Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
COCA-COLA ENTERPRISES INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 58-0503352
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2500 Windy Ridge Parkway, Atlanta, Georgia 30339
(Address of principal executive offices) (Zip Code)
COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN FOR CERTAIN BARGAINING EMPLOYEES
(Full title of the Plan)
Lowry F. Kline, Esq.
General Counsel
Coca-Cola Enterprises Inc.
2500 Windy Ridge Parkway
Atlanta, GA 30339
(Name and address of agent for service)
(770) 989-3000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
______________________________________________________________________________
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered registered share price fee
------------- ----------- ---------- ----------- -------------
Coca-Cola 25,000 $27.0625(1) $676,562.50(1) $251(1)
Enterprises shares
Inc. Common
Stock, $1.00
par value
(1) Determined in accordance with Rule 457(c) under the Securities Act
of 1933, based on the average of the high and low prices reported
on the New York Stock Exchange on December 26, 1995.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the
Commission are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 10-K filed pursuant
to Section 13 of the Securities Exchange Act of 1934 for its fiscal year ended
December 31, 1994;
(b) all other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since December
31, 1994;
(c) the description of the Registrant's common stock to be
offered hereby which is contained in the registration statement filed on Form
8-A on October 28, 1986, under Section 12 of the Securities Exchange Act of
1934, including any amendments or reports filed for the purpose of updating
such description.
All documents filed by the Registrant or the Plan pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
after the date of filing of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated hereby by reference and
to be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Sixth of the Registrant's Restated Certificate of
Incorporation provides for the elimination of personal monetary liabilities of
directors of the Registrant for breaches of certain of their fiduciary duties
to the full extent permitted by Section 102(b)(7) of the General Corporation
Law of Delaware (the "GCL"). Section 102(b)(7) of the GCL enables a
corporation in its certificate of incorporation to eliminate or limit the
personal liability of members of its board of directors to the corporation or
its shareholders for monetary damages for violations of a director's fiduciary
duty of care. Such a provision has no effect on the availability of equitable
remedies, such as an injunction or rescission, for breach of fiduciary duty.
In addition, no such provision may eliminate or limit the liability of a
director for breaching his duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating the law, paying an
unlawful dividend or approving an illegal stock repurchase, or obtaining an
improper personal benefit.
Article Eleventh of the Registrant's Restated Certificate of
Incorporation provides for indemnification of directors and officers to the
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extent permitted by the GCL. Section 145 of the GCL provides for
indemnification of directors and officers from and against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement reasonably
incurred by them in connection with any civil, criminal, administrative or
investigative claim or proceeding (including civil actions brought as
derivative actions by or in the right of the corporation but only to the
extent of expenses reasonably incurred in defending or settling such action)
in which they may become involved by reason of being a director or officer of
the corporation. The section permits indemnification if the director of
officer acted in good faith in a manner which he reasonably believed to be in
or not opposed to the best interest of the corporation and, in addition, in
criminal actions, if he had reasonable cause to believe his conduct to be
lawful. If, in an action brought by or in the right of the corporation, the
director or officer is adjudged to be liable for negligence or misconduct in
the performance of his duty, he will only be entitled to such indemnity as the
court finds to be proper. Persons who are successful in defense of any claim
against them are entitled to indemnification as of right against expenses
reasonably incurred in connection therewith. In all other cases,
indemnification shall be made (unless otherwise ordered by a court) only if
the board of directors, acting by a majority vote of a quorum of disinterested
directors, independent legal counsel or holders of a majority of the shares
entitled to vote determines that the applicable standard of conduct has been
met. Section 145 provides such indemnity for persons who, at the request of
the corporation, act as directors, officers, employees or agents of other
corporations, partnerships or other enterprises.
The Registrant maintains directors and officers liability
insurance which insures against liabilities that directors or officers of the
Registrant may incur in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMS.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of Coca-Cola
Enterprises, as amended on April 15, 1992, incorporated by reference to
Exhibit 28.2 to the Registrant's Quarterly Report on Form 10-Q as filed May
11, 1992.
4.2 Bylaws of Coca-Cola Enterprises, incorporated by reference
to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8,
No. 33-58695.
4.3 Coca-Cola Enterprises Inc. Savings and Investment Plan for
Certain Bargaining Employees.
23 Consent of Ernst & Young LLP.
24 Powers of Attorney and Resolution of Board of Directors.
An opinion of counsel is not being filed because the securities
being registered are not original issuance securities, and the Registrant
undertakes to submit the Plan and any amendments thereto to the Service in
order to secure a determination letter in a timely manner and will make all
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changes required by the Service in order to qualify the Plan and obtain such
letter.
ITEM 9. UNDERTAKINGS.
A. Rule 415 Offering.
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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the Calculation of
Registration Fee table in the effective 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 in such information in the registration
statement;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) above do not apply
if the registration statement is on Form S-3 (Section 239.13 of this chapter),
Form S-8 (Section 239.16b of this chapter) or Form F-3 (Section 239.33 of this
chapter), and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Exchange Act that
are incorporated by reference 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.
(4) If the registrant is a foreign private issuer, to file
a post-effective amendment to the registration statement to include any
financial statements required by Section 210.3-19 of this chapter at the start
of any delayed offering or throughout a continuous offering. Financial
statements and information otherwise required by Section 10(a)(3) of the
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Securities Act of 1933 need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph A.(4) and other information
necessary to ensure that all other information in the prospectus is at lease
as current as the date of those financial statements. Notwithstanding the
foregoing, with respect to registration statements on Form F-3 (Section 239.33
of this chapter), a post-effective amendment need not be filed to include
financial statements and information required by Section 10(a)(3) of the Act
or Section 210.3-19 of this chapter if such financial statements and
information are contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the Form
F-3.
B. Filings Incorporating Subsequent Exchange Act Documents by
Reference.
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 section
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. Filing of Registration Statement on Form S-8.
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Coca-Cola Enterprises Inc., 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 Atlanta,
State of Georgia, on the 19th day of December, 1995.
----
COCA-COLA ENTERPRISES INC.
(Registrant)
S. K. JOHNSTON, JR.
By:-----------------------------
S. K. Johnston, Jr.
Vice Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
S. K. JOHNSTON, JR.
----------------------- Vice Chairman, Chief December 19, 1995
(S.K. Johnston, Jr.) Executive Officer and a
Director (principal
executive officer)
JOHN R. ALM December 19, 1995
----------------------- Senior Vice President
(John R. Alm) and Chief Financial
Officer (principal
financial officer)
BERNICE H. WINTER December 19, 1995
----------------------- Vice President and
(Bernice H. Winter) Controller (principal
accounting officer)
*
----------------------- Chairman of the Board of December 19, 1995
(M. Douglas Ivester) Directors
*
------------------------ President, Chief December 19, 1995
(Henry A. Schimberg) Operating Officer and a
Director
* Director December 19, 1995
-----------------------
(Howard G. Buffett)
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* Director December 19, 1995
-----------------------
(John L. Clendenin)
* Director December 19, 1995
-----------------------
(Johnnetta B. Cole)
----------------------- Director December 19, 1995
(T. Marshall Hahn, Jr.)
* December 19, 1995
----------------------- Director
(Claus M. Halle)
* December 19, 1995
----------------------- Director
(L. Phillip Humann)
* December 19, 1995
----------------------- Director
(E. Neville Isdell)
* December 19, 1995
----------------------- Director
(John E. Jacob)
* December 19, 1995
----------------------- Director
(Robert A. Keller)
* December 19, 1995
----------------------- Director
(Scott L. Probasco, Jr.)
* December 19, 1995
----------------------- Director
(Francis A. Tarkenton)
LOWRY F. KLINE
*By:------------------------
Lowry F. Kline
Attorney-in-Fact
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Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on December 19, 1995.
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COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN
FOR CERTAIN BARGAINING EMPLOYEES
By: SunTrust Bank, Atlanta
Plan Trustee
JAMES F. WINTERS III
By:_____________________________
Name: James F. Winters III
Group Vice President
Title:__________________________
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COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN FOR CERTAIN BARGAINING EMPLOYEES
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
TOP HEAVY AND ADMINISTRATION
2.1 TOP HEAVY PLAN REQUIREMENTS 12
2.2 POWERS AND RESPONSIBILITIES OF THE EMPLOYER 12
2.3 DESIGNATION OF ADMINISTRATIVE AUTHORITY 13
2.4 ALLOCATION AND DELEGATION OF RESPONSIBILITIES 13
2.5 POWERS AND DUTIES OF THE ADMINISTRATOR 13
2.6 RECORDS AND REPORTS 15
2.7 APPOINTMENT OF ADVISERS 15
2.8 INFORMATION FROM EMPLOYER 15
2.9 PAYMENT OF EXPENSES 15
2.10 MAJORITY ACTIONS 15
2.11 CLAIMS PROCEDURE 16
2.12 CLAIMS REVIEW PROCEDURE 16
ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY 17
3.2 EFFECTIVE DATE OF PARTICIPATION 17
3.3 DETERMINATION OF ELIGIBILITY 17
3.4 TERMINATION OF ELIGIBILITY 17
3.5 INCLUSION OF INELIGIBLE EMPLOYEE 18
3.6 ELECTION NOT TO PARTICIPATE 18
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION 18
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4.2 PARTICIPANT'S SALARY REDUCTION ELECTION 18
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION 22
4.4 ALLOCATION OF CONTRIBUTION AND EARNINGS 22
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS 25
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS 27
4.7 MAXIMUM ANNUAL ADDITIONS 29
4.8 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS 33
4.9 DIRECTED INVESTMENT ACCOUNT 34
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND 34
5.2 METHOD OF VALUATION 34
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT 35
6.2 DETERMINATION OF BENEFITS UPON DEATH 35
6.3 DISABILITY RETIREMENT BENEFITS 36
6.4 DETERMINATION OF BENEFITS UPON TERMINATION 36
6.5 DISTRIBUTION OF BENEFITS 38
6.6 DISTRIBUTION OF BENEFITS UPON DEATH 40
6.7 TIME OF SEGREGATION OR DISTRIBUTION 40
6.8 DISTRIBUTION FOR MINOR BENEFICIARY 41
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN 41
6.10 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION 41
6.11 DIRECT ROLLOVER 41
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ARTICLE VII
AMENDMENT, TERMINATION AND MERGERS
7.1 AMENDMENT 43
7.2 TERMINATION 43
7.3 MERGER OR CONSOLIDATION 44
ARTICLE VIII
MISCELLANEOUS
8.1 PARTICIPANT'S RIGHTS 44
8.2 ALIENATION 44
8.3 CONSTRUCTION OF PLAN 45
8.4 GENDER AND NUMBER 45
8.5 LEGAL ACTION 45
8.6 PROHIBITION AGAINST DIVERSION OF FUNDS 45
8.7 BONDING 46
8.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE 46
8.9 INSURER'S PROTECTIVE CLAUSE 46
8.10 RECEIPT AND RELEASE FOR PAYMENTS 47
8.11 ACTION BY THE EMPLOYER 47
8.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY 47
8.13 HEADINGS 48
8.14 APPROVAL BY INTERNAL REVENUE SERVICE 48
8.15 UNIFORMITY 48
ARTICLE IX
PARTICIPATING EMPLOYERS
9.1 ADOPTION BY OTHER EMPLOYERS 49
9.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS 49
9.3 DESIGNATION OF AGENT 49
9.4 EMPLOYEE TRANSFERS 50
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9.5 PARTICIPATING EMPLOYER'S CONTRIBUTION 50
9.6 AMENDMENT 50
9.7 DISCONTINUANCE OF PARTICIPATION 50
9.8 ADMINISTRATOR'S AUTHORITY 51
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COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN FOR CERTAIN BARGAINING EMPLOYEES
THIS PLAN, hereby adopted this ____ day of
______________________, 19__, by Coca-Cola Enterprises Inc.
(herein referred to as the "Employer").
W I T N E S S E T H:
WHEREAS, The purpose of this Plan is to promote the
well-being of eligible employees by making funds available for
payment of benefits hereunder in a manner and under the
circumstances herein described, and to secure for the well-being
of eligible employees advantages available under Section 401(k)
and certain other sections of the code;
NOW, THEREFORE, effective March 4, 1994, (hereinafter
called the "Effective Date"), the Employer hereby establishes a
401(k) Profit Sharing Plan (the "Plan") for the exclusive benefit
of the Participants and their Beneficiaries, on the following
terms:
ARTICLE I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act
of 1974, as it may be amended from time to time.
1.2 "Administrator" means the person or entity designated
by the Employer pursuant to Section 2.3 to administer the Plan on
behalf of the Employer.
1.3 "Affiliated Employer" means any corporation which is a
member of a controlled group of corporations (as defined in Code
Section 414(b)) which includes the Employer; any trade or
business (whether or not incorporated) which is under common
control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member
of an affiliated service group (as defined in Code Section
414(m)) which includes the Employer; and any other entity
required to be aggregated with the Employer pursuant to
Regulations under Code Section 414(o).
1.4 "Aggregate Account" means, with respect to each
Participant, the value of all accounts maintained on behalf of a
Participant, whether attributable to Employer or Employee
contributions, subject to the provisions of Section 2.2.
1.5 "Anniversary Date" means December 31.
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1.6 "Beneficiary" means the person to whom the share of a
deceased Participant's total account is payable, subject to the
restrictions of Sections 6.2 and 6.6.
1.7 "Code" means the Internal Revenue Code of 1986, as
amended or replaced from time to time.
1.8 "Compensation" with respect to any Participant means
such Participant's wages as defined in Code Section 3401(a) and
all other payments of compensation by the Employer (in the course
of the Employer's trade or business) for a Plan Year for which
the Employer is required to furnish the Participant a written
statement under Code Sections 6041(d), 6051(a)(3) and 6052.
Compensation must be determined without regard to any rules under
Code Section 3401(a) that limit the remuneration included in
wages based on the nature or location of the employment or the
services performed (such as the exception for agricultural labor
in Code Section 3401(a)(2)).
For purposes of this Section, the determination of
Compensation shall be made by:
(a) including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are
not includible in the gross income of the Participant under Code
Sections 125, 402(e)(3), 402(h), 403(b) or 457, and Employee
contributions described in Code Section 414(h)(2) that are
treated as Employer contributions.
For a Participant's initial year of participation,
Compensation shall be recognized as of such Employee's effective
date of participation pursuant to Section 3.3.
Compensation in excess of $150,000 shall be
disregarded. However, the annual compensation limit of $150,000
is adjusted by the Commissioner for increases in the cost of
living in accordance with Code Section 401(a)(17)(B). The cost
of living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is
determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12 months,
the annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For any short Plan Year the Compensation limit shall be
an amount equal to the Compensation limit for the calendar year
in which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by
twelve (12). In applying this limitation, the family group of a
Highly Compensated Participant who is subject to the Family
Member aggregation rules of Code Section 414(q)(6) because such
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Participant is either a "five percent owner" of the Employer or
one of the ten (10) Highly Compensated Employees paid the
greatest "415 Compensation" during the year, shall be treated as
a single Participant, except that for this purpose Family Members
shall include only the affected Participant's spouse and any
lineal descendants who have not attained age nineteen (19) before
the close of the year. If, as a result of the application of
such rules the adjusted $150,000 limitation is exceeded, then the
limitation shall be prorated among the affected Family Members in
proportion to each such Family Member's Compensation prior to the
application of this limitation, or the limitation shall be
adjusted in accordance with any other method permitted by
Regulation.
If Compensation for any prior determination period is
taken into account in determining an Employee's benefits accruing
in the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA '93 annual
compensation limit in effect for that prior determination period.
If, as a result of such rules, the maximum "annual
addition" limit of Section 4.7(a) would be exceeded for one or
more of the affected Family Members, the prorated Compensation of
all affected Family Members shall be adjusted to avoid or reduce
any excess. The prorated Compensation of any affected Family
Member whose allocation would exceed the limit shall be adjusted
downward to the level needed to provide an allocation equal to
such limit. The prorated Compensation of affected Family Members
not affected by such limit shall then be adjusted upward on a pro
rata basis not to exceed each such affected Family Member's
Compensation as determined prior to application of the Family
Member rule. The resulting allocation shall not exceed such
individual's maximum "annual addition" limit. If, after these
adjustments, an "excess amount" still results, such "excess
amount" shall be disposed of in the manner described in Section
4.8(a) pro rata among all affected Family Members.
For purposes of this Section, if the Plan is a plan
described in Code Section 413(c) or 414(f) (a plan maintained by
more than one Employer), the $150,000 limitation applies
separately with respect to the Compensation of any Participant
from each Employer maintaining the Plan.
1.9 "Contract" or "Policy" means any life insurance policy,
retirement income or annuity policy, or annuity contract (group
or individual) issued pursuant to the terms of the Plan.
1.10 "Deferred Compensation" with respect to any Participant
means the amount of the Participant's total Compensation which
has been contributed to the Plan in accordance with the
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Participant's deferral election pursuant to Section 4.2 excluding
any such amounts distributed as excess "annual additions"
pursuant to Section 4.8(a).
1.11 "Early Retirement Date." This Plan does not provide for
a retirement date prior to Normal Retirement Date.
1.12 "Elective Contribution" means the Employer's
contributions to the Plan of Deferred Compensation excluding any
such amounts distributed as excess "annual additions" pursuant to
Section 4.8(a). In addition, any Employer Qualified Non-Elective
Contribution made pursuant to Section 4.6 shall be considered an
Elective Contribution for purposes of the Plan. Any such
contributions deemed to be Elective Contributions shall be
subject to the requirements of Sections 4.2(b) and 4.2(c) and
shall further be required to satisfy the discrimination
requirements of Regulation 1.401(k)-l(b)(5), the provisions of
which are specifically incorporated herein by reference.
1.13 "Eligible Employee" means each Employee who (1) is
regularly scheduled to work at least 1,000 Hours in a Plan Year
and (2) is a member of the collective bargaining unit and who is
eligible for the Plan under the terms of a contract negotiated
between the Employer and such bargaining unit.
1.14 "Employee" means any person who is employed by the
Employer or Affiliated Employer, but excludes any person who is
an independent contractor. Employee shall include Leased
Employees within the meaning of Code Sections 414(n)(2) and
414(o)(2) unless such Leased Employees are covered by a plan
described in Code Section 414(n)(5) and such Leased Employees do
not constitute more than 20% of the recipient's non-highly
compensated work force.
1.15 "Employer" means Coca-Cola Enterprises Inc., any
subsidiary thereof, and any Participating Employer (as defined in
Section 9.1) which shall adopt this Plan; any successor which
shall maintain this Plan; and any predecessor which has
maintained this Plan. The Employer is a corporation, with
principal offices in the State of Georgia.
1.16 "Excess Contributions" means, with respect to a Plan
Year, the excess of Elective Contributions made on behalf of
Highly Compensated Participants for the Plan Year over the
maximum amount of such contributions permitted under Section
4.5(a). Excess Contributions shall be treated as an "annual
addition" pursuant to Section 4.7(b).
1.17 "Excess Deferred Compensation" means, with respect to
any taxable year of a Participant, the excess of the aggregate
amount of such Participant's Deferred Compensation and the
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elective deferrals pursuant to Section 4.2(f) actually made on
behalf of such Participant for such taxable year, over the dollar
limitation provided for in Code Section 402(g), which is
incorporated herein by reference. Excess Deferred Compensation
shall be treated as an "annual addition" pursuant to Section
4.7(b) when contributed to the Plan unless distributed to the
affected Participant not later than the first April 15th
following the close of the Participant's taxable year.
Additionally, for purposes of Section 4.4(c), Excess Deferred
Compensation shall continue to be treated as Employer
contributions even if distributed pursuant to Section 4.2(f).
However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section
4.5(a) to the extent such Excess Deferred Compensation occurs
pursuant to Section 4.2(d).
1.18 "Family Member" means, with respect to an affected
Participant, such Participant's spouse and such Participant's
lineal descendants and ascendants and their spouses, all as
described in Code Section 414(q)(6)(B).
1.19 "Fiduciary" means any person who (a) exercises any
discretionary authority or discretionary control respecting
management of the Plan or exercises any authority or control
respecting management or disposition of its assets, (b) renders
investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the
Plan or has any authority or responsibility to do so, or (c) has
any discretionary authority or discretionary responsibility in
the administration of the Plan, including, but not limited to,
the Trustee, the Employer and its representative body, and the
Administrator.
1.20 "Fiscal Year" means the Employer's accounting year of
12 months commencing on January 1st of each year and ending the
following December 31st.
1.21 "Former Participant" means a person who has been a
Participant, but who has ceased to be a Participant for any
reason.
1.22 "415 Compensation" with respect to any Participant
means such Participant's wages as defined in Code Section 3401(a)
and all other payments of compensation by the Employer (in the
course of the Employer's trade or business) for a Plan Year for
which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 6051(a)(3) and
6052. "415 Compensation" must be determined without regard to
any rules under Code Section 3401(a) that limit the remuneration
included in wages based on the nature or location of the
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employment or the services performed (such as the exception for
agricultural labor in Code Section 3401(a)(2)).
1.23 "Highly Compensated Participant" means an Eligible
Employee who participates in the Plan and who is described in
Code Section 414(q) and the Regulations thereunder, and generally
means an Employee who performed services for the Employer during
the "determination year" and is in one or more of the following
groups:
(a) Employees who at any time during the
"determination year" or "look-back year" were "five
percent owners" as defined in Section 1.31(c).
(b) Employees who received "415 Compensation"
during the "look-back year" from the Employer in excess
of $75,000.
(c) Employees who received "415 Compensation"
during the "look-back year" from the Employer in excess
of $50,000 and were in the Top Paid Group of Employees
for the Plan Year.
(d) Employees who during the "look-back year" were
officers of the Employer (as that term is defined
within the meaning of the Regulations under Code
Section 416) and received "415 Compensation" during the
"look-back year" from the Employer greater than 50
percent of the limit in effect under Code Section
415(b)(1)(A) for any such Plan Year. The number of
officers shall be limited to the lesser of (i) 50
employees; or (ii) the greater of 3 employees or 10
percent of all employees. For the purpose of
determining the number of officers, Employees described
in Section 1.51(a), (b), (c) and (d) shall be excluded,
but such Employees shall still be considered for the
purpose of identifying the particular Employees who are
officers. If the Employer does not have at least one
officer whose annual "415 Compensation" is in excess of
50 percent of the Code Section 415(b)(1)(A) limit, then
the highest paid officer of the Employer will be
treated as a Highly Compensated Employee.
(e) Employees who are in the group consisting of
the 100 Employees paid the greatest "415 Compensation"
during the "determination year" and are also described
in (b), (c) or (d) above when these paragraphs are
modified to substitute "determination year" for
"look-back year."
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The "determination year" shall be the Plan Year for
which testing is being performed, and the "look-back year" shall
be the immediately preceding twelve-month period.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are
contributed by the Employer pursuant to a salary reduction
agreement and which are not includible in the gross income of the
Participant under Code Sections 125, 402(e)(3), 402(h), 403(b) or
457, and Employee contributions described in Code Section
414(h)(2) that are treated as Employer contributions.
Additionally, the dollar threshold amounts specified in (b) and
(c) above shall be adjusted at such time and in such manner as is
provided in Regulations. In the case of such an adjustment, the
dollar limits which shall be applied are those for the calendar
year in which the "determination year" or "look-back year"
begins.
In determining who is a Highly Compensated Participant,
Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 911(d)(2)) from the
Employer constituting United States source income within the
meaning of Code Section 861(a)(3) shall not be treated as
Employees. Additionally, all Affiliated Employers shall be taken
into account as a single employer.
1.24 "Hour of Service" means (1) each hour for which an
Employee is directly or indirectly compensated or entitled to
compensation by the Employer for the performance of duties during
the applicable computation period; (2) each hour for which an
Employee is directly or indirectly compensated or entitled to
compensation by the Employer (irrespective of whether the
employment relationship has terminated) for reasons other than
performance of duties (such as vacation, holidays, sickness, jury
duty, disability, lay-off, military duty or leave of absence)
during the applicable computation period; (3) each hour for which
back pay is awarded or agreed to by the Employer without regard
to mitigation of damages. These hours will be credited to the
Employee for the computation period or periods to which the award
or agreement pertains rather than the computation period in which
the award, agreement or payment is made. The same Hours of
Service shall not be credited both under (1) or (2), as the case
may be, and under (3).
Notwithstanding the above, (i) no more than 501 Hours
of Service are required to be credited to an Employee on account
of any single continuous period during which the Employee
performs no duties (whether or not such period occurs in a single
computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account
of a period during which no duties are performed is not required
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to be credited to the Employee if such payment is made or due
under a plan maintained solely for the purpose of complying with
applicable worker's compensation, or unemployment compensation or
disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an
Employee for medical or medically related expenses incurred by
the Employee.
For purposes of this Section, a payment shall be deemed
to be made by or due from the Employer regardless of whether such
payment is made by or due from the Employer directly, or
indirectly through, among others, a trust fund, or insurer, to
which the Employer contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer, or
other entity are for the benefit of particular Employees or are
on behalf of a group of Employees in the aggregate.
An Hour of Service must be counted for the purpose of
determining a Year of Service, a year of participation for
purposes of accrued benefits, a l-Year Break in Service, and
employment commencement date (or reemployment commencement date).
In addition, Hours of Service will be credited for employment
with other Affiliated Employers. The provisions of Department of
Labor regulations 2530.200b-2(b) and (c) are incorporated herein
by reference.
1.25 "Income" means the income or losses allocable to Excess
Deferred Compensation or Excess Contributions which amount shall
be allocated in the same manner as income or losses are allocated
pursuant to Section 4.4(b).
1.26 "Investment Manager" means an entity that (a) has the
power to manage, acquire, or dispose of Plan assets and (b)
acknowledges fiduciary responsibility to the Plan in writing.
Such entity must be a person, firm, or corporation registered as
an investment adviser under the Investment Advisers Act of 1940,
a bank, or an insurance company.
1.27 "Late Retirement Date" means the first day of the month
coinciding with or next following a Participant's actual
Retirement Date after having reached his Normal Retirement Date.
1.28 "Non-Highly Compensated Participant" means any
Participant who is neither a Highly Compensated Participant nor a
Family Member.
1.29 "Normal Retirement Age" is related to the age a
Participant becomes eligible for full Social Security benefits.
If the participant was born in 1937 or earlier, his normal
retirement age is 65; if the participant was born in the years
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1938-1954, his normal retirement age is 66; if the participant
was born after 1954, his normal retirement age is 67.
1.30 "Normal Retirement Date" means the first day of the
month coinciding with or next following the Participant's Normal
Retirement Age.
1.31 "l-Year Break in Service" means the applicable
computation period during which an Employee has not completed
more than 500 Hours of Service with the Employer. Further,
solely for the purpose of determining whether a Participant has
incurred a l-Year Break in Service, Hours of Service shall be
recognized for "authorized leaves of absence" and "maternity and
paternity leaves of absence." Years of Service and l-Year Breaks
in Service shall be measured on the same computation period.
"Authorized leave of absence" means an unpaid,
temporary cessation from active employment with the Employer
pursuant to an established nondiscriminatory policy, whether
occasioned by illness, military service, or any other reason.
A "maternity or paternity leave of absence" means, for
Plan Years beginning after December 31, 1984, an absence from
work for any period by reason of the Employee's pregnancy, birth
of the Employee's child, placement of a child with the Employee
in connection with the adoption of such child, or any absence for
the purpose of caring for such child for a period immediately
following such birth or placement. For this purpose, Hours of
Service shall be credited for the computation period in which the
absence from work begins, only if credit therefore is necessary
to prevent the Employee from incurring a l-Year Break in Service,
or, in any other case, in the immediately following computation
period. The Hours of Service credited for a "maternity or
paternity leave of absence" shall be those which would normally
have been credited but for such absence, or, in any case in which
the Administrator is unable to determine such hours normally
credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity
leave of absence" shall not exceed 501.
1.32 "Participant" means any Eligible Employee who
participates in the Plan as provided in Sections 3.2 and 3.3, and
has not for any reason become ineligible to participate further
in the Plan.
1.33 "Participant's Elective Account" means the account
established and maintained by the Administrator for each
Participant with respect to his total interest in the Plan and
Trust resulting from the Employer's Elective Contributions. A
separate accounting shall be maintained with respect to that
portion of the Participant's Elective Account attributable to
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Elective Contributions pursuant to Section 4.2 and any Employer
Qualified Non-Elective Contributions.
1.34 "Plan" means this instrument, including all amendments
thereto.
1.35 "Plan Year" means the Plan's accounting year of twelve
(12) months commencing on January 1st of each year and ending the
following December 31st, except for the first Plan Year which
commenced March 4, 1994.
1.36 "Qualified Non-Elective Contribution" means the
Employer's contributions to the Plan that are made pursuant to
Section 4.6. Such contributions shall be considered an Elective
Contribution for the purposes of the Plan and used to satisfy the
"Actual Deferral Percentage" tests.
1.37 "Regulation" means the Income Tax Regulations as
promulgated by the Secretary of the Treasury or his delegate, and
as amended from time to time.
1.38 "Retired Participant" means a person who has been a
Participant, but who has become entitled to retirement benefits
under the Plan.
1.39 "Retirement Date" means the date as of which a
Participant retires whether such retirement occurs on a
Participant's Normal Retirement Date or Late Retirement Date (see
Section 6.1).
1.40 "Terminated Participant" means a person who has been a
Participant, but whose employment has been terminated other than
by death or retirement.
1.41 "Top Paid Group" means the top 20 percent of Employees
who performed services for the Employer during the applicable
year, ranked according to the amount of "415 Compensation"
(determined for this purpose in accordance with Section 1.25)
received from the Employer during such year. All Affiliated
Employers shall be taken into account as a single employer.
Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 911(d)(2)) from the
Employer constituting United States source income within the
meaning of Code Section 861(a)(3) shall not be treated as
Employees. Additionally, for the purpose of determining the
number of active Employees in any year, the following additional
Employees shall also be excluded; however, such Employees shall
still be considered for the purpose of identifying the particular
Employees in the Top Paid Group:
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(a) Employees with less than six (6) months of
service;
(b) Employees who normally work less than 17 1/2
hours per week;
(c) Employees who normally work less than six (6)
months during a year; and
(d) Employees who have not yet attained age 21.
The foregoing exclusions set forth in this Section
shall be applied on a uniform and consistent basis for all
purposes for which the Code Section 414(q) definition is
applicable.
1.42 "Trustee" means the person or entity named as trustee
herein or in any separate trust forming a part of this Plan, and
any successors.
1.43 "Trust Fund" means the assets of the Plan and Trust as
the same shall exist from time to time.
1.44 "Vested" means the nonforfeitable portion of any
account maintained on behalf of a Participant.
1.45 "Year of Service" means the computation period of
twelve (12) consecutive months, herein set forth, during which an
Employee has at least 1000 Hours of Service.
For purposes of eligibility for participation, the
initial computation period shall begin with the date on which the
Employee first performs an Hour of Service. The participation
computation period beginning after a l-Year Break in Service
shall be measured from the date on which an Employee again
performs an Hour of Service. The participation computation
period shall shift to the Plan Year which includes the
anniversary of the date on which the Employee first performed an
Hour of Service. An Employee who is credited with the required
Hours of Service in both the initial computation period (or the
computation period beginning after a l-Year Break in Service) and
the Plan Year which includes the anniversary of the date on which
the Employee first performed an Hour of Service, shall be
credited with two (2) Years of Service for purposes of
eligibility to participate.
For all other purposes, the computation period shall be
the Plan Year.
Notwithstanding the foregoing, for any short Plan Year,
the determination of whether an Employee has completed a Year of
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Service shall be made in accordance with Department of Labor
Regulation 2530.203-2(c).
Years of Service with any Affiliated Employer shall be
recognized.
ARTICLE II
TOP HEAVY AND ADMINISTRATION
2.1 TOP HEAVY PLAN REQUIREMENTS
This Plan has been adopted for the sole benefit of
Eligible Employees covered by a collective bargaining agreement
whose retirement benefits have been the subject of good faith
bargaining between the Employer and a bargaining unit. It
precludes participation by any Employee who would be considered a
"key employee" under Code Section 416(i)(1). Therefore, the
requirements of Code Section 416 relating to "top-heavy plans"
shall not apply to this Plan.
2.2 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) The Employer shall be empowered to appoint and
remove the Trustee and the Administrator from time to time as it
deems necessary for the proper administration of the Plan to
assure that the Plan is being operated for the exclusive benefit
of the Participants and their Beneficiaries in accordance with
the terms of the Plan, the Code, and the Act.
(b) The Employer shall establish a "funding policy and
method," i.e., it shall determine whether the Plan has a short
run need for liquidity (e.g., to pay benefits) or whether
liquidity is a long run goal and investment growth (and stability
of same) is a more current need, or shall appoint a qualified
person to do so. The Employer or its delegate shall communicate
such needs and goals to the Trustee, who shall coordinate such
Plan needs with its investment policy. The communication of such
a "funding policy and method" shall not, however, constitute a
directive to the Trustee as to investment of the Trust Funds.
Such "funding policy and method" shall be consistent with the
objectives of this Plan and with the requirements of Title I of
the Act.
(c) The Employer shall periodically review the
performance of any Fiduciary or other person to whom duties have
been delegated or allocated by it under the provisions of this
Plan or pursuant to procedures established hereunder. This
requirement may be satisfied by formal periodic review by the
Employer or by a qualified person specifically designated by the
Employer, through day-to-day conduct and evaluation, or through
other appropriate ways.
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2.3 DESIGNATION OF ADMINISTRATIVE AUTHORITY
(a) The Employer shall appoint one or more
Administrators. Any person, including, but not limited to, the
Employees of the Employer, shall be eligible to serve as an
Administrator. Any person so appointed shall signify his
acceptance by filing written acceptance with the Employer. An
Administrator may resign by delivering his written resignation to
the Employer or be removed by the Employer by delivery of written
notice of removal, to take effect at a date specified therein, or
upon delivery to the Administrator if no date is specified.
(b) The Employer, upon the resignation or removal of an
Administrator, shall promptly designate in writing a successor to
this position. If the Employer does not appoint an
Administrator, the Employer will function as the Administrator.
2.4 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed as Administrator,
the responsibilities of each Administrator may be specified by
the Employer and accepted in writing by each Administrator. In
the event that no such delegation is made by the Employer, the
Administrators may allocate the responsibilities among
themselves, in which event the Administrators shall notify the
Employer and the Trustee in writing of such action and specify
the responsibilities of each Administrator. The Trustee
thereafter shall accept and rely upon any documents executed by
the appropriate Administrator until such time as the Employer or
the Administrators file with the Trustee a written revocation of
such designation.
2.5 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to
administer the Plan for the exclusive benefit of the Participants
and their Beneficiaries, subject to the specific terms of the
Plan. The Administrator shall administer the Plan in accordance
with its terms and shall have the power and discretion to
construe the terms of the Plan and to determine all questions
arising in connection with the administration, interpretation,
and application of the Plan. Any such determination by the
Administrator shall be conclusive and binding upon all persons.
The Administrator may establish procedures, correct any defect,
supply any information, or reconcile any inconsistency in such
manner and to such extent as shall be deemed necessary or
advisable to carry out the purpose of the Plan; provided,
however, that any procedure, discretionary act, interpretation or
construction shall be done in a nondiscriminatory manner based
upon uniform principles consistently applied and shall be
consistent with the intent that the Plan shall continue to be
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deemed a qualified plan under the terms of Code Section 401(a),
and shall comply with the terms of the Act and all regulations
issued pursuant thereto. The Administrator shall have all powers
necessary or appropriate to accomplish his duties under this
Plan.
The Administrator shall be charged with the duties of
the general administration of the Plan, including, but not
limited to, the following:
(a) the discretion to determine all questions relating
to the eligibility of Employees to participate or remain a
Participant hereunder and to receive benefits under the Plan;
(b) to compute, certify, and direct the Trustee with
respect to the amount and the kind of benefits to which any
Participant shall be entitled hereunder;
(c) to authorize and direct the Trustee with respect to
all nondiscretionary or otherwise directed disbursements from the
Trust;
(d) to maintain all necessary records for the
administration of the Plan;
(e) to interpret the provisions of the Plan and to make
and publish such rules for regulation of the Plan as are
consistent with the terms hereof;
(f) to determine the size and type of any Contract to
be purchased from any insurer, and to designate the insurer from
which such Contract shall be purchased;
(g) to compute and certify to the Employer and to the
Trustee from time to time the sums of money necessary or
desirable to be contributed to the Plan;
(h) to consult with the Employer and the Trustee
regarding the short and long-term liquidity needs of the Plan in
order that the Trustee can exercise any investment discretion in
a manner designed to accomplish specific objectives;
(i) to prepare and implement a procedure to notify
Eligible Employees that they may elect to have a portion of their
Compensation deferred or paid to them in cash;
(j) to assist any Participant regarding his rights,
benefits, or elections available under the Plan.
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2.6 RECORDS AND REPORTS
The Administrator shall keep a record of all actions
taken and shall keep all other books of account, records, and
other data that may be necessary for proper administration of the
Plan and shall be responsible for supplying all information and
reports to the Internal Revenue Service, Department of Labor,
Participants, Beneficiaries and others as required by law.
2.7 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee with the consent of
the Administrator, may appoint counsel, specialists, advisers,
and other persons as the Administrator or the Trustee deems
necessary or desirable in connection with the administration of
this Plan.
2.8 INFORMATION FROM EMPLOYER
To enable the Administrator to perform his functions,
the Employer shall supply full and timely information to the
Administrator on all matters relating to the Compensation of all
Participants, their Hours of Service, their Years of Service,
their retirement, death, disability, or termination of
employment, and such other pertinent facts as the Administrator
may require; and the Administrator shall advise the Trustee of
such of the foregoing facts as may be pertinent to the Trustee's
duties under the Plan. The Administrator may rely upon such
information as is supplied by the Employer and shall have no duty
or responsibility to verify such information.
2.9 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the
Trust Fund unless paid by the Employer. Such expenses shall
include any expenses incident to the functioning of the
Administrator, including, but not limited to, fees of
accountants, counsel, and other specialists and their agents, and
other costs of administering the Plan. Until paid, the expenses
shall constitute a liability of the Trust Fund. However, the
Employer may reimburse the Trust Fund for any administration
expense incurred.
2.10 MAJORITY ACTIONS
Except where there has been an allocation and
delegation of administrative authority pursuant to Section 2.4,
if there shall be more than one Administrator, they shall act by
a majority of their number, but may authorize one or more of them
to sign all papers on their behalf.
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2.11 CLAIMS PROCEDURE
Claims for benefits under the Plan may be filed in
writing with the Administrator. Written notice of the
disposition of a claim shall be furnished to the claimant within
90 days after the application is filed. In the event the claim
is denied, the reasons for the denial shall be specifically set
forth in the notice in language calculated to be understood by
the claimant, pertinent provisions of the Plan shall be cited,
and, where appropriate, an explanation as to how the claimant can
perfect the claim will be provided. In addition, the claimant
shall be furnished with an explanation of the Plan's claims
review procedure.
2.12 CLAIMS REVIEW PROCEDURE
Any Employee, former Employee, or Beneficiary of
either, who has been denied a benefit by a decision of the
Administrator pursuant to Section 2.11 shall be entitled to
request the Administrator to give further consideration to his
claim by filing with the Administrator (on a form which may be
obtained from the Administrator) a request for a hearing. Such
request, together with a written statement of the reasons why the
claimant believes his claim should be allowed, shall be filed
with the Administrator no later than 60 days after receipt of the
written notification provided for in Section 2.11. The
Administrator shall then conduct a hearing within the next 60
days, at which the claimant may be represented by an attorney or
any other representative of his choosing and at which the
claimant shall have an opportunity to submit written and oral
evidence and arguments in support of his claim. At the hearing
(or prior thereto upon 5 business days written notice to the
Administrator) the claimant or his representative shall have an
opportunity to review all documents in the possession of the
Administrator which are pertinent to the claim at issue and its
disallowance. Either the claimant or the Administrator may cause
a court reporter to attend the hearing and record the
proceedings. In such event, a complete written transcript of the
proceedings shall be furnished to both parties by the court
reporter. The full expense of any such court reporter and such
transcripts shall be borne by the party causing the court
reporter to attend the hearing. A final decision as to the
allowance of the claim shall be made by the Administrator within
60 days of receipt of the appeal (unless there has been an
extension of 60 days due to special circumstances, provided the
delay and the special circumstances occasioning it are
communicated to the claimant within the 60 day period). Such
communication shall be written in a manner calculated to be
understood by the claimant and shall include specific reasons for
the decision and specific references to the pertinent provisions
on which the decision is based.
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ARTICLE III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee who was employed on the date
members of a collective bargaining unit first became eligible to
participate in the Plan under the terms of a contract negotiated
between such bargaining unit and the Employer shall be eligible
to participate and shall become a Participant in the Plan as of
that date. Any other eligible Employee who has completed ninety
(90) days during which such Eligible Employee is credited with at
least one hour of service during each day shall be eligible to
participate hereunder as of that date. The Employer shall give
each prospective Eligible Employee written notice of his
eligibility to participate in the Plan prior to the effective
date of his participation as established in Section 3.2.
3.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee (other than an Eligible Employee
who was employed on the date members of a collective bargaining
unit first became eligible to participate in the Plan under the
terms of a contract negotiated between such bargaining unit and
the Employer) shall become a Participant effective as of the
first day of the calendar quarter coinciding with or next
following the date on which such Employee met the eligibility
requirements of Section 3.1, provided said Employee was still
employed as of such date (or if not employed on such date, as of
the first day of the calendar quarter following the date of
rehire if a 1-Year Break in Service has not occurred).
3.3 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of
each Employee for participation in the Plan based upon
information furnished by the Employer. Such determination shall
be conclusive and binding upon all persons, as long as the same
is made pursuant to the Plan and the Act. Such determination
shall be subject to review per Section 2.12.
3.4 TERMINATION OF ELIGIBILITY
(a) In the event a Participant shall go from a
classification of an Eligible Employee to an ineligible Employee,
the Plan Administrator shall continue to maintain a Participant
Account for such former Participant for each Year of Service
completed while a noneligible Employee, until such time as his
Participant's Account shall be distributed pursuant to the terms
of the Plan. Additionally, his interest in the Plan shall
continue to share in the earnings of the Trust Fund.
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(b) In the event a Participant is no longer a member of
an eligible class of Employees and becomes ineligible to
participate but has not incurred a 1-Year Break in Service, such
Employee will participate immediately upon returning to an
eligible class of Employees. If such Participant incurs a 1-Year
Break in Service, eligibility will be determined under the break
in service rules of the Plan.
3.5 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have
been included as a Participant in the Plan is erroneously
included as a result of a mistake of fact or a mistake of law,
and discovery of such incorrect inclusion is not made until after
a contribution for the year has been made, the Employer shall be
entitled to recover the contribution made with respect to the
ineligible person as allowed under ERISA, and such contribution,
to the extent it is an Employer Electing Contribution, shall be
refunded to such ineligible Employee.
3.6 ELECTION NOT TO PARTICIPATE
An Employee may, subject to the approval of the
Employer, elect voluntarily not to participate in the Plan. The
election not to participate must be communicated to the Employer,
in writing, at least thirty (30) days before the beginning of a
Plan Year.
ARTICLE IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION
(a) For each Plan Year, the Employer shall contribute
to the Plan the amount of the total salary reduction elections of
all Participants made pursuant to Section 4.2(a), which amount
shall be deemed the Employer's Elective Contribution.
(b) Notwithstanding the foregoing, however, the
Employer's contributions for any Plan Year shall not exceed the
maximum amount allowable as a deduction to the Employer under the
provisions of Code Section 404. All contributions by the
Employer shall be made in cash or in such property as is
acceptable to the Trustee.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(a) Each Participant may elect to defer his
Compensation which would have been received in the Plan Year, but
for the deferral election, by up to 17%. A deferral election (or
modification of an earlier election) may not be made with respect
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to Compensation which is currently available on or before the
date the Participant executed such election or, if later, the
latest of the date the Employer adopts this cash or deferred
arrangement, or the date such arrangement first became effective.
The amount by which Compensation is reduced shall be
that Participant's Deferred Compensation and be treated as an
Employer Elective Contribution and allocated to that
Participant's Elective Account.
(b) The balance in each Participant's Elective Account
shall be fully Vested at all times and shall not be subject to
forfeiture for any reason.
(c) Amounts held in the Participant's Elective Account
may not be distributable earlier than:
(1) a Participant's termination of employment or
death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the
establishment or existence of a "successor plan,"
as that term is described in Regulation
1.401(k)-l(d)(3);
(4) the date of disposition by the Employer to an
entity that is not an Affiliated Employer of
substantially all of the assets (within the
meaning of Code Section 409(d)(2)) used in a trade
or business of such corporation if such
corporation continues to maintain this Plan after
the disposition with respect to a Participant who
continues employment with the corporation
acquiring such assets; or
(5) the date of disposition by the Employer or an
Affiliated Employer who maintains the Plan of its
interest in a subsidiary (within the meaning of
Code Section 409(d)(3)) to an entity which is not
an Affiliated Employer but only with respect to a
Participant who continues employment with such
subsidiary.
(d) For each Plan Year, a Participant's Deferred
Compensation made under this Plan and all other plans, contracts
or arrangements of the Employer maintaining this Plan shall not
exceed, during any taxable year of the Participant, the
limitation imposed by Code Section 402(g), as in effect at the
beginning of such taxable year. If such dollar limitation is
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exceeded, a Participant will be deemed to have notified the
Administrator of such excess amount which shall be distributed in
a manner consistent with Section 4.2(f). The dollar limitation
shall be adjusted annually pursuant to the method provided in
Code Section 415(d) in accordance with Regulations.
(e) In the event a Participant has received a hardship
distribution pursuant to Regulation 1.401(k)-l(d)(2)(iv)(B) from
any other plan maintained by the Employer, then such Participant
shall not be permitted to elect to have Deferred Compensation
contributed to the Plan on his behalf for a period of twelve (12)
months following the receipt of the distribution. Furthermore,
the dollar limitation under Code Section 402(g) shall be reduced,
with respect to the Participant's taxable year following the
taxable year in which the hardship distribution was made, by the
amount of such Participant's Deferred Compensation, if any,
pursuant to this Plan (and any other plan maintained by the
Employer) for the taxable year of the hardship distribution.
(f) If a Participant's Deferred Compensation under this
Plan together with any elective deferrals (as defined in
Regulation 1.402(g)-l(b)) under another qualified cash or
deferred arrangement (as defined in Code Section 401(k)), a
simplified employee pension (as defined in Code Section 408(k)),
a salary reduction arrangement (within the meaning of Code
Section 3121(a)(5)(D)), a deferred compensation plan under Code
Section 457, or a trust described in Code Section 501(c)(18)
cumulatively exceed the limitation imposed by Code Section 402(g)
(as adjusted annually in accordance with the method provided in
Code Section 415(d) pursuant to Regulations) for such
Participant's taxable year, the Participant may, not later than
March 1 following the close of the Participant's taxable year,
notify the Administrator in writing of such excess and request
that his Deferred Compensation under this Plan be reduced by an
amount specified by the Participant. In such event, the
Administrator may direct the Trustee to distribute such excess
amount (and any Income allocable to such excess amount) to the
Participant not later than the first April 15th following the
close of the Participant's taxable year. Any distribution of
less than the entire amount of Excess Deferred Compensation and
Income shall be treated as a pro rata distribution of Excess
Deferred Compensation and Income. The amount distributed shall
not exceed the Participant's Deferred Compensation under the Plan
for the taxable year. Any distribution on or before the last day
of the Participant's taxable year must satisfy each of the
following conditions:
(1) the distribution must be made after the date
on which the Plan received the Excess Deferred
Compensation;
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(2) the Participant shall designate the
distribution as Excess Deferred Compensation; and
(3) the Plan must designate the distribution as a
distribution of Excess Deferred Compensation.
(g) Notwithstanding Section 4.2(f) above, a
Participant's Excess Deferred Compensation shall be reduced, but
not below zero, by any distribution of Excess Contributions
pursuant to Section 4.6(a) for the Plan Year beginning with or
within the taxable year of the Participant.
(h) All amounts allocated to a Participant's Elective
Account may be treated as a Directed Investment Account pursuant
to Section 4.9.
(i) Employer Elective Contributions made pursuant to
this Section may be segregated into a separate account for each
Participant in a federally insured savings account, certificate
of deposit in a bank or savings and loan association, money
market certificate, or other short-term debt security acceptable
to the Trustee until such time as the allocations pursuant to
Section 4.4 have been made.
(j) The Employer and the Administrator shall implement
the salary reduction elections provided for herein in accordance
with the following:
(1) A Participant may commence making elective
deferrals to the Plan only after first satisfying
the eligibility and participation requirements
specified in Article III. However, the
Participant must make his initial salary deferral
election within a reasonable time, not to exceed
thirty (30) days, after entering the Plan pursuant
to Section 3.3. If the Participant fails to make
an initial salary deferral election within such
time, then such Participant may thereafter make an
election in accordance with the rules governing
modifications. The Participant shall make such an
election by entering into a written salary
reduction agreement with the Employer and filing
such agreement with the Administrator. Such
election shall initially be effective beginning
with the pay period following the acceptance of
the salary reduction agreement by the
Administrator, shall not have retroactive effect
and shall remain in force until revoked.
(2) A Participant may modify a prior election
during the Plan Year and concurrently make a new
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election by filing a written notice with the
Administrator within a reasonable time before the
pay period for which such modification is to be
effective. However, modifications to a salary
deferral election shall only be permitted
quarterly, during election periods established by
the Administrator prior to the first day of each
Plan Year quarter. Any modification shall not
have retroactive effect and shall remain in force
until revoked.
(3) A Participant may elect to prospectively
revoke his salary reduction agreement in its
entirety at any time during the Plan Year by
providing the Administrator with thirty (30) days
written notice of such revocation (or upon such
shorter notice period as may be acceptable to the
Administrator). Such revocation shall become
effective as of the beginning of the first pay
period coincident with or next following the
expiration of the notice period. Furthermore, the
termination of the Participant's employment, or
the cessation of participation for any reason,
shall be deemed to revoke any salary reduction
agreement then in effect, effective immediately
following the close of the pay period within which
such termination or cessation occurs.
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION
The Employer shall generally pay to the Trustee its
contribution to the Plan for each Plan Year within the time
prescribed by law, including extensions of time, for the filing
of the Employer's federal income tax return for the Fiscal Year.
However, Employer Elective Contributions accumulated
through payroll deductions shall be paid to the Trustee as of the
earliest date on which such contributions can reasonably be
segregated from the Employer's general assets, but in any event
within ninety (90) days from the date on which such amounts would
otherwise have been payable to the Participant in cash. The
provisions of Department of Labor Regulations 2510.3-102 are
incorporated herein by reference. Furthermore, any additional
Employer contributions which are allocable to the Participant's
Elective Account for a Plan Year shall be paid to the Plan no
later than the twelve-month period immediately following the
close of such Plan Year.
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4.4 ALLOCATION OF CONTRIBUTION AND EARNINGS
(a) The Administrator shall establish and maintain an
account in the name of each Participant to which the
Administrator shall credit as of each Anniversary Date or other
valuation date, all amounts allocated to each such Participant as
set forth herein.
(b) As of each Anniversary Date or other valuation
date, any earnings or losses (net appreciation or net
depreciation) of the Trust Fund shall be allocated in the same
proportion that each Participant's and Former Participant's time
weighted average (based on beginning year base) nonsegregated
accounts bear to the total of all Participants' and Former
Participants' time weighted average (based on beginning year
base) nonsegregated accounts as of such date.
(c) For the purposes of this Section, "415
Compensation" shall be limited to $150,000. Such amount shall be
adjusted at the same time and in the same manner as permitted
under Code Section 415(d), except that the dollar increase in
effect on January 1 of any calendar year shall be effective for
the Plan Year beginning with or within such calendar year. For
any short Plan Year the "415 Compensation" limit shall be an
amount equal to the "415 Compensation" limit for the calendar
year in which the Plan Year begins multiplied by the ratio
obtained by dividing the number of full months in the short Plan
Year by twelve (12).
The annual compensation limit of $150,000 shall be
adjusted by the Commissioner for increases in the cost of living
in accordance with Code Section 401(a)(17)(B). The cost of
living adjustment in effect for a calendar year applies to any
period, not exceeding 12 months, over which Compensation is
determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12
months, the annual compensation limit will be multiplied by a
fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
If Compensation for any prior determination period is
taken into account in determining an Employee's benefits accruing
in the current Plan Year, the Compensation for that prior
determination period is subject to the annual compensation limit
in effect for that prior determination period.
(d) Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason during the
Plan Year shall share in the salary reduction contributions made
by the Employer for the year of termination without regard to the
Hours of Service credited.
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(e) If a Former Participant is reemployed after five
(5) consecutive 1-Year Breaks in Service, then separate accounts
shall be maintained as follows:
(1) one account for nonforfeitable benefits
attributable to pre-break service; and
(2) one account representing his status in the
Plan attributable to post-break service.
(f) Notwithstanding anything to the contrary, if this
is a Plan that would otherwise fail to meet the requirements of
Code Sections 401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) and the
Regulations thereunder because Employer contributions would not
be allocated to a sufficient number or percentage of Participants
for a Plan Year, then the following rules shall apply:
(1) The group of Participants eligible to share
in the Employer's contribution for the Plan Year
shall be expanded to include the minimum number of
Participants who would not otherwise be eligible
as are necessary to satisfy the applicable test
specified above. The specific Participants who
shall become eligible under the terms of this
paragraph shall be those who are actively employed
on the last day of the Plan Year and, when
compared to similarly situated Participants, have
completed the greatest number of Hours of Service
in the Plan Year.
(2) If after application of paragraph (1) above,
the applicable test is still not satisfied, then
the group of Participants eligible to share in the
Employer's contribution for the Plan Year shall be
further expanded to include the minimum number of
Participants who are not actively employed on the
last day of the Plan Year as are necessary to
satisfy the applicable test. The specific
Participants who shall become eligible to share
shall be those Participants, when compared to
similarly situated Participants, who have
completed the greatest number of Hours of Service
in the Plan Year before terminating employment.
(3) Nothing in this Section shall permit the
reduction of a Participant's accrued benefit.
Therefore any amounts that have previously been
allocated to Participants may not be reallocated
to satisfy these requirements. In such event, the
Employer shall make an additional contribution
equal to the amount such affected Participants
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would have received had they been included in the
allocations, even if it exceeds the amount which
would be deductible under Code Section 404. Any
adjustment to the allocations pursuant to this
paragraph shall be considered a retroactive
amendment adopted by the last day of the Plan
Year.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(a) Maximum Annual Allocation: For each Plan Year, the
annual allocation derived from Employer Elective Contributions to
a Participant's Elective Account shall satisfy one of the
following tests:
(1) The "Actual Deferral Percentage" for the
Highly Compensated Participant group shall not be
more than the "Actual Deferral Percentage" of the
Non-Highly Compensated Participant group
multiplied by 1.25, or
(2) The excess of the "Actual Deferral
Percentage" for the Highly Compensated Participant
group over the "Actual Deferral Percentage" for
the Non-Highly Compensated Participant group shall
not be more than two percentage points.
Additionally, the "Actual Deferral Percentage" for
the Highly Compensated Participant group shall not
exceed the "Actual Deferral Percentage" for the
Non-Highly Compensated Participant group
multiplied by 2. The provisions of Code Section
401(k)(3) and Regulation 1.401(k)-l(b) are
incorporated herein by reference.
However, in order to prevent the multiple use of
the alternative method described in (2) above and
in Code Section 401(m)(9)(A), any Highly
Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 and to make
Employee contributions or to receive matching
contributions under any other plan maintained by
the Employer or an Affiliated Employer shall have
his actual contribution ratio reduced pursuant to
Regulation 1.401(m)-2, the provisions of which are
incorporated herein by reference.
(b) For the purposes of this Section "Actual Deferral
Percentage" means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant group
for a Plan Year, the average of the ratios, calculated separately
for each Participant in such group, of the amount of Employer
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Elective Contributions allocated to each Participant's Elective
Account for such Plan Year, to such Participant's "414(s)
Compensation" for such Plan Year. The actual deferral ratio for
each Participant and the "Actual Deferral Percentage" for each
group shall be calculated to the nearest one-hundredth of one
percent. Employer Elective Contributions allocated to each
Non-Highly Compensated Participant's Elective Account shall be
reduced by Excess Deferred Compensation to the extent such excess
amounts are made under this Plan or any other plan maintained by
the Employer.
(c) For the purpose of determining the actual deferral
ratio of a Highly Compensated Employee who is subject to the
Family Member aggregation rules of Code Section 414(q)(6) because
such Participant is either a "five percent owner" of the Employer
or one of the ten (10) Highly Compensated Employees paid the
greatest "415 Compensation" during the year, the following shall
apply:
(1) The combined actual deferral ratio for the
family group (which shall be treated as one Highly
Compensated Participant) shall be determined by
aggregating Employer Elective Contributions and
"414(s) Compensation" of all eligible Family
Members (including Highly Compensated
Participants). However, in applying the $150,000
limit to "414(s) Compensation, Family Members
shall include only the affected Employee's spouse
and any lineal descendants who have not attained
age 19 before the close of the Plan Year.
(2) The Employer Elective Contributions and
"414(s) Compensation" of all Family Members shall
be disregarded for purposes of determining the
"Actual Deferral Percentage" of the Non-Highly
Compensated Participant group except to the extent
taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated
as a member of more than one family group in a
plan, all Participants who are members of those
family groups that include the Participant are
aggregated as one family group in accordance with
paragraphs (1) and (2) above.
(d) For the purposes of Sections 4.5(a) and 4.6, a
Highly Compensated Participant and a Non-Highly Compensated
Participant shall include any Employee eligible to make a
deferral election pursuant to Section 4.2, whether or not such
deferral election was made or suspended pursuant to Section 4.2.
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(e) For the purposes of this Section and Code Sections
401(a)(4), 410(b) and 401(k), if two or more plans which include
cash or deferred arrangements are considered one plan for the
purposes of Code Section 401(a)(4) or 410(b) (other than Code
Section 410(b)(2)(A)(ii)), the cash or deferred arrangements
included in such plans shall be treated as one arrangement. In
addition, two or more cash or deferred arrangements may be
considered as a single arrangement for purposes of determining
whether or not such arrangements satisfy Code Sections 401(a)(4),
410(b) and 401(k). In such a case, the cash or deferred
arrangements included in such plans and the plans including such
arrangements shall be treated as one arrangement and as one plan
for purposes of this Section and Code Sections 401(a)(4), 410(b)
and 401(k). Plans may be aggregated under this paragraph (e)
only if they have the same plan year.
Notwithstanding the above, an employee stock ownership
plan described in Code Section 4975(e)(7) or 409 may not be
combined with this Plan for purposes of determining whether the
employee stock ownership plan or this Plan satisfies this Section
and Code Sections 401(a)(4), 410(b) and 401(k).
(f) For the purposes of this Section, if a Highly
Compensated Participant is a Participant under two or more cash
or deferred arrangements (other than a cash or deferred
arrangement which is part of an employee stock ownership plan as
defined in Code Section 4975(e)(7) or 409) of the Employer or an
Affiliated Employer, all such cash or deferred arrangements shall
be treated as one cash or deferred arrangement for the purpose of
determining the actual deferral ratio with respect to such Highly
Compensated Participant. However, if the cash or deferred
arrangements have different plan years, this paragraph shall be
applied by treating all cash or deferred arrangements ending with
or within the same calendar year as a single arrangement.
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event that the initial allocations of the
Employer's Elective Contributions made pursuant to Section 4.4 do
not satisfy one of the tests set forth in Section 4.5(a), the
Administrator shall adjust Excess Contributions pursuant to the
options set forth below:
(a) On or before the fifteenth day of the third month
following the end of each Plan Year, the Highly Compensated
Participant having the highest actual deferral ratio shall have
his portion of Excess Contributions distributed to him until one
of the tests set forth in Section 4.5(a) is satisfied, or until
his actual deferral ratio equals the actual deferral ratio of the
Highly Compensated Participant having the second highest actual
deferral ratio. This process shall continue until one of the
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tests set forth in Section 4.5(a) is satisfied. For each Highly
Compensated Participant, the amount of Excess Contributions is
equal to the Elective Contributions on behalf of such Highly
Compensated Participant (determined prior to the application of
this paragraph) minus the amount determined by multiplying the
Highly Compensated Participant's actual deferral ratio
(termination after application of this paragraph) by his "414(s)
Compensation." However, in determining the amount of Excess
Contributions to be distributed with respect to an affected
Highly Compensated Participant as determined herein, such amount
shall be reduced by any Excess Deferred Compensation previously
distributed to such affected Highly Compensated Participant for
his taxable year ending with or within such Plan Year.
(1) With respect to the distribution of Excess
Contributions pursuant to (a) above, such
distribution:
(i) may be postponed but not later than the
close of the Plan Year following the Plan
Year to which they are allocable;
(ii) shall be adjusted for Income; and
(iii) shall be designated by the Employer as
a distribution of Excess Contributions (and
Income).
(2) Any distribution of less than the entire
amount of Excess Contributions shall be treated as
a pro rata distribution of Excess Contributions
and Income.
(3) The determination and correction of Excess
Contributions of a Highly Compensated Participant
whose actual deferral ratio is determined under
the family aggregation rules shall be accomplished
by reducing the actual deferral ratio as required
herein, and the Excess Contributions for the
family unit shall then be allocated among the
Family Members in proportion to the Elective
Contributions of each Family Member that were
combined to determine the group actual deferral
ratio.
(b) Within twelve (12) months after the end of the Plan
Year, the Employer may make a special Qualified Non-Elective
Contribution on behalf of Non-Highly Compensated Participants in
an amount sufficient to satisfy one of the tests set forth in
Section 4.5(a). Such contribution shall be allocated to the
Participant's Elective Account of each Non-Highly Compensated
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Participant in the same proportion that each Non-Highly
Compensated Participant's Compensation for the year bears to the
total Compensation of all Non-Highly Compensated Participants.
(c) If during a Plan Year the projected aggregate
amount of Elective Contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue of the
tests set forth in Section 4.5(a), cause the Plan to fail such
tests, then the Administrator may automatically reduce
proportionately or in the order provided in Section 4.6(a) each
affected Highly Compensated Participant's deferral election made
pursuant to Section 4.2 by an amount necessary to satisfy one of
the tests set forth in Section 4.5(a).
4.7 MAXIMUM ANNUAL ADDITIONS
(a) Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's accounts for any
"limitation year" shall equal the lesser of: (1) $30,000 (or, if
greater, one-fourth of the dollar limitation in effect under Code
Section 415(b)(1)(A)) or (2) twenty-five percent (25%) of the
Participant's "415 Compensation" for such "limitation year. For
any short "limitation year," the dollar limitation in (1) above
shall be reduced by a fraction, the numerator of which is the
number of full months in the short "limitation year" and the
denominator of which is twelve (12).
(b) For purposes of applying the limitations of Code
Section 415, "annual additions" means the sum credited to a
Participant's accounts for any "limitation year" of (1) Employer
contributions, (2) Employee contributions, (3) forfeitures, (4)
amounts allocated, after March 31, 1984, to an individual medical
account, as defined in Code Section 415(1)(2) which is part of a
pension or annuity plan maintained by the Employer and (5)
amounts derived from contributions paid or accrued after December
31, 1985, in taxable years ending after such date, which are
attributable to post-retirement medical benefits allocated to the
separate account of a key employee (as defined in Code Section
419A(d)(3)) under a welfare benefit plan (as defined in Code
Section 419(e)) maintained by the Employer. Except, however, the
"415 Compensation" percentage limitation referred to in paragraph
(a)(2) above shall not apply to: (1) any contribution for medical
benefits (within the meaning of Code Section 419A(f)(2)) after
separation from service which is otherwise treated as an "annual
addition," or (2) any amount otherwise treated as an "annual
addition" under Code Section 415(1)(1).
(c) For purposes of applying the limitations of Code
Section 415, the transfer of funds from one qualified plan to
another is not an "annual addition." In addition, the following
are not Employee contributions for the purposes of Section
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4.7(b)(2): (1) rollover contributions (as defined in Code
Sections 402(a)(5), 403(a)(4), 403(b)(8) and 408(d)(3)); (2)
repayments of loans made to a Participant from the Plan; (3)
repayments of distributions received by an Employee pursuant to
Code Section 411(a)(7)(B) (cash-outs); (4) repayments of
distributions received by an Employee pursuant to Code Section
411(a)(3)(D) (mandatory contributions); and (5) Employee
contributions to a simplified employee pension excludable from
gross income under Code Section 408(k)(6).
(d) For purposes of applying the limitations of Code
Section 415, the "limitation year" shall be the Plan Year.
(e) The dollar limitation under Code Section
415(b)(1)(A) stated in paragraph (a)(1) above shall be adjusted
annually as provided in Code Section 415(d) pursuant to the
Regulations. The adjusted limitation is effective as of January
1st of each calendar year and is applicable to "limitation years"
ending with or within that calendar year.
(f) For the purpose of this Section, all qualified
defined benefit plans (whether terminated or not) ever maintained
by the Employer shall be treated as one defined benefit plan, and
all qualified defined contribution plans (whether terminated or
not) ever maintained by the Employer shall be treated as one
defined contribution plan.
(g) For the purpose of this Section, if the Employer is
a member of a controlled group of corporations, trades or
businesses under common control (as defined by Code Section
1563(a) or Code Section 414(b) and (c) as modified by Code
Section 415(h)), is a member of an affiliated service group (as
defined by Code Section 414(m)), or is a member of a group of
entities required to be aggregated pursuant to Regulations under
Code Section 414(o), all Employees of such Employers shall be
considered to be employed by a single Employer.
(h) For the purpose of this Section, if this Plan is a
Code Section 413(c) plan, all Employers of a Participant who
maintain this Plan will be considered to be a single Employer.
(i) (1) If a Participant participates in more than one
defined contribution plan maintained by the
Employer which have different Anniversary Dates,
the maximum "annual additions" under this Plan
shall equal the maximum "annual additions" for the
"limitation year" minus any "annual additions"
previously credited to such Participant's accounts
during the "limitation year."
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(2) If a Participant participates in both a
defined contribution plan subject to Code Section
412 and a defined contribution plan not subject to
Code Section 412 maintained by the Employer which
have the same Anniversary Date, "annual additions"
will be credited to the Participant's accounts
under the defined contribution plan subject to
Code Section 412 prior to crediting "annual
additions" to the Participant's accounts under the
defined contribution plan not subject to Code
Section 412.
(3) If a Participant participates in more than
one defined contribution plan not subject to Code
Section 412 maintained by the Employer which have
the same Anniversary Date, the maximum "annual
additions" under this Plan shall equal the product
of (A) the maximum "annual additions" for the
"limitation year" minus any "annual additions"
previously credited under subparagraphs (1) or (2)
above, multiplied by (B) a fraction (i) the
numerator of which is the "annual additions" which
would be credited to such Participant's accounts
under this Plan without regard to the limitations
of Code Section 415 and (ii) the denominator of
which is such "annual additions" for all plans
described in this subparagraph.
(j) If an Employee is (or has been) a Participant in
one or more defined benefit plans and one or more defined
contribution plans maintained by the Employer, the sum of the
defined benefit plan fraction and the defined contribution plan
fraction for any "limitation year" may not exceed 1.0.
(k) The defined benefit plan fraction for any
"limitation year" is a fraction, the numerator of which is the
sum of the Participant's projected annual benefits under all the
defined benefit plans (whether or not terminated) maintained by
the Employer, and the denominator of which is the lesser of 125
percent of the dollar limitation determined for the "limitation
year" under Code Sections 415(b) and (d) or 140 percent of the
highest average compensation, including any adjustments under
Code Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first "limitation year"
beginning after December 31, 1986, in one or more defined benefit
plans maintained by the Employer which were in existence on May
6, 1986, the denominator of this fraction will not be less than
125 percent of the sum of the annual benefits under such plans
which the Participant had accrued as of the close of the last
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"limitation year" beginning before January 1, 1987, disregarding
any changes in the terms and conditions of the plan after May 5,
1986. The preceding sentence applies only if the defined benefit
plans individually and in the aggregate satisfied the
requirements of Code Section 415 for all "limitation years"
beginning before January 1, 1987.
(l) The defined contribution plan fraction for any
"limitation year" is a fraction, the numerator of which is the
sum of the annual additions to the Participant's Account under
all the defined contribution plans (whether or not terminated)
maintained by the Employer for the current and all prior
"limitation years" (including the annual additions attributable
to the Participant's nondeductible Employee contributions to all
defined benefit plans, whether or not terminated, maintained by
the Employer, and the annual additions attributable to all
welfare benefit funds, as defined in Code Section 419(e), and
individual medical accounts, as defined in Code Section
415(1)(2), maintained by the Employer), and the denominator of
which is the sum of the maximum aggregate amounts for the current
and all prior "limitation years" of service with the Employer
(regardless of whether a defined contribution plan was maintained
by the Employer). The maximum aggregate amount in any
"limitation year" is the lesser of 125 percent of the dollar
limitation determined under Code Sections 415(b) and (d) in
effect under Code Section 415(c)(1)(A) or 35 percent of the
Participant's Compensation for such year.
If the Employee was a Participant as of the end of the
first day of the first "limitation year" beginning after December
31, 1986, in one or more defined contribution plans maintained by
the Employer which were in existence on May 6, 1986, the
numerator of this fraction will be adjusted if the sum of this
fraction and the defined benefit fraction would otherwise exceed
1.0 under the terms of this Plan. Under the adjustment, an
amount equal to the product of (1) the excess of the sum of the
fractions over 1.0 times (2) the denominator of this fraction,
will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as
they would be computed as of the end of the last "limitation
year" beginning before January 1, 1987, and disregarding any
changes in the terms and conditions of the Plan made after May 5,
1986, but using the Code Section 415 limitation applicable to the
first "limitation year" beginning on or after January 1, 1987.
The annual addition for any "limitation year" beginning before
January 1, 1987 shall not be recomputed to treat all Employee
contributions as annual additions.
(m) If the sum of the defined benefit plan fraction and
the defined contribution plan fraction shall exceed 1.0 in any
"limitation year" for any Participant in this Plan, the
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Administrator shall adjust the numerator of the defined benefit
plan fraction so that the sum of both fractions shall not exceed
1.0 in any "limitation year" for such Participant.
(n) Notwithstanding anything contained in this Section
to the contrary, the limitations, adjustments and other
requirements prescribed in this Section shall at all times comply
with the provisions of Code Section 415 and the Regulations
thereunder, the terms of which are specifically incorporated
herein by reference.
4.8 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(a) If, as a result of a reasonable error in estimating
a Participant's Compensation, a reasonable error in determining
the amount of elective deferrals (within the meaning of Code
Section 402(g)(3)) that may be made with respect to any
Participant under the limits of Section 4.7 or other facts and
circumstances to which Regulation 1.415-6(b)(6) shall be
applicable, the "annual additions" under this Plan would cause
the maximum "annual additions" to be exceeded for any
Participant, the Administrator shall (1) distribute any elective
deferrals (within the meaning of Code Section 402(g)(3)) or
return any voluntary Employee contributions credited for the
"limitation year" to the extent that the return would reduce the
"excess amount" in the Participant's accounts (2) hold any
"excess amount" remaining after the return of any elective
deferrals or voluntary Employee contributions in a "Section 415
suspense account" (3) use the "Section 415 suspense account" in
the next "limitation year" (and succeeding "limitation years" if
necessary) to reduce Employer contributions for that Participant
if that Participant is covered by the Plan as of the end of the
"limitation year," or if the Participant is not so covered,
allocate and reallocate the "Section 415 suspense account" in the
next "limitation year" (and succeeding "limitation years" if
necessary) to all Participants in the Plan before any Employer or
Employee contributions which would constitute "annual additions"
are made to the Plan for such "limitation year" (4) reduce
Employer contributions to the Plan for such "limitation year" by
the amount of the "Section 415 suspense account" allocated and
reallocated during such "limitation year."
(b) For purposes of this Article, "excess amount" for
any Participant for a "limitation year" shall mean the excess, if
any, of (1) the "annual additions" which would be credited to his
account under the terms of the Plan without regard to the
limitations of Code Section 415 over (2) the maximum "annual
additions" determined pursuant to Section 4.7.
(c) For purposes of this Section, "Section 415 suspense
account" shall mean an unallocated account equal to the sum of
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"excess amounts" for all Participants in the Plan during the
"limitation year." The "Section 415 suspense account" shall not
share in any earnings or losses of the Trust Fund.
4.9 DIRECTED INVESTMENT ACCOUNT
(a) The Administrator, in his sole discretion, may
determine that all Participants be permitted to direct the
Trustee as to the investment of all or a portion of the Vested
interest in any one or more of their individual account balances.
If such authorization is given, Participants may, subject to a
procedure established by the Administrator and applied in a
uniform nondiscriminatory manner, direct the Trustee in writing
to invest the Vested portion of their account in specific assets,
specific funds or other investments permitted under the Plan and
the directed investment procedure. That portion of the Vested
account of any Participant so directing will thereupon be
considered a Directed Investment Account, which shall not share
in Trust Fund earnings.
(b) A separate Directed Investment Account shall be
established for each Participant who has directed an investment.
Transfers between the Participant's regular account and his
Directed Investment Account shall be charged and credited as the
case may be to each account. The Directed Investment Account
shall not share in Trust Fund earnings, but it shall be charged
or credited as appropriate with the net earnings, gains, losses
and expenses as well as any appreciation or depreciation in
market value during each Plan Year attributable to such account.
ARTICLE V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each
Anniversary Date, and at such other date or dates deemed
necessary by the Administrator, herein called "valuation date,"
to determine the net worth of the assets comprising the Trust
Fund as it exists on the "valuation date." In determining such
net worth, the Trustee shall value the assets comprising the
Trust Fund at their fair market value as of the "valuation date"
and shall deduct all expenses for which the Trustee has not yet
obtained reimbursement from the Employer or the Trust Fund.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held
in the Trust Fund which are listed on a registered stock
exchange, the Administrator shall direct the Trustee to value the
same at the prices they were last traded on such exchange
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preceding the close of business on the "valuation date." If such
securities were not traded on the "valuation date," or if the
exchange on which they are traded was not open for business on
the "valuation date," then the securities shall be valued at the
prices at which they were last traded prior to the "valuation
date." Any unlisted security held in the Trust Fund shall be
valued at its bid price next preceding the close of business on
the "valuation date," which bid price shall be obtained from a
registered broker or an investment banker. In determining the
fair market value of assets other than securities for which
trading or bid prices can be obtained, the Trustee may appraise
such assets itself, or in its discretion, employ one or more
appraisers for that purpose and rely on the values established by
such appraiser or appraisers.
ARTICLE VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the
Employer and retire for the purposes hereof on his Normal
Retirement Date. However, a Participant may postpone the
termination of his employment with the Employer to a later date,
in which event the participation of such Participant in the Plan,
including the right to receive allocations pursuant to Section
4.4, shall continue until his Late Retirement Date. Upon a
Participant's Retirement Date, or as soon thereafter as is
practicable, the Trustee shall distribute all amounts credited to
such Participant's Elective Account in accordance with Section
6.5.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his
Retirement Date or other termination of his employment, the
Administrator shall direct the Trustee, in accordance with the
provisions of Sections 6.6 and 6.7, to distribute the value of
the deceased Participant's accounts to the Participant's
Beneficiary.
(b) Upon the death of a Former Participant, the
Administrator shall direct the Trustee, in accordance with the
provisions of Sections 6.6 and 6.7, to distribute any remaining
Vested amounts credited to the accounts of a deceased Former
Participant to such Former Participant's Beneficiary.
(c) The Administrator may require such proper proof of
death and such evidence of the right of any person to receive
payment of the value of the account of a deceased Participant or
Former Participant as the Administrator may deem desirable. The
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Administrator's determination of death and of the right of any
person to receive payment shall be conclusive.
(d) The Beneficiary of the death benefit payable
pursuant to this Section shall be the Participant's spouse.
Except, however, the Participant may designate a Beneficiary
other than his spouse if:
(1) the spouse has waived the right to be the
Participant's Beneficiary, or
(2) the Participant is legally separated or has
been abandoned (within the meaning of local law)
and the Participant has a court order to such
effect (and there is no "qualified domestic
relations order" as defined in Code Section 414(p)
which provides otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall
be made on a form satisfactory to the Administrator. A
Participant may at any time revoke his designation of a
Beneficiary or change his Beneficiary by filing written notice of
such revocation or change with the Administrator. However, the
Participant's spouse must again consent in writing to any change
in Beneficiary unless the original consent acknowledged that the
spouse had the right to limit consent only to a specific
Beneficiary and that the spouse voluntarily elected to relinquish
such right. In the event no valid designation of Beneficiary
exists at the time of the Participant's death, the death benefit
shall be payable to his estate.
(e) Any consent by the Participant's spouse to waive
any rights to the death benefit must be in writing, must
acknowledge the effect of such waiver, and be witnessed by a Plan
representative or a notary public. Further, the spouse's consent
must be irrevocable and must acknowledge the specific nonspouse
Beneficiary.
6.3 DISABILITY RETIREMENT BENEFITS
No disability benefits, other than those payable upon
termination of employment, are provided in this Plan.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) On or before the Anniversary Date coinciding with
or subsequent to the termination of a Participant's employment
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for any reason other than death or retirement, the Administrator
may direct the Trustee to segregate the amount of such Terminated
Participant's Elective Account and invest the aggregate amount
thereof in a separate, federally insured savings account,
certificate of deposit, common or collective trust fund of a bank
or a deferred annuity. In the event a Participant's Elective
Account is not segregated, the amount shall remain in a separate
account for the Terminated Participant and share in allocations
pursuant to Section 4.4 until such time as a distribution is made
to the Terminated Participant.
Distribution of the funds due to a Terminated
Participant shall be made on the occurrence of an event which
would result in the distribution had the Terminated Participant
remained in the employ of the Employer (upon the Participant's
death or Normal Retirement). However, at the election of the
Participant, the Administrator shall direct the Trustee to cause
the Terminated Participant's Elective Account to be payable to
such Terminated Participant the quarter following the termination
of employment. Any distribution under this paragraph shall be
made in a manner which is consistent with and satisfies the
provisions of Section 6.5, including, but not limited to, all
notice and consent requirements of Code Section 411(a)(11) and
the Regulations thereunder.
If the value of a Terminated Participant's benefit
derived from Employer and Employee contributions does not exceed
$3,500 and has never exceeded $3,500 at the time of any prior
distribution, the Administrator shall direct the Trustee to cause
the entire benefit to be paid to such Participant in a single
lump sum.
(b) The computation of a Participant's nonforfeitable
percentage of his interest in the Plan shall not be reduced as
the result of any direct or indirect amendment to this Plan. For
this purpose, the Plan shall be treated as having been amended if
the Plan provides for an automatic change in vesting due to a
change in top heavy status. In the event that the Plan is
amended to change or modify any vesting schedule, a Participant
with at least three (3) Years of Service as of the expiration
date of the election period may elect to have his nonforfeitable
percentage computed under the Plan without regard to such
amendment. If a Participant fails to make such election, then
such Participant shall be subject to the new vesting schedule.
The Participant's election period shall commence on the adoption
date of the amendment and shall end 60 days after the latest of:
(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
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(3) the date the Participant receives written
notice of the amendment from the Employer or
Administrator.
(c)(1) If any Former Participant shall be
reemployed by the Employer before a 1-Year Break in
Service occurs, he shall continue to participate in the
Plan in the same manner as if such termination had not
occurred.
(2) If a Former Participant completes one (1)
Year of Service for eligibility purposes following
his reemployment with the Employer, he shall
participate in the Plan retroactively from his
date of reemployment.
(3) If a Former Participant completes a Year of
Service (a 1-Year Break in Service previously
occurred, but employment had not terminated), he
shall participate in the Plan retroactively from
the first day of the Plan Year during which he
completes one (1) Year of Service.
6.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the
Participant, shall direct the Trustee to distribute to a
Participant or his Beneficiary any amount to which he is entitled
under the Plan in one lump-sum payment in cash.
(b) Any distribution to a Participant who has a benefit
which exceeds, or has ever exceeded, $3,500 at the time of any
prior distribution shall require such Participant's consent if
such distribution occurs prior to the later of his Normal
Retirement Age or age 62. With regard to this required consent:
(1) The Participant must be informed of his right
to defer receipt of the distribution. If a
Participant fails to consent, it shall be deemed
an election to defer the distribution of any
benefit. However, any election to defer the
receipt of benefits shall not apply with respect
to distributions which are required under Section
6.5(c).
(2) Notice of the rights specified under this
paragraph shall be provided no less than 30 days
and no more than 90 days before the first day on
which all events have occurred which entitle the
Participant to such benefit.
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(3) Written consent of the Participant to the
distribution must not be made before the
Participant receives the notice and must not be
made more than 90 days before the first day on
which all events have occurred which entitle the
Participant to such benefit.
(4) No consent shall be valid if a significant
detriment is imposed under the Plan on any
Participant who does not consent to the
distribution.
If a distribution is one to which Code Sections
401(a)(11) and 417 do not apply, such distribution may commence
less than 30 days after the notice required under Regulation
1.411(a)-11(c) is given, provided that: (1) the Administrator
clearly informs the Participant that the Participant has a right
to a period of at least 30 days after receiving the notice to
consider the decision of whether or not to elect a distribution
(and, if applicable, a particular distribution option), and (2)
the Participant, after receiving the notice, affirmatively elects
a distribution.
(c) Notwithstanding any provision in the Plan to the
contrary, the distribution of a Participant's benefits shall be
made in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the Regulations
thereunder (including Regulation 1.401(a)(9)-2), the provisions
of which are incorporated herein by reference:
(1) A Participant's benefits shall be distributed
to him not later than April 1st of the calendar
year following the later of (i) the calendar year
in which the Participant attains age 70 1/2 or
(ii) the calendar year in which the Participant
retires, provided, however, that this clause (ii)
shall not apply in the case of a Participant who
is a "five (5) percent owner" at any time during
the five (5) Plan Year period ending in the
calendar year in which he attains age 70 1/2 or,
in the case of a Participant who becomes a "five
(5) percent owner" during any subsequent Plan
Year, clause (ii) shall no longer apply and the
required beginning date shall be the April 1st of
the calendar year following the calendar year in
which such subsequent Plan Year ends.
Notwithstanding the foregoing, clause (ii) above
shall not apply to any Participant unless the
Participant had attained age 70 1/2 before January
1, 1988 and was not a "five (5) percent owner" at
any time during the Plan Year ending with or
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within the calendar year in which the Participant
attained age 66 1/2 or any subsequent Plan Year.
(2) Distributions to a Participant and his
Beneficiaries shall only be made in accordance
with the incidental death benefit requirements of
Code Section 401(a)(9)(G) and the Regulations
thereunder.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(a) The death benefit payable pursuant to Section 6.2
shall be paid to the Participant's Beneficiary in one lump-sum
payment in cash subject to the rules of Section 6.6(b).
(b) Notwithstanding any provision in the Plan to the
contrary, distributions upon the death of a Participant shall be
made in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the Regulations
thereunder. If it is determined pursuant to Regulations that the
distribution of a Participant's interest has begun and the
Participant dies before his entire interest has been distributed
to him, the remaining portion of such interest shall be
distributed at least as rapidly as under the method of
distribution selected pursuant to Section 6.5 as of his date of
death. If a Participant dies before he has begun to receive any
distributions of his interest under the Plan or before
distributions are deemed to have begun pursuant to Regulations,
then his death benefit shall be distributed to his Beneficiaries
by December 31st of the calendar year in which the fifth
anniversary of his date of death occurs.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever the
Trustee is to make a distribution on or as of an Anniversary
Date, the distribution may be made on such date or as soon
thereafter as is practicable. However, unless a Former
Participant elects in writing to defer the receipt of benefits
(such election may not result in a death benefit that is more
than incidental), the payment of benefits shall occur not later
than the 60th day after the close of the Plan Year in which the
latest of the following events occurs: (a) the date on which the
Participant attains the earlier of age 65 or the Normal
Retirement Age specified herein; (b) the 10th anniversary of the
year in which the Participant commenced participation in the
Plan; or (c) the date the Participant terminates his service with
the Employer.
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6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor,
then the Administrator may direct that such distribution be paid
to the legal guardian, or if none, to a parent of such
Beneficiary or a responsible adult with whom the Beneficiary
maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if
such is permitted by the laws of the state in which said
Beneficiary resides. Such a payment to the legal guardian,
custodian or parent of a minor Beneficiary shall fully discharge
the Trustee, Employer, and Plan from further liability on account
thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the
distribution payable to a Participant or his Beneficiary
hereunder shall, at the later of the Participant's attainment of
age 62 or his Normal Retirement Age, remain unpaid solely by
reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known
address, and after further diligent effort, to ascertain the
whereabouts of such Participant or his Beneficiary, the amount so
distributable shall be treated as a Forfeiture pursuant to the
Plan. In the event a Participant or Beneficiary is located
subsequent to his benefit being reallocated, such benefit shall
be restored.
6.10 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided
to a Participant in this Plan shall be subject to the rights
afforded to any "alternate payee" under a "qualified domestic
relations order." Furthermore, a distribution to an "alternate
payee" shall be permitted if such distribution is authorized by a
"qualified domestic relations order," even if the affected
Participant has not separated from service and has not reached
the "earliest retirement age" under the Plan. For the purposes
of this Section, "alternate payee," "qualified domestic relations
order" and "earliest retirement age" shall have the meaning set
forth under Code Section 414(p).
6.11 DIRECT ROLLOVER
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to
the contrary that would otherwise limit a distributee's election
under this Section, a distributee may elect, at the time and in
the manner prescribed by the Plan Administrator, to have any
portion of an eligible rollover distribution paid directly to an
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eligible retirement plan specified by the distributee in a direct
rollover.
(b) For purposes of this Section the following definitions
shall apply:
(1) An eligible rollover distribution is any
distribution of all or any portion of the balance
to the credit of the distributee, except that an
eligible rollover distribution does not include:
any distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the distributee or the joint
lives (or joint life expectancies) of the
distributee and the distributee's designated
beneficiary, or for a specified period of ten
years or more; any distribution to the extent such
distribution is required under Code Section
401(a)(9); and the portion of any distribution
that is not includible in gross income (determined
without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(2) An eligible retirement plan is an individual
retirement account described in Code Section
408(a), an individual retirement annuity described
in Code Section 408(b), an annuity plan described
in Code Section 403(a), or a qualified trust
described in Code Section 401(a), that accepts the
distributee's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement
account or individual retirement annuity.
(3) A distributee includes an Employee or former
Employee. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic
relations order, as defined in Code Section
414(p), are distributees with regard to the
interest of the spouse or former spouse.
(4) A direct rollover is a payment by the plan to the
eligible retirement plan specified by the
distributee.
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ARTICLE VII
AMENDMENT, TERMINATION AND MERGERS
7.1 AMENDMENT
(a) The Employer shall have the right at any time to amend
the Plan, subject to the limitations of this Section. However,
any amendment which affects the rights, duties or
responsibilities of the Trustee and Administrator may only be
made with the Trustee's and Administrator's written consent. Any
such amendment shall become effective as provided therein upon
its execution. The Trustee shall not be required to execute any
such amendment unless the Trust provisions contained herein are a
part of the Plan and the amendment affects the duties of the
Trustee hereunder.
(b) No amendment to the Plan shall be effective if it
authorizes or permits any part of the Trust Fund (other than such
part as is required to pay taxes and administration expenses) to
be used for or diverted to any purpose other than for the
exclusive benefit of the Participants or their Beneficiaries or
estates; or causes any reduction in the amount credited to the
account of any Participant; or causes or permits any portion of
the Trust Fund to revert to or become property of the Employer.
(c) Except as permitted by Regulations, no Plan amendment or
transaction having the effect of a Plan amendment (such as a
merger, plan transfer or similar transaction) shall be effective
to the extent it eliminates or reduces any "Section 411(d)(6)
protected benefit" or adds or modifies conditions relating to
"Section 411(d)(6) protected benefits" the result of which is a
further restriction on such benefit unless such protected
benefits are preserved with respect to benefits accrued as of the
later of the adoption date or effective date of the amendment.
"Section 411(d)(6) protected benefits" are benefits described in
Code Section 411(d)(6)(A), early retirement benefits and
retirement-type subsidies, and optional forms of benefit.
7.2 TERMINATION
(a) The Employer shall have the right at any time to
terminate the Plan by delivering to the Trustee and Administrator
written notice of such termination. Upon any full or partial
termination, all amounts credited to the affected Participants'
Elective Accounts shall become 100% Vested as provided in Section
6.4 and shall not thereafter be subject to forfeiture, and all
unallocated amounts shall be allocated to the accounts of all
Participants in accordance with the provisions hereof.
(b) Upon the full termination of the Plan, the Employer
shall direct the distribution of the assets of the Trust Fund to
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Participants in a manner which is consistent with and satisfies
the provisions of Section 6.5. Distributions to a Participant
shall be made in cash or through the purchase of irrevocable
nontransferable deferred commitments from an insurer. Except as
permitted by Regulations, the termination of the Plan shall not
result in the reduction of "Section 411(d)(6) protected benefits"
in accordance with Section 7.1(c).
7.3 MERGER OR CONSOLIDATION
This Plan and Trust may be merged or consolidated with,
or its assets and/or liabilities may be transferred to any other
plan and trust only if the benefits which would be received by a
Participant of this Plan, in the event of a termination of the
plan immediately after such transfer, merger or consolidation,
are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the
transfer, merger or consolidation, and such transfer, merger or
consolidation does not otherwise result in the elimination or
reduction of any "Section 411(d)(6) protected benefits" in
accordance with Section 7.1(c).
ARTICLE VIII
MISCELLANEOUS
8.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract
between the Employer and any Participant or to be a consideration
or an inducement for the employment of any Participant or
Employee. Nothing contained in this Plan shall be deemed to give
any Participant or Employee the right to be retained in the
service of the Employer or to interfere with the right of the
Employer to discharge any Participant or Employee at any time
regardless of the effect which such discharge shall have upon him
as a Participant of this Plan.
8.2 ALIENATION
(a) Subject to the exceptions provided below, no benefit
which shall be payable out of the Trust Fund to any person
(including a Participant or his Beneficiary) shall be subject in
any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber,
or charge the same shall be void; and no such benefit shall in
any manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such person, nor shall
it be subject to attachment or legal process for or against such
person, and the same shall not be recognized by the Trustee,
except to such extent as may be required by law.
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(b) This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p), and those other
domestic relations orders permitted to be so treated by the
Administrator under the provisions of the Retirement Equity Act
of 1984. The Administrator shall establish a written procedure
to determine the qualified status of domestic relations orders
and to administer distributions under such qualified orders.
Further, to the extent provided under a "qualified domestic
relations order," a former spouse of a Participant shall be
treated as the spouse or surviving spouse for all purposes under
the Plan.
8.3 CONSTRUCTION OF PLAN
This Plan and Trust shall be construed and enforced
according to the Act and the laws of the State of Georgia, other
than its laws respecting choice of law, to the extent not
preempted by the Act.
8.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine,
feminine or neuter gender, they shall be construed as though they
were also used in another gender in all cases where they would so
apply, and whenever any words are used herein in the singular or
plural form, they shall be construed as though they were also
used in the other form in all cases where they would so apply.
8.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought
regarding the Trust and/or Plan established hereunder to which
the Trustee or the Administrator may be a party, and such claim,
suit, or proceeding is resolved in favor of the Trustee or
Administrator, they shall be entitled to be reimbursed from the
Trust Fund for any and all costs, attorney's fees, and other
expenses pertaining thereto incurred by them for which they shall
have become liable.
8.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation of the Plan
or of the Trust, by termination of either, by power of revocation
or amendment, by the happening of any contingency, by collateral
arrangement or by any other means, for any part of the corpus or
income of any trust fund maintained pursuant to the Plan or any
funds contributed thereto to be used for, or diverted to,
purposes other than the exclusive benefit of Participants,
Retired Participants, or their Beneficiaries.
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(b) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act Section
403(c)(2)(A), the Employer may demand repayment of such excessive
contribution at any time within one (1) year following the time
of payment and the Trustees shall return such amount to the
Employer within the one (1) year period. Earnings of the Plan
attributable to the excess contributions may not be returned to
the Employer but any losses attributable thereto must reduce the
amount so returned.
8.7 BONDING
Every Fiduciary, except a bank or an insurance company,
unless exempted by the Act and regulations thereunder, shall be
bonded in an amount not less than 10% of the amount of the funds
such Fiduciary handles; provided, however, that the minimum bond
shall be $1,000 and the maximum bond, $500,000. The amount of
funds handled shall be determined at the beginning of each Plan
Year by the amount of funds handled by such person, group, or
class to be covered and their predecessors, if any, during the
preceding Plan Year, or if there is no preceding Plan Year, then
by the amount of the funds to be handled during the then current
year. The bond shall provide protection to the Plan against any
loss by reason of acts of fraud or dishonesty by the Fiduciary
alone or in connivance with others. The surety shall be a
corporate surety company (as such term is used in Act Section
412(a)(2)), and the bond shall be in a form approved by the
Secretary of Labor. Notwithstanding anything in the Plan to the
contrary, the cost of such bonds shall be an expense of and may,
at the election of the Administrator, be paid from the Trust Fund
or by the Employer.
8.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer nor the Trustee, nor their
successors, shall be responsible for the validity of any Contract
issued hereunder or for the failure on the part of the insurer to
make payments provided by any such Contract, or for the action of
any person which may delay payment or render a Contract null and
void or unenforceable in whole or in part.
8.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall
not have any responsibility for the validity of this Plan or for
the tax or legal aspects of this Plan. The insurer shall be
protected and held harmless in acting in accordance with any
written direction of the Trustee, and shall have no duty to see
to the application of any funds paid to the Trustee, nor be
required to question any actions directed by the Trustee.
Regardless of any provision of this Plan, the insurer shall not
-46-
<PAGE>
be required to take or permit any action or allow any benefit or
privilege contrary to the terms of any Contract which it issues
hereunder, or the rules of the insurer.
8.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal
representative, Beneficiary, or to any guardian or committee
appointed for such Participant or Beneficiary in accordance with
the provisions of the Plan, shall, to the extent thereof, be in
full satisfaction of all claims hereunder against the Trustee and
the Employer, either of whom may require such Participant, legal
representative, Beneficiary, guardian or committee, as a
condition precedent to such payment, to execute a receipt and
release thereof in such form as shall be determined by the
Trustee or Employer.
8.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is
permitted or required to do or perform any act or matter or
thing, it shall be done and performed by a person duly authorized
by its legally constituted authority.
8.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the
Employer, (2) the Administrator and (3) the Trustee. The named
Fiduciaries shall have only those specific powers, duties,
responsibilities, and obligations as are specifically given them
under the Plan. In general, the Employer shall have the sole
responsibility for making the contributions provided for under
Section 4.1; and shall have the sole authority to appoint and
remove the Trustee and the Administrator; to formulate the Plan's
"funding policy and method"; and to amend or terminate, in whole
or in part, the Plan. The Administrator shall have the sole
responsibility for the administration of the Plan, which
responsibility is specifically described in the Plan. The
Trustee shall have the sole responsibility of management of the
assets held under the Trust, except those assets, the management
of which has been assigned to an Investment Manager, who shall be
solely responsible for the management of the assets assigned to
it, all as specifically provided in the Plan. Each named
Fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the
provisions of the Plan, authorizing or providing for such
direction, information or action. Furthermore, each named
Fiduciary may rely upon any such direction, information or action
of another named Fiduciary as being proper under the Plan, and is
not required under the Plan to inquire into the propriety of any
such direction, information or action. It is intended under the
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<PAGE>
Plan that each named Fiduciary shall be responsible for the
proper exercise of its own powers, duties, responsibilities and
obligations under the Plan. No named Fiduciary shall guarantee
the Trust Fund in any manner against investment loss or
depreciation in asset value. Any person or group may serve in
more than one Fiduciary capacity. In the furtherance of their
responsibilities hereunder, the "named Fiduciaries" shall be
empowered to interpret the Plan and Trust and to resolve
ambiguities, inconsistencies and omissions, which findings shall
be binding, final and conclusive.
8.13 HEADINGS
The headings and subheadings of this Plan have been
inserted for convenience of reference and are to be ignored in
any construction of the provisions hereof.
8.14 APPROVAL BY INTERNAL REVENUE SERVICE
(a) Notwithstanding anything herein to the contrary,
contributions to this Plan are conditioned upon the initial
qualification of the Plan under Code Section 401. If the Plan
receives an adverse determination with respect to its initial
qualification, then the Plan may return such contributions to the
Employer within one year after such determination, provided the
application for the determination is made by the time prescribed
by law for filing the Employer's return for the taxable year in
which the Plan was adopted, or such later date as the Secretary
of the Treasury may prescribe.
(b) Notwithstanding any provisions to the contrary, except
Sections 3.6, 3.7, and 4.1(c), any contribution by the Employer
to the Trust Fund is conditioned upon the deductibility of the
contribution by the Employer under the Code and, to the extent
any such deduction is disallowed, the Employer may, within one
(1) year following the disallowance of the deduction, demand
repayment of such disallowed contribution and the Trustee shall
return such contribution within one (1) year following the
disallowance. Earnings of the Plan attributable to the excess
contribution may not be returned to the Employer, but any losses
attributable thereto must reduce the amount so returned.
8.15 UNIFORMITY
All provisions of this Plan shall be interpreted and
applied in a uniform, nondiscriminatory manner. In the event of
any conflict between the terms of this Plan and any Contract
purchased hereunder, the Plan provisions shall control.
-48-
<PAGE>
ARTICLE IX
PARTICIPATING EMPLOYERS
9.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with
the consent of the Employer and Trustee, any other corporation or
entity, whether an affiliate or subsidiary or not, may adopt this
Plan and all of the provisions hereof, and participate herein and
be known as a Participating Employer, by a properly executed
document evidencing said intent and will of such Participating
Employer.
9.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each such Participating Employer shall be required to
use the same Trustee as provided in this Plan.
(b) The Trustee may, but shall not be required to,
commingle, hold and invest as one Trust Fund all contributions
made by Participating Employers, as well as all increments
thereof. However, the assets of the Plan shall, on an ongoing
basis, be available to pay benefits to all Participants and
Beneficiaries under the Plan without regard to the Employer or
Participating Employer who contributed such assets.
(c) The transfer of any Participant from or to an Employer
participating in this Plan, whether he be an Employee of the
Employer or a Participating Employer, shall not affect such
Participant's rights under the Plan, and all amounts credited to
such Participant's Elective Account as well as his accumulated
service time with the transferor or predecessor, and his length
of participation in the Plan, shall continue to his credit.
(d) All rights and values forfeited by termination of
employment shall inure only to the benefit of the Participants of
the Employer or Participating Employer by which the forfeiting
Participant was employed.
(e) Any expenses of the Trust which are to be paid by the
Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total
amount standing to the credit of all Participants employed by
such Employer bears to the total standing to the credit of all
Participants.
9.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a
party to this Plan; provided, however, that with respect to all
of its relations with the Trustee and Administrator for the
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<PAGE>
purpose of this Plan, each Participating Employer shall be deemed
to have designated irrevocably the Employer as its agent. Unless
the context of the Plan clearly indicates the contrary, the word
"Employer" shall be deemed to include each Participating Employer
as related to its adoption of the Plan.
9.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred
between Participating Employers, and in the event of any such
transfer, the Employee involved shall carry with him his
accumulated service and eligibility. No such transfer shall
effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall
thereupon become obligated hereunder with respect to such
Employee in the same manner as was the Participating Employer
from whom the Employee was transferred.
9.5 PARTICIPATING EMPLOYER'S CONTRIBUTION
All contributions made by a Participating Employer, as
provided for in this Plan, shall be determined separately by each
Participating Employer, and shall be allocated only among the
Participants eligible to share of the Employer or Participating
Employer making the contribution. On the basis of the
information furnished by the Administrator, the Trustee shall
keep separate books and records concerning the affairs of each
Participating Employer hereunder and as to the accounts and
credits of the Employees of each Participating Employer. The
Trustee may, but need not, register Contracts so as to evidence
that a particular Participating Employer is the interested
Employer hereunder, but in the event of an Employee transfer from
one Participating Employer to another, the employing Employer
shall immediately notify the Trustee thereof.
9.6 AMENDMENT
Amendment of this Plan by the Employer at any time when
there shall be a Participating Employer hereunder shall only be
by the written action of each and every Participating Employer
and with the consent of the Trustee where such consent is
necessary in accordance with the terms of this Plan.
9.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to
discontinue or revoke its participation in the Plan. At the time
of any such discontinuance or revocation, satisfactory evidence
thereof and of any applicable conditions imposed shall be
delivered to the Trustee. The Trustee shall thereafter transfer,
deliver and assign Contracts and other Trust Fund assets
-50-
<PAGE>
allocable to the Participants of such Participating Employer to
such new Trustee as shall have been designated by such
Participating Employer, in the event that it has established a
separate pension plan for its Employees, provided however, that
no such transfer shall be made if the result is the elimination
or reduction of any "Section 411(d)(6) protected benefits" in
accordance with Section 8.1(c). If no successor is designated,
the Trustee shall retain such assets for the Employees of said
Participating Employer pursuant to the provisions of Article VII
hereof. In no such event shall any part of the corpus or income
of the Trust as it relates to such Participating Employer be used
for or diverted to purposes other than for the exclusive benefit
of the Employees of such Participating Employer.
9.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and
all necessary rules or regulations, binding upon all
Participating Employers and all Participants, to effectuate the
purpose of this Article.
IN WITNESS WHEREOF, this Plan has been executed the day and year
first above written.
ATTEST: Coca-Cola Enterprises Inc.
LAURIE L. CLARK
9/9/94 RICHARD D. LARSON
By:______________________ By:_____________________________
EMPLOYER
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<PAGE>
FIRST AMENDMENT TO
COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN FOR CERTAIN BARGAINING EMPLOYEES
WHEREAS, Coca-Cola Enterprises Inc. (the "Employer")
established the Coca-Cola Enterprises Inc. Savings and Investment
Plan for Certain Bargaining Employees (the "Plan"), effective
March 4, 1994, for the exclusive benefit of its eligible
employees; and
WHEREAS, the Employer desires to amend the Plan to
correct scrivener's errors in the Plan document and to reflect
the original intent and administration of the Plan; and
WHEREAS, Section 7.1 (Amendment) of the Plan authorizes
the Employer to amend the Plan; and
WHEREAS, pursuant to the authority contained in Section
7.1 of the Plan, the Employer has approved and authorized the
amendment of the Plan in the manner set forth in this instrument;
NOW, THEREFORE, the Employer hereby amends the Plan,
effective March 4, 1994, as follows:
1. Delete in its entirety paragraph (a) of Section 6.5
and substitute the following:
(a) The Administrator, pursuant to the
election of the Participant, shall direct the
Trustee to distribute to a Participant or his
Beneficiary any amount to which he is
entitled under the Plan in one or more of the
following methods: in a lump-sum in cash or
property.
2. Delete in its entirety paragraph (a) of Section 6.6
and substitute the following:
(b) The death benefit payable pursuant to
Section 6.2 shall be paid to the
Participant's Beneficiary in one lump-sum
payment in cash or in property, subject to
the rules of Section 6.6(b).
3. Delete in its entirety paragraph (b) of Section 7.2
and substitute the following:
(b) Upon the full termination of the Plan,
the Employer shall direct the distribution of
the assets of the Trust Fund to Participants
in a manner which is consistent with and
satisfies the provisions of Section 6.5.
Distributions to a Participant shall be made
<PAGE>
in cash or in property or through the
purchase of irrevocable nontransferable
deferred commitments from an insurer. Except
as permitted by Regulations, the termination
of the Plan shall not result in the reduction
of "Section 411(d)(6) protected benefits" in
accordance with Section 7.1(c).
4. Add the following as the last sentence of the first
paragraph of Section 2.5:
The Administrator shall have the authority to
direct the Trustee to acquire and hold
"qualifying Employer securities" and
"qualifying Employer real property," as those
terms are defined in the Act.
IN WITNESS WHEREOF, this amendment has been executed on
this the 13th day of July , 1995.
------- -----------
COCA-COLA ENTERPRISES INC.
By: RICHARD D. LARSON
------------------------------
ATTEST:
LAURIE CLARK
- -----------------------
<PAGE>
SECOND AMENDMENT TO
COCA-COLA ENTERPRISES INC.
SAVINGS AND INVESTMENT PLAN FOR CERTAIN BARGAINING EMPLOYEES
WHEREAS, Coca-Cola Enterprises Inc. (the "Employer")
established the Coca-Cola Enterprises Inc. Savings and Investment
Plan for Certain Bargaining Employees (the "Plan"), effective
March 4, 1994, for the exclusive benefit of its eligible
employees; and
WHEREAS, the Employer amended the Plan by First
Amendment to correct scrivener's errors in the Plan document and
to reflect the original intent and administration of the Plan;
and
WHEREAS, the Employer desires to further amend the Plan
to allow the Plan to accept rollovers and plan-to-plan transfers
and to make plan-to-plan transfers to another qualified Plan; and
WHEREAS, Section 7.1 (Amendment) of the Plan authorizes
the Employer to amend the Plan; and
WHEREAS, pursuant to the authority contained in Section
7.1 of the Plan, the Employer has approved and authorized the
amendment of the Plan in the manner set forth in this instrument;
NOW, THEREFORE, the Employer hereby amends the Plan,
effective January 1, 1995, as follows:
1. Add, as new Section 1.34, the following, renumbering
subsequent sections under Article I accordingly:
1.34 Participant s Transfer/Rollover Account means
the account established and maintained with respect to
any Rollover Contributions contributed to the Trust on
behalf of a Participant, pursuant to Section 4.10(a)
and any Transfer Contributions contributed to the Trust
on behalf of a Participant, pursuant to Section
4.10(b).
2. Add to Section 3.4, as new paragraph (c), the following:
(c) In the event a Participant becomes an ineligible
to participate in this Plan and becomes eligible for
participation in any other defined contribution plan
sponsored by the Employer, which is qualified under
Section 401(a) of the Code, such Participant may elect
to have the Participant s Elective Account and
Transfer/Rollover Account under this Plan transferred
to such other Plan, provided such account is 100%
vested. To the extent any transfer occurs between
plans under this paragraph (c), the amounts transferred
to the receiving plan shall be maintained in accounts
with similar characteristics to the accounts under the
plan from which the amounts were transferred. Any such
<PAGE>
transfer shall be made in accordance with the terms of
the Code and subject to such rules and requirements as
the Administrator may deem appropriate. Upon the
effectiveness of any such transfer, the Plan and the
Administrator shall have no further responsibility or
liability with respect to the transferred assets and
liabilities.
3. Add, as new Section 4.10, the following :
4.10 ROLLOVERS AND TRANSFERS BETWEEN PLANS
(a) Rollover Contributions.
(1) An Eligible Employee may make a written request to
the Administrator that he be entitled to contribute, or
cause to be contributed, to the Trust Fund, as a
Rollover Contribution, property which is received by
such Eligible Employee or to which such Eligible
Employee is entitled. Such written request shall
contain information concerning the type of property
constituting the proposed Rollover Contribution and a
statement, satisfactory to the Administrator, that the
property constitutes a Rollover Contribution.
(2) Subject to the terms of the Plan and the Code
(including regulations and rulings promulgated
thereunder), the Administrator, in its sole discretion,
may permit such a Rollover contribution to be accepted
by the Trustee and deposited into the Trust Fund within
sixty days of the date such amount became available to
the Employee. Unless the Administrator permits
otherwise, all Rollover Contributions shall be made in
cash.
(3) "Rollover Contributions" shall mean the amounts
paid to the Trust Fund under this Section 4.10. An
amount shall be treated as a Rollover Contribution if,
and only if, such amount constitutes:
(i) The balance to the credit of an Employee in a
qualified employees' trust or annuity plan
paid to the Employee in one or more
distributions which qualify for treatment as
a rollover amount under Section 402(a)(5) of the
Code, or
(ii) The entire amount (including money and any
other property) in an Individual Retirement
Account or Individual Retirement Annuity (as
defined in Section 408 of the Code) maintained for
the benefit of the Employee making the
Rollover Contribution, which amount has been
2
<PAGE>
distributed from such Individual Retirement
Account or Individual Retirement Annuity.
Such amount shall constitute a Rollover
Contribution only if the amount in such
Individual Retirement Account or Individual
Retirement Annuity is solely attributable to
a rollover from either a trust described in
Section 401(a) of the Code or an annuity plan
described in Section 403(a) of the Code, plus the
earnings thereon.
(iii) The term Rollover Contribution does not
include any amount which is attributable to a
distribution from a trust or annuity plan if
the recipient of the distribution was an
employee within the meaning of Section 401(c)(1) of
the Code at the time contributions to such
trust or annuity plan were made on the
recipient's behalf, nor does it include any
amount which would cause the Plan to be
considered a "transferee plan" within the
meaning of Code Section 401(a)(11).
(b) Transfer Contributions.
(1) The Administrator, in its sole discretion, shall
permit direct trustee-to-trustee transfers of assets
and liabilities to the Plan as a Transfer Contribution
on behalf of a Participant. However, in no event shall
an amount be accepted as a Transfer Contribution on
behalf of a Participant if such amount would cause the
Plan to be considered a "transferee plan" within the
meaning of Code Section 401(a)(11).
(2) "Transfer Contributions" shall mean amounts
received by a direct trustee-to-trustee transfer.
IN WITNESS WHEREOF, this amendment has been executed on
this the 13th day of November, 1995.
--------
COCA-COLA ENTERPRISES INC.
By: RICHARD D. LARSON
--------------------------
ATTEST:
LAURIE L. CLARK
- ----------------------------
3
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Coca-Cola Enterprises Inc. Savings and
Investment Plan for Certain Bargaining Employees of our report dated
January 30, 1995, with respect to the consolidated financial statements
and schedule of Coca-Cola Enterprises Inc. included in Coca-Cola Enterprises
Inc.'s Annual Report (Form 10-K, as amended on November 3, 1995) for
the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
December 20, 1995
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, M. DOUGLAS
INVESTER, a Director of Coca-Cola Enterprises Inc. (the "Company"),
do hereby appoint Summerfield K. Johnston, Jr., Vice Chairman and
Chief Executive Officer of the Company, Lowry F. Kline, General
Counsel of the Company, and J. Guy Beatty, Jr., Secretary of the
Company, or any one of them, my true and lawful attorney for me and
in my name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
M. DOUGLAS IVESTER
------------------------------------
M. Douglas Ivester, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, HENRY A.
SCHIMBERG, a Director of Coca-Cola Enterprises Inc. (the
"Company"), do hereby appoint Summerfield K. Johnston, Jr., Vice
Chairman and Chief Executive Officer of the Company, Lowry F.
Kline, General Counsel of the Company, and J. Guy Beatty, Jr.,
Secretary of the Company, or any one of them, my true and lawful
attorney for me and in my name for the purpose of executing on my
behalf registration statements on Form S-8, and amendments to
registration statements on Form S-8, in connection with the
issuance of securities of the Company pursuant to the terms of each
of the following plans of the Company: Deferred Compensation Plan
for Non-Employee Director Compensation (As Amended and Restated
Effective April 1, 1994), Supplemental Matched Employee Savings and
Investment Plan, and Savings and Investment Plan for Certain
Bargaining Employees, or any amendment or supplement thereto, and
causing such plans or any such amendment or supplement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
HENRY A. SCHIMBERG
------------------------------------
Henry A. Schimberg, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, HOWARD G.
BUFFETT, a Director of Coca-Cola Enterprises Inc. (the "Company"),
do hereby appoint Summerfield K. Johnston, Jr., Vice Chairman and
Chief Executive Officer of the Company, Lowry F. Kline, General
Counsel of the Company, and J. Guy Beatty, Jr., Secretary of the
Company, or any one of them, my true and lawful attorney for me and
in my name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
HOWARD G. BUFFETT
------------------------------------
Howard G. Buffett, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JOHN L.
CLENDENIN, a Director of Coca-Cola Enterprises Inc. (the
"Company"), do hereby appoint Summerfield K. Johnston, Jr., Vice
Chairman and Chief Executive Officer of the Company, Lowry F.
Kline, General Counsel of the Company, and J. Guy Beatty, Jr.,
Secretary of the Company, or any one of them, my true and lawful
attorney for me and in my name for the purpose of executing on my
behalf registration statements on Form S-8, and amendments to
registration statements on Form S-8, in connection with the
issuance of securities of the Company pursuant to the terms of each
of the following plans of the Company: Deferred Compensation Plan
for Non-Employee Director Compensation (As Amended and Restated
Effective April 1, 1994), Supplemental Matched Employee Savings and
Investment Plan, and Savings and Investment Plan for Certain
Bargaining Employees, or any amendment or supplement thereto, and
causing such plans or any such amendment or supplement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
JOHN L. CLENDENIN
------------------------------------
John L. Clendenin, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JOHNNETTA B.
COLE, a Director of Coca-Cola Enterprises Inc. (the "Company"), do
hereby appoint Summerfield K. Johnston, Jr., Vice Chairman and
Chief Executive Officer of the Company, Lowry F. Kline, General
Counsel of the Company, and J. Guy Beatty, Jr., Secretary of the
Company, or any one of them, my true and lawful attorney for me and
in my name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
JOHNNETTA B. COLE
------------------------------------
Johnnetta B. Cole, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, CLAUS M. HALLE,
a Director of Coca-Cola Enterprises Inc. (the "Company"), do hereby
appoint Summerfield K. Johnston, Jr., Vice Chairman and Chief
Executive Officer of the Company, Lowry F. Kline, General Counsel
of the Company, and J. Guy Beatty, Jr., Secretary of the Company,
or any one of them, my true and lawful attorney for me and in my
name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
CLAUS M. HALLE
------------------------------------
Claus M. Halle, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, L. PHILLIP
HUMANN, a Director of Coca-Cola Enterprises Inc. (the "Company"),
do hereby appoint Summerfield K. Johnston, Jr., Vice Chairman and
Chief Executive Officer of the Company, Lowry F. Kline, General
Counsel of the Company, and J. Guy Beatty, Jr., Secretary of the
Company, or any one of them, my true and lawful attorney for me and
in my name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
L. PHILLIP HUMANN
------------------------------------
L. Phillip Humann, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, E. NEVILLE
ISDELL, a Director of Coca-Cola Enterprises Inc. (the "Company"),
do hereby appoint Summerfield K. Johnston, Jr., Vice Chairman and
Chief Executive Officer of the Company, Lowry F. Kline, General
Counsel of the Company, and J. Guy Beatty, Jr., Secretary of the
Company, or any one of them, my true and lawful attorney for me and
in my name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
E. NEVILLE ISDELL
------------------------------------
E. Neville Isdell, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, JOHN E. JACOB, a
Director of Coca-Cola Enterprises Inc. (the "Company"), do hereby
appoint Summerfield K. Johnston, Jr., Vice Chairman and Chief
Executive Officer of the Company, Lowry F. Kline, General Counsel
of the Company, and J. Guy Beatty, Jr., Secretary of the Company,
or any one of them, my true and lawful attorney for me and in my
name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
JOHN E. JACOB
------------------------------------
John E. Jacob, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, ROBERT A. KELLER,
a Director of Coca-Cola Enterprises Inc. (the "Company"), do hereby
appoint Summerfield K. Johnston, Jr., Vice Chairman and Chief
Executive Officer of the Company, Lowry F. Kline, General Counsel
of the Company, and J. Guy Beatty, Jr., Secretary of the Company,
or any one of them, my true and lawful attorney for me and in my
name for the purpose of executing on my behalf registration
statements on Form S-8, and amendments to registration statements
on Form S-8, in connection with the issuance of securities of the
Company pursuant to the terms of each of the following plans of the
Company: Deferred Compensation Plan for Non-Employee Director
Compensation (As Amended and Restated Effective April 1, 1994),
Supplemental Matched Employee Savings and Investment Plan, and
Savings and Investment Plan for Certain Bargaining Employees, or
any amendment or supplement thereto, and causing such plans or any
such amendment or supplement to be filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as
amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
ROBERT A. KELLER
------------------------------------
Robert A. Keller, Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, SCOTT L.
PROBASCO, JR., a Director of Coca-Cola Enterprises Inc. (the
"Company"), do hereby appoint Summerfield K. Johnston, Jr., Vice
Chairman and Chief Executive Officer of the Company, Lowry F.
Kline, General Counsel of the Company, and J. Guy Beatty, Jr.,
Secretary of the Company, or any one of them, my true and lawful
attorney for me and in my name for the purpose of executing on my
behalf registration statements on Form S-8, and amendments to
registration statements on Form S-8, in connection with the
issuance of securities of the Company pursuant to the terms of each
of the following plans of the Company: Deferred Compensation Plan
for Non-Employee Director Compensation (As Amended and Restated
Effective April 1, 1994), Supplemental Matched Employee Savings and
Investment Plan, and Savings and Investment Plan for Certain
Bargaining Employees, or any amendment or supplement thereto, and
causing such plans or any such amendment or supplement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
SCOTT L. PROBASCO, JR.
------------------------------------
Scott L. Probasco, Jr., Director,
Coca-Cola Enterprises Inc.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, FRANCIS A.
TARKENTON, a Director of Coca-Cola Enterprises Inc. (the
"Company"), do hereby appoint Summerfield K. Johnston, Jr., Vice
Chairman and Chief Executive Officer of the Company, Lowry F.
Kline, General Counsel of the Company, and J. Guy Beatty, Jr.,
Secretary of the Company, or any one of them, my true and lawful
attorney for me and in my name for the purpose of executing on my
behalf registration statements on Form S-8, and amendments to
registration statements on Form S-8, in connection with the
issuance of securities of the Company pursuant to the terms of each
of the following plans of the Company: Deferred Compensation Plan
for Non-Employee Director Compensation (As Amended and Restated
Effective April 1, 1994), Supplemental Matched Employee Savings and
Investment Plan, and Savings and Investment Plan for Certain
Bargaining Employees, or any amendment or supplement thereto, and
causing such plans or any such amendment or supplement to be filed
with the Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto set my hand this 19th
day of December, 1995.
FRANCIS A. TARKENTON
------------------------------------
Francis A. Tarkenton, Director,
Coca-Cola Enterprises Inc.
<PAGE>
CERTIFICATE
The undersigned, Liston Bishop, hereby certifies that he is an
Assistant Secretary of Coca-Cola Enterprises Inc., a Delaware corporation
(the "Company"), that the following constitutes a true and correct copy
of resolutions adopted by the Board of Directors of the Company at a regular
meeting held December 19, 1995, and that such resolutions have not
been amended, modified or rescinded and are in full force and effect
as of the date hereof:
RESOLVED, that the Company be, and it hereby is, authorized to file
with the Securities and Exchange Commission registration statements,
including any exhibits thereto and any amendments and supplements
thereto, on any appropriate form authorized by the Securities and
Exchange Commission under the Securities Act of 1933, as amended,
providing for registration of 500,000 shares of the Company's common
stock issuable under the Company's Supplemental Matched Employee
Savings and Investment Plan (as amended and restated July 1, 1992),
25,000 shares under the Savings and Investment Plan for Certain
Bargaining Employees, and 4,418 shares under the Deferred Compensation
Plan for Non-Employee Director Compensation (collectively, the
"Benefit Plan Shares"); and
FURTHER RESOLVED, that the proper officers of the Company be, and each
of them hereby is, authorized, in the name and on behalf of the
Company, to execute and deliver a power of attorney appointing the
directors and officers of the Company, or any of them, to act as
attorneys in fact for the Company for the purpose of executing and
filing with the Securities and Exchange Commission any such
registration statement, or any amendment or supplement, thereto, or
any document deemed appropriate by any such officer in connection
therewith; and
FURTHER RESOLVED, that Lowry F. Kline be, and he hereby is, designated
and appointed as the agent for service of the Company in all matters
related to such registrations statements; and
FURTHER RESOLVED, that the Company may execute and deliver to the New
York Stock Exchange, Inc. or any other appropriate exchange, any
application, including any amendment or supplement thereto, for the
listing of the Benefit Plan Shares upon issuance, and may appoint a
listing agent or listing agents to represent the Company for such
purpose and to execute, in the name and on behalf of the Company, any
other agreement or instrument that may be necessary or appropriate to
accomplish such listing; and
FURTHER RESOLVED, that the Company be, and it hereby is, authorized to
effect or maintain the registration or qualification (or exemption
therefrom) of all or any part of the Benefit Plan Shares for offer or
sale under the securities laws of any of the states or jurisdictions
of the United States of America or under the applicable laws or
regulations of any country or political subdivision thereof; and
FURTHER RESOLVED, that any officer of the Company, or such other
person or persons as the Chief Executive officer or his designee may
appoint, be, and each of them hereby is, authorized to execute, in the
name and on behalf of the Company and under its corporate seal or
otherwise, deliver and file any agreement, instrument, certificate or
any other document, or any amendment or supplement thereto, and to
<PAGE>
take any other action that such person may deem appropriate to carry
out the intent and purpose of the preceding resolutions and to effect
the transactions contemplated thereby.
IN WITNESS WHEREOF, the undersigned has hereunto set his
hand and seal of the Company this 21st day of December, 1995.
LISTON BISHOP
----------------------
Liston Bishop
Assistant Secretary
(SEAL)
