As filed with the Securities and Exchange Commission on July 13,
1994.
Registration No. 33-
================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALLIANCE CAPITAL MANAGEMENT L.P.
------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
Delaware 13-3434400
- --------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1345 Avenue of the Americas, New York, NY 10105
- ----------------------------------------- --------------------
(Address of Principal Executive Offices) (Zip Code)
Profit Sharing Plan for Employees of
Alliance Capital Management L.P.
------------------------------------
(Full Title of the plan)
David R. Brewer, Jr.
Senior Vice President &
General Counsel
Alliance Capital Management L.P.
1345 Avenue of the Americas
New York, New York 10105
------------------------------------------------------------
(Name and address of agent for service)
------------------------------------------------------------
(212) 969-1000
(Telephone number, including area code, of agent for service)
<PAGE>
CALCULATION OF REGISTRATION FEE
Title of Proposed maximum Proposed maximum Amount of
securities Amount to be offering price aggregate registra-
to be registered registered per unit offering price tion fee
Units Representing
Assignments of
Beneficial
Ownership 2,000,000 $20.44 (1) $40,880,000 $14,096.55
of Limited Units
Partnership
Interests
Interests in
the Plan (2) N/A N/A N/A
(1) In accordance with Rule 457(h) under the Securities Act of
1933, the filing fee is based on the maximum number of the
Registrant's securities issuable under the employee benefit
plan covered by this registration statement. The proposed
maximum offering price per Unit is estimated on the basis of
the average of the highest and lowest reported sales price of
the Units as reported for New York Stock Exchange composite
transactions on July 7, 1994 solely for the purpose of
calculating the registration fee pursuant to Rule 457(h).
(2) Pursuant to Rule 416(c) under the Securities Act, this
Registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee
benefit plan described herein.
<PAGE>
PART 2
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated herein by reference are the following
documents previously filed by the Registrant and the Profit
Sharing Plan for Employees of Alliance Capital Management L.P.
(the "Plan") with the Securities and Exchange Commission:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1993 and the Registrant's Annual
Report to Unitholders for the fiscal year ended December 31,
1993;
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1994;
(c) The Annual Report of the Plan on Form 11-K for the
fiscal year ended December 31, 1993; and
(d) The description of the Units representing
Assignments of Beneficial Ownership of Limited Partnership
Interests in the Partnership ("Units") contained in the
Registration Statement on Form 8-A dated January 18, 1988, filed
under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act"), and Amendment No. 1 thereto filed on Form 8
dated March 31, 1988.
In addition, incorporated herein by reference are all
documents hereafter filed by each of the Registrant and the Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act prior to the filing of a post-effective amendment which
indicates that all securities offered in connection herewith have
been sold or which deregisters all securities offered in
connection herewith then remaining unsold, and such documents
shall be deemed to be a part hereof from the date of filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the plan interests offered hereby will
be passed upon for the Registrant by David R. Brewer, Jr., Senior
Vice President and General Counsel of Alliance Capital Management
Corporation, the general partner of the Registrant (the "General
Partner"). As of the date of this Registration Statement, the
<PAGE>
fair market value of securities of the Registrant, including
options, beneficially owned by Mr. Brewer exceeds $50,000 and,
accordingly, such interest is deemed to represent a substantial
interest in the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 17-108 of the Delaware Revised Uniform Limited
Partnership Act permits a limited partnership to indemnify and
hold harmless any partner or other person from and against any
and all claims whatsoever, subject to such standards and
restrictions, if any, as set forth in its partnership agreement.
Provision for indemnification under the Registrant's Agreement of
Limited Partnership (As Amended and Restated) (the "Partnership
Agreement") is set forth in Section 6.9 of the Partnership
Agreement. The Registrant has granted broad rights of
indemnification to officers of the General Partner and to
employees of the Registrant. In addition, the Registrant has
assumed indemnification obligations previously extended by the
predecessor of the General Partner to its directors, officers and
employees. The foregoing indemnification provisions are not
exclusive, and the Registrant is authorized to enter into
additional indemnification arrangements.
The Registrant maintains an insurance policy insuring
the directors and officers of the General Partner against certain
acts and omissions while acting in their official capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4 Profit Sharing Plan for Employees of Alliance Capital
Management L.P.
5.1 Opinion of David R. Brewer, Jr., Esq.
5.2 Internal Revenue Service determination letter that the
plan is qualified under Section 401 of the Internal
Revenue Code
24.1 Consent of David R. Brewer, Jr., Esq. (included in
Exhibit 5.1)
24.2 Consent of KPMG Peat Marwick
25 Powers-of-Attorney
<PAGE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant and the Plan hereby
undertake:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or
events arising after the effective date of this
Registration Statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth
in this Registration Statement; and
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement or any material change to such
information in this Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(l)(ii) do not apply if the information required
to be included in a post-effective amendment by
those paragraphs is contained in periodic reports
filed by the Registrant or the Plan pursuant to
Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at
that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being
registered which remain unsold at the termination
of the offering.
(b) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report
<PAGE>
pursuant to Section 13(a) or 15(d) of the Exchange Act and each
filing of the Plan's annual report pursuant to Section 15(d) of
the Exchange Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
The City of New York, State of New York, on June 30, 1994.
ALLIANCE CAPITAL MANAGEMENT L.P.
By: Alliance Capital Management
Corporation, General Partner
By: /s/ Dave H. Williams
---------------------------
Dave H. Williams
Chairman
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Dave H. Williams Chairman of the June 30, 1994
- ---------------------- Board and Chief
Dave H. Williams Executive Officer
of the General
Partner
/s/Myles R. Itkin Chief Financial June 30, 1994
- --------------- Officer of the
Myles R. Itkin General Partner
<PAGE>
Majority of Directors:
James M. Benson*
Bruce W. Calvert*
John D. Carifa*
Henri de Castries
Jerry M. de St. Paer
Christophe Dupont-Madinier
Alfred Harrison
Jean-Pierre Hellebuyck
Benjamin D. Holloway*
Henri Hottinguer
Richard H. Jenrette*
Joseph J. Melone
Brian S. O'Neil*
Frank Savage*
Peter G. Smith
Madelon DeVoe Talley*
Dave H. Williams*
Reba White Williams*
*By: /s/David R. Brewer, Jr. June 30, 1994
----------------------
David R. Brewer, Jr.
Attorney-in-fact
/s/Robert H. Joseph, Jr. Senior Vice June 30, 1994
- ------------------------- President
Robert H. Joseph, Jr. -Finance and
Chief
Accounting
Officer of
the General
Partner
<PAGE>
Pursuant to the requirements of the Securities Act of
1993, a majority of the members of the Committee who administer
the Plan have duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York, State of New York, on
June 30, 1994.
/s/Dave H. Williams
-----------------------
Dave H. Williams
/s/Bruce W. Calvert
________________________
Bruce W. Calvert
/s/John D. Carifa
------------------------
John D. Carifa
________________________
Alfred Harrison
<PAGE>
EXHIBIT INDEX
Sequential
Exhibit No. Page No.
- ---------- ----------
4 Profit Sharing Plan for Employees of
Alliance Capital Management L.P.
5.1 Opinion of David R. Brewer, Jr., Esq.
5.2 Internal Revenue Service
Determination Letter
24 Consent of KPMG Peat Marwick
25 Powers of Attorney
<PAGE>
EXHIBIT 4
AMENDMENT AND COMPLETE RESTATEMENT
OF THE
PROFIT SHARING PLAN FOR EMPLOYEES
OF
ALLIANCE CAPITAL MANAGEMENT L.P.
(Effective as of January 1, 1993)
<PAGE>
TABLE OF CONTENTS
PAGE
INTRODUCTION.......................................... 1
ARTICLE I - DEFINITIONS............................... 2
ARTICLE II - MEMBERSHIP............................... 14
ARTICLE III - CREDITING OF SERVICE.................... 17
ARTICLE IV - COMPANY CONTRIBUTIONS.................... 19
ARTICLE V - MEMBER SALARY DEFERRAL ELECTIONS,
SALARY DEFERRAL CONTRIBUTIONS
AND CONTRIBUTIONS...................... 22
ARTICLE VI - ALLOCATIONS OF COMPANY CONTRIBUTIONS
AND FORFEITURES.......................... 25
ARTICLE VII - ACCOUNTS, ALLOCATIONS AND LOANS......... 27
ARTICLE VIII - VALUATION.............................. 35
ARTICLE IX - DETERMINATION OF BENEFITS................ 39
ARTICLE X - TIME AND MANNER OF PAYMENT OF BENEFITS.... 42
ARTICLE XI - ADMINISTRATION OF THE PLAN............... 48
ARTICLE XII - THE TRUST FUND.......................... 53
ARTICLE XIII - CERTAIN RIGHTS AND OBLIGATIONS
OF THE COMPANY......................... 54
ARTICLE XIV - NON-ALIENATION OF BENEFITS.............. 57
ARTICLE XV - AMENDMENTS............................... 58
ARTICLE XVI - LIMITATIONS ON BENEFITS AND
CONTRIBUTIONS.......................... 59
ARTICLE XVII - TOP-HEAVY PLAN YEARS................... 61
ARTICLE XVIII - MISCELLANEOUS......................... 66
<PAGE>
PROFIT SHARING PLAN FOR EMPLOYEES
OF
ALLIANCE CAPITAL MANAGEMENT L.P.
INTRODUCTION
WHEREAS, effective as of January 1, 1972, the
predecessor of Alliance Capital Management L.P. ("Alliance")
established a profit sharing plan covering its employees; and
WHEREAS, that plan as subsequently amended and
completely restated was adopted and continued by Alliance in
connection with the transfer on April 21, 1988 of the
predecessor's business and substantially all of its operating
assets and liabilities to Alliance and prior to that transfer and
in connection therewith again amended and renamed the plan as the
Profit Sharing Plan for Employees of Alliance Capital Management
L.P. (the "Alliance Profit Sharing Plan"); and
WHEREAS, the Alliance Profit Sharing Plan was amended
and completely restated in its entirety effective January 1, 1989
to comply with amendments to applicable law and to make certain
other changes; and
WHEREAS, it is desired to further amend and completely
restate the Alliance Profit Sharing Plan in its entirety to
permit the investment of plan assets in limited partnership units
of Alliance, to comply with amendments to applicable law and to
make certain other changes;
NOW, THEREFORE, in consideration of the premises, the
Alliance Profit Sharing Plan is hereby amended and completely
restated as follows, effective as of January 1, 1993:
<PAGE>
ARTICLE I
DEFINITIONS.
For the purposes of this Plan, except as otherwise
herein expressly provided or unless the context otherwise
requires, when capitalized:
SECTION 1.01. "ACCOUNT" means any one or more of the
following accounts maintained by the Committee for a Member:
(a) his Company Contributions Account;
(b) his Member Contributions Account;
(c) his Member Salary Deferral Account; and
(d) his Rollover Account.
SECTION 1.02. "ACT" means the Employee Retirement
Income Security Act of 1974, as amended from time to time.
SECTION 1.03. "ACCOUNTING Date" means the last business
day of each Plan Year and any other date which may be determined
by the Committee under uniform and non-discriminatory procedures
established by the Committee.
SECTION 1.04. "ANNIVERSARY YEAR" means each twelve (12)
month period beginning on an Employee's Employment Commencement
Date or any annual anniversary thereof.
SECTION 1.05. "AFFILIATE" means any corporation or
unincorporated business (a) controlled by, or under common
control with, the Company within the meaning of Sections 414(b)
and (c) of the Code, or (b) which is a member of an "affiliated
service group", as defined in Section 414(m) of the Code, of
which the Company is a member.
SECTION 1.06. "ASSIGNOR LIMITED PARTNER" shall mean
Alliance ALP, Inc., a Delaware corporation, or any individual,
corporation, association, partnership, joint venture, entity,
estate or other entity or organization designated by the general
partner of the Company to serve as a substitute therefore.
SECTION 1.07. "BENEFICIARY" means the person (including
A trust or estate of a Member) designated by a Member, or who may
otherwise be entitled under the terms of the Plan to receive the
balance, if any, of the Member's Accounts upon the Member's
death.
SECTION 1.08. "BOARD" means the board of directors of
the general partner of the company responsible for the management
<PAGE>
of the Company's business, or a committee thereof designated by
such Board.
SECTION 1.09. "BREAK IN SERVICE" means, with respect to
any Employee, any Anniversary Year ending on or after the date of
his Separation from Service and before his date of re-employment,
if any, in which he does not complete more than five hundred
(500) Hours of Service with Employers or Affiliates.
SECTION 1.10. "CODE" means the Internal Revenue Code of
1986, as amended from time to time.
SECTION 1.11. "COMMITTEE" means the administrative
committee appointed to administer the Plan, the members of which
shall be the person or persons appointed pursuant to Section
11.01.
SECTION 1.12. "COMPANY" means (a) Alliance Capital
Management Corporation for the period prior to April 21, 1988 and
(b) for subsequent periods, Alliance Capital Management L.P. and
any successor thereto.
SECTION 1.13. "COMPANY CONTRIBUTION" means a
contribution for a Plan Year made by an Employer to the Trust
pursuant to Section 4.01 or Section 4.02, but not Section 5.01,
including any amount to be applied from the Unallocated
Forfeitures Account in reduction of the contribution which would
otherwise be made for the Plan Year involved.
SECTION 1.14. "COMPANY CONTRIBUTIONS ACCOUNT" means the
Account consisting of the balance attributable to Company
Contributions.
SECTION 1.15. "COMPENSATION" means a Member's base
compensation received for services rendered to an Employer, but
not in excess of the annual compensation limitation then in
effect under Code Section 401(a)(17) (or any higher amount that
may be allowed by Treasury Department Regulations), which term
shall include the amount of a Member's Salary Deferral, but shall
not include, by way of example rather than by way of limitation,
overtime pay, bonuses, severance pay, distributions on Units,
reimbursement for moving expenses, reimbursement for educational
expenses, reimbursement for any other expenses, contributions or
benefits paid under this Plan or any other plan of deferred
compensation, or any other extraordinary item of compensation or
income; provided that in the case of a Member whose compensation
from an Employer includes commissions, commissions shall be
included only to the extent that the Member's aggregate
compensation taken into account does not exceed $100,000. In
addition, Compensation shall not include amounts paid to
non-resident aliens which do not constitute income from United
<PAGE>
States sources (within the meaning of Section 862 of the Code)
except in the case of a non-resident alien who is a Member and
for whom the Company so specifies.
SECTION 1.16. (A) "EMPLOYEE" means, except as provided
in Subsection (c), any person employed by an Employer or an
Affiliate.
(b) An Excluded Employee (as defined in Subsection (c))
shall be considered an Employee for all purposes under the Plan
except that -
(1) an Excluded Employee may not become a Member
while he remains an Excluded Employee, and
(2) a Member who becomes an Excluded Employee
shall be an Inactive Member while he remains an Excluded
Employee.
(c) An Excluded Employee shall mean an individual in
the employ of an Employer or an Affiliate who -
(1) is employed by an Affiliate that is not an
Employer; or
(2) is included in a unit of employees covered by
a collective bargaining agreement between
employee representatives and one or more
Employers or Affiliates, if retirement
benefits were the subject of good faith
bargaining between such employee
representatives and any such Employer or
Affiliate; or
(3) is not an Excluded Employee under
Paragraph (4) of this Subsection (c) and is
neither a resident nor a citizen of the United
States, nor receives "earned income", within
the meaning of Section 911(b) of the Code,
from an Employer or Affiliate that constitutes
income from sources within the United States,
within the meaning of Section 861(a)(3) of the
Code, unless the individual became a
Participant prior to becoming a non-resident
alien and the Company stipulates that he shall
not be an Excluded Employee; or
(4) is not a citizen of the United States, unless
the individual (A) was initially engaged as an
Employee by an Employer or an Affiliate to
render services entirely or primarily in the
<PAGE>
United States or (B) is an Employee of an
Employer which is a United States entity, and
unless, in the case of an individual referred
to in either Subparagraph (A) or (B) of this
Paragraph 4, the Company stipulates that he
shall not be an Excluded Employee; or
(5) is accruing benefits and/or receiving
contributions under a retirement plan of an
Affiliate which operates entirely or primarily
outside the United States other than this Plan
or the Retirement Plan for Employees of
Alliance Capital Management L.P. unless, in
either case, the Company stipulates that he
shall not be an Excluded Employee; or
(6) is compensated on a commission arrangement
which does not provide for payment of periodic
draws against actual commissions earned; or
(7) is a "leased employee" within the meaning of
Section 414(n) of the Code; or
(8) is designated on the payroll system of his
Employer as a "Former ECMC Employee".
SECTION 1.17. "EMPLOYER" means the Company and any
Affiliate which, with the consent of the Board, has adopted the
Plan as a participant herein, and any successor to any such
Employer.
SECTION 1.18. "EMPLOYMENT COMMENCEMENT DATE" means -
(a) the date on which an Employee first performs
an Hour of Service, or
(b) in the case of a former Employee who has
incurred a Break in Service, the date on which he first completes
an Hour of Service following his Separation from Service.
SECTION 1.19. "ENTRY DATE" means January 1 and July 1
of each Plan Year after 1988.
SECTION 1.20. "HIGHLY COMPENSATED EMPLOYEE" means any
Employee who for any year after 1986 is a "highly compensated
employee" within the meaning of Code Section 414(q).
<PAGE>
SECTION 1.21. (a) "HOUR OF SERVICE" means -
(1) each hour for which an Employee is paid, or
entitled to payment, by an Employer or Affiliate for the
performance of duties for such Employer or Affiliate,
credited for the Plan Year or other computation period
in which such duties were performed; or
(2) each hour of a period during which no duties
are performed due to vacation, holiday, illness,
incapacity, layoff, jury duty, military duty or leave of
absence, determined in accordance with the following
rules:
(A) if the Employee is directly or indirectly
paid, or entitled to payment, by an Employer or
Affiliate on account of such period of absence -
(i) he shall be credited with Hours of
Service during the entire period of absence in
accordance with Subsections (b) and (c), if he
returns to the employ of an Employer or Affiliate
at the conclusion of such period: and
(ii) he shall be credited with Hours of
Service in accordance with Subsections (b) and (c)
up to a maximum of five hundred (500) Hours of
Service in each such period of absence, if he does
not return to the employ of an Employer or
Affiliate at the conclusion of such period;
(B) if the Employee is not paid, or entitled to
payment, by an Employer or Affiliate on account of such
period of absence -
(i) he shall be credited with forty (40) Hours
of Service for each week, or eight (8) Hours of
Service for each week day, of the period of
absence, if he returns to the employ of an Employer
or Affiliate at the conclusion of such period; and
(ii) he shall be be credited with no Hours of
Service in respect of such period of absence, if he
does not return to the employ of an Employer or
Affiliate at the conclusion of such period;
(3) each hour during the Employee's period of
service in the Armed Forces of the United States,
credited on the basis of forty (40) Hours of Service for
each week, or eight (8) Hours of Service for each week
day, of such service, if the Employee retains
<PAGE>
re-employment rights under the Military Selective
Service Act and is re-employed by an Employer or
Affiliate within the period provided by such Act; and
(4) each hour for which an Employee has been
awarded, or is otherwise entitled from an Employer or
Affiliate, irrespective of mitigation of damages, if he
is not entitled to credit for such hour under any other
Paragraph of this Subsection (a).
(5)(A) solely for purposes of Section 1.08, each
hour of an Employee's absence commencing on or after
January 1, 1985 -
(i) by reason of the pregnancy of such
Employee;
(ii) by reason of the birth of a child of such
Employee;
(iii) by reason of the placement of a child in
connection with the adoption of such child by the
Employee; or
(iv) for purposes of caring for such child for a
period beginning immediately following such birth
or placement, determined in accordance with
Subparagraphs (B), (C) and (D).
(B) The number of hours credited to an Employee
pursuant to Subparagraph (A) shall be:
(i) the number of hours which otherwise would
normally have been credited to such Employee but for
such absence, or
(ii) in any case in which the Plan cannot
determine the number of hours which would normally be
credited to such individual, a total of eight (8) Hours
of Service for each day of such absence,
except that the total number of Hours of Service
credited to an Employee under this Paragraph (5) shall
not exceed 501 Hours of Service for any such period of
absence.
(C) The Hours of Service credited to an Employee
pursuant to this Paragraph (5) shall be credited:
(i) only in the Anniversary Year in which such
period of absence began, if such Employee would be
<PAGE>
prevented from incurring a Break in Service in such
Anniversary Year solely because of the crediting of
Hours of Service during such period of absence pursuant
to this Paragraph (5); or
(ii) in any other case, in the Anniversary Year
next succeeding the commencement of such Period of
absence.
(D) Notwithstanding the foregoing, an Employee
shall not be credited with Hours of Service pursuant to
this Paragraph (5) unless such Employee shall furnish to
the Committee on a timely basis such information as the
Committee shall reasonably require to establish:
(i) that the absence from work is for a reason
described in Subparagraph (A) hereof; and
(ii) the number of days during which such
absence continued.
(b) The number of Member's Hours of Service and
the Plan Year or other computation period to which they are to be
credited shall be determined in accordance with Section
2530.200b-2 of the Rules and Regulations for minimum Standards
for Employee Pension Benefit Plans, which Section is hereby
incorporated by reference into this Plan.
(c) In the case of an Employee whose Compensation
is not determined on the basis of certain amounts for each hour
worked, such Employee's Hours of Service need not be determined
from employment records, and such Employee may, in accordance
with uniform and non-discriminatory rules adopted by the
Committee, be credited with forty-five (45) Hours of Service for
each week in which he would be credited with any Hours of Service
under the provisions of Subsection (a) or (b).
SECTION 1.22. "INACTIVE MEMBER" means a Member
described in Section 2.02(b). An Inactive Member shall be
treated as a Member for purposes of Article VII and Section
11.03, but shall not otherwise be deemed a Member of the Plan.
SECTION 1.23. "INDEPENDENT FIDUCIARY" means a person or
entity who is not an employee or officer of the Company or its
Affiliates who is appointed by the Company pursuant to Section
7.10 to perform the functions described therein.
SECTION 1.24. "INVESTMENT FUND" means those investment
funds which may, from time to time, be made available for
investment pursuant to Article VII.
<PAGE>
SECTION 1.25. "LEAVE OF ABSENCE" means -
(a) absence on leave approved by an Employee's
employer, if the period of such leave does not exceed two (2)
years and the Employee returns to the employ of an Employer or an
Affiliate upon its termination; or
(b) absence due to service in the Armed Forces of the
United States, if such absence is caused by war or other national
emergency or an Employee is required to serve under the laws of
conscription in time of peace, and if the Employee returns to the
employ of an Employer or an Affiliate within the period provided
by law; or
(c) absence for a period not in excess of thirteen (13)
consecutive weeks due to leave granted by an Employee's employer,
military service, vacation, holiday, illness, incapacity, layoff,
or jury duty, if the Employee does not return to the employ of an
Employer or Affiliate at the end of such period. In granting or
withholding Leaves of Absence, each Employer or Affiliate shall
apply uniform and non-discriminatory rules to all Employees in
similar circumstances.
SECTION 1.26. "LOAN ACCOUNT" means the account
maintained by the Committee for a "Borrower" as defined in
Section 7.07 in which a loan by the Borrower made pursuant to
that Section is held.
SECTION 1.27. "MEMBER" means any person who has been
admitted to membership in this plan pursuant to Section 2.01 or
2.03 and whose membership has not terminated pursuant to Section
2.02. In addition, for purposes of Article VII and Section
11.03, the term "Member" includes a former Member or Beneficiary
for whom an Account is maintained under the Plan.
SECTION 1.28. "MEMBER CONTRIBUTIONS ACCOUNT" means the
Account maintained for a Member in which are held voluntary
contributions made under the Plan by the Member prior to 1989, if
any.
SECTION 1.29. "MEMBER SALARY DEFERRAL" means an
elective salary deferral made by a Member in accordance with
Section 5.01.
SECTION 1.30. "MEMBER SALARY DEFERRAL ACCOUNT" means
the Account of a Member established pursuant to Section 7.02
consisting of the balance attributable to his Member Salary
Deferrals.
<PAGE>
SECTION 1.31. "NORMAL RETIREMENT DATE" means the first
day of the calendar month coincident with or next following a
Member's sixty-fifth (65th) birthday.
SECTION 1.32. "PERMANENT DISABILITY" means a physical
or mental disability which a licensed physician acceptable to the
Company has certified as permanent or likely to be permanent and
as rendering the Member unable to perform his customary duties.
In the determination of Permanent Disability, the Company shall
act in a uniform and non-discriminatory manner with respect to
all Employees similarly situated.
SECTION 1.33. "PLAN" means this Profit Sharing Plan, as
herein set forth, and as hereafter amended from time to time.
SECTION 1.34. "PLAN YEAR" means the calendar year.
SECTION 1.35. "REQUIRED BEGINNING DATE" means for a
Member April 1 of the calendar year following the calendar year
in which the Member attains age 70-1/2, provided that in the case
of a Member who attained age 70-1/2 before January 1, 1989, the
applicable date shall be:
(a) for a Member who is not a 5-percent owner, April 1
of the calendar year following the calendar year in which occurs
the Member's Retirement or attainment of age 70-1/2;
(b) for a Member who is a 5-percent owner during any
year beginning after December 31, 1989, the April 1 following the
later of:
(1) the calendar year in which the Member attains
age 70-1/2, or
(2) the earlier of the calendar year with or
within which ends the Plan Year in which the Member
becomes a 5-percent owner, or the calendar year in which
the Member's Retirement occurs; and
(c) for a Member who is not a 5-percent owner who
attained age 70-1/2 during 1988 and who has not retired as of
January 1, 1989, April 1, 1990.
A Member is a 5-percent owner for purposes of this section if the
Member is a "5-percent owner" as defined in section 416(i) of the
Code (determined in accordance with section 416 but without
regard to whether the Plan is top-heavy within the meaning of
Code Section 416(g)) at any time during the Plan Year ending with
or within the calendar year in which such owner attains age
66-1/2 or any subsequent Plan year.
<PAGE>
SECTION 1.36. "RETIREMENT" means a Separation from
Service (a) on or after a Member's Normal Retirement Date or (b)
on account of his Permanent Disability.
SECTION 1.37. "ROLLOVER ACCOUNT" means the Account
attributable to contributions and transfers referred to in
Section 5.03.
SECTION 1.38. "ROLLOVER CONTRIBUTION" means an amount
contributed or transferred to the Trust in accordance with
Section 5.03.
SECTION 1.39. "SEPARATION FROM SERVICE" means
termination of employment with an Employer or Affiliate for any
reason; provided, however, that no Separation from Service shall
be deemed to occur upon an Employee's transfer from the employ of
one Employer or Affiliate to another Employer or Affiliate.
SECTION 1.40. "TRUST" means the trust established
pursuant to the Trust Agreement to hold the assets of the Plan.
SECTION 1.41. "TRUST AGREEMENT" means the trust
agreement providing for the Trust Fund.
SECTION 1.42. "TRUST FUND" means all the assets of the
Plan which are held by the Trustee under the Trust Agreement.
SECTION 1.43. "TRUSTEE" means the trustee or trustees
from time to time in office under the Trust Agreement.
SECTION 1.44. "UNALLOCATED FORFEITURES ACCOUNT" means
the Account to be maintained by the Committee pursuant to
Section 9.06(b).
SECTION 1.45. "UNIT" means a unit representing the
assignment of beneficial ownership of limited partnership
interests in the Company.
SECTION 1.46. "YEARS OF SERVICE" means the aggregate
period of service with which an Employee is credited under the
provisions of Article III.
<PAGE>
ARTICLE II
MEMBERSHIP
SECTION 2.01. ADMISSION TO THE PLAN.
(a) Each individual who was a Member of the Plan on
December 31, 1988 and who did not cease to be a Member on that
date shall continue to be a Member on January 1, 1989. Each
Employee whose Employment Commencement Date was before January 1,
1989 and who prior to January 1, 1989 completed at least one (1)
Year of Service shall become a Member on January 1, 1989, or on
the first Entry Date subsequent to the date on which he attains
his twenty-first (21st) birthday, whichever is later, provided he
is an Employee on such January 1, 1989 or other Entry Date, as
applicable.
(b) Except as otherwise provided in Section 2.01(a) and
2.03, an Employee of an Employer shall become a Member of the
Plan, if he was not a Member on January 1, 1989, on the later
of -
(1) the first Entry Date subsequent to the date on
which he attains his twenty-first (21st) birthday, or
(2) the first Entry Date subsequent to the first
Anniversary Year in which he completes one (1) Year of Service.
(c) Each Employee who is employed by an Affiliate that
is not an Employer and who subsequently becomes an Employee of an
Employer shall become a Member of the Plan -
(1) immediately upon becoming an Employee of such
Employer, if he previously satisfied the age and service
requirements of Subsection (b), or
(2) in accordance with Subsection (b), if he does
not become a Member pursuant to Paragraph (1).
SECTION 2.02. TERMINATION OF MEMBERSHIP
AND INACTIVE MEMBERSHIP.
(a) A Member shall cease to be a Member as of the date
of his Separation from Service, if he incurs a Break in Service
in the Anniversary Year of such Separation from Service or in the
following Anniversary Year.
(b) A Member shall become an Inactive Member as of the
last day of his first Anniversary Year in which he completes five
hundred (500) or fewer Hours of Service without having incurred a
Separation from Service. An Inactive Member shall continue to be
<PAGE>
such until either (1) the date on which he ceases to be a Member
pursuant to Subsection (a) or (2) the last day of the first
subsequent Anniversary Year during which the completes more than
five hundred (500) Hours of Service.
SECTION 2.03. READMISSION TO THE PLAN.
A former or Inactive Member who has incurred a Break in
Service shall again become a Member as of the first Entry Date
coincident with or immediately after his completion of more than
five hundred (500) Hours of Service in any subsequent Anniversary
Year.
SECTION 2.04. DESIGNATION OF BENEFICIARY.
(a) Each Member may designate in writing on a form
prescribed by and filed with the Committee, a Beneficiary to
receive the aggregate balance of his Accounts and his Loan
Account, if any, in the event that his death should occur before
the entire amount of such balance has been paid to him, except
that if the Member has an Eligible Spouse, such designation shall
not be effective unless the Eligible Spouse has consented in
writing to the designation of a Beneficiary other than such
Eligible Spouse and such consent is witnessed by a member of the
Committee or a Notary Public. In addition, such designation may
include the designation of a secondary Beneficiary to receive
such death benefit if the primary Beneficiary does not qualify or
survive.
(b) If no Beneficiary has been designated, or if, for
any reason no person qualifies as a Beneficiary at the time of
the Member's death, or if no designated Beneficiary survives the
Member, the interest of the deceased Member shall be paid to the
Eligible Spouse. If the Member has no Eligible Spouse, the
Committee may, but shall not be required to, designate a
Beneficiary, but only from among the Member's spouse, descendants
(including adoptive descendants), parents, brothers and sisters
or nephews and nieces and may consider requests from any
Beneficiary which it designates as to the manner of payment of
the benefit. If the Committee declines to make such designation,
the benefit payable hereunder upon the Member's death shall be
paid in a lump sum to his estate.
(c) For purposes of this Section 2.04, Section 9.03 and
Section 10.05, "Eligible Spouse" means, except to the extent as
may otherwise be provided in any "qualified domestic relations
order" within the meaning of Section 414(p) of the Code,
(1) in the case of a Member who dies before the
commencement of any installment payments pursuant to Section
10.01(b), his lawfully married spouse on the date of his death if
<PAGE>
such spouse was married to the Member during the entire one (1)
year period ending on the Member's date of death;
(2) in the case of a Member who dies after the
commencement of any installment payments pursuant to Section
10.01(b), his lawfully married spouse on the date such payments
commenced if (A) such spouse was married to the Member during the
entire one (1) year period ending on the date such installment
payments commenced or (B) such spouse married the Member within
one (1) year before such installment payments commenced and the
Member and such spouse have been lawfully married during the
entire one (1) year period ending on the Member's date of death.
<PAGE>
ARTICLE III
CREDITING OF SERVICE
SECTION 3.01. YEAR OF SERVICE.
Each Employee shall be credited with one Year of Service
for each Anniversary Year ending after December 31, 1975 during
which he completes more than five hundred (500) Hours of Service;
provided, however, that -
(a) if an individual becomes a Member of the Plan after
December 31, 1975, he shall not receive credit for a Year of
Service for any Anniversary Year before the Anniversary Year in
which he first completes one thousand (1,000) Hours of Service;
and
(b) an Employee shall be credited with a Year of
Service for the last Anniversary Year during which he is an
Employee only if he completes at least one thousand (1,000) Hours
of Service in such Anniversary Year.
SECTION 3.02. NUMBER OF YEARS OF SERVICE.
An Employee's aggregate number of Years of Service shall
be computed by adding (a) his number of Years of Service
completed since his last Break in Service, if any, and (b) the
number of Years of Service restored pursuant to Section 3.03.
SECTION 3.03. RESTORATION OF SERVICE.
(a) If a former Member again becomes a Member after
having incurred a Break in Service, the Years of Service which he
had completed prior to such Break in Service shall be disregarded
for all purposes under this Plan until he shall have completed
one (1) Year of Service after such Break in Service.
(b) If a former Member -
(1) has incurred a number of consecutive Breaks in
Service which equals or exceeds the greater of (A) five (5) or
(B) the number of his Years of Service before such Breaks in
Service,
(2) had no vested interest in his Company
Contributions Account at the time of such Break in Service, and
(3) again becomes a Member,
his Years of Service prior to such Breaks in Service shall be
disregarded for all purposes under this Plan.
<PAGE>
SECTION 3.04. SERVICE WITH NON-EMPLOYER
AFFILIATES.
Any Years of Service completed by an Employee while in
the employ of an Affiliate that is not an Employer shall be
credited under this Article III on the same basis as service with
an Employer.
<PAGE>
ARTICLE IV
COMPANY CONTRIBUTIONS
SECTION 4.01. COMPANY PROFIT SHARING
CONTRIBUTIONS.
The Board shall determine the Company Contribution, if
any, which shall be contributed to the Trust Fund out of the
Company's current and accumulated earnings and allocated to the
Members' Company Contributions Accounts pursuant to Article VI in
respect of each Plan Year. No Company Contribution under this
Section 4.01 or Section 4.02 may be made which cannot be
allocated under the provisions of Article XVI. For purposes of
this Section 4.01 and Section 4.02, "current and accumulated
earnings" means current and accumulated net income for book
purposes.
SECTION 4.02. COMPANY MATCHING CONTRIBUTIONS.
Effective for Plan Years beginning after December 31,
1989, the Company shall contribute to the Trust Fund out of the
Company's current and accumulated earnings an amount equivalent
to that percentage, not to exceed 100% of each Member's Member
Salary Deferral elected for the Plan Year involved, such
percentage to be fixed by the Board; provided that the Company
may establish a limit on the amount of Member Salary Deferrals
that are so matched specified either as a dollar amount or as a
percentage of Compensation. The contribution determined under
this Section 4.02 for a particular Member shall be allocated to
the Member's Company Contributions Account.
SECTION 4.03. TIME OF CONTRIBUTIONS.
Contributions may be made in one or more installments at
such time or times during the Plan Year, or during any additional
period provided by law for the making of contributions in respect
of such Plan Year, as the Company shall determine. Except as
otherwise provided in the Plan, for purposes of valuing the Trust
Fund and making allocations to Accounts, all contributions in
respect of any Plan Year shall be deemed to have been made on the
last Accounting Date of the Plan Year, regardless of the actual
date of contribution.
SECTION 4.04. IRREVOCABILITY OF CONTRIBUTIONS.
(a) Except as provided in Subsection (b), any
and all contributions made by the Company shall be irrevocable
and shall be transferred to the Trustee to be used in accordance
with the provisions of this Plan for providing the benefits and
paying the expenses thereof. Neither such contributions nor any
<PAGE>
income therefrom shall be used for, or diverted to, purposes
other than for the exclusive benefit of Members or their
Beneficiaries and payment of expenses of this Plan and the Trust.
(b) (1) If any contribution is made to this Plan by a
mistake of fact, such contribution shall be returned to the
Company within one (1) year following the date that such
contribution is made.
(2) Each Company Contribution made to this Plan is
conditioned upon its deductibility under Section 404 of the Code.
Each contribution, to the extent disallowed as a deduction, may
be returned to the Company within one (1) year following the date
of disallowance.
SECTION 4.05. RETURN OF EXCESS AGGREGATE
CONTRIBUTIONS
(a) Notwithstanding any other provision of the Plan,
any amount determined by the Committee to be an "Excess Aggregate
Contribution" as defined in Subsection (b), shall be distributed
to Members who are Highly Compensated Employees by no later than
the last day of the Plan Year following the Plan Year in which
the Excess Contribution occurred.
(b) "Excess Aggregate Contribution" for purposes of
this Section 4.05 means a Company Contribution pursuant to
Section 4.02 attributable to a Highly Compensated Employee which
exceeds the maximum amount of such deferral permitted under Code
Section 401(m)(3), and which is described in Code Section
401(m)(6)(B), plus the income allocable to such amount. The
allocable income shall be calculated by multiplying the total
income earned on all of the Member's Company Contributions
pursuant to Section 4.02 for the Plan Year in which the Excess
Aggregate Contribution is being returned by a fraction, the
numerator being Company matching contributions pursuant to
Section 4.02 in excess of the permitted amount and the
denominator being the Member's account balance in his Company
Contributions Account on the last Accounting Date of the prior
Plan Year. The Excess Aggregate Contribution otherwise
distributable under this Section 4.05 shall be adjusted for
investment losses and for prior distributions to the Members
affected, as permitted by Treasury Regulations.
<PAGE>
ARTICLE V
MEMBER SALARY DEFERRAL ELECTIONS, SALARY
DEFERRAL CONTRIBUTIONS AND ROLLOVER CONTRIBUTIONS
SECTION 5.01. MEMBER SALARY DEFERRAL ELECTIONS.
For each Plan Year beginning after December 31, 1989,
any Member may elect to defer the receipt of up to five percent
(5%) (or such other amount as the Committee may direct) of his
Compensation while a Member for the Plan Year, in such increments
that the Committee may decide, and direct the Employer to
contribute the amount so deferred into the Trust to be invested
in the Investment Fund or Funds designated by the Member. A
Member's election shall be made in writing on a form prescribed
by the Committee filed with the Member's Employer, prior to the
date that the Compensation would but for the election be made
available to the Member, and the election shall remain in effect
until it is modified or terminated, all in accordance with rules
established by the Committee. In no event may a Member's salary
deferral exceed the $7,000 dollar limitation (or any higher
amount that may be allowed by Treasury Regulations), as provided
in Code Section 402(g). Any Member's salary deferral for any pay
period may be further adjusted, at the Committee's direction and
discretion, to comply with the discrimination standards
applicable to Code Section 401(k) arrangements in particular, to
all plans qualified under Code Section 401(a) in general, and/or
with the limitations contained in Article XVI.
SECTION 5.02. ALLOCATION OF MEMBER SALARY
DEFERRAL ELECTIONS.
A Salary Deferral Election made in accordance with
Section 5.01 shall be allocated among the Investment
Funds in accordance with the provisions of Section 7.03.
SECTION 5.03. ROLLOVER CONTRIBUTIONS.
(a) An Employee may, with the consent of the Committee,
contribute to the Plan, or authorize the plan sponsor,
administrator or trustee of a qualified employee benefit plan in
which he previously participated to transfer to the Trust, any
distribution or other payment or amount which is permitted to be
contributed or transferred to the Trust in accordance with
Section 402, 403(a) or 408(d)(3)(A)(ii) or any other applicable
provision of the Code or the regulations or rulings thereunder
permitting the contribution or transfer. Any such Rollover
Contribution shall be received by the Trustee subject to the
condition precedent that its transfer complies in all respects
with the requirements of the applicable Code provisions,
regulations or rules pertaining thereto and, upon any discovery
<PAGE>
that any such contribution or transfer does not so comply, the
amount of the Rollover Contribution, together with all changes in
the value of the Trust Fund allocated thereto, shall revert to
the individual by or on whose behalf it was made as of the next
following Accounting Date. The decision of the Committee for the
Trust to accept a Rollover Contribution shall not give rise to
any liability by the Committee, the Company, the Plan or the
Trustee to the Employee or any other party on account of a
subsequent determination that such Rollover Contribution does not
qualify to be held in the Trust. A Rollover Contribution may,
subject to the consent of the Committee, be made at any time
during the Plan Year, shall not be subject to the limitations of
Article XVI, and shall as of the Accounting Date next following
receipt of the Rollover Contribution by the Trustee be allocated
in full to the Member's Rollover Account except as regards the
amount thereof equal to the Member's voluntary contributions, if
any, to a qualified plan, which amount shall be allocated to the
Member's Member Contributions Account. Until so allocated the
amount of a Rollover Contribution shall be held unallocated in
the Trust Fund.
(b) Each Employee or former Employee who becomes a
participant in a pension, profit sharing or stock bonus plan
described in Section 401(a) of the Code (a "transferee plan")
may, not later than thirty (30) days (or such lesser period as is
acceptable to the Committee) prior to any Accounting Date,
request the Committee to direct the Trustees to, and upon such
request, the Committee in its sole discretion may direct the
Trustees to, transfer in cash the nonforfeitable balance in such
Employee's Accounts to an account maintained by any such
transferee plan on the Employee's behalf, as of such Accounting
Date; provided, however, that such transferee plan permits such
transfer.
(c) Any Employee who makes or causes to be made a
contribution or transfer pursuant to Subsection (a) and who has
not become a Member pursuant to the provisions of Article II
shall, except for purposes of Sections 4.01, 5.01 and 6.01, be
considered a Member of this Plan.
SECTION 5.04. RETURN OF EXCESS MEMBER
SALARY DEFERRAL ELECTIONS.
(a) Notwithstanding any other provisions of the Plan, a
Member may request the Committee in writing by no later than the
March 1 following the end of the preceding calendar year, to have
distributed to the Member from the Trust the amount of the
Member's Member Salary Deferrals which are in excess of the
amount permitted under Code Section 402(g) for such calender
year.
<PAGE>
(b) Such amounts claimed under subsection (a) and any
income allocable to such amount shall be distributed from the
Plan no later than April 15 of the calendar year in which the
request was made. This Section 5.04 shall also apply to amounts
deferred under the terms of Section 6.02(c) for Plans Years
beginning after December 31, 1986.
SECTION 5.05. RETURN OF EXCESS CONTRIBUTIONS.
(a) Notwithstanding any other provision of the Plan,
any amount determined by the Committee to be an "Excess
Contribution" as defined in Subsection (b), shall be distributed
to Members who are Highly Compensated Employees by no later than
the last day of the Plan Year following the Plan Year in which
the Excess Contribution occurred.
(b) "Excess Contribution" for purposes of this Section
5.05 means a Member Salary Deferral attributable to a Highly
Compensated Employee which exceeds the maximum amount of such
deferral permitted under Code Section 401(k)(3)(A)(ii), and which
is described in Code Section 401(k)(8)(B), plus the income
allocable to such amount. The allocable income shall be
calculated by multiplying the total income earned on all of the
Member's Salary Deferrals for the Plan Year in which the Excess
Contribution is being returned by a fraction, the numerator being
the Member Salary Deferral in excess of the permitted amount and
the denominator being the Member's account balance in his Salary
Deferral Account on the Accounting Date of the prior Plan Year.
The Excess Contribution otherwise distributable under this
Section 5.05 shall be adjusted for investment losses and for
prior distributions to the Members affected, as permitted by
Treasury Regulations.
(c) This Section 5.05 shall also apply to amounts
deferred under Section 6.02(c) for Plan Years beginning after
December 31, 1987.
<PAGE>
ARTICLE VI
ALLOCATIONS OF COMPANY CONTRIBUTIONS AND FORFEITURES
SECTION 6.01. CONTRIBUTIONS.
(A) MEMBERS ELIGIBLE TO SHARE IN COMPANY
CONTRIBUTIONS.
The Company Contribution for each Plan Year shall be
allocated and credited to the Members' Company Contributions
Account in accordance with this Article as of the last Accounting
Date of the Plan Year (immediately following the allocation of
income and appreciation in accordance with Section 8.01) among
those Members who are Employees of an Employer or an Affiliate on
the Accounting Date.
(B) ALLOCATION OF COMPANY CONTRIBUTION.
The Company Contribution under Section 4.01 for each
Plan Year, determined without regard to Section 6.02(c), shall be
allocated among the Members eligible for allocation in the
proportion which each such Member's Compensation for such Plan
Year while a Member bears to the total Compensation for all
Members eligible to share in allocations pursuant to Subsection
(a). The Company Contribution under Section 4.02 shall be
allocated on the same basis upon which it was determined.
SECTION 6.02. ALLOCATION TO COMPANY CONTRIBUTIONS
ACCOUNTS.
(a) The amount of the Company Contributions in respect
of Plan Years ending after 1980 which are allocable to each
Member shall be allocated to the Member's Company Contributions
Account as of the last Accounting Date of the Plan Year for which
it is made, as provided in this Section 6.02.
(b) With respect to Plan Years beginning before
January 1, 1990, eighty percent (80%) of the Company Contribution
which is allocated to a Member in respect of any Plan Year after
1980 shall be placed in his Company Contributions Account.
(c) With respect to Plan Years beginning before
January 1, 1990, on a date to be specified by the Committee,
which shall be no later than thirty (30) days after the date the
annual Company Contribution is declared but at least ten (10)
days prior to the time the annual Company Contribution is made,
each Member may elect to defer any portion of the remaining
Company Contribution allocated to such Member for any Plan Year
after 1980 in accordance with Section 6.01 which was not placed
in his Company Contributions Account pursuant to Subsection (b).
<PAGE>
The amount that any Member so elects to defer shall be credited
to such Member's Company Contributions Account. The remainder of
such amount shall be paid to him in cash as soon after the date
of such election as is practicable. If any eligible Member fails
to make such election, the entire amount allocated to such Member
for such Plan Year shall be credited to his Company Contributions
Account.
(d) Any amount that a Member elects to defer pursuant
to Subsection (c) shall be subject to the limitations and
discrimination standards applicable to elective deferrals under
Code Section 401(k), and the provisions of Section 5.04 and
Section 5.05 shall apply to these deferred amounts.
(e) Effective for Plan Years beginning after
December 31, 1989, the entire amount allocated under Section
6.01(b) to a Member for a Plan Year shall be credited to his
Company Contributions Account.
<PAGE>
ARTICLE VII
ACCOUNTS, ALLOCATIONS AND LOANS
SECTION 7.01. INVESTMENT FUNDS.
Subject to the provisions of any applicable state and
Federal securities laws and to the regulations and rulings of any
regulatory agencies administering such laws, the Trustee shall,
at the direction of the Committee, establish separate Investment
Funds within and as a part of the Trust Fund for the purpose of
investing the balances held in the Accounts and in the
Unallocated Forfeitures Account. The Committee is specifically
authorized to direct the Trustee to establish an Investment Fund
entitled the Alliance Limited Partnership Unit Fund in which
Members may invest their Company Contributions Account and, if
the Committee so provides (after considering the requirements of
applicable securities laws), Member Salary Deferral Accounts and
Member Contributions Accounts. The Alliance Limited Partnership
Unit Fund shall be invested primarily in Units.
SECTION 7.02. SEPARATE ACCOUNTS.
The Committee shall maintain a separate Company
Contributions Account, Member Contributions Account, Member
Salary Deferral Account, Rollover Account and Loan Account for
each Member as relevant. The Committee shall maintain records of
each Member's balance in each such Account and each Investment
Fund in which the Account is invested in order to provide an
accurate and current statement to the Member pursuant to
Section 8.07.
SECTION 7.03. INVESTING OF THE COMPANY
CONTRIBUTIONS.
All contributions allocated to a Member's Account as
well as the portion of a Rollover Contribution allocated to a
Member's Member Contribution Account shall be allocated among the
Investment Funds in accordance with the then current investment
election. If no proper election is on file governing the
contributions involved, such contributions shall be invested in
the Investment Fund specified for the purpose by the Committee.
SECTION 7.04. ELECTIONS.
(a) The Committee shall prescribe such rules as it
deems appropriate regarding the form, filing frequency and
timeliness of elections under Section 7.03 as well as concerning
the percentage or amounts of a contribution which may be invested
in an Investment Fund. In these rules, the Committee may specify
that each Account of a Member be invested in the Investment Funds
<PAGE>
selected by the Member in the same proportion. An election
properly on file shall remain in force until changed.
SECTION 7.05. INTER-ACCOUNT TRANSFERS.
(a) A Member may elect, on a form provided by and
timely filed with the Committee, to transfer all or a portion of
the balance of any Account which is invested in an Investment
Fund to one or more other Investment Funds. The Committee shall
prescribe such rules as it deems appropriate regarding the
frequency and timeliness of elections and the percentage of or
amount from an Account which may be so transferred.
(b) A transfer made pursuant to an election pursuant to
Subsection (a) shall be subject to the following limitations:
(1) Each Member's transfer will be effected as of
the Accounting Date immediately following timely receipt by the
Committee of the election.
(2) If there is insufficient cash available as of
an Accounting Date to effectuate fully all Members' elections to
transfer, such elections shall be proportionately reduced and
effectuated accordingly.
SECTION 7.06. UNALLOCATED FORFEITURE ACCOUNT.
The amount held from time to time in the Unallocated
Forfeiture Account shall be allocated among the Investment Funds
as specified by the Committee.
SECTION 7.07. LOANS.
Notwithstanding anything in this Plan to the contrary,
with the consent of the Committee and subject to the following
terms and conditions and such other terms and conditions as the
Committee may establish, any "party in interest" with respect to
the Plan within the meaning of Section 3(14) of ERISA who is a
Member or Beneficiary (a "Borrower") may borrow from the Trust
Fund to satisfy "an immediate and heavy financial need", as
defined below, of the Borrower:
(a) Loans shall be made available to all Borrowers on a
reasonably equivalent basis and shall not be made available to
highly compensated employees, officers or limited partners in an
amount greater than the amount made available to other Borrowers.
(b) Each loan shall be evidenced by a negotiable
promissory note in form satisfactory to the Committee.
<PAGE>
(c) The aggregate amount of a loan to a Borrower shall
not exceed the lesser of (1) $50,000 and (2) 50% of the
Borrower's vested interest in his Account(s) on the Accounting
Date immediately preceding the date the loan is made. The
minimum initial principal amount of each loan, however, shall be
not less than $1,000 or such greater amount as the Committee may
specify from time to time for loans made thereafter.
(d) Each loan shall bear a reasonable rate of interest
as determined by the Committee in its discretion in accordance
with applicable regulations.
(e) Each loan shall provide for substantially level
amortization over a period not to exceed five years (with
payments of principal and interest to be made not less frequently
than quarterly), provided that if the proceeds of the loan are
used to acquire any dwelling unit which within a reasonable time
is to be used (determined at the time the loan is made) as the
principal residence of the Borrower, the repayment term may be
such longer period as the Committee shall determine. No loan
shall be made to any Borrower who is a Member, however, that
provides for a repayment period extending beyond the Borrower's
Normal Retirement Date. The Committee may require that payments
of principal and interest be made through payroll deductions.
(f) Each loan shall be made from the Loan Account of
the Borrower making the loan and interest paid thereon shall be
credited to that Loan Account. In his application for a loan,
the Borrower shall specify the Account from which monies are to
be transferred to his Loan Account in the amount of the loan,
which Account must be fully vested. Principal and interest paid
by a Member on a loan shall be held in the Member's Loan Account
uninvested and allocated to the Member's Company Contributions
Account as of the Accounting Date coincident with or next
following receipt of the principal and interest; provided that to
the extent the principal repaid derived from some other Account
of the Member the principal repaid shall be allocated to that
Account.
(g) A loan to a Borrower shall be secured by the
Borrower's vested Account(s) and/or such other property as the
Committee may deem acceptable and adequate security for the loan.
(h) A loan shall be made from the Trust Fund only as of
an Accounting Date after all valuations and allocations as of
that date have been completed. The Committee may provide that
loans can be made only as of the Accounting Date it specifies.
(i) A Borrower may not have more than one loan
outstanding at any time and the outstanding principal amount of a
loan may not be increased unless the Committee otherwise permits.
<PAGE>
(j) A loan shall be non-renewable and a Borrower may
not borrow any amount for a period of at least one year from the
date of full repayment of a prior loan to the Borrower.
(k) For purposes of this Section, other than the
references to a Borrower's Account(s), all plans described in
Code Section 401(a) maintained by the Company and any Affiliate
and the trust funds thereunder shall be treated as part of the
Plan and Trust Fund, respectively.
(l) For purposes of this Section, "an immediate and
heavy financial need" of a Borrower exists when the proceeds of
the loan will be used to pay for any of the following:
(1) Medical expenses of the Borrower, the
Borrower's spouse, or any child or dependent of the
Borrower which are deductible by the Borrower for United
States federal income tax purposes or which would be
deductible without regard to the amount of the
Borrower's adjusted gross income;
(2) The payment (excluding mortgage payments) of
all or part of the purchase price of the principal
residence of the Borrower and related closing and other
acquisition expenses;
(3) Tuition for post-secondary education for the
Borrower, the Borrower's spouse, or any child or
dependent of the Borrower;
(4) To prevent eviction of the Borrower from, or a
foreclosure of a mortgage on, the Borrower's principal
residence; or
(5) Rent or mortgage obligations which cannot be
met, or the cost of replacement of personal necessities
lost or destroyed as the result of circumstances or
events beyond the control of the Borrower.
A loan by a Borrower shall be treated as necessary to satisfy "an
immediate and heavy financial need" of the Borrower if the
Borrower represents in writing to the Committee, in form
satisfactory to it, that the amount of the loan will not exceed
the amount required to meet that need and that the need to that
extent cannot be relieved:
(A) through reimbursement or compensation by
insurance or otherwise;
<PAGE>
(B) by application, or liquidation on a reasonable
basis, of the Borrower's assets to the extent such
application or liquidation would not itself cause "an
immediate and heavy financial need";
(C) by cessation of voluntary contributions by or
at the election of the Borrower under any retirement
plan; or
(D) by withdrawal of Borrower contributions from
any retirement plan.
(m) The Committee shall on a timely basis before loans
are made available under this Section, prepare a written document
setting forth the following information and such other
information as the Committee deems relevant regarding loans from
the Plan:
(1) The identity of the person or positions
authorized to administer the loan program;
(2) A procedure for applying for loans;
(3) The basis on which loans will be approved or
denied;
(4) The procedure for determining a reasonable
rate of interest;
(5) The types of collateral which may secure a
loan; and
(6) The events constituting default and the steps
that will be taken to preserve Plan assets in
the event of such default.
The provisions of that document are incorporated herein by this
reference; provided, however, that if any provision of that
document conflicts with any other provision of the Plan, the Plan
provision shall control.
SECTION 7.08. VOTING RIGHTS.
If the Committee directs the Trustee to establish an
Investment Fund in which Members may invest in Units in
accordance with Section 7.01, each Member (or, in the event of
his death, his Beneficiary) shall have the right to direct the
Trustee to instruct the Assignor Limited Partner as to the manner
in which the limited partnership interests underlying the Units
allocated to his Accounts are to be voted on each matter brought
before a special meeting of limited partners and unitholders of
<PAGE>
the Company. In the exercise of this authority and discretion,
each such Member (or Beneficiary) shall be a "named fiduciary"
within the meaning of Section 403(a)(1) of the Act. Before each
such meeting of limited partners and unitholders, the Committee
shall cause to be furnished to each Member (or Beneficiary) a
copy of the proxy solicitation material, together with a form
requesting confidential directions on how the Assignor Limited
Partner shall be directed to vote the limited partnership
interests underlying the Units. Upon timely receipt of such
directions, the Trustee shall on each such matter direct the
Assignor Limited Partner to vote the limited partnership
interests underlying the Units allocated to such Member's
Accounts, and the Trustee shall have no discretion in such
matter. The instructions received by the Trustee from Members
shall be held by the Trustee in confidence and shall not be
divulged or released to any person, including officers or
employees of the general partner of the Company or any Affiliate.
The Trustee shall direct the Assignor Limited Partner as to
voting the limited partnership interests underlying the Units for
which it has not received direction in the same proportion as
those for which it has received direction, and the Trustee shall
have no discretion in such matter.
SECTION 7.09. RIGHTS ON TENDER OR EXCHANGE OFFER.
If the Committee directs the Trustee to establish an
Investment Fund in which Members may invest in Units in
accordance with Section 7.01, each Member (or, in the event of
his death, his Beneficiary) shall have the right, to the extent
of the number of Units allocated to his Accounts, to direct the
Trustee in writing as to the manner in which to respond to a
tender or exchange offer with respect to Units. In the exercise
of this authority and discretion, each such Participant shall be
a "named fiduciary" within the meaning of Section 403(a)(1) of
the Act. The Committee shall use its best efforts to timely
distribute or cause to be distributed to each Member (or
Beneficiary) such information as is distributed to unitholders of
the Company in connection with any such tender or exchange offer.
Upon timely receipt of such instructions, the Trustee shall
respond as instructed with respect to Units. The instructions
received by the Trustee from Members shall be held by the Trustee
in confidence and shall not be divulged or released to any
person, including officers or employees of the general partner of
the Company or any Affiliate. If the Trustee not to receive
timely instructions from a Member (or Beneficiary) as to the
manner in which to respond to such a tender or exchange offer,
the Committee shall direct the Trustee not to tender or exchange
any Units with respect to which such Member (or Beneficiary) has
the right of direction, and the Trustee shall have no discretion
in such matter.
<PAGE>
SECTION 7.10. CONFIDENTIALITY; APPOINTMENT OF
INDEPENDENT FIDUCIARY.
The Committee shall ensure that information relating to
Members' and Beneficiaries' purchase, holding and sale of Units
and the exercise of voting and tender rights with respect to
Units is maintained under procedures which are designed to
safeguard the confidentiality of such information, except to the
extent necessary to comply with applicable laws. Notwithstanding
anything contained in section 7.08 or 7.09 to the contrary, if
any situation arises which the Committee determines involves a
potential for undue influence by an Employer upon Members and
Beneficiaries in the exercise of voting and tender rights, the
Company shall appoint an Independent Fiduciary who shall perform
all of the functions of the Trustee described in, and who shall
be subject to all of the requirements and procedures set forth
in, Sections 7.08 and 7.09. The instructions received by the
Independent Fiduciary shall be held in confidence and shall not
be divulged or released to the Trustee or to any other person,
including officers or employees of the general partner of the
Company, the Company or any Affiliate.
<PAGE>
ARTICLE VIII
VALUATION
SECTION 8.01. VALUATION OF TRUST FUND.
All changes in the value of each Investment Fund as
determined by the Trustee in accordance with the Trust Agreement
(including income and expenses and realized and unrealized
appreciation and depreciation of assets of the Investment Fund,
determined in the case of mutual funds by reference to the net
asset value of such mutual funds on the Accounting Date, but
excluding Company Contributions, Member Salary Deferrals and
contributions or transfers pursuant to Section 5.03 made or
allocated subsequent to the last preceding Accounting Date),
shall be allocated by the Committee among the Company
Contributions Accounts, Member Contributions Accounts, Member
Salary Deferral Accounts and Rollover Accounts, portions of which
are held in the Investment Fund as of each Accounting Date pro
rata to the value of all such Accounts, respectively, at the
last preceding Accounting Date, but first reducing the balance of
each such Account as of the last preceding Accounting Date by any
distributions from the Account since that Accounting Date.
SECTION 8.02. VALUATION OF COMPANY CONTRIBUTIONS
ACCOUNTS.
The value of a Member's Company Contributions Account as
of any Accounting Date shall be the aggregate of the portions of
such Account invested in each Investment Fund as of that date.
The value of that portion of such Account invested in an
Investment Fund shall be the sum of -
(a) the value of such portion as of the last preceding
Accounting Date, plus or minus
(b) all changes in the value of the Investment Fund
since the last preceding Accounting Date allocable
thereto pursuant to Section 8.01, plus,
(c) the amount of transfer, if any, into such portion
and the amount of the Company Contribution, if any,
allocable thereto since the last preceding
Accounting Date pursuant to Article VI, minus
(d) any distributions from, and transfers out of, such
portion since the last preceding Accounting Date.
<PAGE>
SECTION 8.03. VALUATION OF MEMBER CONTRIBUTIONS
ACCOUNT.
The value of a Member's Member Contributions Account as
of any Accounting Date shall be the aggregate of the portions of
such Account invested in each Investment Fund as of that date.
The value of that portion of such Account invested in an
Investment Fund shall be the sum of -
(a) the value of such portion as of the last preceding
Accounting Date, plus or minus
(b) all changes in the value of the Investment Fund
since the last preceding Accounting Date allocable
thereto pursuant to Section 8.01, plus
(c) the amount, if any, transferred into such portion
pursuant to Section 5.04 in an amount equal to
voluntary contributions by the Member to the
transferor qualified plan or pursuant to
Section 7.05, minus
(d) any distributions from, and transfers out of, such
portion since the last preceding Accounting Date.
SECTION 8.04. VALUATION OF MEMBER SALARY
DEFERRAL ACCOUNTS.
The value of a Member's Member Salary Deferral Account
as of any Accounting Date shall be the aggregate of the portions
of such Account invested in each Investment Fund as of that date.
The value of that portion of such Account invested in an
Investment Fund shall be the sum of -
(a) the value of such portion as of the last preceding
Accounting Date, plus or minus
(b) all changes in the value of the Investment Fund
since the last preceding Accounting Date allocable
thereto pursuant to Section 8.01, plus
(c) the amount, if any, transferred into such portion
pursuant to Section 7.05 and the amount of Member
Salary Deferrals, if any, allocable thereto since
the last preceding Accounting Date, minus
(d) any distributions from, and transfers out of, such
portion since the last preceding Accounting Date.
<PAGE>
SECTION 8.05. VALUATION OF ROLLOVER ACCOUNTS.
The value of a Member's Rollover Account as of any
Accounting Date shall be the aggregate of the portions of such
Account invested in each Investment Fund as of that date. The
value of that portion of such Account invested in an Investment
Fund shall be the sum of:
(a) the value of such portion as of the last preceding
Accounting Date, plus or minus
(b) all changes in the value of the Investment Fund
since the last preceding Accounting Date allocable
thereto pursuant to Section 8.01, plus
(c) the amount of transfer, if any, into such portion
since the last preceding Accounting Date pursuant
to Section 5.03, minus
(d) any distributions from, and transfers out of, such
portion since the preceding Accounting Date.
SECTION 8.06. VALUATION OF LOAN ACCOUNTS.
The value of a Member's Loan Account as of any
Accounting Date shall be the amount of the outstanding principal
and accrued interest on the loan held therein plus the amount of
any cash held therein as of an Accounting Date.
SECTION 8.07. STATEMENT TO MEMBERS.
Within two hundred ten (210) days after the last
Accounting Date of each Plan Year, the Committee shall mail or
deliver to each Member a statement of the value of his Accounts
and his Loan Account, if any, as of such Accounting Date.
SECTION 8.08. UNALLOCATED FORFEITURES ACCOUNT.
The value of the Unallocated Forfeitures Account shall
be determined as provided in Section 8.02 applied as if the
addition to the Unallocated Forfeitures Account was a Company
Contributions Account.
<PAGE>
ARTICLE IX
DETERMINATION OF BENEFITS
SECTION 9.01. RETIREMENT.
Upon a Member's Retirement on or after his Normal
Retirement Date, he shall become entitled, at the time specified
in Article X, to a distribution of his Accounts and his Loan
Account, if any, valued as of the Accounting Date specified in
Section 10.01.
SECTION 9.02. DISABILITY.
Upon a Member's Retirement on account of his Permanent
Disability, the Member shall become entitled, at the time
specified in Article X, to a distribution of his Accounts and his
Loan Account, if any, valued as of the Accounting Date applicable
under Section 10.02.
SECTION 9.03. DEATH.
Upon a Member's death, his Eligible Spouse or, if there
is no Eligible Spouse or the Eligible Spouse consents in the
manner required under Section 2.04(a) to the designation a
Beneficiary, that Beneficiary, shall become entitled, at the time
specified in Article X, to a distribution of the then balance of
such Member's Accounts and his Loan Account, if any, valued as of
the Accounting Date applicable under Section 10.03; provided,
however, that if a valuation date was already fixed for payment
pursuant to Article X due to the Member's Retirement or Permanent
Disability, that date shall be used.
SECTION 9.04. VESTING.
Any Member who has Company Contributions credited to his
Account as of December 31, 1988 shall at all times be fully
(100%) vested in the balance in his Accounts. Effective for Plan
Years beginning after December 31, 1988, any individual who
becomes a Member after that date shall not be vested to any
extent in any balance in his Company Contributions Account except
the amount thereof, until his completion of three (3) Years of
Service which shall be calculated from the Member's Employment
Commencement Date. After completion of three (3) Years of
Service as so calculated, each such Member shall be fully (100%)
vested at all times in the balance in his Company Contributions
Account. However, a Member who is not otherwise vested shall,
upon reaching his Normal Retirement Date, become and thereafter
at all times be fully (100%) vested in the balance in his Company
Contributions Account. A Member shall be at all times fully
(100%) vested in the balance in his Member Contributions Account,
<PAGE>
if any, his Member Salary Deferral Account, if any, his Rollover
Account, if any, and his Loan Account, if any.
SECTION 9.05. OTHER SEPARATION FROM SERVICE.
In the event of a Member's Separation from Service other
than by reason of death, Retirement or Permanent Disability, he
shall be entitled to a distribution of the entire balance in his
Member Contributions Account, if any, his Member Salary Deferral
Account, if any, his Loan Account, if any, his Rollover Account,
if any, and the vested balance in his Company Contributions
Account, if any, determined as of the Accounting Date applicable
under Section 10.04. Such distributions shall be made in the
manner and at the time provided in Article X. The unvested
portion of the Member's Company Contributions Account shall be
forfeited on the last Accounting Date of the Plan Year in which
the earlier of the following occurs: (i) a lump sum distribution
is made to him, (ii) installment payments to him commence, or
(iii) the date of the Member's termination of employment.
SECTION 9.06. FORFEITURES.
(a) A Member who separates from service prior to full
vesting of his entire Company Contributions
Account, shall forfeit the unvested balance in that
Account upon the Accounting Date coincident with or
immediately following the occurrence of a Break in
Service with respect to the Member, and that
balance shall be allocated as of that Accounting
Date to the Unallocated Forfeiture Account. If the
Member subsequently recommences employment prior to
incurring five (5) consecutive Breaks in Service,
he shall be recredited with the forfeited amounts
upon recommencement of employment.
(b) Any Company Contributions Account balance forfeited
by a Member shall be held in an Unallocated
Forfeiture Account until applied to reduce the
Company Contribution next to be made to the Trust
as of or following the date the forfeiture occurs.
<PAGE>
ARTICLE X
TIME AND MANNER OF PAYMENT OF BENEFITS
SECTION 10.01. RETIREMENT BENEFITS.
Retirement benefits, determined pursuant to
Section 9.01, shall be paid or commence to be paid (subject to
Sections 10.06, 10.07, 10.08 and 10.09) as soon as reasonably
practicable after the Accounting Date coincident with or next
following a Member's Retirement on or after his Normal Retirement
Date, in the manner selected by the Member, in either of the
following modes or any combination thereof:
(a) in a single cash sum, valued as of the
Accounting Date immediately preceding the payment, provided,
however, that the Member may elect to receive the portion, if
any, of his Accounts invested in the Alliance Limited Partnership
Unit Fund in Units, or
(b) in regular annual installments of
approximately equal value in cash (or, at the Member's election,
solely with respect to the portion of his Accounts invested in
the Alliance Limited Partnership Unit Fund, in Units); provided
that the present value of the payments expected to be distributed
to the Member must exceed one-half (1/2) the amount accumulated
in the Member's Accounts determined as of the Accounting Date
coincident with or next following the Accounting Date immediately
preceding the date installments are to commence. An Account
being distributed in installments shall be appropriately adjusted
in accordance within Section 8.01 until fully distributed.
SECTION 10.02. DISABILITY BENEFITS.
Disability benefits, determined pursuant to Section 9.02
shall be paid or commence to be paid at the time and in the
manner provided in Section 10.01 (substituting Permanent
Disability for Retirement).
SECTION 10.03. DEATH BENEFITS.
Death benefits, determined pursuant to Section 9.03,
shall be paid to the Member's Beneficiary at the time and in the
manner provided in Section 10.01(a) (substituting death for
Retirement and substituting Beneficiary for Member where
applicable).
<PAGE>
SECTION 10.04. TERMINATION BENEFITS.
The benefits payable to a Member upon his Separation
from Service, determined pursuant to Section 9.05, shall, subject
to Section 10.09, be paid or commence to be paid at the time and
in the manner provided in Section 10.01 (substituting Separation
from Service for Retirement).
SECTION 10.05. DIRECT ROLLOVER DISTRIBUTIONS.
(a) Upon receiving directions from a Member who is
eligible to receive a distribution from the Plan
pursuant to the provisions of this Article X which
constitutes an "eligible rollover distribution," as
defined in Code section 402(c)(4), to transfer all
or any part of such distribution to an "eligible
retirement plan," as defined in Code section
402(c)(8)(B), the Committee shall cause the portion
of the distribution which the Member has elected to
so transfer to be transferred directly to such
"eligible retirement plan"; provided, however, that
the Member shall be required to notify the
Committee of the identity of the eligible
retirement plan at the time and in the manner that
the Committee shall prescribe and the Committee may
require the Member or the eligible retirement plan
to provide a statement that the eligible retirement
plan is intended to be qualified under Code section
401(a) (if the plan is intended to be so qualified)
or otherwise meets the requirements necessary to be
an "eligible retirement plan."
(b) Upon receiving instructions from a Beneficiary who
is the Member's Eligible Spouse or an alternate
payee under a "qualified domestic relations order"
as defined in section 414(p) of the Code, in either
case who is eligible to receive a distribution
pursuant to the provisions of Article VII that
constitutes an "eligible rollover distribution" as
defined in section 402(c)(4) of the Code, to
transfer all or any part of such distribution to a
plan that constitutes an "eligible retirement plan"
under Code Section 402(a)(5) with respect to that
distribution, the Committee shall cause the portion
of the distribution which such Eligible Spouse or
alternate payee has elected to so transfer to the
eligible retirement plan so designated.
(c) The Committee may accomplish the direct transfer
described in subsection (a) or (b), as applicable,
by delivering a check to the Member, Eligible
<PAGE>
Spouse or alternate payee (in each case, a
"Distributee") which is payable to the trustee,
custodian or other appropriate fiduciary of the
"eligible retirement plan," or by such other means
as the Committee may in its discretion determine.
The Committee may establish such rules and
procedures regarding minimum amounts which may be
the subject of direct transfers and other matters
pertaining to direct transfers as it deems
necessary from time to time.
SECTION 10.06. LATEST COMMENCEMENT OF BENEFITS.
In no event, unless the Member elects otherwise, shall
payment of benefits to him commence later than the sixtieth
(60th) day after the close of the later of -
(a) the Plan Year during which the Member reaches his
Normal Retirement Date, or
(b) the Plan Year during which the Member's Separation
from Service occurs.
If a Member elects otherwise, then such election must be
made by submitting to the Committee a written statement signed by
the Member which describes the benefit and the date on which the
payment of such benefit shall commence.
SECTION 10.07. INDIRECT PAYMENT OF BENEFITS.
If any Member or Beneficiary is, in the judgment of the
Committee, legally, physically or mentally incapable of
personally receiving and receipting for any payment due
hereunder, payment may be made to the guardian or other legal
representative of such Member or Beneficiary or, if none, to any
other person or institution, which, in the opinion of the
Committee, is then maintaining or has custody of such Member or
Beneficiary. Such payment shall constitute a full discharge with
respect to the obligations hereunder.
SECTION 10.08. LIMITATIONS ON DISTRIBUTIONS.
Notwithstanding anything to the contrary contained in
this Plan -
(a) The entire interest of each Member must either:
(1) be paid to him not later than the Required
Beginning Date; or
<PAGE>
(2) commence to be paid to him by not later than
the Required Beginning Date and paid, in
accordance with regulations prescribed by the
Secretary of the Treasury, over a period not
extending beyond the life expectancy of the
Member or the joint and last survivor life
expectancy of the Member and his Designated
Beneficiary; provided, however, that if the
distribution of a Member's Account balances
has commenced in accordance with this
Paragraph (2), any portion remaining to be
distributed at the Member's death shall
continue to be distributed at least as rapidly
as under the method of distribution in effect
as of such Member's death.
(b) If a Member dies prior to the commencement of
distributions to him in accordance with Paragraph
(a)(2), the entire interest of the Member shall be
distributed:
(1) not later than December 31 of the calendar
year which contains the fifth anniversary of
the Member's death, or
(2) where distribution is to be made to the
Member's Designated Beneficiary, commencing
(A) on or before December 31 of the calendar
year immediately following the calendar
year in which the Member died, or
(B) if the Designated Beneficiary is the
Member's surviving Spouse, no later than
the later of the date described in
Paragraph (A), above or December 31 of
the calendar year in which such Member
would have attained age seventy and one-
half (70-1/2),
and payable, in accordance with regulations
prescribed by the Secretary of the Treasury, over a
period not extending beyond the life expectancy of
such Designated Beneficiary.
(c) For purposes of Paragraphs (a)(2) and (b)(2), prior
to the Required Beginning Date, the Member (or his
spouse, if the spouse is the Member's Beneficiary)
may make an irrevocable election to have the
Member's (and/or his spouse's) life expectancy
recalculated not more frequently than annually. If
<PAGE>
no such election is made prior to the Member's
Required Beginning Date, the Member's (and/or his
spouse's) life expectancy shall automatically be
recalculated annually.
(d) Under regulations prescribed by the Secretary of
the Treasury, any amount paid to a Member's child
shall be treated as if it had been paid to such
Member's surviving spouse if such amount will
become payable to such spouse upon the child
reaching maturity or such other designated event
which may be permitted under such regulations.
(e) For purposes of this Section 10.08, the term
"Designated Beneficiary" shall mean a Member's
surviving spouse or an individual designated by the
Member pursuant to Section 2.04.
(f) The provisions of this Section 10.08 shall be
construed in a manner that complies with the
Treasury Regulations under section 401(a)(9) of the
Code, including the "minimum distribution
incidental benefits" rules of the Treas. Reg.
Section 1.401(a)(9)-2, the provisions of which are
hereby incorporated by reference.
SECTION 10.09 CONSENT TO DISTRIBUTIONS.
No amount shall be distributed to a Member pursuant to
Section 10.02 or 10.04 prior to his Normal Retirement Date
without his written consent, unless the amount to be distributed
to the Member is not in excess of $3,500. In the event a
Member's consent to a distribution is required pursuant to this
Section 10.09, such distribution shall be made or commence to be
made as soon as reasonably practicable after the Accounting Date
coincident with or next following the earlier of (i) the date on
which such consent is received by the Committee or (ii) the
Member's Normal Retirement Date.
<PAGE>
ARTICLE XI
ADMINISTRATION OF THE PLAN
SECTION 11.01. COMMITTEE.
(a) The Plan shall be administered by a Committee
consisting of at least one person appointed from
time to time by the Board and serving without
compensation at its pleasure. The Committee may
employ such agents. investment consultants, legal
counsel and clerical, medical, accounting and
actuarial services as it may deem advisable to
assist in the administration of the Plan. The
Committee may designate persons, including persons
other than "named fiduciaries" (as defined in
Section 402(a)(2) of the Act), to carry out the
specified responsibilities of the Committee and
shall not be liable for any act or omissions of a
person so designated. The Committee shall have the
general responsibility for administering the Plan
and shall have all powers necessary for that
purpose, including, but not limited to, the power
to interpret and construe the Plan, to determine
the eligibility, status and rights of all Employees
in connection with the Plan, to decide disputes
arising under or with respect to the Plan, to keep
records of Member Accounts and all other books and
records of the Plan and to establish rules for such
administration.
(b) The Committee shall also have the general power to
administer the assets of the Plan, including, but
not limited to, the power to direct the Trustee in
the receipt, disbursement and investment of Plan
assets and to designate mutual funds or other
investment alternatives which will serve as
investment vehicles for Plan assets and any other
powers conferred upon the Committee by the Trust
Agreement. The Committee may appoint one or more
investment managers and one or more named
fiduciaries to which it may delegate such powers
over the investment of assets of the Plan as the
Committee deems appropriate.
(c) The Committee shall act by a majority of its
membership and the action of such majority,
expressed by a vote at a meeting or in writing
without a meeting, shall constitute the action of
the Committee; provided, however, that no Committee
member shall be qualified to act in regard to a
<PAGE>
matter solely concerning himself as a Member of the
Plan (as distinguished from matters affecting
Members generally).
(d) Except as otherwise provided in Section 11.03, the
decision or action of the Committee in respect of
any matter within the scope of its authority shall
be conclusive and binding on all persons.
(e) Except as otherwise required by law, no member of
the Committee shall have any liability to any
person for any act or omission except for wilful
misconduct.
(f) The Committee and any of its individual members may
also act as Trustee or Trustees of the Trust Fund.
The Committee shall be the "administrator" of the
Plan, within the meaning of Section (3)(16)(A) of
the Act, and shall comply with all of the
requirements of the Act which are applicable to a
Plan administrator. The Committee is hereby
designated as a "named fiduciary" of the Plan,
within the meaning of Section 402(a)(2) of the Act
and is authorized to establish procedures for the
allocation and delegation of fiduciary
responsibilities, except insofar as such
responsibilities are specifically assigned by the
provisions of Sections 11.02 and 11.03. The
Committee shall be the agent for the service of
legal process on the Plan and the Trust.
(g) The Committee may make such rules and regulations
as it determines necessary to regulate the Plan,
provided that such rules and regulations conform to
the Plan and the Trust Agreement.
SECTION 11.02. ALLOCATION OF RESPONSIBILITY AMONG
FIDUCIARIES.
The Company, the Committee and the Trustee shall have
only such powers, duties, responsibilities and obligations as are
specifically granted to them under this Plan or the Trust
Agreement. The Company shall have the sole authority to appoint
and remove the members of the Committee and the Trustee and to
amend or terminate, in whole or in Part, this Plan or the Trust.
The Committee shall have the sole responsibility for the
administration of the Plan and shall have such responsibilities
with regard to the Trust as are specifically set forth in the
Trust Agreement. The Trustee shall have such responsibilities as
are specifically set forth in the Trust Agreement. Except as
otherwise provided by law, it is intended that each of the
<PAGE>
foregoing fiduciaries shall be responsible for the proper
exercise of its own powers, duties, responsibilities and
obligations under this Plan and the Trust Agreement and shall not
be responsible for any act or failure to act or error in judgment
in connection with carrying out the provisions of this Plan or
the Trust Agreement, except for its own wilful and intentional
malfeasance or misfeasance. Except as otherwise provided by law,
no fiduciary shall be responsible for any act or failure to act
of another fiduciary. No fiduciary guarantees the Trust Fund in
any manner against investment loss or depreciation in asset
value.
SECTION 11.03. CLAIM AND APPEAL PROCEDURE.
(a) BENEFIT CLAIM PROCEDURE.
The Committee shall direct the Trustee to pay benefits
to a Member when due hereunder. Any Member or Beneficiary
claiming a benefit under the Plan in addition to that directed by
the Committee must complete an application on a form prescribed
by and filed with the Committee. The Committee shall make forms
available for this purpose. Within sixty (60) days
after its receipt of an application the Committee shall give
written notice to the claimant of its decision on the
application.
(b) DENIAL OF CLAIM.
If the Committee denies the claim, in whole or in Part,
a written notice of that decision shall -
(1) explain why the claim was denied,
(2) cite the provisions of the Plan on which the
decision was based, and
(3) explain the Plan's review procedure set forth in
Subsection (c).
If the Committee does not deny the claim on its merits
but rejects the application for failure to furnish certain
necessary material or information, the written notice to the
claimant shall explain what additional material is needed and why
and shall advise the claimant that he may refile a proper
application under the claim procedure set forth in Subsection
(a).
<PAGE>
(c) REVIEW PROCEDURE.
If a claim has been denied, the claimant may appeal the
denial within sixty (60) days after his receipt of written notice
thereof by submitting the items listed below in writing to a
senior executive officer of the general partner referred to in
Section 1.08 who is not then a member of the Committee or the
claimant himself with a copy to the Committee:
(1) a request for review of the denial of claim,
(2) a statement containing the basis of the claimant's
disagreement with the disposition of the matter and
such other material as the claimant deems relevant,
and
(3) a request, if appropriate, to review the Plan, the
Trust Agreement and any other pertinent documents
(which shall be made available to him at a
convenient location during regular business hours
within thirty (30) days after the Committee's
receipt of a copy of the request).
The officer designated to review the Committee's
decision shall render a written decision and deliver such to the
claimant and to the Committee within sixty (60) days after his
receipt of the appeal; provided, however, that if special
circumstances, such as the need to hold a hearing, require an
extension of time, the reviewer shall state in writing to the
claimant and the Committee the reasons for such extension, but in
no case shall the extension extend beyond one hundred twenty
(120) days after his receipt of the appeal. The decision on the
appeal shall contain specific reasons for the decision, shall be
written in a manner capable of being understood by the claimant
and shall include a statement of the pertinent provisions of the
Plan on which the decision is based. Such decision shall,
subject to such judicial review as may be provided by law, be
final and binding on all persons concerned.
<PAGE>
ARTICLE XII
THE TRUST FUND
SECTION 12.01. THE TRUST AGREEMENT.
The Company shall enter into a Trust Agreement for the
establishment of the Trust with one or more individuals or with a
bank or trust company organized and doing business under the laws
of the United States or of any state and authorized under the
laws of its jurisdiction of incorporation to exercise corporate
trust powers. The Trust Agreement shall be deemed to form a part
of the Plan, and all rights which may accrue to any Person under
the Plan shall be subject to the terms of the Trust Agreement.
SECTION 12.02. TRUSTEE'S POWERS AND DUTIES.
The Trustee shall manage and control the Trust Fund in
accordance with the terms of the Trust Agreement. Following the
execution of the Trust Agreement, the Trustee shall, at a meeting
duly called for such purpose establish a funding policy and
method. Thereafter, the Trustee shall review such funding policy
and method at least annually and shall communicate all of its
actions taken with respect thereto to the Company. The general
objective of the funding policy and method shall be at all times
to maintain a balance between safety in capital investment and
investment return.
SECTION 12.03. USE OF TRUST FUND.
The Trust Fund shall be used to provide the benefits and
pay the expenses of this Plan and of the Trustee, and no part of
the corpus or income shall be used for or diverted to purposes
other than for the exclusive benefit of Members and their
Beneficiaries under this Plan and the payment of expenses of the
Plan and Trust.
SECTION 12.04. PAYMENT OF EXPENSES.
All administrative and other expenses of the Plan and
Trust shall be paid out of the Trust Fund unless paid by the
Company. Taxes related to the unrelated business taxable income
of the Trust that are paid out of the Trust Fund, shall be paid
from and charged solely to the Account or Accounts involved,
either on a specific or proportionate basis, as determined by the
Committee.
<PAGE>
ARTICLE XIII
CERTAIN RIGHTS AND OBLIGATIONS OF THE COMPANY
SECTION 13.01. DISCLAIMER OF LIABILITY.
(a) Although it is the intention of the Company to
continue this Plan and to make substantial and regular
contributions each year, nothing contained in this Plan or the
Trust Agreement shall be deemed to require the Company to make
any contributions whatsoever under this Plan or to continue the
Plan.
(b) Nothing in this Plan shall be construed as the
assumption by the Company of the obligation for any payment of
any benefits or claims hereunder, and Members and their
Beneficiaries, and all persons claiming under or through them,
shall have recourse only to the Trust Fund for payment of any
benefit hereunder.
(c) The rights of the Members, their Beneficiaries and
all other persons are hereby expressly limited to those stated
in, and shall be construed only in accordance with, the
Provisions of the Plan.
SECTION 13.02. TERMINATION.
The Company reserves the right in its sole discretion to
terminate this Plan at any time. A "termination" shall be deemed
to take place if the Company terminates the Plan, partially
terminates it (within the meaning of Section 411(d)(3)(A) of the
Code) or completely discontinues contributions under this Plan.
(For this purpose a suspension of contributions which is merely
temporary shall not be deemed a complete discontinuance.) In the
event of a termination, the Company may direct the Trustee to
continue to maintain the Trust, and the assets thereof shall be
applied at the continued direction of the Committee in accordance
with this Plan. Upon termination of the Trust, distribution to
each Member shall be made as soon as practicable thereafter in
one of the manners described in Section 10.01. Until fully
distributed, Members' accounts shall be revalued from time to
time in accordance with Section 8.01. Upon termination or
partial termination of the Plan, the rights of all affected
Members to the amounts credited to their Accounts to the date of
such termination shall become non-forfeitable.
SECTION 13.03. EMPLOYER-EMPLOYEE RELATIONSHIP.
The adoption of this Plan shall in no way be construed
as conferring any legal or other rights upon any Employee or any
Person with respect to continuation of employment, nor shall it
<PAGE>
in any way interfere with the right of an Employer to discharge
any Employee or otherwise act with respect to him. Any Employer
may take any action (including discharge) with respect to any
Employee or other Person without regard to the effect which such
action might have upon his rights as a Member of this Plan.
SECTION 13.04. MERGER, ETC.
(a) The merger or consolidation of an Employer with or
into another company or the acquisition of its assets by any
other Person shall not of itself cause the termination of this
Plan or be deemed a termination of employment as to any Employee,
nor shall anything in this Plan prevent the consolidation or
merger of any Employer with or into any corporation or prevent
the sale by any Employer of any of its assets. The merger of
this Plan with another retirement plan shall not of itself cause
the termination of this Plan.
(b) In the event of the dissolution, merger,
consolidation or reorganization of the Company, provision may be
made by which the Plan and Trust will be continued by the
successor; and in such event such successor shall be substituted
for the Company under the Plan. The substitution of the
successor shall constitute an assumption of Plan liabilities by
the successor, and the successor shall have all of the powers,
duties and responsibilities of the Company under the Plan.
(c) In the event of any merger or consolidation of the
Plan with, or transfer in whole or in part of the assets and
liabilities of the Trust Fund to, another trust fund held under
any other plan of deferred compensation maintained or to be
established for the benefit of all or some of the Members of this
Plan, the assets of the Trust Fund applicable to such members
shall be transferred to such other trust fund only if -
(1) the values of the Accounts and the vested
percentage of the Company Contributions Account of
each Member, immediately after the merger,
consolidation or transfer, shall be equal to or
greater than such values and percentage immediately
before the merger, consolidation or transfer;
(2) resolutions of the general partner referred to in
Section 1.08 and of the governing body any new or
successor employer of the affected Members shall
authorize such transfer of assets; and, in the case
of the new or successor employer of the affected
Members, its resolutions shall include an
assumption of liabilities with respect to such
Members' inclusion in the new employer's plan; and
<PAGE>
(3) such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
SECTION 13.05. DETERMINATION FINAL.
Any determinations made hereunder shall be made in a
manner consistent with the Company's accounting
practices and shall be final and conclusive for all purposes,
notwithstanding any late adjustments in the tax returns of the
Company.
<PAGE>
ARTICLE XIV
NON-ALIENATION OF BENEFITS
SECTION 14.01. PROVISIONS WITH RESPECT TO
ASSIGNMENT AND LEVY.
Except as may be required under the terms of a
"qualified domestic relations order" as defined in Section 414(p)
of the Code, no benefit under this Plan shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, garnishment, attachment, levy or charge and
any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber, garnish, attach, levy upon or charge the same
shall be void; nor shall any benefit be in any manner liable for
or subject to the debts or other liabilities of the Person
entitled thereto.
SECTION 14.02. ALTERNATE APPLICATION.
If any Member or Beneficiary under this Plan
becomes bankrupt or attempts to anticipate, alienate, sell,
transfer, assign, pledge, encumber or charge any benefit under
this Plan, except as specifically provided herein, or if any
benefit shall be garnished, attached or levied upon other than
pursuant to a qualified domestic relations order as defined in
Section 414(p) of the Code, then such benefits shall, in the
discretion of the Committee, cease, and the Committee may hold or
apply the same or any part thereof to or for the benefit of such
Member or Beneficiary, his spouse, children or other dependents
or any of them in such manner and in such proportion as the
Committee may deem proper.
<PAGE>
ARTICLE XV
AMENDMENTS
SECTION 15.01. COMPANY'S RIGHTS.
The Company reserves the right, at any time and from
time to time, by action of the Board, to modify or amend in whole
or in part any or all of the provisions of this Plan; provided,
however, that no such modification or amendment may (i) result in
a retroactive reduction in the then value of any Member's Account
or Loan Account, or (ii) except to the extent as may be provided
in regulations promulgated by the Secretary of the Treasury, have
the effect of eliminating an optional form of benefit.
Notwithstanding anything in this Plan to the contrary, the Board,
in its sole discretion, may make any modifications, amendments,
additions or deletions in this Plan, as to benefits or otherwise
and retroactively or prospectively and regardless of the effect
on the rights of any particular Members, which it deems
appropriate in order to bring this Plan into conformity with or
to satisfy any conditions of the Act and in order to continue or
maintain the qualification of the Plan and Trust under Section
401(a) of the Code and to have the Trust declared exempt and
maintained exempt from taxation under Section 501(a) of the Code.
SECTION 15.02. PROVISION AGAINST DIVERSION.
No part of the assets of the Trust Fund shall, by reason
of any modification or amendment or otherwise, be used for, or
diverted to, purposes other than for the exclusive benefit of
Members or their Beneficiaries under this Plan and the payment of
the administrative expenses of this Plan.
<PAGE>
ARTICLE XVI
LIMITATIONS ON BENEFITS AND CONTRIBUTIONS
SECTION 16.01. The limitations of Code Section 415
applicable to "defined contribution plans" as defined in Code
Section 414(i) are hereby incorporated by reference in this Plan;
provided, however, that where the Code so provides, contribution
limitations in effect under prior law shall be applicable to
account balances accrued as of the last effective day of such
prior law.
SECTION 16.02. (a) Other than as provided in
Subsection (b), if, with respect to any Plan Year before 1992,
contributions to a Member's Account must be reduced to conform to
the limitations on "annual additions" as explained and defined in
Code Sections 415(c)(1) and 415(c)(2), Members Salary Deferrals
made pursuant to Section 5.01, and any allocable earnings
thereon, shall be distributed to the Member on a timely basis;
next, Company Contributions for the Plan Year made pursuant to
Section 4.02 shall be reduced until the limitations are met or
this category of contributions is exhausted, whichever first
occurs; next, if such contributions were made for the Plan Year,
Company Contributions made pursuant to Section 4.01 shall
likewise be reduced; and last, Member Salary Deferrals made
pursuant to Section 6.02(c), and allocable earnings thereon,
shall be distributed to the affected Member on a timely basis.
(b) If, with respect to 1990 and any Plan Year after
1991, contributions to a Member's Account must be reduced to
conform to the limitations referred to in Subsection (a), the
reduction shall be achieved first by the distribution to the
affected Member on a timely basis of Member Salary Deferrals made
pursuant to Section 5.01, together with allocable earnings
thereon, until the limitations are met or this category of
contributions is exhausted, whichever first occurs. Concurrent
with the return of such Member Salary Deferrals, Company
Contributions made pursuant to Section 4.02 attributable to such
returned Member Salary Deferrals shall be reduced. Finally, if
necessary, Company Contributions for the Plan Year made pursuant
to Section 4.01 shall be reduced.
SECTION 16.03. In the case of a Member who is, or has
ever been, a participant in one or more "defined benefit plans"
as defined, in Code Section 414(j) maintained by an Employer or
any predecessor of the Employer, if Contributions or benefits
need to be reduced due to the application of Code Section 415(e),
then benefits under the defined benefit plans shall be reduced
with respect to that Member before any contributions credited to
the member under this Plan or any other defined contribution plan
maintained by the Employer shall be reduced.
<PAGE>
ARTICLE XVII
TOP-HEAVY PLAN YEARS
SECTION 17.01. For purposes of this Article XVII, the
following definitions shall apply:
(a) "Determination Date" means any Plan Year subsequent
to the first Plan Year, the last day of the preceding Plan
Year. For the first Plan Year of a plan, the last day of
that year.
(b) "Employee" means any employee of an Employer and
any beneficiary of such an employee.
(c) "Employer" means the Employer and any Affiliate.
(d) "Key Employee" means any Employee or former
Employee (and the Beneficiaries of such Employee) who at any
time during the determination period was an officer of the
Employer if such individual's Top-Heavy Compensation exceeds
50% of the dollar limitation under Code Section 415(b)(1)(A),
an owner (or considered an owner under Code Section 318) of
one of the ten largest interests in the Employer if such
individual's Top-Heavy Compensation exceeds 100% of such
dollar limitation, a 5 percent owner of the Employer, or a 1
percent owner of the Employer who has annual Top-Heavy
Compensation of more than $150,000. The determination period
is the Plan Year containing the Determination Date and the 4
preceding Plan Years. The determination of who is a Key
Employee will be made in accordance with Code Section
416(i)(1) and the regulations thereunder.
(e) "Permissive Aggregation Group" means the Required
Aggregation Group of plans plus any other plan or plans of
the Employer which, when considered as a group with the
Required Aggregation Group, would continue to satisfy the
requirements of Code Sections 401(a)(4) and 410.
(f) "Required Aggregation Group" means (1) each
qualified plan of the Employer in which at least one Key
Employee participates, and (2) any other qualified plan of
the Employer which enables a plan described in (1) to meet
the requirements of Code Sections 401(a)(4) or 410.
(g) "Top-Heavy Compensation" means the Employee's
compensation as defined in Section 414(q)(7) of the Code.
<PAGE>
(h) "Top-Heavy Ratio" means:
(1) If in addition to this Plan the Employer
maintains one or more other defined contribution plans
(including any simplified employee pension plan) and the
Employer has not maintained any defined benefit plan
which during the 5-year period ending on the
Determination Date has or has had accrued benefits, the
top-heavy ratio for this Plan alone or for the Required
or Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of the
account balances of all Key Employees as of the
Determination Date (including any part of any account
balance distributed in the 5-year period ending on the
Determination Date), and the denominator of which is the
sum of all account balances (including any part of any
account balance distributed in the 5-year period ending
on the Determination Date), both computed in accordance
with section 416 of the Code and the regulations
thereunder. Both the numerator and denominator of the
Top-Heavy Ratio are adjusted to reflect any contribution
not actually made as of the Determination Date, but
which is required to be taken into account on that date
under section 416 of the Code and the regulations
thereunder.
(2) If in addition to this Plan the Employer
maintains one or more defined contribution plans
(including any simplified employee pension plan) and the
Employer maintains or has maintained one or more defined
benefit plans which during the 5-year period ending on
the Determination Date has or has had any accrued
benefits, the Top-Heavy Ratio for any Required or
Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of account
balances under the aggregated defined contribution plan
or plans for all Key Employees, determined in accordance
with (1) above, and the present value of accrued
benefits under the aggregated defined benefit plan or
plans for all Key Employees as of the Determination
Date, and the denominator of which is the sum of the
account balances under the aggregated defined
contribution plan or plans for all participants,
determined in accordance with (1) above, and the present
value of accrued benefits under the defined benefit plan
or plans for all participants as of the Determination
Date, all determined in accordance with section 416 of
the Code and the regulations thereunder. The accrued
benefits under a defined benefit plan in both the
numerator and denominator of the Top-Heavy Ratio are
adjusted for any distribution of an accrued benefit made
<PAGE>
in the five-year period ending on the Determination
Date.
(3) For purposes of (1) and (2) above, the value
of account balances and the present value of accrued
benefits will be determined as of the most recent
Valuation Date that falls within or ends with the 12-
month period ending on the Determination Date, except as
provided in section 416 of the Code and the regulations
thereunder for the first and the second plan years of a
defined benefit plan. The account balances and accrued
benefits of a participant (x) who is not a Key Employee
but who was a Key Employee in a prior year, or (y) who
has not received any Top-Heavy Compensation from any
Employer maintaining the Plan at any time during the 5-
year period ending on the Determination Date will be
disregarded. The calculation of the Top-Heavy Ratio,
and the extent to which distributions, rollovers, and
transfers are taken into account will be made in
accordance with section 416 of the Code and the
regulations thereunder. Deductible Employee
contributions will not be taken into account for
purposes of computing the Top-Heavy Ratio. When
aggregating plans the value of account balances and
accrued benefits will be calculated with reference to
the Determination Dates that fall within the same
calendar year.
(i) "Valuation Date" means the last day of the Plan
Year.
SECTION 17.02. If the Plan is or becomes top-heavy in
any Plan Year, the provisions of Sections 17.04 and 17.05 will
automatically supersede any conflicting provision of the Plan.
SECTION 17.03. The Plan shall be considered top-heavy
for any Plan Year if any of the following conditions exists:
(a) If the Top-Heavy Ratio for this Plan exceeds 60
percent and this Plan is not part of any Required Aggregation
Group or Permissive Aggregation Group of plans.
(b) If this Plan is part of a Required Aggregation
Group of plans but not part of a Permissive Aggregation Group
and the Top-Heavy Ratio for the group of plans exceeds 60
percent.
(c) If this Plan is part of a Required Aggregation
Group of plans and part of a Permissive Aggregation Group and
the Top-Heavy Ratio for the Permissive Aggregation Group
exceeds 60 percent.
<PAGE>
SECTION 17.04. (a) Except as provided in subsection
(b), the amount of the Company contribution made on behalf of
each Member who is not a Key Employee for any Plan Year for which
the Plan is a Top-Heavy Plan shall be at least equal to the
lesser of:
(1) three percent (3%) of such Member's Top-Heavy
Compensation less any amount contributed on behalf of the Member
under any other defined contribution plan maintained by an
Employer or an Affiliate; or
(2) the percentage of Top-Heavy Compensation
represented by the Company Contributions made on behalf of the
Key employee for whom such percentage is the highest for such
Plan Year, determined by dividing the Company Contribution made
on behalf of each such Key Employee by so much of his Top-Heavy
Compensation as does not exceed $200,000.
(b) Where the inclusion of this Plan in a Permissive
Aggregation Group or Required Aggregation Group pursuant to
Section 17.01(e) or 17.01(f) enables a defined benefit plan
described in Section 17.01(f) to meet the requirements of Section
401(a)(4) or Section 410 of the Code, the minimum contribution
required under this Section 17.04 shall be the amount specified
in Section 17.04(a)(1).
SECTION 17.05. For any top-heavy Plan Year in which an
Employee is a Participant in both a Defined Benefit Plan and a
Defined Contribution Plan maintained by the Employer or an
Affiliate in calculating the limits contained in Section 415(e)
of the Code the denominators of the Defined Benefit Plan Fraction
and Defined Contribution Plan Fraction shall be "1.0" instead of
"1.25", unless for such Plan Year,
(a) the requirements of Section 17.04 would be
satisfied if "four percent (4%)" were substituted for "three
percent (3%)" in subsection (a)(1) thereof; and
(b) the plan would not be a Plan described in Section
17.03 if "90 percent" were substituted for "60 percent" wherever
it appears therein."
<PAGE>
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.01. BINDING ON HEIRS, ETC.
This Plan shall extend to and be binding upon the heirs,
executors, administrators, successors and assigns of the Members
and their Beneficiaries and all successors to the Company by way
of merger, consolidation, acquisition of assets or otherwise.
SECTION 18.02. GOVERNING LAW.
All questions pertaining to the validity, construction
and administration of the Plan shall be determined in accordance
with the laws of the State of New York, except to the extent that
such laws have been superseded by the Act.
SECTION 18.03. SEPARABILITY.
If any provision of this Plan shall be held illegal or
invalid for any reason, such illegality or invalidity shall not
affect the remaining parts of this Plan, and the Plan shall be
construed and enforced as if such illegal and invalid provisions
had never been inserted herein.
SECTION 18.04. CAPTIONS AND GENDER.
The captions herein are for convenience of reference
only and are not to be construed as part of the Plan. As used
herein, the masculine shall include the feminine and the neuter
and vice versa, as the context requires.
<PAGE>
EXHIBIT 5.1
July 12, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Profit Sharing Plan for Employees of
Alliance Capital Management L.P.
Dear Sirs:
I am a Senior Vice President and the General Counsel of
Alliance Capital Management Corporation, the General Partner of
Alliance Capital Management L.P., a Delaware limited partnership
(the "Partnership"), and have acted as counsel in connection with
the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of 2,000,000 Units representing
assignments of beneficial ownership of 2,000,000 limited
partnership interests in the Partnership together with such
presently indeterminate interests (the "Interests") in the Profit
Sharing Plan for Employees of Alliance Capital Management L.P.
(the "Plan"), as may be purchased with contributions under the
Plan.
As counsel for the Partnership, I, or attorneys under my
supervision, have participated in the preparation of the
Registration Statement and have examined and relied upon such
documents, opinions, precedents, records and other materials as I
have deemed necessary or appropriate to provide a basis for the
opinion set forth below. In this examination, I have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to me as original documents and conformity to original
documents of all documents submitted to me as certified or
photostatic copies.
<PAGE>
Based on the foregoing, I am of the opinion that the
Interests, to the extent such Interests vest to the benefit of
the participants in the Plan, will have been duly and validly
authorized and will be valid Interests.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the
Registration Statement.
Very truly yours,
/s/ David R. Brewer, Jr.
--------------------
David R. Brewer, Jr.
<PAGE>
EXHIBIT 5.2
Department of the Treasury
Internal Revenue Service
GPO BOX 1680 In reply refer to: 11270015
BROOKLYN NY 11202-0000 APR. 29, 1986 LTR 835C
13-2677213P Y
00375
ALLIANCE CAPITAL MGMT CORP
c/o DONALD P CARLEEN ESQ
FRIED FRANK HARRIS SHRIVE
1 NEW YORK PLAZA
NEW YORK NY 10004
District Office Code and
Case Serial Number: 135340001 EP
Name of Plan: Amended & Restated Profit Sharing
Plan For Emp Of Alliance Capl Mgmt
Application Form: 5301
Date Amended: Sep. 12, 1985
Employer Identification Number: 13-2677213
Plan Number: 001
File Number: 130012492
Dear Applicant:
Based on the information supplied, we have made a favorable
determination on your application identified above. Please keep
this letter in your permanent records.
Continued qualification of the plan will depend on its effect in
operation under its present form. (See section 1.401-1(b)(3) of
the Income Tax Regulations.) The status of the plan in operation
will be reviewed periodically.
The enclosed document describes some events that could occur
after you receive this letter that would automatically nullify it
without specific notice from us. The document also explains how
operation of the plan may affect a favorable determination
letter, and contains information about filing requirements.
This letter relates only to the status of your plan under the
Internal Revenue Code. It is not a determination regarding the
effect of other Federal or local statutes.
<PAGE>
Your plan contains provisions which require plan participants to
be employed on an allocation date in order to receive a
contribution. This may, in operation, discriminate in favor of
employees who are stockholders, officers, or highly compensated.
If this occurs, your plan will not remain qualified (see Rev.
rul. 76-250, 1976-2 C.b. 124).
We have sent a copy of this letter to your representative as
indicated in the power of attorney.
All correspondence should be sent to the address on the front of
this letter.
If you have any questions, please contact H.R. Nass at 780-780-
6156.
Sincerely yours,
/s/J.J. Jennings
------------------
J.J. Jennings
District Director
Enclosure(s):
Opwpb 515
Pub. 794
<PAGE>
EXHIBIT 24.2
The General Partner and Unitholders
Alliance Capital Management L.P.:
We consent to incorporation by reference in the registration
statement on Form S-8 of Alliance Capital Management L.P. of our
report dated January 27, 1994, except for Note 12 which is as of
March 7, 1994, relating to the statements of financial condition
of Alliance Capital Management L.P. and subsidiaries as of
December 31, 1993 and 1992, and the related statements of income,
partners' capital and cash flows for each of the years in the
three-year period ended December 31, 1993 which report appears in
the annual report on Form 10-K of Alliance Capital
Management L.P. and our report dated July 8, 1994 relating to the
statement of net assets available for plan benefits of the Profit
Sharing Plan for Employees of Alliance Capital Management L.P. as
of December 31, 1993 and 1992 and the related statement of
changes in net assets available for plan benefits for the years
then ended which report appears in the December 31, 1993 annual
report on Form 11-K of the Profit Sharing Plan For Employees of
Alliance Capital Management L.P.
New York, New York
July 12, 1994
/s/KPMG PEAT MARWICK
--------------------
<PAGE>
EXHIBIT 25
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose
signature appears below hereby revokes all prior powers granted
by the undersigned to the extent inconsistent herewith and
constitutes and appoints David R. Brewer, Jr., Myles Itkin and
Robert H. Joseph, Jr. and each of them, to act severally as
attorneys-in-fact and agents, with power of substitution and
resubstitution, of the undersigned in any and all capacities,
solely for the sole purpose of signing the Registration Statement
and any amendments thereto on Form S-8 relating to the Profit
Sharing Plan for Employees of Alliance Capital Management L.P.
and filing the same, with exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may do or
cause to be done by virtue hereof.
/s/James M. Benson
--------------------
James M. Benson
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Bruce W. Calvert
----------------------
Bruce W. Calvert
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/John D. Carifa
---------------------
John D. Carifa
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Benjamin D. Holloway
-------------------------
Benjamin D. Holloway
Dated: June 22, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Richard H. Jenrette
------------------------
Richard H. Jenrette
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Brian S. O'Neil
---------------------
Brian S. O'Neil
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Frank Savage
-------------------
Frank Savage
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Madelon DeVoe Talley
-------------------------
Madelon DeVoe Talley
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Dave H. Williams
----------------------
Dave H. Williams
Dated: June 30, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person
whose signature appears below hereby revokes all prior
powers granted by the undersigned to the extent inconsistent
herewith and constitutes and appoints David R. Brewer, Jr.,
Myles Itkin and Robert H. Joseph, Jr. and each of them, to
act severally as attorneys-in-fact and agents, with power of
substitution and resubstitution, of the undersigned in any
and all capacities, solely for the sole purpose of signing
the Registration Statement and any amendments thereto on
Form S-8 relating to the Profit Sharing Plan for Employees
of Alliance Capital Management L.P. and filing the same,
with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-
fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
/s/Reba White Williams
------------------------
Reba White Williams
Dated: June 30, 1994
<PAGE>
