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Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ROCHESTER TELEPHONE CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK 16-0613330
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
-------------------------------- -------------------
180 South Clinton Avenue Rochester, New York 14646-0700
(Address of Principal Executive Offices) (Zip Code)
EMPLOYEES' RETIREMENT SAVINGS PLAN
(Full title of the Plan)
Josephine S. Trubek, Esq.
Corporate Secretary
Rochester Telephone Corporation
180 South Clinton Avenue
Rochester, New York 14646-0700
(716) 777-6713
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(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copy to:
John T. Pattison, Esq.
Managing Attorney
Rochester Telephone Corporation
180 South Clinton Avenue
Rochester, New York 14646-0995
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Amount of
Securities to Amount to be Maximum Offering Maximum Aggregate Registration
be Registered Registered price per share* Offering Price** Fee
- ------------- ------------- ------------------ ------------------ ------------
Common Stock 1,250,000 $41.56 $51,950,000 $17,913.00
$1.00 par value
* Inserted solely for purposes of calculating the registration
fee pursuant to Rule 457(h) and based upon the average of the
high and low prices for the registrant's Common Stock on the
New York Stock Exchange reported as of January 10, 1994.
** In addition, pursuant to Rule 416(c) under the Securities
Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
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Part II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Rochester
Telephone Corporation (the "Company") with the Securities and
Exchange Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1992, filed pursuant to Section
13 of the Securities Exchange Act of 1934.
(b) All other reports filed by the Company pursuant to
Sections 13(a) and 15(d) of the Securities Exchange Act of 1934
since December 31, 1992.
(c) The description of the Company's Common Stock
contained in the Company's Registration Statement on Amendment
No. 1 to Form S-4 dated December 6, 1990 (Registration
Statement No. 33-36457), including any amendments or reports
filed for the purpose of updating such description.
All documents subsequently filed by the Company or the
Employees' Retirement Savings Plan (the "Plan") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934 prior to the filing of a post-effective amendment
which indicates that all securities of the Company offered
hereby have been sold or which deregisters all securities of
the Company remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of
the filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Plan has been passed upon by John T.
Pattison, Esq., Managing Attorney in the Legal Department of
the Company.
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Item 6. Indemnification of Directors and Officers
The Business Corporation Law of the State of New York
("BCL") provides that if a derivative action is brought against
a director or officer, the Company may indemnify him or her
against amounts paid in settlement and reasonable expenses,
including attorneys' fees incurred by him or her in connection
with the defense or settlement of such action, if such director
or officer acted in good faith for a purpose which he or she
reasonably believed to be in the best interests of the Company,
except that no indemnification shall be made without court
approval in respect of a threatened action, or a pending action
settled or otherwise disposed of, or in respect of any matter
as to which such director or officer has been found liable to
the Company. In a nonderivative action or threatened action,
the BCL provides that the Company may indemnify a director or
officer against judgments, fines, amounts paid in settlement
and reasonable expenses, including attorneys' fees incurred by
him or her in defending such action if such director or officer
acted in good faith for a purpose which he or she reasonably
believed to be in the best interests of the Company.
Under the BCL, a director or officer who is successful,
either in a derivative or nonderivative action, is entitled to
indemnification as outlined above. Under any other
circumstances, such director or officer may be indemnified only
if certain conditions specified in the BCL are met. The
indemnification provisions of the BCL are not exclusive of any
other rights to which a director or officer seeking
indemnification may be entitled pursuant to the provisions of
the certificate of incorporation or the bylaws of a corporation
or, when authorized by such certificate of incorporation or
bylaws, pursuant to a shareholders' resolution, a directors'
resolution or an agreement providing for such indemnification.
The above is a general summary of certain provisions of the
BCL and is subject, in all cases, to the specific and detailed
provisions of Sections 721-725 of the BCL.
The Amended and Restated Certificate of Incorporation of
the Company limits the personal liability of directors to the
Company or its shareholders to the fullest extent permitted by
the BCL.
Article II, Section 12, of the Company's By-Laws contains
provisions authorizing indemnification by the Company of
directors and officers against certain liabilities and expenses
which they may incur as directors and officers of the Company
or of certain other entities in accordance with, and to the
fullest extent permitted by, Sections 721-725 of the BCL.
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Section 726 of the BCL also contains provisions authorizing
a corporation to obtain insurance on behalf of any director and
officer against liabilities, whether or not the corporation
would have the power to indemnify against such liabilities.
The Company maintains Executive Liability and Defense coverage
under which the directors and officers of the Company are
insured, subject to the limits of the policy, against certain
losses, as defined in the policy, arising from claims made
against such directors and officers by reason of any wrongful
acts as defined in the policy, in their respective capacities
as directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
The Company undertakes that it will submit the Plan, and
any amendments thereto, to the Internal Revenue Service ("IRS")
in a timely manner and will make all changes thereto required
by the IRS in order to qualify the Plan under Section 401 of
the Internal Revenue Code of 1986, as amended.
Item 9. Undertakings.
A. Post-Effective Amendments
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
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PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for the purposes
of determining liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers or persons controlling the Company pursuant to the
foregoing provisions, the Company has been informed that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Act and is therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the Company 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
Rochester, State of New York, on January 11, 1994.
ROCHESTER TELEPHONE CORPORATION
/s/ Louis L. Massaro
By: ----------------------------
Louis L. Massaro
Corporate Vice President -
Finance and Treasurer
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 date indicated.
/s/ Ronald L. Bittner
Date: November 16, 1993 By: ----------------------------
Ronald L. Bittner
Chairman, President, Chief
Executive Officer and
Director
/s/ Louis L. Massaro
Date: January 11, 1994 By: ----------------------------
Louis L. Massaro
Corporate Vice President -
Finance and Treasurer
(Principal Financial and
Accounting Officer)
Date: By: ----------------------------
Patricia C. Barron
Director
/s/ John R. Block
Date: November 16, 1993 By: ----------------------------
John R. Block
Director
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/s/ Harlan D. Calkins
Date: November 16, 1993 By: ----------------------------
Harlan D. Calkins
Director
/s/ Brenda E. Edgerton
Date: November 16, 1993 By: ----------------------------
Brenda E. Edgerton
Director
/s/ Jairo A. Estrada
Date: November 16, 1993 By: ----------------------------
Jairo A. Estrada
Director
/s/ Daniel E. Gill
Date: November 16, 1993 By: ----------------------------
Daniel E. Gill
Director
/s/ Alan C. Hasselwander
Date: November 16, 1993 By: ----------------------------
Alan C. Hasselwander
Director
/s/ Wolcott J. Humphrey, Jr.
Date: November 16, 1993 By: ----------------------------
Wolcott J. Humphrey, Jr.
Director
Date: By: ----------------------------
Douglas H. McCorkindale
Director
/s/ Richard P. Miller, Jr.
Date: November 16, 1993 By: ----------------------------
Richard P. Miller, Jr.
Director
/s/ G. Dennis O'Brien
Date: November 16, 1993 By: ----------------------------
G. Dennis O'Brien
Director
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/s/ Leo J. Thomas
Date: November 16, 1993 By: ----------------------------
Dr. Leo J. Thomas
Director
/s/ Michael T. Tomaino
Date: November 16, 1993 By: ----------------------------
Michael T. Tomaino
Director
/s/ Louis L. Massaro
By: --------------------------
Louis L. Massaro
Attorney-In-Fact
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The Plan. Pursuant to the requirements of the Securities
Act of 1933, the trustees (or other persons who administer the
employee benefit plan) have duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Rochester, State of
New York, on January 11, 1994.
EMPLOYEES' RETIREMENT SAVINGS PLAN
/s/ Janet F. Sansone
By: ---------------------------
Janet F. Sansone, Chairperson
Management Benefits Committee
(29ED)
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EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
4-1 Employees' Retirement Savings Plan Herewith
4-2 Rochester Telephone Corporation
Restated Certificate of Incorporation,
as amended, is incorporated by reference
to Exhibit 3 to Form 10-Q for the
quarter ended September 30, 1980.
(File No. 1-4166)
4-3 Certificate of Amendment to Restated
Certificate of Incorporation of Rochester
Telephone Corporation is incorporated
by reference to Exhibit 3-2 to Form 1O-K
for the year ended December 31, 1984.
(File No. 1-4166)
4-4 Certificate of Change to Restated Certificate
of Incorporation of Rochester Telephone
Corporation is incorporated by reference
to Exhibit 3-4 to Form 10-K for the year
ended December 31, 1988. (File No. 1-4166)
4-5 Certificates of Amendment to Restated
Certificate of Incorporation of Rochester
Telephone Corporation are incorporated
by reference to Exhibit 3-5 to Form 10-K
for the year ended December 31, 1990.
(File No. 1-4166)
4-6 By-laws of Rochester Telephone Corporation,
as amended, are incorporated by reference to
Exhibit 4-6 to Form S-8 filed August 13, 1993.
(File No. 33-67432)
5 Opinion of John T. Pattison, Esq. Herewith
as to legality of Plan
23-1 Consent of John T. Pattison, Esq. is
contained in his opinion filed as
Exhibit 5 to this Registration Statement
23-2 Consent of Price Waterhouse, Herewith
independent accountants
24 Powers of Attorney Herewith
(29ED)
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EXHIBIT 4
ROCHESTER TEL GROUP
EMPLOYEES' RETIREMENT SAVINGS PLAN
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TABLE OF CONTENTS
Page
INTRODUCTION 1
ARTICLE I - Definitions 2
ARTICLE II - Eligibility 8
ARTICLE III - Participation and Participant
Contributions 9
ARTICLE IV - Participating Company Contributions 13
ARTICLE V - Investment of Contributions 18
ARTICLE VI - Participant Accounts 20
ARTICLE VII - Retirement or Other Termination
of Employment 23
ARTICLE VIII - Death 25
ARTICLE IX - Payment of Benefits 26
ARTICLE X - Withdrawals and Loans During
Employment 30
ARTICLE XI - Plan Admininistration 35
ARTICLE XII - Amendment and Termination 39
ARTICLE XIII - Top-Heavy Provisions 40
ARTICLE XIV - General Provisions 43
Appendix A - Participating Companies
Appendix B - Plan Features Unique to Participating
Companies
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<PAGE> 1
INTRODUCTION
This Employees' Retirement Savings Plan is hereby
established, effective as of March 1, 1994 by the merger of the
following plans within the Rochester Tel Group of companies
into MISP/MOST: Retirement Savings Plan for Affiliated
Companies, Telco Subsidiaries' 401(k) Plan, Vista Management
Retirement Savings Plan, RCI Long Distance New England, Inc.
Profit Sharing 401(k) Plan, Thorntown 401(k) Plan, Mid Atlantic
Telecom, Inc. Employees' 401(k) Plan and the Seneca-Gorham
Savings Plan. It is anticipated that in the future other
401(k) and savings plans within the Rochester Tel Group will be
merged into this Plan. All Participants in this Plan are
subject to identical terms and conditions of participation
except as set forth in Appendix B, with respect to each
Participating Company.
The merger of any plan into this Plan shall not reduce
any Participant's accrued benefit in effect immediately
preceding the merger.
This Plan is intended to qualify as a profit sharing
plan pursuant to the provisions of Code sections 401(a) and
401(k).
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ARTICLE I
Definitions
1.1 "Affiliated Company" means Rochester Telephone
Corporation (the "Company") and
(a) any other company which is included within a
"controlled group of corporations" within which
the Company is also included, as determined under
section l563 of the Code without regard to
subsections (a)(4) and (e)(3)(C) of said
section l563; or
(b) any other trades or businesses (whether or not
incorporated) with which the Company is
affiliated which, based on principles similar to
those defining a "controlled group of
corporations" for the purposes of (a) above, are
under common control; or
(c) any other entities required to be aggregated with
the Company pursuant to Code section 414.
1.2 "Basic Contributions" means a Participant's
contributions to the Plan in any whole percentage of
Compensation up to a 6 percent of Compensation maximum
in accordance with Section 3.2 and, where applicable,
Appendix B.
1.3 "Beneficiary" means the Participant's surviving spouse
or, in the event there is no surviving spouse or the
surviving spouse elects in writing not to receive any
death benefits under the Plan, the person or persons
(including a trust) designated by a Participant to
receive any death benefit which shall be payable under
this Plan.
1.4 "Board" means the Board of Directors of the Company or
any committee of the Board of Directors authorized to
act on behalf of the Board. Any such Board committee
shall be composed of at least three members of the
Board of Directors. As used in this Plan the term
"Board-appointed committee" means the Committee and
any other committee appointed by the Board which need
not be comprised of at least three Board members but
may include or consist entirely of management
personnel who are not members of the Board.
1.5 "Code" means the Internal Revenue Code of 1986, as
amended.
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1.6 "Committee" means the Employees' Benefit Committee
appointed pursuant to Article XI to administer the
Plan.
1.7 "Company" means Rochester Telephone Corporation, a New
York corporation, its predecessor or its successor.
1.8 "Company Discretionary Contributions" means the
contributions of a Participating Company that are not
contingent on the level of Participant contributions
and are specified, if any, in Appendix B for each
Participating Company.
1.9 "Company Matching Contributions" means the
contributions of a Participating Company that are
contingent upon a Participant's Basic Contributions in
an amount specified for the Participating Company in
Appendix B.
1.10 "Company Stock" means Rochester Telephone Corporation
common stock.
1.11 "Compensation" means the total of a Participant's
basic salary or wages, bonuses and commissions paid by
a Participating Company for services actually rendered
by the Participant to a Participating Company. A
Participant's Compensation shall not include overtime,
pension payments or any other form of extra
remuneration of whatever nature except bonuses and
commissions included under the preceding sentence, nor
any annual remuneration in excess of $150,000
(adjusted for cost of living increases as permitted
under the Code). For any Participant receiving
disability pay from a Participating Company during a
payroll period (other than a disability pension), the
term "Compensation" means such disability pay. For
any Employee who is making Pre-Tax Contributions
pursuant to Section 3.7, or pre-tax contributions
under a Participating Company's cafeteria (section
125) plan, the term Compensation shall be based on his
wages, salary, commissions and bonuses, all as defined
above, prior to any salary reduction.
1.12 "Early Retirement Age" means age 55.
1.13 "Effective Date" means January 1, 1994, provided that
provisions having other effective dates shall be
effective as may be expressly provided by such
provisions.
1.14 "Election Period" means the period of time during
which a Participant can elect, with the consent of his
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spouse, to waive the Qualified Joint and Survivor
Annuity or the Qualified Pre-Retirement Survivor
Annuity or can elect to revoke such a waiver. In the
case of a Qualified Joint and Survivor Annuity, the
Election Period is the 90 day period preceding the
annuity starting date. In the case of a Qualified
Pre-Retirement Survivor Annuity, the Election Period
begins on the first day of the Plan Year in which a
Participant attains age 35 and ends on the date of the
Participant's death, provided that if a Participant
terminates employment prior to age 35, his Election
Period shall begin on his termination date.
1.15 "Employee" means any individual who is employed by a
Participating Company.
1.16 "ERISA" means the Employee Retirement Income Security
Act of l974, as amended from time to time, and any
regulations issued pursuant thereto.
1.17 "Forfeiture" means that portion of a Participant's
Restricted Company Contribution Account which is
forfeited before full vesting.
1.18 "Highly Compensated Employee" means an Employee who is
highly compensated as defined in Code section 414(q).
Subject to the special limitations and definitions
contained in section 414(q), a Highly Compensated
Employee is any Employee who during the current or
preceding Plan Year:
(a) was a five percent owner of a Participating
Company;
(b) received compensation from a Participating
Company in excess of $75,000;
(c) received compensation from a Participating
Company in excess of $50,000 and is in the top 20
percent of the Participating Company's employees
ranked on the basis of compensation; or
(d) was at any time an officer of a Participating
Company and received compensation in excess of
50% of the defined benefit dollar limitation for
the Plan Year under Code section 415(b)(1)(A).
In making this determination, an employee who does not
satisfy (b), (c) or (d) in the preceding Plan Year
shall not be considered as satisfying (b), (c) or (d)
for the current Plan Year unless he meets the
requirements of those subsections for the current year
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and is among the top 100 employees paid the greatest
compensation during the current Plan Year. For
purposes of the Highly Compensated Employee
definition, the term Participating Company includes
any Affiliated Company whether or not such Affiliated
Company has adopted this Plan. This Section's dollar
amounts shall be adjusted for cost of living increases
as provided under the Code.
1.19 "Investment Manager" means any individual or
corporation selected by the Board or by any
Board-appointed committee having the authority to
select such person who (i) is registered as an
investment adviser under the Investment Advisers Act
of 1940; or (ii) is a bank, as defined in that Act; or
(iii) is an insurance company qualified to manage,
acquire or dispose of plan assets under the laws of
more than one state and each individual or corporation
acknowledges in writing that he or the corporation, as
the case may be, is a fiduciary with respect to the
Plan.
1.20 "Leased Employee" means any person who is not
otherwise an Employee and who, pursuant to an
agreement between a Participating Company and any
other person or organization, has performed services
for the Participating Company, or for the
Participating Company and related persons (determined
in accordance with section 414(n)(6) of the Code), on
a basis whereby if such person were an Employee, such
person would have become an eligible Employee
hereunder either in the initial eligibility
computation period or any Plan Year thereafter, and
such services are of a type historically performed by
employees in the business field of the Participating
Company, provided, that a person shall not be treated
as a Leased Employee for any Plan Year if, during such
Plan Year: (i) such person is covered by a money
purchase pension plan described in section
414(n)(5)(B) of the Code, and (ii) not more than 20%
of the Employees who are not Highly Compensated
Employees are Leased Employees. Once a person is
classified as a Leased Employee, such person shall
remain a Leased Employee for every Plan Year for which
the person completes at least 1000 Hours of Service.
1.21 "Non-Highly Compensated Employee" means an Employee
who is not a Highly Compensated Employee.
1.22 "Normal Retirement Age" means age 65.
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1.23 "Participant" means an Employee who meets the
eligibility requirements set forth in Section 2.l and
who elects to participate in the Plan.
1.24 "Participant Account" means, as of any Valuation Date,
the then amount of a Participant's contributions and
the Participating Company's contributions allocated on
behalf of the Participant adjusted to reflect any
investment earnings and losses attributable to such
contributions, withdrawals and distributions, at the
then market value of the Trust. Where appropriate a
Participant Account shall have the following
subaccounts: a Restricted Company Contribution
Account to record Company Matching and Discretionary
Contributions, a Participant Pre-Tax Contribution
Account to record Pre-Tax Contributions, a Participant
Post-Tax Contribution Account to record Post-Tax
Contributions and a Rollover Account to record
rollover contributions. Earnings associated with each
type of contribution shall be allocated to the account
to which the associated contributions are allocated.
1.25 "Participating Company" means the Company and each
Affiliated Company that has adopted this Plan for the
benefit of its eligible Employees. Participating
Companies are listed in Appendix A.
1.26 "Plan" means this Rochester Tel Group Employees'
Retirement Savings Plan as set forth herein and as it
may be amended from time to time.
1.27 "Plan Year" means the calendar year. The Plan Year
shall be the limitation year as this term is used in
ERISA.
1.28 "Post-Tax Contributions" means a Participant's
contributions which are non-deductible for income tax
purposes at the time they are made.
1.29 "Predecessor Company" means any organization which was
acquired by the Company or an Affiliated Company.
1.30 "Pre-Tax Contributions" means a Participant's
contributions which are not included in his income for
income tax purposes at the time they are made.
1.31 "Qualified Joint and Survivor Annuity" means an
annuity for the life of the Participant with a
survivor annuity for the life of the Participant's
spouse which is 50 percent of the amount which is
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<PAGE> 7
payable during the joint lives of the Participant and
the Participant's spouse and which is purchased from
an insurance company with the Participant's account
balance.
1.32 "Qualified Pre-Retirement Survivor Annuity" means a
life annuity payable to the surviving spouse of a
deceased Participant which is purchased from an
insurance company with the Participant's account
balance.
1.33 "Restricted Stock" means Company Stock that has been
allocated to a Participant's Restricted Company
Contribution Account for a period of less than five
years from the date of the initial allocation.
1.34 "Supplemental Contributions" means a Participant's
contributions to the Plan in excess of his Basic
Contributions in accordance with Section 3.2.
1.35 "Trust" or "Trust Fund" means the amounts held in
trust in accordance with this Plan and consists of
such investment options as from time to time may be
designated by a Board-appointed Committee.
1.36 "Trust Agreement" means any agreement entered into
between the Company and any Trustee to carry out the
purposes of the Plan, which agreement shall constitute
a part of this Plan.
1.37 "Trustee" means any bank or trust company selected by
the Board or a Board committee to serve as Trustee
pursuant to the provisions of the Trust Agreement.
1.38 "Valuation Date" means the last day the Trust may have
been valued provided that the Trust shall be valued no
less frequently than on the last day of each calendar
quarter.
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ARTICLE II
Eligibility
2.1 Eligibility Requirements. An Employee who fits within
the eligible class set forth in Appendix B for his
Participating Company and who is not excluded pursuant
to the following sentence is eligible to become a
Participant on his employment date with the
Participating Company. An Employee is not eligible to
participate in this Plan if (1) the Employee is in a
unit of employees covered by a collective bargaining
agreement in which retirement benefits were the
subject of good faith bargaining unless such
collective bargaining agreement expressly provides for
participation in this Plan; (2) the Employee is a
temporary or summer employee; or (3) the Employee is a
Leased Employee.
In the discretion of the Committee, an eligible
Employee of a Participating Company that has adopted
this Plan who is transferred to an Affiliated Company
that has not adopted this Plan may participate in the
Plan under such arrangements as the Committee may
prescribe.
2.2 Reemployment. If an Employee terminates employment
and is subsequently reemployed by a Participating
Company, he will be eligible to begin participation in
this Plan immediately upon his return to employment.
All service of such an Employee with a Participating
Company or any Affiliated Company prior to termination
of employment shall be credited to such Employee for
purposes of the vesting provisions of Section 7.2.
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ARTICLE III
Participation and Participant Contributions
3.1 Participation. An eligible Employee may become a
Participant by filing a written application with the
Committee. The application shall indicate the amount
of his initial Basic and Supplemental Contributions
and whether he intends to have such Contributions made
as Post-Tax Contributions or as Pre-Tax
Contributions. Except as the Committee in its
discretion may otherwise determine, participation will
commence with the first payroll period as is
administratively practicable to meet following the
date such written election is received by the
Committee. Participation shall thereafter continue
until all amounts in the Participant's Account have
been distributed even though current contributions may
be suspended.
3.2 Amount of Contributions. Contributions may be made by
any Participant who has enough Compensation during any
payroll period to make a contribution by payroll
deduction. Each Participant may contribute, at his
option, Basic Contributions in any whole percentage of
his Compensation during a payroll period with a
minimum contribution of 1 percent of Compensation and
a maximum contribution of 6 percent of Compensation.
If a Participant is making Basic Contributions at the
maximum rate of 6 percent of his Compensation, he may
also elect to make Supplemental Contributions of any
whole percentage of from l to l0 percent of his
Compensation during a payroll period. All Participant
contributions will be in cash in the form of
Employee-authorized payroll deductions on either a
post-tax basis or, pursuant to Section 3.7, on a pre-
tax basis.
3.3 Change in Amount of Contributions. The percentage, or
percentages if more than one, of Compensation
designated by the Participant as his contribution rate
will continue in effect, notwithstanding any change in
his Compensation, until he elects to change such
percentage. A Participant, by filing a written
election form furnished by the Committee, may change
his percentage of contributions as frequently during
the Plan Year and pursuant to such rules as the
Committee may prescribe. Any such change will become
effective on the first payroll period as is
administratively practicable to meet after the date
such written election is received by the Committee.
If a Participant's total contribution rate is in
excess of 6 percent of his Compensation, any such
change will first be applied to adjust the amount of
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<PAGE> 10
his Supplemental Contributions and then, if necessary,
to adjust the amount of his Basic Contributions. If a
Participant's total contribution rate is less than
6 percent of his Compensation, any such change will
first be applied to adjust the amount of his Basic
Contributions and then, if necessary, to provide for
Supplemental Contributions.
3.4 Suspension of Participant Contributions. A
Participant, by filing a written election with the
Committee, may elect to suspend either his Basic or
Supplemental Contributions, or both, at any time. Any
such suspension will become effective with the first
payroll period as is administratively practicable to
meet after the date such written election is received
by the Committee. A suspension of all Basic
Contributions will automatically suspend all
Supplemental Contributions. In order to resume making
contributions, the Participant must follow the
procedure outlined in Section 3.l as though he were a
new Participant. A Participant will not be permitted
to make up suspended contributions. Participant
contributions will be suspended automatically for any
payroll period in which the Participant is not in
receipt of Compensation. Such automatic suspension
shall be lifted beginning with the next payroll period
that the Participant receives Compensation. The
suspension of Supplemental Contributions, in the
absence of an election to the contrary, will not
affect Basic Contributions.
3.5 Remittance of Participant Contributions to the
Trustee. Participant contributions will be remitted
as soon as administratively practicable to the Trustee.
3.6 Termination of Participant Contributions. A
Participant's contributions will terminate effective
with the payroll period that ends or includes the date
the Participant terminates employment for any reason,
including retirement or death.
3.7 Pre-Tax Contributions Option. A Participant shall
have the option of having his Basic and Supplemental
Contributions to the Plan made on a tax-deferred basis
pursuant to the terms of this Section. Basic and
Supplemental Pre-Tax Contributions may be made solely
pursuant to a salary reduction agreement between an
individual Participant and his employer. Under this
agreement the Participant agrees to reduce his
Compensation by a specified percentage (as outlined in
Section 3.2) and the Participating Company agrees to
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<PAGE> 11
contribute to the Plan the identical amount on behalf
of the Participant. The agreement shall be in such
form and subject to such rules as the Committee may
prescribe. The Committee, in its sole discretion, may
limit the number of salary reduction agreements a
Participant may make during a Plan Year, except that
an agreement may be terminated at any time, in which
event the Participant shall specify whether all of his
contributions shall cease or continue to be made as
Post-Tax Contributions.
3.8 Lump Sum Contributions. Notwithstanding the foregoing
provisions, in accordance with such rules as the
Committee may prescribe on a non-discriminatory basis,
a Participant may make lump sum Post-Tax or Pre-Tax
Contributions at such times and in accordance with
such rules as the Committee may prescribe. Such lump
sum contributions may be made in addition to or as an
alternative to any salary deduction contributions made
pursuant to other provisions of this Plan. A lump sum
Post-Tax Contribution may be made by any method
approved by the Committee, including payroll deduction
or direct contribution. A lump sum Pre-Tax
Contribution can be made only pursuant to a salary
reduction agreement between the Participant and a
Participating Company. A Participant may make such
lump sum contributions in any dollar amount or in any
percentage of Compensation that the Participant may
designate, provided that (1) all such contributions
are subject to the ERISA limitations set forth in
Section 4.4 of the Plan; and (2) a lump sum Pre-Tax
Contribution cannot exceed the Participant's
Compensation for the period covered by the salary
reduction agreement.
3.9 Rollovers to This Plan. Notwithstanding the
limitations on contributions set forth in the
preceding Sections of this Article III, a Participant
may make rollover contributions (as defined in
sections 402(c)(4), 403(a)(4) and 408(d)(3) of the
Code) to the extent the Committee in its discretion
may permit and in accordance with rules it shall
establish. In addition, the Committee in its sole
discretion may arrange for a Participant's account in
any other tax- qualified plan to be transferred
directly to this Plan. No rollover contribution or
transfer shall be permitted if it could adversely
affect the tax qualification of this Plan. All
rollovers and transfers to this Plan shall be credited
to a Participant's Rollover Account.
3.10 Direct Rollovers from this Plan. Notwithstanding any
provision of the Plan to the contrary that would
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<PAGE> 12
otherwise limit a Participant's election under this
Section, a Participant may elect, at the time and in
the manner prescribed by the Committee, to have any
portion of an eligible rollover distribution paid
directly to an eligible retirement plan specified by
the Participant in a direct rollover. An eligible
rollover distribution is any distribution of all or
any portion of the balance to the credit of the
Participant except that an eligible rollover
distribution does not include any distribution that is
one of a series of substantially equal periodic
payments (not less frequently than annually) made for
the life (or life expectancy) of the Participant or
the joint lives (or joint life expectancies) of the
Participant and the Participant's designated
Beneficiary, or for a specified period of ten years or
more; any distribution to the extent such distribution
is required under section 401(a)(9) of the Code; and
the portion of any distribution that is not includible
in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect
to Company securities).
An eligible retirement plan is an individual
retirement account described in section 408(a) of the
Code, an individual retirement annuity described in
section 408(b) of the Code, an annuity plan described
in section 403(a) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts
the Participant's eligible rollover distribution.
However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible
retirement plan is an individual retirement account or
individual retirement annuity.
For these purposes, a Participant includes an Employee
or former Employee who has an account balance in the
Plan. In addition, the Employee's or former
Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations
order, as defined in section 414(p) of the Code, are
Participants with respect the interest of the spouse
or former spouse. A direct rollover is a payment by
the Plan to the eligible retirement plan specified by
the Participant.
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ARTICLE IV
Participating Company Contributions
4.1 Company Contributions. Subject to the limitations of
Section 4.4, each Participating Company will
contribute Company Matching Contributions, or Company
Discretionary Contributions, or both, as specified in
Appendix B for such Participating Company. All
Participating Company contributions will be made in
cash which shall be used by the Trustee to purchase
Company Stock as soon as reasonably practicable.
4.2 Remittance of Company Contributions. Company Matching
Contributions shall be remitted to the Trustee on a
regular and periodic basis following the payroll
period to which they relate but in no event shall they
be made less frequently than quarterly. Company
Discretionary Contributions for a Plan Year shall be
remitted to the Trustee by a Participating Company no
later than the date the Participating Company's tax
return is due for the year within which ends the Plan
Year to which the contributions relate.
4.3 Effect of Suspension of Participant Contributions on
Company Contributions. During any period in which a
Participant's Basic Contributions are suspended,
Company Matching Contributions on his behalf will also
be suspended.
4.4 Maximum Contributions. Notwithstanding the
contribution levels specified in Article III and the
preceding Sections of this Article IV, no
contributions will be permitted in excess of the
limits set forth below:
1. Limits on Employee Pre-Tax Contributions. A
Participant's Pre-Tax Contributions to this Plan and
any tax-deferred contributions under any other 401(k)
plan in which he may participate shall not exceed
$8,994 (adjusted for cost of living increases for
years after 1993 as provided under the Code) in any
taxable year of the Participant. To meet this limit,
no contribution to this Plan in excess of $8,994 (as
adjusted) shall be accepted on behalf of any
Participant during a calendar year. If a Participant
participates in more than one plan, he shall notify
the Committee of any excess contribution in a calendar
year by March 1 of the following year. The Committee
shall then cause the portion of such excess allocated
to this Plan to be returned to the Participant by
April 15 following the calendar year to which the
excess contribution relates.
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<PAGE> 14
In addition to the individual limits, the Plan's
contributions shall, if necessary, also be limited so
as to meet one of the following tests:
(a) For each Plan Year, the actual deferral
percentage for the Highly Compensated Employees
may not be more than the actual deferral
percentage for the Non-Highly Compensated
Employees multiplied by 1.25; or
(b) For each Plan Year, the excess of the actual
deferral percentage for the Highly Compensated
Employees over the actual deferral percentage for
the Non-Highly Compensated Employees may not be
more than two percentage points and the actual
deferral percentage for the Highly Compensated
Employees may not be more than the actual
deferral percentage for the Non-Highly
Compensated Employees multiplied by 2.0.
In applying these tests, the actual deferral
percentages for the Highly Compensated Employees and
the Non-Highly Compensated Employees for a Plan Year
shall be the average of the percentages, calculated
separately for each eligible Employee in the group,
obtained by dividing the sum of the Employee's Pre-Tax
Contributions by the Employee's compensation (as
required under Code section 414(s)) for the Plan Year.
The Committee shall have the responsibility for
monitoring compliance with these tests and shall have
the power to take any steps it deems appropriate to
ensure compliance, including limiting the amount of
salary reduction permitted by the Highly Compensated
Employees or requiring that the contributions for the
Highly Compensated Employees be delayed or held in
escrow before being paid over to the Trustee until
such time as the Committee determines that
contributions can be made on behalf of the Highly
Compensated Employees without violating the
requirements of Code section 401(k). Within two and
one-half months (otherwise within 12 months) following
the end of a Plan Year the Committee shall distribute
to Highly Compensated Employees such contributions
(and earnings thereon) as may be in excess of the
amounts required to satisfy the special
nondiscrimination tests.
2. Limits on Employee Post-Tax Contributions and
Company Matching Contributions. Pursuant to Internal
Revenue Code section 401(m) the combination of
Employee Post-Tax Contributions and Company Matching
Contributions shall, if necessary, be limited so as to
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<PAGE> 15
ensure that in each Plan Year the actual contribution
percentage for eligible Highly Compensated Employees
does not exceed the greater of:
(a) 125 percent of the contribution percentage of all
eligible Non-Highly Compensated Employees; or
(b) the lesser of twice the contribution percentage
of eligible Non-Highly Compensated Employees or
the contribution percentage of eligible
Non-Highly Compensated Employees plus two
percentage points.
In applying these tests, the contribution percentages
for Highly Compensated Employees and Non-Highly
Compensated Employees for a Plan Year shall be the
average of the percentages for each group, calculated
separately for each employee in each group, obtained
by dividing the sum of a Participant's Post-Tax
Contributions and the Company Matching Contributions
on his behalf by the Participant's compensation (as
required by Code section 414(s)) for the Plan Year.
At the election of the Committee, the contribution
percentages can be determined by also taking into
account a Participant's Pre-Tax Contributions.
If the foregoing test is not satisfied for any Plan
Year, the Committee shall direct the excess aggregate
contributions which cause the failure to be
distributed to the Highly Compensated Employees. Such
distributions shall be made in accordance with the
provisions of Code section 401(m) prior to the end of
the Plan Year following the Plan Year in which
occurred the failure to satisfy the test.
3. Code Section 415 Limits. Pursuant to Code section
415, the total of the Employee and Participating
Company contributions on behalf of a Participant for
each Plan Year (his "annual additions") shall not
exceed the lesser of $30,000 (or such larger amounts
as reflect cost of living increases pursuant to
section 415 of the Code) or 25 percent of the
Participant's total compensation for such Plan Year.
For purposes of this Section, the term "annual
additions" means the total each Plan Year of a
Participating Company's contributions, the Employee's
contributions and Forfeitures. Rollover contributions
and loan repayments are not annual additions for this
purpose. For purposes of applying these limitations,
the term "compensation" shall have the meaning
ascribed to it in regulations under Code section 415.
In general, these regulations define compensation to
mean an Employee's W-2 compensation from a
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<PAGE> 16
Participating Company but excluding income derived
from the exercise of stock options, from the
disqualification of an incentive stock option, from
restricted stock or from income imputed from the
payment of life insurance premiums.
In addition to the amounts calculated under this Plan,
annual additions shall include such amounts, similarly
calculated, that are contributed with respect to the
Participant to any other defined contribution plan
maintained by a Participating Company or by any
Affiliated Company and Participating Company
contributions to an individual medical account as
described in Code sections 415(1) and 419A(d)(2). In
determining whether a corporation is an Affiliated
Company for this purpose only, the percentage control
test set forth in section 1563(a) of the Code shall be
a 50 percent test in place of the 80 percent test each
place the 80 percent test appears in said Code section.
If Plan contributions exceed the limits of this
Section, first the Participant's contributions shall
be reduced, as necessary, to eliminate the excess, in
the following order of priority: Post-Tax
Supplemental Contributions; Post-Tax Basic
Contributions; Pre-Tax Supplemental Contributions; and
Pre-Tax Basic Contributions. Post-Tax and Pre-Tax
Contributions which cause the excess, plus the
earnings attributable to the contributions may be
returned to the Participant in the event the excess is
caused by a reasonable error in estimating a
Participant's annual compensation or any other cause
which is acceptable under Treasury Regulation section
1.415-6(b)(6). Any such excess shall be returned to
the Participant by March 1 following the end of the
Plan Year to which the excess relates. If an excess
still exists, the Participating Company's contribution
shall be reduced as necessary.
If a person participates at any time in both a defined
benefit plan and a defined contribution plan
maintained by a Participating Company or an Affiliated
Company, the sum of the defined benefit plan fraction
and the defined contribution plan fraction for any
Plan Year may not exceed 1.0. For purposes of this
Section, the defined contribution plan fraction for
any Plan Year is a fraction the numerator of which is
the person's annual additions in such Plan Year and
all prior years of employment, as determined above,
and the denominator of which is the lesser of the
following amounts for such Year and for each prior
Year: (a) 1.25 times the dollar limitation of Code
section 415(c)(1)(A) for the pertinent Year or (b) 1.4
times the amount that could be taken into account
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<PAGE> 17
under the limitation of Code section 415(c)(1)(B) for
the Participant. The defined benefit plan fraction
for any Plan Year is a fraction the numerator of which
is the Participant's projected annual benefit under
all plans maintained by a Participating Company or an
Affiliated Company and the denominator of which is the
lesser of the following amounts for such Year: (a)
1.25 times the dollar limitation of Code section
415(b)(1)(A) for such Year or (b) 1.4 times the amount
that could be taken into account under the percentage
limitation of Code section 415(b)(1)(B) for the
Participant for such Year.
The Committee shall monitor the contributions and
benefits with respect to each Participant under all
plans maintained by a Participating Company and any
Affiliated Company. The Committee, in its sole
discretion, shall reduce any such contributions or
benefits to prevent the combined fractions from
exceeding 1.0.
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ARTICLE V
Investment of Contributions
5.1 Investment Funds. The Trustee shall establish a
Company Stock fund and such other investment funds as
shall be designated from time to time by any Board-
appointed committee authorized to select investment
funds.
5.2 Investment of Company Contributions. All
Participating Company contributions and the earnings
thereon shall be invested initially in Company Stock.
All Company Stock so invested shall remain in the
Company Stock fund until the fifth anniversary of the
date of investment (the "Restricted Stock"). At the
expiration of the five year period the Restricted
Stock in a Participant's Account shall lose its
investment restriction and may be invested by the
Participant, pursuant to Section 5.5 and any rules
established by the Committee thereunder, in any other
fund option or left in the Company Stock fund.
5.3 Investment of Participant Contributions. Each
Participant will direct, at the time he elects to
become a Participant under the Plan, that his
Participant contributions be invested in one or more
available fund options in accordance with any rules
the Committee in its discretion may establish. In the
event no election is made, all contributions will be
invested in a fixed income fund option designated by
the Committee for this purpose.
5.4 Changing the Current Investment Election. A
Participant's investment election for his Participant
contributions will continue in effect until changed by
the Participant. A Participant may change his current
investment election as to his future Participant
contributions effective no later than the first
payroll period as is administratively practicable
after the date such election to change is received by
the Committee or its designee. Such changes may be
made only as frequently as the Committee in its sole
discretion may permit and in accordance with any rules
the Committee in its discretion may establish.
5.5 Changing the Investment of Accumulated Contributions.
A Participant may change his investment election as to
some or all of his entire Participant Account balance
except for the Restricted Stock. Such changes may be
elected only as frequently as the Committee in its
sole discretion may permit and in accordance with any
rules the Committee in its discretion may establish.
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<PAGE> 19
5.6 Voting Rights with Respect to Company Stock. Each
Participant shall have the right to vote all shares of
Company Stock held in the Participant's Account. Each
Participant shall also have the right to direct the
Trustee whether to tender such shares of Company Stock
in the event an offer is made by any person other than
the Company to purchase such shares. The Committee
shall make any such arrangements with the Trustee as
may be appropriate to pass such voting or tender offer
rights through to a Participant. In the event a
Participant fails to vote his shares or fails to
indicate his preference with respect to a tender
offer, the Trustee shall vote the Participant's shares
or tender his shares in the same proportions as those
Plan Participants who did respond, cast their votes or
tendered their shares.
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ARTICLE VI
Participant Accounts
6.1 Individual Accounts. The Committee shall create
and maintain (or direct to be created and maintained)
individual accounts as records for disclosing the
interest in the Trust of each Participant, former
Participant and Beneficiary. Such accounts shall
record credits and charges in the manner herein
described. When appropriate, a Participant shall have
four separate accounts, a Restricted Company
Contribution Account, a Participant Pre-Tax
Contribution Account, a Participant Post-Tax
Contribution Account and a Rollover Account. The
maintenance of individual accounts is only for
accounting purposes, and a segregation of the assets
of the Trust to each account shall not be required.
6.2 Account Adjustments. Participant Accounts shall be
adjusted as follows:
(a) Earnings: The earnings (including losses as well
as gains) of the Trust shall be allocated to the
Participant Accounts of Participants who have
balances in their Accounts on each Valuation
Date. The allocation shall be made in the
proportion that the amounts in each Participant
Account bear to the total amounts in all of the
Participant Accounts similarly invested. In
determining the value of Plan assets, each
valuation shall be based on the fair market value
of assets in the Trust on the Valuation Date.
(b) Participating Company contributions: As of the
end of each month the Company Matching and
Discretionary Contributions on behalf of a
Participant during the month shall be allocated
to the Participant's Restricted Company
Contribution Account.
(c) Participant contributions: A Participant's
contributions made during a month shall be
allocated to his Pre-Tax or Post-Tax Contribution
Account, as the case may be, as of the end of
each month.
(d) Distributions and withdrawals: Distributions and
withdrawals from a Participant's Account shall be
charged to the Account as of the date paid.
(e) Forfeitures: As of the end of each Plan Year,
Forfeitures which have become available during
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<PAGE> 21
such Plan Year and are not required for
allocation under Section 6.2(f) below shall be
used to reduce the Participating Company's
current or its next succeeding contributions to
the Plan.
(f) Forfeiture Account: In the event a Participant
is entitled to receive a vested benefit pursuant
to the terms of Section 7.2 but later returns to
the service of a Participating Company prior to
incurring five consecutive one year breaks in
service, the nonforfeitable amount in his pre-
termination Restricted Company Contribution
Account plus the amount of his Forfeiture at the
time of termination shall be credited to a
separate account as of the end of the Plan Year
when he returns. The restoration of the
Forfeiture shall be made, first, from any other
Forfeitures arising in such Year prior to
disposition under Section 6.2(e) and, if not
available from such Forfeitures, from
Participating Company contributions for the
Year. At any relevant time, the Participant's
nonforfeitable portion of the separate account
will be equal to an amount ("X") determined by
the formula:
X = P(AB + (R x D)) - (R x D)
For purposes of applying this formula: P is the
nonforfeitable percentage at the relevant time;
AB is the account balance at the relevant time; D
is the amount of the distribution; and R is the
ratio of the account balance at the relevant time
to the account balance after distribution.
The separate account need not be maintained after
a Participant has incurred five consecutive one
year breaks in service after the distribution of
benefits to him. For purposes of this Section a
one year break in service means a Plan Year
during which an Employee performs no services for
a Participating Company or an Affiliated Company.
6.3 Statements to Participants. On a periodic basis, but
no less frequently than once during each Plan Year,
the Committee (or its designee) will provide each
Participant with a statement showing his interests in
the Plan's various investment funds. The statement
may show a Participant's interest in the Company Stock
fund in terms of the number of shares of Company
Stock, their dollar value, or both. As an alternative
to showing the dollar or stock value of each Account,
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<PAGE> 22
the Committee in its discretion may express each
Participant's interest in terms of units. The
statement shall also indicate the portion of his
Account that is vested and if there is none, the
earliest date on which vesting shall occur.
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<PAGE> 23
ARTICLE VII
Retirement or Other Termination of Employment
7.1 Retirement or Disability. If a Participant's
employment with a Participating Company is terminated
(i) at or after his Normal Retirement Age, (ii) at or
after his Early Retirement Age, or (iii) at an earlier
age because of disability, the Participant's accounts
shall all be fully vested and he shall be entitled to
receive the entire balance of such accounts in
accordance with the provisions of Article IX. For
purposes of this Section 7.1 the term "disability"
means a physical or mental condition which, in the
judgment of the Committee, based on medical reports
and other evidence satisfactory to the Committee, will
permanently prevent an Employee from satisfactorily
performing his usual duties for a Participating
Company and which entitle the Employee to receive
Social Security disability benefits.
If a Participant terminates employment, whether
voluntarily or involuntarily, prior to suffering a
disability or prior to age 55, he shall receive only
that portion of his accounts that have become vested
under Section 7.2.
7.2 Vested Benefits. If a Participant terminates
employment with a Participating Company before he
reaches age 55 or suffers a disability, he shall be
entitled to receive the entire amount credited to his
Participant Pre-Tax Contribution Account, his
Participant Post-Tax Contribution Account and his
Rollover Account plus the amount in his Restricted
Company Contribution Account which has become vested.
The vested amount in the Restricted Company
Contribution Account shall be determined in accordance
with the following schedule:
Length of Percent of Percent of
Service Account Vested Account Forfeited
less than 6 months 0% 100%
6 months or more 100% 0%
If any Plan amendment changes the Plan's vesting
schedule, each Participant in the Plan as of the date
the new schedule is adopted shall have his vested
percentage determined under the vesting schedule which
provides him with the greatest vested benefit at any
particular point in time.
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<PAGE> 24
Any Forfeiture that may arise by virtue of the
application of this Section shall be treated in
accordance with the provisions of Section 6.2(e).
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<PAGE> 25
ARTICLE VIII
Death
8.1 Death While Actively Employed. If a Participant dies
while actively employed, the Participant's Beneficiary
will be entitled to receive l00 percent of the value
of his Participant Account. This amount shall consist
of the Account's value as of the Valuation Date next
following the date of the Participant's death.
8.2 Death After Retirement. If a Participant dies after
retirement, any benefit payable to the Participant's
Beneficiary will depend upon the method that has been
employed to distribute the value of his Participant
Account in accordance with Article IX.
8.3 Beneficiary. If a Participant is married, his
Beneficiary shall be his spouse who shall be entitled
to receive his remaining account balance, upon the
Participant's death. Upon the written election of the
Participant, with his spouse's written consent, a
Participant may designate another Beneficiary. This
election and spousal consent must either be notarized
or be witnessed by a Plan representative and returned
to the Committee. If such election has been made or
if the Participant is not married, the Participant
will designate the Beneficiary (along with alternate
Beneficiaries) to whom, in the event of his death, any
benefit is payable hereunder. Each Participant has
the right, subject to the spousal consent requirement
noted above, to change any designation of
Beneficiary. A designation or change of Beneficiary
must be in writing on forms supplied by the Committee
and any change of Beneficiary will not become
effective until such change of Beneficiary is filed
with the Committee, whether or not the Participant is
alive at the time of such filing; provided, however,
that any such change will not be effective with
respect to any payments made by the Trustee in
accordance with the Participant's last designation and
prior to the time such change was received by the
Committee. The interest of any Beneficiary who dies
before the Participant will terminate unless otherwise
provided. If a Beneficiary is not validly designated,
or is not living or cannot be found at the date of
payment, any amount payable pursuant to this Plan will
be paid to the spouse of the Participant if living at
the time of payment, otherwise in equal shares to such
children of the Participant as may be living at the
time of payment; provided, however, that if there is
no surviving spouse or child at the time of payment,
such payment will be made to the estate of the
Participant.
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<PAGE> 26
ARTICLE IX
Payment of Benefits
9.1 Form of Payment. Except as may be restricted by
Sections 9.2 and 9.3, any Participant or, if the
choice is his, any Beneficiary who is entitled to
receive benefits under Articles VII or VIII may elect
to receive the amount in the Participant Account in
accordance with one of the following elections, all of
which shall be actuarial equivalents:
OPTION A: A lump sum.
OPTION B: Periodic payments of substantially
equal amounts for a specified number of years not
in excess of twenty. Such periodic payments
shall be made at least annually. In the event
periodic payments are elected, the Participant
shall direct in writing how the remaining balance
of his account is to be invested.
OPTION C: For any amounts transferred to this
Plan from another plan containing payment options
in addition to Options A & B, any option
available under the other plan as set forth in
Appendix B. Payments under this Option C shall
be available only with respect to the transferred
funds. Amounts allocated to a Participant
Account after the transfer date shall be paid out
only under Option A or Option B.
9.2 Option C Requirements for Married Participants. If a
married Participant elects an annuity under Option C,
unless he makes a written election, as outlined below,
to the contrary his form of benefit shall be a
Qualified Joint and Survivor Annuity. If benefits
become payable on account of the death of a married
Participant to whom an annuity option is available
under Option C, the normal form of benefit shall be a
Qualified Pre-Retirement Survivor Annuity. These
benefits shall become automatically payable unless the
Participant or his spouse, as the case may be, makes a
written election within the Election Period to receive
one of the alternate forms of benefits specified in
Section 9.1 or Appendix B. An election by the
Participant must be consented to by his spouse in
writing. The spouse's consent shall acknowledge the
effect of the election and shall be either notarized
or witnessed by a Plan representative. Failure to
obtain the spouse's consent or the revocation of a
previously designated optional method of payment shall
result in payment of benefits in the form of a
Qualified Joint and Survivor Annuity or a Qualified
<PAGE>
<PAGE> 27
Pre-Retirement Survivor Annuity, as the case may be,
unless another election is made. To assist the
Participant and his spouse in making any election with
respect to waiving the Qualified Joint and Survivor
Annuity, the Committee shall provide the Participant,
not less than 30 nor more than 90 days before his 55th
birthday a retirement application form describing the
normal and optional forms of benefit payments,
including their relative financial effects in terms of
dollars per annuity payment on the Participant and his
spouse. This form shall provide a place for the
Participant to indicate his annuity starting date and
the form of benefit he desires. In the case of a
Qualified Pre-Retirement Survivor Annuity, a
substantially similar notice shall be provided to the
Participant during the period beginning on the first
day of the Plan Year in which the Participant attains
age 32 and ending on the last day of the Plan Year
preceding the Plan Year in which the Participant
attains age 35.
9.3 Payments from Company Stock Fund. If a recipient
elects a lump sum payment under Option A of
Section 9.1 or installment payments under Option B of
Section 9.1, payment from the Participant's Company
Stock fund account may be made either in cash or in
Company Stock. If a person elects, or pursuant to
Section 9.2 is required, to receive any annuity option
under Section 9.2 or Option C, the amounts in his
Company Stock fund shall be liquidated and combined
with his amounts in all other investment funds to
purchase an annuity contract pursuant to which only
cash benefits will be paid.
9.4 Time of Payment. A Participant or Beneficiary who
becomes entitled to receive a benefit at any time when
the Participant Account is $3,500 or less will be
cashed out for the full amount of the account balance
as soon as administratively practicable. If the
account balance is in excess of $3,500 it shall be
paid prior to Normal Retirement Age only with the
written consent of the Participant and, if married,
with the consent of the Participant's spouse in a
writing which acknowledges the effect of such consent
and which is witnessed by a Plan representative or is
notarized. In the case of death, the written consent
of the Participant's Beneficiary shall be required for
amounts in excess of $3,500.
Benefit payments shall normally begin not later than
the April l following the calendar year during which
the event giving rise to the eligibility for payment
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<PAGE> 28
shall have occurred. In no event shall benefits begin
later than sixty days after the close of the Plan Year
in which the latest of the following occurs: (1) the
Participant's attainment of age 65; (2) the 10th
anniversary of the year in which the Participant
commenced participation in this Plan; (3) the
termination of the Participant's service with a
Participating Company; or (4) the date specified in
writing to the Committee by the Participant (but not
later than the year in which he attains age 70 1/2).
In no event, however, shall benefit payments commence
later than the April 1 following the calendar year in
which a Participant attains age 70 1/2 even if he
continues in employment with a Participating Company.
Notwithstanding any direction by the Participant to
the contrary, all payments must be payable pursuant to
a schedule whereby the entire amount in the
Participant's Account is paid over a period that does
not extend beyond the life of the Participant or over
the lives of the Participant and any individual he has
designated as his Beneficiary (or over the life
expectancies of the Participant and his designated
individual Beneficiary). In addition, unless the
benefit is payable as a Qualified Joint and Survivor
Annuity, the payment method selected must provide that
more than 50 percent of the present value of the
payments projected to be paid to the Participant and
his Beneficiary will be paid to the Participant during
his life expectancy.
In the event of the death of a Participant, former
Participant or Beneficiary while benefits are being
paid under a schedule which meets the requirements of
the preceding paragraph, payments shall continue
pursuant to a schedule which is at least as rapid as
the period selected. In the event of the death of a
Participant or former Participant before benefit
payments have commenced, any death benefit shall be
distributed within five years of death unless the
following conditions are met:
(i) payments are made to an individual Beneficiary
designated by the Participant;
(ii) payments are made for the life of such individual
Beneficiary or over a period not extending beyond
his life expectancy; and
(iii) payments commence within one year of death.
If the designated Beneficiary is the Participant's
spouse, payments will be paid within a reasonable
period of time after the Participant's death, but may
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<PAGE> 29
be delayed until the date the Participant would have
attained age 70 1/2, if the Beneficiary so elects. If
the spouse dies before payments begin, the rules of
this paragraph shall be applied as if the spouse were
the Participant. Notwithstanding the provisions of
this Section the distribution requirements of Code
section 401(a)(9) and the regulations thereunder are
hereby incorporated by this reference and shall
supersede any conflicting Plan provisions.
9.5 Death of Participant Prior to Receiving Full
Distribution. Except as provided in Section 8.2, if a
Participant dies after having terminated employment
and prior to receiving a distribution of his
Participant Account, then the payments that would
otherwise have been made to the Participant will be
made to his Beneficiary.
9.6 QDROs. Benefits shall be payable under this Plan to
an alternate payee pursuant to the terms of any
qualified domestic relations order. The Committee has
the responsibility for determining if a domestic
relations order is qualified and whether its payment
terms are consistent with the terms of the Plan. If
appropriate, the amounts subject to a QDRO may be
segregated from the Participant's Account and placed
in a separate account for the benefit of the alternate
payee who shall thereupon be treated for Plan purposes
as a Participant. Any amounts payable to an alternate
payee may, at the alternate payee's request, be paid
from the Plan immediately pursuant to the terms of the
QDRO and this Plan.
<PAGE>
<PAGE> 30
ARTICLE X
Withdrawals and Loans During Employment
10.1 Age 59 1/2 Withdrawals. A Participant who has reached
age 59 1/2 but who has not yet terminated employment
may withdraw all or a portion of his vested
accumulated account balance under the Plan subject to
the limitations specified in Section 10.4.
10.2 Participant Post-Tax Contributions. A Participant
may, by filing a written request with the Committee,
signed by the Participant and the Participant's
spouse, elect to withdraw amounts in his Participant
Post-Tax Contribution Account as follows:
(a) Contributions. A withdrawal of up to 100 percent
of Participant Post-Tax Contributions or, if
less, l00 percent of the then value of such
contributions may be made from the Plan.
(b) Earnings. A withdrawal of up to 100 percent of
the earnings on Post-Tax Contributions may be
made by a Participant from the Plan.
10.3 Participant Pre-Tax Contributions. No earnings in a
Participant's Pre-Tax Contribution Account may be
withdrawn prior to age 59 1/2. A Participant may
withdraw his Pre-Tax Contributions from his
Participant Pre-Tax Contribution Account prior to age
59 1/2 only if the withdrawal is made on account of an
immediate and heavy financial need of the Participant
that cannot be satisfied from other resources
available to the Participant. For purposes of this
Section an immediate and heavy financial need shall
mean (1) expenses incurred for medical care or
necessary to obtain medical care for a Participant, a
Participant's spouse or a Participant's dependent; (2)
the purchase of a Participant's principal residence;
(3) tuition and related educational fees for
post-secondary education but only for the next 12
months for a Participant, a Participant's spouse or a
Participant's dependent, or remedial school tuition;
(4) prevention of eviction or mortgage foreclosure;
(5) expenses arising from the death of a spouse or
dependent; (6) financial loss due to a sudden
catastrophe; (7) extraordinary legal expenses; (8)
adoption expenses; or (9) any other need recognized by
the IRS in documents of general applicability. A
Participant will be deemed to lack other resources if
all of the following conditions are satisfied: (1)
the Participant must have obtained all distributions
(except hardship) and all nontaxable loans available
from all plans of any Participating Company; (2) the
<PAGE>
<PAGE> 31
Participant may not make any contributions to any plan
of any Participating Company for at least 12 months
following the hardship withdrawal and (3) the dollar
limit on pre-tax contributions ($8,994 as indexed for
inflation after 1993) for the calendar year following
the hardship shall be reduced by the amount of the
hardship withdrawal. If the foregoing conditions are
not satisfied, the Committee may reasonably rely on
statements and representations made by the Participant
with respect to his lack of other financial
resources. The amount of the withdrawal cannot exceed
the amount required to relieve the financial need
(including any amounts necessary to pay federal, state
or local income taxes or penalties reasonably
anticipated to result from the distribution).
10.4 Limitations on In-Service Withdrawals.
(a) No more than two in-service withdrawals are
permitted in any one Plan Year.
(b) No withdrawal will be permitted under this
Article unless the amount to be withdrawn is at
least $200 or l00% of the aggregate value of the
Participant's relevant account from which
withdrawals are being requested if such value is
less than $200.
(c) Unless otherwise specified by the Participant,
any withdrawal of Participant contributions from
his Participant Post-Tax Contribution Account
will be satisfied first by a withdrawal of his
pre-1987 contributions, if any, and then by a
withdrawal of his post-1986 contributions.
(d) The withdrawal of any amounts from the Company
Stock fund by a Participant who is an "officer,"
"director" or the "beneficial owner of more than
10 percent of any class of equity security" of
the Company within the meaning of these terms
under section 16 of the Securities Exchange Act
of 1934 shall result in such Participant's
automatic suspension from making Plan
contributions into the Company Stock fund for a
period of six months from the date of the
withdrawal.
(e) Any withdrawal from a Participant's Post-Tax
Contribution Account will result in an automatic
<PAGE>
<PAGE> 32
suspension of the Participant's right to make future
Plan contributions for a period of six months from the
date of the withdrawal. During the period of
suspension, Company matching contributions will also
be suspended. Finally, after the Participant resumes
making contributions to the Plan, no make-up
contributions will be permitted for the period of the
suspension.
10.5 Fund to be Charged with Withdrawal. A Participant may
specify the investment fund or combination of funds to
which a withdrawal is to be charged. If the
Participant fails to make any designation, a
distribution will be made out of the Participant's
interest in each of the funds in proportion to the
Participant's share in these funds.
10.6 Loans to Participants. The Trustee shall, if the
Committee directs, make a loan to a Participant from
any or all of the Participant's accounts subject to
such rules as the Committee may prescribe and subject
to the following conditions:
(a) An application for a loan by a Participant shall
be made in writing to the Committee;
(b) A loan must be for a minimum of $500, only two
loans (only one for the purchase of a principal
residence) may be outstanding at any one time,
only one loan refinancing per year will be
permitted;
(c) No loan shall be made to the extent that such
loan when added to all other loans to the
Participant would exceed the lesser of (1) 50
percent of the vested amounts in all of the
Participant's accounts under the Plan or (2)
$50,000 reduced by the excess, if any, of the
highest outstanding balance of loans during the
one year period ending on the day before the loan
is made over the outstanding balance of loans to
the Participant on the date the loan is made. In
determining whether the foregoing loan limits are
satisfied all loans from all plans of a
Participating Company and of any Affiliated
Company shall be aggregated.
(d) The period of repayment for any loan shall be
arrived at by mutual agreement between the
Committee and the borrower, but such period in no
event shall exceed five years except that a loan
<PAGE>
<PAGE> 33
may be granted for a period not to exceed 25
years if the proceeds are used to purchase the
Participant's principal residence;
(e) All loans must be repaid under a substantially
level amortization period with payments being
made at least quarterly;
(f) Each loan shall be made against collateral being
the assignment of 50 percent of the borrower's
entire right, title and interest in and to the
Trust Fund, supported by the borrower's
collateral promissory note for the amount of the
loan, including interest, payable to the order of
the Trustee and/or such other collateral as the
Committee may require;
(g) Each loan shall bear interest at a rate fixed by
the Committee. The rate shall be commensurate
with the rates charged by persons in the business
of lending money for loans which would be made
under similar circumstances. Interest rates
granted at different times and to Participants in
differing circumstances may vary depending on
such differences;
(h) A loan shall be treated as a directed investment
by the borrower with respect to his accounts.
The interest paid on the loan shall be credited
to the borrower's accounts and he shall not share
in the earnings of the Plan's assets with respect
to the amounts borrowed and not yet repaid;
(i) A loan to a married Participant requires the
written, notarized consent of the Participant's
spouse;
(j) No distribution shall be made to any Participant,
former Participant or Beneficiary unless and
until all unpaid loans, including accrued
interest thereon, have been liquidated or offset
against the account; and
(k) A loan from the Company Stock fund account of a
Participant who is an "officer," "director" or
the "beneficial owner of more than 10 percent of
any class of equity security" of the Company
within the meaning of these terms under section
16 of the Securities Exchange Act of 1934 shall
result in such Participant's automatic suspension
from making Plan contributions into the Company
<PAGE>
<PAGE> 34
Stock fund for a period of six months from the
date of the loan. In addition, no repayment of
any such loan shall be credited to a
Participant's Company Stock fund.
<PAGE>
<PAGE> 35
ARTICLE XI
Plan Administration
11.1 Appointment of Committee. The Board shall appoint an
Employees' Benefit Committee to administer the Plan.
Any person, including an officer or other employee of
a Participating Company, is eligible for appointment
as a member of the Committee. Such members shall
serve at the pleasure of the Board. Any member may
resign by delivering his written resignation to the
Board. Vacancies in the Committee shall be filled by
the Board.
11.2 Named Fiduciary and Plan Administrator. The Committee
shall be the Named Fiduciary and Plan Administrator as
these terms are used in ERISA. The Committee shall
appoint a Secretary who shall also be the agent for
the service of legal process.
11.3 Powers and Duties of Committee. The Committee shall
administer the Plan in accordance with its terms and
shall have all powers necessary to carry out the
provisions of the Plan, except such powers as are
specifically reserved to the Board or some other
person. The Committee's powers include the power to
make and publish such rules and regulations as it may
deem necessary to carry out the provisions of the
Plan. The Committee shall interpret the Plan and
shall determine all questions arising in the
administration, interpretation, and application of the
Plan.
The Committee shall notify the Trustee of the
liquidity and other requirements of the Plan from time
to time.
11.4 Operation of Committee. The Committee shall act by a
majority of its members at the time in office, and
such action may be taken either by a vote at a meeting
or without a meeting. Any action taken without a
meeting shall be reflected in a written instrument
signed by a majority of the members of the Committee.
A member of the Committee who is also a Participant
shall not vote on any question relating specifically
to himself. Any such question shall be decided by the
majority of the remaining members of the Committee.
The Committee may authorize any one or more of its
members to execute any document on behalf of the
Committee, in which event the Committee shall notify
the Trustee in writing of such action and the name or
names of its member or members so designated. The
Trustee thereafter shall accept and rely upon any
document executed by such member or members as
representing action by the Committee until the
Committee shall file with the Trustee a written
<PAGE>
<PAGE> 36
revocation of such designation. The Committee may
adopt such by-laws or regulations as it deems
desirable for the conduct of its affairs.
The Committee shall keep a record of all its
proceedings and acts and shall keep all such books of
account, records, and other data as may be necessary
for the proper administration of the Plan.
11.5 Power to Appoint Advisers. The Committee may appoint
such actuaries, accountants, attorneys, consultants,
other specialists and such other persons as it deems
necessary or desirable in connection with the
administration of this Plan. Such persons may, but
need not, be performing services for a Participating
Company. The Committee shall be entitled to rely upon
any opinions or reports which shall be furnished to it
by any such actuary, accountant, attorney, consultant
or other specialist.
11.6 Expenses of Plan Administration. The members of the
Committee shall serve without compensation for their
services as such, but their reasonable expenses shall
be paid by the Company. To the extent not paid from
Fund assets, as determined from time to time by any
Board-appointed committee, all reasonable expenses of
administering the Plan shall be paid by the Company,
including, but not limited to, fees of the Trustee,
accountants, attorneys, consultants, and other
specialists.
11.7 Duties of Fiduciaries. All fiduciaries under the Plan
and Trust shall act solely in the interests of the
Participants and their Beneficiaries and in accordance
with the terms and provisions of the Plan and Trust
Agreement insofar as such documents are consistent
with ERISA, and with the care, skill, prudence, and
diligence under the circumstances then prevailing that
a prudent person acting in a like capacity and
familiar with such matters would use in the conduct of
an enterprise of like character and with like aims.
Any person may serve in more than one fiduciary
capacity with respect to the Plan and Trust.
11.8 Liability of Members. No member of the Committee
shall incur any liability for any action or failure to
act, excepting only liability for his own breach of
fiduciary duty. To the extent not covered by
insurance, the Company shall indemnify each member of
the Committee and any Board-appointed committee and
any employee acting on their behalf against any and
<PAGE>
<PAGE> 37
all claims, loss, damages, expense and liability
arising from any action or failure to act.
11.9 Allocation of Responsibility. The Board, Trustee,
Investment Manager and the committees established to
administer the Plan possess certain specified powers,
duties, responsibilities and obligations under the
Plan and Trust. It is intended under this Plan that
each be solely responsible for the proper exercise of
its own functions and that each shall not be
responsible for any act or failure to act of another,
unless otherwise responsible as a breach of its own
fiduciary duty.
a. Generally, the Board shall be responsible
for appointing the members of the committees
it may establish to administer this Plan.
If this Plan shall at any time permit
employees to invest any portion of Plan
assets in Company securities, the Board
shall have sole authority to terminate this
Plan and to make any discretionary
amendments, while any Board-appointed
committee given such authority shall have
authority for making non-discretionary
amendments and for recommending to the Board
any other Plan amendments it deems
appropriate.
b. The Board-appointed committees so authorized
shall have the responsibilities of making
Plan amendments not specifically reserved to
the Board in the preceding subsection,
including sole discretion to amend the Plan
if employees are not authorized to invest
Plan assets in Company securities, to select
Investment Managers, to direct the Trustee
and the Investment Managers with respect to
all matters relating to the investment of
Plan assets, to review and report to the
Board on the investment policy and
performance of Plan assets and generally to
administer the Plan according to its terms.
c. The Trustee or the Investment Manager, as
the case may be, is responsible for the
management and control of the Plan's assets
as specifically provided in the Trust
Agreement or investment manager agreement.
d. The Board may dissolve any committee it
appoints or reserve to itself any of its
<PAGE>
<PAGE> 38
powers previously delegated to a
Board-appointed committee. In addition, the
Board may reorganize the committees it
establishes from time to time and reallocate
their responsibilities among them or assign
them to other persons or committees provided
that the Employees' Benefit Committee shall
at all times continue as plan administrator
and named fiduciary as these terms are
defined in ERISA unless the Board formally
amends the Plan to reallocate these
responsibilities. The Board and the various
committees may designate persons, including
committees, other than named fiduciaries to
carry out their responsibilities (other than
trustee responsibilities) under the Plan.
11.10 Claims Review Procedure. The Committee shall maintain
a procedure under which any Participant or Beneficiary
may assert a claim for benefits under the Plan. Any
such claim shall be submitted in writing to the
Committee within such reasonable period as the rules
of the Committee may provide. The Committee shall
take action on the claim within 60 days following its
receipt and if it is denied shall at such time give
the claimant written notice which clearly sets forth
the specific reason or reasons for such denial, the
specific Plan provision or provisions on which the
denial is based, any additional information necessary
for the claimant to perfect the claim, if possible, an
explanation of why such additional information is
needed, and an explanation of the Plan's claims review
procedure. The review procedure shall allow a
claimant at least 60 days after receipt of the written
notice of denial to request a review of such denied
claim, and the Committee shall make its decision based
on such review within 60 days (l20 days if special
circumstances require more time) of its receipt of the
request for review. The decision on review shall be
in writing and shall clearly describe the reasons for
the Committee's decision.
<PAGE>
<PAGE> 39
ARTICLE XII
Amendment and Termination
12.1 Right to Amend or Terminate. Any amendment may be
made to this Plan which does not cause any part of the
Plan's assets to be used for, or diverted to, any
purpose other than the exclusive benefit of
Participants, former Participants, or Beneficiaries,
provided however, that any amendment may be made, with
or without retroactive effect, if such amendment is
necessary or desirable to comply with applicable law.
Except in the case where approved by the Secretary of
Labor because of substantial business hardship, as
provided in section 412(c)(8) of the Code, no
amendment shall be made to the Plan if it would
decrease the accrued benefit of any Participant,
eliminate or reduce an early retirement benefit or
eliminate an optional form of benefit as may be
provided in regulations under Code section 411(d)(6).
If any provisions of this Plan relating to the
percentage of a Participant's accrued benefit that is
vested are changed, any Participant with at least
three years of service may elect, by filing a written
request with the Committee within 60 days after the
later of (1) the date the amendment was adopted, (2)
the date the amendment was effective, or (3) the date
the Participant received written notice of such
amendment, to have his vested interest computed under
the provisions of this Plan as in effect immediately
prior to such amendment.
12.2 Full Vesting Upon Termination of Plan. Upon full or
partial termination of the Plan or upon complete
discontinuance of Participating Company contributions,
each affected Participant will become l00 percent
vested in the value of his Participant Account as of
the Valuation Date next following such termination or
discontinuance.
<PAGE>
<PAGE> 40
ARTICLE XIII
Top-Heavy Provisions
13.1 Rules to Apply if Plan is Top-Heavy. Notwithstanding
any other relevant provision of this Plan to the
contrary, the following rules will apply for any Plan
Year that the Plan becomes "top-heavy" (as defined in
Section 13.2):
(a) Vesting. Vesting will remain 100 percent at all
times after completion of six months' service.
(b) Minimum Contributions. For each top-heavy Plan
Year the minimum contribution allocated to the
Participant Account of each non-key employee
shall be equal to or greater than the lesser of
the following amounts:
(i) 3 percent of such non-key employee's
compensation; or
(ii) the highest percentage-of-compensation
allocation made to the Participant Account
of any key employee.
If the highest rate allocated to a key employee
is less than 3% of compensation, amounts
contributed as a result of a salary reduction
agreement shall be included in determining the
rate of contribution on behalf of key employees.
For purposes of this subsection, "compensation"
shall have the same meaning as in Section 4.4.
Minimum contributions will be made to
Participant's Account without regard to his level
of compensation or his hours of service during a
Plan Year.
(c) Limitation on Benefits. In applying the dollar
limitations under section 415(e) of the Code, the
1.25 limitation shall be supplanted by a 1.0
limitation for each year during which the Plan is
top-heavy.
(d) Maximum Compensation. The maximum annual
compensation of each employee that may be taken
into account under the Plan shall not exceed
$150,000 (or such larger amount based on cost of
living adjustments as may be permitted under the
Code).
13.2 Top-Heavy Definition. For purposes of this Section,
the Plan will be considered "top-heavy" if on any <PAGE>
<PAGE> 41
given determination date (the last day of the
preceding Plan Year or, in the case of the Plan's
first year, the last day of such Year) the sum of the
account balances for key employees is more than
60 percent of the sum of the account balances of all
employees, excluding former key employees. The
account balances shall include distributions made
during any given Plan Year containing the
determination date and the preceding four Plan Years
but shall not include the account balances for any
person who has not received any compensation from any
Participating Company at any time during the five-year
period ending on the determination date. The method
of determining the top-heavy ratio shall be made in
accordance with Code section 4l6.
In making the top-heavy calculation, (a) all the
Company's plans in which a key employee participates
shall be aggregated with all other Participating
Company plans which enable a plan in which a key
employee participates to satisfy the Code's
non-discrimination requirements; and (b) all
Participating Company plans not included in
subparagraph (a), above, may be aggregated with the
Participating Company's plans included in subparagraph
(a), above, if all of the aggregated plans would be
comparable and satisfy the Code's non-discrimination
requirements.
13.3 Key Employee Definition. A key employee will be, for
the purpose of this Article, any employee or former
employee who at any time during the Plan Year
containing the determination date or the four
preceding Plan Years is such within the meaning of
Code section 416. As of the effective date, the term
key employee includes the following individuals:
(i) an officer (but not more than 50 persons or, if
lesser, the greater of 3 or 10 percent of
employees and not including persons who earn
150 percent or less of the dollar limitation for
contributions to defined contribution plans as
specified in Code section 4l5(c)(l)(A));
(ii) one of 10 employees who has annual compensation
from the Participating Company of more than the
amount in effect under Code section 415(c)(1)(A)
owning the largest interests of the Participating
Company. The employee having the greater annual
compensation from the Participating Company shall
be considered to own the larger interest in the
Participating Company if two or more employees
<PAGE>
<PAGE> 42
had the same ownership interest in the Participating
Company;
(iii) a five-percent owner of the Participating
Company; and
(iv) a one-percent owner of the Participating Company
whose annual compensation from the Participating
Company exceeds $l50,000.
13.4 Relationship of the Normal and the Top-Heavy Vesting
Schedules. If the Plan's top-heavy status changes and
this change alters the Plan's normal vesting schedule,
no Participant's vested accrued benefit immediately
prior to such change in status shall be diminished on
account of the change in the vesting schedule. In
addition, the vesting for each Participant in the Plan
at the time of the change in status shall be
determined under whichever schedule provides the
greatest vested benefit at any particular point in
time.
13.5 Participation in Other Plans. A non-key employee who
participates in both a defined contribution plan and a
defined benefit plan of the Participating Company
shall not be entitled to receive minimum benefits
and/or minimum contributions under all such plans.
Instead, the employee shall receive a minimum benefit
equal to the lesser of 20 percent of such non-key
employee's average compensation or 2 percent of his
average compensation multiplied by his number of Years
of Service, as set forth in such defined benefit plan.
<PAGE>
<PAGE> 43
ARTICLE XIV
General Provisions
14.1 Employment Relationship. Nothing contained herein
will be deemed to give any Employee the right to be
retained in the service of a Participating Company or
to interfere with the rights of a Participating
Company to discharge any Employee at any time.
14.2 Non-Alienation of Benefits. Except as provided in
Section 10.6, benefits payable under this Plan shall
not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution, or levy
of any kind, either voluntary or involuntary,
including any such liability which arises from the
Participant's bankruptcy, prior to actually being
received by the person entitled to the benefit under
the terms of the Plan; and any attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber,
charge or otherwise dispose of any right to benefits
payable hereunder, shall be void. The Trust shall not
in any manner be liable for, or subject to the debts,
contracts, liabilities, engagements or torts of any
person entitled to benefits hereunder. Nothing in
this Section shall preclude payment of Plan benefits
pursuant to a qualified domestic relations order
pursuant to Section 9.6.
14.3 Use of Masculine and Feminine; Singular and Plural.
Wherever used in this Plan, the masculine gender will
include the feminine gender and the singular will
include the plural, unless the context indicates
otherwise.
14.4 Plan for Exclusive Benefit of Employees. No part of
the corpus or income of the Trust will be used for, or
diverted to, purposes other than the exclusive benefit
of Participants and their Beneficiaries. Anything in
the foregoing to the contrary notwithstanding, the
Plan and Trust are established on the express
condition that they will be considered, by the
Internal Revenue Service, as initially qualifying
under the provisions of the Internal Revenue Code. In
the event that the Internal Revenue Service issues an
unfavorable determination with respect to a timely
request for a determination that the amended and
restated Plan and Trust qualify under the Internal
Revenue Code, the Plan and Trust will be of no effect
and the value of all contributions made by a
Participating Company and Participants since the
amendment and restatement will be returned to the
<PAGE>
<PAGE> 44
Participating Company and Participants, respectively,
within one year from the date of the denial of the
determination request. Furthermore, if, or to the
extent that, a Participating Company's tax deduction
for contributions made to the Plan is disallowed, the
Participating Company will have the right to obtain
the return of any such contributions (to the extent
disallowed) for a period of one year from the date of
disallowance. All Participating Company contributions
to this Plan are contingent upon their deductibility
under the Code. Finally, if a Participating Company's
contribution to the Plan is made by a mistake in fact,
the Participating Company will have the right to
obtain the return of such contribution for a period of
one year from the date the contribution was made.
14.5 Merger or Consolidation of Plan. There will be no
merger or consolidation with, or transfer of any
assets or liabilities to, any other plan, unless each
Participant will be entitled to receive a benefit
immediately after such merger, consolidation, or
transfer as if this Plan were then terminated which is
at least equal to the benefit he would have been
entitled to receive immediately before such merger,
consolidation, or transfer as if this Plan had been
terminated.
14.6 Payments to Minors and Incompetents. If a Participant
or Beneficiary entitled to receive any benefits
hereunder is a minor or is deemed by the Committee, or
is adjudged to be, legally incapable of giving valid
receipt and discharge for such benefits, they will be
paid to such persons as the Committee might designate
or to the duly appointed guardian.
14.7 Governing Law. To the extent that New York law has
not been preempted by ERISA, the provisions of the
Plan will be construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the Company has caused its duly
authorized officer to execute this Plan document on its behalf
this 15th day of November, 1993.
ROCHESTER TELEPHONE CORPORATION
By /s/ Josephine S. Trubek
--------------------------
Josephine S. Trubek
Corporate Secretary
<PAGE>
<PAGE>
APPENDIX A
Participating Companies
AuSable Valley Telephone Company, Inc.
Breezewood Telephone Company
Canton Telephone Company
Citizens Telephone Company, Inc.
Distributed Solutions, Inc.
Enterprise Telephone Company
Fairmount Telephone Company, Inc.
Highland Telephone Company
Lakeshore Telephone Company
Lakewood Telephone Company
Lamar County Telephone Company, Inc.
Mid Atlantic Telecom, Inc.
Mid-South Telephone Company, Inc.
Minot Telephone Company
Ontonagon County Telephone Company
Oswayo River Telephone Company
RCI Long Distance, Inc.
RCI Long Distance New England, Inc.
Rochester Telephone Corporation
Rotelcom Inc.
Seneca-Gorham Telephone Corporation
Sylvan Lake Telephone Company, Inc.
St. Croix Telephone Company
The Thorntown Telephone Company, Inc.
Urban Telephone Corporation
Viroqua Telephone Company
Vista Telephone Company of Iowa
Vista Telephone Company of Minnesota
<PAGE>
<PAGE>
APPENDIX B
Plan Features Unique to Participating Companies
Class of
Eligible Matching Discretionary Payment
Employees Contributions Contributions Option C
Name of Company (Sec. 2.1) (Sec. 4.1) (Sec. 4.1) (Sec. 9.1)
- --------------- --------- ------------- ------------- --------
AuSable Telco Management 75% See Fn 1 None See Fn 2
Breezewood Telco Management 75% See Fn 1 None See Fn 2
Breezewood Telco Nonmanagement None None Straight
Life
Canton Telco Management 75% See Fn 1 None See Fn 2
Canton Telco Nonmanagement None None Straight
Life
Citizens Telco Management 75% See Fn 1 None See Fn 2
Citizens Telco Nonmanagement None None Straight
Life
DSI All Employees 75% See Fn 1 None See Fn 2
Enterprise Telco Management 75% See Fn 1 None See Fn 2
Enterprise Telco Nonmanagement None None Straight
Life
Fairmount Telco All Employees None None Straight
Life
Annuity Fn3
Highland Telco Management 75% See Fn 1 None See Fn 2
Lakeshore Telco All Employees None None Straight
Life
Annuity Fn3
Lakewood Telco Management 75% See Fn 1 None See Fn 2
Lakewood Telco Nonmanagement None None Straight
Life
Annuity Fn3
Lamar Telco All Employees None None Straight
Life
Annuity Fn3
Mid Atlantic All Employees 75% None None
Mid-South Telco All Employees None None Straight
Life
Annuity Fn3
Minot Telco All Employees None None Straight
Life
Annuity Fn3
Ontonagon Telco Management 75% See Fn 1 None See Fn 2
Oswayo Telco Management 75% See Fn 1 None See Fn 2
Oswayo Telco Nonmanagement None None Straight
Life
Annuity Fn 3
RCI LD Management 75% None See Fn 2
RCI LD Nonmanagement 75% None None
RCI LD NE All Employees 75% See Fn 4 None
<PAGE>
<PAGE>
Class of
Eligible Matching Discretionary Payment
Employees Contributions Contributions Option C
Name of Company (Sec 2.1) (Sec 4.1) (Sec 4.1) (Sec 9.1)
- --------------- --------- ------------- ------------- --------
Rotelcom Management 75% See Fn 1 None See Fn 2
Rotelcom Nonmanagement 75% See Fn 1 None None
Rochester Telco Management 75% See Fn 1 None See Fn 2
Seneca-Gorham Telco Management 75% See Fn 1 None See Fn 2
Seneca-Gorham Telco Nonmanagement 75% See Fn 1 None Straight
Life
Annuity Fn3
St. Croix Telco All Employees None None Straight
Life
Annuity Fn3
Sylvan Lake Telco Management 75% See Fn 1 None See Fn 2
Sylvan Lake Telco Nonmanagement None None Straight
Life
Thorntown Telco Management 75% See Fn 1 None See Fn 2
Thorntown Telco Nonmanagement 75% See Fn 1 See Fn 4 None
Urban Telco All Employees None None Straight
Life
Annuity Fn3
Viroqua Telco All Employees None None Straight
Life
Annuity Fn3
Vista Telco Management 70% See Fn 5 See Fn 6 None
- ----------------------------------
1/ 75% of the first 6% of Compensation that a Participant contributes to the
Plan during a Plan Year.
<PAGE>
<PAGE>
2/ The following additional payment options are available to a Participant
under Option C:
- A straight life annuity.
- A reduced retirement income payable monthly during his life with
the provision that in the event of his death prior to receiving
one hundred twenty (120) monthly installments, the remainder
thereof shall be paid to his beneficiary.
- A reduced retirement income, payable during his life, with the
provision that after his death such reduced income shall be
continued during the life of, and shall be paid to, a contingent
annuitant.
- A reduced retirement income, payable during his life, with the
provision that after his death an income at 3/4 the rate of his
reduced income shall be continued during the life of, and shall be
paid to, a contingent annuitant.
- A reduced retirement income payable during his life with the
provision that after his death an income at l/2 the rate of his
reduced income shall be continued during the life of, and shall be
paid to, a contingent annuitant.
3/ A straight life annuity on the life of the participant is the only Option
C benefit available.
4/ Discretionary contributions, if any, are allocated to Participants'
accounts on the basis that each Participant's Compensation for the Plan
Year bears to the total Compensation of all Participants for the Plan
Year.
5/ 70% of the first 6% of Compensation that a Participant contributes to the
Plan during a payroll period.
6/ A minimum contribution of 1% of a Participant's Compensation for a Plan
Year is contributed by the Participating Company for each Participant.
Additional contributions are made in the discretion of the Participating
Company.
<PAGE>
EXHIBIT 5
January 10, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Rochester Telephone Corporation
Registration Statement on Form S-8
Ladies and Gentlemen:
I am a Managing Attorney in the Legal Department of Rochester
Telephone Corporation (the "Company") and have acted on behalf
of the Company in connection with its Registration Statement on
Form S-8 to register under the Securities Act of 1933, as
amended, interests in the Employees' Retirement Savings Plan
(the "Plan") as well as 1,250,000 shares of Common Stock of the
Company to be sold pursuant to the Plan.
I have examined and am familiar with originals or copies,
certified or otherwise identified to my satisfaction, of such
documents, corporate records and other instruments as I have
deemed necessary or appropriate in connection with rendering
this opinion.
Based on the foregoing, I am of the opinion that the interests
in the Plan described in the Registration Statement have been
duly authorized by the Company for issuance to eligible
employees of the Company and its subsidiaries.
I hereby consent to the filing of this opinion as an exhibit to
the above-mentioned Registration Statement on Form S-8 and any
reference to me contained therein.
Very truly yours,
/s/ John T. Pattison
John T. Pattison
Managing Attorney
(31ED)
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-8 of Rochester Telephone Corporation of our report,
dated January 18, 1993, which appears on page 29 of the 1992
Annual Report to Share Owners of Rochester Telephone
Corporation, which is incorporated by reference in Rochester
Telephone Corporation's Annual Report on Form 10-K for the year
ended December 31, 1992. We also consent to the incorporation
by reference of our report on the Financial Statement
Schedules, which appears on page 24 of such Annual Report on
Form 10-K.
/s/ Price Waterhouse
- ----------------------
PRICE WATERHOUSE
January 11, 1994
Rochester, New York
(32ED)
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
The undersigned directors and/or officers of Rochester
Telephone Corporation, a New York transportation corporation
("Company"), hereby constitute and appoint Ronald L. Bittner,
Louis L. Massaro and Josephine S. Trubek, or any one of them,
his or her true and lawful attorneys and agents, each with full
power and authority to act as such without the other, to do any
and all acts and things and to execute any and all instruments
which any of said attorneys and agents may deem necessary or
advisable in connection with the adoption and implementation of
the Employees' Retirement Savings Plan (the "Plan") to enable
the Company to comply with the Securities Act of 1933, as
amended, and with any regulations, rules or requirements of the
Securities and Exchange Commission thereunder in connection
with the registration under said Act of an indeterminate number
of participations in the Plan and the Company's $1.00 par value
Common Stock that may be purchased with contributions under the
Plan, and to comply with the requirements of any applicable
state securities laws including specifically, but without
limitation of the foregoing, full power and authority to sign
the names of the undersigned to the Registration Statement on
Form S-8 or such other forms as may be appropriate to be filed
with the Securities and Exchange Commission in connection with
the adoption and implementation of the Plan, and to any
amendment or amendments thereto filed with said Commission
under said Act in such connection, the undersigned hereby
ratifying and confirming all that said attorneys and agents, or
any of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this instrument has been signed
and delivered by the undersigned.
--------------------------
Patricia C. Barron
/s/ Ronald L. Bittner
--------------------------
Ronald L. Bittner
/s/ John R. Block
--------------------------
John R. Block
/s/ Harlan D. Calkins
--------------------------
Harlan D. Calkins
<PAGE>
<PAGE>
/s/ Brenda Evans Edgerton
--------------------------
Brenda Evans Edgerton
/s/ Jairo A. Estrada
--------------------------
Jairo A. Estrada
/s/ Daniel E. Gill
--------------------------
Daniel E. Gill
/s/ Alan C. Hasselwander
--------------------------
Alan C. Hasselwander
/s/ Wolcott J. Humphrey, Jr.
--------------------------
Wolcott J. Humphrey, Jr.
--------------------------
Douglas H. McCorkindale
/s/ Richard P. Miller, Jr.
--------------------------
Richard P. Miller, Jr.
/s/ G. Dennis O'Brien
--------------------------
G. Dennis O'Brien
/s/ Leo J. Thomas
--------------------------
Dr. Leo J. Thomas
/s/ Michael T. Tomaino
--------------------------
Michael T. Tomaino
(33ED)
