As Filed with the Securities and Exchange Commission on September 27, 1995
Registration No. 33-60728
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8 POS
AMENDMENT NO. 1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GENERAL COMMUNICATION, INC.
(Exact name of issuer as specified in its Charter)
ALASKA 92-0072737
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2550 Denali Street, Suite 1000, Anchorage, Alaska 99503-2781
(Address of Principal Executive Offices) (zip code)
GENERAL COMMUNICATION, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
John M. Lowber
General Communication, Inc.
2550 Denali Street, Suite 1000, Anchorage, Alaska 99503-2781
(Name and address of agent for service)
(907) 265-5600
(Telephone number, including area code, of agent for service)
Copy to: J. J. Brecht
Wohlforth, Argetsinger, Johnson & Brecht, A Professional Corporation
900 West 5th Avenue, Suite 600, Anchorage, Alaska 99501
(907) 276-6401
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed Maximum Amount of
Title of Securities Amount to Maximum Aggregate Offering Registration
to be Registered be Registered Offering Price (1) Price Fee
- - -----------------------------------------------------------------------------------------------
General Communi-
cation, Inc. Com-
mon Stock
Class A 800,000 $2,800,000 $2,800,000 $965.52
===============================================================================================
<FN>
1 Estimated solely for the purpose of calculating the amount of the
registration fee, based upon the closing price of $3.50 per share for that
common stock as quoted on the Nasdaq Stock Market on September 22, 1995.
- - -----------------
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
----------------------------------------------------
Item 1. Plan Information
The contents of the initial Registration Statement pertaining to the
General Communication, Inc. Qualified Employee Stock Purchase Plan filed with
the Securities and Exchange Commission on Form S-8 on April 5, 1993
(Registration No. 33-60728) are incorporated by reference into this Amendment
No. 1 to that Registration Statement. Required opinions and consents and
signatures are included in this Amendment.
Item 2. Registrant Information and Employee Plan Annual Information
See Item 1.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference
See Item 1.
Item 4. Description of Securities
See Item 1.
Item 5. Interests of Named Experts and Counsel
See Item 1.
Item 6. Indemnification of Directors and Officers
See Item 1.
Amendment to Registration Statement (S-8)
ASS0075D Page 2
<PAGE>
Item 7. Exemption from Registration Claimed
See Item 1.
Item 8. Exhibits
See Exhibit Index and Exhibits at the end of this Amendment No. 1 to
the Registration Statement.
Item 9. Undertakings
The Company hereby undertakes each and every one of the following:
(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;
and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii)
above do not apply if the information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Company pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in
the Registration Statement;
(2) To agree that, for the purpose of determining any liability
under the Securities Act, 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;
Amendment to Registration Statement (S-8)
ASS0075D Page 3
<PAGE>
(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) To agree that, for purposes of determining any liability under
the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or 15(d) of the Exchange Act (and
where applicable, each filing of the Plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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; and
(5) To disclose, in so far as indemnification for liabilities
arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in that act and is, therefore,
unenforceable; and in the event that a claim for
indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a
director, officer, or controlling person of the Company 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, to submit,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, to a court of appropriate
jurisdiction the question whether such indemnification by the
Company is against public policy as expressed in that Act and
to be governed by the final adjudication of that issue.
Amendment to Registration Statement (S-8)
ASS0075D Page 4
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for 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 Municipality of Anchorage, State of Alaska, on September 20,
1995.
GENERAL COMMUNICATION, INC.
(Registrant)
By: /s/ By: /s/
Ronald A. Duncan John M. Lowber
President and Chief Chief Financial Officer
Executive Officer (Principal Financial Officer)
(Principal Executive
Officer)
By: /s/
Alfred J. Walker
Vice President & Chief
Accounting Officer
(Principal Accounting Officer)
Amendment to Registration Statement (S-8)
ASS0075D Page 5
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
/s/ 9/6/95
Ronald A. Duncan Date
President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ 9/6/95
Carter F. Page Date
Chairman of the Board
and Director
/s/ 9/7/95
Robert M. Walp Date
Vice Chairman of the Board
and Director
/s/ 9/15/95
Donne F. Fisher Date
Director
/s/ 9/7/95
John W. Gerdelman Date
Director
/s/ 9/7/95
Larry E. Romrell Date
Director
/s/ 9/7/95
James M. Schneider Date
Director
Amendment to Registration Statement (S-8)
ASS0075D Page 6
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the Plan has duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the Municipality of Anchorage,
State of Alaska, on September 22, 1995.
GENERAL COMMUNICATION, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
By: /s/
Alfred J. Walker
Plan Administrator
Amendment to Registration Statement (S-8)
ASS0075D Page 7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS TO
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
FOR THE GENERAL COMMUNICATION, INC.
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
Amendment to Registration Statement (S-8)
ASS0075D Page 8
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4 Instruments defining rights of security holders, including
indentures
4.1 (1) Restated Articles of Incorporation of General
Communication, Inc.
4.2 (2) Bylaws of General Communication, Inc.
4.3.1 (3) Resolutions of Board of Directors of the Company and of
Shareholders of the Company adopted at their December 17,
1986 meetings adopting Qualified Employee Stock Purchase
Plan
4.3.2 Copy of the General Communication, Inc. Revised Qualified
Employee Stock Purchase Plan
4.3.3 (3) Resolution of the Board of Directors of the Company at
its June 4, 1992 meeting adopting certain amendments to
the Plan to bring it into compliance with Rule 16b-3(d)
(Participant Directed Transactions)
4.3.4 (3) Resolution of the Board of Directors of the Company
adopted at its March 24, 1993 meeting adopting certain
amendments to the Plan and re-establishing the Plan as an
employee benefit plan of the Company
4.3.5 (3) Resolution of the Board of Directors of the Company at
its March 24, 1993 meeting authorizing the increase of the
allocation of common stock for acquisition by the Plan and
the registration of the offering of that stock under the
Securities Act of 1933
4.3.6 Certificate of Secretary on action by Board of Directors at
its October 20, 1994 meeting approving certain amendments
to the Plan to comply with the Tax Reform Act of 1986, as
amended, and to allow for participating eligible employees
to choose investments other than common stock of the
Company; and resolution of the Board adopted at its
December 20, 1994 meeting approving the revised plan
4.3.7 Certificate of Secretary on action of Board of Directors
taken without a meeting and with unanimous consent
approving certain additional amendments to the Plan to
comply with the Tax Reform Act of 1986, as amended,
primarily relating to investment responsibility and the
relationship between the Plan Committee and the Trustee;
and the corresponding Minutes of Action and Resolution
(including those amendments) of the Board approving those
amendments effective on September 1, 1995.
Amendment to Registration Statement (S-8)
ASS0075D Page 9
<PAGE>
4.3.8 Resolution of the Board of Directors of the Company
adopted at its February 9, 1995 meeting pertaining to an
increase of the number of shares of Class A common stock
allocated to the Plan
4.4 (4) Revised Questions and Answers about the Qualified
Employee Stock Purchase Plan (summary plan
description),dated January 1, 1995
4.5.1 (3) IRS Determination on Qualified Employee Stock Purchase
Plan and U.S. Department of Labor comments on ERISA, dated
March 8, 1988
5.1 (3) Legal Opinion on Legality of Shares dated March 30, 1993
5.2 Legal Opinion on Legality of Shares dated September 26,
1995
15 None
24 Consents
24.1 Consent of Wohlforth, Argetsinger, Johnson & Brecht, A
Professional Corporation
24.2 Consent of Harris, Orr, Wakayama & Mason, a Professional
Limited Liability Company
24.3 Consent of KPMG Peat Marwick LLP
25 None
28 Additional Exhibits
28.1 (3) Resolution Appointing Plan Administrator
28.2 (3) Resolutions Appointing Plan Committee Members
28.3 Certificate of Secretary on Board of Directors Action
appointing New Plan Committee Member
29 None
- - ---------------------------------------------
1/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10-K for the year ended
December 31, 1991.
2/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10-K for the year ended
December 31, 1992.
3/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's Registration Statement for the Qualified
Employee Stock Purchase Plan (Registration No. 33-60728) filed April 5,
1993.
4/ Incorporated by reference and previously filed with the SEC as an
exhibit to the Company's annual report on Form 10K for the year ended
December 31, 1994.
Amendment to Registration Statement (S-8)
ASS0075D Page 10
<PAGE>
Exhibit 4.3.2
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the document attached hereto as Exhibit 4.3.2A is a true and correct copy of the
General Communication, Inc. Revise Qualified Employee Stock Purchase Plan dated
November 22, 1994 adopted by the board of directors of General Communication,
Inc.
Executed this 25th day of September, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 25 day of September, 1995.
/s/ Barb Bearman
Notary Public in and for Alaska
My Commission Expires: 1-17-97
Amendment to Registration Statement (S-8)
ASS0075D Page 11
<PAGE>
EXHIBIT 4.3.2A
REVISED
QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
OF
GENERAL COMMUNICATION, INC.
November 22, 1994 Page 1
=============================================================
"This Document entitled Revised Qualified Employee Stock
Purchase Plan of General Communication, Inc. constitutes
part of a Prospectus covering securities that have
been regisered under the Securities Act of 1933."
=============================================================
Page 12
<PAGE>
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I NAME AND PURPOSE OF PLAN AND TRUST 3
ARTICLE II DEFINITIONS 4
ARTICLE III PARTICIPATION 11
ARTICLE IV CONTRIBUTIONS 12
ARTICLE V DETERMINATION AND VESTING OF
PARTICIPANT ACCOUNTS 22
ARTICLE VI RETIREMENT DATE--DESIGNATION
OF BENEFICIARY 25
ARTICLE VII DISTRIBUTION FROM TRUST FUND 26
ARTICLE VIII FIDUCIARY OBLIGATIONS 35
ARTICLE IX PLAN ADMINISTRATOR AND
PLAN COMMITTEE 38
ARTICLE X POWERS AND DUTIES OF THE TRUSTEE 42
ARTICLE XI CONTINUANCE, TERMINATION, AND
AMENDMENT OF PLAN AND TRUST 46
ARTICLE XII MISCELLANEOUS 48
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 2
<PAGE>
ARTICLE I
NAME AND PURPOSE OF PLAN AND TRUST
----------------------------------
Section 1.1 Name and Purpose. The Company, by execution of this agreement,
amends and restates its qualified stock purchase plan, to be known as the
General Communication, Inc. Employee Stock Purchase Plan, to afford its
employees a convenient means for regular and systematic purchases of common
stock of the Company and to instill a proprietary interest in the Company. The
Plan and Trust Fund are created for the exclusive benefit of
Employee-Participants and their beneficiaries. The Plan is intended to qualify
under Sections 401(a) and 401(k) of the Code, and the trust created under the
Plan is intended to be exempt under Section 501(a) of the Code.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 3
<PAGE>
ARTICLE II
DEFINITIONS
-----------
Section 2.1 Definitions. When used in this agreement, the following words
shall have the following meanings, unless the context clearly indicates
otherwise:
(i) Account", unless otherwise indicated, means a Participant's
entire interest in Company stock and any other assets in the
Trust Fund created by his Employer's contributions and his own
contributions, and the income, expenses, gains, and losses
attributable to such stock and assets.
(ii) "Anniversary Date" means the first day of each Plan Year.
(iii) "Associated Company" means any corporation which is deemed to be
a member of the group of corporations under common control of
the Company and which adopts this Plan and Trust with the
consent of the Company. Any such Company which subsequently is
no longer a member of the controlled group shall be deemed to
have terminated this Plan and Trust immediately upon such
failure to be a member of the controlled group.
(iv) "Beneficiary" means the person who, under this Plan, becomes
entitled to receive a Participant's Account upon his death.
(v) "Board of Directors" means the board of directors of the
Company.
(vi) "Break in Service" for purposes of eligibility to participate
means any 12-month period, measured from the Employee's
employment or Reemployment Commencement Date in which the
Employee has completed no more than 500 hours of service.
"One-Year Break in Service" for vesting and all other purposes
means any Plan Year in which the Employee has completed no more
than 500 hours of service. For purposes of this definition,
hours of service shall include service as an Employee in any
capacity including Union Employee and commissioned salesman.
(vii) "Code" means the Internal Revenue Code of 1986, as it presently
is constituted, as it may be amended, or any successor statute
of similar purposes.
(viii) "Company" means General Communication, Inc., a corporation with
its principal place of business at Anchorage, Alaska, or any
successor in interest to it resulting from merger,
consolidation, or transfer of substantially all of its assets,
which expressly may agree in writing to continue this Plan.
(ix) "Compensation" means the wages, as defined in Code Section
3401(a) for purposes of income tax withholding at the source but
determined without regard to any rules 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)).
Pursuant to Code Section 401(a)(17), Compensation taken into
account for all purposes under this Plan shall not exceed
(A)$200,000 (as adjusted by the Secretary of the Treasury for
cost of living increases each year) for any Plan Year for Plan
Years beginning prior to January 1, 1994, and (B)$150,000 (as
adjusted by the Secretary of the Treasury for cost of living
increases each year) for any Plan Year for Plan Years beginning
on or after January 1, 1994. In determining the Compensation of
a Participant for purposes of the Code Section 401(a)(17)
limitation, the rules of Code Section 414(q)(6) will apply,
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 4
<PAGE>
except that the term "family" will include only the spouse of
the Participant and any lineal descendants of the Participant
who have not attained age 19 before the close of the year. If as
a result of the application of the rules of Code Section
414(q)(6), the Code Section 401(a)(17) limitation is exceeded,
then the limitation shall be prorated among the affected
individuals in proportion to each such individual's
Compensation, as determined above prior to the application of
the Code Section 401(a)(17) limitation.
(x) "Determination Date" means, with respect to any Plan Year, the
last day of the preceding Plan Year (or in the case of the first
Plan Year, the last day of such Plan Year). This Section 2.1(x)
shall be interpreted to conform with Code Section 416.
(xi) "Effective Date" of this restated Plan means January 1, 1989,
unless otherwise provided in this Plan. For any Associated
Company which is not participating in this Plan on the restated
effective date, effective date means that date designated by the
Associated Company.
(xii) "Employee" means any person, whether male or female, now or
hereafter in the employ of an Employer, including officers of
the Employer, but excluding directors who are not in the
Employer's employ in any other capacity, excluding independent
contractors, and excluding Union Employees.
(xiii) "Employer" means the Company and any Associated Company which
has adopted the Plan and Trust.
(xiv) "Employment Commencement Date" means the date on which an
Employee first performs an Hour of Service for the Employer.
(xv) "Fiduciary" means a 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 moneys 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. If any money or other property of the Plan is
invested in securities issued by an investment company
registered under the Investment Company Act of 1940, such
investment by itself shall not cause such investment company or
such investment company's investment adviser or principal
underwriter to be deemed to be a fiduciary or a party in
interest.
(xvi) "Highly Compensated Employee" means any Employee or former
Employee who, during the Plan Year or the preceding Plan Year:
(A) was at any time a five percent owner;
(B) received annual Compensation from the Company in excess of
$75,000, as adjusted for increases in the cost of living;
(C) received annual Compensation from the Company in excess of
$50,000, as adjusted for increases in the cost of living, and
was in the top-paid group of Employees for the Plan Year. An
Employee is in the top-paid group of Employees for any Plan Year
if such Employee is in the group consisting of the top twenty
percent (20%) of the Employees when ranked on the basis of
Compensation paid during the Plan Year; or
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 5
<PAGE>
(D) was at any time an officer of the Company and received
Compensation greater than 50% of the dollar limitation in effect
under Code Section 415(b)(1)(A), as adjusted for increases in
the cost of living.
In determining which Employees are Highly Compensated Employees,
an Employee not described in paragraphs (B), (C), or (D) above
for the preceding year will not be treated as falling under the
categories described in paragraphs(B), (C), or (D) for the
current year unless such Employee is in the group consisting of
the 100 Employees with the highest Compensation from the Company
in the current year. The Company may adopt any reasonable,
nondiscriminatory tie-breaking or rounding rules necessary to
determine which Employees are Highly Compensated Employees,
provided that such rules are uniformly and consistently applied.
If no officer has satisfied the Compensation requirement of
paragraph(D) above during the Plan Year, the highest paid
officer for such year will be treated as a Highly Compensated
Employee, unless otherwise provided by regulations. In
determining an individual's Compensation under this section,
Compensation from each Company required to be aggregated under
Code Sections414(b), (c), (m), and (o) will be taken into
account. For purposes of this section, the determination of
Compensation will be made without regard to Code Sections 125,
402(a)(8), 402(h)(1)(B) and, in the case of Company
contributions made pursuant to a salary reduction agreement,
without regard to Code Section 403(b).
A former Employee will be treated as a Highly Compensated
Employee if such Employee separated from service (or was deemed
to have separated) prior to the Plan Year, performs no service
for the Company during the Plan Year, and was a Highly
Compensated Employee for either the separation year or any Plan
Year ending on or after the Employee's 55th birthday.
If, during the Plan Year or the preceding Plan Year, an Employee
is a family member of either (1)a five percent owner who is an
Employee or former Employee; or (2)a Highly Compensated Employee
who is one of the ten most Highly Compensated Employees ranked
on the basis of Compensation paid by the Company during such
year, then the family member and the five percent owner or
top-ten Highly Compensated Employee will be treated as one
Employee receiving Compensation and Plan contributions equal to
the sum of such Compensation and contributions of both
individuals. For purposes of this section, a family member
includes the spouse, lineal ascendants and descendants of the
Employee or former Employee, and the spouses of such lineal
ascendants and descendants.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, the top 100 Employees, the
number of Employees treated as officers, and the Compensation
that is considered, will be made in accordance with Code Section
414(q).
(xvii) (A) "Hour of Service" means (1) each hour for which an Employee
is paid or is entitled to payment, for the performance of duties
for his Employer during the applicable computation period; (2)
each hour for which an Employee is paid or is entitled to
payment by his Employer on account of a period of time during
which no duties are performed (irrespective of whether the
employment relationship is terminated) due to vacation, holiday,
illness, incapacity (including disability), layoff, jury duty,
military duty, or leave of absence; and (3) each hour for which
back pay, irrespective of mitigation of damages, either was
awarded or agreed to by the Employer.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 6
<PAGE>
(B) For purposes of Section 2.1(xvii)(A)(2) the following rules
shall apply: (1) no more than 501 hours will be credited to any
Employee on account of a single continuous period during which
the Employee performs no duties; (2) an hour shall not be
credited on account of a period during which no duties are
performed if the payment for such hour is made or due under a
Plan maintained solely for the purpose of complying with
applicable workmen's Compensation, or unemployment Compensation
or disability insurance laws; (3) hours shall not be credited
for payments which reimburse an Employee solely for medical or
medically related expenses incurred by the Employee; and (4) 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. These rules also shall apply to the extent that any
back pay is agreed to or awarded for a period of time during
which an Employee did not or would not have performed duties.
(C) For purposes of this Section 2.1(xvii), the same hours of
service shall not be credited under both Sections
2.1(xvii)(A)(1) or (2) of this Plan and also under Section
2.1(xvii)(A)(3) of this Plan. Each Hour of Service shall be
credited under this Section2.1(xvii) in accordance with 29
C.F.R. Section 2530.200b-2(b) and (c). Employment with any
affiliated companies (whether or not incorporated) that are
members of a controlled group as defined in Code Section 414(b),
that are under common control as defined in Code Section 414(c),
or that are members of an affiliated service group within the
meaning of Code Section 414(m) or any other entity required to
be aggregated with the Company pursuant to Code Section 414(o)
and the final regulations thereunder, will be treated as
employment with the Company for purposes of participation and
vesting under this Plan; provided, however, that an employee
must be employed by the Employer to participate in this Plan. In
addition, for all purposes of the Plan, Hours of Service will be
credited for any individual considered a Leased Employee under
Code Section 414(n) and for any individual considered an
Employee under Code Section 414(o) and the final regulations
thereunder.
(D) For purposes of determining whether an Employee has
experienced a Break in Service, hours of service shall include
each hour for which an Employee is absent from work for any
period (1) by reason of the pregnancy of the Employee; (2) by
reason of the birth of a child of the Employee; (3) by reason of
the placement of a child with the Employee in connection with
the adoption of such child by such Employee; or (4) for purposes
of caring for such child for a period beginning immediately
following such birth or replacement.
(E) The hours described in the preceding sentence shall be
treated as hours of service in the year in which the absence
from work begins if the Participant would be prevented from
incurring a one-year Break in Service as a result of such
treatment or, in any other case, the hours shall be treated as
hours of service in the immediately following year. The hours
described in the two preceding sentences shall be the hours of
service which otherwise would normally have been credited to
such Participant but for such absence, or in any case in which
the Plan is unable to determine such hours, eight hours of
service per work day of such absence. No credit will be given
pursuant to this paragraph unless the Participant furnishes to
the Plan Committee such timely information as the Plan may
require to establish that the absence from work is for reasons
described above and to establish the number of days for which
there was such an absence.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 7
<PAGE>
(F) An Employee will be credited with service for participation
and vesting purposes for leaves of absence qualifying under the
Family and Medical Leave Act of 1993, but only to the extent
required by the Family and Medical Leave Act and the regulations
thereunder.
(xviii) (A) "Key Employee" means any Employee of an Employer who, at any
time during the Plan Year or any of the four preceding Plan
Years, is (1) an officer of an Employer having annual
Compensation greater than 50 percent of the dollar limitation
under Code Section 415(b)(1)(A), as adjusted for increases in
the cost of living for any Plan Year; (2) one of the ten
Employees having annual Compensation from an Employer of more
than the $30,000 annual addition limitation as adjusted for
increases in the cost of living and owning (or considered to own
under Code Section 318) the largest interests of the Employer;
(3) a five percent owner of the Employer; or (4) a one percent
owner of the Employer having annual Compensation from the
Employer of more than $150,000.
(B) For purposes of Section 2.1(xviii)(A)(1) of this Plan, no
more than 50 Employees (or, if lesser, the greater of 3
Employees or 10 percent of the Employees) shall be treated as
officers. For purposes of Section 2.1(xviii)(A)(2) of this Plan,
if two Employees have the same interest in an Employer, the
Employee having greater annual Compensation from the Employer
shall be treated as having a larger interest. This Section
2.1(xviii)(B) shall be interpreted to conform with Code Section
416. For purposes of this definition, "Employee" shall have the
same meaning as it does under Code Section 416(i)(1). Any
Beneficiary of a Key Employee shall be treated as a Key
Employee.
(xix) "Named Fiduciary" means any Fiduciary who is named in this Plan,
or who, pursuant to a procedure specified in the Plan, is
identified as a Fiduciary to the Plan by the Company. Such Named
Fiduciaries include, but are not limited to, the Trustee, the
Plan Committee, and the Plan Administrator.
(xx) "Normal Retirement Age" means the date a Participant attains age
65.
(xxi) "Participant" means any Employee who has become a Participant
under Article III of this Plan. Participation shall cease upon
the later of (A) distribution of a Participant's entire vested
Account and forfeiture of a Participant's entire nonvested
Account or (B) Termination of Employment.
(xxii) "Plan" and "Plan and Trust" means the Qualified Employee Stock
Purchase Plan of General Communication, Inc., and the Trust set
forth in and by this Agreement and all subsequent amendments to
it.
(xxiii) "Plan Administrator" means the person appointed by the Board of
Directors whose duties are provided in this Plan and Trust.
(xxiv) "Plan Committee" means the committee appointed by the Board of
Directors whose duties are provided in this Plan and Trust.
(xxv) "Plan Year" means the Company's fiscal (taxable) year, as
presently established, which ends on December 31 of each year,
and this shall be the fiscal (taxable) year of the Trust. If
there is a change in the Company's fiscal year, then "Plan Year"
shall mean the Company's new fiscal year, and any short fiscal
year resulting from such change shall be considered a full year
for all purposes of this Plan. The "Plan Year" shall not change
without approval of the Internal Revenue Service.
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(xxvi) "Qualifying Employer Security" means the Class A and Class B
common stock of the Company.
(xxvii) "Quarterly Anniversary Date" means January 1, April 1, July 1,
or October 1 of each Plan Year.
(xxviii) "Reemployment Commencement Date" means the first date after a
Break in Service on which an Employee performs an Hour of
Service for the Employer.
(xxix) "Super Top Heavy Plan" means a plan in which the aggregate of
the Accounts of Key Employees under the plan as of the Valuation
Date exceeds 90 percent of the aggregate of the Accounts of all
Participants under the plan (as of the Determination Date for
the Plan Year), excluding former Key Employees. The Accounts of
Participants shall be increased by the aggregate distributions
made with respect to such Participants during the five-year
period ending on the Determination Date.
(xxx) "Termination of Employment" means the termination of a person's
status as an Employee as defined in Section 2.1(xii), as a Union
Employee as defined in Section2.1(xxxvi), or as a commissioned
salesman.
(xxxi) "Top Heavy Plan" means a plan in which the aggregate of the
Accounts of Key Employees under the plan as of the Valuation
Date exceeds 60 percent of the aggregate of the Accounts of all
Participants under the Plan (as of the Determination Date for
the Plan Year), excluding former Key Employees. The Accounts of
Participants shall be increased by the aggregate distributions
made with respect to such Participants during the five-year
period ending on the Determination Date. Section 2.1(xxxi) shall
be interpreted to conform with Code Section 416. For purposes of
determining whether this and any aggregated plans are top heavy
or super top heavy, all defined benefit and defined contribution
plans (including any simplified Employee pension plan)
maintained or ever maintained by the Employer in which a Key
Employee participates or on which any plan in which a Key
Employee participates depends for qualification under Code
Sections 401(a)(4) or 410 must be aggregated. Other plans
maintained or ever maintained by the Employer may be aggregated
if, when considered as a group with the plans that must be
aggregated, they would continue to satisfy the requirements of
Code Sections 401(a)(4) and 410.
(xxxii) "Total Disability" means a disability that permanently renders a
Participant unable to perform satisfactorily the usual duties of
his employment with his Employer, as determined by a physician
selected by the Plan Committee, and which results in his
Termination of Employment with the Employer.
(xxxiii) "Trust Fund" means the assets of the trust established by this
Plan and Trust from which the benefits under this Plan shall be
paid and shall include all income of any nature earned by the
fund and all changes in fair market value.
(xxxiv) "Trustee" means the person or persons appointed as trustee of
the Trust Fund and any duly appointed and qualified successor
trustee.
(xxxv) "Trustee Responsibility" means any responsibility provided in
the Plan to manage or control the assets of this Plan.
(xxxvi) "Union Employee" means any Employee who is included in a unit of
Employees covered by a collective bargaining agreement between
Employee representatives and the Company or any Associated
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Company, if retirement benefits were the subject of good faith
bargaining between such Employee representatives and the Company
or Associated Company.
(xxxvii) "Valuation Date" means the last day of each Plan Year.
(xxxviii) "Year of Service" for purposes of eligibility to participate
means any 12-month period, measured from the Employee's
Employment Commencement Date or Reemployment Commencement Date,
in which the Employee completes 1,000 or more Hours of Service.
For purposes of this definition, Hours of Service shall include
service as an Employee in any capacity including Union Employee
and commissioned salesman and shall include service as an
Employee of an Employer under common control with the Company as
defined in Code Sections 414(b), (c), (m), and (o) and the final
regulations thereunder, or any other Company designated by the
Plan Committee from time to time. Year of Service also shall
include service with any company that is acquired directly or
indirectly by any Employer participating in this Plan whether by
acquisition of stock or assets if such company becomes part of
the controlled group of corporations as defined in Code Section
414(b) or (c) of which the Company is a part.
Section 2.2 Gender. The masculine gender shall include the feminine and
neuter, and the singular shall include the plural.
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ARTICLE III
PARTICIPATION
-------------
Section 3.1 Who May Become a Participant. Any Employee of an Employer on the
Effective Date who has completed one Year of Service may become a Participant on
the Effective Date of the Plan. Any other or new Employee of an Employer may
become a Participant on any Quarterly Anniversary Date of the Plan following his
having completed one Year of Service, provided such Employee must be an Employee
of the Employer when he becomes a Participant.
Section 3.2 Participation Form. (a) Completion Requested. The participation
form shall be available from the Plan Administrator. To become a Participant,
each Employee must complete and return the form to the Plan Administrator on
which he shall evidence the following: (i) his acceptance of participation in
the Plan; and (ii) his consent to be bound by the terms and conditions of the
Plan and all its amendments.
(b) Failure To Complete, Revocation. The failure to complete and return the
form will be deemed to be an election not to become a Participant. An Employee
may revoke this election and become a Participant by requesting, completing, and
returning an application form before a subsequent Quarterly Anniversary Date of
the Plan, if he otherwise is eligible.
Section 3.3 Effect of Break in Service on Becoming a Participant. (a) Year
in Which the Employee Completes More Than 500 but Fewer Than 1,000 Hours of
Service. An Employee who completes more than 500 but fewer than 1,000 hours of
service during any 12-month period, measured from the Employee's employment or
Reemployment Commencement Date, shall not be deemed to have completed a Year of
Service nor to have suffered a Break in Service. For the purposes of Section
3.3(c) of this Plan, any breaks in service which are interrupted by a year in
which the Employee has more than 500 but fewer than 1,000 hours of service shall
be treated as in consecutive breaks in service.
(b) Inclusion of Pre-Break Years of Service in General. All years of service
prior to any period of up to five consecutive one year breaks in service, not
excluded by reason of this section, shall be counted in determining who may
become a Participant.
(c) Exclusion of Years of Service for Employees Without Vested Rights. Years
of service completed prior to any Break in Service by an Employee who has no
vested interest in any Employer contributions at the time of his reemployment
shall not be counted in determining whether the Employee may become a
Participant if the number of consecutive one-year breaks in service equals or
exceeds the greater of five years or the aggregate number of years of service
before such break. The aggregate number of years of service before such break
shall not include any years of service which have been excluded by reason of a
prior application of this Section 3.3(c).
Section 3.4 Participation Upon Reemployment. An Employee who has satisfied
the service requirement under Section 3.1 of this Plan by reason of years of
service prior to a Break in Service of one year or longer (which service has not
been excluded under Section 3.3 of this Plan) may become a Participant
immediately upon his reemployment. However, an Employee who becomes a
Participant under this section may not commence contributions until the first
Quarterly Anniversary Date occurring after reemployment pursuant to Section 4.1
of this Plan.
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ARTICLE IV
CONTRIBUTIONS
-------------
Section 4.1 Contributions and Salary Reductions by Participants. (a) General
Rules. Each Participant shall make contributions to the Trust Fund only by means
of regular payroll deductions, by salary reductions, or in such other manner as
the Plan Committee shall determine, which contributions shall be paid to the
Trustee at least quarterly. Participant after-tax contributions by payroll
deduction or by any other manner as the Plan Committee shall determine shall be
referred to as voluntary contributions, and Participant pre-tax contributions
shall be known as salary reductions. Each Participant shall designate up to 10%
of his Compensation in each payroll period, until changed by the Participant, as
a salary reduction, plus any contributions under Section 4.1(c) of this Plan. A
Participant may change his designation prospectively but not retroactively
effective for any payroll period by filing a new election with the Plan
Administrator prior to the last two weeks of the calendar quarter immediately
preceding the quarter for which it is to be effective. A Participant may suspend
his contributions to the Plan for any quarter by filing a written notice of
suspension with the Plan Administrator at any time prior to the last two weeks
of the calendar quarter immediately preceding the calendar quarter in which it
is to be effective. Such notice shall remain effective until the Participant
elects to make further Participant contributions, and no Employer contributions
shall be made on behalf of the Participant during such suspension period. A
Participant may authorize resumption of Participant contributions by filing a
new contribution designation with the Plan Administrator at any time prior to
the last two weeks of the calendar quarter immediately preceding the calendar
quarter in which it is to be effective.
(b) Salary Reductions. To become or remain a Participant in this Plan, an
eligible Employee must elect to reduce his Compensation in such manner as the
Plan Committee shall determine not to exceed 10% of his Compensation per payroll
period. Such election shall be made and may be changed at any time in accordance
with Section 4.1(a) of this Plan. Contributions under this section shall be made
in accordance with an agreement with the Company under which the Participant
elects to reduce his Compensation by the amount determined at his discretion,
and for purposes of Code Section 401(k) shall be deemed to be Company
contributions. Agreements to reduce Compensation shall be subject to Sections
4.11 and 4.12 of this Plan.
(c) Nonqualified Voluntary Contributions. Each Plan Participant may
contribute to the Plan for each Plan Year during which he is a Participant such
amount of nonqualified voluntary contributions as he shall elect in his sole
discretion, provided that such amount shall not exceed 10% of his Compensation
for each payroll period. Nonqualified voluntary contributions shall be so
designated in writing when made or when the Participant agrees to payroll
deductions. All non-qualified voluntary contributions for the Plan Year shall be
made during the Plan Year or within 30 days after the end of the Plan Year.
Section 4.2 Determination of Contribution by the Employer. (a) For Plan
Years Beginning Prior to January 1, 1995: The Plan Committee on behalf of each
Employer shall pay into the Trust Fund at least annually an amount up to 100% of
each Participant's salary reduction and voluntary contributions to the Plan, as
the Board of Directors shall determine by resolution. In such case, the
Employer's contribution on behalf of each Participant shall be equal to a stated
and nondiscriminatory percentage of each Participant's contributions (both
voluntary contributions and salary reductions) under Section 4.1 of this Plan
during any payroll period. No Participant's salary reduction or voluntary
contributions shall be matched in an amount exceeding 10% of such Participant's
Compensation during any payroll period the Participant participates in the Plan.
Except as provided in Section 7.3 of this Plan, the amount of the Employer's
contribution shall not exceed either 10% of the aggregate Compensation of all
Participants under this Plan in the year for which the contribution is being
determined or the annual addition limitations of the Code as provided in
Sections 4.8 or 4.9 of this Plan.
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(b) For Plan Years Beginning On or After January 1, 1995: The Plan Committee
on behalf of each Employer shall pay into the Trust Fund at least annually an
amount up to 100% of each Participant's salary reduction and voluntary
contributions to the Plan which are invested in Qualifying Employer Securities
pursuant to Section 10.1(d), as the Board of Directors shall determine by
resolution; provided, however, that the Employer contribution on behalf of
Participants who have elected to direct the investment of any portion of their
salary reductions and voluntary contributions into investments other than
Qualifying Employer Securities will receive an Employer matching contribution of
up to 50% of the Participant's salary reduction and voluntary contributions to
the Plan. The Employer's contribution on behalf of any Participant who elects to
direct the investment of any portion of his salary reductions and voluntary
contributions into investments other than Qualifying Employer Securities under
Section 10.1(d) shall be equal to a stated percentage of each such Participant's
contributions (both voluntary contributions and salary reductions) under Section
4.1 of this Plan during any payroll period, and the Employer's contribution on
behalf of any Participant who elects to direct the investment of all of his
salary reductions and voluntary contributions into Qualifying Employer
Securities under Section 10.1(d) shall be equal to a stated percentage of each
such Participant's contributions (both voluntary contributions and salary
reductions) under Section 4.1 of this Plan during any payroll period. No
Participant's salary reduction or voluntary contributions shall be matched in an
amount exceeding 10% of such Participant's Compensation during any payroll
period the Participant participates in the Plan. Except as provided in Section
7.3 of this Plan, the amount of the Employer's contribution shall not exceed
either 10% of the aggregate Compensation of all Participants under this Plan in
the year for which the contribution is being determined or the annual addition
limitations of the Code as provided in Sections 4.8 or 4.9 of this Plan.
Section 4.3 Time and Method of Payment of Contribution by the Employer. The
Plan Committee on behalf of the Employer may make payment of its contribution
for any Plan Year in installments on any date or dates it elects, provided that
the amount of its contribution for any year shall be paid in full within the
time prescribed in order to qualify such payment as an income tax deduction for
such year under the Code or any other provisions of law and provided further
that the final allocation of such Employer contribution shall not be made to an
Account until the last day of the Plan Year. Such contribution may be made in
cash, in Qualifying Employer Securities (as determined by the Company), or in
property of the character in which the Trustee is authorized to invest the Trust
Fund. Contributions of property other than cash or Qualifying Employer
Securities shall be subject to the approval of the Trustee and the Plan
Committee.
Section 4.4 To Whom Contributions Are To Be Paid. The Employer's
contributions for any Plan Year shall be paid to the Trustee and shall become a
part of the Trust Fund.
Section 4.5 Return of Employer Contributions. (a) Circumstances Under Which
Return Will Be Made. A contribution by the Employer to the Plan shall be
returned to the Company, at the Employer's discretion, under any of the
following circumstances: (i) if a contribution is made by the Employer by a
mistake of fact, including a mistaken excess contribution, within one year of
its payment to the Plan; (ii) if initial qualification of the Plan is denied,
within one year after the date of denial of initial qualification of the Plan;
or (iii) if all or any part of the deduction of the contribution is disallowed,
to the extent of the disallowance, within one year after the disallowance of the
deduction.
(b) Amount of Return. The Employer shall state by written request to the
Trustee the amount of the contribution to be returned and the reason for such
return. Such amount shall not include any earnings attributable to the
contribution and shall be reduced by any losses attributable to the
contribution. Upon sending such request to the Trustee, the Employer
simultaneously shall send to the Plan Committee a copy of the request. The
Trustee shall return such contributions to the Employer immediately upon receipt
of the written request by the Employer. All contributions by the Employer to the
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November 22, 1994 Page 13
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Plan are declared to be conditioned upon both the qualification of the Plan
under Section 401 of the Code and the deductibility of such contributions Under
Section 404 of the Code.
Section 4.6 Employer's Obligations. The adoption and continuance of the Plan
shall not be deemed to constitute a contract between the Employer and any
Employee or Participant, nor to be a consideration for, or an inducement or
condition of, the employment of any person. Nothing in this Plan shall be deemed
to give any Employee or Participant the right to be retained in the employ of
the Employer, or to interfere with the right of the Employer to discharge any
Employee or Participant at any time, nor shall it be deemed to give the Employer
the right to require the Employee or Participant to remain in its employ, nor
shall it interfere with the right of any Employee or Participant to terminate
his employment at any time.
Section 4.7 Rollover Contributions and Transfers. Notwithstanding the limits
imposed upon Participant contributions, a Participant may contribute any amount
of funds or property to the Plan in any year if such contribution satisfies the
requirements under law for rollover contributions and if the Plan Committee
agrees in writing to accept such contribution on behalf of the Plan and the
Employer. Subject to the direction of the Plan Committee, the Trustee is
authorized to receive and add to the Trust Fund those assets attributable to
employees who were participants in the Western Tele-Communications, Inc.
Employee Stock Purchase Plan. A direct transfer from a qualified Plan subject to
Code Section 417 shall not be permitted. The Employer shall not be required
under Section 4.2 of this Plan to make any matching contributions for such
rollover contributions or transfers. Rollover contributions and transfers shall
be added to a separate Account for such Participant, shall be nonforfeitable,
and shall be distributable under Article VII of this Plan. Transfers from the
Western Tele-Communications, Inc. Employee Stock Purchase Plan shall be subject
to Section 10.1(d) of this Plan.
Section 4.8 Annual Addition. (a) Limitations. For the purpose of this
Section 4.8, the term "Annual Addition" includes Employer contributions and
forfeitures and any Participant's voluntary contributions. Annual Addition shall
not include any direct transfer or any contribution made by a Participant which
qualified under law as a rollover contribution. The annual limitation year shall
be the Plan Year. If the Annual Addition to the Account of any Participant,
attributable to all defined contribution plans (including money purchase pension
plans or profit-sharing plans of the Employer), would exceed either $30,000 or
1/4 the dollar limitation in effect under Code Section 415(b)(1)(A), if greater,
(as adjusted for cost of living increases after January 1, 1984, by the
Secretary of the Treasury as of each January 1 for any limitation year ending
during such calendar year) or 25% of such Participant's Compensation, the excess
amount shall be disposed of as follows:
(i) any Participant contributions, to the extent that the return would
reduce the excess amount, shall be returned to the Participant;
(ii) The amount of such excess attributable to Employer contributions and
any forfeitures shall be allocated and reallocated to other
Participants' Accounts in accordance with Article V of this Plan to
the extent that such allocations do not cause the additions to any
such Participant's Account to exceed the lesser of the maximum
permissible amount or any other limitation provided in the Plan;
(iii) To the extent that the excess amounts described in Section
4.8(a)(ii) of this Plan cannot be allocated to other Participant
Accounts, such excess amounts shall be allocated to the suspense
Account in accordance with Article V of this Plan and allocated to
Participants under the provisions of that article.
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November 22, 1994 Page 14
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(b) Compensation Defined. For purposes of limiting Annual Additions under
this section and combined benefits and contributions under Section 4.9 of this
Plan, compensation means a Participant's wages, salaries, fees for professional
services, and other amounts received for personal services actually rendered for
the Employer (including but not limited to, commissions paid salesmen,
compensations for services on the basis of a percentage of profits, commissions
on insurance premiums, tips, and bonuses). Compensation for Annual Additions
purposes shall not include the following: (i) Employer contributions to a
deferred compensation plan that are not includable in the Employee's gross
income for the year in which contributed, Employer contributions to a simplified
Employee pension plan described under Code Section 408(k) to the extent such
contributions are deductible by the Employee, or any distributions from a
deferred compensation plan other than amounts received from an unfunded
nonqualified plan; (ii)amounts realized from the exercise of a nonqualified
stock option or when restricted stock (or property) held by the Employee either
becomes freely transferable or is no longer subject to substantial risk of
forfeiture; (iii) amounts realized from the sale, exchange, or other disposition
of stock acquired under a qualified stock option; or (iv)other amounts which
received special tax benefits, or Employer contributions to purchase an annuity
contract described in Code Section 403(b), whether or not under a salary
reduction agreement or whether or not the amounts actually are excludable from
the gross income of the Employee.
Section 4.9 Limitation on Combined Benefits and Contributions of All Defined
Benefit and Defined Contribution Plans of the Employer. (a) Employer
Contributions. In any year if the Employer makes contributions to a defined
benefit plan on behalf of an Employee who also is a Participant in this Plan,
then the sum of the defined benefit plan fraction and the defined contribution
plan fraction (both as prescribed by law and as defined below) for such Employee
for such year shall not exceed 1.0. In any year if the sum of the defined
benefit plan fraction and the defined contribution plan fraction on behalf of an
Employee does exceed 1.0, then the Employer's contribution on behalf of such
Participant to this defined contribution plan of the Employer shall be reduced
to the extent necessary to prevent the sum of the defined contribution plan
fraction and the defined benefit plan fraction from exceeding 1.0. The
Employer's contribution on behalf of such Participant to this Plan may be
reallocated to other Participants under Article V of this Plan to the extent
necessary to prevent the sum of the defined contribution plan fraction and the
defined benefit Plan fraction from exceeding 1.0. If any amount cannot be
allocated or reallocated without exceeding the limits provided in this Article,
such amount may be allocated to the suspense Account established under Article V
of this Plan and allocated to the Participants in accordance with the provisions
of Article V of this Plan. For purposes of this section the limitation year
shall be the Plan Year.
(b) Defined Benefit Plan Fraction. The defined benefit plan fraction is a
fraction the numerator of which is the projected annual benefit of the
Participant under the Plan (determined as of the close of the year) and the
denominator of which is the lesser of the following amounts determined for such
year and for each prior Year of Service with the Employer: (i) the product of
1.25 times the maximum benefit dollar limitation in effect for the limitation
year; or (ii) the product of 1.4 times 100% of the Participant's average
Compensation for his high three consecutive calendar years.
(c) Defined Contribution Plan Fraction. The defined contribution plan
fraction is a fraction the numerator of which is the sum of the annual additions
to the Participant's Account under all defined contribution Plans of the
Employer as of the close of the limitation year and the denominator of which is
the sum of the lesser of the following amounts determined for such year and for
each prior Year of Service with the Employer: (i) the product is 1.25 times the
dollar limitations in effect under Code Section 415(c)(1)(A) for the limitation
year (without regard to Code Section 415(c)(6)); or (ii) the product of 1.4
times an amount equal to 25% of the Participant's Compensation for the
limitation year.
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(d) Transition Rules. The Plan Committee, in its discretion, may elect to
use the transition rules for calculating the defined contribution plan fraction
as provided in Code Sections 415(e)(4) and 415(e)(6).
Section 4.10 Top Heavy Plan Provisions. (a) Plan Years after December 31,
1983. The provisions of this section shall have effect for any Plan Years
beginning after December 31, 1983 in which the Plan is top heavy.
(b) Minimum Contribution. If no other qualified plan maintained by the
Employer provides the minimum benefit or contribution for Participants as
required under Code Section 416(c) for a year that the plan is top heavy, this
Plan shall provide a minimum allocation (which may include forfeitures otherwise
allocable) for such Plan Year for each Participant who is a non-Key Employee in
an amount equal to at least three percent of such Participant's Compensation for
such Plan Year. Notwithstanding the preceding sentence, the minimum allocation
required under this Section 4.10 shall in no event exceed the percentage of
contributions made under the Plan for such year for the Key Employee for whom
such percentage is the highest for such year. If Employees who are Participants
in this Plan also participate in a defined benefit plan maintained by the
Employer and both plans are top heavy in any year, the Employer may elect to
satisfy the minimum contribution requirements of Code Section 416(c) and the
regulations thereunder by providing a minimum allocation (which may include
forfeitures otherwise allocable) for such Plan Year for each Participant (for
purposes of Code Section 416(c) and the regulations thereunder) who is a non-Key
Employee in an amount equal to at least 5% of such Participant's Compensation
for such Plan Year. For purposes of this Section 4.10, Participants who must be
considered Participants to satisfy the coverage requirements of Code Section
410(b) in accordance with Code Section 401(a)(5) and who have not separated from
service at the end of the Plan Year shall be eligible to share this minimum
contribution including Participants who have failed to complete 1,000 or more
hours of service, who have declined to make mandatory contributions to the Plan
or who have been excluded because such Participant's Compensation is less than a
stated amount. Compensation for purposes of this Section 4.10 shall mean
Compensation as defined in Section 4.8 of this Plan.
(c) Modification of Plan Fractions. The 1.25 factor in the defined benefit
plan fraction and defined contribution Plan fraction (as such fractions are
defined in the preceding section) shall be reduced to 1.0 for any year that the
Plan is top heavy. If the Plan is super top heavy, the 1.25 factor also shall be
reduced to 1.0 for the Plan Year.
(d) Maximum Compensation Limitation. The annual Compensation considered for
each Participant for purposes of the Plan for any year that the Plan is top
heavy shall not exceed the first $200,000 of such Participant's Compensation,
modified to take into account any cost of living adjustments made by the
Secretary of the Treasury.
Section 4.11 Salary Reduction Rules. (a) Election to Reduce Salary. As a
condition of participation, an Employee eligible to participate in this Plan
must elect to reduce his or her Compensation by an amount determined at his or
her discretion (annually not to exceed the lesser of the amount specified for a
given calendar year by the Internal Revenue Service or 10% of Compensation). A
Participant must make this election according to the procedure prescribed by and
on the form provided by the Plan Committee.
(b) Nondiscriminatory Benefits. All Participants are eligible to defer
identical percentages of their Compensation, regardless of the amount of such
Compensation; provided such percentage does not result in a deferral of more
than the limitation imposed under Code Section 402(g) in any calendar year. A
Participant may assign to this Plan any excess elective deferrals made during a
taxable year of the Participant by notifying the Plan Administrator on or before
the following March 15 of the amount of the excess elective deferrals to be
assigned to the Plan. A Participant is deemed to have notified the Plan
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Administrator of any excess elective deferrals that arise taking into account
only those elective deferrals made to this Plan and any other plans of the
Employer. An excess elective deferral is any elective deferral during a calendar
year in excess of the dollar limitation in effect under Code Section 402(g) for
such year. On or before the April 15th following the end of each calendar year,
the Company will distribute excess elective deferrals (plus any allocable income
and minus any allocable loss) to any Participant to whose Account excess
elective deferrals were made or assigned for the preceding year and who claims
excess elective deferrals for such taxable year or who is deemed to have
notified the Plan Administrator of such excess. The income or loss attributable
to excess elective deferrals is the income or loss for the year allocable to the
Participant's elective deferrals multiplied by a fraction, the numerator of
which is the Participant's excess elective deferrals for such year and the
denominator of which is the total Account balance of the Participant
attributable to elective deferrals, without regard to any income or losses
allocable to such elective deferrals for the calendar year. Alternatively, in
the discretion of the Committee, income allocable to the Participant's excess
elective deferrals may be determined under any reasonable method used by the
Plan for allocating income on Plan assets.
(c) Limit on Actual Deferral Percentage. The actual deferral percentage for
highly compensated Participants for each Plan Year must be no greater than
either (i)1.25 times the actual deferral percentage for all other Participants
for such Plan Year, or (ii)2 times the actual deferral percentage for all other
Participants for such Plan Year if the actual deferral percentage for highly
compensated Participants is not more than two percentage points higher than the
actual deferral percentage for all other Participants for such Plan Year. The
following rules regarding the actual deferral percentage will apply:
(i) The actual deferral percentage for the Plan Year for any Highly
Compensated Employee who is eligible to have elective deferrals (and
qualified non-elective contributions or qualified matching
contributions, or both, if such contributions are treated as
elective deferrals for purposes of the actual deferral percentage
test) allocated to his or her Account under two or more arrangements
described in Code Section 401(k) that are maintained by the Company
will be determined as if such elective deferrals (and, if
applicable, such qualified non-elective contributions or qualified
matching contributions, or both) were made under a single
arrangement. If a Highly Compensated Employee participates in two or
more cash or deferred arrangements that have different Plan Years,
all cash or deferred arrangements ending with or within the same
calendar year will be treated as a single arrangement;
(ii) In the event that this Plan satisfies the requirements of Code
Sections 401(k), 401(a)(4), or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this
Plan, then this section will be applied by determining the actual
deferral percentage of Participants as if all such plans were a
single plan. For Plan Years beginning after December 31, 1989, plans
may be aggregated in order to satisfy Code Section 401(k) only if
they have the same Plan Year;
(iii) For purposes of determining the actual deferral percentage of a
Participant who is a five percent owner or one of the ten most
Highly Compensated Employees, the elective deferrals (and qualified
non-elective contributions or qualified matching contributions, or
both, if treated as elective deferrals for purposes of the actual
deferral percentage test) and Compensation of such Participant will
include the elective deferrals (and, if applicable, qualified
non-elective contributions and qualified matching contributions, or
both) and Compensation for the Plan Year of any family members, as
defined in Code Section 414(q)(6). Family members of such Highly
Compensated Employees will be disregarded as separate Employees in
determining the actual deferral percentage of any Employee;
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(iv) For purposes of determining the actual deferral percentage test,
elective deferrals, qualified non-elective contributions, and
qualified matching contributions must be made before the last day of
the twelve-month period immediately following the Plan Year to which
such contributions relate; and
(v) The Company will maintain records sufficient to demonstrate
satisfaction of the actual deferral percentage test and the amount
of qualified non-elective contributions or qualified matching
contributions, or both, used in such test.
(d) Nonforfeitability of Elective Contributions. All salary reduction
contributions made on behalf of Participants to this Plan are vested
immediately. Such salary reductions are nonforfeitable at all times.
(e) Distributions Restriction. Salary reductions shall be subject to the
restrictions on withdrawals under Section 7.6 of this Plan.
(f) Definitions.
(i) The "actual deferral percentage" for a specified group of
Participants for a Plan Year shall be the average of the ratios
(calculated separately for each Participant in such group) of the
amount of Compensation deferred under the Plan on behalf of each
such Participant for the Plan Year to the Participant's Compensation
for such Plan Year. Compensation deferred on behalf of any
Participant includes (A) any salary reductions made pursuant to the
Participant's deferral election, including excess salary reductions,
but excluding salary reductions that are taken into account in the
average contribution percentage test (provided the actual deferral
percentage test is satisfied both with and without exclusion of
these salary reductions); and (B) in the discretion of the Company,
all qualified non-elective contributions or such qualified
non-elective contributions as are necessary to meet the actual
deferral percentage test and all qualified matching contributions or
such qualified matching contributions as are necessary to meet the
actual deferral percentage test. For purposes of computing actual
deferral percentages, an Employee who would be a Participant but for
the failure to make salary reductions will be treated as a
Participant on whose behalf no salary reductions are made.
(ii) "Salary reductions" are those reductions in salary that each
Participant elects to defer. A Participant's salary reductions in
any calendar year are the sum of all salary reductions made by a
Participant pursuant to an election to defer under any arrangement
described in Code Section 401(k), any simplified employee pension
cash or deferred arrangement described in Code Section 402(h)(1)(B),
any eligible deferred compensation plan under Code Section 457, any
plan as described in Code Section 501(c)(18), and any contributions
made on behalf of a Participant pursuant to a salary reduction
agreement for the purchase of an annuity contract under Code Section
403(b).
(iii) "Participant" for purposes of this Section 4.11 only includes all
Employees eligible to participate in this Plan even if not electing
to do so.
(iv) "Compensation" for purposes of this Section 4.11 means only
Compensation as defined in Section 2.1(ix) of this Plan prior to any
salary reductions under Section 4.1 of this Plan.
(g) Treatment of Excess Contributions. An excess contribution is the excess,
in any Plan Year, of the aggregate amount of contributions actually taken into
account in determining the actual deferral percentage for Highly Compensated
Employees over the maximum amount of such contributions permitted by the actual
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deferral test, determined by reducing contributions made on behalf of Highly
Compensated Employees beginning with the Highly Compensated Employee with the
highest actual deferral percentage. In the event that excess contributions are
made for any Plan Year, the Committee will distribute the excess contributions
in accordance with this paragraph. On or before the 15th day of the third month
following the end of each Plan Year, but in no event later than the close of the
following Plan Year, each Highly Compensated Employee will have his or her
portion of the excess contribution, adjusted for any income or loss allocable to
such portion, distributed to him. Excess contributions of Participants who are
subject to the family member aggregation rules shall be allocated among the
family members in proportion to the salary reductions (and amounts treated as
salary reductions) of each family member that are combined to determine the
combined actual deferral percentage. The income or loss attributable to excess
contributions is the income or loss for the Plan Year allocable to the
Participant's salary reduction account (and, if applicable, the qualified
non-elective contribution account or the qualified matching contribution
account, or both) multiplied by a fraction, the numerator of which is the
Participant's excess contributions for the Plan Year and the denominator of
which is the Participant's Account balance attributable to salary reductions
(and qualified non-elective contributions or qualified matching contributions,
or both, if any such contributions are taken into account in determining the
actual deferral percentage), without regard to any income or losses allocable to
such contributions for the Plan Year. Alternatively, in the discretion of the
Committee, income allocable to the Participant's excess elective deferrals may
be determined under any reasonable method used by the Plan for allocating income
on Plan assets. Excess contributions will be distributed from the Participant's
salary reduction Account and qualified matching contributions Account, if
applicable, in proportion to the Participant's salary reductions and qualified
matching contributions (to the extent used in the actual deferral percentage
test) for the Plan Year. Excess contributions will be distributed from the
Participant's qualified non-elective contribution Account only to the extent
that such excess contributions exceed the balance in the Participant's salary
reduction Account and qualified matching contributions account. If excess
contributions are not distributed by the 15thday of the third month following
the end of the Plan Year in which such excess contributions arose, a ten percent
excise tax will be imposed on the Company with respect to such excess
contributions. Matching contributions attributable to excess contributions that
are distributed to a Participant shall be forfeited as of the distribution date
of the excess contribution.
Section 4.12 Nondiscrimination Rules for Voluntary Contributions and
Employer Contributions. (a) Limit on Contribution Percentage. The contribution
percentage for Highly Compensated Employees for each Plan Year must not exceed
the greater of (i)1.25 times the contribution percentage for all other
Participants for such Plan Year, or (ii)the lesser of two times the contribution
percentage for all other Participants or the contribution percentage for all
other Participants plus two percentage points. The following rules regarding the
average contribution percentage will apply:
(i) The average contribution percentage for the Plan Year for any Highly
Compensated Employee who is eligible to have contribution percentage
amounts allocated to his or her Account under two or more
arrangements described in Code Section 401(k) that are maintained by
the Company will be determined as if such contribution percentage
amounts were made under a single arrangement. If a Highly
Compensated Employee participates in two or more cash or deferred
arrangements that have different Plan Years, all cash or deferred
arrangements ending with or within the same calendar year will be
treated as a single arrangement.
(ii) In the event that this Plan satisfies the requirements of Code
Sections 401(m), 401(a)(4), or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of such Code Sections only if aggregated with this
Plan, then this section will be applied by determining the
contribution percentage of Participants as if all such plans were a
single plan. For Plan Years beginning after December 31, 1989, plans
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may be aggregated in order to satisfy Code Section 401(m) only if
they have the same Plan Year.
(iii) For purposes of determining the contribution percentage of a
Participant who is a five percent owner or one of the ten most
Highly Compensated Employees, the contribution percentage amounts
and Compensation of such Participant will include the contribution
percentage amounts and Compensation for the Plan Year of any family
members, as defined in Code Section 414(q)(6). Family members of
such Highly Compensated Employees will be disregarded as separate
Employees in determining the actual deferral percentage of any
Employee.
(iv) For purposes of determining the contribution percentage test,
Participant contributions are considered to have been made in the
Plan Year in which contributed to the Trust. Company matching
contributions and qualified non-elective contributions will be
considered made for a Plan Year if made no later than the end of the
twelve-month period beginning on the day after the close of the Plan
Year. A matching contribution (including a qualified matching
contribution) that is forfeited to correct excess aggregate
contributions, or because it is attributable to an excess
contribution or excess deferral will not be taken into account for
purposes of determining the contribution percentage test.
(v) The Company will maintain records sufficient to demonstrate
satisfaction of the average contribution percentage test and the
amount of qualified non-elective contributions or qualified matching
contributions, or both, used in such test.
(vi) An excess aggregate contribution is the excess, in any Plan Year, of
the aggregate contribution percentage amounts taken into account in
determining the numerator of the average contribution percentage
actually made on behalf of Highly Compensated Employees over the
maximum contribution percentage amounts permitted by the average
contribution percentage test, determined by reducing contributions
made on behalf of Highly Compensated Employees beginning with the
Highly Compensated Employee with the highest contribution
percentage. In the event that excess aggregate contributions are
made for any Plan Year, the Committee will distribute the excess
aggregate contributions in the same manner as excess contributions
are distributed, as provided above. Income and losses attributable
to excess aggregate contributions will be determined and distributed
along with the excess aggregate contributions in the manner provided
above.
(vii) In lieu of distributing excess contributions as provided above or
excess aggregate contributions as provided above, the Company, in
its discretion, may make qualified non-elective contributions on
behalf of all Participants or all Participants who are non-Highly
Compensated Employees, in the Company's discretion, that are
sufficient to satisfy either the actual deferral percentage test or
the average contribution percentage test, or both, pursuant to
regulations under the Code. "Qualified non-elective contributions"
means contributions (other than matching contributions or qualified
matching contributions) made by the Company and allocated to
Participants' Accounts that the Participants may not elect to
receive in cash until distributed from the Plan, that are
nonforfeitable when made, and that are distributable only in
accordance with the distribution provisions that are applicable to
elective deferrals and qualified matching contributions.
(b) Multiple Use Test. If one or more Highly Compensated Employees
participate in both a cash or deferred arrangement and a plan subject to the
average contribution percentage test maintained by the Company and the sum of
the actual deferral percentage and average contribution percentage of those
Highly Compensated Employees subject to either or both tests exceeds the
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aggregate limit, then the average contribution percentage of those Highly
Compensated Employees who also participate in a cash or deferred arrangement
will be reduced (beginning with such Highly Compensated Employee whose average
contribution percentage is the highest) so that the aggregate limit is not
exceeded. The amount by which each Highly Compensated Employee's contribution
percentage amount is reduced will be treated as an excess aggregate
contribution. The actual deferral percentage and average contribution percentage
of the Highly Compensated Employees are determined after any corrections
required to meet the actual deferral percentage and average contribution
percentage tests. Multiple use does not occur if both the actual deferral
percentage and the average contribution percentage of the Highly Compensated
Employees do not exceed 1.25 times the actual deferral percentage and average
contribution percentage of the non-Highly Compensated Employees. "Aggregate
Limit" means the greater of (i) the sum of (A) 1.25 times the greater of the
actual deferral percentage of non-Highly Compensated Employees for the Plan Year
or the average contribution percentage of non-Highly Compensated Employees for
the Plan Year beginning with or within the Plan Year of the cash or deferred
arrangement; and (B) the lesser of two times or two plus the lesser of such
actual deferral percentage or average contribution percentage; or (ii) the sum
of (A) 1.25 times the lesser of the actual deferral percentage of non-Highly
Compensated Employees for the Plan Year or the average contribution percentage
of non-Highly Compensated Employees for the Plan Year beginning with or within
the Plan Year of the cash or deferred arrangement; and (B) the lesser of two
times or two plus the greater of such actual deferral percentage or average
contribution percentage.
(c) Definitions.
(i) The "contribution percentage" for a specified group of Participants
for a Plan Year shall be the average of the ratios (calculated
separately for each Participant in such group) of the amount of the
sum of Employer contributions and voluntary contributions paid under
the Plan on behalf of each such Participant for the Plan Year to the
Participant's Compensation for such Plan Year.
(ii) "Participant" for purposes of this Section 4.12 only includes all
Employees eligible to participate in this Plan even if not electing
to do so.
(iii) "Compensation" for purposes of this Section 4.12 only means
Compensation as defined in Section 2.1(ix) of this Plan prior to any
salary reductions under Section 4.1 of this Plan.
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ARTICLE V
DETERMINATION AND VESTING OF PARTICIPANT ACCOUNTS
-------------------------------------------------
Section 5.1 Determination of Participants' Accounts. (a) Allocation of
Contributions. As of the last day of each calendar quarter the Plan Committee
shall allocate to the Account of each Participant (including a Participant who
terminates employment during the quarter) any amounts contributed by the
Employer to the Trust on behalf of such Participant under Section 4.2 of this
Plan for the calendar quarter then ended. Forfeitures under Section 7.3 of this
Plan shall be allocated along with Employer contributions during the first
calendar quarter after the end of the year in which the forfeitures occur. The
maximum allocation under this Section 5.1(a) to any Participant for any Plan
Year shall not exceed 10% of such Participant's Compensation. Voluntary
contributions and salary reductions under Section 4.1 of this Plan shall be
allocated to the Account of the Participant making such contribution.
(b) Allocation of Earnings, Losses and Changes in Fair Market Value of the
Net Assets of the Trust Fund; Allocation of Qualifying Employer Securities. Each
class (whether Class A or Class B) of Qualifying Employer Securities shall be
allocated to the Accounts of Participants as of the end of each biweekly payroll
period or as of the end of each calendar quarter after acquired by the Trust
Fund in the ratio that contributions under Section 4.1 of this Plan made to each
Account in the calendar quarter bear to the total contributions under that
Section 4.1 made to all Accounts for the calendar quarter. Any dividends, cash
or stock, paid on Qualifying Employer Securities shall be allocated along with
the Qualifying Employer Securities on which they are paid. Once Qualifying
Employer Securities are allocated to a Participant's Accounts, any dividends,
cash or stock, paid on such allocated securities shall be allocated directly to
such Accounts. Earnings and losses of the Trust Fund (other than on Qualifying
Employer Securities) shall be computed and allocated to the Participants in the
ratio which the total dollar value of the Account (whether or not vested and
excluding Qualifying Employer Securities) of each Participant in the Trust Fund
bears to the aggregate dollar value of the Accounts (excluding Qualifying
Employer Securities) of all Participants as of the annual computation date. Only
Participants in the Plan on the last day of the Plan Year shall share in the
allocation of earnings, losses and changes in fair market value of the net
assets of the Trust Fund (other than Qualifying Employer Securities) for that
year. Losses and declines in value of Participants' Accounts will not be
considered to be a forfeiture.
(c) Participant Accounts. The Plan Committee shall maintain an Account for
each Participant showing the number of shares allocated to his Account in the
Trust Fund as of the last previous annual computation date attributable to any
contributions made by the Employer, including any Employer contributions for the
year ending on such date. This Account shall be known as the Employer
contributions Account. Separate Accounts also shall be kept, showing the
voluntary and salary reduction contributions of each Participant, shares
allocated, and the earnings, losses and changes in fair market value thereof.
The Plan Committee shall distribute, or cause to be distributed, to each
Participant at least annually a written statement setting forth the value of
such Participant's Accounts as of the last day of the Plan Year, and such other
information as the Plan Committee shall determine. Qualifying Employer
Securities shall be valued at the mean between dealer "bid" and "ask" closing
prices of the stock in the over-the-counter market as reported by the National
Association of Securities Dealers, Inc., or in the "pink sheets" published by
the National Quotation Bureau, Inc. Valuations of Qualifying Employer Securities
that are not readily tradable on an established securities market shall be made
by an independent appraiser.
(d) Valuation Dates. The Valuation Date of the Trust Fund shall be the last
day of each Plan Year, at which time the Plan Committee shall determine the
value of the net assets of the Trust Fund (i.e., the value of all the assets of
the Trust Fund at their then current fair market value, less all liabilities)
and the value of contributions by each Employer and all Participants for such
year.
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(e) Computation Dates. The Plan Committee shall compute the value of each
Participant's Account annually on the last day of each Plan Year and shall base
such computations on the valuation of the assets in the Trust Fund on the
Valuation Date coincident with such date. Upon direct distribution under Section
7.2(a) of this Plan, the Plan Committee shall make a special computation by
which it shall adjust the value of such Participant's Account to reflect the
values determined as of the most recent Quarterly Anniversary Date prior to the
occurrence of such direct distribution. The value of his Account as so adjusted
shall be the amount which the Plan Committee shall use in determining the amount
which shall be distributable to such Participants. The Plan Committee shall be
under no obligation to compute the value of any Participant's Account more than
once annually, unless an event occurs which requires the direct distribution of
any part of a Participant's Account, in which case the Plan Committee shall
compute the Account of such Participant as provided above and, in its
discretion, may compute the Account of each Participant. To the extent
Qualifying Employer Securities have been allocated to the Account of any
Participant, the Plan Committee may distribute such Qualifying Employer
Securities in kind without a special computation of value.
(f) Suspense Account for Unallocated Amounts. If the amount to be allocated
to any Participant's Account would exceed the contribution limitations of
Sections 4.8 or 4.9 of this Plan, a separate suspense Account shall be
established to hold such unallocated amounts for any year or years provided
that: (i) no Employer contributions may be made at any time when their
allocations would be precluded by Section 415 of the Code; (ii) investment gains
and losses and other income are not allocated to the suspense Account; and (iii)
the amounts in the suspense Account are allocated under Section 5.1(a) of this
Plan as of each allocation date on which such amounts may be allocated until the
suspense Account is exhausted. In the event of Plan termination, the balance of
such suspense Account may revert to the Company, subject to regulations
governing such reversion.
Section 5.2 Vesting of Participants' Accounts. (a) General Rules. If any
Participant reaches his Normal Retirement Age, dies, or suffers Total Disability
while a Participant, his entire Account shall become fully vested without regard
to the number of years of service such Participant has had with the Employer.
Any Account whether vested or forfeitable shall become payable to a Participant
or his beneficiaries only to the extent provided in this Plan. A Participant or
former Participant who has designated a Beneficiary and who dies shall cease to
have any interest in this Plan or in his Account, and his Beneficiary shall
become entitled to distribution of the Participant's Account under this Plan and
not as a result of any transfer of the interest or Account. A Participant's
Account attributable to his own contributions or attributable to a rollover
contribution shall be fully vested at all times.
(b) Vesting Schedule. A Participant shall have a vested interest in the
portion of his Account attributable to Employer contributions, in accordance
with the following schedule:
Percentage of Account
Years of Service Which is Vested
---------------- ---------------------
Fewer than 1 0
1 or more but fewer than 2 20
2 or more but fewer than 3 30
3 or more but fewer than 4 45
4 or more but fewer than 5 60
5 or more but fewer than 6 80
6 or more 100
Section 5.3 Full Vesting Upon Termination or Partial Termination of Plan or
Upon Complete Discontinuance of Employer Contributions. Upon the termination or
partial termination of this Plan or upon complete discontinuance of Employer
contributions, the Accounts of all Participants affected, as of the date such
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<PAGE>
termination, partial termination, or complete discontinuance of Employer
contributions occurred, shall be fully vested.
Section 5.4 Service Included in Determination of Vested Accounts. All years
of service with the Company and any Associated Company shall be included for the
purpose of determining a Participant's vested Account under Section 5.2 of this
Plan, except years of service excluded by reason of a Break in Service under
Section 5.5 of this Plan.
Section 5.5 Effect of Break in Service on Vesting. With respect to a
Participant who has five or more consecutive one-year breaks in service, years
of service after such Break in Service shall not be taken into account for
purposes of computing the Participant's vested Account balance attributable to
Employer contributions made before such five or more year period.
Section 5.6 Effect of Certain Distributions. (a) Participant Contributions.
The provisions of this Section 5.6 shall not apply to any Participant
contributions (including salary reductions) or rollover contributions.
(b) Repayment of Distribution. A Participant who terminates participation
for any reason other than retirement, disability, or death while any portion of
his Account in the Trust Fund is forfeitable and who receives a distribution of
his vested Account attributable to Employer contributions not later than the
close of the second Plan Year following the Plan Year in which such termination
of participation occurs, shall have the right to pay back such distribution to
the Plan. Such repayment may be made (i) only if the Participant has returned to
the employ of the Company or any Associated Company, and (ii) before the earlier
of the date which is five years after the date the Participant is re-employed by
the Employer, or the date on which the Participant experiences any five
consecutive one-year breaks in service commencing after the distribution.
Repayment of a Participant's Account attributable to his salary reduction
contributions, if any, shall not be permitted under this Section 5.6. A
Participant who desires to may repayment of a distribution under this Section
5.6(b) shall make repayment directly to the Plan Committee. If a Participant
repays a distribution under this section, the value of his Account shall be the
amount of his Account prior to distribution, unadjusted for any subsequent gains
or losses. The amount of the Participant's Account that was forfeited previously
shall be restored from one or more of the following sources, at the discretion
of the Plan Committee: income or gain to the Plan, forfeitures or Employer
contributions.
(c) Forfeiture of Account When Repayment of Distribution Is Not Made. If
distribution is made to a Participant and he does not repay such distribution
under the terms of Section 5.6(b) of this Plan when the time limit for repayment
expires under Section 5.6(b) above, the Participant shall forfeit the entire
portion of his nonvested Account (as adjusted for gains and losses) which was
not distributed to him. The Account shall be unadjusted for any increase in
vesting for service completed during the repayment period.
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ARTICLE VI
RETIREMENT DATE, DESIGNATION OF BENEFICIARY
-------------------------------------------
Section 6.1 Normal Retirement Date. On the last date of the quarter in which
a Participant attains his Normal Retirement Age, for purposes of this Plan he
shall be entitled to retire voluntarily. The Employer may continue to employ a
Participant after he has attained his Normal Retirement Age with the consent of
such Participant. At any time thereafter such Participant may retire. Until
retirement, a Participant shall continue to participate in the Plan unless he
elects otherwise. A Participant who has completed 10 years of service with any
Employer or combination of Employers may elect to retire for purposes of this
Plan on the last day of any quarter during the 5-1/2 years prior to his Normal
Retirement Age upon application to and approval by the Plan Committee. In no
event may a Participant receive a distribution attributable to Employer
contributions prior to termination of the Participant's employment except upon
retirement for purposes of this Plan.
Section 6.2 Designation of Beneficiary. A Participant's full vested Account
balance shall be payable upon the death of the Participant, to the Participant's
surviving spouse or to his designated Beneficiary if there is no surviving
spouse or if the spouse consents to such Beneficiary designation in writing.
This spousal consent shall acknowledge the effect of such consent and shall be
witnessed by a Plan Committee member or a notary public. If there is no
surviving spouse or in the case of a spousal election not to receive the
Account, a Participant shall designate a Beneficiary to receive his Account in
the Trust Fund upon his death on the form prescribed by and delivered to the
Plan Committee. The Participant shall have the right to change or revoke a
designation at any time by filing a new designation or notice of revocation with
the Plan Administrator. No notice to any Beneficiary other than the spouse nor
consent by any Beneficiary other than the spouse shall be required to effect any
change of designation or revocation. If a Participant fails to designate a
Beneficiary before his death, or if no designated Beneficiary survives the
Participant, the Plan Committee shall direct the Trustee to pay his Account in
the Trust Fund to his surviving spouse, or if none, to his personal
representative. If no personal representative has been appointed actual notice
of such is given to the Plan Committee within 60 days after the Participant's
death, and if his Account does not exceed $5,000, the Plan Committee may direct
the Trustee to pay his Account to such person as may be entitled to it under the
laws of the state where such Participant resided at the date of his death. In
such case, the Plan Committee may require such proof of right or identity from
such person as the Plan Committee may deem necessary.
Section 6.3 Participant or Beneficiary Whose Whereabouts Are Unknown. In the
case of any Participant or Beneficiary whose whereabouts are unknown, the Plan
Committee shall notify such Participant or Beneficiary at his last known address
by certified mail with return receipt requested advising him of his right to a
pending distribution. If the Participant or Beneficiary cannot be located in
this manner, the Plan Committee shall direct the Trustee to establish a
custodial Account for such Participant or Beneficiary for the purpose of holding
the Participant's Account until it is claimed by the Participant or Beneficiary
or until proof of death satisfactory to the Plan Committee is received by the
Plan Committee. If such proof of death is received, the Plan Committee shall
direct the Trustee to distribute the Participant's Account in accordance with
the provisions of Section 6.2 of this Plan. Any Trustee fees or other
administrative expenses attributable to a custodial Account established and
maintained under this section shall be charged against such Account.
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ARTICLE VII
DISTRIBUTION FROM TRUST FUND
----------------------------
Section 7.1 When Accounts Become Distributable and Effect of Distribution.
If a Participant dies, suffers Total Disability, retires, or terminates his
employment for any other reason, the portion of this vested Account attributable
to Employer contributions, to Participant contributions, and to any rollover
contributions shall be distributable under Section 7.2 of this Plan. When the
Participant's Account becomes distributable, such Participant shall cease to
have any further interest or participation in the Trust Fund or any subsequent
accruals or contributions to the Trust Fund except as provided below: (i) a
Participant shall retain the right to receive distribution of his Account as
determined at the last prior regular computation or upon the special computation
as determined under Section 5.1 of this Plan; and (ii) except as provided in
Section 5.1 of this Plan, a Participant who makes contributions during any
quarter shall retain the right to receive his share in the Employer's
contribution allocated to his Account for such quarter.
Section 7.2 Distribution of Account. (a) Notification of Trustee and Nature
of Distribution. Quarterly after a Participant's vested Account is
distributable, the Plan Committee shall notify the Trustee in writing of the
Participant's name and address, the amount of his vested Account which is
distributable, the reason for its being distributable and the manner of
distribution. A Participant's Account shall be distributed in cash and
Qualifying Employer Securities in the ratio in which the Participant's Account
consists of cash and Qualifying Employer Securities as of the valuation date
immediately preceding such distribution, except that cash always may be
distributed in lieu of fractional shares of Qualifying Employer Securities.
(b) Distribution Upon Retirement and Upon Total Disability. Except as
provided in Section 7.5, if a Participant's Account becomes distributable upon
his Termination of Employment with the Employer because such Participant has
attained retirement age or because of his Total Disability, the Trustee shall
pay such Participant's Account to the Participant, commencing within a
reasonable period of time (but not later than 60 days) after the close of the
Plan Year in which the Participant's Termination of Employment occurred in (i)
one lump sum distribution, or (ii) substantially equal annual installments over
a period not to exceed five years. If he dies before receiving all of his vested
Account, the remaining installments shall be paid to his Beneficiary under this
Section 7.2. Any payments received as disability benefits under this Plan are
intended to qualify as distribution from an accident and health Plan as
described in the Code.
(c) Distribution Upon Death. Except as provided in Section 7.5, if a
Participant's Account becomes distributable because of his death, his
Beneficiary may elect to receive such Participant's Account, commencing within a
reasonable period of time (but not later than 60 days) after the close of the
Plan Year in which the Participant's death occurred in (i) one lump sum
distribution, or (ii) substantially equal annual installments over a period not
to exceed five years. If the Beneficiary dies before receiving all of the
Participant's vested Account, the remaining payments shall be made to the
contingent Beneficiary, if any. If the Participant has not designated a
Beneficiary, or if he has designated a Beneficiary who dies and the Participant
has not designated a contingent Beneficiary, the Participant's vested Account,
or the undistributed portion of it, shall be paid in a lump sum under Section
6.2 of this Plan.
(d) Distribution Upon Other Termination of Employment. Except as provided in
Section 7.5, if a Participant's Account becomes distributable upon his
Termination of Employment for any reason other than attainment of retirement
age, disability, or death, the Trustee shall pay such Participant's Account to
the Participant, commencing within a reasonable period of time (but not later
than 60 days) after the close of the Plan Year in which the Participant incurs a
one-year Break in Service in one lump sum distribution. The vested Account of a
Participant who has satisfied the years of service requirement for early
retirement under Section 6.1 of this Plan, but who terminates employment prior
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to the early retirement age may be distributed, at the option of the
Participant, within 60 days after the close of the Plan Year in which the
Participant attains early retirement age, if such date is earlier than the date
on which this Account otherwise would be distributable. If the Participant dies
prior to receiving all of his vested Account, the remainder shall be distributed
to his Beneficiary under this Section 7.2.
(e) Distribution for Rollover Transactions and Eligible Rollover
Distributions.
(i) Notwithstanding any other provision of this Section 7.2, a
Participant whose Account becomes distributable may request that the
Plan Committee direct the Trustee to distribute the entirety of the
Participant's vested Account in a single payment to the Participant
for the purpose of transferring such Account upon Termination of
Employment to another plan in a rollover transaction. A Participant
may not rollover the portion of his Account considered contributed
by the Participant, which includes all Participant contributions
other than salary deductions. A rollover contribution may include
all or any portion of any prior rollover contributions, any
earnings, losses, and changes in the fair market value of the
portion of a Participant's Account attributable to his own
contributions and the portion of a Participant's vested Account
attributable to salary reductions and Employer contributions. The
Participant shall make such rollover request in writing and shall
provide such information to the Plan Committee as the Plan Committee
requests, including the name of the plan to which his interest is to
be transferred and the name and address of the sponsor and the
Trustee of the new plan, when applicable.
(ii) This subsection applies to distributions made on or after January,
1993. Notwithstanding any provision of the Plan to the contrary that
otherwise would limit a Participant's distribution election under
this Article, a Participant may elect, at the time and in the manner
prescribed by the Plan Committee, to have any portion of an eligible
rollover distribution paid directly to an eligible retirement plan
specified by the Participant in a direct rollover. An eligible
rollover distribution is any distribution of all or any portion of
the balance to the credit of the Participant, except that an
eligible rollover distribution does not include (A)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; (B)any
distribution to the extent such distribution is required under Code
Section 401(a)(9); and (C)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). 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 a surviving spouse, an eligible retirement plan is
an individual retirement account or individual retirement annuity. 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. A direct rollover is a
payment by the Plan to the eligible retirement plan specified by the
distributee. The Committee may establish procedures for the
distribution of eligible rollover distributions, including any
limitations on the amount eligible for a rollover distribution, to
the extent permitted by law.
(f) Distribution of a Participant's Contributions. Notwithstanding any other
provision of Section 7.2 of this Plan, but subject to the rules of Section 7.5
of this Plan; if a Participant terminates employment for any reason, he shall
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receive distribution in one lump sum of his Account in the Trust Fund
attributable to Participant contributions and the earnings, losses, and changes
in fair market value of such contributions if he makes written demand for them
upon the Plan Committee at least two weeks prior to the end of any calendar
quarter after the termination of his employment. If a Participant so requests,
distribution of his Account attributable to Participant contributions shall be
made as soon as reasonably possible after the close of the calendar quarter
following his two weeks notice. Any amount attributable to Participant
contributions not distributed under this Section 7.2(f) shall be distributed
along with Employer contributions.
Section 7.3 Disposition of Forfeitable Account on Termination of Employment.
If a Participant's employment is terminated for any reason other than
retirement, death, or Total Disability, while any part of his Account in the
Trust Fund is forfeitable, then that portion of his Account which is forfeitable
shall be forfeited by him on the earlier of the date the Participant receives
distribution or the date on which he experiences five consecutive one-year
breaks in service and shall be reallocated to remaining Participants under
Section 5.1 of this Plan. If any such Participant returns to the employment of
the Employer and does not experience five or more consecutive one-year breaks in
service, the Employer shall restore the Participant's Account out of its next
contribution the exact number of shares of Qualifying Employer Securities plus
any other amounts that he forfeited.
Section 7.4 Assignment of Benefits. (a) General Rules. Except as provided in
this Section 7.4, all amounts payable by the Trustee shall be paid only to the
person entitled to them, and all such payments shall be paid directly to such
person and not to any other person or corporation. Such payments shall not be
subject to the claim of any creditor of a Participant, nor shall such payments
be taken in execution by attachment or garnishment or by any other legal or
equitable proceedings. No person shall have any right to alienate, anticipate,
commute, pledge, encumber, or assign any payments or benefits which he may
expect to receive contingently or otherwise, under this Plan, except the right
to designate a Beneficiary or beneficiaries; provided, that this Section 7.4
shall not affect, restrict, or abridge any right of setoff or lien which the
Trust may have by law.
(b) Qualified Domestic Relations Orders.
(i) Section 7.4(a) of this Plan shall not apply with respect to payments
in accordance with the requirements of a qualified domestic
relations order. A qualified domestic relations order creates or
recognizes the existence of an alternate payee's right to, or
assigns to an alternate payee the right to, receive all or a portion
of the benefits otherwise payable to a Participant under the Plan. A
domestic relations order means any judgment, decree, or order
(including approval of a property settlement agreement) that relates
to the provision of child support, alimony payments, or marital
property rights to a spouse, former spouse, child, or other
dependent of a Participant, and is made pursuant to a state domestic
relations law (including a community property law). To qualify, the
domestic relations order must:
(A) Clearly state the name and last known mailing address of the
Participant and the name and mailing address of each alternate
payee covered by the order;
(B) Clearly state the amount or percentage of the Participant's
benefits to be paid by the Plan to each alternate payee, or
the manner in which the amount or percentage is to be
determined;
(C) Clearly state the number of payments or period to which the
order applies;
(D) Identify each Plan to which the order applies;
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(E) Not require the Plan to provide any type or form of benefits,
or any option, not otherwise provided under the Plan;
(F) Not require the Plan to provide increased benefits (determined
on the basis of actuarial value); and
(G) Not require the payment of benefits to an alternate payee that
are required to be paid to another alternate payee under
another order previously determined to be a qualified domestic
relations order.
(ii) In the case of any distribution before a Participant has separated
from service, a qualified domestic relations order shall not fail to
meet the requirements of Section 7.4(b)(i)(E) of this Plan solely
because such order requires that payment of benefits be made to an
alternate payee (A) on or after the date the Participant attains the
earliest retirement age, (B) as if the Participant had retired on
the date on which such payment is to begin under such order, and (C)
in any form in which benefits may be paid under the Plan to the
Participant (other than in the form of a qualified joint and
survivor annuity with respect to the alternate payee and his
subsequent spouse). Payment of benefits before Termination of
Employment solely by reason of payments to an alternate payee under
a qualified domestic relations order shall not be deemed to be a
violation of Code Section 401(a) or (k).
(c) Definitions.
(i) "Alternate payee" means any spouse, former spouse, child, or other
dependent of a Participant who is recognized by a qualified domestic
relations order as having a right to receive all, or a portion of,
the benefits payable under a Plan with respect to such Participant.
(ii) "Earliest retirement age" means the earlier of:
(A) The date on which the Participant is entitled to a
distribution under the Plan; or
(B) The later of the date the Participant attains age 50, or the
earliest date on which the Participant could begin receiving
benefits under the Plan if the Participant had separated from
service.
Section 7.5 Other Rules for Distribution of Fund. (a) Vested Accounts and
Consent to Distribution. No life annuity may be purchased or distributed under
this Plan and no amount (taking into consideration both Employer and Employee
contributions) may be distributed to a Participant prior to age 65 unless the
amount is distributed in a lump sum of $3,500 or less or the Participant
consents in writing to the distribution. Unless the Participant elects
otherwise, distribution must commence not later than 60 days after the end of
the Plan Year in which a Participant attains Normal Retirement Age or actually
retires, whichever is later. Unless otherwise elected by the Participant,
distributions must commence no later than one year after the close of the Plan
Year in which occurs the later of the Participant's Termination of Employment
because of death, disability or Normal Retirement Age, or the fifth Plan Year
following the Participants' separation from service; provided, however, that if
securities held in a Participant's Account were purchased with the proceeds of a
loan that has not been repaid in full, distributions may be delayed until the
end of the Plan Year during which the loan is repaid in full. The Participant's
Account must be distributed over a period not longer than five years or, five
years plus one additional year (but not more than five additional years) for
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each $100,000 of Account balance in excess of $500,000.
(b) Distribution Rules. Notwithstanding any other provisions of this
section, the following distribution rules shall apply (unless a different method
of distribution applies under Section 242(b) of the Tax Equity and Fiscal
Responsibility Act of 1982):
(i) Before Death. The entire Account of each Participant (A) will be
distributed to him not later than the required beginning date; or
(B) shall be distributed commencing not later than the required
beginning date over (1) the life of the Participant (or the lives of
the Participant and his designated Beneficiary), or (2) a period not
extending beyond the life expectancy of the Participant (or the life
expectancy of the Participant and his designated Beneficiary).
(ii) After Death. If a Participant dies and distribution of his Account
has begun in accordance with Section 7.5(i)(B) of this Plan, the
remaining portion of his Account will be distributed at least as
rapidly as under the method of distribution being used under that
Section 7.5(i)(B) as of the date of the Participant's death. If a
Participant dies before distribution of the Participant's Account
has commenced, the entire interest of the Participant will be
distributed within five years after the death of the Participant.
The preceding sentence shall not apply if any portion of the
Participant's Account is payable to or for the benefit of a
designated Beneficiary, if such portion will be distributed over the
life of the designated Beneficiary, and if such distributions will
begin not later than one year after the date of the Participant's
death or such later date as the Secretary of the Treasury may
prescribe by regulations. If the designated Beneficiary is the
surviving spouse of the Participant, the date on which the
distributions are required to begin shall not be earlier than the
date on which the Participant would have attained age 70-1/2, and if
the surviving spouse dies before the distribution to such spouse
begins, distributions shall be made as if the surviving spouse were
the Participant.
(iii) Life Expectancy. For purposes of this Section 7.5, the life
expectancy of an Employee and the Employee's spouse (other than in
the case of a life annuity) may be redetermined but not more
frequently than annually as determined by the Plan Committee.
(iv) Required Beginning Date. Required beginning date means April 1 of
the calendar year following the calendar year in which the
Participant attains age 70-1/2, unless otherwise provided by the
transitional rules under Code Section 401(a)(9) and the regulations
thereunder.
(v) Designated Beneficiary. Designated Beneficiary means any individual
designated as a Beneficiary by the Participant.
(vi) Treatment of Payments to Children. Under regulations prescribed by
the Secretary of the Treasury, any amount paid to a child shall be
treated as if it had been paid to the surviving spouse if such
amount will become payable to the surviving spouse upon such child
reaching majority (or such other designated event permitted under
regulations).
(vii) Spouse, Trust for Benefit of Spouse, or Estate As Beneficiary. If
distribution prior to a Participant's death has not commenced or has
commenced as installment payments from the Trust Fund and if the
Participant designates his spouse, a trust for the benefit of his
spouse, or his estate as his Beneficiary, the provisions of this
subsection shall apply, subject to the limitations in this Section
7.5:
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(A) Spouse As Beneficiary. If a Participant designates his spouse
as his Beneficiary, upon the death of the Participant the
spouse shall elect (1) to receive the entire Account of the
Participant in a lump sum distribution, or (2) to receive
payment of the Account in installments as provided in Section
7.5(vii)(E) of this Plan. In the absence of an election by the
spouse, the Participant's Account shall be distributed to the
spouse in a lump sum within a period of time that satisfies
the requirements of this section. Notwithstanding any other
provisions of this Plan, the spouse at any time may direct the
Trustee to distribute all or any part of the Account to the
spouse, or may request that the Trustee segregate the Account
from the remainder of the Trust Fund and invest it in the
manner that the spouse specifies. The Trustee, in its sole
discretion, shall determine on a nondiscriminatory basis
whether to permit such segregation.
(B) QTIP Trust As Beneficiary. If a Participant designates as his
Beneficiary a qualified terminable interest property "QTIP"
trust for the benefit of his spouse, upon the death of the
Participant the Trustee of the QTIP trust shall elect for the
QTIP trust (1) to receive the entire Account of the
Participant in a lump sum distribution, or (2) to receive
payment of the Account in installments as provided in Section
7.5(vii)(E) of this Plan. In the absence of an election by the
QTIP Trustee, the Participant's Account shall be distributed
to the QTIP trust in a lump sum within a period of time that
satisfies the requirements of this Section 7.5.
Notwithstanding any other provisions of this Plan, the spouse
at any time may direct the Trustee to distribute all or any
part of the Account to the QTIP trust, or may request that the
Trustee segregate the Account from the remainder of the Trust
Fund and invest it in the manner that the QTIP Trustee
specifies. The Trustee, in its sole discretion, shall
determine on a nondiscriminatory basis whether to permit such
segregation.
(C) General Power of Appointment Trust As Beneficiary. If the
Participant designates as his Beneficiary a trust over which
his spouse has a general power of appointment, upon the death
of the Participant the spouse shall elect (1) for such trust
to receive the entire Account of the Participant in a lump sum
distribution, or (2) for such trust to receive payment of the
Account in installments as provided in Section 7.5(vii)(E) of
this Plan. In the absence of an election by the spouse, the
Participant's Account shall be distributed to such trust in a
lump sum within a period of time that satisfies the
requirements of this section. Notwithstanding any other
provisions of this Plan, the spouse at any time may direct the
Trustee to distribute all or any part of the Account to the
general power of appointment trust, or may request that the
Trustee segregate the Account from the remainder of the Trust
Fund and invest it in the manner that the spouse specifies.
The Trustee, in its sole discretion, shall determine on a
nondiscriminatory basis whether to permit such segregation.
(D) Estate As Beneficiary. If the Participant designates his
estate as his Beneficiary with a specific bequest of his
income in respect of decedent to his spouse, upon the death of
the Participant the personal representative of the Participant
(or the successor of the personal representative) shall elect
(1) to receive the entire Account of the Participant in a lump
sum distribution, or (2) for the spouse to receive payment of
the Account in installments as provided in Section 7.5(vii)(E)
of this Plan. In the absence of an election by the personal
representative (or his successor), the Participant's Account
shall be distributed to the personal representative (or his
successor) in a lump sum within a time period that satisfies
the requirements of this section. Notwithstanding any other
provisions of this Plan, the personal representative (or his
successor) at any time may direct the Trustee to distribute
all or any part of the Account, or may request that the
Trustee segregate the Account from the remainder of the Trust
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Fund and invest it in the manner that the personal
representative (or his successor) specifies. The Trustee, in
its sole discretion, shall determine on a nondiscriminatory
basis whether to permit such segregation.
(E) Installment Distributions. If installment payments of the
Participant's Account are elected under this section, the
person making the election shall specify the amount of the
payments and when they shall be made, provided that payment
must be made no less frequently than annually. The total
installment payments each year shall equal the greater of (1)
all income from the Account, or (2) the minimum permissible
annual payment under this Section 7.5, and shall be limited as
provided under Section 7.2(c) of this Plan. If a spouse elects
installment payments, such spouse shall determine who shall
receive the amounts, if any, payable under such installment
election after such spouse's death.
Section 7.6 Withdrawals. (a) Employer Contributions. Upon completing the
requirements for early retirement provided in Section 6.1 of this Plan, a
Participant may elect to retire for purposes of this Plan and may request
withdrawal from the Trust Fund of all or any portion of his Account attributable
to Employer contributions valued as of the most recent preceding Valuation Date.
If a Participant does make such a withdrawal, he shall not be eligible to
participate in the Plan again and he shall forfeit all income which otherwise
would have been credited to his Account on the last day of the year in which he
makes a withdrawal of Employer contributions. His Account shall be credited or
charged with any realized or unrealized gains or losses on such date as though
no such withdrawal had occurred.
(b) Voluntary Contributions. At any time a Participant may request
withdrawal of all or any part of his Account attributable to voluntary
contributions. A Participant desiring such a withdrawal shall file a written
request with the Plan Committee at least two weeks before the date on which
withdrawal is to be made. The Participant shall specify the date of withdrawal
in his request which date shall be the end of a calendar quarter and that date
shall be the withdrawal date for all purposes of this Plan whether or not he
actually receives his distribution on that date. The Plan Committee then shall
direct the Trustee to distribute the amount requested to the Participant. The
Trustee shall distribute the withdrawn contributions as soon as reasonably
possible after the withdrawal date. A Participant who makes withdrawal of any
portion of his Account under this Section 7.6(b) may not contribute to the Trust
Fund under Section 4.1 of this Plan until the first calendar quarter commencing
six months after withdrawal is made. Any expenses attributable to any withdrawal
under this Section 7.6(b) shall be charged to the Account of the Participant
requesting the withdrawal. Vested benefits under the Plan may not be forfeited
because a Participant withdraws his voluntary contributions.
(c) Salary Reductions. A Participant may withdraw his salary reduction
contributions to this Plan, including any earnings, losses and changes in fair
market value of such contributions, as reflected in his Account attributable to
salary reductions, upon either completing the requirements for early retirement
under Section 6.1 of this Plan or upon serious financial hardship, as defined
below. A Participant desiring such a withdrawal shall make his request in such
form and manner as the Plan Committee shall prescribe from time to time. If a
Participant makes a withdrawal upon eligibility for early retirement, he shall
not be eligible to participate in the Plan again and shall forfeit all income
which otherwise would have been credited to his Account on the last day of the
year in which he makes withdrawal. A hardship distribution cannot exceed the
amount required to meet the immediate financial need and cannot be reasonably
available to the Participant from other resources. If the Plan Committee
determines in accordance with a uniform and nondiscriminatory policy that
serious financial hardship exists, it may direct the Trustee to distribute the
amount requested to the Participant. Any expenses attributable to the hardship
withdrawal shall be charged to the Account of the Participant requesting the
withdrawal. For the purposes of this Section, a serious financial hardship is
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defined as an immediate and heavy financial need of the Participant when such
Participant lacks other available resources. The following are the only
financial needs considered immediate and heavy:
(i) Deductible medical expenses (within the meaning of Code Section
213(d)) of the Participant, the Participant's spouse, children, or
dependents;
(ii) The purchase (excluding mortgage payments) of a principal residence
for the Participant;
(iii) Payment of tuition, and related expenses, for the next twelve months
of post-secondary education for the Participant, the Participant's
spouse, children, or dependents;
(iv) The need to prevent the eviction of the Participant from, or a
foreclosure on the mortgage of, the Participant's principal
residence;
(v) Funeral expenses of a family member of the Participant; or
(vi) Any other reason deemed to be an immediate and heavy financial need
by the Secretary of Treasury.
Effective January 1, 1995, a distribution will be considered as necessary to
satisfy an immediate and heavy financial need of the Participant only if (A) the
Participant has obtained all distributions, other than hardship distributions,
and all nontaxable loans available under all Plans maintained by the Company;
(B) all Plans maintained by the Company provide that the Participant's elective
deferrals and Participant contributions will be suspended for twelve months
after the receipt of the hardship distribution; (C) the distribution is not in
excess of the amount necessary to satisfy the immediate and heavy financial
need; and (D) all plans maintained by the Company provide that the Participant
may not make elective deferrals for the Participant's taxable year immediately
following the taxable year of the hardship distribution in excess of the
applicable limit under Code Section 402(g) for such taxable year less the amount
of such Participant's elective deferrals for the taxable year of the hardship
distribution.
Section 7.7 Put Option. If Qualifying Employer Securities distributed, as
part of the balance to the credit of the Participant distributed within one
taxable year, are not readily tradable on an established market, the Participant
receiving such Qualifying Employer Securities has a right to require the
Employer to repurchase such Qualifying Employer Securities at fair market value.
The put option period shall extend for 60 days after the date of distribution
and, if not exercised during that time period shall extend for an additional 60
day period in the following Plan Year (to the extent provided in Treasury
regulations). Payments for the Qualifying Employer Securities must be made in
substantially equal period payments over a period not exceeding five years and
must commence within 30 days after the exercise of the "put option". Adequate
security shall be provided and reasonable interest shall be paid on unpaid
amounts. Qualifying Employer Securities shall be readily tradable on an
established market if they are (i) listed on a national securities exchange
registered under Section 6 of the Securities Exchange Act of 1934, (ii) quoted
on a system sponsored by a national securities association registered under
Section 15A(b) of the Securities Exchange Act, including the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ"),
or (iii) traded on any over the counter market by brokers or dealers who make
the market using "pink sheets" published by the National Quotation Bureau, Inc.
Section 7.8 Loans to Participants. (a) Uniform Non-Discriminatory Policy.
The Committee may establish a uniform and nondiscriminatory policy under which
it may direct the Trustee to make a loan to a Participant who makes a written
request for such a loan. In no event may all loans from all qualified plans of
the Company to an individual Participant exceed the lesser of (i) the greater of
$10,000 or one-half the present value of the Participant's nonforfeitable
accrued benefit under all such plans; or (ii) $50,000 reduced by the excess (if
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any) of the highest outstanding balance of loans from all such plans during the
one year period ending on the day before the date on which such loan was made
over the outstanding balance of loans from all such plans on the date on which
such loan was made.
(b) Collateral Terms. All loans shall be secured adequately by collateral
which collateral may (in the Plan Committee's discretion) include up to 50% of
the Participant's vested Account, shall be considered investments of the Plan
and Trust, and shall bear a rate of interest considered reasonable on the date
on which the loan was made. Except to the extent it is used to acquire any
dwelling unit that within a reasonable time is to be used (determined at the
time the loan is made) as a principal residence of the Participant, any such
loan shall be repaid within or upon the earlier of the date prescribed by the
Plan Committee, or five years after the loan is made. To the extent that any
loan is used to acquire the principal residence of the Participant, such loan
shall be repaid within a reasonable period of time as determined by the
Committee. Substantially level amortization of the loan (with payments at least
quarterly) shall be made over the term of the loan. If a Participant does not
repay such loan within the time prescribed, then in addition to enforcing
payment through any legal remedy, the Plan Committee may instruct the Trustee to
deduct the total amount of the loan and any unpaid interest due on it from such
Participant's Account, but no foreclosure of the Participant's Account may occur
prior to the Account being distributable under this Article. In its discretion
the Plan Committee may require the Participant to repay the loan by payroll
deduction. Loans may not be made to shareholder-Employees or to owner-Employees.
For purposes of this requirement, a shareholder-Employee means an Employee or
officer of an electing small business (Subchapter S) corporation who owns (or is
considered as owning within the meaning of Code Section 319(a)(1)) on any day
during the taxable year of such corporation, more than five percent of the
outstanding stock of the corporation. An owner-Employee means an Employee who
owns the entire interest of an unincorporated trade or business or is a partner
owning more than 10 percent of the capital interest or profits in such
partnership.
Section 7.9 Other Restrictions on Withdrawals. Notwithstanding other
provisions of this Plan and in particular Article VII of this Plan, the
following will apply to all transactions involving Qualifying Employer
Securities or Accounts which are the subject of this Plan:
(i) Six Month Limitation on Further Purchases. An officer or director
Participant making a withdrawal under this Plan must cease further
purchases of Qualifying Employer Securities in the Plan for six
months, or the Qualifying Employer Securities so distributed must be
held by that Participant six months prior to disposition; provided
that extraordinary distributions of all of the Qualifying Employer
Securities held by the Plan and distributions in connection with
death, retirement, disability, Termination of Employment, or a
qualified domestic relations order as defined by the Code or Title I
of the Employee Retirement Income Security Act, or the rules under
those acts, are not subject to this requirement; and
(ii) Six Month Limitation on Further Participation. An officer or
director Participant who ceases participation in the Plan may not
participate in the Plan again for at least six months.
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ARTICLE VIII
FIDUCIARY OBLIGATIONS
---------------------
Section 8.1 General Fiduciary Duties. A Fiduciary shall discharge his duties
under the Plan solely in the interest of the Participants and the beneficiaries
and for the exclusive purpose of providing benefits to Participants and to their
beneficiaries and defraying reasonable expenses of administering the Plan. All
fiduciaries shall act with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims. Except as authorized by regulations of the
Secretary of Labor, no Fiduciary may maintain the indicia of ownership of any
assets of the Plan outside the jurisdiction of the district courts of the United
States. A Fiduciary shall act in accordance with the documents and instruments
governing the Plan to the extent such documents and instruments are consistent
with the requirements of law.
Section 8.2 Allocation of Fiduciary Responsibility. A Named Fiduciary may
designate persons other than named fiduciaries to carry out Fiduciary
responsibilities (other than Trustee responsibilities) under the Plan.
Section 8.3 Liability of Fiduciaries. (a) Extent of Liability. A Fiduciary
who breaches any of the responsibilities, obligations, or duties imposed upon
him by this Plan or by the requirements of law shall be personally liable only
(i) to make good to the Plan any losses resulting from his breach, (ii) to
restore to the Plan any profits the Fiduciary has made through the use of Plan
assets for his personal Account, and (iii) to pay those penalties prescribed by
law arising from his breach. A Fiduciary shall be subject to such other
equitable or remedial relief as a court of law may deem appropriate, including
removal of the Fiduciary. A Fiduciary also may be removed for a violation of
Section 8.8 of this Plan (prohibition against certain persons holding certain
positions). No Fiduciary shall be liable with respect to the breach of a
Fiduciary duty if such breach was committed before he became a Fiduciary or
after he ceased to be a Fiduciary.
(b) Liability of Fiduciary for Breach by Co-Fiduciary. A Fiduciary shall be
liable for a breach of Fiduciary responsibility of another Fiduciary of this
Plan, only if he (i) participates knowingly in, or knowingly undertakes to
conceal, an act or omission of the other Fiduciary, and knows such act or
omission by the other Fiduciary is a breach of the other Fiduciary's duties,
(ii) enables another Fiduciary to commit a breach, by his failure to comply with
Section 8.1 of this Plan in the administration of the specific responsibilities
which give rise to his status as a Fiduciary, or (iii) has knowledge of a breach
of another Fiduciary and does not make reasonable efforts under the
circumstances to remedy the breach.
(c) Liability for Improper Delegation of Fiduciary Responsibility. A Named
Fiduciary who allocates any of his Fiduciary responsibilities to any person or
designates any person to carry out any of his Fiduciary responsibilities shall
be liable for the act or omission of such person in carrying out the
responsibility only to the extent that the Named Fiduciary fails to satisfy his
general Fiduciary duties of Section 8.1 of this Plan with respect to the
allocation or designation, with respect to the establishment or implementation
of the procedure by which he allocates the responsibilities, or in continuing
the allocation or designation. Nothing in this Section 8.3(c) shall prevent a
Named Fiduciary from being liable if he otherwise would be liable for an act or
omission under Section 8.3 of this Plan.
(d) Fiduciary to whom Responsibilities are Allocated. Any person who has
been designated to carry out Fiduciary responsibilities under Section 8.2 of
this Plan shall be liable for such responsibilities under this section to the
same extent as any Named Fiduciary.
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(e) Liability Insurance and Indemnification. Nothing in this Plan shall
preclude a Fiduciary from purchasing insurance to cover liability from and for
his own account. The Company may purchase insurance to cover potential liability
of those persons who serve in a Fiduciary capacity with regard to the Plan or
may indemnify a Fiduciary against liability and expenses reasonably incurred by
him in connection with any action to which such Fiduciary may be made a party by
reason of his being or having been a Fiduciary.
Section 8.4 Prohibited Transactions. No Fiduciary shall cause the Plan to
engage in a transaction if the Fiduciary knows or should know that the
transaction constitutes a prohibited transaction under law. No disqualified
person under law (other than a Fiduciary acting only as such) shall engage in a
prohibited transaction as prescribed by law.
Section 8.5 Receipts of Benefits by Fiduciaries. Nothing shall prohibit any
Fiduciary from receiving any benefit to which he may be entitled as a
Participant or Beneficiary in the Plan, if such benefit is computed and paid on
a basis which is consistent with the terms of the Plan applied to all other
Participants and beneficiaries. The determination of any matters affecting the
payment of benefits to any Fiduciary other than the Plan Committee shall be
determined by the Plan Committee. If the Plan Committee is an individual, the
determination of any matters affecting the payment of benefits to the Plan
Committee shall be made by a temporary Plan Committee who shall be appointed by
the Board of Directors for such purpose. If the Plan Committee is a group of
individuals, the determination of any matters affecting the payment of benefits
to any individual Plan Committee member shall be made by the remaining Plan
Committee members without the vote of such individual Plan Committee member. If
the remaining Plan Committee members are unable to agree on any matter affecting
the payment of such benefits, the Board of Directors shall appoint a temporary
Plan Committee to decide the matter.
Section 8.6 Compensation and Expenses of Fiduciaries. (a) General Rules. A
Fiduciary shall be entitled to receive any reasonable Compensation for services
rendered or for the reimbursement of expenses properly and actually incurred in
the performance of his duties under the Plan. However, no Fiduciary who already
receives full-time pay from an Employer shall receive Compensation from the
Plan, except for reimbursement of expenses properly and actually incurred. All
Compensation and expenses shall be paid by the Plan, unless the Company, in its
discretion, elects to pay all or any part of such Compensation and expenses.
(b) Compensation of Plan Committee and Plan Administration. A Plan
Administrator who is not a full-time Employee of an Employer shall be entitled
to such reasonable Compensation as the Plan Committee and Plan Administrator
mutually shall determine. A Plan Committee member who is not a full-time
Employee of an Employer shall be entitled to such reasonable Compensation as the
Company and the Plan Committee mutually shall determine. Any expenses properly
and actually incurred by the Plan Committee or the Plan Administrator due to a
request by a Participant shall be charged to the Account of the Participant on
whose behalf such expenses are incurred.
(c) Compensation of Trustee. A Trustee who is not a full-time Employee of an
Employer shall be entitled to such reasonable Compensation for its services as
the Plan Committee and the Trustee mutually shall determine.
(d) Compensation of Persons Retained or Employed by Named Fiduciary. The
Compensation of all agents, counsel, or other persons retained or employed by a
Named Fiduciary shall be determined by the Named Fiduciary employing such
person, with the Plan Committee's approval, provided that a person who is a
full-time Employee of an Employer shall receive no Compensation from the Plan.
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Section 8.7 Service by Fiduciaries and Disqualified Persons. Nothing in this
Plan shall prohibit anyone from serving as a Fiduciary in addition to being an
officer, Employee, agent, or other representative of a disqualified person as
defined in the Code.
Section 8.8 Prohibition Against Certain Persons Holding Certain Positions.
No person who has been convicted of a felony shall be permitted to serve as an
administrator, Fiduciary, officer, Trustee, custodian, counsel, agent, or
Employee of this Plan, or as a consultant to this Plan, unless permitted under
law. The Plan Committee shall ascertain to the extent practical that no
violation of this section occurs. In any event, no person knowingly shall permit
any other person to serve in any capacity which would violate this section.
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ARTICLE IX
PLAN ADMINISTRATOR AND PLAN COMMITTEE
-------------------------------------
Section 9.1 Appointment of Plan Administrator and Plan Committee. The Board
of Directors by resolution shall appoint a Plan Administrator and Plan
Committee, both of whom shall hold office until resignation, death, or removal
by the Board of Directors. If the Board of Directors fails to appoint the Plan
Committee or Plan Administrator, or both, the Board of Directors shall be the
Plan Committee, the Plan Administrator, or both. Any person may serve in more
than one Fiduciary capacity, including service as Plan Administrator and Plan
Committee member. Any group of persons appointed by the Board of Directors may
serve in the capacity of Plan Committee, Plan Administrator, or both.
Section 9.2 Organization and Operation of Offices of Plan Administrator and
Plan Committee. The Plan Administrator and Plan Committee may adopt such
procedures as each deems desirable for the conduct of their respective affairs
and may appoint or employ a secretary or other agents, any of whom may be, but
need not be, an officer or Employee of the Company or an Associated Company. Any
agent may be removed at any time by the person appointing or employing him.
Section 9.3 Information To Be Made Available to Plan Committee and Plan
Administrator. To enable the Plan Committee and the Plan Administrator to
perform all of their respective duties under the Plan, each Employer shall
provide the Plan Committee and the Plan Administrator with access to the
following information for each Employee: (i) name and address; (ii) social
security number; (iii) birthdate; (iv) dates of commencement and Termination of
Employment; (v) reason for termination of employment; (vi) hours worked during
each year; (vii) annual Compensation; (viii) Employer contributions; and (ix)
such other information as the Plan Committee or the Plan Administrator may
require. To the extent the information is available in Employer records, an
Employer shall provide the Plan Committee and Plan Administrator with access to
information relating to each Employee's contributions, benefits received under
the Plan, and marital status. If such information is not available from the
Employer records, the Plan Committee shall obtain such information from the
Participants. The Plan Committee, the Plan Administrator and the Employer may
rely on and shall not be liable because of any information which an Employee
provides, either directly or indirectly. As soon as possible following any
Participant's death, Total Disability, retirement, or other Termination of
Employment, his Employer shall certify in writing to the Plan Committee and Plan
Administrator such Participant's name and the date and reason for his
Termination of Employment.
Section 9.4 Resignation and Removal of Plan Administrator or Plan Committee
Member; Appointment of Successors. Any Plan Administrator or Plan Committee
member may resign at any time by giving written notice to the Board of
Directors, effective as stated in such notice, otherwise upon receipt of such
notice. At any time the Plan Administrator or any Plan Committee member may be
removed by the Board of Directors without cause. As soon as practical, following
the death, resignation, or removal of any Plan Administrator or Plan Committee
member, the Board of Directors shall appoint a successor by resolution. Written
notice of the appointment of a successor Plan Administrator or successor Plan
Committee member shall be given by the Company to the Trustee. Until receipt by
the Trustee of such written notice, the Trustee shall not be charged with
knowledge or notice of such change.
Section 9.5 Duties and Powers of Plan Administrator, Reporting and
Disclosure. (a) General Requirements. The Plan Administrator shall be
responsible for all applicable reporting and disclosure requirements of law. The
Plan Administrator shall prepare, file with the Secretary of Labor, the
Secretary of the Treasury, or the Pension Benefit Guaranty Corporation, when
applicable, and furnish to Participants and beneficiaries, when applicable, the
following: (i) summary plan description; (ii) description of modifications and
changes; (iii) annual report; (iv) terminal and supplementary reports; (v)
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registration statement; and (vi) any other return, report, or document required
by law.
(b) Statement of Benefits Accrued and Vested. The Plan Administrator is to
furnish any Plan Participant or Beneficiary who so requests in writing, a
statement indicating, on the basis of the latest available information, the
total benefits accrued and the vested benefits, if any, which have accrued, or
the earliest date on which benefits will become vested. The Plan Administrator
shall furnish a written statement to any Participant who terminates employment
during the Plan Year and is entitled to a deferred vested benefit under the Plan
as of the end of the Plan Year, if no retirement benefits have been paid with
respect to such Participant during the Plan Year. The statement shall be an
individual statement and shall contain the information required in the annual
registration statement which the Plan Administrator is required to file with the
Secretary of the Treasury. The Plan Administrator shall furnish the individual
statement to the Participant before the expiration of the time prescribed for
filing the annual registration statement with the Secretary of the Treasury.
(c) Inspection of Documents. The Plan Administrator is to make available for
inspection copies of the Plan description and the latest annual report and the
agreements under which the Plan was established or is operated. Such documents
shall be available for examination by any Participant or Beneficiary in the
principal office of the Plan Administrator and in such other places as may be
necessary to make available all pertinent information to all Participants. Upon
written request by any Participant or Beneficiary, the Plan Administrator is to
furnish a copy of the last updated summary Plan description, Plan description,
and the latest annual report, any terminal report, and any agreements under
which the Plan is established or operated. In addition, the Plan Administrator
is to comply with every other requirement imposed on him by law.
(d) Employment of Advisers and Persons To Carry Out Responsibilities. The
Plan Administrator may appoint one or more persons to render advice with regard
to any responsibility the Plan Administrator has under the Plan and may employ
one or more persons (other than a Named Fiduciary) to carry out any of his
responsibilities under the Plan.
(e) Notice of Eligibility for Direct Rollover Distribution. The Plan
Administrator shall provide a written explanation to the recipient of any
eligible rollover distribution that income taxes will not be withheld on the
distribution to the extent such distribution is transferred in an eligible
rollover distribution to an eligible retirement plan.
Section 9.6 Duties and Powers of Plan Committee - In General. The Plan
Committee shall decide, in its sole and absolute discretion, all questions
arising in the administration, interpretation, and application of the Plan and
Trust, including all questions relating to eligibility, vesting, and
distribution, except as may be reserved under this Plan to the Company, its
Board of Directors or any Associated Company. The Plan Committee may designate
any person (other than the Plan Administrator or Trustee) to carry out any of
the Plan Committee's Fiduciary responsibilities under the Plan (other than a
Trustee Responsibility) and may appoint one or more persons to render advice
with regard to any responsibility the Plan Committee has under the Plan. The
Plan Committee from time to time shall direct the Trustee concerning the
payments to be made out of the Trust Fund pursuant to this Plan. All notices,
directions, information, and other communications from the Plan Committee shall
be in writing.
Section 9.7 Duties and Powers of Plan Committee - Keeping of Records. The
Plan Committee shall keep a record of all the Plan Committee's proceedings and
shall keep all such books of Account, records, and other data as may be
necessary or advisable in its judgment for the administration of this Plan and
Trust, including records to reflect the affairs of this Plan, to determine the
amount of vested and/or forfeitable interests of the respective Participants in
the Trust Fund, and to determine the amount of all benefits payable under this
Plan. The Plan Committee shall maintain separate Accounts for each Participant
as provided under Section 5.1 of this Plan. Subject to the requirements of law,
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any person dealing with the Plan Committee may rely on, and shall incur no
liability in relying on, a certificate or memorandum in writing signed by the
Plan Committee as evidence of any action taken or resolution adopted by the Plan
Committee.
Section 9.8 Duties and Powers of Plan Committee - Claims Procedure.
(a)Filing and Initial Determination of Claim. Any Participant, Beneficiary or
his duly authorized representative may file a claim for a Plan benefit to which
the claimant believes that he is entitled. Such a claim must be in writing and
delivered to the Plan Committee in person or by certified mail, postage prepaid.
Within 90 days after receipt of such claim, the Plan Committee shall send to the
claimant by certified mail, postage prepaid, notice of the granting or denying,
in whole or in part, of such claim unless special circumstances require an
extension of time for processing the claim. In no event may the extension exceed
90 days from the end of the initial period. If such extension is necessary the
claimant will receive a written notice to this effect prior to the expiration of
the initial 90-day period. The Plan Committee shall have full discretion
pursuant to the Plan to deny or grant a claim in whole or in part. If notice of
the denial of a claim is not furnished in accordance with this Section 9.8(a),
the claim shall be deemed denied and the claimant shall be permitted to exercise
his right of review pursuant to Section 9.8(c) and (d) of this Plan.
(b) Duty of Plan Committee Upon Denial of Claim. The Plan Committee shall
provide to every claimant who is denied a claim for benefits written notice
setting forth in a manner calculated to be understood by the claimant: (i) the
specific reason or reasons for the denial; (ii) specific reference to pertinent
Plan provisions on which the denial is based; (iii) a description of any
additional material or information necessary for the claimant to perfect the
claim and an explanation of why such material is necessary; and (iv) an
explanation of the Plan's claim review procedure.
(c) Request for Review of Claim Denial. Within 60 days after receipt by the
claimant of written notification of the denial in whole or in part of his claim,
the claimant or his duly authorized representative, upon written application to
the Plan Committee in person or by certified mail, postage prepaid, may request
a review of such denial, may review pertinent documents and may submit issues
and comments in writing. Upon its receipt of the request for review, the Plan
Committee shall notify the Board of Directors of the request.
(d) Claims Reviewer. Upon its receipt of notice of a request for review, the
Board of Directors shall appoint a person other than a Plan Committee member to
be the claims reviewer. The Plan Committee shall deliver to the claims reviewer
all documents submitted by the claimant and all other documents pertinent to the
review. The claims reviewer shall make a prompt decision on the review. The
decision on review 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 Plan provisions on which the decision is based. The
decision on review shall be made not later than 60 days after the Plan
Committee's receipt of a request for a review, unless special circumstances
require an extension of time for processing, in which case a decision shall be
rendered not later than 120 days after receipt of a request for review. If such
extension is necessary the claimant shall be given written notice of the
extension prior to the expiration of the initial 60-day period. If notice of the
decision on review is not furnished in accordance with this Section 9.8(d), the
claim shall be deemed denied and the claimant shall be permitted to exercise his
right to legal remedy pursuant to Section 9.8(e) of this Plan.
(e) Legal Remedy. After exhaustion of the claims procedure as provided under
this Plan, nothing shall prevent any person from pursuing any other legal
remedy.
Section 9.9 Duties and Powers of Plan Committee - Funding Policy. The policy
of each Employer is that this Plan shall be funded with Employer contributions
and Participant contributions. The Plan Committee shall determine the Plan's
short-run and long-run financial needs and regularly communicate these
requirements to the appropriate persons. The Plan Committee will determine
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whether the Plan has a short-run need for liquidity, (e.g., to pay benefits) or
whether the liquidity is a long-run goal and investment growth is a more current
need. The Plan Committee shall communicate such information to the Trustee so
that investment policy can be coordinated appropriately with Plan needs.
Section 9.10 Duties and Powers of Plan Committee - Bonding of Fiduciaries
and Plan Officials. The Plan Committee shall procure bonds for every Fiduciary
of the Plan and every Plan official, if he handles funds of the Plan, in an
amount not less than 10% of the amount of funds handled and in no event less
than $1,000, except the Plan Committee shall not be required to procure such
bonds if: (i) the person is excepted from the bonding requirement by law; or
(ii) the Secretary of Labor exempts the Plan from the bonding requirements. The
bonds shall conform to the requirements of law.
Section 9.11 Duties and Powers of Plan Committee - Qualified Domestic
Relations Orders. (a) Establish Procedures. Effective as of January 1, 1985, the
Plan Committee shall establish reasonable procedures for determining the
qualification status of a domestic relations order. Such procedures: (i) shall
be in writing; (ii) shall provide to each person specified in a domestic
relations order as entitled to payment of Plan benefits notification of such
procedures promptly upon receipt by the Plan of the order; and (iii)shall permit
an alternate payee to designate a representative for receipt of copies of
notices that are sent to the alternate payee.
(b) Determination of Plan Committee. Within a reasonable period of time
after receipt of such order, the Plan Committee shall determine whether such
order is a qualified domestic relations order and notify the Participant and
each alternate payee of such determination. During any period in which the issue
of whether a qualified domestic relations order is a qualified domestic
relations order is being determined, the Plan Committee shall segregate in a
separate Account the amounts which would have been payable to the alternate
payee during such period if the order had been determined to be a qualified
domestic relations order. If, within 18 months the order is determined not to be
a qualified domestic relations order or the issue as to whether such order is a
qualified domestic relations order is not resolved, then the Plan Committee
shall pay under the terms of the Plan the segregated amounts to the person or
persons who would have been entitled to such amounts if there had been no order.
If a Fiduciary acts in accordance with the fiduciary responsibility provisions
of ERISA, then the Plan's obligation to the Participant and each alternate payee
shall be discharge to the extent of any payment made.
Section 9.12 Advice to Designated Fiduciaries. Any Fiduciary designated by
the Plan Committee or Plan Administrator may appoint with the consent of the
Plan Committee or Plan Administrator, respectively, one or more persons to
render advice with regard to any responsibility such designated Fiduciary has
under the Plan.
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ARTICLE X
POWERS AND DUTIES OF THE TRUSTEE
--------------------------------
Section 10.1 Investment of Trust Fund. (a) Duties of Trustee. The duty of
the Trustee is to hold in trust the funds it receives. The Trustee shall have
exclusive authority and discretion to manage and control the assets of the Plan
and to manage, invest, and reinvest the Trust Fund and the income from it under
this article, without distinction between principal and income, and shall be
responsible only for such sums that it actually receives as Trustee. The Trustee
shall have no duty to collect any sums from the Plan Committee.
(b) Powers of Trustee. The Trustee shall have the power to apply the funds
it receives to purchase shares of Qualifying Employer Securities, and the
Trustee may invest in Qualifying Employer Securities, up to 100% of the value of
Plan assets, without regard to the diversification requirement or the prudence
requirement to the extent it requires diversification. Purchases of stock may be
made by the Trustee in the open market or by private purchase, or, if available,
from the Company, or as the Trustee may determine in its sole discretion,
provided only that no private purchase or purchase from the Company may be made
at a price greater than the current market price for Qualifying Employer
Securities on the day of such purchase. The Trustee also may purchase stock from
Participants who receive distributions from this Trust, provided that all such
purchases shall be made at the current market price on the day of such purchase.
The Trustee also shall have the power to invest and/or reinvest any and all
money or property of any description at any time held by it and constituting a
part of the Trust Fund, without previous application to, or subsequent
ratification of, any court, tribunal, or commission, or any federal or state
governmental agency and may invest in real property and all interest in real
property, in bonds, notes, debentures, mortgages, commercial paper, preferred
stocks, common stocks, or other securities, rights, obligations, or property,
real or personal, including shares or certificates of participation issued by
regulated investment companies or regulated investment trusts, shares or units
of participation in qualified common trust funds, in qualified pooled funds, or
in pooled investment funds of an insurance Company qualified to do business in
the state. If the Trustee is a bank or similar financial institution supervised
by the United States or a state, it may invest Plan assets in its own deposits
(savings Accounts and certificates of deposit) if such deposits bear a
reasonable rate of interest.
(c) Diversification and Prudence Requirements. Except to the extent the
Trustee invests in the Qualifying Employer Securities, the Trustee shall
diversify the investments of the Plan to minimize the risk of large losses,
unless under the circumstances it is clearly prudent not to do so. The Trustee
shall act with the care, skill, prudence, and diligence under the circumstances
then prevailing that a prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of a like character and
with like aims.
(d) Participant's Right to Designate Investments.
(i) General Rules. Effective January 1, 1995, or such later date as
determined by the Trustee, in accordance with rules established by
the Trustee, each Participant shall have the right to designate the
investment of his Account attributable to salary reductions and
voluntary contributions made to the Plan after such date, as
provided below.
(ii) Investments as of December 31, 1994, to be Invested by Trustee. All
Accounts as of December 31, 1994, or such later date as determined
by the Trustee, will remain subject to investment by the Trustees,
including investment of up to 100% of such Accounts in Qualifying
Employer Securities.
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(iii) Procedure for Designation. Any designation or changes in designation
of the investment of a Participant's Account attributable to salary
reductions or voluntary contributions shall be made in writing on
forms provided by the Trustee and submitted to the Trustee at such
times as the Trustee shall provide.
(iv) Investment Categories. The Trustee shall offer a broad range of
investment categories, as selected by the Trustee from time to time,
which categories shall include fixed income obligations of a secure
nature, such as savings accounts, certificates of deposit, and fixed
income government and corporate obligations. The investment
categories also may include Qualifying Employer Securities, other
common stocks, real property, notes, mortgages, commercial paper,
preferred stocks, mutual funds, or other securities, rights,
obligations, or property, real or personal, including shares or
certificates of participation issued by regulated investment trusts
and shares or units of participation in qualified common Trust Funds
or pooled funds.
(v) Absence of Investment Designation. In the absence of any written
designation of investment for the Participant's salary reductions or
voluntary contributions, the Trustee shall invest all funds received
on Account of any Participant in such category or categories as the
Trustee may designate from time to time.
(vi) Irrevocability of Investment Designation. Effective January 1, 1995,
or such later date determined by the Trustee, once a Participant has
designated the investment of his Account attributable to salary
reductions or voluntary contributions into Qualifying Employer
Securities, such Accounts shall remain invested in Qualifying
Employer Securities.
(vii) Sole and Exclusive Power of Participants. The right to designate
investment categories under this Section 10.1 shall be the sole and
exclusive investment power granted to Participants. The Trustee
shall not be liable for any loss which results from the Participant
exercising such control under this Section 10.1.
(viii) Expenses. Any expense incurred by the Trustee will be charged
directly against the value of the Account of the Participant on
whose behalf such expense is incurred. The Trustee may allocate
expenses to individual Accounts or commingled Accounts on a
nondiscriminatory basis.
Section 10.2 Administrative Powers of the Trustee. Subject to the
requirements imposed by law, the Trustee shall have all powers necessary or
advisable to carry out the provisions of this Plan and Trust and all inherent,
implied, and statutory powers not or subsequently provided by law, including
specifically the power to do any of the following:
(i) To cause any securities or other property to be registered and held
in its name as Trustee, or in the name of one or more of its
nominees, without disclosing the Fiduciary capacity, or to keep the
same in unregistered form payable to bearer;
(ii) To sell, grant options to sell, exchange, pledge, encumber,
mortgage, deed in trust, or use any other form of hypothecation, or
otherwise dispose of the whole or any part of the Trust Fund on such
terms and for such property or cash, in part cash and credit, as it
may deem best; to retain, hold, maintain, or continue any securities
or investments which it may hold as part of the Trust Fund for such
length of time as it may deem advisable; and generally, in all
respects, to do all things and exercise each and every right, power,
and privilege in connection with and in relation to the Trust Fund
as could be done, exercised, or executed by an individual holding
and owning such property in absolute and unconditional ownership;
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(iii) To abandon, compromise, contest, and arbitrate claims and demands;
to institute, compromise, and defend actions at law (but without
obligation to do so); in connection with such powers, to employ
counsel as the Trustee shall deem advisable and as approved by the
Plan Committee; and to exercise such powers all at the risk and
expense of the Trust Fund;
(iv) To borrow money for this trust upon such terms and conditions as the
Trustee shall deem advisable, and to secure the repayment of such by
the mortgage or pledge of any assets of the Trust Fund, provided
that the Trustee may not borrow money to purchase Qualifying
Employer Securities;
(v) To vote in person or by proxy any shares of stock or rights held in
the Trust Fund as directed by the Plan Committee; to participate in
and to exchange securities or other property in reorganization,
liquidation, or dissolutions of any corporation, the securities of
which are held in the Trust Fund; and
(vi) To any amount due on any loan or advance made to the Trust Fund, to
charge against and pay from the Trust Fund all taxes of any nature
levied, assessed, or imposed upon the Trust Fund, and to pay all
reasonable expenses and attorney fees necessarily incurred by the
Trustee and approved by the Plan Committee with respect to any of
the foregoing matters.
Section 10.3 Advice of Counsel. The Trustee may consult with legal counsel,
who may be counsel for the Company or any Associated Company, or Trustee's own
counsel, with respect to the meaning or construction of the Plan and Trust or
Trustee's obligations or duties. The Trustee shall be protected from any
responsibility with respect to any action taken or omitted by it in good faith
pursuant to the advice of such counsel, to the extent permitted by law.
Section 10.4 Records and Accounts of the Trustee. The Trustee shall keep all
such records and Accounts which may be necessary in the administration and
conduct of this trust. The Trustee's records and Accounts shall be open to
inspection by the Company, any Associated Company, the Plan Committee, and the
Plan Administrator, at all reasonable times during business hours. All income,
profits, recoveries, contributions, forfeitures, and any and all moneys,
securities, and properties of any kind at any time received or held by the
Trustee shall be held for investment purposes as a commingled Trust Fund.
Separate Accounts or records may be maintained for operational and accounting
purposes, but no such Account or record shall be considered as segregating any
funds or property from any other funds or property contained in the commingled
fund, except as otherwise provided. After the close of each year of the trust,
the Trustee shall render to the Company and the Plan Committee a statement of
assets and liabilities of the Trust Fund for such year.
Section 10.5 Appointment, Resignation, Removal, and Substitution of Trustee.
The Board of Directors by resolution shall appoint a Trustee or Trustees, each
of which shall hold office until resignation or removal by the Board of
Directors. The Trustee may resign at any time upon 30 days' written notice to
the Company. The Trustee may be removed at any time by the Company upon written
notice to the Trustee with or without cause. Upon resignation or removal of the
Trustee, the Company, by action of its Board of Directors, shall appoint a
successor Trustee which shall have the same powers and duties as are conferred
upon the Trustee appointed under this Plan. The resigning or removed Trustee
shall deliver to its successor Trustee all property of the Trust Fund, less a
reasonable amount necessary to provide for its Compensation, expenses, and any
taxes or advances chargeable or payable out of the Trust Fund. If the Trustee is
an individual, death shall be treated as a resignation, effective immediately.
If any corporate Trustee at any time shall be merged, or consolidated with, or
shall sell or transfer substantially all of its assets and business to another
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 44
<PAGE>
corporation, whether state or federal, or shall be reorganized or reincorporated
in any manner, then the resulting or acquiring corporation shall be substituted
for such corporate Trustee without the execution of any instrument and without
any action upon the part of the Company, any Participant or Beneficiary, or any
other person having or claiming to have an interest in the Trust Fund or under
the Plan.
Section 10.6 Appointment of Trustee, Acceptance in Writing. The Trustee
shall accept its appointment as soon as practical by executing this Plan or by
delivering a signed document to the Company, a copy of which shall be sent to
the Plan Committee by the Trustee. The Board of Directors shall appoint a new
Trustee if the Trustee fails to accept its appointment in writing.
Section 10.7 Vote of Qualifying Employer Securities Held in Trust. If the
Employer securities of the Company are not publicly traded and if more than 10%
of the total Plan assets are securities of the Company, then for voting
purposes, each Participant shall be credited with his pro rata portion
(including fractional shares) of the Qualifying Employer Securities allocated to
his Account which are not encumbered. Each Participant shall be entitled to vote
the pro rata portion of Qualifying Employer Securities allocable to him under
this Section 10.7. Unreleased Qualifying Employer Securities shall be voted by
the Trustee. The Plan Committee shall certify to the Employer the number of
shares to be voted by each Participant if an event occurs which requires a vote
of such shares. To the extent the Participants do not vote Qualifying Employer
Securities under this Section 10.7, the Trustee shall vote such Qualifying
Employer Securities. If the Employer securities of the Company are publicly
traded or if the Employer securities of the Company are not publicly traded but
not more than 10% of the total Plan assets are securities of the Company, then
the participants shall not be entitled to vote the pro rata portion of
Qualifying Employer Securities allocable to them under this Section 10.7 and the
Trustee shall vote all Qualifying Employer Securities held in the Trust.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 45
<PAGE>
ARTICLE XI
CONTINUANCE, TERMINATION, AND AMENDMENT OF PLAN AND TRUST
---------------------------------------------------------
Section 11.1 Termination of Plan. The expectation of each Employer is to
continue this Plan indefinitely, but the continuance of the Plan is not assumed
as a contractual obligation by the Employer and the right is reserved to each
Employer, by action of its Board of Directors, to terminate this Plan in whole
or in part at any time. The termination of the Plan by an Employer in no event
shall have the effect of revesting any part of the Trust Fund in the Employer.
The Plan created by execution of this Plan with respect to any Employer shall be
terminated automatically in the event of the dissolution, consolidation or
merger of such Employer or the sale by such Employer of substantially all of its
assets, if the resulting successor corporation or business entity shall fail to
adopt the Plan and Trust under Section 11.3 of this Plan. If this Plan is
disqualified, the Board of Directors of the Company, in its discretion, may
terminate this Plan.
Section 11.2 Termination of Trust. The Trust created by execution of this
Plan shall continue in full force and effect for such time as may be necessary
to accomplish the purposes for which it is created, unless sooner terminated and
discontinued by the Board of Directors. Notice of such termination shall be
given to the Trustee by the Plan Committee in the form of an instrument in
writing executed by the Company pursuant to the action of its Board of
Directors, together with a certified copy of the resolution of the Board of
Directors to that effect. In its discretion the Plan Committee may receive a
favorable determination letter from the Internal Revenue Service stating that
the prior qualified status of the Plan has not been affected by such
termination. Such termination shall take effect as of the date of the delivery
of the notice of termination and favorable determination letter, if obtained, to
the Trustee. The Plan Administrator shall file such terminal reports as are
required in Article IX of this Plan.
Section 11.3 Continuance of Plan and Trust by Successor Business. With the
approval of the Company, a successor business may continue this Plan and Trust
by proper action of the proprietor or partners, if not a corporation, and, if a
corporation, by resolution of its Board of Directors, and by executing a proper
supplemental agreement to this Plan and Trust with the Trustee. Within 90 days
from the Effective Date of such dissolution, consolidation, merger, or sale of
assets of an Employer, if such successor business does not adopt and continue
this Plan and Trust, this Plan shall be terminated automatically as of the end
of such 90-day period.
Section 11.4 Merger, Consolidation, or Transfer of Assets or Liabilities of
the Plan. The Board of Directors may merge or consolidate this Plan with any
other plan or may transfer the assets or liabilities of the Plan to any other
plan if each Participant in the Plan (if the Plan then terminated) would receive
a benefit immediately after the merger, consolidation, or transfer which is
equal to or greater than the benefit he would have been entitled to receive
immediately before the merger, consolidation, or transfer (if the Plan then had
terminated). If any merger, consolidation, or transfer of assets or liabilities
occurs, the Plan Administrator shall file such reports as required in Article IX
of this Plan.
Section 11.5 Distribution of Trust Fund on Termination of Trust. If the
trust is terminated under this Article XI, the Trustee shall determine the value
of the Trust Fund and of the respective interest of the Participants and
beneficiaries under Article V of this Plan as of the business day next following
the date of such termination. The value of the Account of each respective
Participant or Beneficiary in the Trust Fund shall be vested in its entirety as
of the date of the termination of the Plan. The Trustee then shall transfer to
each Participant or Beneficiary the net balance of the Participant's Account
unless the Plan Committee directs the Trustee to retain the assets and pay them
under the terms of this Plan as if no termination had occurred.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 46
<PAGE>
Section 11.6 Amendments to Plan and Trust. At any time the Company may amend
this Plan and Trust by action of its Board of Directors, provided that no
amendment shall cause the Trust Fund to be diverted to purposes other than for
the exclusive benefit of the Participants and their beneficiaries. No amendment
shall decrease the vested interest of any Participant nor shall any amendment
increase the contribution of any Employer or Participant in the Plan. If an
amended vesting schedule is adopted, any Participant who has five or more years
of service at the later of the date the amendment is adopted or becomes
effective and who is disadvantaged by the amendment, may elect to remain under
the Plan's prior vesting schedule. Such election must be made within a period
established by the Plan Committee, in accordance with applicable regulations,
and on a form provided by and delivered to the Plan Committee. No amendment to
the Plan (including a change in the actuarial basis for determining optional
benefits) shall be effective to the extent that it has the effect of decreasing
a Participant's accrued benefit. For purposes of this Section 11.6, a Plan
amendment that has the effect of (i) eliminating or reducing an early retirement
benefit or a retirement-type subsidy, or (ii) eliminating an optional form of
benefit, with respect to benefits attributable to service before the amendment,
will be treated as reducing accrued benefits. No amendment shall discriminate in
favor of Employees who are officer, shareholders, or Highly Compensated
Employees. Notwithstanding anything in this Plan and Trust to the contrary, the
Plan and Trust may be amended at any time to conform to the provisions and
requirements of federal and state law with respect to employees' trusts or any
amendments to such laws or regulations or rulings issued pursuant to them. No
such amendment shall be considered prejudicial to the interest of any
Participant or Beneficiary under this Plan.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 47
<PAGE>
ARTICLE XII
MISCELLANEOUS
-------------
Section 12.1 Benefits To Be Provided Solely from the Trust Fund. All
benefits payable under this Plan shall be paid or provided solely from the Trust
Fund, and no Employer assumes liability or responsibility for payment of
benefits.
Section 12.2 Notices from Participants To Be Filed with Plan Committee.
Whenever provision is made in the Plan that a Participant may exercise any
option or election or designate any Beneficiary, the action of each Participant
shall be evidenced by a written notice signed by the Participant and delivered
to the Plan Committee in person or by certified mail. If a form is furnished by
the Plan Committee for such purpose, a Participant shall give written notice of
his exercise of any option or election or of his designation of any Beneficiary
on the form provided for such purpose. Written notice shall not be effective
until received by the Plan Committee.
Section 12.3 Text To Control. The headings of articles and sections are
included solely for convenience of reference. If any conflict between any
heading and the text of this Plan and Trust exists, the text shall control.
Section 12.4 Severability. If any provision of this Plan and Trust is
illegal or invalid for any reason, such illegality or invalidity shall not
affect the remaining provisions. On the contrary, such remaining provisions
shall be fully severable, and this Plan and Trust shall be construed and
enforced as if such illegal or invalid provisions never had been inserted in
this Plan.
Section 12.5 Jurisdiction. This Plan shall be construed and administered
under the laws of the State of Alaska when the laws of that jurisdiction are not
in conflict with federal substantive law.
Section 12.6 Plan for Exclusive Benefit of Participants; Reversion
Prohibited. This Plan and Trust has been established for the exclusive benefit
of the Participants and their beneficiaries. Under no circumstances shall any
funds contributed to or held by the Trustee at any time revert to or be used by
or enjoyed by an Employer except to the extent permitted by Article IV of this
Plan.
Section 12.7 Transferability Restriction. A derivative security issued under
the Plan, including but not limited to Class B common stock of the Company, is
not transferable by the Participant other than by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order as defined
by the Code or Title I of the Employee Retirement Income Security Act or the
rules under those acts. The designation of a beneficiary by an officer,
director, or other Participant in the Plan does not constitute a transfer under
the Plan.
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 48
<PAGE>
IN WITNESS WHEREOF, the Company and the Plan Administrator have executed
this Revised Qualified Employee Stock Purchase Plan of General Communication,
Inc. this 20th day of December, 1994.
GENERAL COMMUNICATION, INC.
/s/
Ronald A. Duncan
President and Chief Executive Officer
/s/
John M. Lowber
Senior Vice President and Chief
Financial Officer
[S E A L]
GENERAL COMMUNICATION, INC.
QUALIFIED EMPLOYEE STOCK
PURCHASE PLAN
/s/
Alfred J. Walker
Plan Administrator
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE
PLAN OF GENERAL COMMUNICATION, INC.
November 22, 1994 Page 49
<PAGE>
EXHIBIT 4.3.6
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the Board of Directors of the corporation at its meeting of October 20, 1994, in
sitting as the board's Compensation Committee, directed management to make
changes to the corporation's Qualified Employee Stock Purchase Plan, to bring it
into compliance with the Tax Reform Act of 1986 and to allow diversification of
possible investments by the plan; and that the board resolution attached hereto
as Exhibits 4.3.6A is a true and correct copy of the resolution duly adopted by
the Board of Directors of General Communication, Inc. at its meeting of December
20, 1994.
Executed this 20th day of September, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 20th day of September, 1995.
/s/ Saundra A. Knox
Notary Public in and for Alaska
My Commission Expires: 10/06/98
Amendment to Registration Statement (S-8)
ASS0075D Page 13
<PAGE>
EXHIBIT 4.3.6A
RESOLUTION
RESOLVED, that the restatement of the General Communication, Inc.
Qualified Employee Stock Purchase Plan hereby is approved and adopted, effective
January 1, 1989.
Amendment to Registration Statement (S-8)
ASS0075D Page 14
<PAGE>
EXHIBIT 4.3.7
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the Board of Directors of the corporation by action taken without a meeting and
with unanimous consent approved certain additional amendments ("Amendment No.
1") to the corporation's Revised Qualified Employee Stock Purchase Plan, to
bring it into compliance with the Tax Reform Act of 1986, as amended, primarily
relating to investment responsibility and the relationship between the Plan
Committee and the Trustee; and that the board resolution and Amendment No. 1
attached hereto as Exhibits 4.3.7A is a true and correct copy of the Minutes of
Action and Resolution duly adopted by unanimous consent of the members of the
Board of Directors of the corporation effective on September 1, 1995.
Executed this 25th day of September, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 25 day of
September, 1995.
/s/ Barb Bearman
Notary Public in and for Alaska
My Commission Expires: 1-17-97
Amendment to Registration Statement (S-8)
ASS0075D Page 15
<PAGE>
EXHIBIT 4.3.7A
MINUTES OF ACTION
PURSUANT TO the provisions of the law, which provide that any
action required to be taken at a meeting of the directors of a corporation, or
any action which may be taken at a meeting of the directors, may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the directors entitled to vote with respect to the
subject matter thereof, the undersigned, being all of the directors of General
Communication, Inc., hereby do waive any and all notice that may be required to
be given with respect to a meeting of directors of the corporation and hereby do
take, ratify, confirm, and approve the following actions:
RESOLUTION
RESOLVED, that Amendment Number 1 to the General Communication, Inc.
Qualified Employee Stock Purchase Plan hereby is approved and adopted,
effective January 1, 1989.
These Minutes of Action may be executed in one or more
counterparts, all of which taken together shall constitute the same minutes, and
when signed by all of the directors of the corporation may be certified by any
proper officer of the corporation as having been adopted unanimously by vote of
the Board of Directors of General Communication, Inc. on the 1st day of
September, 1995.
IN WITNESS WHEREOF, the undersigned directors have evidenced
their approval of the above proceedings as of the date last above mentioned.
/s/ /s/
Ronald A. Duncan, Donne F. Fisher,
President and CEO, Director Director
/s/ /s/
Carter E. Page, John W. Gerdelman,
Chairman of the Board and Director Director
/s/ /s/
Robert M. Walp, Larry E. Romrell,
Vice Chairman of the Board of Director
Directors and Directors
/s/
James M. Schneider
Director
Amendment to Registration Statement (S-8)
ASS0075D Page 16
<PAGE>
AMENDMENT NUMBER 1 TO THE
REVISED QUALIFIED EMPLOYEE STOCK PURCHASE PLAN
OF
GENERAL COMMUNICATION, INC.
THIS AMENDMENT is made this 1st day of September, 1995, by
General Communication, Inc., a corporation having its principal place of
business at Anchorage, Alaska (subsequently called "Company").
RECITALS
A. The Company entered into and executed the Revised Qualified
Employee Stock Purchase Plan of General Communication, Inc. (the "Plan")
effective January 1, 1989.
B. Section 11.6 of the Plan provides in part as follows:
"At any time the Company may amend this Plan and Trust by
action of its Board of Directors..."
C. The Company now desires to amend the Plan.
AMENDMENT
NOW THEREFORE, the Company does amend the Plan as follows:
1. Section 5.6(b), shall be amended to read in its
entirety as follows:
(b) Repayment of Distribution. A Participant who
terminates participation for any reason other than retirement,
disability, or death while any portion of his Account in the
Trust Fund is forfeitable and who receives a distribution of
his vested account attributable to Employer contributions
shall have the right to pay back such distribution to the
Plan. Such repayment may be made (i) only if the Participant
has returned to the employ of the Company or any Associated
Company, and (ii) before the earlier of the date which is five
years after the date the Participant is re-employed by the
Employer, or the date on which the Participant experiences any
five consecutive one-year breaks in service commencing after
the distribution. Repayment of a Participant's Account
attributable to his salary reduction contributions, if any,
shall not be permitted under this Section 5.6. A Participant
who
- - --------------------------------------------------------------------------------
"This Document entitled 'Amendment No. 1 To The Revised Qualified Employee Stock
Purchase Plan of General Communication, Inc.' constitutes part of a Prospectus
covering securities that have been registered under the Securities Act of 1933."
1
<PAGE>
desires to make repayment of a distribution under this Section
5.6(b) shall make repayment directly to the Plan Committee. If
a Participant repays a distribution under this section, the
value of his Account shall be the amount of his Account prior
to distribution, unadjusted for any subsequent gains or
losses. The amount of the Participant's Account that was
forfeited previously shall be restored from one or more of the
following sources, at the discretion of the Plan Committee:
income or gain to the Plan, forfeitures or Employer
contributions.
2. Section 7.3 shall be amended to read as follows:
Section 7.3 Disposition of Forfeitable Account on
Termination of Employment. If a Participant's employment is
terminated for any reason other than retirement, death, or
Total Disability, while any part of his Account in the Trust
Fund is forfeitable, then that portion of his Account which is
forfeitable shall be forfeited by him on the earlier of the
date the Participant receives distribution or the date which
he experiences five consecutive one-year breaks in service. If
the value of a Participant's vested Account balance is zero
upon the Participant's termination of employment, the
Participant will be deemed to have received a distribution of
the vested Account balance immediately upon such termination
of employment. If a Participant who has received a
distribution of less than his or her entire Account upon
termination of employment is reemployed prior to five
consecutive one-year breaks in service, the forfeited Account
will be restored from income or gains to the Plan,
forfeitures, or Company contributions, at the discretion of
the Plan Committee, if the Participant repays the distributed
amount to the Plan pursuant to section 5.6(b). Any amount
forfeited will remain in the Trust Fund and will be allocated
as provided in Section 5.1 of this Plan.
3. Effective January 1, 1995, Section 10.1(a) shall be amended
to read in its entirety as follows:
10.1 (a) Duties of Trustee. The duty of the Trustee is to hold
in trust the funds it receives. Subject to the direction of
the Plan Committee, the Trustee shall have exclusive authority
and discretion to manage and control the assets of the Plan
and to manage, invest, and reinvest the Trust Fund
2
<PAGE>
and the income from it under this article, without distinction
between principal and income, and shall be responsible only
for such sums that it actually receives as Trustee. The
Trustee shall have no duty to collect any sums from the Plan
Committee. The Plan Committee will have the duty to direct the
Trustee with respect to the investment of the Trust Fund,
subject to the Participants' direction of investment under
Section 10.1(d). Notwithstanding any other provision of the
Plan, the Trustee shall have no responsibility to select the
investment options offered to Participants under Section
10.1(d) nor shall the Trustee have any discretion with respect
to the investment of Trust Funds assets.
3. Effective January 1, 1995, Section 10.1(d) shall be amended
to read in its entirety as follows:
(i) General Rules. Effective January 1, 1995, or such later
date as determined by the Plan Committee, in accordance with
rules established by the Plan Committee, each Participant
shall have the right to designate the investment of his
Account attributable to salary reduction contributions and
voluntary contributions made to the Plan after such date, as
provided below.
(ii) Investments as of December 31, 1994, to be Invested by
Trustee, at the direction of the Plan Committee. All Accounts
as of December 31, 1994, or such later date as determined by
the Plan Committee, will remain subject to investment by the
Trustee as directed by the Plan Committee, including
investment of up to 100% of such Accounts in Qualifying
Employer Securities.
(iii) Procedure for Designation. Any designation or changes in
designation of the investment of a Participant's Account
attributable to salary reductions or voluntary contributions
shall be made in writing on forms provided by the Plan
Committee and submitted to the Plan Committee or the Trustee,
as determined by the Plan Committee, at such times as the Plan
Committee shall provide.
(iv) Investment Categories. The Plan Committee shall
offer a broad range of investment categories, as selected by
the Plan Committee from time to time, which categories shall
include fixed income obligations of a secure nature, such as
3
<PAGE>
savings accounts, certificates of deposit, and fixed income
government and corporate obligations. The investment
categories also may include Qualifying Employer Securities,
other common stocks, real property, notes, mortgages,
commercial paper, preferred stocks, mutual funds, or other
securities, rights, obligations or property, real or personal
including shares or certificates of participation issued by
regulated investment trusts and shares or units of
participation in qualified common Trust Funds or pooled funds.
(v) Absence of Investment Designation. In the absence of any
written designation of investment for the Participant's salary
reductions or voluntary contributions, the Trustee shall
invest all funds received on Account of any Participant in
such category or categories as the Plan Committee may
designate from time to time.
(vi) Irrevocability of Investment Designation. Effective
January 1, 1995, or such later date determined by the Plan
Committee, once a Participant has designated the investment of
his Account attributable to salary reductions or voluntary
contributions into Qualifying Employer Securities, such
Accounts shall remain invested in Qualifying Employer
Securities.
(vii) Sole and Exclusive Power of Participants. The right to
designate investment categories under this Section 10.1 shall
be the sole and exclusive investment power granted to
Participants. Neither the Trustee nor the Plan Committee shall
be liable for any loss which results from the Participant
exercising such control under this Section 10.1.
(viii) Expenses. Any expense incurred by the Trustee or the
Plan Committee will be charged directly against the value of
the Account of the Participant on whose behalf such expense is
incurred. The Trustee or the Plan Committee may allocate
expenses to individual Accounts or commingled Accounts on a
nondiscriminatory basis.
3. Effective January 1, 1995, Section 10.7 shall be amended to
read in its entirety as follows:
Section 10.7 Vote of Qualifying Employer Securities Held in
Trust. If the Employer securities of the Company are not
4
<PAGE>
publicly traded and if more than 10% of the total Plan assets
are securities of the Company, then for voting purposes, each
Participant shall be credited with his pro rata portion
(including fractional shares) of the Qualifying Employer
Securities allocated to his Account which are not encumbered.
Each Participant shall be entitled to vote the pro rata
portion of Qualifying Employer Securities allocable to him
under this Section 10.7. Unreleased Qualifying Employer
Securities shall be voted by the Trustee. The Plan Committee
shall certify to the Employer the number of shares to be voted
by each Participant if an event occurs which requires a vote
of such shares. To the extent the Participants do not vote
Qualifying Employer Securities under this Section 10.7, the
Plan Committee shall vote such Qualifying Employer Securities.
If the Employer securities of the Company are publicly traded
or if the Employer securities of the Company are not publicly
traded but not more than 10% of the total Plan assets are
securities of the Company, then the participants shall not be
entitled to vote the pro rata portion of Qualifying Employer
Securities allocable to them under this Section 10.7 and the
Plan Committee shall vote all Qualifying Employer Securities
held in the Trust.
3. Any inconsistent provisions of the Plan shall be read
consistent with this Amendment.
4. Except as amended above, the Company hereby affirms and
readopts each and every other provision of the plan and trust.
5. Except as otherwise provided above, the effective date of
this Amendment shall be January 1, 1989.
IN WITNESS WHEREOF, General Communication, Inc. has executed this
Amendment by its duly authorized officers as of the 1st day of September, 1995.
[SEAL] GENERAL COMMUNICATION, INC.
ATTEST: /s/ Ronald A. Duncan
By: /s/ John M. Lowber
Secretary
5
<PAGE>
EXHIBIT 4.3.8
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the board resolution attached hereto as Exhibit 4.3.8A is a true and correct
copy of a resolution duly adopted by the Board of Directors of General
Communication, Inc. at its meeting held on February 9, 1995.
Executed this 20th day of September, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 20th day of September, 1995.
/s/ Saundra A. Knox
Notary Public in and for Alaska
My Commission Expires: 10/06/98
Amendment to Registration Statement (S-8)
ASS0075D Page 17
<PAGE>
EXHIBIT 4.3.8A
RESOLUTION
RESOLVED, that the Board of Directors of General Communication, Inc.
approve increasing the allocation of Class A common stock for acquisition by the
Company's Qualified Employee Stock Purchase Plan by 800,000 shares ("Plan
Stock");
RESOLVED FURTHER, that the Board approves filing an amendment to the
existing registration statement pursuant to the federal Securities Act of 1933,
as amended ("Securities Act"), and in particular, in the format of Form S-8
where such amendment will pertain specifically to the registration of the offer
of the Plan Stock and such Plan Stock will be offered or acquired through the
Plan, as amended on this date; and
RESOLVED FURTHER, that the president and other officers of the Company
are directed to take such steps as are necessary to register the offer of the
Plan Stock and otherwise to be in compliance with the Securities Act and other
securities laws.
Amendment to Registration Statement (S-8)
ASS0075D Page 18
<PAGE>
EXHIBIT 5.2
September 26, 1995
Ronald A. Duncan, President
General Communication, Inc.
2550 Denali Street, Suite 1000
Anchorage, Alaska 99503
Re: Opinion As To Legality of Shares To Be Issued Pursuant To General
Communication, Inc. Qualified Employee Stock Purchase Plan; Our
File No. 618.0620
Dear Mr. Duncan:
You have requested an opinion from this firm on behalf of General
Communication, Inc. ("Company"), in connection with the shares of common stock
of the Company ("Shares") to be issued in conjunction with the Company's revised
Qualified Employee Stock Purchase Plan ("Plan").
It is this firm's understanding that the facts surrounding these
proposed transactions are represented by the Company as follows ("Facts"):
1. The Plan was adopted by the board of directors of the Company
("Board") by resolution at its December 17, 1986 meeting
called and conducted in accordance with the Restated Articles
of Incorporation and Bylaws of the Company ("Articles" and
"Bylaws", respectively), and the Plan was approved by the
Company's then sole shareholder, Western Tele-Communications,
Inc., by resolution at the Company's shareholder meeting held
on December 17, 1986; and the Plan was later amended by the
Board on June 4, 1992 to comply with changes to the federal
Rule 16b-3, on March 24, 1993 to provide for an increased
allocation of stock to the Plan in the amount of 700,000
shares of Class A common stock and 100,000 shares of Class B
common stock, on October 20, 1994 to comply with the Internal
Revenue Code of 1986, as amended, and to allow participating
eligible employees to choose to invest in securities other
than the common stock of the Company, on February 9, 1995 to
provide for an increased allocation of stock to the Plan in
the form of the Shares, i.e., 800,000 shares of Class A common
stock, and on September 1, 1995 to comply with other
provisions of the Internal Revenue Code of 1986, as amended,
Amendment to Registration Statement (S-8)
ASS0075D Page 19
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Ronald A. Duncan
September 26, 1995
Page 2
primarily related to investment responsibility and the
relationship between the Plan Committee and the Trustee;
2. The Articles provide that the Company has the power to issue
and sell any stock and further expressly provides for the
issuance of Class A common stock and Class B common stock;
3. The Plan provides for the acquisition of Class A and Class B
common stock of the Company by the Plan on behalf of qualified
employees, and there are shares available for issuance by the
Company under the Plan and pursuant to the Articles;
4. The material provisions of the Articles and Bylaws pertaining
to the issuance of Class A common stock and Class B common
stock in effect as of the date of this letter were those in
effect as of November 25, 1986 with the exception that the
number of authorized shares of Class A and Class B common
stock was increased in subsequent amendments to the Articles;
5. The Company was incorporated as an Alaska corporation and
received a Certificate of Incorporation dated July 16, 1979
from the Alaska Department of Commerce and Economic
Development;
6. The Company is in good standing with respect to the reporting
and corporation tax requirements of the Alaska Corporations
Code to which the Company is subject, and the Company is
otherwise validly existing as an Alaska corporation pursuant
to the laws of the State of Alaska with all requisite powers
to own property and to conduct its business in the manner
contemplated by the Articles and Bylaws;
Copies of the Articles and Bylaws, as amended and revised,
respectively, Certificate of Incorporation, the above referenced resolutions,
and the Plan have been delivered to this firm. We have reviewed these documents.
The Articles provide that the Company is organized for the purposes of
transacting any and all lawful business for which corporations may be
incorporated under the Alaska Corporations Code.
Based upon the foregoing Facts, we are of the opinion as follows.
Amendment to Registration Statement (S-8)
ASS0075D Page 20
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Ronald A. Duncan
September 26, 1995
Page 2
Assuming due compliance with applicable federal and state securities laws, (1)
the Shares will, when issued through the Plan, represent newly created and
legally issued, fully paid, and non-assessable shares of Class A common stock in
the Company or shares of Class B common stock of the Company, as the case may
be, and (ii) each holder of a Share will be entitled to the benefits of a
stockholder pro rata based on ownership of outstanding shares of the respective
class of common stock of the Company.
This letter must not be quoted or referred to in the Company's
financial statements or provided to persons other than the officers and
directors of the Company without prior consultation with us or our prior written
consent. The firm is aware of the Company's intent to and consents to the use of
this letter as an exhibit in an amendment to Form S-8 registration with the
Securities and Exchange Commission pertaining to the Shares to be allocated to
the Plan.
Sincerely,
WOHLFORTH, ARGETSINGER,
JOHNSON & BRECHT
/s/
J. J. Brecht
Amendment to Registration Statement (S-8)
ASS0075D Page 21
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EXHIBIT 24.1
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, of our name as special counsel to
General Communication, Inc. in the preparation of the Prospectus and the
rendering of certain opinions including an opinion as to the legality of the
shares.
WOHLFORTH, ARGETSINGER, JOHNSON
& BRECHT,
A Professional Corporation
/s/
Anchorage, Alaska
September 26, 1995
Amendment to Registration Statement (S-8)
ASS0075D Page 22
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EXHIBIT 24.2
CONSENT OF LEGAL COUNSEL
We hereby consent to the use, in the Prospectus as outlined in
Securities and Exchange Commission Form S-8, of our name as special tax counsel
to General Communication, Inc. in the preparation of the Prospectus.
/s/
HARRIS, ORR, WAKAYAMA & MASON,
a Professional Limited Liability Company
Seattle, Washington
September 1, 1995
Amendment to Registration Statement (S-8)
ASS0075D Page 23
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EXHIBIT 24.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
General Communication, Inc.:
We consent to the use of our report dated March 17, 1995 on the consolidated
financial statements of General Communication, Inc. and subsidiaries as of
December 31, 1994 and 1993 and for each of the years in the three-year period
ended December 31, 1994, and the consent to the use of our report dated February
24, 1995, on the financial statements of General Communication, Inc. Employee
Stock Purchase Plan as of December 31, 1994 and 1993 and for each of the years
in the three-year period ended December 31, 1994, incorporated herein by
reference and to the reference to our firm under the heading "Experts."
/s/
KPMG PEAT MARWICK LLP
Anchorage, Alaska
September 25, 1995
Amendment to Registration Statement (S-8)
ASS0075D Page 24
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EXHIBIT 28.3
CERTIFICATE OF SECRETARY
I, JOHN M. LOWBER, the duly elected and acting Secretary of General
Communication, Inc., an Alaska corporation, do hereby certify and declare that
the Board of Directors at its April 21, 1994 meeting nominated and named Tami
Graff to serve as a member of the corporation's Qualified Employee Stock
Purchase Plan Committee, replacing Carrie Smee.
Executed this 20th day of September, 1995, at Anchorage, Alaska.
GENERAL COMMUNICATION, INC.
By: /s/
John M. Lowber, Secretary
SUBSCRIBED AND SWORN TO before me this 20th day of September, 1995.
/s/ Saundra A. Knox
Notary Public in and for Alaska
My Commission Expires: 10/06/98
Amendment to Registration Statement (S-8)
ASS0075D Page 25
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