, including Prop. Treas. Reg. Sec. 1.401(a)(9)-2, which
describes the MDIB requirement. The Section 401(a)(9) provision
shall override any contrary distribution options in the Plan.
23. Article IX of the Plan is hereby amended and restated as
follows:
ARTICLE IX - LOANS
9.1 Eligibility For A Loan
Upon written application of a Participant or a former
Participant who is a "party-in-interest" as defined in ERISA, the
Committee, or its designee, subsequent to April 1, 1990, at its sole
and absolute discretion, may authorize a loan or loans to such
Participant or former Participant from the Plan. Loans shall be made
available in a uniform nondiscriminatory manner and on a reasonably
equivalent basis and loans shall not be made to Highly Compensated
Employees in an amount representing a percentage of such a
Participant's Vested Interest greater than the percentage made
available to other Participants. All loans are subject to the
approval of the Committee or its designee at its or their sole and
absolute discretion. In the event that a member of the Committee
makes an application for a loan, such Committee member shall not
participate in the review of his or her own loan application. The
amount of any loan made to a Participant shall be limited to 50% (or
such lesser percentage as determined by the Committee and applied in
a uniform manner to comfortably assure compliance with all applicable
laws relating to participant loans) of his or her Vested Interest up
to the maximum specified below at the time such loan is requested,
less the amount of any outstanding loans previously made to such
Participant. The minimum amount of any loan shall be $500. The
maximum amount of any loan made to any Participant when added to the
outstanding balance of all other loans shall not exceed the lesser of
(i) $50,000 reduced by the excess, if any, of (a) the Participant's
highest outstanding loan balance during the preceding 12-month period
ending on the day prior to the date of the loan, over (b) the
outstanding balance of loans on the date the loan is made or (ii) 50%
(or such lesser percentage as determined by the Committee and applied
in a uniform manner to comfortably assure compliance with all
applicable laws relating to participant loans) of the present value
of the Participant's Vested Interest. Each Participant shall be
limited to two outstanding loans. The amount of the Participant's
outstanding loans will be proportionately deducted from each of the
Investment Funds in which a portion of the Participant's Account is
invested. The Committee shall require spousal consent for a loan if
and to the extent required by law; for example, if Treas. Reg.
Sec. 1.401(a)-20 Q&A-24(a) and Section 401(a)(11)(B)(iii)(III) of the
Code apply.
9.2 Security And Interest
All loans made to a Participant shall be fully secured by not
more than 50% of the Participant's Vested Interest in the
Participant's Accounts and bear a reasonable prevailing rate of
interest. The Committee or its designee, may contact local banks or
Trustees of other plans, as reasonably available, to determine what
interest rate the banks or other plans would make a similar loan
taking into consideration applicable prevailing factors. Unless
otherwise determined by the Committee, the rate of interest on a loan
shall (i) be determined at the time the loan is requested, (ii) be
fixed over the term of the loan, and (iii) for any particular month,
be the prime rate on the last Tuesday before the month commences,
plus one percent (1%) (i.e., prime plus one).
9.3 Other Loan Rules
(a) All loans must be evidenced by a written promissory note
and security agreement signed by the Participant where the
Participant secures the loan with the Participant's Account.
(b) The amount used to fund the loan will be obtained by
liquidating on a pro rata basis the Plan investments of the
Participant (excluding any funds that are or were invested directly
in Paramount stock). Excess funds from such liquidation and
repayments of the loan will be reinvested on the same basis as
directed by the Participant for current contributions.
9.4 Loan Repayment
Any loan or loans made to a Participant shall provide for
repayment on a level amortization basis through payroll deductions or
other Committee approved methods, such repayments being required no
less frequently than quarterly, except that a Participant may prepay
the outstanding principal balance of his or her loan at any time;
provided, however, the Committee may provide that no repayments are
required when the Participant is on authorized leave of absence
without pay for up to one year; provided, however, upon such
Participant's return to employment, his or her loan shall be
re-amortized, if necessary, to comply with the five year repayment
requirement described below, if applicable. The repayment period
for any loan shall not exceed five years, except that any loan used
to acquire any dwelling which is used or is to be used within a
reasonable time as the principal residence of the Participant may
have a repayment period of up to 25 years, as specified by the
Committee, provided, however, that the Committee in its discretion
and using the standard of a commercial lender in the community, may
restrict the maturity of such loan to any period less than 25 years.
The repayment of both principal and interest on the loan will be
credited solely to the Participant's Account and allocated to the
different Investment Funds maintained thereunder not later than the
last day of the calendar month following receipt in the same
proportion that assets then allocated to the Participant's Account
are invested in such Investment Funds as directed from time to time
by the Participant or as the assets are otherwise required to be
allocated under the terms of this Plan.
9.5 Repayment Upon Termination Of Employment
If a Participant terminates his or her employment with all
Employers prior to repaying any outstanding loan or loans in full,
the unpaid balance shall become due and payable and the Committee
shall satisfy the indebtedness from the Participant's Vested Interest
in his or her Participant's Account before making any payments to the
Participant or Beneficiary. If the Participant's Vested Interest in
his or her Participant's Account is insufficient to repay in full the
unpaid balance, the Committee shall demand payment from the
terminated Participant or his or her estate. If the Participant or
his or her estate fail to meet such demand, the Committee shall take
any action its deems necessary to recover the remaining unpaid
balance.
9.6 Events Of Default; Remedies
If a loan is not repaid in accordance with the terms contained
in the promissory note, a default occurs. Upon such occurrence, the
Committee or its designee, shall contact the Participant to request
immediate payment of any overdue amounts or take other action it
deems appropriate. If the Participant does not make the requested
payment within 15 days of said request, the Committee or its
designee, may apply its security interest in the Participant's
Account to satisfy the debt; provided, however, the Committee may not
do so if such action would result in a prohibited in-service
distribution to the Participant.
A Participant who defaults on a loan hereunder as provided under
the terms of the applicable note and security agreement shall not be
allowed to make Post-Tax or Pre-Tax Contributions and shall not
receive any Matching Contributions or Profit Sharing Contributions
during the period of default. In accordance with Section 72(p) of
the Code and the regulations thereunder, the Committee shall treat
the outstanding loan balance on a defaulted loan as a taxable
distribution.
9.7 Loan Policy
Unless otherwise set forth in a document entitled "Loan Policy,"
this Article IX shall constitute the Loan Policy of the Plan.
24. Section 14.3(f) is hereby amended by the addition of the
following sentence:
The term "Required Aggregation Group" shall also include any plan
which was maintained within the five years ending on the
Determination Date for the Plan Year in question and which would
otherwise be part of the Required Aggregation Group.
25. Section 14.4 is hereby amended by the addition of the following
paragraph (c):
(c) The vesting requirements of Section 416(b) of the Code
shall be satisfied by applying the 5-year graded vesting schedule, as
follows:
<TABLE>
<CAPTION>
Years of Vesting Service Vested Percentage
<C> <C>
2 years 40%
3 years 60%
4 years 80%
5 or more 100%
</TABLE>
26. The Plan is hereby amended by the addition of the supplement attached
hereto entitled "Supplement I - Special Provisions Applicable to Residents
of the Commonwealth of Puerto Rico."
IN WITNESS WHEREOF, this Amendment No. 1 to the Associates First
Capital Corporation Retirement Savings and Profit Sharing Plan has been
executed on this ____ day of ___________, 1996, to be effective as of such
date(s) as are necessary to comply with the Tax Reform Act of 1986 and
subsequent legislation, or as otherwise indicated herein.
<PAGE>
ASSOCIATES FIRST CAPITAL CORPORATION
AMENDMENT NO. 2
TO THE
ASSOCIATES SAVINGS AND PROFIT-SHARING PLAN
Effective August 1, 1996, the Committee hereby amends the
Associates Savings and Profit-Sharing Plan (the "Plan") as
follows:
1. Section 5.1 of the Plan is hereby amended in its
entirety to read as follows:
Except as otherwise provided, all
amounts held in Participants' Accounts shall
be invested as directed by Participants in
those Investment Funds made available to
such Participants by the Committee. Such
Investment Funds may include, but shall not
be limited to, one or more funds invested
primarily in "qualifying employer
securities" as such term is defined in
Section 407 of ERISA, any such qualifying
employer securities to be acquired and held
in accordance with applicable provisions of
the Trust Agreement.
The Trustee in its sole discretion may
keep such amounts of cash and cash
equivalents as it shall deem necessary or
advisable as a part of the Investment Funds,
subject to any limitations specified in the
Trust Agreement. Dividends, interest and
other distributions received with respect to
assets held in each Investment Fund shall be
reinvested in the respective Investment
Fund. The Committee or its designee shall
provide to each Participant (1) a written
explanation that the Plan is intended to
constitute a plan described in Section
404(c) of ERISA and (2) any information and
materials required to be provided to
Participants in order for the Plan to
satisfy any applicable provisions of Labor
Regulation Section 2550.404c-1 as an "ERISA
section 404(c) plan" (as defined in such
Regulation).
<PAGE>
IN WITNESS WHEREOF, this Amendment No. 2 to the Associates
Savings and Profit-Sharing Plan is hereby executed as of the
15th day of July, 1996.
ASSOCIATES SAVINGS AND PROFIT-SHARING PLAN COMMITTEE
<PAGE>
Exhibit No. 4(b)
Amended and Restated
Trust Agreement Between
Associates First Capital Corporation
And
Fidelity Management Trust Company
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
TRUST
Dated as of December 1, 1989
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Section Page
<C> <C> <C>
1 Trust 2
2 Exclusive Benefit and Reversion of AFCC Contributions 2
3 Disbursements 3
4 Investment of Trust 4
5 Record keeping to be Performed 17
6 Compensation and Expenses 19
7 Directions and Indemnification 19
8 Resignation or Removal of Trustee 21
9 Successor Trustee 21
10 Termination 22
11 Resignation, Removal, and Termination Notices 22
12 Duration 23
13 Amendment or Modification 23
14 General 23
15 Governing Law 25
</TABLE>
Schedules
- ----------
A. Recordkeeping Services
B. Fee Schedule
C. Investment Options
D. Administrator's Authorization Letter
E. Committee's Authorization Letter
F. Opinion of Counsel
G. Existing GICs
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of the 1st day of
December, 1989, between Associates First Capital Corporation, a Delaware
corporation ("AFCC") and FIDELITY MANAGEMENT TRUST COMPANY, a Massachusetts
trust company, having an office at 82 Devonshire Street, Boston,
Massachusetts 02109 (the "Trustee").
WITNESSETH:
WHEREAS, AFCC is the sponsor of the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, AFCC wishes to establish a trust to hold and invest plan
assets under the Plan for the exclusive benefit of participants in the Plan
and their beneficiaries; and
WHEREAS, the Committee of the Plan (the "Committee") is the named
fiduciary of the Plan (within the meaning of Section 402(a) of the Employee
Retirement Income Security Act of 1974! as amended ("ERISA")); and
WHEREAS, Associates Corporation of North America (A Texas Corporation)
(the "Administrator") is the administrator of the Plan (within the meaning
of Section 3(16)(A) of ERISA); and
WHEREAS, the Trustee is willing to hold and invest the aforesaid Plan
assets in trust among several investment options approved by the Committee;
and
WHEREAS, AFCC wishes to have the Trustee perform certain ministerial
recordkeeping functions under the Plan; and
WHEREAS, the Trustee is willing to perform recordkeeping services for
the Plan if the services are purely ministerial in nature and are provided
within a framework of policies,
<PAGE>
interpretations, rules, practices, and procedures conveyed in writing to the
Trustee by the Administrator.
WHEREAS, AFCC and Fidelity Management Trust Company entered into a
Trust Agreement as of December 1, 1989 and the parties wish to amend and
restate the Trust Agreement as of December 1, 1989; and
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements set forth below, AFCC and the Trustee agree as
follows:
Section 1. Trust. AFCC hereby establishes the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan Trust (the "Trust"),
with the Trustee. The Trust shall consist of an initial contribution of
money and other property acceptable to the Trustee (the transferred
investments referred to in Section 4(c)) made by AFCC or transferred from a
previous trustee under the Plan or a predecessor plan, such additional sums
of money as shall from time to time be delivered to the Trustee under the
Plan, all investments made therewith and proceeds thereof, and all earnings
and profits thereon, less the payments that are made by the Trustee as
provided herein, without distinction between principal and income. The
Trustee hereby accepts the Trust on the terms and conditions set forth in
this Agreement. In accepting this Trust, the Trustee shall be accountable
for the assets received by it, subject to the terms and conditions of this
Agreement.
Section 2. Exclusive Benefit and Reversion of AFCC Contributions.
(a) Except as provided in paragraphs (b), (c) and (d) of this Section,
no part of the Trust may be used for, or diverted to, purposes other than
the exclusive benefit of the participants in the
<PAGE>
Plan ("Participants") or their beneficiaries prior to the satisfaction of
all liabilities with respect to the Participants and their beneficiaries.
(b) In the case of contributions made by AFCC prior to the receipt of an
initial favorable determination letter from the Internal Revenue Service
with respect to the Plan, AFCC may direct the Trustee to return to AFCC
those contributions and all earnings thereon within one year after the
Internal Revenue Service refuses in writing to issue such a letter.
(c) In the case of any portion of a contribution made by AFCC by a
mistake of fact, AFCC may direct the Trustee to return to AFCC that portion
of the contribution within one year after the payment of that portion of the
contribution.
(d) In the case of any portion of a contribution made by AFCC and
disallowed by the Internal Revenue Service as a deduction under Section 404
of the Internal Revenue Code of 1986, AFCC may direct the Trustee to return
to AFCC that portion of the contribution within one year after the Internal
Revenue Service disallows the deduction in writing.
(e) Earnings attributable to the contributions returnable under
paragraph (c) or (d) shall not be returned to AFCC, and any losses
attributable to those contributions shall reduce the amount returned.
Section 3. Disbursements.
(a) The Trustee shall make disbursements in the amounts and in the
manner that the Administrator directs from time to time in writing.
Disbursements shall be made within ten (10) business days of receipt from
the Administrator of such direction. The Trustee shall have no
responsibility to ascertain any direction's compliance
<PAGE>
with the terms of the Plan or of any applicable law or the direction's
effect for tax purposes or otherwise, except for the amount of the
disbursement and the accuracy of the account balance.
(b) The Trustee shall not be required to make any cash disbursement in
excess of the net realizable value of the assets of the Trust at the time of
said disbursement. The Trustee shall not be required to make any
disbursement until it has received a written direction from the
Administrator. As to a cash distribution, the written direction shall
specify the assets to be converted to cash for the purpose of making such
disbursement.
Section 4. Investment of Trust.
(a) The Trustee shall have no responsibility for the selection of
investment options under the Trust and shall not render investment advice to
any person in connection with the selection of such options.
(b) The Committee shall, from time to time, direct the Trustee as to
what investment options shall be available for Participants to invest in,
subject to the following limitations. Except as provided in Subsection (c)
below, the Committee may determine to offer as investment options only (i)
securities issued by the investment companies advised by Fidelity Management
& Research Company, (ii) notes evidencing loans to Participants in
accordance with the terms of the Plan, and (iii) collective investment funds
maintained by the Trustee for qualified plans; provided, however, that the
Trustee shall be considered a fiduciary with investment discretion only with
respect to Plan assets that are invested in collective investment funds
maintained by the Trustee for qualified plans.
<PAGE>
(c) In addition to the investment options designated in Subsection (b)
above, the Committee hereby directs the Trustee to maintain and administer
until fully liquidated (i) guaranteed investment contracts resulting from a
transfer of assets from a predecessor trustee or investment manager, which
contracts are transferred to or issued in the name of the Trustee and are
specifically identified on Schedule "G" attached hereto ("Existing GIC's")
and (ii) equity securities ("Paramount Stock") of Paramount Communications
Inc. ("Paramount") which are publicly traded and which are transferred from
the Paramount Savings Plan to the Trustee. Each Participant's allocable
share of these transferred investments ("Transferred Investments") shall
initially be determined by such Participant's allocable share under the
Paramount Savings Plan immediately prior to the transfer of the Existing
GIC's and Paramount Stock to the Trustee. No Participant shall be permitted
to place additional monies in the Transferred Investments under the Plan.
Proceeds resulting from the sale, redemption or maturity of the Transferred
Investments (including proceeds received in a tender offer) shall be
allocated to the accounts of the applicable Participants and invested in
other investment options in accordance with each Participant's last
effective election. These Transferred Investments shall be subject to the
following:
(i) The Existing GIC's shall be held by the Trustee subject to the
direction of the Committee, it being expressly understood that such
direction is given in accordance with Section 403(a) of ERISA.
(ii) Participants shall be permitted to direct the Trustee to sell
Paramount Stock allocated to such Participant's
<PAGE>
account on a weekly basis by use of the telephone exchange system referred
to in (d) below. Directions to sell shall be cumulated on a weekly basis so
that directions received after 4:00 P.M. Boston, Massachusetts time each
Thursday and before 4:00 P.M. Boston, Massachusetts time the following
Thursday shall be executed on the immediately following Friday, provided
that if such Friday is not a business day, then on the next succeeding
business day; provided further, that no more than 75,000 shares of Paramount
Stock shall be sold on any one business day, that any excess shares of
Paramount Stock shall be sold on the next succeeding consecutive business
day(s) and that each Participant selling shares in a given week shall
receive the average price for Paramount Stock for the total shares for which
directions to sell were given during such week; provided further, that any
shares of Paramount Stock remaining after a period of time established by
AFCC, shall be sold on the next business day(s), subject to the 75,000
shares per day maximum. Participants terminating between October 31, 1989
and March 31, 1990 and individuals terminating prior to October 31, 1989 who
have account balances, shall have the Paramount Stock allocable to their
accounts, if any, distributed in kind pursuant to written direction from the
Administrator.
(d) Each Participant, as provided in the Plan, shall direct the Trustee
in which investment option(s) to invest the amounts in the Participant's
individual accounts. If agreed to by AFCC and the Trustee, such directions
may be made by Participants by use of the telephone exchange system
maintained for such purpose by the Trustee or its agent. Any direction made
by a Participant using the telephone exchange system under this Section 4(d)
or under
<PAGE>
Section 4(c) shall be treated as a proper direction made in writing for
purposes of Section 7 hereafter on which the Trustee may be entitled to rely
if the Trustee follows its standard procedures for confirming the identity
of the parties and the transactions to be executed. Such investments (or
exchanges among investment options) shall be made on the same business day
that the Trustee receives a proper direction and monies if received before
4:00 P.M. Boston, Massachusetts time; if received after 4:00 P.M. Boston,
Massachusetts time, the investments shall be made the following business
day. In the event that the Trustee fails to receive a proper direction, the
assets shall be invested in the securities of Fidelity Retirement Money
Market Portfolio until the Trustee receives a proper direction. In addition,
contributions the Trustee receives from AFCC on other than a valuation date
shall be invested in the securities of that investment company until the
following valuation date. For purposes of this Section 4(d), "valuation
date" shall mean any date on which the securities and financial markets are
open. Any assets allocable to Participants accounts hereunder received from
a predecessor trustee (and, if applicable, proceeds from the sale,
redemption or liquidation of Transferred Investments, including payment
received pursuant to a tender offer) shall be invested in the securities of
Fidelity Retirement Money Market Portfolio until a full reconciliation of
all assets allocable to Participant accounts has been made, at which time
such assets shall then be invested in other investment options in accordance
with the applicable Participant's last effective election.
(e) Trust investments in Paramount Stock shall be subject to the
following limitations:
<PAGE>
(i) Acquisition Limit. Pursuant to the Plan, the Trust may remain
invested in Paramount Stock to the extent necessary to comply with
investment directions under Section 4(c) of this Agreement.
(ii) Committee Duty. The Committee shall continually monitor the
suitability under the fiduciary duty rules of Section 404(a)(1) of ERISA (as
modified by Section 404(a)(2) of ERISA) of acquiring and holding Paramount
Stock. The Trustee shall not be liable for any loss, or by reason of any
breach, which arises from the directions of the Committee with respect to
the acquisition and holding of Paramount Stock, unless it is clear on the
direction's face that the actions to be taken under those directions would
be prohibited by the foregoing fiduciary duty rules or would be contrary to
the terms of the Plan or this Agreement.
(iii) (A) Execution and Purchases and Sales. The Trustee shall
sell Paramount Stock on the open market to effect sales directed by
Participants in accordance with Section 4(c)(iii). If the market is closed
on the day sales of Paramount Stock are otherwise to occur, such sales shall
be made on the next following day that the market is open. Such general
rules shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number of
shares required to be sold on such day; or
(2) If the Trustee is unable to sell the total number of
shares required to be sold on such day as a result of market conditions; or
(3) If the number of shares to be sold on such day exceeds
one-third (1/3) of the average number of shares sold
<PAGE>
during the nine (9) preceding business days as determined by reference to
the Bridge Trading Systems; or
(4) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other regulatory
body from selling any or all of the shares required to be sold on such day.
In the event of the occurrence of the circumstances described in (1),
(2) or (4) above, the Trustee shall sell such shares as soon as possible
thereafter and shall determine the price of such sales to be the average
sales price of all such shares sold, respectively. In the event of the
occurrence of the circumstances described in (3) above, the Trustee shall
advise the Committee of such occurrence and shall request the Committee to
further direct the Trustee as to the procedures to be followed in making the
required sales.
(B) Securities Law Reports. The Committee shall be responsible for
filing all reports required under Federal or state securities laws with
respect to the Trust's ownership of Paramount Stock, including, without
limitation, any reports required under Section 13 or 16 of the Securities
Exchange Act of 1934, and shall immediately notify the Trustee in writing of
any requirement to stop sales of Paramount Stock pending the filing of any
report. The Trustee shall provide to the Committee such information on the
Trust's ownership of Paramount Stock as the Committee may reasonably request
in order to comply with Federal or state securities laws.
(iv) Voting and Tender Offers. Notwithstanding any other provision of
this Agreement the provisions of this Section 4(d)(iv) shall govern the
voting and tendering of Paramount Stock.
<PAGE>
(A) Voting.
(1) The Administrator shall use its best efforts to (i) procure
and provide to the Trustee final proxy solicitation materials sent by the
issuer of Paramount Stock, as soon as the same is available to AFCC and (ii)
at the time of mailing of notice of each annual or special stockholders'
meeting of the issuer of the Paramount Stock, cause a copy of the notice and
all proxy solicitation materials to be sent to each Plan Participant,
together with a voting instruction form prepared by the Trustee to be
returned to the Trustee or its designee. The form prepared by the Trustee
shall show the Participant's name, the number of full and fractional shares
of Paramount Stock credited to the Participant's accounts and other relevant
information needed by the Trustee to identify the Participant and shall be
provided to the Administrator in such time to allow the Administrator to
meet its obligations hereunder. For purposes of this Section 4(e)(iv), the
number of shares of Paramount Stock deemed "credited" to the Participant's
accounts shall be determined as of the last preceding valuation date for
which an allocation has been completed and Paramount Stock has actually been
credited to Participants' accounts. The Administrator shall provide the
Trustee with a copy of any materials provided to the Participants and shall
certify to the Trustee that the materials have been mailed or otherwise sent
to Participants.
(2) Each Participant shall have the right to direct the
Trustee as to the manner in which the Trustee is to vote that number of
shares of Paramount Stock credited to the Participant's accounts. Directions
from a Participant to the
<PAGE>
Trustee concerning the voting of Paramount Stock shall be communicated in
writing, or by Datagram or similar means; these directions shall be held in
confidence by the Trustee and shall not be divulged to the Administrator or
any officer or employee thereof, or any other person. Upon its receipt of
the directions, the Trustee shall vote the shares of Paramount Stock as
directed by the Participant. The Trustee shall not vote shares of Paramount
Stock credited to a Participant's accounts for which it has received no
directions from the Participant.
(3) The Trustee shall vote that number of shares of
Paramount Stock not credited to Participants' accounts which is determined
by multiplying the total number of shares not credited toe Participants'
accounts by a fraction, the numerator of which is the number of shares of
Paramount Stock credited to Participants' accounts for which the Trustee
received voting directions from Participants and the denominator of which is
the total number of shares of Paramount Stock credited to Participants'
accounts. The Trustee shall vote those shares of Paramount Stock not
credited to Participants' accounts which are to be voted by the Trustee
pursuant to the foregoing formula in the same proportion on each issue as it
votes those shares credited to Participants' accounts for which it received
voting directions from Participants. The Trustee shall not vote the
remaining shares of Paramount Stock not credited to Participants' accounts.
(B) Tender Offers.
(1) Upon becoming aware of a tender offer for any securities
held in the Trust that are Paramount Stock, the Administrator shall utilize
its best efforts to distribute or cause
<PAGE>
to be distributed to the Participant the same information that is
distributed to shareholders of the issuer of Paramount Stock in connection
with the tender offer, and, after consulting with the Trustee, shall provide
and pay for a means by which the Participant may direct the Trustee whether
or not to tender the Paramount Stock credited to the Participant's accounts.
The Administrator shall provide the Trustee with a copy of any material
provided to the Participants and shall certify to the Trustee that the
materials have been mailed or otherwise sent to Participants.
(2) Each Participant shall have the right to direct the
Trustee to tender or not to tender some or all of the shares of Paramount
Stock credited to the Participant's accounts. Directions from a Participant
to the Trustee concerning the tender of Paramount Stock shall be
communicated in writing, or by Datagram or such similar means as is agreed
upon by the Trustee and AFCC under the preceding paragraph. The Trustee
shall tender or not tender shares of Paramount Stock as directed by the
Participant. The Trustee shall not tender shares of Paramount Stock credited
to a Participant's accounts unless it has received directions from the
Participant.
(3) The Trustee shall tender that number of shares of
Paramount Stock not credited to Participants' accounts which is determined
by multiplying the total number of shares of Paramount Stock not credited to
Participants' accounts by a fraction, the numerator of which is the number
of shares of Paramount Stock credited to Participants' accounts for which
the Trustee has received directions from Participants to tender (which
directions have not been withdrawn as of the date of this
<PAGE>
determination) and of which the denominator is the total number of shares of
Paramount Stock credited to Participants' accounts.
(4) A Participant who has directed the Trustee to tender
some or all of the shares of Paramount Stock credited to the Participant's
accounts may, at any time prior to the tender offer withdrawal date, direct
the Trustee to withdraw some or all of the tendered shares, and the Trustee
shall withdraw the directed number of shares from the tender officer prior
to the tender offer withdrawal deadline. Prior to the withdrawal deadline,
if any shares of Paramount Stock not credited to Participants' accounts have
been tendered, the Trustee shall redetermine the number of shares of
Paramount Stock that would be tendered under Section 4(d)(iv)(B)(3) if the
date of the foregoing withdrawal were the date of determination, and
withdraw from the tender offer the number of shares of Paramount Stock not
credited to Participants' accounts necessary to reduce the amount of
tendered Paramount Stock not credited to Participants' accounts to the
amount so redetermined. A Participant shall not be limited as to the number
of directions to tender or withdraw that the Participant may give to the
Trustee.
(5) A direction by a Participant to the Trustee to tender shares of
Paramount Stock credited to the Participant's accounts shall not be
considered a written election under the Plan by the Participant to withdraw,
or have distributed, any or all of his withdrawable shares. The Trustee
shall credit to each account of the Participant from which the tendered
shares were taken the proceeds received by the Trustee in exchange for the
shares of Paramount Stock tendered from that account.
<PAGE>
(v) Shares Credited. For all purposes of this Section 4, the
number of shares of Paramount Stock deemed "credited" to a Participant's
accounts shall be determined as of the last preceding valuation date for
which an allocation has been completed and Paramount Stock has actually been
credited to Participants' accounts.
(vi) General. With respect to all rights relating to ownership
of a share of Paramount Stock other than the right to vote, the right to
tender, and the right to withdraw shares previously tendered, in the case of
Paramount Stock credited to a Participant's accounts, the Trustee shall
follow the directions of the Participant and if no such directions are
received, the directions of the Committee. The Trustee shall have no duty to
solicit directions from Participants. With respect to all rights other than
the right to vote and the right to tender, in the case of Paramount Stock
not credited to Participants' accounts, the Trustee shall follow the
directions of the Committee.
(vii) Conversion. All provisions in this Section 4 shall also
apply to any securities received as a result of a conversion of Paramount
Stock.
(f) At the time of mailing of notice of each annual or special
stockholders' meeting of any investment company, the Trustee shall send a
copy of the notice and all proxy solicitation materials to each Participant
who has shares of the investment company credited to the Participant's
accounts, together with a voting direction form for return to the Trustee or
its designee. The Participant shall have the right to direct the Trustee as
to the manner in which the Trustee is to vote the shares credited to the
<PAGE>
Participant's accounts (both vested and unvested). The Trustee shall vote
the shares as directed by the Participant. The Trustee shall not vote shares
for which it has received no directions from the Participant. With respect
to all rights other than the right to vote, the Trustee shall follow the
directions of the Participant. The Trustee shall have no duty to solicit
directions from Participants.
(g) (i) The Trustee shall not be liable for any loss or breach
which arises from any Participant's exercise or non-exercise of rights under
this Section 4 over the assets in the Participant's accounts.
(ii) The Trustee shall not be liable for any loss or breach
which arises from the Committee's exercise or non-exercise of rights under
this Section 4, unless it was clear on the direction's face that the actions
to be taken under the Committee's direction were prohibited by the fiduciary
duty rules of Section 404(a) ERISA or were contrary to the terms of the Plan
or this Agreement.
(h) The Trustee shall have the following powers and authority:
(i) Subject to paragraphs (b), (c) and (d) of this Section 4, to
sell, exchange, convey, transfer, or otherwise dispose of any property held
in the Trust, by private contract or at public auction. No person dealing
with the Trustee shall be bound to see to the application of the purchase
money or other property delivered to the Trustee or to inquire into the
validity, expediency, or propriety of any such sale or other disposition.
(ii) Subject to paragraphs (b), (c) and (d), to invest in
guaranteed investment contracts and short term investments
<PAGE>
(including interest bearing accounts with the Trustee or money market mutual
funds advised by affiliates of the Trustee) and-in collective investment
funds maintained by the Trustee for qualified plans in which case the
provisions of each collective investment fund in which the Trust is invested
shall be deemed adopted by AFCC and the provisions thereof incorporated as
part of this Trust as long as the fund remains exempt from taxation under
Section 401(a) and 501(a) of the Internal Revenue Code of 1986, as amended.
(iii) To cause any securities or other property held as part of
the Trust to be registered in the Trustee's own name, in the name of one or
more of its nominees, or in the Trustee's account with the Depository Trust
Company of New York and to hold any investments in bearer form, but the
books and records of the Trustee shall at all times show that all such
investments are part of the Trust.
(iv) To keep that portion of the Trust in cash or cash balances
as the Committee or Administrator may, from time to time, deem to be in the
best interest of the Trust.
(v) To make, execute, acknowledge, and deliver any and all
documents of transfer or conveyance and to carry out the powers herein
granted.
(vi) To settle, compromise, or submit to arbitration any claims,
debts, or damages due to or arising from the Trust; to commence or defend
suits or legal or administrative proceedings; to represent the Trust in all
suits or legal or administrative hearings; and to pay all reasonable
expenses arising from any such action, from the Trust if not paid by AFCC.
<PAGE>
(vii) To employ legal, accounting, clerical, and other
assistance as may be required in carrying out the provisions of this
Agreement and to pay their reasonable expenses and compensation from the
Trust if not paid by AFCC.
(viii) To do all other acts although not
specifically mentioned herein, as the Trustee may deem necessary to carry
out any of the foregoing powers and the purposes of the Trust.
Section 5. Recordkeeping to be performed.
(a) The Trustee shall perform only the recordkeeping services set
forth on Schedule "A" attached hereto and made a part hereof, as amended
from time to time, and only within a framework of policies, interpretations,
rules, practices, and procedures that the Administrator shall provide in
writing to the Trustee.
(b) The Trustee shall keep accurate accounts of all investments,
receipts, disbursements, and other transactions hereunder and shall report
the value of the assets held in the Trust as of the last day of each fiscal
quarter of the Plan and, if not on the last day of a fiscal quarter, the
date on which the Trustee resigns or is removed as provided in Section 9 of
this Agreement or is terminated as provided in Section 10 (the "Reporting
Date"). Within thirty (30) days following each Reporting Date or within
sixty (60) days in the case of a Reporting Date caused by the resignation or
removal of the Trustee, or the termination of this Agreement, the Trustee
shall file with the Administrator a written account setting forth all
investments, receipts, disbursements, and other transactions effected by the
Trustee between the Reporting Date and the prior Reporting Date, and setting
forth the value of the Trust as of the Reporting Date.
<PAGE>
Except as otherwise required under ERISA, upon the expiration of six (6)
months from the date of filing such account with the Administrator, the
Trustee shall have no liability or further accountability to anyone with
respect to the propriety of its acts or transactions shown in such account,
except with respect to such acts or transactions as to which AFCC shall
within such six (6) month period file with the Trustee written objections.
(c) All records generated by the Trustee in accordance with
paragraphs (a) and (b) shall be open to inspection and audit, during the
Trustee's regular business hours prior to the termination of this Agreement,
by the Administrator or any person designated by the Administrator. Upon the
resignation or removal of the Trustee or the termination of this Agreement,
the Trustee shall provide to the Administrator, at no expense to AFCC, in
the format regularly provided to the Administrator, a statement of each
Participant's accounts as of the resignation, removal, or termination, and
the Trustee shall provide to the Administrator or the Plan's new
recordkeeper such further records as are reasonable, at AFCC's expense.
(d) Any failure of the Trustee to provide the recordkeeping services
set forth in this Section 5 shall be excused to the extent caused by AFCC's
failure to deliver to the Trustee a copy of any amendment to the Plan as
soon as administratively feasible following the amendment's adoption, with
an opinion of counsel substantially in the form of Schedule "F", or on the
Administrator failing to provide the Trustee on a timely basis with all the
information the Administrator deems necessary for the Trustee to
<PAGE>
perform the recordkeeping services and such other information as the Trustee
may reasonably request.
(e) The Administrator shall be responsible for the preparation and
filing of all returns, reports, and information required of the Trust or
Plan by law. The Trustee shall provide the Administrator with such
information as the Administrator may reasonably request to make these
filings. The Administrator shall also be responsible for making any
disclosures to Participants required by law including, without limitation,
such disclosures as may be required under federal or state truth-in-lending
laws with regard to Participant loans.
Section 6. Compensation and Expenses. Within thirty (30) days of
receipt of the Trustee's quarterly bill, which shall be computed in
accordance with Schedule "B" attached hereto and made a part hereof, as
amended from time to time, AFCC shall send to the Trustee a payment in such
amount unless contesting such amount in good faith. All expenses of the
Trustee relating directly to the acquisition and disposition of investments
constituting part of the Trust, and all taxes of any kind whatsoever that
may be levied or assessed under existing or future laws upon or in respect
of the Trust or the income thereof, shall be a charge against and paid from
the appropriate Plan Participants' accounts.
Section 7. Directions and Indemnification.
(a) The Trustee shall be fully protected in relying on the fact that
the Committee and the Administrator under the Plan are the individuals or
persons named as such above or such other individuals or persons as AFCC may
notify the Trustee in writing.
<PAGE>
(b) Except as provided by ERISA, whenever the Administrator provides
a direction-to the Trustee, the Trustee shall not be liable for any loss or
breach arising from the direction if the direction is contained in a writing
(or is oral and immediately confirmed in a writing) signed by any individual
whose name and signature have been submitted (and not withdrawn) in writing
to the Trustee by the Administrator (see Schedule "D"), provided the Trustee
reasonably believes the signature of the individual to be genuine. The
Trustee shall have no responsibility to ascertain any direction's (i)
accuracy, (ii) compliance with the terms of the Plan or any applicable law,
or (iii) effect for tax purposes or otherwise.
(c) Whenever the Committee or AFCC provides a direction to the
Trustee, the Trustee shall not be liable for any loss or breach arising from
the direction (i) if the direction is contained in a writing (or is oral and
immediately confirmed in a writing) signed by any individual whose name and
signature have been submitted (and not withdrawn) in writing to the Trustee
by the Committee (see Schedule "E") and (ii) if the Trustee reasonably
believes the signature of the individual to be genuine, unless it is clear
on the direction's face that the actions to be taken under the direction
would be prohibited by the fiduciary duty rules of Section 404(a) of ERISA
or would be contrary to the terms of the Plan or this Agreement.
(d) In any other case, the Trustee shall not be liable for any loss
or breach arising from any act or omission of another fiduciary under the
Plan except as provided in Section 405(a) of ERISA.
<PAGE>
(e) AFCC shall indemnify the Trustee against, and hold the Trustee
harmless from, any and all loss, damage, penalty, liability, cost, and
expense, including without limitation, reasonable attorneys' fees and
disbursements, that may be incurred by, imposed upon, or asserted against
the Trustee by reason of any claim, regulatory proceeding, or litigation
arising from any act done or omitted to be done by any individual or person
with respect to the Plan or Trust, excepting only any and all loss, etc.,
arising solely from the Trustee's negligence or bad faith.
(f) The provisions of this Section 7 shall survive the termination of
this Agreement.
Section 8. Resignation or Removal of Trustee.
(a) The Trustee may resign at any time upon sixty (60) days' notice
in writing to AFCC, unless a shorter period of notice is agreed upon by
AFCC.
(b) AFCC may remove the Trustee at any time upon sixty (60) days'
notice in writing to the Trustee, unless a shorter period of notice is
agreed upon by the Trustee.
Section 9. Successor Trustee.
(a) If the office of Trustee becomes vacant for any reason, AFCC may
in writing appoint a successor trustee under this Agreement. The successor
trustee shall have all of the rights, powers, privileges, obligations,
duties, liabilities, and immunities granted to the Trustee under this
Agreement. The successor trustee and predecessor trustee shall not be liable
for the acts or omissions of the other with respect to the Trust.
(b) When the successor trustee accepts its appointment under this
Agreement, title to and possession of the Trust assets shall
<PAGE>
immediately vest in the successor trustee without any further action on the
part of the predecessor trustee. The predecessor trustee shall execute all
instruments and do all acts that reasonably may be necessary or reasonably
may be requested in writing by AFCC or the successor trustee to vest title
to all Trust assets in the successor trustee or to deliver all Trust assets
to the successor trustee.
(c) Any successor of the Trustee or successor trustee, through sale
or transfer of the business or trust department of the Trustee or successor
trustee, or through reorganization, consolidation, or merger, or any similar
transaction, shall upon consummation of the transaction, become the
successor trustee under this Agreement.
Section 10. Termination. This Agreement may be terminated at any time
by AFCC upon sixty (60) days' notice in writing to the Trustee. On the date
of the termination of this Agreement, the Trustee shall forthwith transfer
and deliver to such individual or entity as AFCC shall designate, all cash
and assets then constituting the Trust. If, by the termination date, AFCC
has not notified the Trustee in writing as to whom the assets and cash are
to be transferred and delivered, the Trustee may bring an appropriate action
or proceeding for leave to deposit the assets and cash in a court of
competent jurisdiction. The Trustee shall be reimbursed by AFCC for all
costs and expenses of the action or proceeding including, without
limitation, reasonable attorneys' fees and disbursements.
Section 11. Resignation. Removal and Termination Notices. All notices
of resignation, removal, or termination under this Agreement must be in
writing and mailed to the party to which the
<PAGE>
notice is being given by certified or registered mail, return receipt
requested, to AFCC c/o Plan Administrator, Benefits Department, Associates
Corporation of North America, (A Texas Corporation), 250 Carpenter Freeway,
Irving, Texas 75062, and to the Trustee c/o John M. Kimpel, Fidelity
Investments, 82 Devonshire Street, Boston, Massachusetts 02109, or to such
other addresses as the parties have notified each other of in the foregoing
manner.
Section 12. Duration. This Trust shall continue in effect without
limit as to time, subject, however, to the provisions of this Agreement
relating to amendment, modification, and termination thereof.
Section 13. Amendment or Modification. Subject to the provisions of
Section 2, this Agreement may be amended or modified at any time and from
time to time only by an instrument executed by both AFCC and the Trustee. In
addition, the Plan may not be amended in any way that might affect the
Trustee's responsibilities hereunder without first obtaining the written
consent of the Trustee. The Trustee shall not unreasonably withhold its
consent to any amendment or modification of this Agreement or the Plan
required to obtain or maintain the Trust's qualified status under Section
401(a) of the Internal Revenue Code of 1986. Notwithstanding the foregoing,
to reflect increased operating costs the Trustee may once each calendar year
amend Schedule "B" to increase the fees without AFCC's consent upon one
hundred eighty (180) days written notice to AFCC.
Section 14. General.
(a) Employment of Affiliates as Agents for Trustee. The AFCC
acknowledges and authorizes that the Trustee may employ its
<PAGE>
affiliates to act as its agent in the performance of its responsibilities
under this Agreement. In particular, AFCC specifically acknowledges and
authorizes that the Trustee may employ Fidelity Investments Institutional
Operations Company or its successor to perform recordkeeping functions under
this Agreement. The expenses and compensation of any such agent shall be
paid by the Trustee out of its fees described in Schedule "B" attached
hereto.
(b) Entire Agreement. This Agreement contains all of the terms agreed
upon between the parties with respect to the subject matter hereof.
(c) Waiver. No waiver by either party of any failure or refusal to
comply with an obligation hereunder shall be deemed a waiver of any other
subsequent failure or refusal to so comply.
(d) Successors and Assigns. The stipulations in this Agreement shall
inure to the benefit of, and shall bind, the successors and assigns of the
respective parties.
(e) Partial Invalidity. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) Section Headings. The headings of the various sections and
subsections of this Agreement have been inserted only for the purposes of
convenience and are not part of this Agreement and
<PAGE>
shall not be deemed in any manner to modify, explain, expand or restrict any
of the provisions of this Agreement.
Section 15. Governing Law.
(a) This Agreement is being made in the Commonwealth of
Massachusetts, and the Trust shall be administered as a Massachusetts trust.
The validity, construction, effect, and administration of this Agreement
shall be governed by and interpreted in accordance with the laws of the
Commonwealth of Massachusetts, except to the extent those laws are
superseded under Section 514 of ERISA.
(b) The Trustee is not a party to the Plan, and in the event of any
conflict between the provisions of the Plan and the provisions of this
Agreement, the provisions of this Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the day and year first
above written.
ASSOCIATES FIRST CAPITAL
CORPORATION
FIDELITY MANAGEMENT TRUST
COMPANY
<PAGE>
Schedule "A"
RECORDKEEPING SERVICES
Administration
* Establishment and maintenance of Participant account and election
percentages.
* Maintenance of six plan investment options:
- Fidelity Magellan Fund - Existing GIC's
- Fidelity Puritan Fund - Paramount Stock
- Fidelity Intermediate Bond Fund
- Fidelity Retirement Money Market Portfolio
* Maintenance of nine money classifications:
- Employee Before Tax - PST Before Tax
- Employee After Tax - PST After Tax
- Rollover - SPST
- Company Match - Prior
- Company Profit Sharing
* Processing of mutual fund trades.
. The Trustee will provide only the recordkeeping services set forth on this
Schedule "A" and any others agreed to in writing by the parties.
Processing
- ----------
* Weekly processing of contribution data.
* As received processing of transfers and changes of future allocations via
telephone exchange.
* As received processing of withdrawals.
Other
- -----
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* 1099Rs and W-2Ps
* Participant Loans
* Performance of Section 401(k) limitation testing upon request. In order to
provide this service, the client shall be required to provide the
information identified in the Fidelity Discrimination
Testing Package Guidelines.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST
CORPORATION COMPANY
<PAGE>
Schedule "B"
FEE SCHEDULE
Recordkeeping Fees
+ Annual Participant Fee $12.00 per Participant (other than
(See below) terminated Participants covered
below), subject to a $7,500.00
annual minimum fee, billed and
payable quarterly.*
+ Terminated Participants whose $6.00 per Participant billed and
accounts are distributed, but payable quarterly and imposed pro
who must remain on file rata for each calendar quarter, or
through calendar year-end any part thereof that it remains
for 1099R reporting. necessary to keep a Participant's
account as a part of the Plan's
records.
+ Additional Fee for Paramount $2.00 per Participant for 1990,
Stock subject to proration based on the
amount of Paramount Stock sold or
distributed before July 1, 1990.
Thereafter, the parties will
renegotiate this fee for
successive six month periods
prior to the beginning of each
such period.
+ One-Time Implementation Fee $2.50 per Participant subject to
a $2,500 minimum fee.
+ Participant Loans $10.00 set-up fee for each loan
and a $15.00 annual maintenance
fee for each loan.
+ Other Fees: extraordinary expenses resulting from large numbers of
simultaneous manual transactions or from errors not caused by Fidelity.
* This fee will be imposed pro rata for each calendar quarter, or any part
thereof, that it remains necessary to keep a Participant's account(s) as
part of the Plan's records, e.g. vested, deferred, forfeiture and top-heavy.
Trustee Fees
+ Annual fee equal to 0.2% of the assets based on the last quarterly
valuation, subject to a $5,000 maximum fee, billed and payable quarterly.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST
CORPORATION COMPANY
<PAGE>
INVESTMENT OPTIONS
In accordance with Section 4(b), the Named Fiduciary hereby directs the
Trustee that participants' individual accounts may be invested in the
following investment options:
- - Retirement Money Market Portfolio
- - Intermediate Bond Fund
- - Puritan Fund
- - Magellan Fund
The mutual fund advised by Fidelity Management & Research Company referred
to in Section 4(c) shall be Retirement Money Market Portfolio.
Associates First Capital Corporation
By: /s/Alan B. Lerner 7/11/91
----------------- -------
Alan B. Lerner Date
<PAGE>
ASSOCIATES CORPORATION OF NORTH AMERICA
(A TEXAS CORPORATION)
July 10, 1991
Mr. Peter Smail
Fidelity Investments Institutional Operations Company
82 Devonshire Street
Boston, Massachusetts 02109
Associates Retirement Savings and Profit Sharing Plan
-----------------------------------------------------
Dear Mr. Smail:
This letter is sent to you in accordance with Section 7(b) of the amended
and restated Trust Agreement, dated as of December 1, 1989, between
Associates First Capital Corporation and Fidelity Management Trust Company.
I hereby designate James B. Watts and Harry W. Reynolds, Jr., as the
individuals who may provide directions upon which Fidelity Management Trust
Company shall be fully protected in relying. Only one such individual need
provide any direction. The signature of each designated individual is set
forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until I deliver to you written notice of the termination of the
authority of a designated individual.
Very truly yours,
Associates Corporation of North America (A Texas Corporation)
Retirement Savings and Profit Sharing Committee
By:/s/Alan B. Lerner
-----------------
Alan B. Lerner
/s/James B. Watts /s/ Harry W. Reynolds
- ------------------ ---------------------
James B. Watts Harry W. Reynolds
<PAGE>
ASSOCIATES FIRST CAPITAL CORPORATION
July 10, 1991
Mr. Peter Smail
Fidelity Investments Institutional Operations Company
82 Devonshire Street
Boston, Massachusetts 02109
Associates Retirement Savings and Profit Sharing Plan
-----------------------------------------------------
Dear Mr. Smail:
This letter is sent to you in accordance with Section 7(c) of the amended
and restated Trust Agreement, dated as of December 1, 1989, between
Associates First Capital Corporation and Fidelity Management Trust Company.
I hereby designate James B. Watts and Harry W. Reynolds, Jr. as the
individuals who may provide directions upon which Fidelity Management Trust
Company shall be fully protected in relying. Only one such individual need
provide any direction. The signature of each designated individual is set
forth below and certified to be such.
You may rely upon each designation and certification set forth in this
letter until the Company delivers to you written notice of the termination
of the authority of a designated individual.
Very truly yours,
Associates First Capital Corporation
By:/s/Alan B. Lerner
-----------------
Alan B. Lerner
/s/James B. Watts /s/ Harry W. Reynolds
- ------------------ ---------------------
James B. Watts Harry W. Reynolds
<PAGE>
ASSOCIATES CORPORATION OF NORTH AMERICA
(A TEXAS CORPORATION)
July 9, 1991
Jacqueline M. White
Fidelity Institutional Retirement
Services Company
82 Devonshire Street - ZR1
Boston, MA 02109
Re: Associates Retirement Savings and Profit Sharing Plan
Dear Ms. White:
In accordance with your request, this letter sets forth my opinion with
respect to the qualified status under section 401(a) of the Internal Revenue
Code of 1986 (including amendments made by the Employee Retirement Income
Security Act of 1974) (the "Code") of the Associates Retirement Savings and
Profit Sharing Plan, as amended to the date of this letter (the "Plan").
The material facts regarding the Plan as we understand them are as follows.
The Plan was adopted by Associates First Capital Corporation (the "Company")
as a successor plan to the Paramount Communications Inc. ("PCI") Savings
Plan. The Plan was adopted in and drafted in form almost identical to the
PCI Plan, which had received a favorable determination letter for the
Internal Revenue Service ("IRS"). The Plan received a transfer of assets
from the PCI Plan which occurred in connection with the sale of the Company
by PCI. Such transfer included shares of PCI common stock.
The Company has informed me that it intends to submit the Plan to the Dallas
District Office, District Director of the Internal Revenue Service and to
request from him a favorable determination letter as to the Plan's qualified
status under section 401(a) of the Code. The Company may have to make some
modifications to the Plan at the request of the Internal Revenue Service in
order to obtain this favorable determination letter, but I do not expect any
of these modifications to be material. The Company has informed me that it
will make these modifications.
Based on the foregoing statements of the Company and my review of the
provisions of the Plan and subject to the matters hereafter stated, it is my
opinion that the Internal Revenue Service should issue a favorable
determination letter as to the qualified status of the Plan, as modified at
the request of the Internal Revenue Service, under section 401(a) of the
Code, subject to the customary condition that continued qualification of the
Plan, as modified, will depend on its effect in operation.
<PAGE>
Jacqueline M. White
July 9, 1991
Page 2
Furthermore, in that the assets are in part invested in common stock issued
by the Company or an affiliate, it is my belief that the Plan is an
"eligible individual account plan" (as defined under Section 407(d)(3) of
ERISA) and that the shares of common stock of the Company held under the
Plan are "qualifying employer securities" (as defined under Section
407(d)(5) of ERISA). Finally, it is my opinion that interests in the Plan
are not required to be registered under the Securities Act of 1933, as
amended.
In rendering this opinion, I have not reviewed any employee census data or
control group data for the Company and other members of the controlled group
of corporations to which the Company belongs, within the meaning of Section
414(b) of the Code and, therefore, I express no opinion on the various
percentage tests which a qualified plan is required to meet under Code
Sections 401(a)(4), 401(k) and 410.
Sincerely,
/s/Thomas E. Dale
-----------------
Thomas E. Dale
<PAGE>
FIRST AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS AMENDMENT, dated as of the first day of February, 1992, by and between
Fidelity Management Trust Company (the "Trustee") and Associates First
Capital Corporation ("AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a trust
agreement dated December 1, 1989, with regard to the Associates First
Capital Corporation Retirement Savings and Profit Sharing Plan (the "Plan");
and
WHEREAS, the Trustee and AFCC now desire to amend said trust
agreement as provided for in Section 13 thereof;
Now therefore, in consideration of the above premises the Trustee and
AFCC hereby amend the trust agreement by:
(1) Amending and restating Section 4(c)(ii) in its entirety to read
as follows:
(ii) Participants shall be permitted to direct the Trustee to
sell Paramount Stock allocated to such Participant's account in accordance
with the Telephone Exchange Guidelines attached hereto as Schedule "H". In
addition, dividend distributions from Paramount Stock shall be invested
according to participant election percentages.
(2) Amending and restating Section 4(d) in its entirety to read as
follows:
(d) Participant Direction. Each Plan participant shall direct
the Trustee in which investment option(s) to invest the assets in the
participant's individual accounts. Such directions may be made by Plan
participants by use of the telephone exchange system maintained for such
purposes by the Trustee or its agent, in accordance with written Telephone
Exchange Guidelines attached hereto as Schedule "H". Any directions made by
a Participant using the telephone exchange system shall be treated as a
direction made in writing by the Committee for purposes of Section 7
hereafter on which the Trustee may be entitled to rely if the Trustee
follows its standard procedures for confirming the identity of the parties
and the transactions to be executed. In the event that the Trustee fails to
receive a proper direction, the assets shall be invested in the securities
of the Mutual Fund set forth for such purpose on Schedule "C", until the
Trustee receives a proper direction.
(3) Amending and restating Section 4(e)(iii)(A) in its entirety to
read as follows:
(iii) Execution of Purchases and Sales. (A) Exchanges and sales
of Paramount Stock shall be made on the open market in accordance with the
Telephone Exchange Guidelines attached hereto as Schedule NH". Such general
rules shall not apply in the following circumstances:
<PAGE>
(a) If the Trustee is unable to determine the number of shares
required to be sold on such day; or
(b) If the Trustee is unable to sell the total number of shares
required to be purchased or sold on such day as a result of market
conditions; or
(c) If the Trustee is prohibited by the Securities and Exchange
Commission, the New York Stock Exchange, or any other regulatory body from
selling any or all of the shares required to be sold on such day.
In the event of the occurrence of the circumstances described in (a),
(b), or (c) above, the Trustee shall sell such shares as soon as possible
thereafter and shall determine the price of such sales to be the average
sales price of all such shares sold, respectively. The Trustee may follow
directions from the Committee to deviate from the above sale procedures
provided that such direction is made in writing by the Committee.
(4) Amending Section 4(e)(iv)(B)(2) by adding the following sentence:
Participant directions regarding tender offers shall be held in confidence
by the Trustee and shall not be divulged to AFCC, or any officer or employee
thereof, or any other person except to the extent that the consequences of
such directions are reflected in reports regularly communicated to any such
persons in the ordinary course of the performance of the Trustee's services
hereunder.
(5) Adding the following two paragraphs at the beginning of Section
4(f) and numbering the existing paragraph accordingly:
(f) Mutual Funds. AFCC hereby acknowledges that it has received
from the Trustee a copy of the prospectus for each Mutual Fund selected by
the Named Fiduciary as a Plan investment option. Trust investments in Mutual
Funds shall be subject to the following limitations:
(i) Execution of Purchases and Sales. Purchases and sales of
Mutual Funds (other than for Exchanges) shall be made on the date on which
the Trustee receives from AFCC in good order all information and
documentation necessary to accurately effect such purchases and sales (or in
the case of a purchase, the subsequent date on which the Trustee has
received a wire transfer of funds necessary to make such purchase).
Exchanges of Mutual Funds shall be made in accordance with the Telephone
Exchange Guidelines attached hereto as Schedule "H".
(6) Inserting the following paragraph 4(g) immediately after
paragraph 4(f) and renumbering subsequent paragraphs accordingly:
(g) Notes. The Administrator shall act as the Trustee's agent for the
purpose of holding all trust investments in participant loan notes and
related documentation and as such shall (i) hold physical custody of and
keep safe the notes and other loan documents, (ii) collect and remit
<PAGE>
all principal and interest payments to the Trustee, (iii) keep the proceeds
of such loans separate from the other assets of the Administrator and
clearly identify such assets as Plan assets, (iv) advise the Trustee of the
date, amount and payee of the checks to be drawn representing loans, and (v)
cancel the notes and other loan documentation when a loan has been paid in
full.
(7) Amending the first sentence of Section 5(b) by changing Section 9
to Section 8.
(8) Amending and restating Schedule NAN as attached.
(9) Amending and restating Schedule "C" as attached.
(10) Adding Schedule "H" as attached.
IN WITNESS WHEREOF, the Trustee and AFCC have caused this Amendment to be
executed by their duly authorized officers effective as of the day and year
first above written.
ASSOCIATES FIRST FIDELITY MANAGEMENT TRUST COMPANY
CAPITAL CORPORATION
<PAGE>
Schedule "A"
ADMINISTRATIVE SERVICES
Administration
* Establishment and maintenance of participant account and election
percentages.
* Maintenance of five plan investment options:
- - Fidelity Magellan Fund
- - Fidelity Intermediate Bond Fund
- - Fidelity Puritan Fund
- - Fidelity Money Market Trust: Retirement Money Market Portfolio
- - Paramount - Common Stock
* Maintenance of nine money classifications:
- - Employee Before Tax Contributions
- - Employee After Tax Contributions
- - Rollover
- - Company Match
- - Profit Sharing
- - SPST
- - PST After Tax
- - PST Taxable
- - Prior
* Processing of mutual fund trades.
. The Trustee will provide only the recordkeeping services set forth on
this
Schedule "A" and any others agreed to in writing by the parties.
Processing
\
* Weekly processing of contribution data.
* Daily processing of transfers and changes of future allocations.
* Processing of withdrawals upon request.
Other
* Monthly trial balance
* Quarterly administrative reports
* Quarterly participant statements
* 1099-Rs
* Participant Loans
* Performance of section 401(k) limitation testing upon request. In order
to
obtain this service, the client shall be required to provide the
information
identified in the Fidelity Discrimination Testing Package Guidelines.
* Employee communications describing available investment options,
including
multimedia informational materials and group presentations.
ASSOCIATES CORPORATION FIDELITY MANAGEMENT TRUST COMPANY
OF
/ Date Senior Vice_/ Date
- --_
Schedule "C"
INVESTMENT OPTIONS
In accordance with Section 4(d), the Named Fiduciary hereby directs the
Trustee that participants' individual accounts may be invested in the
following investment options:
- -Retirement Money Market Portfolio
- -Intermediate Bond Fund
- -Puritan Fund
- -Magellan Fund
The mutual fund advised by Fidelity Management & Research Company referred
to in Section 4(c) shall be Retirement Money Market Portfolio.
ASSOCIATES FIRST CAPITAL CORPORATION
<PAGE>
Schedule "H"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by
Fidelity Investments Retirement Services Company (FIASCO).
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) on each
business day. A "business day" is any day on which the New York Stock
Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at
its discretion.
Mutual Funds
Exchanges Between Mutual Funds
Participants may call on any business day to exchange between the mutual
funds. If the request is received before 4:00 p.m. (EST), it will receive
that day's trade date. Calls received after 4:00 p.m. (EST) will be
processed on a next day basis.
Paramount Stock
Exchanges from Paramount Stock to Mutual Funds
Participants who wish to exchange out of Paramount Stock into mutual funds
may call between Monday and Thursday of each week. No calls will be accepted
after 4:00 p.m. (ET) on Thursdays (or the previous business day if Thursday
is not a business day).
The Paramount Stock is sold on Friday (or the next business day if Friday is
not a business day) and the subsequent purchase into mutual funds will take
place five (5) business days later. This allows for settlement of the stock
trade at the custodian and the corresponding transfer to Fidelity. Orders
for sales of Paramount Stock must involve 100% of the participant's balance
which is held in Paramount Stock.
Exchange Restrictions
o Participants will not be permitted to purchase Paramount Stock.
ASSOCIATES CORPORATION OF NORTH AMERICA
<PAGE>
SECOND AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS SECOND AMENDMENT, effective the first day of January 1993, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation ("AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a trust agreement
dated as of December 1, 1989, with regard to the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and AFCC now desire to amend said trust agreement as
provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and AFCC
hereby amend the trust agreement by:
o Revising Schedules "A" and "C" to add "Fidelity Asset Manager" as
an investment option.
o Replacing Section 4(g) with the following to be effective March 1,
1993:
(g) Notes. The Administrator shall act as the Trustee's agent
for the purpose of holding all trust investments in participant loan notes
and related documentation and as such shall (i) hold physical custody of and
keep safe the notes and other loan documents, (ii) collect and remit all
principal and interest payments to the Trustee, (iii) keep the proceeds of
such loans separate from the other assets of the Administrator and clearly
identify such assets as Plan assets, and (iv) cancel and surrender the notes
and other loan documentation when a loan has been paid in full. To originate
a participant loan, the Plan participant shall direct the Trustee as to the
type of loan to be made from the participant's individual account. Such
directions shall be made by Plan participants by use of the telephone
exchange system maintained for such purpose by the Trustee or its agent. The
Trustee shall determine, based on the current value of the participant's
account, the amount available for the loan. Based on the quarterly interest
rate supplied by AFCC in accordance with the terms of the Plan, the Trustee
shall advise the participant of such interest rate, as well as the
installment payment amounts. The Trustee shall forward the loan document to
the participant for execution and submission for approval to the
Administrator. The Administrator shall have the responsibility for approving
the loan and instructing the Trustee to send the loan proceeds to the
Administrator or to the participant if so directed by the Administrator. In
all cases, such instruction by the Administrator shall be made within thirty
(30) days of the participant's initial request (the origination date).
<PAGE>
IN WITNESS WHEREOF, the Trustee and AFCC have caused this Second Amendment
to be executed by their duly authorized officers effective as of the day and
year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST COMPANY
CORPORATION
<PAGE>
THIRD AMENDMENT TO THE TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS THIRD AMENDMENT, dated as of the first day of July, 1993, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation ("AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a trust agreement
dated December 1, 1989, with regard to the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, AFCC has informed the Trustee that the Profit Sharing Plan for
Employees of Trans-National Leasing, Inc. has merged with and into the
Associates First Capital Retirement Savings and Profit Sharing Plan; and
WHEREAS, the Trustee and AFCC now desire to amend said trust agreement as
provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and AFCC
hereby amend the trust agreement by:
(1) Amending and restating the second WHEREAS clause in its entirety to
read as follows:
WHEREAS, AFCC wishes to establish two trusts: one, for which NationsBank
serves as trustee, to hold the plan assets under the Plan invested in
the NationsBank Fund; and the other, for which the Trustee serves as
trustee, a trust to hold and invest the remaining plan assets under the Plan
for the exclusive benefit of participants in the Plan and their
beneficiaries; and
(2) Amending and restating Section 4(c)(ii) in its entirety to reflect the
deletion of Paramount Stock as an investment option and the addition of Ford
Motor Company Stock as follows:
(ii) equity securities of Ford Motor Company which are publicly-traded
("Sponsor Stock").
(3) Amending and restating Section 4(e)in its entirety to read as follows:
(e) Ford Motor Company Stock Fund. Trust investments in Sponsor Stock shall
be made via the Ford Motor Company Stock Fund (the "Fund") which shall
consist of shares of Sponsor Stock and short-term liquid investments,
Including a commingled money market fund ("Fidelity Employee Benefit U.S.
Government Reserves Portfolio") maintained by the Trustee, necessary to
satisfy the Fund's cash needs for transfers and payments. A cash target
range shall be determined in conjunction with AFCC for the cash portion of
the Fund . The Trustee is responsible for ensuring that the actual cash held
in the Fund falls within the agreed upon range over time. The cash target
range may be redetermined if and when AFCC determines it necessary. Each
participant's proportional interest in the Fund shall be measured in units
of participation, rather than shares of Sponsor Stock. Such units shall
represent a
<PAGE>
proportionate interest in all of the assets of the Fund, which includes
shares of Sponsor Stock, short-term investments and at times, receivables
for dividends and/or Sponsor Stock sold and payables for Sponsor Stock
purchased. A Net Asset Value ("NAV") per unit will be determined daily for
each unit outstanding of the Fund. The return earned by the Fund will
represent a combination of the dividends paid on the shares of Sponsor Stock
held by the Fund, gains or losses realized on sales of Sponsor Stock,
appreciation or depreciation in the market price of those shares owned, and
interest on the short-term investments held by the Fund. Dividends received
by the Fund are reinvested in additional shares of Sponsor Stock.
Investments in Sponsor Stock shall be subject to the following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust may be invested in
Sponsor Stock to the extent necessary to comply with investment directions
under Section 4(c) of this Agreement.
(ii) Committee Duty. The Committee shall continually monitor the suitability
under the fiduciary duty rules of section 404(a)(1) of ERISA (as modified by
section 404(a)(2) of ERISA) of acquiring and holding Sponsor Stock. The
Trustee shall not be liable for any loss, or by reason of any breach, which
arises from the directions of the Committee with respect to the acquisition
and holding of Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited by the
foregoing fiduciary duty rules or would be contrary to the terms of the Plan
or this Agreement.
(iii) Execution of Purchases and Sales. IA) Purchases and sales of Sponsor
Stock (other than for exchanges) shall be made on the open market on the
date on which the Trustee receives from AFCC in good order all information
and documentation necessary to accurately effect such purchases and sales
(or, in the case of purchases, the subsequent date on which the Trustee has
received a wire transfer of the funds necessary to make such purchases).
Exchanges of Sponsor Stock shall be made in accordance with the Telephone
Exchange Guidelines attached hereto as Schedule "H". Such general rules
shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number of shares required to
be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the total number of shares
required to be purchased or sold on such day as a result of market
conditions; or
(3) If the Trustee is prohibited by the Securities and Exchange Commission,
the New York Stock Exchange, or any other regulatory body from purchasing or
selling any or all of the shares required to be purchased or sold on such
day.
In the event of the occurrence of the circumstances described in (1), (2),
or (3) above, the Trustee shall purchase or sell such shares as soon as
possible thereafter and shall determine the price of such purchases or sales
to be the average purchase or sales price of all such shares purchased or
sold, respectively. The Trustee may follow directions from the Committee to
deviate from the above purchase and sale procedures provided that such
direction is made in writing by the Committee.
(B) Purchases from Ford Motor Company. If directed by AFCC prior to 4:00
p.m. on the trading date, the Trustee may purchase Sponsor Stock from Ford
Motor Company, an affiliate of the Sponsor, if the purchase is for adequate
<PAGE>
consideration (within the meaning Section 3(18) of ERISA) and no commission
is charged. If AFCC contributions or contributions made by AFCC on behalf of
the participants under the Plan are to be invested in Sponsor Stock, then
AFCC may transfer Sponsor Stock in lieu of cash to the Trust. In either
case, the number of shares to be transferred will be determined by dividing
the total amount of Sponsor Stock to be purchased by the average of the high
and low price of the Sponsor Stock on any national securities exchange on
the trading date. Such purchases shall be made in accordance with the
separate Purchase Agreement between the Trustee and Ford Motor Company (as
attached).
(C) Use of an Affiliated Broker. AFCC hereby authorizes the Trustee to use
Fidelity Brokerage Services, Inc. ("FBSI") to provide brokerage services in
connection with any purchase or sale of Sponsor Stock in accordance with
directions from Plan participants. FBSI shall execute such directions
directly or through its affiliate, National Financial Services Company
("NFSC"). The provision of brokerage services shall be subject to the
following:
(i) As consideration for such brokerage services, AFCC agrees that FBSI
shall be entitled to remuneration under this authorization provision in the
amount of three and one-half cents ($.035) commission on each share of
Sponsor Stock. Any change in such remuneration may be made only by a signed
agreement between AFCC and the Trustee. Such fees shall be reviewed by AFCC
from time to time.
(ii) Following the procedures set forth in Department of Labor Prohibited
Transaction Class Exemption 86-128, the Trustee will provide AFCC with the
following documents: (1) a description of FBSI's brokerage placement
practices; (2) a copy of PTCE 86-128; and (3) a form by which AFCC may
terminate this authorization to use a broker affiliated with the Trustee.
The Trustee will provide AFCC with this termination form annually, as well
as an annual report which summarizes all securities transaction-related
charges incurred by the Plan, and the Plan's annualized turnover rate.
(iii) Any successor organization of FBSI, through reorganization,
consolidation, merger or similar transactions, shall, upon consumption of
such transaction, become the successor broker in accordance with the terms
of this authorization provision.
(iv) The Trustee and FBSI shall continue to rely on this authorization
provision until notified to the contrary. AFCC reserves the right to
terminate this authorization upon sixty (60) days written notice to FBSI (or
its successor) and the Trustee, in accordance with Section 11 of this
Agreement.
(iv) Securities Law Reports. The Committee shall be responsible for filing
all reports required under Federal or state securities laws with respect to
the Trust's ownership of Sponsor Stock, including, without limitation, any
reports required under section 13 or 16 of the Securities Exchange Act of
1934, and shall immediately notify the Trustee in writing of any requirement
to stop purchases or sales of Sponsor Stock pending the filing of any
report. The Trustee shall provide to the Committee such information on the
Trust's ownership of Sponsor Stock as the Committee may reasonably request
in order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other provision of this
Agreement the provisions of this Section shall govern the voting and
tendering of Sponsor Stock. AFCC, after consultation with the Trustee, shall
provide and
pay for all printing, mailing, tabulation and other costs associated with
the voting and tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of the Sponsor Stock files preliminary proxy
solicitation materials with the Securities and Exchange Commission, AFCC
shall cause a copy of all materials to be simultaneously sent to the
Trustee. Based on these materials the Trustee shall prepare a voting
instruction form. At the time of mailing of notice of each annual or special
stockholders' meeting of the issuer of the Sponsor Stock, AFCC shall cause a
copy of the notice and all proxy solicitation materials to be sent to each
Plan participant with an interest in Sponsor Stock held in the Trust,
together with the foregoing voting instruction form to be returned to the
Trustee or its designee. The form shall show the proportional interest in
the number of full and fractional shares of Sponsor Stock credited to the
participant's accounts held in the Fund. AFCC shall provide the Trustee with
a copy of any materials provided to the participants and shall certify to
the Trustee that the materials have been mailed or otherwise sent to
participants.
(2) Each participant with an interest in the Fund shall have the right,
acting in the capacity of a named fiduciary within the meaning of section
402 of ERISA, to direct the Trustee as to the manner in which the Trustee is
to vote (including not to vote) that number of shares of Sponsor Stock
reflecting such participant's proportional interest in the Fund (both vested
and unvested). Directions from a participant to the Trustee concerning the
voting of Sponsor Stock shall be communicated in writing, or by mailgram or
similar means. These directions shall be held in confidence by the Trustee
and shall not be divulged to AFCC, or any officer or employee thereof, or
any other person. Upon its receipt of the directions, the Trustee shall vote
the shares of Sponsor Stock reflecting the participant's proportional
interest in the Fund as directed by the participant. The Trustee shall vote
shares of Sponsor Stock reflecting a participant's proportional interest in
the Fund for which it has received no direction from the participant in the
same proportion on each issue as it votes those shares reflecting
participants' proportional interest in the Fund for which it received voting
directions from participants.
(3) The Trustee shall vote that number of shares of Sponsor Stock not
credited to participants' accounts which is determined by multiplying the
total number of shares not credited to participants' accounts by a fraction
of which the numerator is the number of shares of Sponsor Stock reflecting
such participants' proportional interest in the Fund credited to
participants' accounts for which the Trustee received voting directions from
participants and of which the denominator is the total number of shares of
Sponsor Stock reflected in the proportional interests of all participants
under the Plan. The Trustee shall vote those shares of Sponsor Stock not
credited to participants' accounts which are to be voted by the Trustee
pursuant to the foregoing formula in the same proportion on each issue as it
votes those shares reflecting participants' proportional interest in the
Fund for which it received voting directions from participants. The Trustee
shall not vote the remaining shares of Sponsor Stock not credited to
participants' accounts.
(B) Tender Offers.
(1) Upon commencement of a tender offer for any securities held in the Trust
that are Sponsor Stock, AFCC shall notify each Plan participant with an
interest in such Sponsor Stock of the tender offer and utilize its best
efforts to timely distribute or cause to be distributed to the participant
<PAGE>
the same information that is distributed to shareholders of the issuer of
Sponsor Stock in connection with the tender offer, and, after consulting
with the Trustee, shall provide and pay for a means by which the participant
may direct the Trustee whether or not to tender the Sponsor Stock reflecting
such participant's proportional interest in the Fund (both vested and
unvested). AFCC shall provide the Trustee with a copy of any material
provided to the participants and shall certify to the Trustee that the
materials have been mailed or otherwise sent to participants.
(2) Each participant shall have the right to direct the Trustee to tender or
not to tender some or all of the shares of Sponsor Stock reflecting such
participant's proportional interest in the Fund (both vested and unvested).
Directions from a participant to the Trustee concerning the tender of
Sponsor Stock shall be communicated in writing, or by mailgram or such
similar means as is agreed upon by the Trustee and AFCC under the preceding
paragraph. These directions shall be held in confidence by the Trustee and
shall not be divulged to AFCC, or any officer or employee thereof, or any
other person except to the extent that the consequences of such directions
are reflected in reports regularly communicated to any such persons in the
ordinary course of the performance of the Trustee's services hereunder. The
Trustee shall tender or not tender shares of Sponsor Stock as directed by
the participant. The Trustee shall not tender shares of Sponsor Stock
reflecting a participant's proportional interest in the Fund for which it
has received no direction from the participant.
(3) The Trustee shall tender that number of shares of Sponsor Stock not
credited to participants' accounts which is determined by multiplying the
total number of shares of Sponsor Stock not credited to participants'
accounts by a fraction of which the numerator is the number of shares of
Sponsor Stock reflecting participants' proportional interests in the Fund
for which the Trustee has received directions from participants to tender
(which directions have not been withdrawn as of the date of this
determination) and of which the denominator is the total number of shares of
Sponsor Stock reflected in the proportional interests of all participants
under the Plan. \
(4) A participant who has directed the Trustee to tender some or all of the
shares of Sponsor Stock reflecting the participant's proportional interest
in the Fund may, at any time prior to the tender offer withdrawal date,
direct the Trustee to withdraw some or all of the tendered shares reflecting
the participant's proportional interest, and the Trustee shall withdraw the
directed number of shares from the tender offer prior to the tender offer
withdrawal deadline. Prior to the withdrawal deadline, if any shares of
Sponsor Stock not credited to participants' accounts have been tendered, the
Trustee shall redetermine the number of shares of Sponsor Stock that would
be tendered under Section 4(e)(v)(B)(3) if the date of the foregoing
withdrawal were the date of determination, and withdraw from the tender
offer the number of shares of Sponsor Stock not credited to participants'
accounts necessary to reduce the amount of tendered Sponsor Stock not
credited to participants' accounts to the amount so redetermined. A
participant shall not be limited as to the number of directions to tender or
withdraw that the participant may give to the Trustee.
(5) A direction by a participant to the Trustee to tender shares of Sponsor
Stock reflecting the participant's proportional interest in the Fund shall
not be considered a written election under the Plan by the participant to
withdraw, or have distributed, any or all of his withdrawable shares. The
Trustee shall credit to each proportional interest of the participant from
which the tendered shares were taken the proceeds received by the Trustee in
exchange for the shares of Sponsor Stock tendered from that interest.
Pending receipt of directions (through the Administrator) from the
participant or the Committee,
<PAGE>
as provided in the Plan, as to which of the remaining investment options the
proceeds should be invested in, the Trustee shall invest the proceeds in the
Mutual Fund described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section, the number of shares
of Sponsor Stock deemed "credited" or "reflected" to a participant's
proportional interest shall be determined as of the last preceding valuation
date. The trade date is the date the transaction is valued.
(vii) General. With respect to all rights other than the right to vote, the
right to tender, and the right to withdraw shares previously tendered, in
the case of Sponsor Stock credited to a participant's proportional interest
in the Fund, the Trustee shall follow the directions of the participant and
if no such directions are received, the directions of the Committee. The
Trustee shall have no duty to solicit directions from participants. With
respect to all rights other than the right to vote, the right to tender or
the right to withdraw such tender, in the case of Sponsor Stock not credited
to participants' accounts, the Trustee shall follow the directions of the
Committee.
(viii) Conversion. All provisions in this Section 4(e) shall also apply to
any securities received as a result of a conversion of Sponsor Stock.
(4) Inserting a new Section 4(i) immediately after Section 4(h) to read as
follows:
NationsBank Fund. Transactions involving the NationsBank Fund shall be
executed in accordance with the Operating Procedures attached hereto as
Schedule "I".
(5) Amending and restating the list of investment options on Schedule "A"
and "C" as follows:
- Fidelity Magellan Fund
- Fidelity Intermediate Bond Fund
- Fidelity Puritan Fund
- Fidelity Money Market Trust: Retirement Money Market Portfolio
- Fidelity Asset Manager
- Ford Motor Company Stock Fund
- NationsBank Fund (NationsBank serves as trustee)
(6) Amending Schedule "B" to reflect the addition of Proxy Mailing Fees as
follows:
Proxy Mailings If Fidelity provides any service (e.g., printing, mailing,
tabulation) in connection with Sponsor Stock proxy
mailings, Fidelity will be entitled to reasonable
compensation for such services.
(7) Amending and restating Schedules "D", "E", "F" and "H" as attached.
(8) Adding a new Schedule " I ", Operating Procedures for the NationsBank
Fund.
IN WITNESS WHEREOF, the Trustee and AFCC have caused this Third Amendment to
be executed by their duly authorized officers effective as of the day and
year first above written.
ASSOCIATES FIRST CAPITAL CORPORATION FIDELITY MANAGEMENT TRUST
<PAGE>
Schedule "H"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by
Fidelity investments Retirement Services Company (FIASCO).
Telephone exchange hours are 8:30 a.m. (EST) to 8:00 p.m. (EST) on each
business day. A "business day" is any day on which the New York Stock
Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at
its discretion.
Mutual Funds
Exchanges Between Mutual Funds
Participants may call on any business day to exchange between the mutual
funds. If the request is received before 4:00 p.m. (EST), it will receive
that day's trade date. Calls received after 4:00 p.m. (EST) will be
processed on a next day basis.
Ford Motor Company Stock Fund
Exchanges Between Mutual Funds and Ford Motor Company Stock Fund
Participants may call on any business day to exchange between the mutual
funds and the Ford Motor Company Stock Fund. If the request is received
before 4:00 p.m. (EST), it will receive that day's trade date. Calls
received after 4:00 p.m. (EST) will be processed on a next day basis.
Exchange Restrictions
It is the intention of the Trustee to maintain a sufficient liquidity
reserve in the Ford Motor Company Stock Fund to meet exchange, redemption or
withdrawal requests. However, if there is insufficient liquidity in the Ford
Motor Company Stock Fund to allow for same day exchanges, the Trustee will
be required to sell shares of the Ford Motor Company Stock Fund to meet the
exchange requests. If this occurs, the subsequent exchange into other Plan
investment options will take place five (5) business days later. This allows
for settlement of the stock trade at the custodian and the corresponding
transfer to Fidelity.
ASSOCIATES FIRST CAPITAL CORPORATION
<PAGE>
SCHEDULE "I"
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
NATIONSBANK FUND OPERATING PROCEDURES AGREEMENT
Fidelity Institutional Retirement Service Company (Fidelity) will recordkeep
the Associates First Capital Corporation (the "Sponsor") Retirement Savings
and Profit Sharing Plan for which NationsBank (the "Trustee") is the Trustee
and is invested in the NationsBank Fund (the "Fund"). Fidelity will not be
processing any activity in the Fund and will only be maintaining participant
balances. The operating procedures governing the NationsBank Fund (the
"Fund") are as follows:
Valuation:
The Trustee will fax the Fund valuation, the previous quarter's valuation,
to Fidelity by 4:30 p.m. EST on the last day of the calendar quarter. The
Trustee will notify Fidelity when the price will be faxed to ensure that the
valuation is received and entered to the Fidelity recordkeeping system. The
value of participant shares in the Fund will be based solely upon the
valuation received from the Trustee. This valuation will not be reviewed by
Fidelity. If the valuation is not received by 4:30 EST on the last day of
the calendar quarter, the Sponsor directs Fidelity to use the prior
quarter's valuation.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
incurred by Fidelity due to a valuation error caused by the Trustee. The
Sponsor also agrees to compensate Fidelity for the cost of any adjustments
made to participant accounts due to such an error.
Reconciliation:
Fidelity will provide the Sponsor with a monthly trial balance and other
reports necessary for the reconciliation of the participant balances
maintained by Fidelity to the custodial position maintained by the Trustee.
The Sponsor will notify Fidelity of any material differences between the
participant balances and the Fund balance maintained by the Trustee within
30 days of receipt of the monthly trial balance from Fidelity.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
related to balance discrepancies between the participant balances maintained
by Fidelity and the custodial balance maintained by the Trustee due to
errors caused by the Trustee.
The above procedure and conditions are hereby confirmed by all parties.
Fidelity Institutional
Retirement Services Company Associates First Capital Corporation
<PAGE>
FOURTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS FOURTH AMENDMENT, dated as of the first day of January, 1994, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation (the "AFCC");
WITNESSETH:
WHEREAS, the Trustee and the AFCC heretofore entered into a trust agreement
dated May 31, 1992, with regard to the Associates First Capital Corporation
Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and the AFCC now desire to amend said trust agreement
as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
AFCC hereby amend the trust agreement by:
(1) Amending the "Processing" section of Schedule "A" to add the following:
* Daily processing of changes of deferral percentages; provide confirmation
of change in deferral percentages within five (5) business days of the
request.
IN WITNESS WHEREOF, the Trustee and the AFCC have caused this Fourth
Amendment to be executed by their duly authorized officers effective as of
the day and year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT
CORPORATION TRUST COMPANY
<PAGE>
FIFTH AMENDMENT TO TRUST AGREEMENT
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS FIFTH AMENDMENT, dated as of the first day of January, 1994, by and
between Fidelity Management Trust Company (the 'Trustee") and Associates
First Capital Corporation (the "AFCC");
WITNESSETH:
WHEREAS, the Trustee and the AFCC heretofore entered into a trust agreement
dated May 31, 1992, with regard to the Associates First Capital Corporation
Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and the AFCC now desire to amend said trust agreement
as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and the
AFCC hereby amend the trust agreement by:
(1) Amending and restating Schedule "I", in its entirety, as attached.
IN WITNESS WHEREOF, the Trustee and the AFCC have caused this Fifth
Amendment to be executed by their duly authorized officers effective as of
the day and year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT
CORPORATION TRUST COMPANY
<PAGE>
SCHEDULE "I"
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
NATIONSBANK FUND OPERATING PROCEDURES AGREEMENT
Fidelity Institutional Retirement Service Company ("Fidelity") will
recordkeep the Associates First Capital Corporation (the "Sponsor")
Retirement Savings and Profit Sharing Plan for which NationsBank (the
"Trustee") is the Trustee and is invested in the NationsBank Fund (the
"Fund"). The Fund will be recordkept by Fidelity as a single entity and will
be priced daily at a constant value of $1.00 per unit. Fidelity will not be
processing any activity in the Fund and will only be maintaining participant
balances. The operating procedures governing the NationsBank Fund (the
"Fund") are as follows:
Valuation:
By the fifth business day after each quarter-end, the Trustee will provide
Fidelity with written instructions specifying the total amount of interest
and unrealized appreciation/depreciation to be allocated to participants
invested in the Fund. The basis for this allocation will be the quarter-end
balances in each participant account and will be posted to participant
accounts as of the first business day after the quarter-end.
Fidelity assumes no responsibility for any loss incurred due to inaccurate
communication of corporate actions or failure to communicate corporate
actions by the Trustee.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
incurred by the Plan or Fidelity in the calculation of the monthly income
allocation figure. The Sponsor also agrees to compensate Fidelity for the
cost of any adjustments made to participant accounts due to this type of
error.
Reconciliation:
Fidelity will provide the Sponsor with a monthly trial balance and other
reports necessary for the reconciliation of the participant balances
maintained by Fidelity to the custodial position maintained by the Trustee.
The Sponsor will notify Fidelity of any material differences between the
participant balances and the Fund balance maintained by the Trustee within
30 days of receipt of the monthly trial balance from Fidelity.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
related to balance discrepancies between the participant balances maintained
by Fidelity and the custodial balance maintained by the Trustee due to
errors caused by the Trustee.
<PAGE>
SCHEDULE "I"
ASSOCIATES FIRST CAPITAL CORPORATION
RETIREMENT SAVINGS AND PROFIT SHARING PLAN
NATIONSBANK FUND OPERATING PROCEDURES AGREEMENT
Fidelity Institutional Retirement Service Company ("Fidelity") will
recordkeep the Associates First Capital Corporation (the "Sponsor")
Retirement Savings and Profit Sharing Plan for which NationsBank (the
"Trustee") is the Trustee and is invested in the NationsBank Fund (the
"Fund"). The Fund will be recordkept by Fidelity as a single entity and will
be priced daily at a constant value of $1.00 per unit. Fidelity will not be
processing any activity in the Fund and will only be maintaining participant
balances. The operating procedures governing the NationsBank Fund (the
"Fund") are as follows:
Valuation:
By the fifth business day after each quarter-end, the Trustee will provide
Fidelity with written instructions specifying the total amount of interest
and unrealized appreciation/depreciation to be allocated to participants
invested in the Fund. The basis for this allocation will be the quarter-end
balances in each participant account and will be posted to participant
accounts as of the first business day after the quarter-end.
Fidelity assumes no responsibility for any loss incurred due to inaccurate
communication of corporate actions or failure to communicate corporate
actions by the Trustee.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
incurred by the Plan or Fidelity in the calculation of the monthly income
allocation figure. The Sponsor also agrees to compensate Fidelity for the
cost of any adjustments made to participant accounts due to this type of
error.
Reconciliation:
Fidelity will provide the Sponsor with a monthly trial balance and other
reports necessary for the reconciliation of the participant balances
maintained by Fidelity to the custodial position maintained by the Trustee.
The Sponsor will notify Fidelity of any material differences between the
participant balances and the Fund balance maintained by the Trustee within
30 days of receipt of the monthly trial balance from Fidelity.
The Sponsor agrees to indemnify and hold harmless Fidelity for any loss
related to balance discrepancies between the participant balances maintained
by Fidelity and the custodial balance maintained by the Trustee due to
errors caused by the Trustee.
The above procedure and conditions are hereby confirmed by the following
parties.
Fidelity Institutional Retirement Associates First Capital Corporation
Services Company
<PAGE>
SIXTH AMENDMENT TO TRUST AGREEMENT
BETWEEN FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS SIXTH AMENDMENT, dated as of the first day of December, 1994, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation (the "Sponsor");
WITNESSETH:
WHEREAS, the Trustee and the Sponsor heretofore entered into a trust
agreement dated December 1, 1989 with regard to the Associates First Capital
Corporation Retirement Savings Profit Sharing Plan {the "Plan"); and
NOW THEREFORE, in consideration of the above premises, the Trustee and the
Sponsor hereby amend the trust agreement as provided for in Section 13
thereof by:
Replacing all references to Fidelity Employee Benefit U.S. Government
Reserves Portfolio with the following:
In order to provide the necessary monies for exchanges or redemptions from
the GIC or Sponsor Stock Fund investment options, if any, under the Plan,
the Sponsor agrees that the Plan shall maintain a liquidity reserve
allocated to such investment option in Fidelity Institutional Cash
Portfolios: Money Market Portfolio: Class A or such other Mutual Fund or
commingled money market pool as agreed to by the Sponsor and Trustee. The
Sponsor shall have the right to direct the Trustee as to the manner in which
the Trustee is to vote the Mutual Fund shares held in any short-term
investment fund or liquidity reserve.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Sixth
Amendment to be executed by their duly authorized officers effective as of
the day and year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT
CORPORATION TRUST COMPANY
<PAGE>
SEVENTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS SEVENTH AMENDMENT, dated as of the first day of August, 1994, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation ("AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a trust agreement
dated December 1, 1989, with regard the Associates First Capital Corporation
Retirement Savings and Profit Sharing Plan (the "Plan"); and
WHEREAS, the Trustee and AFCC now desire to amend said trust agreement as
provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and AFCC
hereby amend the trust agreement by:
(1) Amending and restating the Annual Participant Fee on Schedule "B", to
read as follows:
Effective April 1, 1994:
Annual Participant Fee $8.00 per participant*,
subject to a $7,500 per
year minimum, billed and
payable quarterly.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Seventh
Amendment to be executed by their duly authorized officers effective as of
the day and year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST
CORPORATION COMPANY
<PAGE>
EIGHTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS EIGHTH AMENDMENT, dated as of the first day of July, 1995, by and
between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation (the "AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a trust agreement
dated as of December 1, 1989, with regard to the Associates First Capital
Corporation Retirement Savings and Profit Sharing Plan (the"Plan"); and
WHEREAS, the Trustee and AFCC now desire to amend said trust agreement as
provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the above premises the Trustee and AFCC
hereby amend the trust agreement by:
(1) Amending and restating Section 4(g), in its entirety, to read as
follows:
(g) Notes. The Administrator shall act as Trustee's agent for the
participant loan notes and as such shall (i) collect and remit all principal
and interest payments to the Trustee and (ii) keep the proceeds of such
loans separate from the other assets of the Administrator and clearly
identify such assets as Plan assets. To originate a participant loan, the
Plan participant shall direct the Trustee as to the term and the amount of
the loan to be made by Plan participants by use of the telephone exchange
system maintained for such purpose by the Trustee or its agent. The Trustee
shall determine, based on the current value of the participant's account on
the date of the request and any guidelines provided by AFCC, the amount
available for the loan. Based on the monthly interest rate supplied by AFCC
in accordance with the terms of the Plan, the Trustee shall advise the
participant of such interest rate, as well as the installment payment
amounts. The Trustee shall distribute the loan note with the proceed check
to the participant. The Trustee shall also distribute truth-in-lending
disclosure to the participant. To facilitate recordkeeping, the Trustee may
destroy the original of any promissory note and the Plan participant's
signature thereon, which duplicate may be reduced or enlarged in size from
the actual size of the original promissory note.
IN WITNESS WHEREOF, the Trustee and the Sponsor have caused this Eighth
Amendment to be executed by their duly authorized of officers effective as
of the day and year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST CORPORATION 1 - COMPANY
By: ~~ By >/~/~<
BY: Date By: Date
ASSOCIATES CORPORATION OF NORTH AMERICA
(A TEXAS CORPORATION )
.~@
( James B. Watts
Executive Vices President
April 11, 1995
Ms. Jacqueline W. McCarthy
Fidelity Investments Institutional Operations Company
82 Devonshire Street
Boston, Massachusetts 02109
Dear Sirs:
I, James B. Watts, acting as a designated individual as set forth in
schedule "E" of the Trust Document dated June 28,1993, do further designate
the persons listed below as individuals who may provide directions
regarding contributions, withdrawals, and other day-to-day operations of The
Associates Retirement Savings and Profit Sharing Plan in accordance with
Section 7(b) of the Trust Agreement.
The signature of each authorized individual is set forth below and certified
to be such. Fidelity Management Trust Company may rely upon each
designation set forth in this letter until the Company delivers written
notice of the termination of the authority of the designated individual.
Regards,
/s/ James B. Watts
James B. Watts
/s/ John A. Lee /s/Patricia A. Pitsch
- --------------- ---------------------
John A. Lee Patricia A. Pitsch
(name of designated individual) (name of designated individual)
/s/Rebecca C. Gunderson /s/ Brenda G. Bond
- ----------------------- ------------------
Rebecca C. Gunderson Brenda G. Bond
(name of designated individual) ( name of designated individual)
/s/ Angela Holzer
- ---------------------------
Angela Holzer
( name of designated individual)
/s/ Tazim Adatia
- --------------------------
Tazim Adatia
(name of designated individual
.
( ( name of designated individual)
<PAGE>
NINTH AMENDMENT TO TRUST AGREEMENT BETWEEN
FIDELITY MANAGEMENT TRUST COMPANY AND
ASSOCIATES FIRST CAPITAL CORPORATION
THIS NINTH AMENDMENT, dated as of the first day of August, 1996, by
and between Fidelity Management Trust Company (the "Trustee") and Associates
First Capital Corporation ("AFCC");
WITNESSETH:
WHEREAS, the Trustee and AFCC heretofore entered into a Trust
Agreement dated December 1, 1989, with regard to the Associates First
Capital Corporation Retirement Savings and Profit Sharing Plan, renamed
effective June 1, 1995 the Associates Savings and Profit-Sharing Plan (the
"Plan"); and
WHEREAS, the Trustee and AFCC now desire to amend said trust
agreement as provided for in Section 13 thereof;
NOW THEREFORE, in consideration of the premises the Trustee and AFCC
hereby amend the trust agreement by:
(1) Amending and restating Section 4(c)(ii) in its entirety to
reflect the addition of Associates First Capital Corporation
Stock as an investment option as follows:
(ii) publicly traded equity securities of Ford Motor
Company and Associates First Capital Corporation (individually,
"Ford Motor Company Stock" or "AFCC Stock", collectively, "Sponsor
Stock").
(2) Amending and restating Section 4(e) to reflect the addition
of AFCC Stock Fund as follows:
(e) Sponsor Stock. Trust investments in Sponsor Stock shall be
made via the Ford Motor Company Stock Fund and the AFCC Stock Fund
(individually and collectively, the "Stock Fund") which shall
consist of shares of Sponsor Stock and short-term liquid
investments, including Fidelity Institutional Cash Portfolios: Money
Market Portfolio: Class A or such other Mutual Fund or commingled
money market pool as agreed to by AFCC and Trustee, necessary to
satisfy the Stock Fund's cash needs for transfers and payments. A
cash target range shall be determined in conjunction with AFCC for the
cash portion of the Stock Fund. The Trustee is responsible for
ensuring
that the actual cash held in the Stock Fund falls within the agreed
upon range over time. The cash target range may be redetermined if
and when AFCC determines it necessary. Each participant's
proportional interest in the Stock Fund shall be measured in units of
participation, rather than shares of Sponsor Stock. Such units shall
represent a proportionate interest in all of the assets of the Stock
Fund, which includes shares of Sponsor Stock, short-term investments
and at times
<PAGE>
receivables for dividends and/or Sponsor Stock sold and payables for
Sponsor Stock purchased. A Net Asset Value ("NAV") per unit will be
determined daily for each unit outstanding of the Stock Fund. The
return earned by the Stock Fund will represent a combination of the
dividends paid on the shares of Sponsor Stock held by the Stock Fund,
gains or losses realized on sales of Sponsor Stock, appreciation or
depreciation in the market price of those shares owned, and interest
on the short-term investments held by the Stock Fund. Dividends
received by the Stock Fund are reinvested in additional shares of
Sponsor Stock. Investments in Sponsor Stock shall be subject to the
following limitations:
(i) Acquisition Limit. Pursuant to the Plan, the Trust
may be invested in Sponsor Stock to the extent necessary to comply
with investment directions under Section 4(c) of this Agreement.
(ii) Committee Duty. The Committee shall continually
monitor the suitability under the fiduciary duty rules of section
404(a)(1) of ERISA (as modified by section 404(a)(2) of ERISA) of
acquiring and holding Sponsor Stock. The Trustee shall not be
liable
for any loss, or by reason of any breach, which arises from the
directions of the Committee with respect to the acquisition and
holding of Sponsor Stock, unless it is clear on their face that the
actions to be taken under those directions would be prohibited by
the foregoing fiduciary duty rules or would be contrary to the terms
of the Plan or this Agreement.
(iii) Execution of Purchases and Sales. (A) Purchases and sales
of Sponsor Stock (other than for exchanges) shall be made on the
open market on the date on which the Trustee receives from AFCC in
good order all information and documentation necessary to accurately
effect such purchases and sales (or, in the case of purchases, the
subsequent date on which the Trustee has received a wire transfer of
the funds necessary to make such purchases). Exchanges of Sponsor
Stock shall be made in accordance with the Telephone Exchange
Guidelines attached hereto as Schedule "H". Such general rules
shall not apply in the following circumstances:
(1) If the Trustee is unable to determine the number
of shares required to be purchased or sold on such day; or
(2) If the Trustee is unable to purchase or sell the
total number of shares required to be purchased or sold on
such day as a result of market conditions; or
(3) If the Trustee is prohibited by the Securities and
Exchange Commission, the New York Stock Exchange, or any other
regulatory body from purchasing or selling any or all of the
shares required to be purchased or sold on such day.
In the event of the occurrence of the circumstances described in
(1),(2), or (3) above, the Trustee shall purchase or sell such
shares as soon as possible thereafter and shall determine the price
of such purchases or sales to be the average purchase or sales price
of all such shares purchased or sold,
<PAGE>
respectively. The Trustee may follow directions from the Committee
to deviate from the above purchase and sale procedures provided that
such direction is made in writing by the Committee.
(B) Purchases and Sales from or to Sponsor. If directed
by AFCC in writing prior to 4:00 p.m. (ET) on the trading date,
the Trustee may purchase or sell AFCC Stock from or to AFCC if
the purchase or sale is for adequate consideration (within the
meaning of Section 3(18) of ERISA) and no commission is charged.
If contributions or contributions made by AFCC on behalf of the
participants under the Plan are to be invested in AFCC Stock, AFCC
may transfer AFCC Stock in lieu of cash to the Trust. In either
case, the number of shares to be transferred will be determined by
total amount of AFCC Stock to be purchased or sold by the 4:00 p.m.
dividing the closing price of AFCC Stock on the New York Stock
Exchange on the trading date.
(C) Purchases from Ford Motor Company. If directed
by AFCC in writing prior to 4:00 p.m. ET on the trading date, the
Trustee may purchase Ford Motor Company Stock from Ford Motor
Company, an affiliate of AFCC, if the purchase is for adequate
consideration (within the meaning of Section 3(18) of ERISA)
and no commission is charged. If AFCC contributions or
contributions made by AFCC on behalf of participants under
the Plan are to be invested in Ford Motor Company Stock,
then AFCC may transfer Ford Motor Company Stock in lieu
of cash to the Trust. In either case, the number of shares to be
transferred will be determined by dividing the total amount of Ford
Motor Company Stock to be purchased by the 4:00 p.m. closing price
of Ford Motor Company Stock on the New York Stock Exchange on the
trading date. Such purchase shall be made in accordance with the
separate Purchase Agreement between the Trustee and Ford Motor
Company (as attached).
(D) Use of an Affiliated Broker. AFCC hereby directs the
Trustee to use Fidelity Brokerage Services, Inc. ("FBSI")to
provide brokerage services in connection with any purchase or sale
of Sponsor Stock in accordance with directions from Plan
participants. FBSI shall execute such directions directly or through
its affiliate, National Financial Services Company ("NFSC"). The
provision of brokerage services shall be subject to the following:
(1) As consideration for such brokerage services, AFCC
agrees that FBSI shall be entitled to remuneration under this
authorization provision in the amount of three and one-half
cents ($.035) commission on each share of Sponsor Stock. Any change
in such remuneration may be made only by a signed agreement between
AFCC and Trustee. Such fees shall be reviewed by AFCC from time to
time.
(2) Following the procedures set forth in Department of
Labor Prohibited Transaction Class Exemption 86-128, the Trustee
will provide AFCC with the following documents: (1) a
description of FBSI's brokerage placement practices; (2) a copy of
PTCE 86-128; and (3) a form by which AFCC may terminate this
authorization to use a broker affiliated with the Trustee. The
Trustee will provide AFCC with this termination form annually, as
well as
<PAGE>
an annual report which summarizes all securities transaction-related
charges incurred by the Plan.
(3) Any successor organization of FBSI, through
reorganization, consolidation, merger or similar transactions,
shall, upon consumption of such transaction, become the successor
broker in accordance with the terms of this authorization provision.
(4) The Trustee and FBSI shall continue to
rely on this authorization provision until notified to the contrary.
AFCC reserves the right to terminate this authorization upon sixty
(60) days written notice to FBSI (or its successor) and the Trustee,
in accordance with Section 11 of this Agreement.
(iv) Securities Law Reports. The Committee shall be responsible
for filing all reports required under Federal or state
securities laws with respect to the Trust's ownership of Sponsor
Stock, including, without limitation, any reports required under
section 13 or 16 of the Securities Exchange Act of 1934, and shall
immediately notify the Trustee in writing of any requirement to stop
purchases or sales of Sponsor Stock pending the filing of any
report.
The Trustee shall provide to the Committee such information on the
Trust's ownership of Sponsor Stock as the Committee may reasonably
request in order to comply with Federal or state securities laws.
(v) Voting and Tender Offers. Notwithstanding any other
provision of this Agreement the provisions of this Section shall
govern the voting and tendering of Sponsor Stock. AFCC, after
consultation with the Trustee, shall provide and pay for all
printing,
mailing, tabulation and other costs associated with the voting and
tendering of Sponsor Stock.
(A) Voting.
(1) When the issuer of Sponsor Stock files preliminary
proxy solicitation materials with the Securities and Exchange
Commission, AFCC shall cause a copy of all materials to be
simultaneously sent to the Trustee. Based on these materials the
Trustee shall prepare a voting instruction form. At the time of
mailing of notice of each annual or special stockholders' meeting of
the issuer of the Sponsor Stock, AFCC shall cause a copy of the
notice and all proxy solicitation materials to be sent to each Plan
participant with an interest in Sponsor Stock held in the Trust,
together with the foregoing voting instruction form to be returned
to the Trustee or its designee. The form shall show the
proportional interest in the number of full and fractional shares of
Sponsor Stock credited to the participant's accounts held in the
Stock Fund. AFCC shall provide the Trustee with a copy of any
materials provided to the participants and shall
certify to the Trustee that the materials have
been mailed or otherwise sent to participants.
(2) Each participant with an interest in the
Stock Fund shall have the right, acting in the capacity of a named
fiduciary within the meaning of Section 402 of ERISA, to direct the
Trustee as to the manner in
<PAGE>
which the Trustee is to vote (including not to vote) that number of
shares of Sponsor Stock reflecting such participant's proportional
interest in the Stock Fund (both vested and unvested). Directions
from a participant to the Trustee concerning the voting of Sponsor
Stock shall be communicated in writing, or by mailgram or similar
means. These directions shall be held in confidence by the Trustee
and shall not be divulged to AFCC, or any officer or employee
thereof, or any other person. Upon its receipt of the directions,
the Trustee shall vote the shares of Sponsor Stock reflecting the
participant's proportional interest in the Stock Fund as directed by
the participant. The Trustee shall vote shares of Sponsor Stock
reflecting a participant's proportional interest in the Stock Fund
for which it has received no direction from the participant in the
same proportion on each issue as it votes those shares reflecting
participant's proportional interest in the Stock Fund for which it
received voting directions from participants.
(3) The Trustee shall vote that number of shares of
Sponsor Stock not credited to participants' accounts which is
determined by multiplying the total number of shares not credited to
participants' accounts by a fraction of which the numerator is the
number of shares of Sponsor Stock reflecting such participants'
proportional interest in the Stock Fund credited to participants'
accounts for which the Trustee received voting directions from
participants and of which the denominator is the total number of
shares of Sponsor Stock reflected in the proportional interests of
all
participants under the Plan. The Trustee shall vote those shares of
Sponsor Stock not credited to participants' accounts which are to be
voted by the Trustee pursuant to the foregoing formula in the same
proportion on each issue as it votes those shares reflecting
participants' proportional interest in the Stock Fund for which it
received voting directions from participants. The Trustee shall not
vote the remaining shares of Sponsor Stock not credited to
participants' accounts.
(B) Tender Offers.
(1) Upon commencement of a tender offer for
any securities held in the Trust that are Sponsor Stock, AFCC shall
notify each Plan participant with an interest in such Sponsor Stock
of the tender offer and utilize its best efforts to timely
distribute or cause to be distributed to the participant the same
is distributed to shareholders of the issuer of Sponsor Stock in
information that connection with the tender offer, and, after
consulting with the Trustee, shall provide and pay for a means by
which the participant may direct the Trustee whether or not to
tender the Sponsor Stock reflecting such participant's proportional
interest in the Stock Fund(both vested and unvested). AFCC shall
provide the Trustee with a copy of any material provided to the
participants and shall certify to
the Trustee that the materials have been mailed or otherwise sent to
participants.
(2) Each participant shall have the right to
direct the Trustee to tender or not to tender some or all of the
shares of Sponsor Stock reflecting such participant's proportional
interest in the Stock Fund (both vested and unvested). Directions
from a participant to the Trustee concerning the tender of Sponsor
Stock shall be communicated in writing, or by mailgram
<PAGE>
or such similar means as is agreed upon by the Trustee and AFCC under
the preceding paragraph. These directions shall be held in confidence
by the Trustee and shall not be divulged to AFCC, or any officer or
employee thereof, or any other person except to the extent that the
consequences of such directions are reflected in reports regularly
communicated to any such persons in the ordinary course of the
performance of the Trustee's services hereunder. The Trustee shall
tender or not tender shares of Sponsor Stock as directed by the
participant. The Trustee shall not tender shares of Sponsor Stock
reflecting a participant's proportional interest in the Stock Fund for
which it has received no direction from the participant.
(3) The Trustee shall tender that number of
shares of Sponsor Stock not credited to participants' accounts which
is determined by multiplying the total number of shares of Sponsor
Stock not credited to participants' accounts by a fraction of which
the numerator is the number of shares of Sponsor Stock reflecting
participants' proportional interests in the Stock Fund for which the
Trustee has received directions from participants to tender (which
directions have not been withdrawn as of the date of this
determination)and of which the denominator is the total number of
shares of Sponsor Stock reflected in the proportional interests of
all participants under the Plan.
(4) A participant who has directed the
Trustee to tender some or all of the shares of Sponsor Stock
reflecting the participant's proportional interest in the Stock Fund
may, at any time prior to the tender offer withdrawal date, direct
the
Trustee to withdraw some or all of the tendered shares reflecting
the
participant's proportional interest, and the Trustee shall withdraw
the directed number of shares from the tender offer prior to the
tender offer withdrawal deadline. Prior to the withdrawal deadline,
if any shares of Sponsor Stock not credited to participants'
accounts
have been tendered, the Trustee shall redetermine the number of
shares
of Sponsor Stock that would be tendered under Section 4(e)(v)(B)(3)
if
the date of the foregoing withdrawal were the date of determination,
and withdraw from the tender offer the number of shares of Sponsor
Stock not credited to participants' accounts necessary to reduce the
amount of tendered Sponsor Stock not credited to participants'
accounts to the amount so redetermined. A participant shall not be
limited as to the number of directions to tender or withdraw that
the participant may give to the Trustee.
(5) A direction by a participant to the
Trustee to tender shares of Sponsor Stock reflecting the
participant's
proportional interest in the Stock Fund shall not be considered a
written election under the Plan by the participant to withdraw, or
have distributed, any or all of his withdrawable shares. The
Trustee
shall credit to each proportional interest of the participant from
which the tendered shares were taken the proceeds received by the
Trustee in exchange for the shares of Sponsor Stock tendered from
that
interest. Pending receipt of directions (through the Administrator)
from the participant or the Committee, as provided in the Plan, as to
which of the remaining investment options the proceeds should be
invested in, the Trustee shall invest the proceeds in the Mutual Fund
described in Schedule "C".
(vi) Shares Credited. For all purposes of this Section,
the number of shares of Sponsor Stock deemed "credited" or
"reflected" to a participant's proportional interest shall be
determined as of the last preceding valuation date.
The trade date is the date the transaction is valued.
(vii) General. With respect to all rights other than the right to
vote, the right to tender, and the right to withdraw shares
previously tendered, in the case of Sponsor Stock credited to a
participant's proportional interest in the Stock Fund, the Trustee
shall follow the directions of the participant and if no such
directions are received, the directions of the Committee. The
Trustee shall have no duty to solicit directions from participants.
With respect to all rights other than the right to vote and the
right to tender, in the case of Sponsor Stock not credited to
participants' accounts, the Trustee shall follow the directions of
the Committee.
(viii) Conversion. All provisions in this Section 4(e)
shall also apply to any securities received as a result of a
conversion of Sponsor Stock.
(3) Adding the following to the "investment options" portion of
Schedules "A" and "C":
AFCC Stock Fund
(4) Amending Schedule "B" by adding the following fee:
* To the extent that assets are invested in AFCC Stock Fund,
0.10% per year payable pro rata quarterly on the basis of
such assets the Trust as of the calendar quarter's last
valuation date, but no less than $10,000.00 nor more than
$35,000.00 per year.
(5) Amending and restating Schedule "H" as attached.
IN WITNESS WHEREOF, the Trustee and AFCC have caused this Ninth Amendment
to be executed by their duly authorized officers effective as of the day and
year first above written.
ASSOCIATES FIRST CAPITAL FIDELITY MANAGEMENT TRUST
CORPORATION COMPANY
<PAGE>
Schedule "H"
TELEPHONE EXCHANGE PROCEDURES
The following telephone exchange procedures are currently employed by
Fidelity Institutional Retirement Services Company (FIRSCO).
Telephone exchange hours are 8:30 a.m. (ET) to 8:00 p.m. (ET) on each
business day. A "business day" is any day on which the New York Stock
Exchange is open.
FIRSCO reserves the right to change these telephone exchange procedures at
its discretion.
Mutual Funds
Exchanges Between Mutual Funds
Participants may call on any business day to exchange between the mutual
funds. If the request is received before 4:00 p.m. (ET), it will
receive that day's trade date. Calls received after 4:00 p.m. (ET) will
be processed on a next day basis.
Sponsor Stock Fund
I. Exchanges Between Mutual Funds and Sponsor Stock Fund
Participants may call on any business day to exchange between the
mutual funds and the applicable Stock Funds. If the request is
received before 4:00 p.m. (ET), it will receive that day's trade date.
Calls received after 4:00 p.m. (ET) will be processed on a next day
basis.
II. Exchange Restrictions
Investments in the Stock Funds will consist primarily of shares of the
applicable Sponsor Stock. However, in order to satisfy daily
participant requests for exchanges, loans and withdrawals,
the Stock Funds will also hold cash or other short-term liquid
investments in an amount that has been agreed to in writing by
AFCC and the Trustee. The Trustee will be responsible for
ensuring that the percentage of these investments falls
within the agreed upon range over time. However, if there is
insufficient liquidity in the AFCC Stock Fund or the Ford Motor
Company Fund, as applicable, to allow for such activity, the Trustee
will sell shares of applicable Sponsor Stock in the open market.
Exchange and redemption transactions will be processed as soon as
proceeds from the sale of applicable Sponsor Stock are received.
ASSOCIATES FIRST CAPITAL CORPORATION
By: _______________________
Date
<PAGE>
Exhibit No. 5
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
P. O. BOX 2508
CINCINNATI OH 45201
Employer Identification Number:
Date: FEB 2 3 1996 06-0876639
ASSOCIATES FIRST CAPITAL DLN: 315160002
CORPORATION Person to Contact:WALTER WELLS
250 E. CARPENTER FREEWAY Contact Telephone Number:(513) 684-3079
Plan Name: Retirement SAVINGS AND
PROFIT SHARING PLAN
Plan Number: 002
Dear Applicant:
We have made a favorable determination on your plan, identified
above, based on the information supplied. Please keep this
letter in your permanent records.
Continued qualification of the plan under its present form will
depend on its effect in operation. (See section 1.401-1(b)(3) of
the Income Tax Regulations.) We will review the status of the
plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect
the qualified status of your employee retirement plan, and
provides information on the reporting requirements for your plan.
It also describes some events that automatically nullify it. It
is very important that you read the publication
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other federal or local statutes.
This determination is subject to your adoption of the proposed
amendments submitted in your letter dated January 19, 1996. The
proposed amendments should be adopted on or before the date
prescribed by the regulations under Code Section 401(b).
This determination letter is applicable for the amendment(s)
adopted on August 3, 1993.
This determination letter does not apply to the merger,
consolidation, or transfer of assets or liabilities of a plan
described in Code section 6053(a) to, or with, another plan, or
to whether requirements of the Income Tax Regulations under Code
section 414(1) have been met. This is only a determination as to
the qualification of the plan.
This plan has been mandatorily disaggregated, permissively
aggregated, or restructured to satisfy the nondiscrimination
requirements.
This plan satisfies the nondiscrimination in amount requirement
of section 1.401(a)(4)-1(b)(2) of the regulations on the basis of
a design-based safe harbor described in the regulations.
<PAGE>
ASSOCIATES FIRST CAPITAL
This letter is issued under field. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1936 except as
otherwise specified in this letter.
This plan satisfies the nondiscrimination current availability
requirements of section 1.401(a)(4)-4(b) of the regulations with
respect to those benefits, rights, and features that are
currently available to all employees in the plan's cover-age
group For this purpose, the plan's coverage group consists of
those employees treated as currently benefiting for purposes of
demonstrating that the plan satisfies the minimum coverage
requirements of section 410(b) of the Code.
This letter may not be relied upon with respect to whether the
plan satisfies the qualification requirements as amended by the
Uruguay Round Agreements Act. Pub. L. 103-465
The information on the enclosed addendum is an integral part of
this determination. Please be sure to read and keep it with this
letter.
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
If you have questions concerning this matter, please contact the
person whose name and telephone number are shown above.
Sincerely yours,
/s/ C. Ashley Bullard
District Director
Enclosures: Publication 794 Reporting & Disclosure Guide for
Employee Benefit Plans Addendum
<PAGE>
Associates First Capital
This determination letter does not express an opinion as to
Whether the plan satisfies the requirements of the Puerto Rico
Internal Revenue Code of 1994.
<PAGE>
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of Associates First Capital Corporation
on Form S-8 (File No. 333- ) pertaining to Associates Savings and
Profit Sharing Plan of our report dated January 26, 1996,
appearing in the Annual Report on Form 10-K of Associates First
Capital Corporation for the year ended December 31, 1995.
Additionally, we consent to the incorporation by reference in
this Registration Statement of our report dated July 3, 1996, on
our audit of the combined financial statements of Associates
International Group as of December 31, 1995 and the related
combined statements of eamings, changes in stockholder's equity,
and cash flows for the year then ended, appearing in the Current
Report of Associates First Capital Corporation dated July 3,
1996.
COOPERS & LYBRAND L.L.P.
Dallas, Texas
July 29, 1996
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned,
being an officer or director, or both, of ASSOCIATES FIRST
CAPITAL CORPORATION, a Delaware corporation (the "Company"), do
hereby make, constitute and appoint Roy A. Guthrie, Timothy M.
Hayes, and Chester D. Longenecker, and each of them,
attorneys-in-fact and agents of the undersigned with full power
and authority of substitution and resubstitution, in any and all
capacities, to execute for and on behalf of the undersigned the
Registration Statement on Form S-8 relating to the shares of
Class A Common Stock of the Company and/or obligations of the Company
with values based on the value of the Class A Common Stock of any
other index, and any and all pre-effective
and post-effective amendments or supplements to the
foregoing Registration Statement and any other documents and
instruments incidental thereto, and to deliver and file the same,
with all exhibits thereto, and all documents and instruments in
connection therewith, with the Securities and Exchange
Commission, and with each exchange on which any class of
securities of the Company is registered, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing that
said attorneys-in-fact and agents, and each of them, deem
advisable or necessary to enable the Company to effectuate the
intents and purposes hereof, and the undersigned hereby fully
ratify and confirm all that said attorneys-in-fact and agents, or
any of them, or their respective substitutes, if any, shall do or
cause to be done by virtue hereof.
IN WITNESS HEREOF, each of the undersigned has subscribed his or her
name, this 30th day of July, 1996.
/S/ Keith W. Hughes
-------------------------------
Name: Keith W. Hughes
Title: Chairman of the Board, Principal
Executive Officer and Director
/s/ Roy A. Guthrie
-------------------------------
Name: Roy A. Guthrie
Title: Executive Vice President, Comptroller,
And Principal Accounting Officer and Director
<PAGE>
/s/ Harold D. Marshall
-------------------------------
Name: Harold D. Marshall
Title: Director
/s/ Joseph M. McQuillan
--------------------------
Name: Joseph M. McQuillan
Title: Director
