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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November, 1996
PVC CONTAINER CORPORATION
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(Exact name of registrant as specified in charter)
Delaware 0-30067 13-2616435
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(State of other jurisdiction (Commission (IRS employer
of incorporation) file number) identification no
401 Industrial Way West, Eatontown, New Jersey 07724
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(Address of principal executive offices)
Registrant's telephone number, including area code: (908) 542-0060
N/A
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(Former name or former address, if changed since last report)
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Item 5 Others Events
The Registrant adopted as of July 1, 1995 an Employee Stock Ownership
Trust and Plan to which only the Registrant makes contributions. The Plan was
first funded by the Registrant during its fiscal year ended June 30, 1996. The
Plan is described in the annexed exhibit.
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EXHIBITS
The following exhibit is filed herewith:
Exhibit No. Description Page Number
- ----------- ----------- -----------
10.13 Employee Stock Ownership Trust
and Plan-Effective July 1, 1995
("ESOP")
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: February 13, 1997 PVC CONTAINER CORPORATION
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(Registrant)
By: /s/ Phillip L. Friedman
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Phillip L. Friedman
President
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
10.13 Employee Stock Ownership Trust
and Plan-Effective July 1, 1995
("ESOP")
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PVC CONTAINER CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST
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PVC CONTAINER CORPORATION EMPLOYEE STOCK OWNERSHIP TRUST
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE Page
<S> <C>
I. Name....................................................... 2
II. Management and Control of Trust
Fund Assets.............................................. 2
The Trust Fund............................................. 2
General Powers............................................. 2
Compensation and Expenses.................................. 4
Exercise of Trustee's Duties............................... 4
Plan Administration........................................ 4
Initial Trustee Responsibilities........................... 4
III. Provisions Related to Investment
in Company Stock......................................... 4
Investment of Cash......................................... 4
Stock Dividends, Splits and Other
Capital Reorganizations.................................. 5
Voting of Shares and Tender
or Exchange Offers....................................... 5
Put Option................................................. 5
IV. Miscellaneous.............................................. 6
Disagreement as to Acts.................................... 6
Persons Dealing with Trustee............................... 6
Benefits May Not Be Assigned or
Alienated................................................ 6
Indemnification of Trustee................................. 6
Evidence................................................... 6
Waiver of Notice........................................... 6
Counterparts............................................... 6
Governing Laws............................................. 6
Successors, Etc............................................ 6
Successors to Employers.................................... 7
Action by Employers........................................ 7
V. No Reversion to Employers.................................. 7
VI. Change of Trustee.......................................... 7
Resignation................................................ 7
Removal of the Trustee..................................... 7
Duties of Resigning or Removed
Trustee and of Successor Trustee......................... 7
Filling Trustee Vacancy.................................... 8
VII. Additional Employers....................................... 8
VIII. Amendment and Termination.................................. 8
Amendment.................................................. 8
Termination................................................ 8
</TABLE>
PVC CONTAINER CORPORATION
EMPLOYEE STOCK OWNERSHIP TRUST
THIS AGREEMENT, made and entered into this __________ day of
__________________, 1996, by and between PVC CONTAINER CORPORATION, a Delaware
corporation (the "Company"), and Herbert S. Meeker and his successors and
assigns in the trust hereby evidenced, as Trustee (the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company has established an employee stock ownership plan
(as described in section 4975(e)(7) of the Internal Revenue Code of 1986, as it
may be amended from time to time (the "Code")), which is known as PVC Container
Corporation Employee Stock Ownership Plan (the "Plan"), a copy of which, as
amended from time to time, will be filed with the Trustee; and
<PAGE> 3
WHEREAS, the Plan is established for the exclusive benefit of the
eligible employees of the Company and those of any Related Company (as defined
in Article VII) which adopts the Plan and becomes a party to this Trust
Agreement as provided in Article VII (the Company and the Related Companies that
are parties hereto are sometimes referred to below collectively as the
"Employers" and individually as an "Employer").
NOW, THEREFORE, and pursuant to the authority delegated to the
undersigned officers of the Company by resolution of its Board of Directors
adopted on June 28, 1996, IT IS AGREED, by and between the parties hereto, that
the trust provisions shall constitute the agreement between the Company and the
Trustee in connection with the Plan; and
IT IS FURTHER AGREED, that the Trustee hereby accepts its appointment
as such under this Trust Agreement, effective as of the day and year first
written above; and
IT IS FURTHER AGREED, by and between the parties hereto as follows:
ARTICLE I - NAME
This Trust Agreement and Trust hereby evidenced shall be known as "PVC
CONTAINER CORPORATION EMPLOYEE STOCK OWNERSHIP TRUST."
ARTICLE II - MANAGEMENT AND CONTROL OF TRUST FUND ASSETS
II-1. THE TRUST FUND. The Trust Fund as at any date means all property
of every kind then held by the Trustee. The Trustee may manage, administer and
invest all contributions made by the several Employers under the Plan as one
Trust Fund. If, for any reason, it becomes necessary to determine the portion of
the Trust Fund allocable to employees and former employees of any Employer as of
any date, the Trustee shall specify such date as an Accounting Date, and after
all adjustments required under the Plan as of that Accounting Date have been
made, the portion of the Trust Fund attributable to such employees and former
employees shall be determined and shall consist of an amount equal to the
aggregate of the account balances of employees and former employees of that
Employer plus an amount equal to any contributions made by that Employer since
the close of the immediately preceding Plan Year.
II-2. GENERAL POWERS. Subject to the provisions of paragraphs II-4 and
II-5 and Article III, with respect to the Trust Fund, the Trustee shall have the
following powers, rights and duties in addition to those provided elsewhere in
this Trust Agreement, the Plan or by law:
(a) to receive and to hold all contributions paid to it under
the Plan; provided, however, that the Trustee shall have no duty to require any
contributions to be made to it, to determine that the contributions received by
it comply with the provisions of the Plan or with any resolution of the Board of
Directors of any Employer providing therefor;
(b) to retain in cash (pending investment, reinvestment or the
payment of dividends) such reasonable amount as may be required for the proper
administration of the Trust and to invest such cash as provided in paragraph
III-1;
(c) to make payments from the Trust Fund to such persons, in
such manner, at such times and in such amounts as the Committee (as described in
paragraph II-5) shall direct without inquiring as to whether a payee is entitled
to the payment, or as to whether a payment is proper, and without liability for
a payment made in good faith without actual notice or knowledge of the changed
condition or status of the payee;
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(d) as directed by the Committee, to borrow from any lender
(including the Company or any Employer) to finance the acquisition of Company
Stock (as defined in the Plan), giving its note as Trustee with such reasonable
interest and security (which shall only consist of Company Stock to the extent
that proceeds of the loan are used to purchase Company Stock or to refinance a
prior Acquisition Loan (as defined in the Plan)) for the loan as may be
appropriate or necessary, provided that such borrowing shall comply with the
applicable provisions of the Plan;
(e) as directed by the Committee, to vote any stocks
(including Company Stock as provided in the Plan), bonds or other securities
held in the Trust, or otherwise consent to or request any action on the part of
the issuer in person or by proxy;
(f) as directed by the Committee, to deposit securities in any
voting trust, or with any protective or like committee, or with a trustee or
with depositories designated thereby;
(g) as directed by the Committee, to contract or otherwise
enter into transactions between itself, as Trustee, and the Company or any
Employer or any Company shareholder, for the purpose of acquiring or selling
Company Stock and absent any direction by the Committee, shall retain such
Company Stock;
(h) as directed by the Committee, to compromise, contest,
arbitrate, settle or abandon claims and demands;
(i) as directed by the Committee, to begin, maintain or defend
any litigation necessary in connection with the investment, reinvestment and
administration of the Trust;
(j) to retain any funds or property subject to any dispute
without liability for the payment of interest, or to decline to make payment or
delivery thereof until final adjudication is made by a court of competent
jurisdiction;
(k) to report to the Committee and the Employers as of the
last day of each Plan Year, as of any Valuation Date (or as soon thereafter as
practicable), or at such other times as may be required under the Plan, the then
"Net Worth" of the Trust Fund, that is, the fair market value of all property
held in the Trust Fund, reduced by any liabilities other than liabilities to
participants in the Plan and their Beneficiaries, as determined by the Trustee;
(l) to furnish to the Committee and the Employers an annual
written account and accounts for such other periods as may be required under the
Plan, showing the Net Worth of the Trust Fund at the end of the period, all
investments, receipts, disbursements and other transactions made by the Trustee
during the accounting period, and such other information as the Trustee may
possess which the Committee or the Employers require in order to comply with
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"). All valuations of shares of Company Stock, which are not
publicly traded on a national securities market or exchange, shall be made by an
"Independent Appraiser" (as described in section 401(a)(28) of the Code);
(m) to pay any estate, inheritance, income or other tax,
charge or assessment attributable to any benefit which, as directed by the
Committee, it shall or may be required to pay out of such benefit; and to
require before making any payment such release or other document from any taxing
authority and such indemnity from the intended payee as the Trustee shall deem
necessary for its protection;
(n) to employ agents, attorneys, actuaries, accountants or
other persons (who also may be employed by or may represent any Employer) for
such purposes as the Trustee considers desirable;
(o) to assume, until advised to the contrary, that the Trust
evidenced by this Trust Agreement is qualified under section 401(a) of the Code
and is entitled to tax exemption under section 501(a) thereof;
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(p) to have the authority to invest and reinvest the assets of
the Trust Fund in real or personal property of any kind, except that assets
attributable to Employer contributions shall, at such time or times as directed
by the Committee, primarily be invested in Company Stock; and
(q) to perform any and all other acts in its judgment
necessary or appropriate for the proper and advantageous management, investment
and distribution of the Trust Fund.
II-3. COMPENSATION AND EXPENSES. The Trustee shall be entitled to
reasonable compensation for its services, as agreed to between the Company and
Trustee from time to time in writing. The Trustee is authorized to pay from the
Trust Fund such fees and all of the Trustee's expenses, taxes and charges
(including fees of persons employed by them in accordance with subparagraph
II-3(n)) incurred in connection with the collection, administration, management,
investment, protection and distribution of the Trust Fund to the extent that
they are not paid directly by the Employers.
II-4. EXERCISE OF TRUSTEE'S DUTIES. The Trustee shall discharge its
duties hereunder solely in the interest of the Plan Participants and other
persons entitled to benefits under the Plan, and:
(a) for the exclusive purpose of:
(i) providing benefits to Participants and other
persons entitled to benefits under the Plan;
and
(ii) defraying reasonable expenses of
administering the Plan;
(b) with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person 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; and
(c) in accordance with the documents and instruments governing
the Plan insofar as such documents and instruments are consistent with the
provisions of ERISA.
II-5. PLAN ADMINISTRATION. Except as provided in paragraph II-6 below,
the Plan shall be administered by a committee appointed by the Board of
Directors of the Company (the "Committee"). The Secretary of the Company shall
from time to time, certify the names of the members of the Committee.
II-6. INITIAL TRUSTEE RESPONSIBILITIES. Notwithstanding any provision
to the contrary, if the Trustee is offered the opportunity to purchase a
majority of the outstanding Company Stock (determined on an post-transaction
basis) and to enter into a series of related transactions which would result in
the Trustee owning all of the outstanding Company Stock (determined on an
post-transaction basis), the Trustee is authorized to independently determine
whether to participate in such purchase and series of related transactions, and
to negotiate any and all terms of its participation in such transactions in its
sole discretion without direction from the Committee.
ARTICLE III - PROVISIONS RELATED TO INVESTMENT IN COMPANY STOCK
III-1. INVESTMENT OF CASH. If an Employer's contribution made pursuant
to the provisions of the Plan for any Plan Year is in cash, such cash shall be
used first to make any scheduled or accelerated amortization payment on an
Acquisition Loan and, if any amounts remain thereafter, to purchase Company
Stock at such time as the Trustee is directed by the Committee. Subject to the
provisions of paragraph II-2 and applicable provisions of the Plan, any cash
dividends received by the Trustee on Company Stock held in the Trust Fund shall
be applied, at such time as the Committee directs after the receipt of such cash
dividends, to the purchase of additional shares
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of Company Stock. The Trustee is authorized to purchase Company Stock with the
assets contained in the participants' Individual Accounts. The Trustee is
further authorized to purchase Company Stock from the Company or from any
shareholder, and such stock may be outstanding, newly issued or treasury stock.
All such purchases must be at a price not in excess of fair market value, as
determined by an Independent Appraiser where such stock is not publicly traded.
Pending investment of cash in Company Stock, such cash may be invested in
savings accounts, certificates of deposit, high-grade short-term securities,
common or preferred stocks, bonds, or other investments, or may be held in cash.
Such investments may include any collective investment trust which provides for
the pooling of assets of plans described in section 401(a) of the Code and
exempt from tax under section 501(a) of the Code, including any such trust
maintained by the Trustee.
III-2. STOCK DIVIDENDS, SPLITS AND OTHER CAPITAL REORGANIZATIONS. Any
Company Stock received by the Trustee as a stock split or dividend or as a
result of a reorganization or other recapitalization of the Company shall be
allocated as of each Valuation Date under the Plan in proportion to the Company
Stock to which it is attributable.
III-3. VOTING OF SHARES AND TENDER OR EXCHANGE OFFERS. Company Stock
held in the Trust Fund shall be voted by the Trustee in the manner set forth in
the Plan. If any tender or exchange or similar offer to purchase all or any
portion of outstanding Company Stock is made by any person, the Trustee, in its
sole discretion and consistent with its duties described in paragraph II-4 will
decide whether to accept or reject the offer with respect to the shares of
Company Stock held in the Trust Fund.
III-4. PUT OPTION. If the distribution of a participant's Individual
Account is to be made in cash or the Trustee expects to incur substantial Trust
expenses which will not be paid directly by the Employers, and the Trustee
determines that the Trust Fund has insufficient cash to make anticipated
distributions or pay Trust expenses, the Trustee shall have a "put option" on
Company Stock it holds to the Company to the extent the Trustee reasonably
believes it necessary to meet such anticipated distributions and expenses. The
implementation of such a put option shall be pursuant to one or more of the
following arrangements as the Committee shall determine:
(a) The Trustee shall put Company Stock to the Company on a
Valuation Date in an amount sufficient to provide an amount of cash estimated in
good faith by the Committee to be sufficient to make anticipated distributions
from the Trust for payment of benefits or expenses until the next succeeding
Valuation Date.
(b) If permitted under applicable law, rulings and
regulations, and not a prohibited transaction under section 4975(c) of the Code
or Section 406 or 407 of ERISA (or a prohibited transaction exemption), the
Trustee, in its discretion, shall put Company Stock to the Company on a date
other than a Valuation Date, and shall be paid therefor the fair market value of
such Company Stock determined as of the next preceding Valuation Date.
(c) If permitted under applicable law, rulings, or
regulations, and is not a prohibited transaction under section 4975(c) of the
Code or Section 406 or 407 of ERISA (or a prohibited transaction exemption), the
Committee, at the request of the Trustee, shall cause the Employers to advance
to the Trustee the amounts needed to make distributions of benefits or payment
of expenses. Such amounts shall be reimbursed by the Trustee to the Employers,
with such interest as may be permitted under ERISA, as of the next succeeding
Valuation Date exercising its put option to the extent appropriate to make such
reimbursement.
(d) The Committee, in its discretion, may direct the Trustee
to cause a special valuation of the Company Stock to be made by an Independent
Appraiser as of the date of the put option to the Company, or it may cause
benefits to be distributed based on the value of a participant's Individual
Account as of the Valuation Date next succeeding the later of the participant's
termination date or the date for which payment is requested.
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(e) The Trustee may exercise a put option to the Company and
cause the fair market value of such Company Stock to be paid by the Company
pursuant to any other arrangement agreed upon by the Trustee and the Committee
to the extent permitted by applicable law, rulings and regulations.
ARTICLE IV - MISCELLANEOUS
IV-1. DISAGREEMENT AS TO ACTS. If there is a disagreement between the
Trustee and anyone as to any act or transaction reported in any accounting, the
Trustee shall have the right to have its account settled by a court of competent
jurisdiction.
IV-2. PERSONS DEALING WITH TRUSTEE. No person dealing with the Trustee
shall be required to see to the application of any money paid or property
delivered to the Trustee, or to determine whether the Trustee is acting pursuant
to any authority granted to it under this Trust Agreement or the Plan.
IV-3. BENEFITS MAY NOT BE ASSIGNED OR ALIENATED. The interests under
the Plan and this Trust Agreement of participants and other persons entitled to
benefits under the Plan are not subject to the claims of their creditors and may
not be voluntarily or involuntarily assigned, alienated or encumbered, except to
the extent provided in the Plan.
IV-4. INDEMNIFICATION OF TRUSTEE. To the extent permitted by applicable
law, the Trustee shall be indemnified by the Company against any and all
liabilities, settlements, judgments, losses, costs, and expenses (including
reasonable legal fees and expenses) of whatever kind and nature which may be
imposed on, incurred by or asserted against the Trustee by reason of the
performance or nonperformance of a Trustee's function if such action did not
constitute gross negligence or willful misconduct. Furthermore, the Company
agrees to indemnify the Trustee against any liability imposed as a result of a
claim asserted by any person or persons under Federal or state law where the
Trustee acts in good faith. The foregoing right of indemnification shall be in
addition to other rights of the Trustee by law or by reason of insurance
coverage of any kind. The Company may, at its own expense, and as allowed by
law, settle any claim asserted or proceeding brought against the Trustee when
such settlement appears to be in the best interests of the Company. If the
Company obtains fiduciary liability insurance to protect the Trustee, the
provisions of this paragraph IV-4 shall be applicable only to the extent that
such insurance coverage is insufficient.
IV-5. EVIDENCE. Evidence required of anyone under this Trust Agreement
may be by certificate, affidavit, document or other instrument which the person
acting in reliance thereon considers pertinent and reliable, and signed, made or
presented by the proper party.
IV-6. WAIVER OF NOTICE. Any notice required under this Trust Agreement
may be waived in writing by the person entitled thereto.
IV-7. COUNTERPARTS. This Trust Agreement may be executed in any number
of counterparts, each of which shall be deemed an original and no other
counterparts need be produced.
IV-8. GOVERNING LAWS. This Trust Agreement shall be construed and
administered according to the laws of the State of New Jersey to the extent that
such laws are not preempted by the laws of the United States of America.
IV-9. SUCCESSORS, ETC. This Trust Agreement shall be binding on the
Employers, the Trustee and their successors and on all persons entitled to
benefits under the Plan and their respective heirs and legal representatives.
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IV-10. SUCCESSORS TO EMPLOYERS. If provision is made for a successor to
any Employer or a purchaser of all or substantially all of any Employer's assets
to continue the Plan, such successor or purchaser shall be substituted for that
Employer under this Trust Agreement.
IV-11. ACTION BY EMPLOYERS. Any action required or permitted to be
taken by an Employer under this Trust Agreement shall be by resolution of its
Board of Directors or by a person or persons authorized by resolution of its
Board of Directors.
ARTICLE V - NO REVERSION TO EMPLOYERS
No part of the corpus or income of the Trust Fund shall revert to any
Employer or be used for, or diverted to, purposes other than for the exclusive
benefit of Participants and other persons entitled to benefits under the Plan,
except as provided below:
(a) Employer contributions under the Plan for the first Plan
Year are conditioned on the initial qualification of the Plan under section 401
(a) of the Code for that year, and, if the Plan does not so qualify, the Trustee
shall, upon written request of an Employer, return to that Employer the amount
of any contribution made by that Employer under the Plan for such year, reduced
by the amount of any losses thereon, increased by the amount of any increment
thereon, within one year after the date that qualification of the Plan is
denied, but only if an application for qualification is submitted within the
time prescribed by law;
(b) if a contribution or any portion thereof is made by an
Employer by a mistake of fact, the Trustee shall, upon written request of that
Employer, return the contribution or such portion, reduced by the amount of any
losses thereon, to that Employer within one year after the date of payment to
the Trustee;
(c) the contributions of each Employer under the Plan are
conditioned upon the deductibility thereof under section 404 of the Code, and,
to the extent any such deduction is disallowed, the Trustee shall, upon written
request of that Employer, return the amount of the contribution (to the extent
disallowed), reduced by the amount of any losses thereon, to that Employer
within one year after the date the deduction is disallowed; and
(d) if, upon termination of the Plan with respect to any
Employer, any amounts are held in a suspense account which are attributable to
the contributions of such Employer, and such amounts may not be credited to the
Individual Accounts of participants, such amounts will be returned to that
Employer as soon as practicable after the termination of the Plan with respect
to that Employer.
ARTICLE VI - CHANGE OF TRUSTEE
VI-1. RESIGNATION. The Trustee may resign at any time by giving thirty
(30) days advance written notice to the Company.
VI-2. REMOVAL OF THE TRUSTEE. The Company may, at its discretion,
remove a Trustee by written notice to the Trustee; provided, however that such
removal shall not be effective prior to the date such notice is given.
VI-3. DUTIES OF RESIGNING OR REMOVED TRUSTEE AND OF SUCCESSOR TRUSTEE.
If the Trustee resigns or is removed, it shall promptly transfer and deliver the
assets of the Trust Fund to the successor Trustee, after reserving such
reasonable amount as it shall deem necessary to provide for expenses and any
sums chargeable against the Trust Fund for which it may be liable. Within 120
days, the resigned or removed Trustee shall furnish to the Company and the
successor Trustee an account of its administration of the Trust from the date of
its last account. Each successor Trustee shall succeed to the title to the Trust
Fund vested in his predecessor without the
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signing or filing of any further instrument, but any resigning or removed
Trustee shall execute all documents and do all acts necessary to vest such title
or record in any successor Trustee. Each successor shall have all the powers,
rights and duties conferred by this Trust Agreement as if originally named
Trustee. No successor Trustee shall be personally liable for any act or failure
to act of a predecessor Trustee.
VI-4. FILLING TRUSTEE VACANCY. The Company may fill a vacancy in the
office of Trustee as soon as practicable by a writing filed with the person or
entity appointed to fill the vacancy and with the other Employers.
ARTICLE VII - ADDITIONAL EMPLOYERS
Any Related Company (as defined below) may with the consent of the
Company become a party to this Trust Agreement by:
(a) filing with the Company and the Trustee a certified copy
of a resolution of its Board of Directors to that effect; and
(b) filing with the Trustee a certified copy of a resolution
of the Board of Directors of the Company consenting to such action.
A "Related Company" is any corporation, trade or business during any
period in which it is, along with the Company, a member of a controlled group of
corporations, a group of trades or businesses under common control or an
affiliated service group, as described in sections 414(b), 414(c) and 414(m),
respectively, of the Code, and the regulations issued thereunder, and any other
entity required to be aggregated with the Company pursuant to regulations issued
under section 414(o) of the Code.
ARTICLE VIII - AMENDMENT AND TERMINATION
VIII-1. AMENDMENT. Subject to the provisions of Article V, the Company
reserves the right to amend the Trust Agreement at any time, except that no
amendment shall substantially change the rights, duties and liabilities of the
Trustee under this Trust Agreement without its consent.
VIII-2. TERMINATION. If the Plan, as applied to all of the Employers,
is terminated, all of the provisions of the Trust evidenced by this Trust
Agreement nevertheless shall continue in effect until the entire Trust Fund has
been distributed by the Trustee in accordance with the provisions of the Plan.
If the Plan, as applied to any Employer, is terminated, all of the provisions of
the Trust evidenced by this Trust Agreement, as applied to that Employer,
nevertheless shall continue in effect until the portion of the Trust Fund
attributable to employees and former employees of that Employer has been
distributed in its entirety by the Trustee in accordance with the provisions of
the Plan.
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<PAGE> 10
IN WITNESS WHEREOF, the Company and Trustee have caused these presents
to be signed and their seals to be hereunto affixed and attested by their duly
authorized officers all as of the day and year first above written.
ATTEST: PVC CONTAINER CORPORATION
By:
- ----------------------------- ----------------------
Title: Title:
(Corporate Seal)
ATTEST: HERBERT S. MEEKER
- ----------------------------- --------------------------
Trustee
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<PAGE> 11
STATE OF )
: ss.:
COUNTY OF )
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
No. ; that he is of PVC CONTAINER
CORPORATION, the corporation described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that he signed his name thereto by
like order.
----------------------------------
Notary Public
(Notarial Seal)
<PAGE> 12
STATE OF )
: ss.:
COUNTY OF )
On the day of , 1996, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that he resides at
No. ; that he is the individual described in, and who executed, the
foregoing instrument; and that he duly acknowledged to me that he executed the
same.
----------------------------------
Notary Public
(Notarial Seal)
<PAGE> 13
PVC CONTAINER CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN
<PAGE> 14
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I Definitions.......................................................................................... I-1
Section 1.1 Acquisition Loan................................................................. I-1
Section 1.2 Administrative Committee......................................................... I-2
Section 1.3 Affiliated Entity................................................................ I-2
Section 1.4 Allocated Company Stock.......................................................... I-2
Section 1.5 Annual Compensation.............................................................. I-2
Section 1.6 Beneficiary...................................................................... I-2
Section 1.7 Benefit Payment.................................................................. I-3
Section 1.8 Board of Directors............................................................... I-3
Section 1.9 Code............................................................................. I-3
Section 1.10 Company......................................................................... I-3
Section 1.11 Company Stock................................................................... I-3
Section 1.12 Company Stock Account........................................................... I-3
Section 1.13 Compensation..................................................................... I-3
Section 1.14 Covered Employee................................................................ I-4
Section 1.15 Effective Date.................................................................. I-4
Section 1.16 Employee........................................................................ I-4
Section 1.17 Employer........................................................................ I-4
Section 1.18 Employment Commencement Date.................................................... I-4
Section 1.19 Entry Date...................................................................... I-5
Section 1.20 ERISA........................................................................... I-5
Section 1.21 Financed Shares................................................................. I-5
Section 1.22 Highly Compensated Employee..................................................... I-5
Section 1.23 Hour of Service................................................................. I-6
Section 1.24 Individual Account.............................................................. I-7
Section 1.25 Investment Account.............................................................. I-7
Section 1.26 Member.......................................................................... I-7
Section 1.27 Named Fiduciary................................................................. I-7
Section 1.28 Normal Retirement Date.......................................................... I-7
Section 1.29 One-Year Break in Service....................................................... I-7
Section 1.30 Plan............................................................................ I-8
Section 1.31 Plans........................................................................... I-8
Section 1.32 Plan Year....................................................................... I-8
Section 1.33 Separate Fund................................................................... I-8
Section 1.34 Separation from Service......................................................... I-8
Section 1.35 Spousal Consent................................................................. I-8
Section 1.36 Spouse.......................................................................... I-9
Section 1.37 Trust Agreement................................................................. I-9
Section 1.38 Trustees........................................................................ I-9
Section 1.39 Trust Fund...................................................................... I-9
Section 1.40 Valuation Date.................................................................. I-9
Section 1.41 Year of Service................................................................. I-9
</TABLE>
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<PAGE> 15
<TABLE>
<S> <C>
ARTICLE II Participation............................................................................... II-1
Section 2.1 Eligibility.............................................................. II-1
Section 2.2 Rehired Former Employee.................................................. II-1
Section 2.3 Participation............................................................ II-1
ARTICLE III Contributions.............................................................................. III-1
Section 3.1 Employer Contributions................................................... III-1
Section 3.2 Employee Contributions................................................... III-1
Section 3.3 Allocation of Company Stock.............................................. III-1
Section 3.4 Allocations of Cash...................................................... III-3
Section 3.5 Maximum Annual Additions................................................. III-3
ARTICLE IV Trust Fund.................................................................................. IV-1
Section 4.1 General.................................................................. IV-1
Section 4.2 Investments in Company Stock............................................. IV-1
Section 4.3 Acquisition Loans........................................................ IV-1
Section 4.4 Diversification of Company Stock......................................... IV-2
ARTICLE V Members' Accounts............................................................................ V-1
Section 5.1 Individual Accounts...................................................... V-1
Section 5.2 Valuation................................................................ V-1
ARTICLE VI Company Stock............................................................................... VI-1
Section 6.1 Voting and Tendering..................................................... VI-1
Section 6.2 Dividends................................................................ VI-1
ARTICLE VII Retirement Benefits........................................................................ VII-1
Section 7.1 Normal Retirement........................................................ VII-1
Section 7.2 Retirement After Normal Retirement Date.................................. VII-1
Section 7.3 Normal Form of Benefit................................................... VII-1
Section 7.4 Time for Payment of Benefits............................................. VII-2
Section 7.5 Death Benefits........................................................... VII-2
Section 7.6 Designation of Beneficiary............................................... VII-2
Section 7.7 Incapacity............................................................... VII-3
Section 7.8 Spendthrift Provision.................................................... VII-4
Section 7.9 Proof of Claim........................................................... VII-6
ARTICLE VIII Vesting................................................................................... VIII-1
Section 8.1 General.................................................................. VIII-1
Section 8.2 Forfeitures.............................................................. VIII-1
Section 8.3 Manner of Payment........................................................ VIII-1
ARTICLE IX Rights on Company Stock................................... IX-1
Section 9.1 Right of First Refusal................................................... IX-1
Section 9.2 Stock Transfer Restrictions.............................................. IX-1
Section 9.3 Puts..................................................................... IX-2
</TABLE>
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<TABLE>
<S> <C>
ARTICLE X Committee..................................................................................... X-1
Section 10.1 Appointment.............................................................. X-1
Section 10.2 Duties and Powers........................................................ X-1
Section 10.3 Reimbursement............................................................ X-3
Section 10.4 Self Interest............................................................ X-3
Section 10.5 Records.................................................................. X-3
Section 10.6 Reports.................................................................. X-3
Section 10.7 Liability................................................................ X-3
Section 10.8 Claims and Claims Review................................................. X-4
Section 10.9 Review Committee......................................................... X-5
ARTICLE XI Amendment of the Plan........................................................................ XI-1
Section 11.1 General.................................................................. XI-1
ARTICLE XII Termination of the Plan..................................................................... XII-1
Section 12.1 General.................................................................. XII-1
Section 12.2 Termination.............................................................. XII-1
Section 12.3 Distribution of Trust Fund............................................... XII-1
ARTICLE XIII Miscellaneous Provisions................................................................... XIII-1
Section 13.1 Construction............................................................. XIII-1
Section 13.2 Limitation of Rights..................................................... XIII-1
Section 13.3 Limitation of Liability.................................................. XIII-1
Section 13.4 Mergers and Consolidations of Plans or Transfers of Assets............... XIII-1
Section 13.5 Gender and Number........................................................ XIII-2
ARTICLE XIV TOP-HEAVY PROVISIONS........................................................................ XIV-1
Section 14.1 Applicability............................................................ XIV-1
Section 14.2 Determination of Top-Heavy Plan.......................................... XIV-1
Section 14.3 Top-Heavy Rules.......................................................... XIV-4
ARTICLE XV Revocability................................................................................. XV-1
Section 15.1 General.................................................................. XV-1
ARTICLE XVI Direct Rollovers............................................................................ XVI-1
Section 16.1 - General................................................................. XVI-1
Section 16.2 - Eligible rollover distribution.......................................... XVI-1
Section 16.3 - Eligible retirement plan................................................ XVI-1
Section 16.4 - Distributee............................................................. XVI-2
Section 16.5 - Direct to rollover...................................................... XVI-2
</TABLE>
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<PAGE> 17
EMPLOYEE STOCK OWNERSHIP PLAN
ESTABLISHMENT AND ADOPTION of the PVC CONTAINER CORPORATION
EMPLOYEE STOCK OWNERSHIP PLAN (the "Plan"), effective as of July 1, 1995, by PVC
CONTAINER CORPORATION (the "Company").
W I T N E S S E T H:
WHEREAS, the Company wishes to establish and adopt an employee
stock ownership plan within the meaning of Section 4975(e)(7) of the Internal
Revenue Code of 1986, as amended for the purpose of investing primarily in
Company stock and enabling participating employees to share in the growth and
prosperity of the Company through ownership of stock of the Company, and
WHEREAS, the Company wishes to comply with the Employee
Retirement Income Security Act of 1974, as amended, and the regulations issued
thereunder;
NOW, THEREFORE, effective as of July 1, 1995, the Company
hereby establishes, adopts and states the Plan in its entirety as follows:
ARTICLE I
DEFINITIONS
When used herein, the following terms shall have the following
meanings unless the context clearly indicates otherwise:
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<PAGE> 18
Section 1.1 Acquisition Loan - A loan or other extension of
credit used by the Plan to finance the acquisition of Company Stock, including,
but not limited to, an installment or other debt obligation from the Plan to a
"party in interest" (as defined by Section 3(14) of ERISA) and/or a
"disqualified person" (as defined by Section 4975(e)(2) of the Code), and any
refinancing of any such loan or other extension of credit.
Section 1.2 Administrative Committee - The committee provided
for in Section 10.2 hereof with duties and powers relating to the general
operation and administration of the Plan.
Section 1.3 Affiliated Entity - An entity, regardless of
whether such entity has adopted the Plan, within the controlled or affiliated
service group of an Employer as determined by Sections 414(b), (c) and (m) of
the Code and, solely for purposes of Section 3.5, under the rules set forth in
Section 415(h) of the Code.
Section 1.4 Allocated Company Stock - Company Stock allocated
to Members' Company Stock Accounts as provided in Section 5.1(i) hereof.
Section 1.5 Annual Compensation - The base compensation not
exceeding $150,000 (as adjusted from time to time by the Secretary of the
Treasury or delegate thereof) paid to an Employee by an Employer during a Plan
Year, including Employer contributions made as a result of a salary deferral
agreement under Section 125 or Section 401(k) of the Code, but excluding
bonuses, overtime pay and other extra compensation, expense reimbursements and
Employer contributions paid under the Plan or any other welfare or qualified
deferred compensation plan (except as set forth above).
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<PAGE> 19
Section 1.6 Beneficiary - The person designated to receive
payments in the event of the death of a Member, as more fully set forth in
Section 7.6 hereof.
Section 1.7 Benefit Payment Date - The date benefits commence
to be paid to a Member or Beneficiary after the Member's Separation from Service
under the provisions of the Plan, but in no event later than April 1st following
the year in which a Member attains the age of 70 1/2.
Section 1.8 Board of Directors - The Board of Directors of the
Company.
Section 1.9 Code - Internal Revenue Code of 1986, as amended
from time to time, and the regulations in effect thereunder.
Section 1.10 Company - PVC Container Corporation, a Delaware
corporation and its successors.
Section 1.11 Company Stock - Common stock of the Company.
Section 1.12 Company Stock Account - The account described in
Section 5.1(i) hereof maintained for each member for Allocated Company Stock.
Section 1.13 Compensation - The total of a Member's wages,
salary and other remuneration received for personal services actually rendered
in the course of employment with an Employer or Affiliated Entity (including,
but not limited to, commissions, compensation for services on the basis of a
percentage of profits and bonuses), and excluding the following:
(1) Employer contributions to a plan of deferred
compensation which are not includible in the Member's gross income for the
taxable year in which contributed, or Employer contributions under a simplified
employee pension plan to the extent such
I-3
<PAGE> 20
contributions are deductible by the Member, or any distributions from a plan of
deferred compensation;
(2) amounts realized from the exercise of a
nonqualified stock option or when restricted stock (or property) held by the
Member either becomes freely transferable or is no longer subject to a
substantial risk or forfeiture; and
(3) amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option.
Section 1.14 Covered Employee - with respect to a Plan Year,
any Employee who is employed by an Employer, except independent contractors,
leased employees within the meaning of Section 414(n)(2) of the Code and
Employees covered by a collective bargaining agreement with an Employer in the
negotiation of which retirement benefits were the subject of good faith
bargaining between the Employer and the employee representative and which does
not provide for the participation of the represented employees in the Plan.
Section 1.15 Effective Date - July 1, 1995.
Section 1.16 Employee - Any person employed by an Employer or
Affiliated Entity, including any leased employee within the meaning of Section
414(n)(2) of the Code.
Section 1.17 Employer - The Company, and each other
subsidiary, affiliate, successor or other corporation that shall, with the
consent of the Board of Directors, elect to adopt the Plan.
Section 1.18 Employment Commencement Date - (i) The date an
Employee is first credited with an Hour of Service with an Employer or an
Affiliated Entity and (ii) the date an Employee is first credited with an Hour
of Service following a Separation from Service provided
I-4
<PAGE> 21
such Employee is not employed or re-employed by an Employer or Affiliated Entity
within 12 months of such Separation from Service.
Section 1.19 Entry Date - July 1, 1995 and each January 1 and
July 1 thereafter.
Section 1.20 ERISA - Employee Retirement Income Security Act
of 1974, as amended from time to time.
Section 1.21 Financed Shares - Shares of Company Stock which
(i) satisfy the definition of "employer securities" under Section 409(l) of the
Code, (ii) are acquired by the Plan with the proceeds of an Acquisition Loan,
and (iii) are held in a suspense account pending release and allocation, as
provided in Section 3.3, to Members' Individual Accounts upon the loan
repayments.
Section 1.22 Highly Compensated Employee - Except as otherwise
provided in this Section 1.22, an Employee who during the Plan Year or the
immediately preceding Plan Year, or a former Employee who at any time after
attaining age 55 or at the time of his Separation from Service, (i) owns Company
Stock exceeding 5% or possessing more than 5% of the total voting power of all
outstanding Company Stock (a "5% owner"), (ii) earns more than $100,000 from all
Employers and Affiliated Entities, (iii) earns more than $66,000 from all
Employers and Affiliated Entities and is among the highest paid one-fifth of all
Employees, or (iv) is the highest paid officer of an Employer or Affiliated
Entity or an officer of an Employer or Affiliated Entity earning more than 150%
of the dollar limit set forth in Section 415(c)(1)(B) of the Code.
The $100,000 and $66,000 limitation set forth above shall be
deemed revised in accordance with adjustments by the Secretary of the Treasury
or delegate thereof. Notwithstanding the above
I-5
<PAGE> 22
provision, with respect to a Plan Year, an Employee (other than a 5% owner for
such Plan Year or the immediately preceding Plan Year) who first becomes
eligible to be treated as a Highly Compensated Employee during such Plan Year
and is not among the highest paid 100 Employees for such Plan Year shall not be
treated as a Highly Compensated Employee for such Plan Year.
For purposes of the above provisions, no more than the lesser
of (i) 50 Employees or (ii) the greater of (a) 3 or (b) 10% of all Employees
shall be treated as officers. Further, an Employee who is a member of the family
of a 5% owner or one of the 10 Highly Compensated Employees with the greatest
compensation shall not be treated as a separate Employee and such Employee's
compensation shall be treated as paid to the 5% owner or Highly Compensated
Employee, as the case may be. For purposes of this Section 1.22, an "Employee"
shall not include any person not participating in the Plan: (i) who has not
completed at least 6 months of service, (ii) who normally work less than 17 1/2
hours per week, (iii) who normally works not more than 6 months during a Plan
Year, (iv) who have not attained age 21, or (v) who (except to the extent
provided in applicable treasury regulations) are included in a unit of employees
covered by an agreement which the U.S. Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and the
Employer.
Section 1.23 Hour of Service - Each hour for which an Employee
is directly or indirectly paid, or entitled to payment, by an Employer or
Affiliated Entity for the performance of duties; these hours shall be determined
in accordance with the rules set forth in Department of Labor Regulations
Section 2530.200b-2(b) and shall be credited to the Employee for the computation
period or periods in which the duties were performed or for which the payment
pertains, rather than the computation period in which the payment is made.
I-6
<PAGE> 23
Notwithstanding anything contained herein to the contrary, an
Employee shall be credited with (i) Hours of Service if such credit is required
by any Federal law and is not otherwise credited hereunder.
Section 1.24 Individual Account - A Member's account as
defined in Section 5.1 hereof.
Section 1.25 Investment Account - The account described in
Section 5.1(ii) hereof to which is allocated, on behalf of a Member, investments
of the Plan other than Company Stock, if any.
Section 1.26 Member - A person who (i) is a Covered Employee
and has commenced participation in the Plan in accordance with Article II hereof
or (ii) has participated in the Plan in accordance with Article II hereof and
has a credit balance in an Individual Account.
Section 1.27 Named Fiduciary - The Administrative Committee
shall be a Named Fiduciary for the administration of benefits under the Plan and
Members shall be the Named Fiduciaries with respect to the voting and tendering
of Allocated Company Stock and Financed Shares held by the Trust Fund.
Section 1.28 Normal Retirement Date - The later of a Member's
sixty-fifth birthday or the anniversary of a member's fifth year of
participation in the Plan.
Section 1.29 One-Year Break in Service - An absence from
service with all Employers and Affiliated Entities for twelve consecutive
months.
In the case of a person who is absent from such service solely on
account of:
(i) pregnancy of the person;
I-7
<PAGE> 24
(ii) birth of a child of the person;
(iii) placement of a child with the
person for adoption; or
(iv) care of such child for a period
beginning immediately following
such birth or placement;
the Plan shall credit, solely for purposes of determining whether the person has
incurred a One- Year Break in Service, the twelve-month period immediately
following the Separation from Service that would normally have been credited to
such person but for such absence.
Section 1.30 Plan - The Plan herein set forth, as amended from
time to time.
Section 1.31 Plans - All plans of Employers and Affiliated
Entities qualified under Part I, Subchapter D, Chapter I of Subtitle A of the
Code, including any simplified employee pension plan as defined in Section
408(k) of the Code.
Section 1.32 Plan Year - The twelve (12) month period,
commencing on July 1, 1995 and ending on June 30, 1996, and the twelve-month
periods ending each subsequent June 30th.
Section 1.33 Separate Fund - Any separate investment fund
maintained by the Trustees pursuant to the Trust Agreement for investment of
members' Individual Accounts.
Section 1.34 Separation from Service - The earlier of (1) the
date a person separates, is discharged or retires from service from all
Employers and Affiliated Entities, (2) the date a person dies, or (3) the first
date following a one-year period during which a person is absent from service
with all Employers and Affiliated Entities for any other reason.
Section 1.35 Spousal Consent - Written consent by a Member's
Spouse to the Member's selection of a specific non-Spouse Beneficiary, where
such selection may not be
I-8
<PAGE> 25
changed without the Spouse's consent (or such initial consent of the Spouse
expressly permits other Beneficiary designations by the Member without any
requirement of further consent by the Spouse, and where such consent is
witnessed by a Plan representative or a notary public and includes
acknowledgment by the Spouse of the effect of such consent.
Section 1.36 Spouse - The person recognized by the state in
which the Member is domiciled as the Member's legal spouse at the date of
determination, which is the earlier of the member's Benefit Payment Date or date
of death. The Administrative Committee, in its sole discretion, may require that
a Member or Beneficiary provide the Administrative Committee with such
information as it deems necessary to establish that a Member's Spouse cannot be
located. The Administrative Committee shall be entitled to rely upon a
representation of a Member that the Member has no Spouse.
Section 1.37 Trust Agreement - The Agreement with the Trustees
referred to in Section 4.1 hereof.
Section 1.38 Trustees - The person or persons designated as
such, pursuant to the Trust Agreement.
Section 1.39 Trust Fund - The assets of the Plan held by the
Trustees under the Trust Agreement.
Section 1.40 Valuation Date - The last business day of each
Plan Year and any other date or dates selected by the Administrative Committee
with the approval of the Trustees.
Section 1.41 Year of Service - Each consecutive twelve-month
period of employment with an Employer or Affiliated Entity, the computation of
which shall commence with a person's Employment Commencement Date.
I-9
<PAGE> 26
ARTICLE II
PARTICIPATION
Section 2.1 Eligibility - Each Covered Employee who both
attained age 21 and completed one Year of Service as of July 1, 1995 and who was
employed by an Employer on July 1, 1995 shall be eligible to become a Member of
the Plan on July 1, 1995. Each other Covered Employee shall be eligible to
become a Member of the Plan on the Entry Date coincident with or immediately
following the Covered Employee's attainment of age 21 and completion of at least
one Year of Service, provided the Covered Employee is employed by an Employer on
such Entry Date.
Section 2.2 Rehired Former Employee - Any former Employee who
is or was a Member and who is reemployed as a Covered Employee by an Employer
following a Separation from Service shall be eligible to participate in the Plan
as of the date of such reemployment.
Section 2.3 Participation - A Covered Employee who is eligible
to participate in the Plan shall commence participation in the Plan as of the
Entry Date upon which he satisfies the eligibility requirements, provided he is
then a Covered Employee.
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<PAGE> 27
ARTICLE III
CONTRIBUTIONS
Section 3.1 Employer Contributions - The contribution, if any,
by an Employer to the Trust Fund for each Plan Year shall be the amount, in cash
or Company Stock, as the Company in its sole and absolute discretion may
determine.
Section 3.2 Employee Contributions - Employees shall not be
required or permitted to make contributions to the Trust Fund.
Section 3.3 Allocation of Company Stock
(a) Financed Shares - Financed Shares shall initially
be credited to a "suspense account" and shall be allocated to the Individual
Accounts of Members only as payments of principal and interest on the related
Acquisition Loan are made by the Trustees. The number of Financed Shares to be
allocated to Members' Individual Accounts for each Plan Year shall be the
product of the original amount of Financed Shares (less the number of Financed
Shares previously sold, if any) multiplied by a fraction, the numerator of which
is the amount of loan repayments for such Plan Year towards the amortization of
principal on the related Acquisition Loan made with contributions to the Plan,
cash dividends received on Financed Shares, and the proceeds of the sale of
non-cash dividends or other distributions received on Financed Shares, or the
denominator of which is the total projected amount of principal payments to be
paid on the related Acquisition Loan (less the amount repaid with the proceeds,
if any, from the sale of Financed Shares). Principal and interest payments shall
be made at a cumulative rate that is not less rapid at any time than level
annual payments of such amounts for ten (10) years. Financed Shares shall be
allocated as of the last day of the Plan
III-1
<PAGE> 28
Year, subject to the restrictions of Section 3.5, among the Individual Accounts
of Members who are Covered Employees on the last day of the Plan Year based on
the ratio that each such member's Annual Compensation bears to the total Annual
Compensation of all such Members. In the event Financed Shares are sold, the
proceeds of the sale, to the extent equal to the original purchase price, shall
first be used to repay the related Acquisition Loan and then the remaining
proceeds, if any, shall be allocated as of the last day of the Plan Year among
the Individual Accounts of Members who are Covered Employees on the last day of
the Plan Year initially based on the ratio that the amount of each such Member's
Individual Account bears to the total amount of all such Members' Individual
Accounts, and to the extent any such allocation is not permitted under Section
401(a)(4) of the Code, thereafter based on the ratio that each such Member's
Annual Compensation bears to the total Annual Compensation of all such Members.
Any such allocation arising from the sale of Financed Shares shall not be
subject to the provisions of Section 3.5.
(b) Contributions of Company Stock - Company Stock
contributed by an Employer for the first Plan Year ending on June 30, 1996 shall
be allocated, as and when contributed (but subject to the restrictions of
Section 3.5), to Members who are Covered Employees as of June 30, 1996 based on
the ratio that each such Member's Annual Compensation for the twelve-month
period ending on June 30, 1996 bears to the total Annual Compensation for such
period of all such Members. Company Stock contributed by an Employer for any
Plan Year beginning after June 30, 1996 shall be allocated to all Members who
are Covered Employees as of the last day of the Plan Year based on the ratio
that each such
III-2
<PAGE> 29
Member's Annual Compensation for the Plan Year bears to the total Annual
Compensation for the Plan year of all such Members.
(c) The Administrative Committee shall establish
accounting procedures for the purpose of making the allocations to Members'
Individual Accounts provided for in this Section and shall maintain adequate
records of the cost basis of the Allocated Company Stock.
Section 3.4 Allocations of Cash - The Individual Account of
each Member who is a Covered Employee on the last day of the Plan Year shall be
credited each Plan Year, subject to the restrictions of Section 3.5, with the
Member's allocable shares of Employer contributions consisting of cash (other
than cash to be applied to the repayment, including interest thereon, of an
Acquisition Loan), if any. Such contributions shall be allocable as of the last
day of the Plan Year among the Individual Accounts of Members who are Covered
Employees on the last day of the Plan Year based on the ratio that each such
Member's Annual Compensation bears to the total Annual Compensation of all such
members.
Section 3.5 Maximum Annual Additions - For each Plan Year, the
maximum "annual addition", as hereinafter defined, for any Member shall be the
lesser of (i) $30,000 or (ii) twenty-five percent (25%) of the Member's
Compensation.
The "annual addition" for a Member shall be the sum of (i)
Employer and Affiliated Entities' contributions for the Member for the Plan Year
to defined contribution Plans which are directly allocated to the Member's
account for the Plan Year or utilized to pay principal or interest on an
Acquisition Loan, (ii) the Member's voluntary contributions to all Plans for
such Plan Year and (iii) forfeitures allocated to the Member's account, if any.
If not more than one-third (1/3) of the Employer contributions for a Plan Year
used to pay principal
III-3
<PAGE> 30
or interest on an Acquisition Loan is allocated to Highly Compensated Employees,
forfeitures of previous Financed Shares and Employer contributions utilized to
pay interest on an Acquisition Loan shall not be included in the calculation of
the "annual addition" for the Plan Year with respect to each Member.
In any case in which a Member participates in both defined
benefit and defined contribution Plans maintained by an Employer or Affiliated
Entity, the sum of the defined benefit plan fraction and the defined
contribution plan fraction for any Plan Year for the Member may not exceed 1.0.
The defined benefit plan fraction for any Plan Year is a fraction (a) the
numerator of which is the projected annual benefit of the member under all
defined benefit Plans (determined as of the close of the Plan Year), and (b) the
denominator of which is the lesser of (i) the product of 1.25 multiplied by the
dollar limitation in effect under Section 415(b)(1)(A) of the Code for such
year, or (ii) the product of 1.4 multiplied by the amount which may be taken
into account under Section 415(b)(1)(B) of the Code with respect to the
applicable Member for such year. The defined contribution plan fraction for any
Plan Year is a fraction (a) the numerator of which is the sum of the annual
additions to the Member's account or accounts of defined contribution Plans as
of the end of the Plan Year, and (b) the denominator of which is the sum of the
lesser of the following amounts determined for the Plan Year and for each prior
Plan Year (for the purpose of this Section 3.5 a Plan Year shall be determined
without regard to whether it commences before or after the Effective Date): (i)
the product of 1.25, multiplied by the dollar limitations in effect under
Section 415(C)(1)(A) of the Code for such Plan Year or prior Plan Year
(determined without regard to Section 415(c)(6) of the Code), or (ii) the
III-4
<PAGE> 31
product of 1.4 multiplied by 25% of the Member's Compensation from Employers and
Affiliated Entities for each such Plan Year.
If the above described limitations would be exceeded as to any
Member, the excess shall be allocated to the Individual Accounts of other
Members in accordance with Sections 3.3 and/or 3.4, as applicable, to the extent
possible without exceeding the allocation limitations for the Members. Any
amounts which cannot be allocated to any Member's Individual Account by reason
of these limitations shall be held in a suspense account and treated as a Plan
contribution to be allocated pursuant to Sections 3.3 and 3.4 for the next
succeeding Plan Year. Notwithstanding anything contained herein to the contrary,
if the Plan is or is regarded as terminated, amounts held in such suspense
account shall be paid to the Employer which contributed said amounts.
In the event that the Secretary of the Treasury, or his
delegate, shall adjust or has adjusted the $30,000 limit imposed herein to
reflect cost-of-living increases such limit shall be increased automatically
hereunder effective as of the first day of the Plan Year during which any such
adjustment takes effect, to the same extent as provided in any announcement
issued by the Secretary of the Treasury or his delegate of an adjustment of such
limits.
In the event the 1.0 fraction set forth above is exceeded with
respect to a Member, an adjustment shall first be made to the contributions
allocable to the Member under the Plan before an adjustment is made with respect
to the Member under other Plans. For the purpose of Section 415 of the Code,
annual calculations shall be based on the Plan Year and the limitation year
thereunder shall be the Plan Year.
III-5
<PAGE> 32
ARTICLE IV
TRUST FUND
Section 4.1 General - The benefits of the Plan shall be
provided by the Trust Fund which shall consist of contributions made by the
Employers, all investments made therewith, and proceeds thereof, and all
earnings and losses thereon, less payments made therefrom. The Trust Fund shall
be held in accordance with the Plan and the Trust Agreement entered into between
the Company and the Trustees. The Trust Agreement may from time to time be
amended in the manner therein provided.
Section 4.2 Investments in Company Stock - The Trust Fund
shall be invested primarily in shares of Company Stock, as provided in the Trust
Agreement. The Trust Fund may be used to purchase shares of Company Stock from
the Company or its shareholders provided that shares of Company Stock purchased
with borrowed funds by the Trust Fund must constitute "employer securities"
within the meaning of Section 409(l) of the Code. The Trust Fund may hold up to
one hundred percent (100%) of its assets in Company Stock.
Section 4.3 Acquisition Loans - The Trustees may incur
Acquisition Loans from the Company or any financial institution from time to
time to effect the acquisition of Company Stock or to repay a prior Acquisition
Loan. An Acquisition Loan may be secured by a pledge of the Company Stock so
acquired (or acquired with the proceeds of a prior Acquisition Loan which is
refinanced with the new Acquisition Loan). No other assets of the Trust may be
pledged as collateral for an Acquisition Loan, and no lender shall have recourse
against the Trust Fund other than any Company Stock remaining subject to pledge.
Any pledge of Company Stock must provide for the release and allocation of such
shares as provided in Section 5.2.
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<PAGE> 33
Repayments of principal and interest on any Acquisition Loan shall be made by
the Trustees only from Employer contributions paid in cash, from earnings
attributable to such contributions, from any cash dividends or the proceeds of
any non-cash dividends received on Financed Shares, from cash dividends on
Allocated Company Stock (other than currently distributed cash dividends as
provided in Section 6.2 hereof) or from the proceeds of the sale of Financed
Shares or other distributions received on Financed Shares.
Section 4.4 Diversification of Company Stock - The
Administrative Committee shall adopt uniform rules pursuant to which a Member
may elect during the ninety-day period immediately after the end of each of the
first five Plan Years beginning after the date the Member has attained age 55
and completed 10 years of participation in the Plan to direct the Trustees as to
the investment of up to 25% (50% after the fifth such Plan Year) of his
Individual Account, to the extent not already so invested, among not fewer than
three (3) investment options offered by the Trustees. Elections with respect to
allocations between Separate Funds shall be made in increments of one percent
(1%) or more and shall be effective as of the first day of July. Notwithstanding
any other provision of the Plan, the Administrative Committee may elect to
distribute the amount of a Member's Individual Account for which diversification
is required in a cash lump sum to the Member within ninety days following the
election period described in this Section 4.4, except in the event the amount of
such distribution exceeds $3,500 the consent of the Member shall be required
before any such distribution.
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ARTICLE V
MEMBERS' ACCOUNTS
Section 5.1 Individual Accounts - The Administrative Committee
shall establish and cause to be maintained an Individual Account for each Member
which shall consist of:
(i) a Company Stock Account consisting of Company
Stock allocated to the Member's Individual Account pursuant to Sections 3.3 and
8.2 and Company Stock purchased on behalf of the Member with cash dividends on
Company Stock in his Individual Account, together with any stock dividends
attributable thereto; and
(ii) an Investment Account consisting of the cash
contributions of the Employer allocated to the Member's Individual Account
pursuant to Sections 3.4 and 8.2, and cash dividends on and the proceeds of the
sale of Company Stock allocated to the Member's Individual Account.
A Member's Investment Account shall be credited with its
allocable share of the income and expenses and realized and unrealized gains and
losses of the Trust Fund, other than in Company Stock based upon periodic
valuations of the Trust Fund as provided in Section 5.2.
Section 5.2 Valuation - On each Valuation Date, the
Administrative Committee, with the cooperation of the Trustees, shall determine
the net income and expenses and realized and unrealized gains and losses of the
Trust Fund for the period from the last valuation Date to the current Valuation
Date and shall allocate such amount among the Investment Accounts of the Members
in proportion to their respective account balances. The valuation shall take
into account the increase (or decrease) in the fair market value of the Trust
Fund (other than shares of Company Stock), interest income, dividends and other
income and gains (or losses)
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attributable to the Trust Fund (other than any dividends on Allocated Company
Stock), reduced by any expenses chargeable thereto. The valuation shall not take
into account any interest paid by the Trust Fund on an Acquisition Loan or cash
dividends received on Financed Shares or Allocated Company Stock which are
utilized to amortize principal or pay interest on an Acquisition Loan.
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ARTICLE VI
COMPANY STOCK
Section 6.1 Voting and Tendering - Except as provided below,
the Trustees shall vote all Company Stock held by the Trustees under the Plan as
directed by the Administrative Committee. Notwithstanding the above, each
Member, or if applicable, his Beneficiary shall be entitled to direct the
Trustee as to the manner in which Allocated Company Stock in such Member's (or
Beneficiary's) Individual Account is to be voted.
Section 6.2 Dividends - Any cash dividends paid to the Trust
Fund on Allocated Company Stock may be paid currently in cash to such Members or
their Beneficiaries, allocated to Members' Individual Accounts as provided in
Section 5.1 or utilized for payment of any Acquisition Loan, as determined in
the sole and absolute discretion of the Administrative Committee. Any cash
dividends paid to the Trust Fund on Financed Shares shall be used to repay any
Acquisition Loan and, to the extent all Acquisition Loans are fully satisfied,
thereafter be allocated to Members' Individual Accounts in the same manner as
the Company Stock with respect to which the dividend was payable. Any cash
dividends paid with respect to Allocated Company Stock and used to satisfy any
Acquisition Loan, shall entitle the Individual Account that would have received
the dividend to an allocation of Financed Shares released from the suspense
account referred to in Section 3.3 hereof on account of such payment of the
Acquisition Loan, based upon the fair market value of Financed Shares at the
time of payment. Any non-cash dividends received on Financed Shares shall be
allocated to the suspense account holding Financed Shares referred to in Section
3.3 hereof.
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ARTICLE VII
RETIREMENT BENEFITS
Section 7.1 Normal Retirement - A Member shall be one hundred
percent (100%) vested in his Individual Account if such Member is an Employee
upon the attainment of his Normal Retirement Date. Each such Member upon
incurring a Separation from Service on or after his Normal Retirement Date shall
be entitled to a retirement benefit equal to the balance of the Member's
Individual Account determined as of the Valuation Date immediately following his
Separation from Service, and such benefit shall be distributed at the time
provided in Section 7.4.
Section 7.2 Retirement After Normal Retirement Date.
Notwithstanding Section 7.1, in the event a Member continues to be employed by
an Employer or Affiliated Entity after his Normal Retirement Date, the payment
of the Member's vested portion of his Individual Account shall be made no later
than the 15th day of April immediately following the Plan Year in which the
Member attains age 70 1/2.
Section 7.3 Normal Form of Benefit - The vested portion of the
balance of a Member's Individual Account shall be paid to a Member in a single
lump sum at the time provided in Section 7.4. Distribution of a Member's vested
Individual Account balance will be made in whole shares of Company Stock, cash
or a combination of both, as determined by the Administrative Committee;
provided, however, that the Administrative Committee shall notify the Member of
his right to demand distribution of the vested balance of his Individual Account
entirely in whole shares of Company Stock (with the value of any fractional
share paid in cash).
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Section 7.4 Time for Payment of Benefits - The payment of
benefits under the Plan to a Member shall be made as soon as administratively
practicable after the Valuation is completed for the Plan Year in which the
Member has a Separation from Service, unless the Member (or the Beneficiary)
elects to defer to a later time such payment in a writing delivered to the
Administrative Committee. In no event shall payment commence, unless a Member
elects otherwise, later than the 60th day after the latest of the close of the
Plan Year in which (1) occurs the date on which the Member attains the earlier
of age 65 or the Normal Retirement Date, (2) occurs the 10th anniversary of the
year in which the Member commenced participation in the Plan, or (3) the Member
terminates his service with the Employer.
Notwithstanding any other provision of the Plan, the entire
vested interest of each Member will be distributed to the Member (or his
Beneficiary) not later than April 1 of the calendar year following the calendar
year in which the Member attains age 70 1/2.
Section 7.5 Death Benefits - If a Member dies prior to the
date on which his benefits are fully paid, payment of the entire vested interest
credited to the Member's Individual Account and, if the Member dies prior to his
Separation from Service, the entire nonvested interest as well, shall be made in
a lump sum to the Member's Beneficiary. Payment shall be made at the time
specified in Section 7.4. In no event, however, may distribution to a
Beneficiary other than a Member's Spouse be deferred beyond five (5) years after
the Member's death, or a distribution to the Member's Spouse be deferred later
than the fifth anniversary of the Member's death or the date the Member would
have attained age 70 1/2.
Section 7.6 Designation of Beneficiary - Each Member shall
have at any time the unrestricted right to designate a Beneficiary or change a
Beneficiary to whom payment of any
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<PAGE> 39
Plan benefits payable upon the death of the Member shall be made in the event of
the Member's death, except each Member with a Spouse shall be deemed to have
designated such Spouse as his sole Beneficiary unless the Member provides the
Administrative Committee with a Spousal Consent designating another Beneficiary
or Beneficiaries. Each such designation shall be evidenced by a written
instrument signed by the Member and filed with the Administrative Committee
before his death together with any Spousal Consent thereto, if necessary. In the
event a Beneficiary fails to survive the Member and the Member has not
designated a contingent Beneficiary, the Beneficiary shall be deemed to be the
Member's surviving Spouse. In the event the Member has no surviving Spouse and
has not designated another Beneficiary, the Beneficiary shall be deemed to be
the Member's estate. If the designated Beneficiary survives the Member but dies
prior to receiving the full amount of the Member's death benefit and the Member
has not designated a contingent Beneficiary, distribution of the remaining
amount, if any, shall be made to the estate of the designated Beneficiary.
Section 7.7 Incapacity - If the Administrative Committee
determines that any person to whom a benefit is payable hereunder is under a
legal disability or is in any way incapacitated so as to be unable to manage his
financial affairs, the Administrative Committee may cause the payments becoming
due to such person to be made to another for his benefit without responsibility
of the Administrative Committee or the Trustees to see to the application of
such payment. Payment made pursuant to this Section 7.7 shall, as to such
payment, operate as a complete discharge of the Employer, Plan, Trust Fund,
Trustees and the Administrative Committee.
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Section 7.8 Spendthrift Provision - Except as provided below,
no benefit payable under the Plan will, except as otherwise specifically
provided by law, be subject in any manner to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same will be void; nor will any benefit be in any manner liable for or subject
to the debts, contracts, liabilities, engagements or torts of the person
entitled thereto.
The Trustees are specifically authorized to comply with any
"domestic relations order" which the Administrative Committee determines to be a
"qualified domestic relations order." For this purpose a "domestic relations
order" shall mean any judgment, decree or order (including approval of a
property settlement agreement) which relates to alimony payments, marital
property rights or the provision of child support, to a Spouse, former Spouse,
child or other dependent of a member (hereinafter referred to as the "alternate
payee"), and is made pursuant to a State domestic relations law (including a
community property law), and a "qualified domestic relations order" shall mean a
domestic relations order which the Administrative Committee, in its sole
discretion and applying uniform rules, determines to meet the following
requirements:
(a) such order assigns to an alternate payee, or
creates or recognizes the existence of, a right to receive all or a portion of,
the Member's benefits payable under the Plan;
(b) such order clearly specifies (i) the name and
last known mailing address (if any) of the Member and the name and mailing
address of each alternate payee, if not otherwise known to the last Employer of
the Member, (ii) the amount or percentage of the
VII-4
<PAGE> 41
Member's benefits to be paid by the Plan to each such alternate payee, or the
manner in which such amount or percentage is to be determined, (iii) the number
of payments or period to which such order applies, and (iv) that the order
applies to the Plan; and
(c) such order does not (i) require the Plan to
provide any type or form of benefits, or any option, not otherwise provided
under the Plan, (ii) require the Plan to provide increased benefits (determined
on the basis of actuarial value), and (iii) require the payment of benefits to
an alternate payee which are required to be paid to another alternate payee
under another order previously determined to be a qualified domestic relations
order.
In the case of any payment to an alternate payee required
under a qualified domestic relations order before a Member has a Separation from
Service, such payment shall be made provided that the member has attained age
fifty-five (55). Payment to such alternate payee may be made in any form in
which benefits may be paid under the Plan to the Member.
Upon the Administrative Committee's receipt of a domestic
relations order it shall promptly notify the Member and any alternate payee of
the receipt of such order and the Plan's procedures for determining whether such
order is a qualified domestic relations order. The determination by the
Administrative Committee of whether a domestic relations order is a qualified
domestic relations order shall be made within a reasonable time and pursuant to
written procedures adopted by the Administrative Committee. During any period in
which the issue of whether a domestic relations order is a qualified domestic
relations order is being determined, the Administrative Committee shall cause to
be segregated in a separate account or in an escrow 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
eighteen
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<PAGE> 42
(18) months it is determined that the order is not a qualified domestic
relations order, or the issue as to whether such order is a qualified domestic
relations order is not resolved, then the Administrative Committee shall cause
the segregated amounts (plus any interest thereon) to be paid to the Member if
payment would have otherwise been made absent such order. Any determination
thereafter that an order is a qualified domestic relations order shall be
applied prospectively only.
Section 7.9 Proof of Claim - The Administrative Committee may
require such proof of death and such evidence of the right of any person to
receive payment of a deceased Member's interest in the Trust Fund as the
Administrative Committee may deem desirable.
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<PAGE> 43
ARTICLE VIII
VESTING
Section 8.1 General - Except as provided in Section 7.1 and
Section 7.5, a Member's vested interest at any time in his Individual Account
shall be determined in accordance with the following schedule:
<TABLE>
<CAPTION>
Number of Years of Service Applicable Percentage
-------------------------- ---------------------
<S> <C>
Less than 5 0%
5 or more 100%
</TABLE>
Section 8.2 Forfeitures - The nonvested interest credited to
the Individual Account of each Member who has incurred a Separation from Service
during the Plan Year shall be forfeited as of the end of the Plan Year in which
the Member completes five (5) consecutive One Year Breaks in Service.
Forfeitures shall be allocated to the Individual Accounts of the Members who are
Covered Employees on the last day of the Plan Year in which the forfeiture
occurs in the ratio that the amount of each such Member's Annual Compensation
bears to the total Annual Compensation of all such Members.
Section 8.3 Manner of Payment - A Member who has a Separation
from Service prior to attaining his Normal Retirement Date other than by reason
of death shall be entitled to payment of the vested interest in his Individual
Account in a lump sum payment, in accordance with applicable provisions of
Section 7.3 and Section 7.4 of the Plan; provided that if the value of the
vested portion of a Member's Individual Account is in excess of $3,500, the
Member must consent to the payment of his Individual Account prior to the
attainment of age 65.
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ARTICLE IX
RIGHTS ON COMPANY STOCK
Section 9.1 Right of First Refusal - Any shares of Company
Stock held by the Plan shall be subject to a "right of first refusal" so long as
such shares are not readily tradable on an established market. The right of
first refusal shall provide that, prior to any transfer, such shares of Company
Stock must first be offered in writing to the Company at the greater of (i) the
fair market value determined as of the Valuation Date coinciding with or
immediately preceding such offer or (ii) the purchase price and other terms
offered under a bona fide written offer from an independent prospective buyer.
The Company shall have a total of fourteen (14) days from the date the Company
receives the offer to exercise the right of first refusal. In the event that
such right of first refusal is exercised in response to a bona fide written
offer from an independent prospective buyer, it shall be exercised upon the same
terms offered by such prospective buyer.
Section 9.2 Stock Transfer Restrictions - Certificates
evidencing shares of Company Stock held by the Plan may have imprinted thereon
such restrictions on transferability as the Company may reasonably require (and
the Company may issue stop transfer instructions) in order to assure compliance
with applicable Federal and state securities laws. Except as otherwise provided
in this Article IX, no shares of Company Stock may be subject to put, call or
other option, or buy-sell or similar arrangement while held by the Plan. The
provisions of this Article IX shall continue to be applicable to shares of
Company Stock held by the Plan even if the Plan ceases to be an employee stock
ownership plan under Section 4975(e)(7) of the Code.
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<PAGE> 45
Section 9.3 Puts - If Company Stock is not readily tradable on
an established market or is subject to a trading limitation (within the meaning
of the Code and related regulations, but excluding the right of first refusal
provided in Section 9.1) at the date of distribution thereof, any Member
receiving a distribution of shares of Company Stock from the Plan shall have the
right to require the Company to purchase such shares of Company Stock at any
time during the following two periods, at the then fair market value. The first
period shall be for sixty (60) days beginning on the date of distribution of
Company Stock to the Member. The second period shall be for sixty (60) days
beginning on the first anniversary of the date of distribution of Company Stock
to the Member. Except as otherwise provided in this Section , the payment for
shares of Company Stock sold pursuant to the put right herein shall be made in
substantially equally annual installments commencing within thirty (30) days
from the date of the exercise of the put right and over a period not exceeding
five (5) years, with interest payable at a reasonable rate on any unpaid
installment balance and with adequate security provided (all as determined by
the Company). The period over which installments are payable in satisfaction of
the Company's put obligation may be extended, at the Company's sole and absolute
discretion, by one year (up to an additional five years) for each $100,000 or
fraction thereof by which a Member's Individual Account exceeds $500,000.
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ARTICLE X
COMMITTEE
Section 10.1 Appointment - The Board of Directors shall
appoint an Administrative Committee which shall consist of such number of
persons as shall from time to time be determined by the Board of Directors.
Members of the Administrative Committee may be officers, directors, employees or
others and shall hold office at the pleasure of the Board of Directors and shall
serve without compensation unless otherwise determined by the Board of
Directors. Any person appointed a member of the Administrative Committee shall
signify his acceptance by filing a written acceptance with the Board of
Directors. Unless the Board of Directors otherwise provides, any member of the
Administrative Committee who is a director or Employee of the Company or an
Affiliated Entity at the time of appointment will be considered to have resigned
from the Administrative Committee when no longer a director or Employee. Any
member of the Administrative Committee may resign by giving notice thereof to
the Board of Directors and to the Administrative Committee, and such resignation
shall become effective at delivery or at any later date specified therein. A
vacancy in the Administrative Committee shall be filled by the Board of
Directors.
Section 10.2 Duties and Powers
Administrative Committee - The Administrative Committee shall
be charged with the general operation and administration of the Plan and shall
constitute the plan administrator as that term is used in Section 414(g) of the
Code and Section 3(16)(A) of ERISA. The Administrative Committee shall have all
powers necessary to discharge its duties, including, but not by way of
limitation, the power, in its discretion, to interpret or construe the Plan, to
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<PAGE> 47
determine all questions of eligibility, status and rights of Covered Employees,
Members and their Beneficiaries and others hereunder, and to decide any dispute
arising hereunder. The Administrative Committee shall direct the Trustees
concerning all payments that shall be made out of the Trust Fund pursuant to the
provisions of the Plan and shall have such other powers with respect to the
administration of the Trust Fund as may.be conferred upon it by the Trust
Agreement.
The Administrative Committee is empowered, on behalf of the
Plan and Trust, to employ investment managers (as defined in Section 3(38) of
ERISA), accountants, legal counsel, and other agents to assist it in the
performance of its duties under the Plan.
The Administrative Committee may adopt such rules and
regulations as it deems desirable for the conduct of its affairs, and may
appoint one of its own members as Chairman and one as Secretary, and may appoint
one or more agents who need not be members of the Administrative Committee. It
may delegate to any agent such duties and powers, both ministerial and
discretionary, as it deems appropriate excepting only that any dispute shall be
determined by the Administrative Committee. A majority of the Administrative
Committee then in office shall constitute a quorum for the transaction of
business. Any determination of the Administrative Committee shall be made by a
majority of the members then in office. If there are only two members and they
are unable to agree, any action required of the Administrative Committee shall
be by the Board of Directors, and its decision shall be final. The
Administrative Committee may authorize one member thereof to sign in its behalf
any orders, requests or instructions of the Administrative Committee to the
Trustees and the Trustees shall be fully protected in acting thereon.
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Section 10.3 Reimbursement - The members of the Administrative
Committee shall be reimbursed by the Company for any necessary expenditures
incurred in the discharge of their duties as members of the Administrative
Committee. The compensation, if any, of all agents, counsel or other persons
retained or employed by the Administrative Committee shall be subject to the
approval of the Company and shall be paid by the Company, if not paid from the
Trust Fund.
Section 10.4 Self Interest - No member of the Administrative
Committee shall have any right to vote or decide upon any matter relating solely
to himself or solely to any of his rights or benefits under the Plan, unless
such member is the only member of the Administrative Committee.
Section 10.5 Records - The Administrative Committee shall keep
or cause to be kept a record of all of its proceedings and shall keep or cause
to be kept such other records and data as may be necessary for the performance
of its duties.
Section 10.6 Reports - The Administrative Committee shall
cause to be prepared annually those reports showing the financial condition of
the Trust Fund in reasonable summary and giving a brief account of the
operations of the Plan for the past Plan Year and reflecting any further
information which each Employer may require or which may be required by law.
Such reports shall be submitted to each Employer and copies filed in the office
of the Administrative Committee.
Section 10.7 Liability - The members of Administrative
Committee and each Employer shall be entitled to rely upon all valuations,
certificates, and reports furnished by the Trustees or by accountants or
consultants selected by the Administrative Committee and
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approved by the Company, and upon all opinions given by any legal counsel
selected by a Committee and approved by the Company, and the members of a
Committee and each Employer shall be fully protected with respect to any action
taken or suffered by their having relied in good faith upon such Trustees,
accountants, consultants or counsel and all action so taken or suffered shall be
conclusive upon each of them and upon all Members and their Beneficiaries and
all other persons.
The Company shall indemnify the members of the Administrative
Committee, any individual Trustees and any of their agents acting in behalf of
the Plan against any and all liabilities or expenses to which they may be
subjected as members of the Administrative Committee or as Trustees by reason of
any act or failure to act which constitutes a breach of fiduciary responsibility
under ERISA or otherwise, except that due to a person's own gross negligence or
willful misconduct and except as prohibited by ERISA.
Section 10.8 Claims and Claims Review - Claims for benefits
under the Plan shall be filed with the Administrative Committee on forms
supplied by the Administrative Committee. Written notice of the disposition of a
claim shall be furnished the claimant within ninety (90) days after the claim is
filed. If the claim is denied, the reasons for the denial shall be specifically
set forth in writing, pertinent provisions of the Plan shall be cited, including
an explanation of the Plan's claim review procedure, and, if the claim is
perfectible, an explanation as to how the claimant can perfect the claim shall
be provided.
If a claimant whose claim has been denied wishes further
consideration of his claim, he may request the Administrative Committee to
review his claim in a written statement of the claimant's position filed with
the Administrative Committee no later than sixty (60) days
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<PAGE> 50
after receipt of the written notification provided for in the previous
paragraph. The Administrative Committee shall fully and fairly review the matter
and shall promptly advise the claimant, in writing, of its decision within the
next sixty (60) days. Due to special circumstances, if no advice has been given
within the first sixty (60) days, and notice of the need for additional time has
been furnished within such period, said review and advice may be made within the
following sixty (60) days.
Section 10.9 Review Committee - If a claim for a benefit has
been denied to a Member after the full and fair review described in the second
paragraph of Section 10.8 hereof, the Member may notify the Administrative
Committee and request and receive another full and fair review of such claim
pursuant to the rules and precedents that the Administrative Committee shall, in
its sole discretion, establish.
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ARTICLE XI
AMENDMENT OF THE PLAN
Section 11.1 General - The Company may amend the Plan at any
time and from time to time and any amendment may have retroactive effect,
without limitation, including amendments to the contribution formula. Except
where necessary to qualify the Plan or to maintain the qualification of the Plan
under the Code, no amendment shall reduce any then accrued or vested interests
of a Member nor shall it reduce any accrued benefit of a Member as such term is
given meaning under Section 411(d)(6) of the Code or the regulations thereunder.
No part of the Trust Fund, other than such part as may be
required to pay taxes, administration expenses and fees, shall by reason of any
amendment or otherwise be used or diverted to purposes other than for the
exclusive benefit of Members and designated Beneficiaries.
Notwithstanding the above, in the event that through a
"mistake of fact" within the meaning of Section 403(c)(2)(A) of ERISA, a
contribution, or part thereof is made as of any date which is in excess of the
amount set forth in or calculated in accordance with the provisions of the Plan,
such contribution, or part thereof, may at the direction of the Administrative
Committee be returned to the Employer making such contribution within one year
after the payment of such contribution.
In addition, at the direction of the Administrative Committee,
any contribution made by an Employer may be returned to the Employer if (to the
extent the contribution is conditioned upon its deductibility under Section 404
of the Code) such deduction is disallowed in whole or in part by the Internal
Revenue Service and the contribution (to the extent
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disallowed) is returned to the Employer within one year after the disallowance
of the deduction. Earnings attributable to such disallowed contributions may not
be returned to the Employer, but losses attributable thereto must reduce the
amount to be so returned.
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ARTICLE XII
TERMINATION OF THE PLAN
Section 12.1 General - While the Plan is intended to be
permanent, the Company may at any time and for any reason terminate or partially
terminate the Plan. Written notice of such termination, setting forth the date
thereof, shall be given to both the Trustees and the Administrative Committee.
Section 12.2 Termination - Upon a termination or partial
termination of the Plan, or upon a complete discontinuance of contributions
thereunder, the amount allocated to each affected Member's Individual Account
shall be nonforfeitable and, in the case of a complete termination of the Plan,
the Financed Shares subject to the indebtedness relating thereto shall revert to
the Employer.
Section 12.3 Distribution of Trust Fund - Upon termination of
the Plan, the Administrative Committee, in its sole discretion, may elect to
terminate the Trust Agreement. In such event, each Member's Individual Account
shall be paid to such Member (or Beneficiary of a deceased Member) by the
payment as soon as practicable after the determination of the value of the
Member's Individual Account, in one lump sum, subject to Article IX hereof.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Construction - All questions pertaining to the
construction, regulation, validity and effect of the provisions of the Plan
shall be determined in accordance with the laws of the State of New Jersey,
except as may be preempted by ERISA or other federal law.
Section 13.2 Limitation of Rights - The adoption and
maintenance of the Plan shall not be deemed to constitute a contract between any
Employer and any Employee or Member, and nothing herein contained shall be
deemed to give to any Employee or Member the right to be retained in the employ
of any Employer or to interfere with the right of any Employer to discharge any
Employee or Member at any time.
Section 13.3 Limitation of Liability - All benefits payable
under the Plan shall be paid or provided for solely from the Trust Fund and each
Employer assumes no liability or responsibility therefor.
Section 13.4 Mergers and Consolidations of Plans or Transfers
of Assets - In the case of any merger or consolidation of the Plan with, or in
the case of any transfer of assets or liabilities of the Plan to, any other
plan, each Member will (if the plan then terminated) be entitled to 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 had then
terminated).
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Section 13.5 Gender and Number - All references herein to the
masculine shall be read in the masculine or feminine and to the singular shall
be read in the singular or plural, unless the context shall otherwise require.
XIII-2
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ARTICLE XIV
TOP-HEAVY PROVISIONS
14.1 Applicability. The following provisions shall become
effective in any Plan Year in which the Plan is determined to be a Top-Heavy
Plan.
14.2 Determination of Top-Heavy Plan.
(1) The Plan will be considered a Top-Heavy Plan for
the Plan Year if, as of the Valuation Date, coinciding with the Determination
Date, the Cumulative Account Balances of Key Employees exceed sixty percent
(60%) of the Cumulative Account Balances of all Members under the Plan (the "60%
Test"). The Plan shall also be considered a Top-Heavy Plan for a Plan Year in
which the Plan is part of a Required Aggregation Group and the Required
Aggregation Group is top heavy. However, and notwithstanding the results of the
60% Test, the Plan shall not be considered a Top-Heavy Plan for any Plan Year in
which the Plan is part of a Required or Permissive Aggregation Group which is
not top heavy.
(2) For purposes of Subsection (a), the terms listed
below shall have the meaning indicated:
(i) Key Employee: any Employee or former
Employee who was at any time during the Plan Year containing the Determination
Date, or the four (4) preceding Plan Years:
(a) an individual having the
authority of an officer of the Employer earning annual Compensation for the Plan
Year greater than fifty percent (50%) of the dollar limit under Section
415(b)(1)(A) of the Code for the calendar year in which such Plan Year ends
(however, no more than the fifty (50) Employees (or if lesser, the greater of
three
XIV-1
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(3) Employees or ten percent (10%) of all Employees) who earned the highest
annual Compensation during the above-referenced five (5) year period shall be
treated as officers);
(b) one (1) of ten (10) Employees
earning annual Compensation for the Plan Year in excess of the defined
contribution dollar limit under Section 415(c)(1)(A) of the Code for the
calendar year in which such Plan Year ends and owning (or considered as owning
within the meaning of Section 318 of the Code) both more than a one-half percent
(1/2%) interest in value and the largest percentage ownership interests in the
Employer; however, if two (2) or more owners have the same percentage interest
in the Employer, the one with the higher annual Compensation will be deemed to
own the greater interest;
(c) an owner (or one considered to
own within the meaning of Section 318 of the Code) of more than a five percent
(5%) interest in the Employer; or
(d) one earning annual Compensation
for the Plan Year in excess of $150,000 annually who owns (or is considered to
own within the meaning of Section 318 of the Code) more than a one percent (1%)
interest in the Employer.
(ii) Valuation Date: June 30.
(iii) Determination Date: the last day of
the preceding Plan Year.
(iv) Employer: for purposes of determining
top heaviness, the Company and all employers that are members of a controlled
group of corporations, a trade or business under common control, or an
affiliated service group as defined in Section 414 of the
XIV-2
<PAGE> 58
Code are considered a single Employer. However, for purposes of determining
ownership or officership in the Employer, the aggregation rules of Section 414
of the Code shall not apply.
(v) Permissive Aggregation Group: plans of
the Employer that are required to be aggregated plus one or more plans that are
not part of a Required Aggregation Group but that satisfy the requirements of
Sections 401(a)(4) and 410 of the Code when considered together with the
Required Aggregation Group; provided, however, that the plans provide comparable
benefits or contributions.
(vi) Required Aggregation Group: (A) each
plan of the Employer in which at least one (1) Key Employee participates in the
Plan Year containing the Determination Date or in any of the four (4) preceding
Plan Years; and (B) any other plan of the Employer during the above-referenced
period which enables a plan described in (A) to meet the requirements of
Sections 401(a)(4) or 410 of the Code.
(vii) Cumulative Account Balance:
(a) As of the Determination Date
for any Member is the account balance for each Member as of the Valuation Date
coinciding with the Determination Date. Any distribution made with respect to a
Member from the Plan (or from a terminated plan that would have been required to
have been aggregated with the Plan had it not been terminated) during the five
(5) year period ending on the Determination Date shall be added to the amount
computed under the preceding sentence.
(b) In computing the aggregate
Cumulative Account Balance, the account balances of (i) former Key Employees and
(ii) individuals who have not
XIV-3
<PAGE> 59
performed services for any Employer during the five (5) year period ending on
the Determination Date shall not be taken into account.
(c) The Cumulative Account Balance
shall also include "Related Rollovers" accepted by the Plan; "Related Rollovers"
being defined as rollovers or plan-to-plan transfers which are either (i) from
another plan and not initiated by the Employee or (ii) rollovers made from one
plan maintained by the Employer to another maintained by the Employer. All other
rollovers or plan-to-plan transfers are defined as "Unrelated Rollovers."
Unrelated Rollovers accepted by the Plan will not be considered part of the
Cumulative Account Balance.
(3) For purposes of determining top heaviness, the
terms "Key Employee", "former Employee" and "non-Key Employee" include
beneficiaries of such individuals.
(4) For top-heavy purposes, "Compensation" means the
amount reported on the Participant's Internal Revenue Service Form W-2, Wage and
Tax Statement (or in the event such reporting form is at some future time
changed, modified or amended, such successor corresponding form) for the Plan
Year.
14.3 Top-Heavy Rules. If the Plan is top heavy for a Plan
Year, the following rules shall apply during such Plan Year, notwithstanding any
provisions of the Plan to the contrary:
(a) The following vesting schedule applies to all
accounts not otherwise fully vested in any Plan Year in which this Plan is
determined to be top heavy. However, this Section does not apply to the account
balance of any Employee who does not have one (1) Hour
XIV-4
<PAGE> 60
of Service after the Plan has initially become top heavy and such Employee's
account balances attributable to Employer contributions will be determined
without regard to this Section :
<TABLE>
<CAPTION>
Years of Service Vested Percentage
---------------- -----------------
<S> <C>
Fewer than two 0%
Two but less than Three 20%
Three but less than Four 40%
Four but less than Five 60%
Five but less than Six 80%
Six or more 100%
</TABLE>
(b) If the Plan becomes a Top-Heavy Plan and
subsequently ceases to be such, the vesting schedule in Subsection (a) above
shall continue to apply in determining the vested percentage of any Member who
had at least five (5) Years of Service as of the last day of the last Plan Year
during which the Plan is a Top-Heavy Plan.
For Members with less than five (5) Years of Service, the
percentage of an account which is vested according to the schedule in Subsection
(a) shall not change until such time as the vested percentage determined under
the schedule in Section 8.1 equals or exceeds the vested percentage of a
Member's account existing at the time the Plan ceases to be a Top- Heavy Plan.
(c) Notwithstanding any other allocation of Company
contribution provisions of the Plan, for any Plan Year during which the Plan is
deemed a Top-Heavy Plan, the Employer contributions for such Plan Year shall be
allocated in the following order of priority:
(i) First, the Employer's contribution and
Forfeitures allocated on behalf of any Member who is not a Key Employee shall
not be less than the lesser of three
XIV-5
<PAGE> 61
percent (3%) of such Member's Annual Compensation, or the largest percentage of
Employer contributions and Forfeitures, as a percentage of a Key Employee's
Annual Compensation, allocated on behalf of any Key Employee for that Plan Year.
This provision shall apply only with respect to Members who are active Employees
as of the end of the Plan Year.
(ii) Second, that part of the Employer
contribution and Forfeitures for the Plan Year which exceeds the part of the
contribution allocated under subparagraph (i) shall be allocated pursuant to
other applicable provisions of the Plan.
(d) Anything herein to the contrary notwithstanding,
a non-Key Employee participating in another defined contribution plan which
along with this Plan is deemed to be part of a top-heavy Required Aggregation
Group for the Plan Year shall receive the minimum allocation required pursuant
to the provisions of this Section 14 Top-Heavy Provisions regardless of whether
or not such non-Key Employee receives a minimum allocation pursuant to the terms
of the other plan for the Plan Year.
(e) Anything herein to the contrary notwithstanding,
a non-Key Employee participating in another defined contribution plan which
along with this Plan is deemed to be part of a top-heavy Required Aggregation
Group for the Plan Year shall not be required to receive the minimum allocation
required pursuant to the provisions of this Section 14 Top-Heavy Provisions if
that non-Key Employee receives a minimum allocation pursuant to the terms of the
other plan for the Plan Year.
(f) For any Plan Year in which the Plan is a
Top-Heavy Plan, Section 3.5 limitations applicable to Members who participate in
both defined benefit and defined contribution plans shall be read by
substituting the number "1.0" for the number "1.25"
XIV-6
<PAGE> 62
wherever it appears therein except such substitution shall not have the effect
of reducing any benefit accrued under a defined benefit plan prior to the first
day of the Plan Year in which this provision becomes applicable.
This Article XIV shall be construed and interpreted so as to
comply with applicable provisions of Section 416 of the Code.
XIV-7
<PAGE> 63
ARTICLE XV
REVOCABILITY
Section 15.1 General - This Plan and the Trust Agreement
described herein are established upon the condition precedent that they shall be
initially approved by the Internal Revenue Service as qualified under Section
401(a) of the Code, and exempt under Section 501(a) of the Code. Accordingly,
notwithstanding anything herein contained to the contrary, if a final
determination shall be received in writing from the Internal Revenue Service
that this Plan and Trust do not initially qualify under applicable provisions of
Sections 401(a), 501(a) and 4975 of the Code, the Trustees, upon receipt of
written notice from the Company, together with a copy of such a ruling, shall
transfer and pay over to the Employer within one year after the date of such
determination all of the net assets so contributed by the Employer which remain
after deducting the reasonable expenses of termination of the Plan.
XV-1
<PAGE> 64
ARTICLE XVI
DIRECT ROLLOVERS
Section 16.1 - General: Notwithstanding any provision of the
Plan to the contrary that would otherwise limit a distributee's election under
this part, a distributee may elect, at the time and in the manner prescribed by
the Plan administrator, to have any portion of an eligible rollover distribution
that is equal to at least $500 paid directly to an eligible retirement plan
specified by the distributee in a direct rollover.
Section 16.2 - Eligible rollover distribution: An eligible
rollover distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover distribution
does not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the Internal Revenue
Code; the portion of any other distribution(s) that is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and any other distribution(s)
that is reasonably expected to total less than $200 during a year.
Section 16.3 - Eligible retirement plan: An eligible
retirement plan is an individual retirement account described in section 408(a)
of the Code, an individual retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of the Code, or a qualified
plan described in section 401(a) of the Code, that accepts the
XVI-1
<PAGE> 65
distributee's eligible rollover distribution. However, in the case of an
eligible rollover distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual retirement annuity.
Section 16.4 - Distributee: 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
section 414(p) of the Code, are distributees with regard to the interest of the
Spouse or former Spouse.
Section 16.5 - Direct to rollover: A direct rollover is a
payment by the Plan to the eligible retirement plan specified by the
distributee.
XVI-2
<PAGE> 66
PVC CONTAINER CORPORATION
(the "Corporation")
Consent of Directors
Pursuant to the By-Laws of the Corporation and to Section
141(f) of the Delaware Corporation Law, the undersigned, being all of the
directors of the Corporation, do hereby consent to the adoption by written
consent without a meeting of the following resolutions:
"RESOLVED, that the proposed PVC Container
Corporation Employee Stock Ownership Plan be, and the same
hereby is, approved and adopted substantially in the form
presented to the Board, effective as of July 1, 1995, and that
a true and complete copy thereof be identified and filed with
the Consent of Directors dated June 28, 1996 (the "Consent");
and further
RESOLVED, that the Trust Agreement under the
aforesaid Plan be, and the same hereby is, approved and
adopted, effective as of June 28, 1996, substantially in the
form presented to the Board, that Herbert S. Meeker be, and he
hereby is, appointed to act as the Trustee under said Trust
Agreement, that Mr. Phillip Friedman is hereby authorized and
directed to execute the same in the name and on behalf of the
Company, and that a true copy of said Trust Agreement be
identified and annexed to the Consent; and further
RESOLVED, that Mr. Phillip L. Friedman be, and he
hereby is, appointed as the Plan's Administrative Committee
and is accordingly delegated the power and authority to
administer the aforesaid Plan and to make such determinations
and to adopt such rules and regulations as in the opinion of
said Committee may be deemed desirable or necessary in
accordance with applicable provisions of the Plan requiring or
permitting the Committee to act; the same to act as said
Committee until death or resignation or until such time as
this Board shall otherwise determine; and further
<PAGE> 67
RESOLVED, that the Treasurer of the Company be, and
he hereby is, authorized and directed in the name and on
behalf of the Company to deposit with the Trustee under the
aforesaid Trust Agreement the sum of $100 upon the latters'
acceptance of the Trust created thereunder, as evidenced by
his execution of said Trust Agreement; and further
RESOLVED, that the Secretary of the Company be, and
he hereby is, directed to communicate to the employees
eligible to participate in the Plan the fact of the adoption
of the Plan pursuant to the foregoing resolution; and further
RESOLVED, that the President or any Vice- President
of the Company be and they hereby are authorized and directed
to make application on behalf of the Company, either
individually or through Counsel, to the Internal Revenue
Service for a determination regarding the qualification of the
aforesaid Plan, as adopted pursuant to the foregoing
resolution, under applicable provisions of Sections 401(a) and
4975(e)(7) of the Internal Revenue Code, and exemption from
tax of the Trust established thereunder under Section 501(a)
of said Code, and that the above-designated officers be and
the same hereby are further authorized to make such technical
modifications in said Plan and Trust Agreement, as adopted
pursuant to the foregoing resolutions, as in the opinion of
such officers may be necessary or desirable in order to obtain
such favorable determination from the Internal Revenue
Service, or otherwise; and further
RESOLVED, that the Committee appointed pursuant to
the foregoing resolution and the appropriate officers of the
Company be, and the same hereby are, authorized and directed
to execute and deliver such agreements, certificates, letters
and other documents and instruments, to prepare and file on
behalf of the Company such reports and other information
relating to the Plan and Trust with such governmental
departments and agencies as may from time to time be required
under applicable law and regulation, and to perform, such
other acts as may, in the opinion of the Committee and the
officer or officers so acting, be deemed necessary or proper
to carry out the intent of the foregoing resolutions and the
actions authorized and directed thereby; and further
-2-
<PAGE> 68
RESOLVED, that Airopak Corporation's ("Airopak")
adoption of the aforesaid Plan, and agreement to be a party to
the aforesaid Trust Agreement, as evidenced by the resolution
of June 28, 1996 adopted by the Board of Directors of Airopak
be, and the same hereby is, approved and adopted in the form
presented to the Board, and that a true and complete copy
thereof be identified and annexed to the Consent.
Dated: Eatontown, New Jersey
June 28, 1996
--------------------------------
Phillip L. Friedman, Director
--------------------------------
John C. D'Avella, Director
-3-
<PAGE> 69
AIROPAK CORPORATION
(the "Corporation")
Consent of Directors
Pursuant to the By-Laws of the Corporation and to Section
141(f) of the Delaware Corporation Law, the undersigned, being all of the
directors of the Corporation, do hereby consent to the adoption by written
consent without a meeting of the following resolutions:
RESOLVED that effective as of July 1, 1995, the PVC
Container Corporation Employee Stock Ownership Plan as annexed
hereto, as presently in effect and as it may be hereafter
amended, be and the same hereby is adopted by this Board for
the exclusive benefit of eligible employees of the
Corporation, that the Corporation hereby agrees to be a party
to the Trust Agreement under which the assets of the aforesaid
Plan are held pursuant to the terms of said Plan, and that the
Corporation hereby agrees to be bound by all the terms and
conditions of such Plan and such Trust Agreement as may be
pertinent thereto; and further
RESOLVED that the appropriate officers of the
Corporation be, and each of them hereby is, authorized and
directed to execute and deliver such agreements, certificates,
letters and other documents and instruments, and to perform
such other acts as may, in the opinion of the officer or
officers so acting, be necessary or proper to carry out the
foregoing resolutions.
Dated: Eatontown, New Jersey
June 28, 1996
--------------------------------
Phillip L. Friedman, Director
--------------------------------
John C. D'Avella, Director
<PAGE> 70
PVC CONTAINER CORPORATION
CERTIFICATE AS TO CORPORATE RESOLUTIONS
I, John C. D'Avella, being the duly elected, qualified and acting
Secretary of PVC Container Corporation (the "Company") a Delaware corporation,
DO HEREBY CERTIFY that the following resolutions were duly adopted by the
unanimous written consent of the Board of Directors of the Company at 401
Industrial Way West, Eatontown, N.J. 07724 on June 28, 1996, and that said
resolutions have not been revoked or amended but remain in full force and
effect:
"RESOLVED, that the proposed PVC Container
Corporation Employee Stock Ownership Plan be, and the same
hereby is, approved and adopted substantially in the form
presented to the Board, effective as of July 1, 1995, and that
a true and complete copy thereof be identified and filed with
the Consent of Directors dated June 28, 1996 (the "Consent");
and further
RESOLVED, that the Trust Agreement under the
aforesaid Plan be, and the same hereby is, approved and
adopted, effective as of June 28, 1996, substantially in the
form presented to the Board, that Herbert S. Meeker be, and he
hereby is, appointed to act as the Trustee under said Trust
Agreement, that Mr. Phillip Friedman is hereby authorized and
directed to execute the same in the name and on behalf of the
Company, and that a true copy of said Trust Agreement be
identified and annexed to the Consent; and further
RESOLVED, that Mr. Phillip L. Friedman be, and he
hereby is, appointed as the Plan's Administrative Committee
and is accordingly delegated the power and authority to
administer the aforesaid Plan and to make such determinations
and to adopt such rules and regulations as in the opinion of
said Committee may be deemed desirable or necessary in
accordance with applicable provisions of the Plan requiring or
permitting the Committee to act; the same to act as said
Committee until death or resignation
<PAGE> 71
or until such time as this Board shall otherwise determine;
and further
RESOLVED, that the Treasurer of the Company be, and
he hereby is, authorized and directed in the name and on
behalf of the Company to deposit with the Trustee under the
aforesaid Trust Agreement the sum of $100 upon the latters'
acceptance of the Trust created thereunder, as evidenced by
his execution of said Trust Agreement; and further
RESOLVED, that the Secretary of the Company be, and
he hereby is, directed to communicate to the employees
eligible to participate in the Plan the fact of the adoption
of the Plan pursuant to the foregoing resolution; and further
RESOLVED, that the President or any Vice-President of
the Company be and they hereby are authorized and directed to
make application on behalf of the Company, either individually
or through Counsel, to the Internal Revenue Service for a
determination regarding the qualification of the aforesaid
Plan, as adopted pursuant to the foregoing resolution, under
applicable provisions of Sections 401(a) and 4975(e)(7) of the
Internal Revenue Code, and exemption from tax of the Trust
established thereunder under Section 501(a) of said Code, and
that the above- designated officers be and the same hereby are
further authorized to make such technical modifications in
said Plan and Trust Agreement, as adopted pursuant to the
foregoing resolutions, as in the opinion of such officers may
be necessary or desirable in order to obtain such favorable
determination from the Internal Revenue Service, or otherwise;
and further
RESOLVED, that the Committee appointed pursuant to
the foregoing resolution and the appropriate officers of the
Company be, and the same hereby are, authorized and directed
to execute and deliver such agreements, certificates, letters
and other documents and instruments, to prepare and file on
behalf of the Company such reports and other information
relating to the Plan and Trust with such governmental
departments and agencies as may from time to time be required
under applicable law and regulation, and to perform, such
other acts as may, in the opinion of the Committee and the
officer or officers so acting, be deemed necessary or proper
to carry out the intent of the foregoing resolutions and the
actions authorized and directed thereby; and further
-2-
<PAGE> 72
RESOLVED, that Airopak Corporation's ("Airopak")
adoption of the aforesaid Plan, and agreement to be a party to
the aforesaid Trust Agreement, as evidenced by the resolution
of June 28, 1996 adopted by the Board of Directors of Airopak
be, and the same hereby is, approved and adopted in the form
presented to the Board, and that a true and complete copy
thereof be identified and annexed to the Consent.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the Company this _____ day of ________, 1996.
--------------------------------
Secretary
[Corporate Seal]
-3-
