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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ROCKWELL INTERNATIONAL CORPORATION
(EXACT NAME OF ISSUER AS SPECIFIED IN ITS CHARTER)
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Delaware 95-1054708
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
2201 Seal Beach Boulevard 90740-8250
Seal Beach, California (ZIP CODE)
(ADDRESS OF PRINCIPAL
EXECUTIVE OFFICES)
</TABLE>
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ROCKWELL RETIREMENT SAVINGS PLAN
FOR CERTAIN EMPLOYEES
(FULL TITLE OF THE PLAN)
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WILLIAM J. CALISE, JR. Esq.
Senior Vice President, General Counsel and Secretary
Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, California 90740-8250
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(310) 797-5362
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copy to:
PETER R. KOLYER, Esq.
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, New York 10112
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, Par Value $1
per share(1)............... 200,000 shs. $47.125(2) $9,425,000(2) $3,250
====================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the Securities Act), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the employee
benefit plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act based on the average of the
high and low trading prices for the Common Stock on November 15, 1995, as
reported in the New York Stock Exchange--Composite Transactions.
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which Rockwell International Corporation
(Rockwell) has filed (file number 1-1035) with the Securities and Exchange
Commission (the Commission), are incorporated herein by reference and made a
part hereof:
(a) Rockwell's Annual Report on Form 10-K for the fiscal year ended
September 30, 1994;
(b) Rockwell's Quarterly Reports on Form 10-Q for the fiscal quarters ended
December 31, 1994, March 31, 1995 and June 30, 1995;
(c) Rockwell's Current Reports on Form 8-K dated December 21, 1994,
February 23, 1995 and June 14, 1995;
(d) Item 1 of the Registration Statement on Form 8-C pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended (the Exchange
Act), filed by North American Aviation, Inc. (now Rockwell) April 16,
1967; and
(e) Item 1 of Rockwell's Registration Statement on Form 8-A pursuant to
Section 12(b) or (g) of the Exchange Act, filed January 28, 1988.
All documents subsequently filed by Rockwell and the Rockwell Retirement
Savings Plan for Certain Employees (the Plan) pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes that
statement. Any such statement so modified or superseded shall not constitute a
part of this Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
This Item is not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
William J. Calise, Jr., Esq., who has passed upon the legality of any newly
issued Common Stock of Rockwell covered by this Registration Statement, is
Senior Vice President, General Counsel and Secretary of Rockwell.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Delaware General Corporation Law permits Delaware corporations to
eliminate or limit the monetary liability of directors for breach of fiduciary
duty as directors, subject to certain limitations (8 Del. G.C.L. sec.102(b)(7) )
and also provides for indemnification of directors, officers, employees and
agents subject to certain limitations (8 Del. G.C.L. sec.145).
The third paragraph of Article Eighth of Rockwell's Restated Certificate of
Incorporation, as amended, eliminates monetary liability of directors for breach
of fiduciary duty as directors to the extent permitted by Delaware law.
Section 15 of Article III of the By-Laws of Rockwell and the appendix
thereto entitled Procedures for Submission and Determination of Claims for
Indemnification Pursuant to Article III, Section 15 of the By-Laws provide, in
substance, for the indemnification of directors, officers, employees and agents
of Rockwell to the extent permitted by Delaware law.
II-1
<PAGE> 3
In addition, Section 11.110 of Article 11 of the Plan provides for
indemnification of present and future fiduciaries of the Plan.
Rockwell's directors and officers are insured against certain liabilities
for actions taken in such capacities, including liabilities under the Securities
Act.
In addition, Rockwell and certain other persons may be entitled under
agreements entered into with agents or underwriters to indemnification by such
agents or underwriters against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which Rockwell
or such persons may be required to make in respect thereof.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
This Item is not applicable.
ITEM 8. EXHIBITS.
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4-a --Copy of Rockwell's Restated Certificate of Incorporation, as amended, filed
as Exhibit 3-a-1 to Rockwell's Annual Report on Form 10-K for the fiscal year
ended September 30, 1994, is incorporated herein by reference.
4-b --Copy of Rockwell's By-Laws, filed as Exhibit 3 to Rockwell's Quarterly Report
on Form
10-Q for the fiscal quarter ended June 30, 1995, is incorporated herein by
reference.
4-c --Copy of the Plan, to be effective as of January 1, 1996.
4-d --Form of Master Defined Contribution Trust Agreement by and between the
Employee Benefit Committee of Rockwell and First Interstate Bank of
California.
4-e --Copy of Amendatory Trust Agreement Number Two made as of December 18, 1979
between Rockwell and National Bank of Detroit, filed as Exhibit 2-c-1 to
Rockwell's Registration Statement on Form S-8 (Registration No. 2-66363), is
incorporated herein by reference.
5-a --Opinion of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of Rockwell, as to the legality of any newly issued
Common Stock of Rockwell covered by this Registration Statement.
5-b --In lieu of an opinion concerning compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended, or a
determination letter of the Internal Revenue Service (the IRS) that the Plan
is qualified under Section 401 of the Internal Revenue Code, Rockwell hereby
undertakes to submit the Plan and any amendment thereto to the IRS in a
timely manner and to make all changes required by the IRS in order to qualify
the Plan.
23-a --Consent of Deloitte & Touche LLP, independent auditors, set forth on page
II-6 of this Registration Statement.
23-b --Consent of Price Waterhouse LLP, independent accountants, set forth on page
II-7 of this Registration Statement.
23-c --Consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of Rockwell, contained in his opinion filed as Exhibit
5-a to this Registration Statement.
23-d --Consent of Chadbourne & Parke LLP, set forth on page II-9 of this
Registration Statement.
24 --Powers of Attorney authorizing certain persons to sign this Registration
Statement and amendments hereto on behalf of certain directors and officers
of the Company, filed as Exhibit 24 to Rockwell's Registration Statement on
Form S-3 (Registration No. 33-61723), are incorporated herein by reference.
</TABLE>
II-2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
A. Rockwell 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;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed with or
furnished to the Commission by Rockwell pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of Rockwell's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and each filing of the Plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in this Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
B. Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Rockwell
pursuant to the foregoing provisions, or otherwise, Rockwell has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by Rockwell of expenses incurred or paid by a director, officer or
controlling person of Rockwell 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, Rockwell will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-3
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-8 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF SEAL BEACH, STATE OF CALIFORNIA ON THE 21ST DAY OF
NOVEMBER, 1995.
ROCKWELL INTERNATIONAL CORPORATION
By /s/ WILLIAM J. CALISE, JR.
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(WILLIAM J. CALISE, JR., SENIOR VICE
PRESIDENT, GENERAL
COUNSEL AND SECRETARY)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED ON THE 21ST DAY OF NOVEMBER, 1995 BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED:
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SIGNATURE TITLE
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DONALD R. BEALL* Chairman of the Board and Chief Executive
Officer (principal executive officer) and Director
LEW ALLEN, JR.* Director
RICHARD M. BRESSLER* Director
JOHN J. CREEDON* Director
DON H. DAVIS* Director
ROBIN CHANDLER DUKE* Director
JUDITH L. ESTRIN* Director
WILLIAM H. GRAY, III* Director
JAMES CLAYBURN LA FORCE, JR.* Director
WILLIAM T. MCCORMICK, JR.* Director
JOHN D. NICHOLS* Director
BRUCE M. ROCKWELL* Director
WILLIAM S. SNEATH* Director
JOSEPH F. TOOT, JR.* Director
W. MICHAEL BARNES* Senior Vice President, Finance & Planning and
Chief Financial Officer
(principal financial officer)
LAWRENCE J. KOMATZ* Vice President and Controller
(principal accounting officer)
* By /s/ WILLIAM J. CALISE, JR.
----------------------------------------
(WILLIAM J. CALISE, JR., ATTORNEY-IN-FACT)**
</TABLE>
** By authority of the powers of attorney filed as Exhibit 24 to Rockwell's
Registration Statement on Form S-3 (Registration No. 33-61723).
II-4
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PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE PLAN HAS
DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF SEAL BEACH, STATE OF
CALIFORNIA ON THE 21ST DAY OF NOVEMBER, 1995.
ROCKWELL RETIREMENT SAVINGS PLAN
FOR CERTAIN EMPLOYEES
By /S/ ALFRED J. SPIGARELLI
--------------------------------
(ALFRED J. SPIGARELLI,
PLAN ADMINISTRATOR)
II-5
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Rockwell International Corporation of our reports dated November
1, 1994, except as to Note 2 to Financial Statements, as to which the date is
November 21, 1994, appearing in and incorporated by reference in the 1994 Annual
Report on Form 10-K of Rockwell International Corporation and to the reference
to us under the heading "Experts" in the Prospectus, which is related to this
Registration Statement.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
November 21, 1995
II-6
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Rockwell International Corporation and the Prospectus
with respect to the securities covered thereby of our report dated February 3,
1994 relating to the consolidated financial statements of Reliance Electric
Company which appears in the Current Report on Form 8-K of Rockwell
International Corporation dated December 21, 1994. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Cleveland, Ohio
November 21, 1995
II-7
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CONSENT OF COUNSEL
The consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of Rockwell, is included in his opinion filed as Exhibit
5-a hereto.
II-8
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CONSENT OF COUNSEL
We hereby consent to the reference to this firm and to the inclusion of the
summary of our opinion under the caption "Tax Consequences" in the Prospectus
related to this Registration Statement on Form S-8 filed by Rockwell
International Corporation in respect of the Rockwell Retirement Savings Plan for
Certain Employees.
CHADBOURNE & PARKE LLP
30 Rockefeller Plaza
New York, New York 10112
November 21, 1995
II-9
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EXHIBIT INDEX
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EXHIBIT
NUMBER PAGE
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4-a --Copy of Rockwell's Restated Certificate of Incorporation, as amended,
filed as Exhibit 3-a-1 to Rockwell's Annual Report on Form 10-K for the
fiscal year ended September 30, 1994, is incorporated herein by
reference.
4-b --Copy of Rockwell's By-Laws, filed as Exhibit 3 to Rockwell's Quarterly
Report on Form 10-Q for the fiscal quarter ended June 30, 1995, is
incorporated herein by reference.
4-c --Copy of the Plan, to be effective as of January 1, 1996.
4-d --Form of Master Defined Contribution Trust Agreement by and between the
Employee Benefit Committee of Rockwell and First Interstate Bank of
California.
4-e --Copy of Amendatory Trust Agreement Number Two made as of December 18,
1979 between Rockwell and National Bank of Detroit, filed as Exhibit
2-c-1 to Rockwell's Registration Statement on Form S-8 (Registration No.
2-66363), is incorporated herein by reference.
5-a --Opinion of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of Rockwell, as to the legality of any newly
issued Common Stock of Rockwell covered by this Registration Statement.
5-b --In lieu of an opinion concerning compliance with the requirements of the
Employee Retirement Income Security Act of 1974, as amended, or a
determination letter of the Internal Revenue Service (the IRS) that the
Plan is qualified under Section 401 of the Internal Revenue Code,
Rockwell hereby undertakes to submit the Plan and any amendment thereto
to the IRS in a timely manner and to make all changes required by the
IRS in order to qualify the Plan.
23-a --Consent of Deloitte & Touche LLP, independent auditors, set forth on
page II-6 of this Registration Statement.
23-b --Consent of Price Waterhouse LLP, independent accountants, set forth on
page II-7 of this Registration Statement.
23-c --Consent of William J. Calise, Jr., Esq., Senior Vice President, General
Counsel and Secretary of Rockwell, contained in his opinion filed as
Exhibit 5-a to this Registration Statement.
23-d --Consent of Chadbourne & Parke LLP, set forth on page II-9 of this
Registration Statement.
24 --Powers of Attorney authorizing certain persons to sign this Registration
Statement and amendments hereto on behalf of certain directors and
officers of the Company, filed as Exhibit 24 to Rockwell's Registration
Statement on Form S-3 (Registration No. 33-61723), are incorporated
herein by reference.
</TABLE>
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EXHIBIT 4-C
ROCKWELL RETIREMENT SAVINGS PLAN FOR
CERTAIN EMPLOYEES
(Effective as of January 1, 1996)
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ARTICLE I DEFINITIONS
1.010 "ACCOUNTS" means the Participant's Company Contribution Account,
Compensation Deferral Account and Compensation Deduction Account, as
applicable.
1.020 "ADMINISTRATIVE COMMITTEE" means the committee appointed by the Plan
Committee and assigned power and authority under Sections 2.030 and 6.040.
1.030 "AFFILIATED COMPANY" means Rockwell International Corporation and:
(a) any corporation incorporated under the laws of one of the United
States of America of which Rockwell International Corporation, a
Delaware corporation, owns, directly or indirectly, eighty
percent (80%) or more of the combined voting power of all classes
of stock or eighty percent (80%) or more of the total value of the
shares of all classes of stock (all within the meaning of
section 1563 of the Code.);
(b) any partnership or other business entity organized under such laws,
of which Rockwell International Corporation owns, directly or
indirectly, eighty percent (80%) or more of the voting power or
eighty percent (80%) or more of the total value (all within the
meaning of section 414(c) of the Code); and
(c) any other company deemed to be an Affiliated Company by the Board
of Directors of Rockwell International Corporation.
1.040 "AVERAGE CONTRIBUTION PERCENTAGE" for each group of Participants with
contribution elections under Section 2.020(a)(ii) shall be the average of the
percentages, calculated separately for each Participant in such group, which
percentage, for any Plan Year, is equal to the sum of (a) and (b), divided by
(c):
(a) the amount the Participant has elected to contribute pursuant to
Section 2.020(a)(ii);
(b) the amount of Company Contributions payable to the Participant's
Company Contribution Account in respect of his elections under
Section 2.020(a);
(c) the Participant's compensation (as such term is defined in
section 414(s) of the Code) for that Plan Year.
1.050 "AVERAGE DEFERRAL PERCENTAGE" for each group of Participants with
deferral elections under Section 2.020(a)(i) shall be the average of the
percentages, calculated separately for each Participant in such group, of the
compensation (as such term is defined in section 414(s) of the Code) that the
Participant has elected to defer for the Plan Year pursuant to
Section 2.020(a)(i).
1.060 "BASE COMPENSATION" means the Participant's compensation, not in excess
of One Hundred and Fifty Thousand Dollars ($150,000) or such larger sum as may
be established pursuant to section 401(a)(17) of the Code, in any calendar
year, including regular, straight-time
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<PAGE> 3
base pay, gainsharing payments, any annual lump sum payments which have been
negotiated with a collective bargaining unit, lump sum payments for unused
vacation and any amount which would be paid to the Participant absent an
election under Section 2.020(a). Base Compensation shall not include
compensation for overtime, extended workweek compensation, night work or other
premium pay, bonuses, any form of extra, contingent or supplementary
compensation or compensation on the salaried payroll.
1.070 "BENEFICIARY" means the one or more persons or trusts designated by a
Participant pursuant to Article IX of the Plan; provided, however, that, in the
case of a Participant who has been married for a one (1) year period and who
dies prior to complete distribution of his Accounts pursuant to Article V or VI
of the Plan, the Beneficiary shall be deemed to be the Participant's spouse
regardless of any contrary designation, unless the Participant has filed with
the Plan Administrator a written designation of a person or persons other than
such spouse as Beneficiary or Beneficiaries. Such written designation must be
accompanied by a written consent of the Participant's spouse or it is
established to the satisfaction of the Plan Administrator that such consent
cannot be obtained because there is no spouse or the spouse cannot be located
or because of other circumstances permitted under section 417(a)(2) of the
Code. Such written consent (which must be witnessed by a notary public who is
not an Employee) shall be on a form furnished to the Participant by the Plan
Administrator and shall acknowledge the effect of such consent. In the event
the Participant has a new spouse to whom he has been married for a one (1) year
period, the designation of the prior spouse shall be void and the new spouse
shall be deemed to be the Participant's Beneficiary, unless the Participant
makes a written designation of a person or persons other than the new spouse.
1.080 "BOARD OF DIRECTORS" means the Board of Directors of Rockwell
International Corporation; provided, however, that any action hereunder of the
Board of Directors under Section 1.030, 1.120, 1.190, 2.020 and 3.020 may be
taken by any officer or officers of Rockwell International Corporation
authorized by the Board of Directors.
1.090 "CODE" means the Internal Revenue Code of 1986, as from time to time
amended.
1.100 "COMMON STOCK" means the common stock, other than Class A Stock, of
Rockwell International Corporation.
1.110 "COMMON UNIT" means a Unit of Stock Fund A or Stock Fund B attributable
to Common Stock.
1.120 "COMPANY" means Rockwell International Corporation and any other entity
to which the Board of Directors has extended this Plan.
1.130 "COMPANY CONTRIBUTIONS" means the contributions made by the Company to
the Trust Fund pursuant to the terms of Article III, including forfeitures
treated as Company Contributions under that Article.
1.140 "COMPANY CONTRIBUTION ACCOUNT" means the Account with respect to a
Participant which is comprised of Company Contributions, adjusted by gains or
losses related thereto.
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<PAGE> 4
1.150 "COMPENSATION DEDUCTION ACCOUNT" or "DEDUCTION ACCOUNT" means the
Account with respect to a Participant which is comprised of Compensation
Deduction Contributions, adjusted by gains or losses related thereto.
1.160 "COMPENSATION DEDUCTION CONTRIBUTIONS" or "DEDUCTION CONTRIBUTIONS"
means the amounts contributed by Participants to the Plan through payroll
deductions pursuant to Section 2.020(a)(ii).
1.170 "COMPENSATION DEFERRAL ACCOUNT" or "DEFERRAL ACCOUNT" means the Account
with respect to a Participant which is comprised of Compensation Deferral
Contributions, adjusted by gains or losses related thereto.
1.180 "COMPENSATION DEFERRAL CONTRIBUTIONS" or "DEFERRAL CONTRIBUTIONS" means
the amounts contributed to the Plan on behalf of Participants pursuant to
Participants' elections under Section 2.020(a)(i).
1.190 "DEDUCTION LIMITATION PERCENTAGE" means the maximum contribution
percentage in each Plan Year for the group of Highly Compensated Participants
and shall be that percentage amount which does not exceed the greater of:
(a) the Average Contribution Percentage for all Participants other than
Highly Compensated Participants multiplied by one and twenty-five
hundredths (1.25); or
(b) the lesser of
(i) an amount which does not exceed the Average Contribution
Percentage for all Participants other than Highly Compensated
Participants by more than two (2) percentage points, or
(ii) the Average Contribution Percentage for all Participants
other than Highly Compensated Participants multiplied by two
(2).
If a Highly Compensated Participant is a participant in any other plan
established or maintained by an Affiliated Company pursuant to which elective
deferrals under a cash or deferred arrangement or matching contributions, both
as defined in section 401(m)(4) of the Code, or employee contributions, are
made, such other plan shall be deemed to be a part of this Plan for the purpose
of determining the Deduction Limitation Percentage with respect to that
Participant.
1.200 "DEFERRAL LIMITATION PERCENTAGE" means the maximum deferral percentage
in each Plan Year for the group of Highly Compensated Participants and shall be
that percentage amount which does not exceed the greater of:
(a) the Average Deferral Percentage for all Participants other than
Highly Compensated Participants multiplied by one and twenty-five
hundredths (1.25); or
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<PAGE> 5
(b) the lesser of
(i) an amount which does not exceed the Average Deferral
Percentage for all Participants other than Highly Compensated
Participants by more than two (2) percentage points, or
(ii) the Average Deferral Percentage for all Participants other
than Highly Compensated Participants multiplied by two (2).
If any Highly Compensated Participant is a participant in any other cash or
deferred arrangement within the meaning of section 401(k) of the Code
established or maintained by an Affiliated Company, for the purpose of
determining the Deferral Limitation Percentage with respect to such Highly
Compensated Participant such other cash or deferred arrangement shall be deemed
to be a part of this Plan.
1.210 "DIVERSIFIED FUND" means the fund established by the Trustee pursuant
to Section 10.020(a)(i).
1.220 "DIVESTED COMPONENT" means a component of the Company or of an
Affiliated Company which ceases to be a component of the Company or of an
Affiliated Company, by reason of its divestiture or any action incident
thereto.
1.230 "EFFECTIVE DATE" means January 1, 1996.
1.240 "ELIGIBLE EMPLOYEE" means any Employee employed in a Participating Unit
as herein defined within the Company's Collins Radio Divisions.
1.250 "ELIGIBLE RETIREMENT PLAN" means:
(a) an individual retirement account described in section 408(a) of the
Code,
(b) an individual retirement annuity described in section 408(b) of the
Code,
(c) an annuity plan described in section 403(a) of the Code, or
(d) a qualified plan (which is a defined contribution plan) described
in section 401(a) of the Code,
which accepts an individual's eligible rollover distributions; provided,
however, that in the case of an eligible rollover distribution to a
Participant's surviving Spouse, only an individual retirement account or
individual retirement annuity described in (a) and (b) above shall be deemed to
be an Eligible Retirement Plan.
1.260 "EMPLOYEE" means any person who is employed by the Company or by an
Affiliated Company, including an Eligible Employee.
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<PAGE> 6
1.270 "ERISA" means the Employee Retirement Income Security Act of 1974, as
from time to time amended.
1.280 "FIXED INCOME FUND" means the fund established by the Trustee pursuant
to Section 10.020(a)(ii).
1.290 "GUARANTEED RETURN FUND" means the fund established by the Trustee
pursuant to Section 10.020(a)(iv).
1.300 "HIGHLY COMPENSATED PARTICIPANTS" means those Participants who are
"highly compensated employees" within the meaning of section 414(q) of the
Code. The Plan Administrator may determine those Employees who are "highly
compensated employees" for purposes of this Section 1.250 in any manner
permitted by said section 414(q).
1.310 "INTERMEDIATE TERM BOND FUND" means the fund established by the Trustee
pursuant to Section 10.020(a)(iii).
1.320 "INVESTMENT FUNDS" means the Diversified Fund, the Fixed Income Fund,
the Guaranteed Return Fund, the Intermediate Term Bond Fund and Stock Fund B.
1.330 "INVESTMENT MANAGER" means the one or more investment managers within
the meaning of ERISA section 3(38) appointed pursuant to Section 10.020(b)(i).
1.340 "INVESTMENT MANAGER ACCOUNT" means the one or more investment manager
accounts established pursuant to Section 10.020(b)(i) of the Plan.
1.350 "LAYOFF" means an involuntary severance of employment, other than a
discharge for cause.
1.360 "MATERNITY OR PATERNITY LEAVE" means any period of absence by reason of
the pregnancy of the Participant, the birth of a child of the Participant, the
placement of a child with the Participant in connection with the adoption of
such child by the Participant, or the caring for such child for a period
beginning immediately following such birth or placement; provided, however,
that the Participant shall have complied with the Company's request to furnish
the Plan Administrator such timely information as may be reasonably required to
establish that the absence is for such reason and the number of days for which
there was such an absence.
1.370 "NAMED FIDUCIARY" means the Plan Committee, the Plan Administrator, the
Administrative Committee, the Trustee(s) and any Investment Manager(s).
1.380 "PARTICIPANT" means a person who has elected to participate in the Plan
in accordance with Article II; provided, however, that such term shall include
a person who no longer has an effective election under Article II only so long
as he retains a vested interest in an Account under the Plan.
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1.390 "PARTICIPATING UNIT" means one of the following collective bargaining
units within Rockwell International Corporation's Collins Radio Group:
International Brotherhood of Electrical Workers, Local Union No. 1362 - Cedar
Rapids, Iowa; International Brotherhood of Electrical Workers, Local Union
No. 1429 - Cedar Rapids, Iowa; International Brotherhood of Electrical Workers,
Local Union No. 2125 - Newport Beach, California; International Association of
Machinists and Aerospace Workers, Local Lodge No. 281 - Shreveport, Louisiana;
International Union of Electronic, Electrical, Salaried, Machine and Furniture
Workers, Local Union No. 787 - Shiloh, Texas; and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of America, Local Union
No. 238 - Cedar Rapids, Iowa.
1.400 "PLAN" means this Rockwell Retirement Savings Plan for Certain
Employees, as from time to time amended.
1.410 "PLAN ADMINISTRATOR" means the person so designated by name or
corporate office by the Board of Directors.
1.420 "PLAN COMMITTEE" means the Rockwell International Corporation Employee
Benefit Plan Committee.
1.430 "PLAN YEAR" means each twelve-month period ending on September 30.
1.440 "RETIREE" means a Participant who has entered Retirement status
pursuant to a retirement plan of the Company or any Affiliated Company,
excluding, for purposes of the election available to such a Retiree under
Section 2.050(b)(iii), any former Employee who terminated employment with the
Company or Affiliated Company as a deferred vested Participant and who later
attained Retirement age under the retirement plan.
1.450 "RETIREMENT" means retirement of a Participant pursuant to a retirement
plan of the Company or any Affiliated Company.
1.460 "STOCK FUND A" means the fund established by the Trustee pursuant to
Section 10.020(a)(v).
1.470 "STOCK FUND B" means the fund established by the Trustee pursuant to
Section 10.020(a)(vi).
1.480 "TENDER OFFER" means any tender offer for, or request or invitation
for tenders of, the Common Stock subject to section 14(d)(1) of the Securities
Exchange Act of 1934, as amended, or any regulation thereunder, except for any
such tender offer or request or invitation for tenders made by the Company or
any Affiliated Company.
1.490 "TRUST AGREEMENT" means the trust agreement established pursuant to
Section 10.010 of this Plan.
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<PAGE> 8
1.500 "TRUST FUND" means the fund, including the earnings thereon, held by
the Trustee for all contributions made by Participants and the Company pursuant
to the Plan. The Trust Fund shall be divided into a Diversified Fund, Fixed
Income Fund, Guaranteed Return Fund, Intermediate Term Bond Fund, Stock Fund A
and Stock Fund B.
1.510 "TRUSTEE" means the trustee(s) of the trust described in Article X of
this Plan.
1.520 "UNIT" means the unit of measurement of a Participant's interest in the
Trust Fund. Where appropriate, "Units" includes Common Units.
1.530 "VALUATION DATE" means the last business day of each month or such
other business day as the Plan Committee may determine.
1.540 "VESTING SERVICE" means a Plan Year in which a Participant completes
one thousand (1,000) Hours of Service. In addition, for each such Plan Year in
which the Participant completes less than one thousand (1,000) but more than
five hundred (500) Hours of Service he shall accrue one-twelfth (1/12) of a
year of Vesting Service for each eighty (80) of such Hours of Service, computed
to the nearest one-twelfth (1/12); provided, however, that no Participant who
completes five hundred (500) or fewer such Hours of Service during any such
calendar year shall accrue any Vesting Service with respect to such year.
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ARTICLE II PARTICIPATION
2.010 GENERAL.
(a) An Employee who is an Eligible Employee on the Effective Date may
elect at any time to participate in the Plan. An Employee who
becomes an Eligible Employee after the Effective Date may elect to
participate in the Plan if and when he has completed at least
fifty-two (52) weeks of employment with the Company or an
Affiliated Company. Such an election to participate shall be made
with at least fifteen (15) days notice to the Company and shall
become effective on the first payroll payment date following the
expiration of the notice period.
(b) No contributions shall be made by, or with respect to, any
Participant after any of the following events until such
Participant again makes an election under subsection (a):
(i) the Participant ceases to be an Employee;
(ii) the Participant receives a distribution under Section 5.020,
5.030 or 5.050; or
(iii) the Participant voluntarily elects to have contributions
suspended under Section 8.010.
(c) No contributions shall be made by, or with respect to, any
Participant during any period of suspension of contributions
described in Section 8.010 or Section 8.020.
2.020 CONTRIBUTION ELECTION OR AUTHORIZATION.
(a) An Eligible Employee who has notified the Company of his election
to become a Participant shall also:
(i) elect to defer receipt of an amount equal to 1%, 2%, 3%, 4%,
5%, 6%, 7%, 8%, 9% or 10% of Base Compensation, which amount
shall be contributed as a Compensation Deferral Contribution
to the Participant's Compensation Deferral Account; or
(ii) authorize to be deducted from his Base Compensation, as paid,
an amount equal to 1%, 2%, 3%, 4%, 5%, 6%, 7%, 8%, 9% or 10%
of his Base Compensation, which amount shall be contributed
as a Compensation Deduction Contribution to the Participant's
Compensation Deduction Account.
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<PAGE> 10
(b) In addition to the elections and authorizations set forth in (a),
the Participant shall elect, as provided in Section 2.060, in which
Investment Funds his Compensation Deferral Contributions and/or
Compensation Deduction Contributions are to be invested. Such
investments shall be elected by the Participant among the
Investment Funds in increments of five percent (5%), with the total
of the elected percentage increments equalling one hundred percent
(100%).
(c) Compensation Deferral Contributions and/or Compensation Deduction
Contributions made with respect to or by a Participant under this
Section shall be made only by payroll deductions unless, under
exceptional circumstances, another method of contributions is
approved by the Plan Committee.
2.030 LIMITATIONS ON EMPLOYEE CONTRIBUTIONS.
(a) The aggregate amount, with respect to a Participant, in any
calendar year of:
(i) Compensation Deferral Contributions to the Plan,
(ii) all elective deferrals under any other cash or deferred
arrangement as defined in section 402(g) of the Code, and
(iii) all elective employer contributions to any simplified
employee pension as defined in and pursuant to
sections 408(k)(1) and (6), respectively, of the Code
may not exceed Seven Thousand Dollars ($7,000) or such larger sum
as may be established pursuant to section 402(g)(5) of the Code.
(b) Prior to the beginning of, and periodically during, each Plan Year
the Administrative Committee shall test:
(i) deferral elections under Sections 2.020(a)(i), in order to
determine whether the Average Deferral Percentage for Highly
Compensated Participants exceeds the Deferral Limitation
Percentage; and
(ii) deduction elections under Sections 2.020(a)(ii), as well as
Company Contributions under Section 3.010, in order to
determine whether the Average Contribution Percentage for
Highly Compensated Participants exceeds the Deduction
Limitation Percentage.
(c) If the Administrative Committee determines that Compensation
Deferral Contributions made for any Plan Year on behalf of the
Highly Compensated Participants would (if not reduced) cause the
Average Deferral Percentage of such Employees to exceed the
Deferral Limitation Percentage, it shall report such
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<PAGE> 11
determination, through the Plan Administrator, to the Plan
Committee. In such event, the Plan Committee shall reduce any
Compensation Deferral Contributions elected by the Highly
Compensated Participants, so that the Deferral Limitation
Percentage is not exceeded for the Plan Year. Such reduction shall
be effective as of the first payroll payment date in the month
following such determination and shall be made as set forth below:
(i) Highly Compensated Participants electing Compensation
Deferral Contributions in an amount equal to 10% of Base
Compensation shall have their elections reduced to 9%. If,
following the reductions described in the preceding
sentence, the Deferral Limitation Percentage is still
exceeded, Highly Compensated Participants electing
Compensation Deferral Contributions in an amount equal to 9%
of Base Compensation (including any Highly Compensated
Participants whose elections were reduced under the terms of
the preceding sentence) shall have their elections reduced
to 8%. The process set forth in this paragraph (i) shall
continue until the Average Deferral Percentage for the Highly
Compensated Participants does not exceed the Deferral
Limitation Percentage.
(ii) To the extent permitted under subsection (d) below, the
amount representing the additional amount of Base
Compensation which would have been contributed as
Compensation Deferral Contributions on behalf of the
Participant shall be contributed by the Participant to the
Plan as Compensation Deduction Contributions. In addition,
to the extent permitted by regulation, the Plan Committee may
during or following a Plan Year cause Compensation Deferral
Contributions made on behalf of Highly Compensated
Participants to be recharacterized (on a uniform and
non-discriminatory basis) as Compensation Deduction
Contributions to the extent necessary to prevent the Average
Deferral Percentage for the said Participants for any Plan
Year from exceeding the Deferral Limitation Percentage.
(d) If the Administrative Committee determines that Compensation
Deduction Contributions made for any Plan Year by the Highly
Compensated Participants would (if not reduced) cause the Average
Contribution Percentage of such Employees to exceed the Deduction
Limitation Percentage, the Administrative Committee shall report
such determination, through the Plan Administrator, to the Plan
Committee. In such event, the Plan Committee shall reduce any
Compensation Deduction Contributions elected by the Highly
Compensated Participants, so that the Deduction Limitation
Percentage is not exceeded for the Plan Year. Such reduction shall
be effective as of the first payroll payment date in the month
following such determination and shall be made as set forth below:
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<PAGE> 12
(i) Highly Compensated Participants electing Compensation
Deduction Contributions in an amount equal to 10% of Base
Compensation shall have their elections reduced to 9%. If,
following the reductions described in the preceding sentence,
the Deduction Limitation Percentage is still exceeded, Highly
Compensated Participants electing Compensation Deduction
Contributions in an amount equal to 9% of Base Compensation
(including any Highly Compensated Participants whose
elections were reduced under the terms of the preceding
sentence) shall have their elections reduced to 8%.
(ii) The process set forth in paragraph (i) shall continue until
the Average Contribution Percentage for the Highly
Compensated Participants does not exceed the Deduction
Limitation Percentage.
(e) Reductions in Compensation Deferral and Compensation Deduction
Contributions made under subsections (c) and/or (d) shall remain in
effect for the remainder of the Plan Year, unless the
Administrative Committee determines that changed circumstances
permit an increase in any or all such Contributions. If the
Administrative Committee makes such a determination, the Plan
Committee shall determine the amount by which such Contributions
shall be increased for the balance of the Plan Year.
(f) If it is determined as a result of tests of contribution elections
pursuant to subsection (c) that there exist "excess aggregate
contributions" (as defined in and determined pursuant to
section 401(m)(6) of the Code) in any Plan Year, such excess
aggregate contributions and all income allocable thereto shall be
distributed, or, if forfeitable, forfeited, in the manner and
within the time required by the said section 401(m)(6).
(g) The Plan shall comply with the limitation on multiple use of the
alternative limitation as described in section 1.401(m)-(2)(b) of
the Treasury Regulations under Code section 401(m).
2.040 CHANGES IN RATE OF EMPLOYEE CONTRIBUTIONS. A Participant may from time
to time change the rate of his Compensation Deduction Contribution or
Compensation Deferral Contribution. Such change shall be effective as soon as
is reasonably possible after his election, but, in general, no later than the
first payroll payment date following the expiration of fifteen (15) days
subsequent to his election.
2.050 CHANGES BETWEEN DEDUCTION AND DEFERRAL CONTRIBUTIONS.
(a) A Participant who has an authorization in effect to make
Compensation Deduction Contributions may revoke such authorization
and at the same time elect to com-
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<PAGE> 13
mence Compensation Deferral Contributions. Such revocation and
election shall be effective as soon as is reasonably possible after
his election, but, in general, no later than the first payroll
payment date following the expiration of fifteen (15) days
subsequent to his election.
(b) A Participant who has elected to have Compensation Deferral
Contributions made on his behalf may revoke such election and at
the same time authorize Compensation Deduction Contributions to
commence effective with the first payroll payment date in April or
October of any year by giving the Company prior notice thereof.
2.060 CHANGES IN INVESTMENT ELECTIONS. A Participant may make an Investment
Fund election or change any previous Investment Fund election he has made under
Section 2.020(d) regarding his Compensation Deferral Contributions and
Compensation Deduction Contributions. Such election or change of election may
be made by the Participant once per calendar year quarter and shall be
effective as of the last business day of the month in which the election or
change of election is made.
2.070 TRANSFER OF INVESTMENTS.
(a) A Participant may elect once in each calendar year quarter, by
giving the Company notice of such election, to have the whole or
portions of the value of Units in one or more of the Investment
Funds (other than Stock Fund B and the Guaranteed Return Fund),
which Units are attributable to his Deferral and Deduction
Contributions under Section 2.020, transferred into, and then
converted to Units of, one or more of the other Investment Funds
(including Stock Fund B, but excluding the Guaranteed Return Fund).
The Unit transfers and conversions described in the preceding
sentence shall be effected on the first day of the calendar month
immediately succeeding the month in which elected by the
Participant and shall be in increments of 5% of the value of the
Participant's Units in the transferring Fund(s).
(b) In addition to the elections available under subsection (a), the
following elections shall be available to eligible Participants:
(i) A Participant who has not attained age fifty-five (55) may
elect once in each calendar year, by giving the Company
notice of such election, to have ten percent (10%) of the
total value of all Units (or 100% of such total value,
if $25.00 or less) in Stock Fund B, which are attributable to
the Participant's Deferral and/or Deduction Contributions,
transferred, in increments of five percent (5%), into any one
or more of the Investment Funds, other than the Guaranteed
Return Fund.
(ii) A Participant who has attained age fifty-five (55), but not
age sixty-five (65), may elect once in each calendar year, by
giving the
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<PAGE> 14
Company notice of such election, to have fifty percent (50%)
of the total value of all Units (or 100% of such total value,
if $25.00 or less) in Stock Fund B, which are attributable to
the Participant's Deferral and/or Deduction Contributions,
transferred, in increments of five percent (5%), into any one
or more of the Investment Funds, other than the Guaranteed
Return Fund; provided, however, that the Participant may not
make an election under this paragraph (ii) during the same
calendar year in which an election has been made under
paragraph (i).
(iii) A Participant who is still an Employee and has attained age
sixty-five (65) or a Retiree who has elected deferred
distribution pursuant to Section 5.020(b) may elect once each
calendar year quarter to have the total value or a portion
(in 5% increments) of the total value of all Units in Stock
Funds A and B, which are attributable, respectively,
to (1) Company Contributions and (2) Deferral and/or
Deduction Contributions transferred, in increments of five
percent (5%), into any one or more of the Investment Funds,
other than the Guaranteed Return Fund. If, as a result of an
election made pursuant to this paragraph (iii), one hundred
percent (100%) of the Participant's interest in Stock Fund A
has been transferred to other Investment Funds, all
subsequent Company Contributions, if any, made to the
Participant's Company Contribution Account after the
effective date of the said election shall be made in cash
and shall be invested in the same manner as are the
investments described in Section 2.020(d). If less than one
hundred percent (100%) of the Participant's interest in Stock
Fund A has been so transferred, such Company Contributions
shall continue to be made in the manner described in
Section 3.010(b).
(c) The effective date of an election under this Section 2.070 shall
be, and the value of all Units elected to be converted hereunder
shall be determined as of, the first Valuation Date following the
date on which such election is received by the Company. Such
conversion shall be effected by the conversion of such Units into
cash and the transfer of such cash to the designated Fund. Such
transfer shall be effected by the Trustee on or before the
Valuation Date in the second month succeeding the month in which
the election was received.
(d) All elections under this Section shall be irrevocable and shall not
affect the Participant's right to exercise any other election
provided by the Plan.
(e) Upon making an election under subsection (a) or (b)(i), (ii)
or (iii)(2), the Participant shall also either confirm or change
his election under Section 2.020(d) with respect to future
Compensation Deferral or Compensation
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<PAGE> 15
Deduction Contributions, effective as of the effective date of the
election to convert.
(f) A Participant with Units in the Guaranteed Return Fund may elect
prior to the Valuation Date upon which any contract under the
Guaranteed Return Fund or any interest guarantee period under any
such contract expires, to transfer and convert all or a portion of
his interest under such contract to Units in the Diversified Fund,
Stock Fund B, the Intermediate Term Bond Fund and/or the Fixed
Income Fund or to reinvest all or a portion of his interest in the
Guaranteed Return Fund contract currently offered at that time.
Such conversion or reinvestment shall be effected in increments
of 5%, but totalling 100% of his interest and shall be based upon
the value of Units in the respective Funds as of the later of the
date of such expiration or the Valuation Date immediately preceding
the transfer of funds. The interest under a Guaranteed Return Fund
contract of a Participant who does not make an election under this
subsection (f) shall be invested in the Guaranteed Return Fund
contract currently offered at that time.
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<PAGE> 16
ARTICLE III COMPANY CONTRIBUTIONS
3.010 MATCHING AMOUNTS.
(a) The Company shall contribute to the Trust Fund on behalf of each
Participant an amount equal to one hundred percent (100%) of
Compensation Deferral Contributions and Compensation Deduction
Contributions made by the said Participant; provided, however,
that, for each Plan Year Company Contributions made to the
Participant's Company Contribution Account shall not exceed the
lesser of:
(i) 1% of the Participant's Base Compensation; or
(ii) Two Hundred and Fifty Dollars ($250.00).
(b) Except as provided in Section 2.070(b)(iii), contributions by the
Company may, at the option of the Board of Directors, be in the
form of any combination of Common Stock and cash. The Company's
Common Stock shall be valued at the closing price reflected on the
New York Stock Exchange--Composite Transactions listing on the
Valuation Date immediately preceding the date on which the
contribution was made.
(c) The Company shall notify the Plan Administrator no later than
fifteen (15) days in advance, if the form of contributions to be
made for any month will be changed from that of the immediately
preceding month.
3.020 APPLICATION OF FORFEITURES. Amounts which have been forfeited in
accordance with the provisions of Article V and VI of this Plan shall be
applied to reduce subsequent Company Contributions required hereunder. If the
Plan should be terminated, any amount not previously so applied shall be
credited ratably to the Accounts of all Participants in proportion to the
amounts of Company Contributions credited to their respective Accounts during
the most recent Plan Year.
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<PAGE> 17
ARTICLE IV MAINTENANCE AND VALUATION OF ACCOUNTS
4.010 PARTICIPANT'S ACCOUNTS. Separate Compensation Deferral and
Compensation Deduction Accounts shall be established and maintained by the
Trustee (or by such other person or persons as the Plan Committee shall
designate) to represent all amounts (if any), adjusted for gains or losses
thereon, which have been contributed by or on behalf of a Participant as
Compensation Deduction and Compensation Deferral Contributions. In addition,
the Trustee (or by such other person or persons as the Plan Committee shall
designate) shall establish and maintain a Company Contribution Account to
represent the value of Company Contributions, as adjusted for gains or losses.
Such separate Accounts shall contain sufficient information to permit a
determination of the dollar balance of such Participant's Accounts at any time,
in accordance with the Unit valuation procedures described in Section 4.020
through 4.040. Such separate Accounts shall also contain sufficient
information to permit, with respect to Stock Fund A and Stock Fund B, a
determination of the number of Common Units in such Participant's Account.
4.020 CREDITING OF UNITS TO ACCOUNTS.
(a) The interest of each Participant in the Investment Funds and in
Stock Fund including that part of the Diversified Fund or the Fixed
Income Fund resulting from Company Contributions) shall be
represented by Units allocated to his Accounts. The value of each
Unit shall be One Dollar ($1.00) for the contributions deposited on
behalf of each Participant prior to the first Valuation Date
following the effective date of the particular Investment Fund.
(b) Each contribution on behalf of a Participant to, or payment made to
a Participant from, an Investment Fund or Stock Fund A shall result
in a credit or charge to the Account representing his interest in
the said Fund or contract under his Company Contribution Account,
Compensation Deferral Account and Compensation Deduction Account,
as applicable, and shall be equal to the number of Units
contributed or paid as the case may be.
(c) Dividends on Common Stock held in Stock Fund A and Stock Fund B
shall result in an appropriate increase in the Unit values of the
said Funds.
4.030 UNIT VALUATIONS. Except as otherwise provided in Section 4.020, as of
each Valuation Date, an amount equal to the fair market value of all property
in the Funds (other than dividends received which are attributable to whole
shares of Common Stock which were or are to be transferred to Participants
subsequent to the record date for such dividend) or under a contract, in the
case of the Guaranteed Return Fund, shall be determined by the Trustee in such
manner and on such basis as it shall deem appropriate. Such amount shall be
divided by the total number of Units credited to all the Participants in the
Fund or under the contract concerned on the particular Valuation Date, thereby
establishing a new Unit value. With respect to each Fund, each contribution or
other payment thereto or payment therefrom after such Valuation Date and prior
to or on the next Valuation Date shall be converted to Units by dividing such
new Unit value into the amount of such contribution or payment, and the
individual Account of each affected Participant representing his interest in
the Fund or contract under his Company Contribution
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<PAGE> 18
Account, Compensation Deferral Account and Compensation Deduction Account, as
applicable, shall be credited or charged, as the case may be, with the portion
of the number of Units so attributable to such Participant. The value of each
contract under the Guaranteed Return Fund shall be equal to the principal
amount held in such Fund plus accrued interest.
4.040 BALANCE OF PARTICIPANT'S ACCOUNTS. As of any specified date, the
dollar balance of the Accounts of each Participant representing the interest of
each Participant in each Fund or contract under his Company Contribution
Account, Compensation Deferral Account and Compensation Deduction Account, as
applicable, shall be determined by multiplying the number of Units in his
current balance by the Unit value as of the last preceding Valuation Date in
accordance with the foregoing and adding to the resulting dollar balance the
amount of contributions made with respect to such Account since the last
valuation date for which Units have not yet been credited. Only those
contributions actually received by the Trustee will be considered in making
valuations and determining Account balances.
4.050 STATEMENTS OF PARTICIPANTS. After the end of each calendar year or
more frequently as the Plan Administrator shall determine, the Plan
Administrator (or if the Plan Administrator shall so determine, the Trustee)
shall forward by mail to each Participant a statement, in such form as the Plan
Administrator shall determine, setting forth pertinent information relative to
each Participant's Accounts. Such statement shall, for all purposes, be deemed
to have been accepted as correct unless the Plan Administrator (or the Trustee,
as the case may be) is notified to the contrary by mail within sixty (60) days
of the mailing thereof to the Participant.
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<PAGE> 19
ARTICLE V BENEFITS PAYABLE UPON TERMINATING EMPLOYMENT
5.010 VESTING.
(a) Each Participant shall at all times be fully vested in his
Compensation Deferral and Compensation Deduction Accounts. Each
Participant who is an Employee and has at least five (5) years of
Vesting Service shall be fully vested in his Company Contribution
Account.
(b) Subject to the forfeiture provisions of Articles V and VI, all of a
Participant's Vesting Service shall be considered in determining
whether he has a vested right under Section 5.010(a)(i) to that
portion of his Company Contributions Account.
(c) If a Participant who is an Employee attains age sixty-five (65),
all of the Units in his Accounts which are attributable to Company
Contributions shall be fully vested.
5.020 RETIREMENT, DEATH, LAYOFF, ETC.
(a) Upon a Participant's:
(i) Retirement,
(ii) death,
(iii) Layoff,
(iv) termination of employment because of inability to meet
Company medical standards,
(v) termination of employment in order to enter the Armed Forces
of the United States or to accept employment with the
Government of the United States, or
(vi) disability which has continued for a period of at least six
(6) months,
all of the Units in the Participant's Company Contributions Account
shall become fully vested and nonforfeitable.
(b) Subject to the provisions of Section 5.050:
(i) As soon as is practicable after the occurrence of an event
described subsection (a), but not later than sixty (60) days
after the end of the Plan Year in which the event shall have
occurred, a Participant or Beneficiary, in the case of
death, shall receive all amounts described in paragraph (ii).
In the case, however, of Retirement, a Participant who would
otherwise receive a distribution pursuant to the
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<PAGE> 20
preceding sentence may nevertheless elect at any time prior
to the effective date of the Retirement to remain in the Plan
without any further contributions and may elect to defer the
Retirement distribution to a later date, which date shall not
be later than April 1 of the calendar year following the
calendar year in which the Participant attains age seventy
and one-half (70-1/2). Distributions to such Participants
shall be made pursuant to the terms of Section 5.030 of this
Article.
(ii) The amounts which a Participant or Beneficiary (in the case
of the Participant's death) shall receive under paragraph
(ii) shall be as follows:
(1) With respect to Investment Funds other than Stock Fund
A and Stock Fund B, the Participant shall receive the
full dollar balance of his Accounts in such Funds.
Such balance shall be determined in the manner provided
by Section 4.040, by reference to the value of Units in
such Participant's Accounts on the Valuation Date
coinciding with or immediately preceding:
(A) the date of the Participant's Retirement, Layoff
or termination; or
(B) in the case of the Participant's death or
disability, the date all documentation necessary
to effect distribution from the Plan is received
by the Plan Administrator.
(2) With respect to Stock Fund A and Stock Fund B, the
dollar balances in such Participant Accounts in such
Funds as of the Valuation Date coinciding with or
immediately preceding
(A) such Retirement, Layoff, or termination, or
(B) in the case of the Participant's death or
disability, the date all documentation necessary
to effect distribution from the Plan shall have
been received by the Plan Administrator,
shall be applied to Common Stock. The Participant
shall receive shares of Common Stock equal in number to
the maximum number of whole shares of Common Stock
which could be purchased at the closing price of Common
Stock as reflected on the New York Stock Exchange --
Composite Transactions listing on such Valuation Date
(or, in the event such Valuation Date falls on a date
on which for any reason
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<PAGE> 21
there are no trades of such stock reflected on such
listing, the last trading day preceding such Valuation
Date). The Participant shall be paid in cash the
dollar amounts remaining in his Accounts in Stock Fund
A and Stock Fund B after reduction of each such Account
by the value, based on such closing price, of the whole
shares previously described. In addition, the
Participant shall be paid in cash the amount of any
cash dividends received since such Valuation Date
attributable to the number of whole shares of Common
Stock distributed to him as described in this
subparagraph (2) and the dollar value of any
contributions to Stock Fund A and Stock Fund B in
respect of such Participant between such Valuation Date
and the date of such Retirement, death, Layoff or
termination.
(c) Notwithstanding the provisions of subsections (a) and (b), if a
Participant attains age seventy and one-half (70-1/2) while still
an Employee, distribution to the Participant of the amounts
described in subsection (b)(ii) of this Section 5.020 shall be made
or commence to be made pursuant to the provisions of Section 5.030
not later than April 1 of the calendar year following the calendar
year in which the Participant attains age seventy and
one-half (70-1/2).
5.030 FORM OF DISTRIBUTIONS TO PARTICIPANTS.
(a) Any Participant who is eligible for and wishes to receive a
Retirement distribution under Section 5.020(b) shall make an
election concerning the form of distribution and shall provide such
election to the Plan Administrator prior to Retirement.
(i) The form of distributions elected hereunder shall be with
reference to the amounts described in subsection (a)(iii) of
Section 5.020 and shall be either:
(1) a lump sum payment, or
(2) ten (10) or fewer annual installment payments, such
installment payments to be equal to the value of the
Participant's Accounts as of the Valuation Date
immediately preceding distribution, divided by the
number of installments remaining at the time of each
payment. The initial installment payment shall be made
as soon as is practicable after the effective date of
the Participant's election, with subsequent payments
during the elected installment payment period to be
made as of the annual anniversary date of the said
initial installment payment.
(ii) Notwithstanding the above, in the event that no election
concerning the form of Retirement distribution has been
received by the Plan Administrator from a Retiree by the end
of the calendar year in
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which the Retiree has attained age seventy and
one-half (70-1/2), the said Retirement distribution shall be
in the form of lump sum payment.
(iii) If a Retiree who had previously elected and commenced receipt
of installment payments pursuant to paragraph (i)(2) returns
to employment with the Company or an Affiliated Company
(other than as a member of the Company's flexible work
force), such installment payments shall be suspended until
the Retiree's subsequent Retirement, at which time he shall
be permitted again to make the election described therein,
subject to the provisions of this Section 5.030.
(b) A Participant who is still an Employee and has attained age seventy
and one-half (70-1/2) and is, therefore, required to commence
distribution pursuant to the terms of Section 5.020(c), shall
receive or commence to receive the value of his Accounts no later
than April 1 of the calendar year following the calendar year
in which the Participant has attained the said age. Distributions
under this subsection (b) shall be over the period of the
Participant's life expectancy (pursuant to the terms of
Section 401(a)(9) of the Code). Upon the Participant's subsequent
Retirement, the Participant shall be entitled to make the election
provided for in the preceding subsection (a) with respect to the
balance of the Participant's account at that time.
(c) A Participant who had previously elected the form of distribution
described in subsection (a)(ii) or who had commenced receiving
payments from his Accounts over his life expectancy under
subsection (b) shall be permitted to revoke such election at a
later date, in the case of the distribution under subsection
(a)(i), and, in either case, accelerate receipt of the distribution
by electing distribution of the remaining Account balances in a
lump sum payment.
5.040 EMPLOYEES OF DIVESTED COMPONENTS.
(a) Subject to the provisions of Section 5.050, any Participant who is
employed by a Divested Component immediately prior to its
divestiture and who does not continue employment with the Divested
Component shall have his Accounts distributed to him by the Trustee
in the manner provided in Sections 5.020 and 5.030.
(b) Any Participant who immediately prior to its divestiture is
employed by a Divested Component and who continues employment with
the Divested Component, shall become fully vested in all of the
Units in his Company Contributions Account. Subject to the
provisions of Section 5.050, the Accounts of such Participant shall
be distributable in the manner provided in Sections 5.020 and 5.030
or transferred by the Trustee to the trustee or other funding agent
of any appropriate plan established or otherwise maintained by the
acquiror of the said Divested Component in such a
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<PAGE> 23
manner as to ensure that no portion of the Accounts of any
Participant transferred hereunder shall be subject to forfeiture.
5.050 TERMINATION OF EMPLOYMENT FOR OTHER REASONS.
(a) Subject to the provisions of Section 5.050, if a Participant's
employment is terminated for any reason other than those set forth
in Sections 5.020, 5.030 and 8.020(a), the Participant shall
receive the following as soon as practicable:
(i) With respect to the Investment Funds (other than Stock
Fund B), the full dollar balance of his Accounts in such
Funds. Such balance shall be determined, in the manner
provided in Section 4.040, by reference to the Units in such
Participant Accounts on the date of such termination and the
value of each Unit on the Valuation Date coinciding with or
immediately preceding such date.
(ii) With respect to Stock Fund B the dollar balance or balances
in such Participant's Accounts in such Fund, and with respect
to Stock Fund A the vested portion of the dollar balance or
balances in such Participant's Accounts in such Fund, both as
of the Valuation Date immediately preceding such termination
shall each be applied to Common Stock. With respect to each
such fund, the Participant shall receive shares of Common
Stock equal in number to the maximum number of whole shares
of Common Stock which could be purchased at the closing price
of Common Stock as reflected on the New York Stock
Exchange -- Composite Transactions listing on such Valuation
Date (or, in the event such Valuation Date falls on a date on
which for any reason there are no trades of such stock
reflected on such listing, the last trading day preceding
such Valuation Date). The Participant shall be paid in cash
the dollar amount remaining in his Account in Stock Fund B
and in the vested portion of his Account in Stock Fund A
after reduction by the value, based on such closing price, of
the whole shares previously described. In addition, the
Participant shall be paid in cash the amount of any cash
dividends received since such Valuation Date attributable to
the number of whole shares of Common Stock distributed to him
hereunder.
(b) If a Participant with less than five (5) years of Vesting Service
receives a distribution pursuant to subsection (a), the non-vested
portion of the Participant's Company Contributions Account shall be
forfeited at the time such distribution is made. If the
Participant is reemployed as an Employee prior to the end of five
(5) years after the date on which his termination of employment
shall have occurred and if the Participant shall make a cash
repayment to the Plan of the amounts which were distributed from
his Compensation Deduction and Compensation Deferral Accounts on or
prior to the end of the sixtieth (60th) month after the date of his
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<PAGE> 24
reemployment, there shall be restored to the Participant's Company
Contributions Account a dollar amount equal to the previously
forfeited non-vested portion of the dollar balance of his Company
Contribution Account in Stock Fund A (determined, in the manner set
forth in Section 4.040, by reference to the Units in such Account
and the value of each such Unit on such Valuation Date). The
amount of such repayment (which such amount shall not reflect
interest) shall be credited to his Compensation Deduction Account
and shall be allocated to the Investment Funds (including any
contract accounts under the Guaranteed Return Fund) in the same
proportion that the Participant's Deduction and Deferral
Contributions under the Plan are then currently being made to the
Investment Funds. The non-vested portion of the Participant's
Company Contribution Account restored pursuant to this
subsection (b) shall vest as provided in Section 5.010.
(c) If a Participant with less than five (5) years of Vesting Service
becomes eligible to receive a distribution under subsection (a) but
fails to provide consent to such distribution as required by
Section 5.060, the non-vested portions of the Participant's Company
Contribution Account shall be forfeited at the conclusion of the
five (5) year period following the date on which his termination of
employment shall have occurred, unless the Participant shall be
reemployed as an Employee prior to the conclusion of the said five
(5) year period.
(d) For the purposes of this Section, in the case of an Employee who is
absent from work by reason of a Maternity or Paternity Leave, the
five (5) year period following termination of employment described
above in subsections (b) and (c) shall not be deemed to have
commenced until the earlier of the date on which he terminates
employment by reason of his retirement, death, voluntary quit or
discharge or the second annual anniversary date of the commencement
of his Maternity or Paternity Leave.
5.060 PARTICIPANT'S CONSENT TO DISTRIBUTION OF BENEFITS. Notwithstanding any
other provisions of the Plan, if the aggregate value of the vested portion of a
Participant's Accounts is in excess of Three Thousand Five Hundred Dollars
($3,500) and the Participant has not attained age seventy and one-half (70-1/2)
at the time distribution of benefits under the Plan would otherwise be made, no
distribution of benefits under the Plan shall be made, unless the Plan
Administrator shall first have obtained the Participant's written consent
thereto. In the event such written consent is not so obtained, the vested
portion of the Participant's Accounts shall be retained by the Plan and shall
be maintained and valued in accordance with Article IV. Distribution of the
Participant's Accounts pursuant to this Section shall be made following the
date on which the Participant's written consent to such distribution is
obtained by the Plan Administrator or, if earlier, the date on which the
Participant attains age seventy and one-half (70-1/2) or dies, in the same
manner as if the Participant had terminated employment on such date. If the
Participant is reemployed as an Employee prior to the date on which such
written consent is received by the Plan Administrator, the Participant shall
not have any further right to receive a distribution of benefits as a result of
his prior termination of employment. Under no circumstances shall a
Participant have any right to withdraw any portion of the balance of his
Accounts under Article VI prior to the date of distribution of benefits.
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<PAGE> 25
5.070 TRANSFER OF DISTRIBUTION DIRECTLY TO ELIGIBLE RETIREMENT PLAN. If a
Participant, a Participant's spouse entitled to distribution pursuant to
Article IX, in the case of a Participant's death, or a former spouse entitled
to distribution pursuant to Section 11.140 shall so request in writing, the
Plan Administrator shall cause all or a portion of the amounts (including
shares of Common Stock) with respect to which the Participant would be taxable
under section 402 of the Code to be transferred from the Trustee directly to
the custodian of an Eligible Retirement Plan specified by the Participant.
Such request shall be made, in the case of a Participant, at the time his
consent to such distribution shall be given to the Plan Administrator pursuant
to Section 5.050, or at such later date as the Plan Administrator shall permit,
or, in the case of the Participant's spouse or former spouse, at such time as
the Plan Administrator shall determine. Prior to effecting such transfer the
Plan Administrator shall require evidence reasonably satisfactory to him that
the entity to which such transfer is to be made is in fact an Eligible
Retirement Plan and that such Eligible Retirement Plan may receive the
distribution in the forms required under this Article V.
5.080 VALUATION DATES FOR DOMESTIC RELATIONS ORDERS. Notwithstanding any
other provision of this Article V or of Article VI, in the event that the Plan
Administrator shall determine that a distribution or a withdrawal of a
Participant's Account pursuant to this Article V or Article VI has been delayed
as a result of a pending or threatened domestic relations order, the Valuation
Date immediately preceding the date on which such withdrawal or distribution is
approved by the Plan Administrator pursuant to such order shall be substituted
for the Valuation Date which would otherwise be applicable to such withdrawal
or distribution.
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<PAGE> 26
ARTICLE VI IN-SERVICE WITHDRAWALS AND LOANS
6.010 WITHDRAWALS FROM ACCOUNTS BY PARTICIPANTS UNDER AGE 59-1/2.
(a) Subject to Sections 6.040 and 6.050, a Participant who has not yet
attained age fifty-nine and one-half (59-1/2) may elect while still
employed to withdraw certain amounts from his Accounts. As soon as
practicable after the Company's receipt of such an election, there
shall be paid or transferred to such Participant cash and, if
applicable, stock from his Accounts in the following order:
(i) first, from his Compensation Deduction Account;
(ii) second, from that portion (if vested) of his Company
Contribution Account, which is attributable to Compensation
Deduction Contributions;
(iii) third, from his Compensation Deferral Account.
(b) Withdrawals pursuant to paragraph (i) of subsection (a) shall be
subject to the suspension provisions of Section 8.020(d) and to the
forfeiture provisions and withdrawal limitations of Section 6.030.
(c) A Participant shall be permitted to withdraw from his Compensation
Deferral Account, as described in paragraph (iii) of subsection
(a), only upon providing adequate evidence of a hardship, as
provided in Section 6.050 and such a hardship withdrawal shall be
governed by the provisions of that Section.
(d) The portion of the Employee's Company Contribution Account which is
attributable to Compensation Deferral Contributions shall not be
available for withdrawal prior to the Employee's attainment of age
fifty-nine and one-half (59-1/2).
(e) In determining withdrawal amounts, the value of available Units in
the Participant's Accounts shall be determined as of the Valuation
Date coinciding with or immediately preceding the date of the
election.
6.020 WITHDRAWAL FROM ACCOUNTS BY PARTICIPANTS OVER AGE 59-1/2.
(a) A Participant who has attained age fifty-nine and one-half (59-1/2)
while still employed by the Company may elect to withdraw any or
all vested amounts from his Accounts. A Participant making such an
election shall receive the amount of cash or, if applicable, stock
to be withdrawn from his Accounts in the following order:
(i) first, from his Compensation Deduction Account;
(ii) second, from his Compensation Deferral Account;
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<PAGE> 27
(iii) third, from that portion (if vested) of his Company
Contribution Account, which is attributable to Compensation
Deduction Contributions; and
(iv) fourth, from that portion (if vested) of his Company
Contribution Account, which is attributable to Compensation
Deferral Contributions.
(b) Withdrawals under paragraph (i) of subsection (a) shall be subject
to the forfeiture provisions of Section 6.030, if the Units in the
Employee's Company Contribution Account are not fully vested
pursuant to the provisions of Section 5.010.
(c) Withdrawals pursuant to this Section 6.020 shall not be subject to
the suspension provisions of Section 8.020(d) or to the withdrawal
limitations of Section 6.030(d).
(d) In determining the distribution amounts, the value of available
Units in the Participant's Accounts shall be determined as of the
Valuation Date coinciding with or immediately preceding the date of
the election.
6.030 FORFEITURES AND LIMITATION ON WITHDRAWALS.
(a) When applicable, any non-vested portion of a Participant's Company
Contribution Account associated with a withdrawal from his
Compensation Deduction Account shall be forfeited at the time of
such withdrawal.
(i) The forfeitable Units, if any, of a Participant's Company
Contribution Account which are attributable to Compensation
Deduction Contributions shall be determined by multiplying
the dollar balance of the Participant's Company Contribution
Account by a fraction, the numerator of which is equal to the
dollar value of the Compensation Deduction Contributions
which were withdrawn by the Participant and the denominator
of which is the total dollar value of the Participant's
Compensation Deduction Account (both such dollar values to be
determined as of the last Valuation Date preceding the date
of withdrawal).
(ii) An Employee who has suffered a forfeiture described in this
subsection (a) may elect to restore his interest in the Plan
by making a cash repayment to the Plan in the amount and in
the manner described in subsections (b) and (c).
(b) In order to restore a forfeiture described in subsection (a), a
repayment of the amount withdrawn by the Employee from his
Compensation Deduction Account
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<PAGE> 28
must be made within sixty (60) months after such withdrawal. For
purposes of this subsection (b), the amount distributed to an
Employee means the sum of the cash distributed to such Employee
plus the dollar value of the Common Stock distributed to such
Employee, determined at the closing price for Common Stock as
reflected on the New York Stock Exchange -- Composite Transactions
listing on the Valuation Date applicable to the distribution or
withdrawal (or if such Valuation Date falls on a date on which, for
any reason, there are no trades of such stock reflected on such
listing, the last trading day preceding such Valuation Date). Such
amount shall not be increased to reflect interest.
(c) As soon as practicable after an Employee makes a repayment
described in subsection (b), there shall be credited to the
Employee's Company Contribution Account the dollar amount of any
amounts forfeited as a result of the withdrawals. The amount
repaid under this subsection (c) shall be credited to the
Employee's Compensation Deduction Account or, if applicable, his
Compensation Deferral Account and shall be allocated to the
Investment Funds (including any contract accounts under the
Guaranteed Return Fund) in the same proportion that the
Participant's Deduction and Deferral Contributions under the Plan
are then currently being made to the Investment Funds. The
previously forfeited amount which is credited under this subsection
shall subsequently vest as provided in Section 5.010.
(d) Withdrawals shall be in a minimum amount of $100. An Employee who
has not yet attained age fifty-nine and one-half (59-1/2) may not
make a request for a partial withdrawal within twenty-six (26)
weeks of any prior request for a partial withdrawal; provided,
however, that this limitation upon the ability of such Employee to
make a partial withdrawal (including hardship withdrawals pursuant
to the provisions of Section 6.040) within twenty-six (26) weeks of
any prior request for a partial withdrawal shall be waived by the
Plan Administrator for the six-month period immediately following
any due declaration by the President of the United States under
applicable federal law that a particular occurrence or situation
constitutes a national disaster condition, if such partial
withdrawal is requested for a reason associated with financial need
of the Employee resulting from the effects of the said condition.
6.040 ALLOCATION OF WITHDRAWALS AMONG INVESTMENT AND STOCK FUNDS.
(a) Withdrawals pursuant to Sections 6.010 and 6.020 shall be taken
from the Employee's Accounts in the Investment Funds in a pro rata
fashion, based upon the relative size of the said Accounts. Any
withdrawal from an Employee's Accounts in the Guaranteed Return
Fund shall be taken in reverse sequence by withdrawing amounts from
the Fund's Account's in the contracts on a last-in first-out basis.
(b) Notwithstanding the above subsection (a), an Employee may elect to
have any such withdrawal taken:
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<PAGE> 29
(i) first from the Employee's Account in Stock Fund B, with any
additional withdrawal amount to be taken on a pro rata basis
from the Employee's Accounts in the remaining Investment
Funds; or
(ii) first on a pro rata basis from the Investment Funds other
than Stock Fund B, with any additional withdrawal amount to
then be taken from the Employee's Account in Stock Fund B.
6.050 HARDSHIP WITHDRAWALS FROM DEFERRAL ACCOUNTS.
(a) Subject to any restrictions the Plan Committee may establish
pursuant to Section 6.050 and to the forfeiture provisions of
Section 5.010, an Employee who has not attained age fifty-nine and
one-half (59-1/2) may request approval of the Administrative
Committee to withdraw some or all of the Units of his Compensation
Deferral Account, if the Employee demonstrates that the withdrawal
is required as a result of a hardship and for payment of any
federal, state or local income taxes and penalties reasonably
anticipated to result from such withdrawal.
(i) For the purposes of this subsection (a) the term "hardship"
shall mean an immediate and heavy financial need of the
Employee for which the amount required is not reasonably
available to the Employee from other sources and which arises
for one of the following reasons:
(1) the purchase (excluding mortgage payments) or
construction of a principal residence for the Employee,
or to prevent eviction from, or foreclosure on the
mortgage on, the Employee's principal residence;
(2) the incurring of obligations for
(A) tuition, related educational fees and room and
board expenses for post-secondary education for
the Employee, his spouse or one or more of his
children or other dependents (as defined in
section 152 of the Code) to be incurred during
the twelve (12) month period immediately
following the date of his request for
distribution; or
(B) expenses not covered by insurance which either
have been previously incurred by the Employee
for, or are necessary in order for the Employee
to obtain, medical care (as described in section
213(d) of the Code) for himself, his spouse or
one
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<PAGE> 30
or more of his dependents (as defined in section
152 of the Code);
(3) any other reason which is permitted under
section 401(k)(2)(B)(i)(IV) of the Code and is approved
by the Administrative Committee.
(ii) Any determination of the existence of hardship, the
reasonable availability to the Employee of funds from other
sources and the amount to be withdrawn on account of such
hardship shall be made by the Administrative Committee on the
basis of all relevant facts and circumstances and in
accordance with the foregoing rules, as applied in a uniform
and nondiscriminatory manner. In making such determination,
the Administrative Committee may, if it is reasonable to do
so in the light of all relevant and known facts and
circumstances, rely on the Employee's representation that the
hardship cannot be relieved:
(1) through reimbursement or compensation by insurance or
otherwise;
(2) by reasonable liquidation of the Employee's assets, to
the extent that such liquidation would not itself cause
an immediate and heavy financial need;
(3) by suspension of Compensation Deferral or Compensation
Deduction Contributions; or
(4) by other distributions (other than hardship
distributions) or loans (which meet the requirements of
section 72(p) of the Code) from the Plan and any other
plan maintained by an Affiliated Company or by any
former employer or by borrowing from commercial sources
at reasonable commercial rates.
(b) Withdrawals pursuant to subsection (a) shall be taken from the
Participant's Investment Fund Accounts, as elected by the
Participant, either:
(i) first from his Account in Stock Fund B, with any additional
withdrawal amount to be taken on a pro rata basis from the
Employee's Accounts in the remaining Investment Funds; or
(ii) first on a pro rata basis from the Investment Funds other
than Stock Fund B, with any additional withdrawal amount to
then be taken from his Account in Stock Fund B.
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<PAGE> 31
Any withdrawal from the Participant's Accounts in the Guaranteed
Return Fund shall be taken in reverse sequence by withdrawing
amounts from the Fund's Account's in the contracts on a last-in
first-out basis.
(c) Withdrawals (including those from Stock Fund B) shall be in cash
and for a minimum amount of $100. An Employee may not make a
request for partial withdrawal within twenty-six (26) weeks of any
prior request for partial withdrawal; provided, however, that this
limitation upon the ability of an Employee to make a partial
withdrawal (including hardship withdrawals pursuant to the
provisions of subsection (a) of this Section) within
twenty-six (26) weeks of any prior request for a partial withdrawal
shall be waived by the Plan Administrator for the six-month period
immediately following any due declaration by the President of the
United States under applicable federal law that a particular
occurrence or situation constitutes a national disaster condition,
if such partial withdrawal is requested for a reason associated
with financial need of the Employee resulting from the effects of
the said condition.
6.060 TRANSFER OF DISTRIBUTION OR WITHDRAWAL TO ELIGIBLE RETIREMENT PLAN. If
a Participant entitled to a distribution or withdrawal under this Article VI,
shall so request in writing at the time his election to receive such
distribution or withdrawal is made or at such later date as the Plan
Administrator may permit, the Plan Administrator shall cause all or a portion
of the amounts (including shares of Common Stock) with respect to which the
Participant would be taxable under section 402 of the Code to be transferred
from the Trustee directly to the custodian of an Eligible Retirement Plan
specified by the Participant. Prior to effecting such transfer the Plan
Administrator shall require evidence reasonably satisfactory to him that the
entity to which such transfer is to be made is in fact an Eligible Retirement
Plan and that such Eligible Retirement Plan may receive the distribution in the
forms required under this Article VI.
6.070 LOANS. The Plan Committee shall establish, and may from time to time
modify, procedures pursuant to which any Employee or other "party in interest"
(as defined in ERISA section 3(14)) may apply for and receive a loan from the
Plan in an amount not exceeding the least of (a), (b), (c) or (d):
(a) the aggregate of the balances in the borrower's Compensation
Deferral and Compensation Deduction Accounts;
(b) an amount which, when combined with all outstanding loans to the
borrower from all other plans of all Affiliated Companies, equals
Fifty Thousand Dollars ($50,000), reduced by the excess, if any, of
(i) the highest outstanding and unpaid balances of all prior
loans to the borrower from the Plan and such other plans
during the twelve (12) month period immediately preceding the
date on which such loan is made, over
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<PAGE> 32
(ii) the outstanding balance of any loan to the borrower from the
Plan or such other plans on the date on which the loan is
made;
(c) one-half (1/2) of the aggregate of the fully vested and
nonforfeitable interests in the balances of the borrower's
Accounts; or
(d) such amount, not exceeding the amounts described in (a) through (c)
above, as the Plan Committee shall determine.
In addition to the above limitation, no such Employee or other party in
interest shall be permitted to have more than a single loan outstanding
from this Plan and all other plans sponsored by the Company and
Affiliated Companies at any one time.
All such loans shall be made available to all eligible Employees and
other parties in interest on a reasonably equivalent and
non-discriminatory basis and shall be governed by the provisions of
Appendix A, as such Appendix is from time to time constituted, pursuant
to determination of the Plan Administrator.
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<PAGE> 33
ARTICLE VII HOURS OF SERVICE
7.010 GENERAL. An Eligible Employee shall be credited with an Hour of
Service for each hour for which he is directly paid for all purposes by the
Company for the performance of duties. Hours worked at a premium rate shall be
credited as straight-time hours.
7.020 PERIODS OF ABSENCE.
(a) If at the time of commencement of any of the following absences the
Participant is an Eligible Employee, he shall be credited for all
purposes with Hours of Service in accordance with subsection (b):
(i) absence from work, up to a maximum of two (2) years,
because of injury or disease sustained in the course of
employment with the Company and with respect to which he
receives workmen's compensation benefits and during which
he would normally have been scheduled to work for the
Company as an Eligible Employee;
(ii) absence from work pursuant to an authorized sick leave;
(iii) absence from work for paid vacation or paid holiday(s) not
worked;
(iv) absence from work for a period during which he is serving
as a juror;
(v) absence from work for a period for which he is on an
authorized leave of absence for union business;
(vi) absence from work for a period during which he is required
by the Armed Forces of the United States for military
training or emergency duty;
(vii) absence from work for a paid funeral or bereavement leave;
(viii) absence from work for a period during which he is on
authorized personal leave;
(ix) absence from work for a period during which he is on layoff
status; and
(x) absence from work for a period during which he is on an
authorized educational leave.
(b) An Eligible Employee shall be deemed to have completed an Hour of
Service for each hour for which back pay has been awarded or agreed
to by the Company or Affiliated Company for any period off work.
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<PAGE> 34
(c) Any absence from work by an Eligible Employee who may be elected or
appointed to governmental office requiring him to absent himself
from duty with the Company; provided, however, that a written
opinion of counsel is obtained in advance that granting of such
credit in a specific circumstance, and its acceptance by the
Participant, does not violate any federal, state or local law.
(d) Any absence, other than those described in subsection (a), for
which the Eligible Employee is paid his regular hourly rate of
compensation by the Company (including any such vacation or holiday
not worked) provided that such credit shall be given only for the
first five hundred and one (501) credited hours of any single such
period.
(e) For purposes of determining the number of Hours of Service to which
an Eligible Employee may be entitled pursuant to the provisions of
subsection (a) with respect of any period of approved absence or
layoff for which the Eligible Employee is not paid his regular
hourly rate of compensation by the Company, such Eligible Employee
shall receive 174 Hours of Service for each full month of such
service, prorated on a daily basis at the rate of eight (8) Hours
per day, not to exceed forty (40) hours per week; and with respect
to any period of absence for which the Eligible Employee is paid
his regular hourly rate of compensation by the Company, the
Eligible Employee's Hours of Service shall be determined by
dividing the payments received by or due to such Eligible Employee
with respect to the applicable period by the Eligible Employee's
regular hourly rate of compensation.
7.030 HOURS OTHER THAN AS AN ELIGIBLE EMPLOYEE. A Participant who has
completed or completes Hours of Service with the Company or an Affiliated
Company but not as an Eligible Employee shall, upon becoming a Participant, be
credited with such Hours of Service only for purposes of determining Vesting
Service.
7.040 MATERNITY OR PATERNITY LEAVE. The Plan shall treat the following as
Hours of Service solely for the purpose of determining Vesting Service:
(a) Hours of Service which otherwise would normally have been credited
to a Participant but for a Maternity or Paternity Leave, or
(b) if the normal Hours of Service cannot be determined, eight (8)
Hours of Service for each day of such absence
provided that the total number of such Hours of Service shall not exceed five
hundred one (501); and provided further that such Hours of Service shall be
credited to the Participant in the Plan Year in which the Maternity or
Paternity Leave begins, if such Participant would otherwise incur a Break in
Service in such Plan Year, or otherwise in the immediately following year.
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ARTICLE VIII SUSPENSION OF SAVINGS AND CONTRIBUTIONS
8.010 VOLUNTARY SUSPENSION.
(a) A Participant may at any time elect to have contributions suspended
until further notice. Suspension shall become effective not later
than the first payroll payment date following the expiration of the
fifteen (15) days period thereafter.
(b) Subject to Section 2.010, a Participant who has elected to have
contributions suspended, may elect to have contributions resumed,
effective no later than the first payroll payment date following
the expiration of the fifteen (15) days period thereafter.
8.020 INVOLUNTARY SUSPENSION. A Participant's Compensation Deferral
Contributions and Compensation Deduction Contributions shall be involuntarily
suspended whenever:
(a) no payment of Base Compensation is made by the Company to the
Participant or, in the case of a Deduction Contribution, the amount
payable after all applicable withholdings and deductions required
by law or the Company is less than the applicable Deduction
Contribution;
(b) payroll deduction for Compensation Deduction Contributions under
the Plan would be contrary to law;
(c) the Participant is not an Eligible Employee of an Affiliated
Company or of a component of the Company to which the benefits of
the Plan have been extended; or
(d) the Participant receives a distribution under Section 6.010(a)(iv)
of Company Contribution Account Units which are attributable to his
Compensation Deduction Contributions; provided, however, that the
previously suspended Contributions shall resume following the
completion of the twenty-six (26) week period beginning on the date
of such distribution and upon the occurrence of an affirmative
election by the Participant for such resumption.
8.030 GENERAL PROVISIONS APPLICABLE TO SUSPENSIONS. Suspensions
of a Participant's Deferral or Deduction Contributions, whether voluntary
or involuntary, shall not affect his benefit and withdrawal rights under
Articles V and VI of the Plan, but Company contributions on his behalf shall be
similarly suspended. A Participant may not make up suspended Deferral or
Deduction Contributions.
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ARTICLE IX DESIGNATION OF AND PAYMENT TO A BENEFICIARY
9.010 DESIGNATION OF A BENEFICIARY. Subject to the provisions of
Section 1.070:
(a) If a Participant dies, payment of the benefits provided under this
Plan shall be made to such person or persons as he has designated
as his Beneficiary to receive such benefits in the event of his
death.
(b) A Participant may change his designation of Beneficiary at any time
by filing with the Plan Administrator (or such other person as is
designated by the Plan Administrator) a request for such change.
Such change shall become effective only upon receipt of the request
by the Plan Administrator (or such other person as is designated by
the Plan Administrator) but upon such receipt the change shall
relate back to and take effect as of the date the Participant
signed such request; provided, however, that neither the Company,
the Trustee, the Plan Committee, the Plan Administrator, any other
named or unnamed fiduciary, nor the Trust Fund shall be liable for
any payment made to the Beneficiary designated before receipt of
such request.
(c) If no designation is effective pursuant to this Article or if the
Plan Administrator or Trustee shall have any doubt as to the right
of any Beneficiary or if the Beneficiary shall predecease the
Participant, the amount of such benefits may be paid to the estate
of the Participant, in which event neither the Company, the
Trustee, the Plan Committee, the Plan Administrator, any other
named or unnamed fiduciary, nor the Trust Fund shall be liable to
anyone with respect to such payment.
9.020 PAYMENT TO A BENEFICIARY. Upon receipt by the Plan Administrator (or
another person designated by him) of evidence satisfactory to such person of
the death of a Participant and of the identity and existence at the time of
such death of the Beneficiary, the Plan Administrator shall direct the Trustee
to pay the Participant's Accounts to such Beneficiary.
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ARTICLE X TRUST AGREEMENT
10.010 ESTABLISHMENT OF TRUST FUND. The property resulting from contributions
made on behalf of all Participants, including contributions made by the
Company, shall be held in a Trust Fund by a corporate Trustee or Trustees
selected by the Plan Committee pursuant to a Trust Agreement entered into
between such Trustee and the Plan Committee. References in the Plan to Trustee
shall be deemed to be applicable with equal force to co-Trustees or successor
Trustees who may be so designated.
10.020 INVESTMENTS.
(a) The Trustee shall establish:
(i) a Diversified Fund, which shall be invested in stocks,
convertible bonds and other corporate securities (other than
securities issued by the Company), as well as in cash
equivalents and other miscellaneous securities;
(ii) a Fixed Income Fund, which shall be invested in debt
instruments (other than debt instruments issued by the
Company) with maturity dates of three years or less, which
such instruments shall include treasury bills, treasury
notes, treasury bonds, federal agency obligations, other
instruments of government debt, bankers' acceptances and bank
certificates of deposit;
(iii) an Intermediate Term Bond Fund, which shall be invested in
debt instruments with a combined average maturity of five
years or less, which such instruments shall include treasury
bills, treasury notes, treasury bonds, federal agency
obligations and other instruments of government debt;
(iv) a Guaranteed Return Fund consisting of the Trust Fund's
interest in contracts issued by one or more insurance
companies, which contracts:
(1) guarantee the principal and interest thereon for a
specified period of time, and
(2) accrue such guaranteed interest on a monthly basis;
(v) Stock Fund A, which shall consist of all cash, the Company's
Common Stock, and the proceeds and income therefrom,
attributable to Company Contributions;
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(vi) Stock Fund B, which shall consist of all cash, the Company's
Common Stock and the proceeds and income on such cash and
Stock attributable to contributions made by or on behalf of
Participants under the Plan and designated as contributions
to Stock Fund B.
(b) The Trust Agreement will provide the following:
(i) The Plan Committee may from time to time direct the
segregation of all or a portion of the Investment Funds,
other than the Guaranteed Return Fund and Stock Fund B and
shall appoint Investment Managers with respect to the
portions of the Investment Funds so segregated. Any
Investment Manager so appointed shall have full discretion to
direct the Trustee with respect to the acquisition,
retention, management and disposition of the assets from time
to time comprising the Investment Manager's Account.
(ii) The Trustee shall pay all cash in the Guaranteed Return Fund
to the one or more insurance companies described in paragraph
(iv) of Section 10.020(a), subject to the terms of the
contracts described in such paragraph.
(iii) The Trustee shall use all cash in Stock Fund A and Stock Fund
B only to purchase Common Stock. Rights, options, or
warrants offered to purchase Common Stock shall be exercised
by the Trustee in his discretion but only to the extent that
there is cash available in Stock Fund A and Stock Fund B for
investment. To the extent they are not exercised, the same
shall be sold on the open market. Rights, options, or
warrants to purchase securities of Rockwell International
Corporation or its subsidiaries or affiliates other than
Common Stock shall be sold by the Trustee on the open market.
(iv) In making all investments pursuant to this Plan, the Trustee
and the Investment Manager shall:
(1) not be bound by any law or any court doctrine of any
state or jurisdiction limiting trust investments,
except as otherwise provided by ERISA;
(2) give consideration to the cash requirements of the
Plan;
(3) not cause the Plan to engage in any transaction
constituting a prohibited transaction under section 406
of ERISA.
10.030 DUTY OF TRUSTEE AS TO STOCK IN STOCK FUND A AND STOCK FUND B.
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(a) Except as otherwise provided in this Section 10.030, the duty with
respect to the voting, retention, and tendering of Common Stock
held in Stock Fund A or Stock Fund B shall be solely that of the
Trustee, to be exercised solely in the Trustee's discretion.
(b) With respect to any matter as to which a vote of the outstanding
shares of Common Stock is solicited:
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the manner in which voting rights of the
Participant's vested and non-vested shares of Common Stock
held in or credited to Stock Fund A or Stock Fund B as of the
record date fixed for determining the holders of Common Stock
entitled to vote on such matter are to be exercised with
respect to such matter, and the Trustee shall exercise the
voting rights of such shares with respect to such matter in
accordance with the last-dated timely written direction, if
any, of such Participant; and
(ii) the Trustee, in its sole discretion, shall exercise voting
rights of shares of Common Stock held in Stock Fund A or
Stock Fund B as to which no timely direction has been
received pursuant to paragraph (i).
(c) In the event of any Tender Offer (as defined in Section 1.480):
(i) the Trustee shall solicit the direction in writing of each
Participant, as to the tendering or depositing of any vested
or non-vested shares of Common Stock held in Stock Fund A or
Stock Fund B as of the Tender Date with respect to such
Participant or have been credited as of such Tender Date to
the Accounts in Stock Fund B of such Participant, and, except
as limited by subsection (d) hereof, the Trustee shall tender
or deposit such shares pursuant to any such Tender Offer in
accordance with the last dated timely written direction, if
any, of such Participant;
(ii) the Trustee shall, in its sole discretion, shall have the
duty, except as limited by subsection (d) hereof, with
respect to the retention, tendering or depositing of shares
of Common Stock held in Stock Fund A or Stock Fund B as to
which no timely direction in writing has been received
pursuant to paragraph (i);
(d) Shares of Common Stock held in Stock Fund A or Stock Fund B shall
not be tendered or deposited by the Trustee pursuant to any such
Tender Offer until the earlier of:
(i) immediately preceding the scheduled expiration of the Tender
Offer pursuant to which such shares are to be tendered or
deposited, or
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(ii) immediately preceding the expiration of the period during
which such shares of Common Stock will be taken up and paid
for on a pro rata basis pursuant to such Tender Offer, or
(iii) the expiration of 30 days from the date of the Trustee's
solicitation of Participants' written direction pursuant to
subsection (c)(i).
(e) The duty with respect to the withdrawing of, or other exercise of
any right to withdraw, shares of Common Stock held in Stock Fund A
or Stock Fund B which have been tendered or deposited pursuant to
any such Tender Offer shall be solely that of the Trustee, provided
that the Trustee may solicit the direction in writing of each
Participant with respect to whom any such shares of Common Stock
have been tendered or deposited pursuant to any such Tender Offer
as to the withdrawing of, or other exercise of any right to
withdraw, such shares of Common Stock and if such solicitation is
made, the Trustee shall act in accordance with the last dated
timely written direction, if any, of each such Participant.
As used herein, the term 'Tender Date' means the date on which the
Trustee tenders or deposits any shares of the Common Stock
representing the vested or non-vested interest of such Participant
in Stock Fund A or credited to the Accounts in Stock Fund B of such
Participant.
10.040 FORM OF TRUST AGREEMENT. The Trust Agreement shall be in such form and
contain such provisions as the Plan Committee may deem appropriate (consistent
with the provisions of Section 10.020, Section 10.030 and Section 16.030) The
Trust Agreement shall be deemed to form a part of this Plan, and all rights and
benefits that may accrue to any person under this Plan shall be subject to all
the terms and provisions of the Trust Agreement. The Trust Agreement may
authorize the Trustee to invest all or part of the assets held by him in a
collective trust for investment purposes and deposit amounts held in any of the
funds comprising the Trust Fund in an interest bearing account in a bank or
similar financial institution (including without limitation the commercial
banking department of the Trustee) on a temporary basis pending either
investment of such amounts or distribution of funds to Plan Participants.
10.050 RIGHTS IN THE TRUST FUND. Nothing in the Plan or in the Trust
Agreement shall be deemed to confer any legal or equitable right or interest in
the Trust Fund in favor of any Participant, Beneficiary or other person, except
to the extent expressly provided in the Plan.
10.060 TAXES, FEES AND EXPENSES OF THE TRUSTEE.
(a) The reasonable fees and expenses of the Trustee (including the
reasonable expenses of the Trustee's counsel), any Investment
Manager and any investment advisor shall be borne by the Company
and shall constitute a charge on the Trust Fund until so paid;
provided, however, that in no event shall the Trust Fund nor the
Company
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(unless the Company is specifically so directed by resolution of
the Company's Board of Directors) pay any such Trustee's,
Investment Manager's or investment advisor's fees or expenses:
(i) for preparation or prosecution of any action against the
Company, the Plan, any member of the Plan Committee or the
Plan Administrator, or
(ii) for the defense or settlement of, or the satisfaction of a
judgment related to, any proceeding arising either out of any
alleged misfeasance or nonfeasance in any person's
performance of duties with respect to the Plan or out of any
alleged wrongful act against the Plan.
All costs and expenses incurred by the Plan Committee, the
Administrative Committee and Plan Administrator shall be paid by
the Company. Neither the Plan Administrator nor the members of the
Plan Committee shall be compensated from the Plan but may be
compensated by the Company for services rendered on behalf of the
Plan.
(b) Brokerage fees, commissions, stock transfer taxes and other charges
and expenses incurred in connection with transactions relating to
the acquisition or disposition of property for or of the Trust
Fund, or distributions therefrom, shall be paid from the Trust
Fund. Taxes, if any, payable by the Trustee on the assets at any
time held in the Trust Fund or on the income thereof shall be paid
from the Trust Fund.
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ARTICLE XI ADMINISTRATION
11.010 GENERAL ADMINISTRATION. Authority to control and manage the operation
and administration of the Plan shall be vested in the Plan Committee except to
the extent that:
(a) the Plan Administrator or the Administrative Committee is allocated
any such authority under the Plan;
(b) any Trustee or Investment Manager hereunder may, pursuant to
Article X, be granted exclusive authority and discretion to manage
and control all or any portion of the assets of the Plan;
(c) the Plan Committee, the Plan Administrator, the Administrative
Committee, the Trustee(s) and the Investment Manager(s) shall
constitute ERISA Named Fiduciaries of the Plan.
11.020 PLAN COMMITTEE. The Board of Directors shall, from time to time,
determine the size of the Plan Committee and appoint its individual members.
The Plan Committee shall act, with or without a meeting, in a manner consistent
with the rules and regulations adopted pursuant to Section 11.060(d).
11.030 PLAN COMMITTEE RECORDS. The Plan Committee shall keep such records and
data as it shall deem appropriate and it shall from time to time file with the
Board of Directors such reports as the latter may request. It shall be a
function of the Plan Committee to keep records of the assets of the Trust Fund,
based upon reports furnished by the Trustee, and the evaluations placed thereon
by the Committee shall be final and conclusive.
11.040 FUNDING POLICY. The Plan Committee shall be responsible for
determining a funding policy of the Plan consistent with the objectives for the
Investment Funds and shall from time to time advise the Trustee and the
Investment Manager of such policy.
11.050 ALLOCATION AND DELEGATION OF DUTIES UNDER PLAN. The Plan Committee,
the Plan Administrator and the Administrative Committee shall each have the
following powers and authorities:
(a) to designate agents to carry out responsibilities relating to the
Plan, other than fiduciary responsibilities; and
(b) to employ such legal, consultant, medical, accounting, clerical and
other assistance as it may deem appropriate in carrying out the
provisions of this Plan including one or more persons to render
advice with regard to any responsibility any Named Fiduciary or any
other fiduciary may have under the Plan.
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<PAGE> 43
11.060 PLAN COMMITTEE POWERS. In addition to any powers and authority
conferred on the Plan Committee elsewhere in the Plan or by law, the Plan
Committee shall have the following powers and authority:
(a) to allocate fiduciary responsibilities, other than trustee
responsibilities (responsibilities under the Trust Agreement to
manage or control the Plan assets) to one or more members of the
Plan Committee or to the Plan Administrator and to designate one or
more persons (other than the Trustee or Investment Manager) to
carry out such fiduciary responsibilities.;
(b) to appoint one or more Investment Managers or investment advisors
(who need not be Investment Managers and who shall not have
authority to manage, acquire, or dispose of Plan assets).
(c) to determine the manner in which the assets of this Plan, or any
part thereof, shall be disbursed by the Trustee, except as relates
to the making and retention of investments; and
(d) to establish rules and regulations from time to time for the
conduct of the Plan Committee's business and for the administration
and effectuation of its responsibilities under the Plan.
11.070 PLAN ADMINISTRATOR. In addition to any powers and authority conferred
on the Plan Administrator elsewhere in the Plan, the Plan Administrator shall
have the following powers and authority:
(a) to administer, interpret, construe and apply this Plan and to
decide all questions which may arise or which may be raised by any
Employee, Participant, Beneficiary, or other person whatsoever, and
the actions or decisions of the Plan Administrator in regard
thereto, or in regard to anything or matter otherwise within his
discretion, shall be conclusive and binding on all Employees,
Participants, Beneficiaries, and other persons whatsoever;
(b) to designate one or more persons, other than the Trustee or the
Investment Manager, to carry out fiduciary responsibilities (other
than trustee responsibilities);
(c) to establish rules and regulations from time to time for the
administration and effectuation of his responsibilities under the
Plan.
The Plan Administrator shall have such other responsibility as is designated by
ERISA as the responsibility of the administrator of the Plan and shall have
such other power and authority as is necessary to fulfill his responsibilities
under ERISA or under the Plan.
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11.080 RELIANCE UPON DOCUMENTS AND OPINIONS. The members of the Plan
Committee, the Administrative Committee, the Plan Administrator, the Board of
Directors and the Company shall be entitled to rely upon any tables,
valuations, computations, estimates, certificates and reports furnished by any
consultants or consulting firms, opinions furnished by legal counsel and
reports furnished by the Trustee. The members of the Plan Committee, the
Administrative Committee, the Plan Administrator, the Board of Directors and
the Company shall be fully protected and shall not be liable in any manner
whatsoever, except as otherwise specifically provided by law, for anything done
or action taken or suffered in reliance upon any such consultant, Trustee or
counsel. Any and all such things done or such actions taken or suffered by the
Plan Committee, the Administrative Committee, the Plan Administrator, the Board
of Directors and the Company shall be conclusive and binding on all Employees,
Participants, Beneficiaries, and other persons whatsoever except as otherwise
specifically provided by law. The Plan Committee, the Administrative Committee
and the Plan Administrator may, but are not required to, rely upon all records
of the Company with respect to any matter or thing whatsoever, and to the
extent they rely thereon, such records shall be conclusive with respect to all
Employees, Participants, and Beneficiaries.
11.090 REQUIREMENT OF PROOF. The Plan Committee, the Plan Administrator, the
Administrative Committee, the Board of Directors or the Company may require
satisfactory proof of any matter under this Plan from or with respect to any
Employee, Participant, or Beneficiary, and no such person shall acquire any
rights or be entitled to receive any benefits under this Plan until such proof
shall be furnished as so required.
11.100 LIMITATION ON LIABILITY.
(a) Except as provided in Part 4 of Title 1 of ERISA, no person shall
be subject to any liability with respect to his duties under the
Plan, unless he acts fraudulently or in bad faith.
(b) No person shall be liable for any breach of fiduciary
responsibility resulting from the act or omission of any other
fiduciary or any person to whom fiduciary responsibilities have
been allocated or delegated, except as provided in ERISA
section 405(a) and 405(c)(2)(A) or (B). No action or
responsibility shall be deemed to be a fiduciary action or
responsibility except to the extent required by ERISA.
11.110 INDEMNIFICATION. To the extent permitted by law, the Company shall
indemnify the Board of Directors, the Plan Administrator, each member of the
Plan Committee, each member of the Administrative Committee and any other
employee of the Company with duties under the Plan against expenses (including
any amount paid in settlement) reasonably incurred by him in connection with
any claims against him by reason of his conduct (except for his willful
misconduct) in the performance of his duties under the Plan.
11.120 MULTIPLE FIDUCIARY CAPACITY. Any person or group of persons may serve
in more than one fiduciary capacity with respect to the Plan.
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11.130 MAILING AND LAPSE OF PAYMENTS. All payments under the Plan shall be
delivered in person or mailed to the last address of the Participant (or, in
the case of the death of the Participant, to that of any other person entitled
to such payments under the terms of the Plan) furnished pursuant to Section
11.150 below. If the Plan Administrator cannot, by making a reasonably
diligent attempt by mail, locate either the Participant or his Beneficiary, as
the case may be, for a period of seven years, such Participant or Beneficiary
shall be presumed dead. If payment cannot be made alternately to the estate of
either and no surviving spouse, child, grandchild, parent, brother or sister of
the Participant or his Beneficiary are known to the Plan Administrator or the
Trustee or, if known, cannot with reasonable diligence be located, the amount
payable shall be retained by the Trustee until the amount can be distributed
pursuant to the provisions of this Plan or of applicable law.
11.140 NON-ALIENATION.
(a) Except as provided in subsection (b), no right or benefit provided
for in the Plan shall be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance
(including garnishment, attachment, execution or levy of any kind
or charge) and any attempt to anticipate, alienate, sell, transfer,
assign, pledge, encumber or charge the same shall be void.
(b) The non-alienation rule of subsection (a) shall not apply to the
creation, assignment, or recognition of a right to any benefit
payable with respect to a Participant pursuant to:
(i) a levy for federal income tax issued against the Participant
by the Internal Revenue Service; or
(ii) a domestic relations order, which the Plan Administrator
determines is a qualified domestic relations order under
section 414(p) of the Code and which requires that the
order's alternate payee (as defined in the said Code section)
will be paid in a lump sum as soon as is practicable
following the order's issuance.
11.150 ADDRESSES. Each Participant shall be responsible for furnishing the
Plan Administrator with his current address and the correct current name and
address of his Beneficiary.
11.160 NOTICES AND COMMUNICATIONS.
(a) All communications from Participants shall be in the manner from
time to time prescribed by the Plan Administrator and shall be
addressed or communicated (including telephonic communications) to
such entity or Company office as may be
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<PAGE> 46
designated by the Plan Administrator, and shall be deemed to have
been given to the Company when received by such entity or Company
office.
(b) Each communication directed to a Participant or Beneficiary shall
be in writing and may be delivered in person or by mail, in which
latter event it shall be deemed to have been delivered and received
by him when so deposited in the United States Mail with postage
prepaid addressed to the Participant or Beneficiary at his last
address of record with the office designated by the Plan
Administrator.
11.170 COMPANY RIGHTS. The Company's rights to discipline or discharge
Employees or to exercise its rights as to incidents and tenure of employment
shall not be affected in any manner by reason of the existence of the Trust
Agreement or the Plan, or any action taken under them.
11.180 PAYMENTS ON BEHALF OF INCOMPETENT PARTICIPANTS OR BENEFICIARIES. In
the event that the Plan Administrator or his designee shall find that any
Participant or Beneficiary to whom a benefit is payable under the terms of this
Plan is unable to care for his affairs because of illness or accident, is
otherwise mentally or physically incompetent, or unable to give a valid
receipt, the Plan Administrator may cause the payment becoming due to such
Participant or Beneficiary to be paid to another person for his benefit without
responsibility on the part of the Plan Administrator, the Plan Committee, the
Administrative Committee, the Company, or the Trustee, to follow the
application of such payment. Any such payment shall be a payment for the
account of the Participant or Beneficiary and shall operate as a complete
discharge of all liability therefor under this Plan of the Trustee, the
Company, the Plan Administrator, the Administrative Committee, and the Plan
Committee.
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ARTICLE XII PARTICIPANT'S CLAIMS
12.010 REQUIREMENT TO FILE CLAIM. A Participant wishing a distribution or
withdrawal from the Plan must present a claim, in such manner and pursuant to
such procedure established by the Plan Administrator, with the person or entity
designated by the Plan Administrator. A claimant who fails to comply with the
manner and procedure designated by the Plan Administrator shall be deemed not
to have made such claim. The person or entity designated by the Plan
Administrator shall approve or deny in writing within thirty (30) days any
claim which has been so presented.
12.020 APPEAL OF DENIED CLAIM.
(a) A Participant whose claim has been denied as set forth in
Section 12.010 may appeal the denial to the Plan Administrator by
filing a written appeal within sixty (60) days of the date of the
denial.
(b) The Participant or his representative shall, for the purpose
of preparation of such appeal, have the right to inspect any
document (including computerized records) relied upon by the Plan
Administrator's representative in denying the claim.
(c) The Plan Administrator or his delegate shall make a final, full and
fair review of any such decision which is appealed. A decision
which is not appealed within the time herein provided shall be
final and conclusive as to any matter which was presented to the
person making such decision.
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ARTICLE XIII AMENDMENT, MERGERS, TERMINATION, ETC.
13.010 AMENDMENT. The Board of Directors may, at any time and from time to
time, amend this Plan in whole or in part. However, except as provided in
Section 15.040 below, no amendment shall be made the effect of which would be:
(a) to cause any contributions paid to the Trustee to be used for or
diverted to purposes other than providing benefits to the
Participants and their Beneficiaries, and defraying reasonable
expenses of administering the Plan, prior to satisfaction of all
liabilities with respect to Participants and their Beneficiaries;
(b) to have any retroactive effect so as to deprive any Participant or
Beneficiary of any benefit to which he would be entitled under this
Plan if his employment were terminated immediately before such
amendment; or
(c) to increase the responsibilities or liabilities of any Trustee or
Investment Manager without its written consent.
13.020 TRANSFER OF ASSETS AND LIABILITIES. The Plan Committee at any time
may, in its sole discretion without the consent of the Participant or his
representative, cause the Trustee to segregate part of the assets of the Trust
Fund into one or more separate trust funds and designate a group of
Participants whose benefits shall be provided solely from each such segregated
fund. The Board of Directors may, in its sole discretion without the consent
of any Participant or his representative, establish a separate plan to cover
any such group of Participants. The initial terms and conditions of any such
plan shall be identical to the extent such terms and conditions affect the
rights of Participants under the Plan. Amendment to the Plan shall not be
necessary to carry out the provisions of this Section 13.020. Any such
transfer of assets and liabilities to another plan shall be expressly
conditioned on the qualification of such plan and trust under section 401(a)
and section 501(a) of the Code.
13.030 MERGER RESTRICTION. Notwithstanding any other provision in this Plan,
the Plan shall not in whole or in part merge or consolidate with, or transfer
its assets or liabilities to any other plan unless each affected Participant in
this Plan would (if the Plan then terminated) receive a benefit immediately
after the merger, consolidation, or transfer which is equal to or greater than
the benefit he would have been entitled to receive immediately before the
merger, consolidation, or transfer (if the Plan had then terminated).
13.040 SUSPENSION OF CONTRIBUTIONS. The Company may, without amendment of the
Plan and without the consent of any Participant or representative of any
Participant, suspend contributions to the Plan as to all or certain
Participants by action of the Board of Directors. In any event, the Company
will suspend contributions at any time when the amount of any contribution by
it would be in excess of the earnings, including retained earnings, of the
Company. Upon a suspension, the
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Plan Committee may, in its sole discretion permit the Trust Fund to continue to
be held by the Trustee, or may segregate one or more parts of the Trust Fund,
as provided in Section 13.020.
13.050 DISCONTINUANCE OF CONTRIBUTIONS. The Company may, by action of the
Board of Directors, without amendment of the Plan and without the consent of
any Participant or representative of any Participant, discontinue such
contributions to the Plan as to all or certain Participants. Upon such
discontinuance the Plan Committee may in its sole discretion segregate one or
more parts of the Trust Fund, as provided in Section 13.020.
13.060 TERMINATION. The Plan Committee may terminate or partially terminate
the Plan at any time. Upon such termination or partial termination of the
Plan, or upon a complete discontinuance of contributions pursuant to Section
13.050 the Accounts of each affected Participant shall become nonforfeitable,
and for this purpose the Company shall contribute to the Company Contribution
Accounts of all Employees who:
(a) have forfeited Units in such Accounts under Articles V and VI
within five (5) years prior to such termination, and,
(b) but for such forfeitures, would have been vested in such forfeited
Units under Section 5.010 on the date of termination of the Plan,
amounts sufficient to restore such forfeitures in the same manner as such
forfeitures could have been restored by such persons under applicable
provisions of the said Articles V and VI. In the event of termination or
partial termination the Plan Committee may, without the consent of any
Participant or other person, (i) permit the Trustee to retain all or part of
the Trust Fund or (ii) distribute all or part of the Trust Fund to the
Participants or their spouses or Beneficiaries.
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ARTICLE XIV STATUTORY LIMITATIONS
14.010 ANNUAL LIMITS OF PARTICIPANTS' ACCOUNT INCREASES.
(a) This Article XIV is intended to conform the Plan to the
requirements of section 415 of the Code, and the regulations issued
thereunder; and shall be administered and interpreted in accordance
with such requirements and regulations; and notwithstanding any
provision of this Plan to the contrary, no amount shall be credited
to any Participant's Account which is in excess of the limitation
imposed by said section 415, as from time to time amended or
replaced.
(b) The amount allocated in each calendar year to any Participant under
the combination of defined contribution plans of all Affiliated
Companies cannot exceed the lesser of $30,000 (or such larger
amount as may be established under section 415(d)(1)(B) of the Code
to reflect an increase in the cost of living) or 25% of the
Participant's total compensation. For purposes of this limitation,
the amount allocated shall be deemed to be comprised of:
(i) Company Contributions and Compensation Deferral Contributions
with respect to the Participant; and
(ii) forfeitures; and
(iii) for all calendar years ending on or prior to
December 31, 1986, the lesser of:
(1) one half of the Participant's Compensation Deduction
Contributions; or
(2) the Participant's Compensation Deduction Contributions
in excess of 6% of his total compensation from the
Company or an Affiliated Company; and
(iv) for each calendar year commencing on or after
January 1, 1987, the Participant's Compensation Deduction
Contributions; and
(v) for each calendar year commencing on or after
January 1, 1993, the Participant's Compensation Deduction
Contributions.
14.020 LIMITS AS TO COMBINED PLANS. In the case of a Participant who also is
a participant in a defined benefit pension plan which is or was maintained by
the Company or an Affiliated Company and to which section 415 of the Code
applies, the limitation set forth herein shall be further adjusted in
compliance with section 415(e) of the Code. In making such adjustment, the
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<PAGE> 51
maximum benefit allowable shall be paid hereunder before applying the
limitations on the defined benefit plan.
14.030 COMBINING SIMILAR PLANS. For purposes of this Article, all defined
contribution plans which are required to be aggregated under section 414(b) of
the Code shall be so aggregated and the limitation set forth herein shall be
applied to the total amounts allocated under all such plans.
14.040 ADJUSTMENT TO DEFERRAL CONTRIBUTIONS. To the extent the Compensation
Deferral Contributions elected by a Participant under Section 2.020(a)(i)
would, if made, cause the total amount allocated to a Participant in any
calendar year to exceed the limitations set forth in this Article, such amount
shall be paid as compensation to the Participant and shall be contributed to
the Plan by the Participant as Compensation Deduction Contributions to the full
extent permitted under this Article and Section 2.030.
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ARTICLE XV MISCELLANEOUS
15.010 BENEFITS PAYABLE ONLY FROM TRUST FUND. All benefits payable hereunder
shall be provided solely from the trust, and the Company assumes
no responsibility for the acts of the Trustee, except as provided in the
Trust Agreement.
15.020 REQUIREMENT FOR RELEASE. Any payment to any Participant or a
Participant's present, future or former spouse or Beneficiary in accordance
with the provisions of this Plan shall, to the extent thereof, be in full
satisfaction of all claims against the Trustee and the Company, and the Trustee
may require such Participant or Beneficiary, as a condition precedent to such
payment to execute a receipt and release to such effect.
15.030 TRANSFERS OF STOCK. Transfers of Common Stock from the Trustee
pursuant to Article V or VI shall be made as soon as practicable, but neither
the Company, any Named Fiduciary nor the Trustee shall have any responsibility
for any decrease in the value of such stock between the Valuation Date used for
determination of the number of shares to which the Participant is entitled and
the date of transfer by the transfer agent, nor, except as provided in Articles
V and VI, shall the Participant receive any dividends, rights, options or
warrants on such stock other than those payable to stockholders of record as of
a date on or after the date of transfer.
15.040 QUALIFICATION OF THE PLAN. The Company intends to preserve the
qualification with and approval by the Internal Revenue Service of the Plan as
a plan, Company Contributions to which are deductible by the Company for
federal income tax purposes. Continuation of the Plan is contingent upon and
subject to retaining such approval of the Commissioner of Internal Revenue as
the Company may find necessary to establish the continued deductibility for
income tax purposes of the Company Contributions under the Plan. Any
modification or amendment of the Plan or the Trust Agreement may be made
retroactively by the Company, if necessary or appropriate, to qualify or
maintain the Plan and the Trust as a plan and trust meeting the requirements of
applicable sections of the Code and of other federal and state laws, as now in
effect or hereafter amended or enacted.
15.050 INTERPRETATION. The masculine gender shall include the feminine and
the singular shall include the plural unless the context clearly indicates
otherwise.
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<PAGE> 53
ARTICLE XVI TENDER OFFERS: PLAN ADMINISTRATION
16.010 APPLICABILITY. The provisions of this Article XVI shall take effect
only as of the date of the first tender or deposit by the Trustee of any share
of Common Stock pursuant to any Tender Offer (as herein defined) in accordance
with the Trust Agreement, and shall remain in effect thereafter unless and
until (a) each share of Common Stock held in Stock Fund A or Stock Fund B which
has been tendered or deposited in accordance with the Trust Agreement, pursuant
to such Tender Offer or any subsequent Tender Offer commenced while the
provisions of this Article XVI are in effect has been effectively withdrawn by
or otherwise returned to the Trustee and (b) the certificate representing each
share is in the possession of the Trustee.
16.020 ADDITIONAL DEFINITIONS. While the provisions of this Article XVI are
in effect:
(a) the term "Sub Fund A" shall mean the fund established by the
Trustee pursuant to Section 16.030(a)(i); and
(b) the term "Sub Fund B" shall mean the fund established by the
Trustee pursuant to Section 16.030(a)(ii).
16.030 ESTABLISHMENT AND INVESTMENT OF SUB FUND A AND SUB FUND B. While the
provisions of this Article XVI are in effect:
(a) The Trustee shall establish:
(i) A Sub Fund A consisting of any cash, securities or other
consideration received by the Trustee as payment for shares
of Common Stock previously held in Stock Fund A which were
tendered or deposited in accordance with the Trust Agreement,
all property purchased therewith and the proceeds and income
therefrom; and
(ii) A Sub Fund B consisting of any cash, securities or other
consideration received by the Trustee as payment for shares
of Common Stock previously held in Stock Fund B which were
tendered or deposited in accordance with the Trust Agreement,
all property purchased therewith and the proceeds and income
therefrom.
(b) The Trustee shall use all cash in Sub Fund A and Sub Fund B only to
purchase the kinds of instruments of debt with maturity of not more
than three years in which the Trustee and any Investment Manager
may invest and reinvest the principal and income of the Fixed
Income Fund and shall so invest and reinvest the principal thereof
and income thereon. Dividends, income and other distributions
received on,
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<PAGE> 54
and proceeds from the sale or other disposition of, any securities
or other consideration held by the Trustee for Participants in
Sub Fund A or Sub Fund B pursuant to a tender or deposit of shares
of Common Stock in accordance with the Trust Agreement, shall be
similarly invested and reinvested.
(c) The funding policy of the Plan determined by the Plan Committee
pursuant to Section 11.040 shall be consistent with the objectives
for Sub Fund A and Sub Fund B.
16.040 MAINTENANCE AND VALUATION OF SUB FUND A AND SUB FUND B. While the
provisions of this Article XVI are in effect:
(a) A separate Account representing each Participant's interest in Sub
Fund A and Sub Fund B under the Participant's Company Contribution
Account, Compensation Deferral Account and Compensation Deduction
Account, as applicable, shall be maintained. Such separate
Accounts shall contain sufficient information to permit with
respect to Sub Fund A and Sub Fund B a determination of the dollar
balance of such Participant's Accounts at any time in accordance
with the Unit valuation described in subsections (b), (c) and (d)
hereof. Such separate Accounts shall contain sufficient
information to permit such other determinations as may be required
to carry out the provisions of this Plan.
(b) The interest of each Participant in Sub Fund A and Sub Fund B shall
be represented by Units allocated to his Accounts. The initial
value of each Unit to be allocated to his Accounts in respect of
amounts held by the Trustee in Sub Fund A or Sub Fund B shall be
One Dollar ($1.00), and Units shall be credited to each Participant
on such basis for amounts received by the Trustee on his behalf
prior to the first Valuation Date following the first receipt by
the Trustee of cash, securities or other consideration for shares
of Common Stock previously representing his interest in Stock Fund
A which were tendered or deposited in accordance with the Trust
Agreement, in the case of Sub Fund A, and the first Valuation Date
following the first receipt by the Trustee of cash, securities or
other consideration for shares of Common Stock previously held in
his Accounts in Stock Fund B which were tendered or deposited in
accordance with the Trust Agreement, in the case of Sub Fund B.
Each receipt on behalf of a Participant of cash, securities or
other consideration for shares of Common Stock previously
representing his interest in Stock Fund A which were tendered or
deposited in accordance with the Trust Agreement, or each payment
to a Participant from Sub Fund A, and each receipt on behalf of a
Participant by the Trustee of cash, securities or other
consideration for shares of Common Stock previously held in his
Accounts in Stock Fund B which were tendered or deposited in
accordance with the Trust Agreement, or each payment to a
Participant from Sub Fund B, shall result in a credit or charge to
the
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<PAGE> 55
affected Account of the Participant equal to the number of Units
received or paid as the case may be.
(c) As of the Valuation Date immediately following the first deposit
into Sub Fund A or Sub Fund B, as the case may be, and as of each
succeeding Valuation Date, an amount equal to the fair market value
of all property in each such Sub Fund shall be determined by the
Trustee in such manner and on such basis as it shall deem
appropriate. Such amount shall be divided by the total number of
Units credited to all Participants in each such Sub Fund, thereby
establishing a new Unit Value. With respect to each such Sub Fund,
each receipt therein or payment therefrom after such Valuation Date
shall be converted to Units by dividing such new Unit value into
the amount of such receipt or payment and the affected Account of
the Participant shall be credited or charged, as the case may be,
with the portion of the number of Units so computed properly
attributable to such Participant.
(d) As of any specified date, the dollar balance of the individual
Accounts of each Participant in Sub Fund A and Sub Fund B shall be
determined in the same manner as under Section 4.040 (but using for
such determination amounts received by the Trustee in respect of
Sub Fund A and Sub Fund B in lieu of contributions).
(e) The Participant's Account in Stock Fund A shall be reduced as of
each date on which the Trustee receives cash, securities or other
consideration for shares of Common Stock previously representing
some or all of his interest in Stock Fund A which were tendered or
deposited in accordance with the Trust Agreement, by the number of
Units which bears the same relation to the number of Units credited
to such Account immediately prior to the tender or deposit of such
shares as the portion of his interest in Stock Fund A in respect of
which such shares were tendered bore to his entire interest in
Stock Fund A immediately prior to the tender or deposit of such
shares.
(f) The Participant's Accounts in Stock Fund B shall be reduced as of
each date on which the Trustee receives cash, securities or other
consideration for shares of Common Stock previously held in such
Accounts which were tendered and deposited in accordance with the
Trust Agreement, by the number of such shares which were
so tendered or deposited.
16.050 BENEFITS PAYABLE FROM SUB FUNDS AT TERMINATION OF EMPLOYMENT. While
the provisions of this Article XVI are in effect:
(a) For purposes of Section 5.010, each Unit representing a
Participant's interest in Sub Fund A that results from the
crediting to the Participant's Account in Sub Fund A of cash,
securities or other consideration received by the Trustee pursuant
to the tender or deposit in accordance with the Trust Agreement, of
shares of Common
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<PAGE> 56
Stock previously representing his interest in Stock Fund A shall be
deemed attributable to Company Contributions made on the
Participant's behalf which resulted in the credit to his Account in
Stock Fund A of a Unit in respect of such interest.
(b) For purposes of Section 5.020(a):
(i) The full dollar balance of the Participant's accounts in Sub
Fund A and Sub Fund B shall be deemed to be described in
paragraph (iii) thereof, and such balance shall be deemed to
be an amount that the Participant (or his Beneficiary in the
case of death) shall receive under paragraph (i) thereof.
Such balance shall be determined, in the manner provided by
Section 16.040(d), by reference to the Units in each such
account on the date of the Participant's termination of
employment for any reason set forth in Section 5.020(a), and
the value of each Unit on the Valuation Date coinciding with
or immediately preceding such date.
(ii) The amounts set forth in subparagraphs (1) and (2) of
paragraph (iii) of Section 5.020(a) shall be amounts that the
Participant (or his Beneficiary in the case of death, shall
receive under paragraph (i) thereof; provided, however, that
no share of Common Stock representing a Participant's
interest in Stock Fund A or held in such Participant's
Accounts in Stock Fund B which, as of the date of such
Participant's termination of employment for any reason set
forth in Section 5.020(a), has been tendered or deposited in
accordance with the Trust Agreement, shall be transferred to
such Participant (or his Beneficiary in the case of death)
pursuant to paragraph (i) of Section 5.020(a) unless and
until such share has been effectively withdrawn by or
otherwise returned to the Trustee and the certificate
representing such share is in the possession of the Trustee;
and provided, further, however, that there shall be paid or
transferred to such Participant (or his Beneficiary in the
case of death) any and all cash, securities or other
consideration received by the Trustee for whole shares of
Common Stock previously representing such Participant's
interest in Stock Fund A or held in such Participant's
Accounts in Stock Fund B as of the Valuation Date immediately
preceding the date of such termination and which were
tendered or deposited in accordance with the Trust Agreement,
as soon as practicable after the receipt of such cash,
securities or other consideration by the Trustee.
(c) If the Participant's employment is terminated for any reason other
than those reasons set forth in Sections 5.020 or 5.030, the
Participant shall receive as soon as practicable:
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<PAGE> 57
(i) The vested portion of the dollar balance of his account in
Sub Fund A and the full dollar balance of his Accounts in
Sub Fund B. Such balances shall be determined, in the manner
provided in Section 16.040(d), by reference to the Units in
each such Account on the date of such termination and the
value of each Unit on the Valuation Date coinciding with or
immediately preceding such date.
(ii) The amounts set forth in paragraphs (i) through (iv) of
Section 5.050(a); provided, however, that no share of Common
Stock representing such Participant's vested interest in
Stock Fund A or held in such Participant's Accounts in Stock
Fund B which, as of the date of such termination, has been
tendered or deposited in accordance with the Trust Agreement,
shall be transferred to such Participant after the date of
such termination unless and until such share has been
effectively withdrawn by or otherwise returned to the Trustee
and the certificate representing such share is in the
possession of the Trustee; and provided further, however,
that there shall be paid or transferred to such Participant
any and all cash, securities or other consideration received
by the Trustee for whole shares of Common Stock previously
representing such Participant's vested interest in Stock Fund
A or held in such Participant's Accounts in Stock Fund B as
of the Valuation Date immediately preceding the date of such
termination and which were tendered or deposited in
accordance with the Trust Agreement, as soon as practicable
after the receipt of such cash, securities or other
consideration by the Trustee.
16.060 DISTRIBUTIONS FROM THE PLAN UNDER SECTION 6.010. While the provisions
of this Article XVI are in effect:
(a) The amount paid or transferred to a Participant who elects a
distribution in accordance with Section 6.010 shall be determined
in the same manner as under Section 16.050(c) (except that the date
of receipt of the election shall be used for such determination in
lieu of the date of termination and except that the Participant's
Compensation Deferral Account and the related portion of his
Company Contribution Account, if any, shall not be distributable).
(b) As soon as practicable after an Employee makes a repayment
described in Section 6.030, there shall be credited to the
Employee's Company Contribution Account a dollar amount as set
forth in Section 6.030(c)). To the extent that the dollar amount to
be credited to his Company Contribution Account relates to shares
of Common Stock previously representing his interest in Stock Fund
A for which the Trustee received cash, securities or other
consideration pursuant to the tender or deposit thereof in
accordance with the Trust Agreement, such dollar amount shall be
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<PAGE> 58
allocated to Sub Fund A. At the same time, the Employee's
Compensation Deduction Account shall be credited with a dollar
amount, and such amount shall be allocated to the funds and any
accounts under the Guaranteed Return Fund, as set forth in Section
6.030(c); provided, however, that, if the Participant makes a
repayment in respect of shares of Common Stock previously held in
his Compensation Deduction Account in Stock Fund B for which the
Trustee received cash, securities or other consideration pursuant
to the tender or deposit thereof in accordance with the Trust
Agreement, a dollar amount equal to the amount of such repayment
shall be allocated to the Participant's Compensation Deduction
Account in Sub Fund B. The amounts credited under this
subsection (b) shall vest, and, for purposes of this
subsection (b), the balance of the Participant's Company
Contribution Account shall be determined, as set forth in the
penultimate and last sentences of Section 6.030(d).
16.070 WITHDRAWALS FROM DEDUCTION ACCOUNTS UNDER SECTION 6.030. While the
provisions of this Article XVI are in effect:
(a) For purposes of Section 6.030(c), withdrawals pursuant to this
subsection (a) shall be taken from the Employee's Accounts in the
Investment Funds in a pro rata fashion, based upon the relative
size of the said Accounts. Any withdrawal from his Accounts in the
Guaranteed Return Fund shall be taken in reverse sequence by first
exhausting his Accounts in the most recent contracts under such
Fund. An Employee may, however, elect to have any such withdrawal
taken first from his Account in Stock Fund B, with any additional
withdrawal amount to be taken from his Accounts in the remaining
Investment Funds.
(b) For purposes of subsection (c) of Section 6.030, as soon as
practicable after a Participant makes a repayment described in such
subsection, there shall be credited to the Participant's Company
Contribution Account a dollar amount as set forth in the first
sentence of such subsection immediately following paragraph (iv)
thereof. To the extent that the dollar amount to be credited to
his Company Contribution Account relates to shares of Common Stock
previously representing his interest in Stock Fund A for which the
Trustee received cash, securities or other consideration pursuant
to the tender or deposit thereof in accordance with the Trust
Agreement, such dollar amount shall be allocated to Sub Fund A. At
the same time, the Participant's Compensation Deduction Account
shall be credited with a dollar amount equal to the amount repaid
by the Participant to such Account, and such amount shall be used
to purchase Units and shall be allocated to the funds and any
accounts under the Guaranteed Return Fund, as set forth therein;
provided, however, that, if the Participant makes a repayment in
respect of shares of Common Stock previously held in his
Compensation Deduction Account in Stock Fund B as to which a
withdrawal election was made and for which the Trustee received
cash, securities or other consideration pursuant to the tender or
deposit thereof in accordance with the Trust Agreement, a dollar
amount equal to the amount of such repayment shall be allocated to
the Participant's Compensation Deduction Account
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<PAGE> 59
in Sub Fund B. The amounts credited under this subsection (b)
shall vest as set forth in the last sentence of Section 6.030(c).
(c) Partial withdrawals pursuant to Section 6.030(d) shall be in a
minimum amount of $100 with respect to Sub Fund B.
16.080 WITHDRAWALS FROM DEFERRAL ACCOUNTS UNDER SECTION 6.030. While the
provisions of this Article XVI are in effect, For purposes of Section 6.030,
withdrawals, in minimum amounts of $100 shall be taken from the Employee's
Accounts in the Investment Funds in a pro rata fashion, based upon the relative
size of the said Accounts. Any withdrawal from his Accounts in the Guaranteed
Return Fund shall be taken in reverse sequence by first exhausting his Accounts
in the most recent contracts under such Fund. An Employee may, however, elect
to have any such withdrawal taken first from his Account in Stock Fund B, with
any additional withdrawal amount to be taken from his Accounts in the remaining
Investment Funds.
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<PAGE> 60
ARTICLE XVII TOP HEAVY PROVISIONS
17.010 DEFINITIONS. For purposes of this Article, the following special
definitions shall apply:
(a) "Top Heavy Plan" shall mean a qualified retirement plan, including
this Plan if applicable, which is included in, or which
constitutes, an Aggregation Group under which, as of the
Determination Date, the sum of the present values of accrued
benefits for all Key Employees under all defined benefit plans in
the Aggregation Group and the aggregate of all accounts of Key
Employees under all defined contribution plans in the Aggregation
Group exceeds sixty percent (60%) of the sum of the present values
of accrued benefits under all such defined benefit plans and of all
accounts under all such defined contribution plans for all
participants under such plans.
(b) "Key Employee" shall mean each Employee or former Employee who has,
at any time during the five (5) year period ending on the
Determination Date, performed services for an Affiliated Company
and who is, at any time during the plan year ending on the
Determination Date, or was, during any one of the four plan years
preceding the plan year ending on the Determination Date, any one
or more of the following.
(i) An officer of the Company having annual compensation greater
than fifty percent (50%) of the amount in effect under Code
section 415(b)(1)(A) for any plan year;
(ii) One of the ten (10) persons having annual compensation from
all Affiliated Companies greater than the limitation in
effect under Code section 415(c)(1)(A) and owning (or
considered as owning within the meaning of Code section 318,
as modified by Code section 416(i)(B)(iii)), the largest
interests in the Company;
(iii) Any person owning (or considered as owning within the meaning
of Code section 318, as modified by Code
section 416(i)(B)(iii)), more than five percent (5%) of the
outstanding stock of the Company (or stock having more than
five percent (5%) of the total combined voting power of all
stock of the Company) (a "5 Percent Owner"); or
(iv) Any person who has annual compensation of more than one
hundred fifty thousand dollars ($150,000) and would be
described in subsection (3) above, if "one percent (1%)" was
substituted for "five percent (5%)".
For purposes of determining whether a person is an officer in
paragraph (i) above, in no event will more than fifty (50)
Employees or, if less than fifty (50) Employees,
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<PAGE> 61
the greater of three (3) Employees or ten percent (10%) of all
Employees, be considered Key Employees solely by reason of officer
status. In addition, persons who are merely nominal officers will
not be treated as officers solely by reason of their titles.
(c) "Determination Date" shall mean the last day of the immediately
preceding plan year or, in the case of the first plan year of any
plan, the last day of such plan year.
(d) "Employee" shall mean not only an Employee as defined in Article I,
but shall also include any beneficiary of such Employee.
(e) "Aggregation Group" shall mean a group of plans (including this
Plan) maintained by one or more Affiliated Companies in which a Key
Employee is a participant or which is combined with this Plan in
order to meet the coverage and nondiscrimination requirements of
Code sections 410 and 401(a)(4). The Aggregation Group shall also
include those plans other than this Plan which need not be
aggregated with this Plan to meet Code Requirements, but which are
selected by the Company to be part of a selective Aggregation Group
which shall include this Plan if the Aggregation Group would
continue to meet the requirements of Code sections 401(a)(4)
and 410 with such plans being taken into account.
(f) "Non-Key Employee" shall mean any employee who is not a Key
Employee. Non-Key Employee shall also mean an employee who is a
former Key Employee.
17.020 APPLICATION OF THIS ARTICLE. In the event that this Plan is or becomes
a Top Heavy Plan, the following special provisions shall become applicable to
this Plan and shall supersede the comparable provisions contained elsewhere in
this Plan.
(a) Minimum Contribution. The Plan, where aggregated with each other
defined contribution plan in the Aggregation Group in which a Key
Employee is a participant, shall provide a minimum allocation to
the account of each Participant who is not a Key Employee for each
plan year to which these rules apply equal to the lesser of:
(i) four percent (4%) of such Participant's compensation (subject
to the provisions of Section 17.030), or
(ii) the highest percentage of contribution made for the plan year
to a Participant who is a Key Employee for such plan year.
(b) Vesting. A Participant's nonforfeitable right to his Company
Contribution Account shall be not less than the amount determined
pursuant to the following schedule:
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<PAGE> 62
<TABLE>
<CAPTION>
Years of Service Vested Interest
------------------------ ---------------
<S> <C>
Less than two 0%
Two but less than three 20%
Three but less than four 40%
Four but less than five 60%
Five or more 100%
</TABLE>
If the Plan ceases to be a Top Heavy Plan the vesting schedule set
forth in Section 5.010(a) shall again become applicable; provided
that a Participant's nonforfeitable right to his Company
Contribution Account shall not be less than his nonforfeitable
right to the balance of his Company Contribution Account
immediately before the Plan ceased to be a Top Heavy Plan; and
provided further that any Participant who at the time the Plan
ceased to be a Top Heavy Plan had been an Employee on the last day
of at least three (3) plan years following his becoming an Employee
shall be permitted irrevocably to elect to remain under the vesting
schedule set forth in this subsection (b) in lieu of the vesting
schedule set forth in Section 5.010(a).
(c) Maximum Compensation. For any plan year in which the Plan is a Top
Heavy Plan, only the first two hundred thousand dollars ($200,000)
of each Participant's annual compensation will be taken into
account for purposes of determining benefits under the Plan,
provided that such dollar amount shall be automatically adjusted as
prescribed by the Secretary of the Treasury.
17.030 ADJUSTMENT OF LIMITATION ON ANNUAL BENEFIT. If for any plan year
the Plan becomes "super top heavy" (i.e., by substituting "90%" for "60%" in
Section 17.010(a)), the percentage described in Section 18.020(a)(i) shall be
changed to three percent (3%), and Section 14.020 shall be applied in
accordance with the requirements of Code section 416(h)(1) (i.e., by
substituting "90%" for "60%" in Section 17.010(a)).
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<PAGE> 63
APPENDIX A
PROCEDURES, TERMS AND CONDITIONS OF LOANS
ELIGIBILITY FOR LOANS. The individuals eligible to obtain loans from the Plan
("Borrowers") are limited to:
(1) Employees, and
(2) non-Employees who are "parties in interest" (as defined in section
3(14) of ERISA)
who have Plan Account balances. An Employee who wishes to obtain a loan must
be employed on an active payroll of an Affiliated Company at the time of the
loan application. A party in interest who is not an Employee will be eligible
to obtain a loan only if an agreement can be provided by the party's current
employer to deduct and remit the required loan repayments to the Savings Plan.
LIMITATION ON NUMBER AND MINIMUM AMOUNT OF LOANS. Only one (1) loan to a
Borrower is permitted to be outstanding from all Company sponsored savings
plans at any one time. Any Borrower who has an outstanding loan from the Plan
will be required to repay that loan in full before applying for another loan.
Each loan which is approved must be for a minimum of $1,000.
MAXIMUM AMOUNT OF LOAN. The amount which a Borrower will be permitted to borrow
from the Plan is based on the aggregate value of the Borrower's Accounts,
determined in accordance with Section 4.030 of the Plan, and may not exceed the
least of the amounts described in subsections (a), (b) and (c) of Section 6.070
of the Plan. The maximum amount of any loan will be further limited to ensure
that, after applying the appropriate interest rate and taking into account all
applicable deductions, the resulting periodic repayments will not exceed the
Borrower's net earnings. The deductions referred to in the preceding sentence
include statutory withholdings, deductions for employee benefits and all
pre-tax contributions to the Plan, but exclude credit union, savings bond,
charitable contribution and other similar deductions.
LOAN APPLICATIONS. Loan applications by prospective Borrowers will be made via
telephone to the Plan Administrator or such third party administrator as may be
designated by the Plan Administrator (either of whom is hereafter referred to
as the "Loan Administrator"). The Loan Administrator will then review the
telephonic application and determine eligibility for the loan. If the loan is
approved, the Loan Administrator will prepare and forward to the Borrower a
letter notifying the Borrower of the approval, together with a Truth in Lending
Statement and a check for the loan amount, all in form approved by the Plan
Administrator. The Borrower's endorsement of the loan check will be considered
to be the Borrower's agreement to the terms of the loan. Failure by the
Borrower to endorse the check within thirty (30) days after the date of the
check will be deemed to be a withdrawal by the Borrower of the loan
application.
SOURCE OF LOAN FUNDS. Each loan will be funded by withdrawing the required
amounts from the Plan Account(s) of the Borrower in the following order:
A-1
<PAGE> 64
First -- from the Borrower's Compensation Deferral Account; and
Second -- from the Borrower's Compensation Deduction Account.
Subject to the provisions of the following paragraph, the loan amount will be
funded by the Borrower's Investment Funds in the applicable Accounts, in a pro
rata fashion, based upon the relative size of the balance of each such Fund in
the Accounts.
Alternatively, a Borrower may elect to have the loan funded first from the
Borrower's interest in Stock Fund B, with any additional funding to be on a pro
rata basis from the remaining Investment Funds.
Any pro rata loan funding from the Borrower's interest in the Guaranteed Return
Fund will be taken in reverse sequence by accessing the Fund's contracts on a
last-in first-out basis.
To the extent a loan is made against the Borrower's Stock Fund B Account, the
Borrower will receive cash in lieu of shares of Common Stock. The Trustee will
not be permitted to sell shares of Common Stock in order to provide the cash
with which to finance loan applications.
If, at any time, the Trustee does not have sufficient cash on hand to finance
all outstanding loan applications, processing of each application for which
sufficient cash is not available will be deferred until sufficient cash becomes
available to process such loans on a first-come, first-serve basis.
DETERMINATION OF LOAN INTEREST RATE. The interest rate to be charged for loans
will be one percent (1%) over the prime rate, which is defined for this
Appendix as the base rate on corporate loans posted by at least seventy-five
percent (75%) of the largest thirty (30) U.S. banks, as such rate is identified
in the edition of The Wall Street Journal published on the last business day of
the month prior to the approval of a loan.
TERM OF LOANS. Loans will be permitted for terms of 12, 24, 36, 48 or 60
months for loans other than those for the purpose of purchasing a primary
residence, which will be permitted for a term of 120 months.
REPAYMENTS. Loan repayments by Employees will be deducted from the Employee's
pay check each pay period. If a pay check is insufficient to cover the full
amount of the loan repayment, no deduction will be made, and the repayment will
be deducted from the Employee's next pay check. Loan repayment schedules for
Borrowers who are not Employees will be developed on an individual basis, but
will parallel as closely as possible the loan repayment schedules for
Employees.
PREPAYMENTS. The full unpaid balance of a loan may be prepaid at any time by a
Borrower. Partial prepayments in excess of scheduled payroll deductions will
not be accepted. No prepayments will be accepted within twelve (12) months
after the date of the loan, unless the Borrower is an Employee and terminates
employment within such twelve (12) month period.
A-2
<PAGE> 65
MISSED PAYMENTS. If any payment is not made, interest will continue to accrue
on such missed payment and subsequent payments will be applied first to accrued
and unpaid interest on the missed payment and then to principal. A notice will
be mailed to the last known address of the Borrower stating that if three (3)
consecutive months of payments are missed, the loan will be considered to be in
default.
TERMINATION OF EMPLOYMENT. If a Borrower who is an Employee terminates
employment or is on an unpaid leave of absence, or if a Borrower who is not an
Employee is no longer able to repay a loan through payroll deductions, the
Borrower may continue to make loan repayments by personal check. Such
repayments to the Plan will be made through the Loan Administrator at an
address to be provided to the Borrower by the Loan Administrator.
DEFAULT. A loan will be considered to be in default after three (3)
consecutive months of payments have been missed during the term of the loan or
when a Borrower revokes a payroll deduction authorization. In the event of
such a default, a distribution of the loan amount, including both unpaid
principal and accrued but unpaid interest, will be deemed to have occurred (as
described in section 1.401(k)-1(d)(6)(ii) of the Treasury Regulations) and an
information return reflecting the tax consequences, if any, to the Borrower
will be issued. Upon the occurrence of an event permitting actual distribution
of the Borrower's Account pursuant to the provisions of Code section 401(k)
(whether distribution of the Borrower's entire Plan Account will actually be
made or will be deferred pursuant to applicable provisions of the Plan), the
unpaid balance of a defaulted loan will be charged off against the Borrower's
Account. If no distribution event has occurred, which would otherwise permit
payment to the Borrower under Code section 401(k), the unpaid balance of the
loan will be retained in the Account until such time as payment would be
permitted under that Code section, at which time the unpaid balance of the
loan, including any accrued and unpaid interest, will be charged off against
the Borrower's Account.
A-3
<PAGE> 1
Exhibit 4-d
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
by and between
THE EMPLOYEE BENEFIT COMMITTEE
of
ROCKWELL INTERNATIONAL CORPORATION
and
FIRST INTERSTATE BANK OF CALIFORNIA
MASTER DEFINED CONTRIBUTION TRUST AGREEMENT
<PAGE> 2
THIS MASTER TRUST AGREEMENT made and entered into on
this ____________ day of ______________, 1995, effective as of
_____________________, 19 , by and between the Employee
Benefit Committee of Rockwell International Corporation
(hereinafter referred to as the "Benefit Committee"), and First
Interstate Bank of California, a California corporation having
its principal place of business at Los Angeles, California
(hereinafter referred to as the "Master Trustee"),
WITNESSETH:
WHEREAS, the Benefit Committee has the power to appoint
trustees, select Investment Managers, adopt and establish an
investment method or policy, and approve, execute, amend and
terminate trust agreements with respect to all defined
contribution plans of the Controlled Group; and
WHEREAS, the Benefit Committee desires to establish a
master trust which will serve as a funding medium for eligible
employee benefit plans of the Corporation; and
WHEREAS, the Master Trustee is willing to act as Master
Trustee of such trust upon all of the terms and conditions
hereinafter set forth; and
WHEREAS, the Benefit Committee and the Master Trustee
wish to amend those trust agreements referred to in Appendix A
hereto (the "Prior Agreements") so that this Agreement shall be
deemed to supersede all such Prior Agreements and so that all the
separate trusts established by the Prior Agreements shall be
deemed consolidated into the master trust established hereby;
<PAGE> 3
NOW, THEREFORE, the Benefit Committee and the Master
Trustee declare and agree that the Master Trustee will receive,
hold and administer all sums of money and such other property
acceptable to Master Trustee as shall from time to time be
contributed, paid or delivered to it hereunder, IN TRUST, upon
all of the following terms and conditions.
SECTION 1
---------
General
-------
1.1 DEFINITIONS. Where used in this Agreement, unless the
context otherwise requires or unless otherwise expressly
provided:
(a) "Account Party" shall mean a delegate of the Benefit
Committee designated to represent the Benefit Committee for this
purpose, the Plan Administrator and any Person to whom the Master
Trustee shall be instructed by the Benefit Committee to deliver
its annual account under Section 12.2.
(b) "Accounting Period" shall mean either the twelve
consecutive month period coincident with the calendar year or, if
different, the fiscal year of the Plans or the shorter period in
any year in which the Master Trustee accepts appointment as
Master Trustee hereunder or ceases to act as Master Trustee for
any reason.
(d) "Agreement" shall mean all of the provisions of this
instrument and of all other instruments amendatory hereof.
(e) "Asset Manager" shall mean the Master Trustee, Benefit
Committee or other Named Fiduciary or Investment Manager,
individually or collectively as the context shall require, with
respect to those assets held in an Investment Account over which
it exercises, or to the extent it is authorized to exercise,
discretionary investment authority or control.
(f) "Bank business day" shall mean a day on which the Master
Trustee is open for business.
(g) "Board of Directors" shall mean the Board of Directors of
the Corporation.
(h) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and Regulations issued thereunder.
(i) "Controlled Group Member" shall mean the Corporation and
any subsidiaries or affiliates which are members of a controlled
group of corporations, a group of trades or businesses under
common control, or an affiliated service group (as defined in
Code sections 414(b), (c), and (m), respectively), or the
Corporation and any entity with which it must be aggregated
pursuant to Code section 414(o) and the regulations thereunder.
(j) "Corporation" shall mean Rockwell International
Corporation, a Delaware corporation.
-2-
<PAGE> 4
(k) "Directed Fund" shall mean any Investment Account, or part
thereof, subject to the discretionary management and control of
the Benefit Committee or any other Named Fiduciary or any
Investment Manager.
(l) "Discretionary Fund" shall mean any Investment Account, or
part thereof, subject to the discretionary management and control
of the Master Trustee.
(m) "ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and Regulations issued
thereunder.
(n) "Fund" shall mean all cash and property contributed, paid
or delivered to the Master Trustee hereunder, all investments
made therewith and proceeds thereof and all earnings and profits
thereon, less payments, transfers or other distributions which,
at the time of reference, shall have been made by the Master
Trustee, as authorized herein. The Fund shall include all
evidences of ownership, interest or participation in an
Investment Vehicle, but shall not, solely by reason of the Fund's
investment therein, be deemed to include any assets of such
Investment Vehicle.
(o) "Insurance Contract" shall mean any contract or policy of
any kind issued by an insurance company, whether or not providing
for the allocation of amounts received by the insurance company
thereunder solely to the general account or solely to one or more
separate accounts (including separate accounts maintained for the
collective investment of qualified retirement plans), or a
combination thereof, and whether or not any such allocation may
be made in the discretion of the insurance company or the Benefit
Committee.
(p) "Investment Account" shall mean each pool of assets in the
Master Trust in which one or more Plans has an interest during an
Accounting period.
(q) "Investment Manager" shall mean a bank, insurance company
or investment adviser satisfying the requirements of ERISA
section 3(38) which has provided the Master Trustee with written
acknowledgment of compliance with ERISA.
(r) "Investment Vehicle" shall mean any common, collective or
commingled trust, investment company, corporation functioning as
an investment intermediary, insurance contract, partnership,
joint venture or other entity or arrangement to which, or
pursuant to which, assets of the Master Trust may be transferred
or in which the Master Trust has an interest, beneficial or
otherwise (whether or not the underlying assets thereof are
deemed to constitute "plan assets" for any purpose under ERISA).
(s) "Master Trust" shall mean the trust created hereby.
(t) "Named Fiduciary" shall mean the Benefit Committee and such
other fiduciaries with respect to the Plans within the meaning of
ERISA section 402(a)(2), 402(c)(3) or 403(a)(1) who has the
authority to perform the separate functions allocated to the
"Named Fiduciary" under this Agreement.
(u) "Participating Employer" shall mean the Corporation and any
Controlled Group Member which has adopted this Master Trust with
consent of the Board of Directors.
-3-
<PAGE> 5
(v) "Plan" or "Plans" shall mean any employee benefit plan of a
Participating Employer which meets the requirements for
eligibility specified in Section 1.3 and as of the date of this
Agreement includes those plans listed in Appendix B.
(w) "Plan Administrator" shall mean the Person designated by
the Corporation in accordance with the terms of the Plans who is
responsible for benefit administration under the Plans.
(x) "Person" shall mean a natural person, trust, estate,
corporation of any kind or purpose, mutual company, joint-stock
company, unincorporated organization, association, partnership,
joint venture, employee organization, committee, board,
participant, beneficiary, Master Trustee, partner, or venturer
acting in an individual, fiduciary or representative capacity, as
the context may require.
(y) "Qualifying Employer Security" shall mean the employer
securities as defined in ERISA section 407(d).
(z) "Valuation Date" shall mean the last day of the Accounting
Period, calendar quarter or any more frequent reporting date
agreed to by the Master Trustee.
The plural of any term shall have a meaning corresponding to the
singular thereof as so defined and any neuter pronoun used herein
shall include the masculine or feminine, as the context shall
require.
1.2 COMPLIANCE WITH LAW. The Trust hereinafter established is
intended to comply with ERISA and to be tax exempt under Code
section 501(a).
1.3 ELIGIBILITY. Any employee benefit plan established or
maintained by a Participating Employer may be funded, in whole or
in part, through the Master Trust if (i) the plan is qualified
under Code section 401(a), (ii) the Master Trust is exempt from
taxation under Code section 501(a), and (iii) this Agreement has
been duly adopted by the board of directors of the Participating
Employer with the consent of the Corporation.
SECTION 2
---------
Establishment of Trust
----------------------
2.1 ESTABLISHMENT OF TRUST. The Benefit Committee hereby
establishes with the Master Trustee the Master Trust consisting
of such sums of money and such property acceptable to the Master
Trustee as shall from time to time be paid or delivered to the
Master Trustee.
2.2 CONTRIBUTIONS TO THE TRUST. The Master Trustee shall have
no duty to determine or collect contributions under any Plan and
shall be solely accountable for moneys or properties actually
received by it. The Benefit Committee shall have the sole duty
and responsibility for the determination of the accuracy or
sufficiency of the contributions to be made under any of the
Plans of a Participating Employer, the transmittal of the
contributions to the Master Trustee and compliance with any
statute, regulation or rule applicable to contributions.
2.3 PRIOR ADMINISTRATION. The Master Trustee shall not have
any duty to inquire into the administration of the Plans or
actions taken under any of the Plans by any prior trustee.
-4-
<PAGE> 6
2.4 FUND TO BE HELD IN TRUST. The Fund shall be held by the
Master Trustee in trust and dealt with in accordance with the
provisions of this Agreement and ERISA.
2.5 FUND TO BE HELD FOR BENEFIT OF PLAN PARTICIPANTS. Except
as may be provided by law for the purpose of returning any of a
Participating Employer's contributions or in case any Plan of
which this Master Trust forms a part provides for the return of a
Participating Employer's contributions in the event such Plan
fails to initially qualify under the applicable provisions of the
Code, at no time prior to the satisfaction of all liabilities for
benefits of any plans under the Master Trust shall any part of
the Fund be used for or diverted to purposes other than for the
exclusive benefit of participants, retired participants, or their
beneficiaries under the Plans and for, the payment of the
reasonable expenses of the Plans.
2.6 COMMINGLING. The Master Trustee may commingle the assets
attributable to the Plans for which contributions are made under
this Agreement if this Agreement is applicable to more than one
Plan and may commingle the Fund with funds of other trusts of
similar nature created by the Corporation or the Benefit
Committee for the exclusive benefit of participants, retired
participants or their beneficiaries. Where commingling is
effected with other trusts maintained by the Corporation or the
Benefit Committee, the combined trust, to the extent that assets
are attributable to contributions made under this Agreement,
shall be the Fund referred to herein. The Master Trustee shall
maintain such records as are necessary in order to maintain a
separation of the Fund from the funds of the other trusts
maintained by the Corporation or the Benefit Committee and to
separate the assets attributable to each of the Plans for which
contributions are made under this Agreement. The Corporation
shall be responsible for causing sufficient records to be
maintained to insure that benefits and liabilities payable with
respect to each Plan shall be paid from the assets allocable to
each such Plan. Should separation be required, either of the
Fund from other trusts maintained by the Corporation, or the
Benefit Committee, or of any Plan for which contributions are
made under this Agreement from the Fund, the Master Trustee shall
make such separation in accordance with generally accepted
accounting principles and, where applicable, upon the
certification of an actuary.
SECTION 3
---------
Administration of the Plan
--------------------------
3.1 PLAN ADMINISTRATOR. The Plans shall be administered by the
Plan Administrator who shall have the sole fiduciary duty as to
plan administration and the Master Trustee shall not be
responsible in any respect for such administration.
SECTION 4
---------
Disbursement from the Fund
--------------------------
4.1 DISBURSEMENTS BY MASTER TRUSTEE. The Master Trustee shall
make such payments out of the Fund as the Plan Administrator or
its delegate(s) may from time to time in writing direct. In the
discretion of the Plan Administrator, such payments may be made
directly to the person specified by the Plan Administrator or
deposited in a checking account maintained by the Plan
Administrator for the purpose of making payments to the person,
or persons entitled to such payments under the Plans, or to an
account maintained by some other entity which the Plan
Administrator may designate to make payments.
-5-
<PAGE> 7
4.2 DIRECTION TO THE MASTER TRUSTEE. Any direction given to
the Master Trustee in accordance with this Section need not
specify the specific application of the payment to be made, but
shall specify that the payment is for the purposes of the Plans
or the payment of Plans' expenses.
SECTION 5
---------
Allocation of Investment Responsibilities
-----------------------------------------
5.1 ASSET MANAGERS. (a) The Benefit Committee will from time
to time, in its sole discretion, appoint one or more Asset
Managers to manage specified portions of the Fund. Upon the
appointment of each Asset Manager, the Benefit Committee shall so
notify the Master Trustee and instruct the Master Trustee in
writing to separate into a separate account those assets as to
which each Asset Manager has discretion and control. The Asset
Manager shall designate in writing the person or persons who are
to represent any such Asset Manager in dealings with the Master
Trustee. Upon the separation of the assets in accordance with
the instructions of the Benefit Committee, the Master Trustee
shall thereupon be relieved and released of all investment
duties, responsibilities and liabilities normally and statutorily
incident to a Master Trustee as to such Directed Funds, and, as
to such Directed Funds, the Master Trustee shall act as
custodian. Except as otherwise provided by the Benefit Committee
in writing from time to time, the Master Trustee shall take no
action as to such Directed Funds with respect to the duties or
powers allocated to an Asset Manager in Section 6 or Section 7
without receipt of written directions of the Asset Manager.
Unless specifically prohibited in writing, the Master Trustee, as
custodian, may hold the assets of such Directed Funds in the name
of a nominee or nominees.
(b) Should an Asset Manager at any time elect to place security
transactions directly with a broker or dealer, the Master Trustee
shall not recognize such transaction unless and until it has
received instructions or confirmation of such fact from the Asset
Manager. Should the Asset Manager direct the Master Trustee to
utilize the services of any person with regard to the assets
under its management or control, such instructions shall be in
writing and shall specifically set forth the actions to be taken
by the Master Trustee as to such services.
(c) In the event that an Asset Manager places security
transactions directly or directs the utilization of a service,
the Asset Manager shall be solely responsible for the acts of
such persons. The sole duty of the Master Trustee as to such
transactions shall be incident to its duties as custodian.
5.2 TRANSFER OF ASSETS TO ASSET MANAGERS. (a) Upon receipt of
written directions by the Benefit Committee, the Master Trustee
shall (i) transfer and deliver such part of the assets of the
Fund as may be specified in such writing to any Asset Manager so
appointed, and (ii) accept the transfer back to it of any such
assets at any time held by an Asset Manager, provided that the
Benefit Committee may only direct such transfers as are in
conformity with the provisions of the Plans, this Agreement, and
ERISA, and Code sections 401(a) and 501(a). Any such written
direction shall constitute a certification to the Master Trustee
by the Benefit Committee that the transfer so directed is one
which the Benefit Committee is authorized to direct and is in
conformity with the aforesaid provisions.
(b) If any assets are so transferred to the custody of an Asset
Manager, such Asset Manager shall undertake and be responsible
for all the custodial duties therefor, and such assets shall
remain for all purposes a part of the Fund and the Master Trust,
and as such,
-6-
<PAGE> 8
subject to all the terms and provisions of this Agreement. Any
Asset Manager receiving such assets may invest any part or all of
such assets in units of any collective, common or pooled trust
fund operated or maintained by a bank or trust company, including
the Investment Manager or any affiliate of the Investment Manager,
exclusively for the commingling and collective investment of
moneys or other assets held under or as part of a plan which is
established in conformity with and qualifies under Code section
401(a). Notwithstanding the provisions of this Agreement which
place restrictions upon the actions of the trustee, or the Asset
Manager, to the extent moneys or other assets are utilized to acquire
units of any collective trust, the terms of the collective trust
indenture shall solely govern the investment duties, responsibilities
and powers of the Master Trustee of such collective trust, and
to the extent required by law, such terms, responsibilities and
powers shall be incorporated herein by reference and shall be part
of this Agreement. For the purposes of valuation of any interest
under the Plans of which this Master Trust forms a part, the value of
the interest maintained by the Fund in such collective trust shall
be the fair market value of the collective fund units held
determined in accordance with generally recognized valuation
procedures.
(c) The Master Trustee shall have no duty or responsibility as
to the safekeeping of such assets or as to the investment and
reinvestment of the same, except that the Master Trustee shall
require such statements and reports from such Asset Manager as
may be necessary to enable the Master Trustee and the Plan
Administrator to carry out their recordkeeping and reporting
duties under this Agreement. The Master Trustee shall enter into
and execute such agreements, receipts and releases as shall be
required to carry out the directions of the Benefit Committee
with respect to the transfer of any assets of the Fund to or from
an Asset Manager in accordance with this Section 5.2.
5.3 THE MASTER TRUSTEE. Subject to investment policies,
objectives and guidelines set forth in Section 6.1 or
communicated to the Master Trustee by the Benefit Committee as
contemplated by this Section 5, the Master Trustee shall from
time to time invest and reinvest the Discretionary Fund described
in Appendix D and keep it invested in accordance with the terms
of this Agreement and such policies, objectives and guidelines.
SECTION 6
---------
Investment Accounts
-------------------
6.1 ESTABLISHMENT OF INVESTMENT ACCOUNTS. The Benefit
Committee shall direct the Master Trustee to establish on its
books and records accounts sufficient to accommodate investment
options, available to the employees. The Benefit Committee shall
establish an investment purpose for each account, either by
separate written designation or through an agreement between the
Benefit Committee and the Master Trustee that shall incorporate
therein the investment purposes and, if applicable, the
investment restrictions which the Plan provides as to investment
options. The Master Trustee shall initially establish and
maintain such investment funds as described in Appendix D.
Should the Benefit Committee direct the Master Trustee to
establish additional special investment accounts or funds, the
Benefit Committee shall direct the Master Trustee as to the
nature and objectives that such account or fund is to achieve.
The Benefit Committee, in the manner provided in Section 15.1,
may delegate to a special investment committee the power to
direct the general investment philosophy as to such special
accounts or funds. In the investment of any special account or
fund, the Master Trustee may utilize all or any part of the
-7-
<PAGE> 9
collective investment fund provided in subsection 7.3(g) in the
same manner and according to the same terms as therein set forth.
6.2 QUALIFYING EMPLOYER SECURITIES. All amounts received by
the Master Trustee which are directed by the Benefit Committee to
be placed in an account which has as its investment purpose
investment in Qualifying Employer Securities or any amount
received by the Master Trustee as a result of holding such
Qualifying Employer Securities shall be invested in accordance
with the provisions of Appendix D dealing with Qualifying
Employer Securities.
6.3 ALLOCATION OF CONTRIBUTIONS. The Benefit Committee shall,
upon the making of any contribution to this Master Trust by a
Participating Employer, or, if applicable, a Participant, or
both, instruct the Master Trustee in writing of the manner that
such contribution is to be allocated between the funds or
accounts previously established. In addition, from time to time
the Benefit Committee may direct the Master Trustee to transfer
moneys from any of the funds or accounts to be credited to
another. The Master Trustee, as promptly as possible, shall
comply with the directions of the Benefit Committee. The Master
Trustee is specifically authorized to establish such additional
funds or accounts for the purpose of investment as the Benefit
Committee shall direct from time to time. The Master Trustee is
further authorized to transfer from any such fund or existing
fund or funds any and all amounts as may be directed by the
Benefit Committee from time to time.
6.4 RESPONSIBILITY OF MASTER TRUSTEE. The Master Trustee shall
not be responsible nor liable to establish or maintain a record
or account in the name of any individual Participant. The Master
Trustee shall not be required to establish the value of any
Participant's individual interest in the Fund or any account
established hereunder. Should the Master Trustee and the Benefit
Committee or the Corporation agree that the Master Trustee shall
maintain individual account records, such agreement shall be
separate and apart from the terms of this Trust. Such an
agreement shall not be construed as implying any duty upon the
Master Trustee hereunder even though the Master Trustee, in its
corporate capacity as record keeper for the accounts of
individual participants, shall have the right, power or duty to
issue instructions or directions as to the disposition or
distribution of any assets held hereunder.
6.5 ACCOUNTS AS SEPARATE TRUSTS. For the purposes of
application of this Agreement, each fund or account created
hereunder shall be considered a separate trust insofar as the
application of powers granted the Master Trustee.
Notwithstanding the provisions of this Agreement which
establishes powers and duties with regard to the Master Trust as
a whole, the Master Trustee shall exercise such of those powers
as are consistent with the investment purposes of each account.
Where applicable or required, the Master Trustee with the Benefit
Committee's consent may subdivide any account as may be required
to fulfill either its duties hereunder or the instructions of the
Benefit Committee.
SECTION 7
---------
Investment of the Fund
----------------------
7.1 STANDARD OF CARE. The Master Trustee, each Asset Manager,
the Benefit Committee and any other Named Fiduciary shall
discharge their respective investment duties as provided under
Sections 5 and 6 hereof with the care, skill, prudence and
diligence under the circumstances then prevailing that a prudent
man acting in like capacity and familiar with such matters would
use in the conduct of an enterprise of a like character with like
aims and by diversifying the investments held hereunder
consistent with investment policies, objectives and
-8-
<PAGE> 10
guidelines so as to minimize the risk of large losses,
unless it would be clearly not prudent to diversify.
7.2 WAIVER OF INVESTMENT RESTRICTIONS. Such investment and
reinvestment shall not be restricted to securities or property of
the character authorized for investments by Master Trustees or
asset managers under any statute or other laws of any state,
district or territory.
7.3 GRANT OF INVESTMENT POWERS. In addition to any power
granted to trustees or asset managers under any statute or other
laws, such laws and statutes if necessary being incorporated
herein by reference, the Master Trustee's, and each Asset
Manager's investment powers may, unless restricted in writing by
the Benefit Committee, include, but shall not be limited to,
investment in the following:
(a) domestic or foreign common and preferred stocks and options
thereon, as well as warrants, rights and preferred stocks
convertible into common stock, regardless of where or how traded;
(b) corporate bonds and debentures and any such securities
which are convertible into common stock, domestic or foreign;
(c) bonds or other obligations of the United States of America
or any foreign nation, and any agencies thereof, or any bonds or
other obligations which are directly or indirectly guaranteed by
the United States or any foreign nation, or any agency thereof;
(d) notes of any nature, of foreign or domestic issuers;
(e) savings accounts, certificates of deposit and other types
of time deposits, bearing a reasonable rate of interest based
upon the duration, amount, type and geographical area, with any
financial institution or quasi-financial institution or any
department of the same, either domestic or foreign, under the
supervision of the United States or any State, including any such
financial institution owned, operated or maintained by the Master
Trustee in its corporate or association capacity (including any
department or division of the same) or a corporation or
association affiliated with the same;
(f) any collective or common trust fund or composite security
owned, operated and maintained by the Master Trustee, including,
but not limited to, demand notes, short-term notes and cash
equivalent funds;
(g) any collective, common or pooled trust fund operated or
maintained exclusively for the commingling and collective
investment of moneys or other assets of employees' pension and
profit sharing trusts exempt from tax under Code section 501(a)
by reason of qualifying under Code section 401(a) including any
such fund operated or maintained by the Master Trustee.
Notwithstanding the provisions of this Agreement which place
restrictions upon the actions of the Master Trustee or an
Investment Manager, to the extent moneys or other assets are
utilized to acquire units of any collective trust, the terms of
the collective trust indenture shall solely govern the investment
duties, responsibilities and powers of the trustee of such
collective trust and, to the extent required by law, such terms,
responsibilities and powers shall be incorporated herein by
reference and shall be part of this Agreement. For purposes of
valuation, the value of the interest maintained by the Fund in
such collective trust shall be the fair market value of the
collective fund units held, determined in accordance with
generally recognized valuation procedures;
-9-
<PAGE> 11
(h) individual or group insurance policies and contracts
including, but not limited to, life insurance, annuity (fixed or
variable) and investment policies and contracts, but only if
directed by the Benefit Committee or another Named Fiduciary, as
appropriate, to purchase or retain such policies and contracts.
7.4 MAINTENANCE OF CASH BALANCES. The Master Trustee shall
keep such portion of the Fund in cash or cash balances as may be
specified from time to time in a written request from the Plan
Administrator or as required by the Benefit Committee to meet
contemplated payments from the Fund. The Master Trustee shall
invest such cash balances and any other portions of the Fund
which may be in cash or cash balances in accordance with such
investment policies, objectives and guidelines as may be
communicated to the Master Trustee from time to time by the
Benefit Committee pursuant to Section 5. The Master Trustee
shall not be liable for interest on any reasonable cash balances
so maintained.
SECTION 8
---------
Powers of the Master Trustee,
Asset Managers and the Named Fiduciary
--------------------------------------
8.1 QUALIFYING EMPLOYER SECURITIES ACCOUNTS. With respect to
accounts established to invest in Qualifying Employer Securities,
the Master Trustee shall act only in accordance with the
procedures set forth in the Plans, Appendix D, and with respect
to the right to vote, the right to tender in the event of a
tender offer or the exercise of certain other rights concerning
such securities, Appendix E.
8.2 GENERAL POWERS. As to all assets other than Qualifying
Employer Securities, the Master Trustee shall have and exercise
the following powers and authority in the administration of the
Fund only on the direction of an Asset Manager and the Benefit
Committee where such powers and authority relate to a Directed
Fund and in its sole discretion where such powers and authority
relate to a Discretionary Fund:
(a) to purchase, receive or subscribe for any securities or
other property and to retain in trust such securities or other
property;
(b) to sell, exchange, convey, transfer, lend, or otherwise
dispose of any property held in the Fund and to make any sale by
private contract or public auction; and no person dealing with
the Master Trustee shall be bound to see to the application of
the purchase money or to inquire into the validity, expediency or
propriety of any such sale or other disposition;
(c) to vote in person or by proxy any stocks, bonds or other
securities held in the Fund;
(d) to exercise any rights appurtenant to any such stocks,
bonds or other securities for the conversion thereof into other
stocks, bonds or securities, or to exercise rights or options to
subscribe for or purchase additional stocks, bonds or other
securities, and to make any and all necessary payments with
respect to any such conversion or exercise, as well as to write
options with respect to such stocks and to enter into any
transactions in other forms of options with respect to any
options which the Fund has outstanding at any time;
(e) to join in, dissent from or oppose the reorganization,
recapitalization, consolidation, sale or merger of corporations
or properties of which the Fund may hold stocks, bonds or other
securities or in which it may be interested, upon such terms and
conditions as deemed wise, to
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<PAGE> 12
pay any expenses, assessments or subscriptions in connection
therewith, and to accept any securities or property, whether
or not Master Trustees would be authorized to invest in such
securities or property, which may be issued upon any such
reorganization, recapitalization, consolidation, sale or merger
and thereafter to hold the same, without any duty to sell;
(f) to insure, according to customary standards, any property
held in the Fund for any amount and to pay any premiums required
for such coverage;
(g) to purchase or otherwise acquire and make payment therefor
from the Fund any bond or other form of guarantee or surety
required by any authority having jurisdiction over this Trust and
its operation, or believed by the Master Trustee or Asset Manager
to be in the best interests of the Fund, except the Master
Trustee or Asset Manager may not obtain any insurance whose
premium obligation extends to the Fund which would protect the
Master Trustee or Asset Manager against its liability for breach
of fiduciary duty;
(h) to enter into any type of contract with any insurance
company or companies, either for the purposes of investment or
otherwise; provided that no insurance company dealing with the
Master Trustee shall be considered to be a party to this
Agreement and shall only be bound by and held accountable to the
extent of its contract with the Master Trustee. Except as
otherwise provided by any contract, the insurance company need
only look to the Master Trustee with regard to any instructions
issued and shall make disbursements or payments to any person,
including the Master Trustee, as shall be directed by the Master
Trustee. Where applicable, the Master Trustee shall be the sole
owner of any and all insurance policies or contracts issued.
Such contracts or policies, unless otherwise determined, shall be
held as an asset of the Fund for safekeeping or custodian
purposes only;
(i) to lend the assets of the Fund to participants of the Plan.
The Benefit Committee shall have full and exclusive
responsibility for loans made to participants, including, without
limitation, full and exclusive responsibility for the following:
development of procedures and documentation for such loans;
acceptance of loan applications; approval of loan applications;
disclosure of interest rate information required by Regulation Z
of the Federal Reserve Board promulgated pursuant to the Truth in
Lending Act, 15 U.S.C. Section 1601 et seq., compliance with the record
retention requirements promulgated under the Equal Credit
Opportunity Act, 15 U.S.C. Section 1691 et seq. and its implementing
regulation, Regulation B, 12 C.F.R. part 202; acting as agent for
the physical custody and safekeeping of the promissory notes and
other loan documents; performing necessary and appropriate
recordkeeping and accounting functions with respect to loan
transactions; enforcement of promissory note terms, including,
but not limited to, directing the Master Trustee to take
specified actions; and maintenance of accounts and records
regarding interest and principal payments on notes. The Master
Trustee shall not in any way be responsible for holding or
reviewing such documents, records and procedures and shall be
entitled to rely upon such information as is provided by the
Benefit Committee or its own sub-agent or recordkeeper without
any requirement or responsibility to inquire as to the
completeness or accuracy thereof, but may from time to time
examine such documents, records and procedures, as it deems
appropriate.
8.3 SPECIFIC POWERS OF THE MASTER TRUSTEE. The Master Trustee
shall have the following powers and authority, to be exercised in
its sole discretion with respect to the Fund:
(a) to appoint agents, custodians, depositories or counsel,
domestic or foreign, as to part or all of the Fund and functions
incident thereto where, in the sole discretion of the Master
Trustee, such delegation is necessary in order to facilitate the
operations of the Fund and such
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<PAGE> 13
delegation is not inconsistent with the purposes of the Fund
or in contravention of any applicable law. To the extent that
the appointment of any such person or entity may be deemed to
be the appointment of a fiduciary, the Master Trustee may
exercise the powers granted hereby to appoint as such a
fiduciary any person or entity, including, but not limited to,
the Benefit Committee or the Corporation, notwithstanding the
fact that such person or entity is then considered a fiduciary,
a party in interest or a disqualified person within the meaning
of the applicable provisions of ERISA. Upon such delegation,
the Master Trustee may require such reports, bonds or written
agreements as it deems necessary to properly monitor the actions
of its delegate;
(b) to cause any investment, either in whole or in part, in the
Fund to be registered in, or transferred into, the Master
Trustee's name or the names of a nominee or nominees, including
but not limited to that of the Master Trustee, a clearing
company, or a depository, or in book entry form, or to retain any
such investment unregistered or in a form permitting transfer by
delivery, provided that the books and records of the Master
Trustee shall at all times show that such investments are a part
of the Fund; and to cause any such investment, or the evidence
thereof, to be held by the Master Trustee, in a depository, in a
clearing company, in book entry form, or by any other entity or
in any other manner permitted by law;
(c) to make, execute and deliver, as Master Trustee, any and
all deeds, leases, mortgages, conveyances, waivers, releases or
other instruments in writing necessary or desirable for the
accomplishment of any of the foregoing powers;
(d) to defend against or participate in any legal actions
involving the Fund or the Master Trustee in its capacity stated
herein, in the manner and to the extent it deems advisable, the
costs of any such defense or participation to be borne by the
Fund, unless paid by the Corporation in accordance with Section
11; provided however, the Master Trustee shall notify the Benefit
Committee of all such actions and the Benefit Committee may, in
its sole discretion, determine against the incurrence of any such
legal fees and expenses which may be incurred beyond those
necessary to protect the Fund against default or immediate loss
and may participate in the selection of and instructions to legal
counsel;
(e) to form corporations and to create trusts, to hold title to
any security or other property, to enter into agreements creating
partnerships or joint ventures for any purpose or purposes
determined by the Master Trustee to be in the best interests of
the Fund;
(f) to establish and maintain such separate accounts in
accordance with the instructions of the Plan Administrator for
the proper administration of the Plans, or as determined to be
necessary by the Master Trustee. Such accounts shall be subject
to the general terms of this Agreement, unless the Master Trustee
is notified of a contrary intent by the Plan Administrator or the
Benefit Committee in writing; and
(g) to generally take all action, whether or not expressly
authorized, which the Master Trustee may deem necessary or
desirable for the protection of the Fund.
8.4 MAINTENANCE OF INDICIA OF OWNERSHIP. The Master Trustee
shall not maintain indicia of ownership of any asset of the Fund
held by it outside the jurisdiction of the District Courts of the
United States unless such holding is approved through ruling or
regulations promulgated under ERISA by the Secretary of Labor.
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<PAGE> 14
8.5 THIRD PARTY TRANSACTIONS. In addition, and not by way of
limitation, the Master Trustee shall have any and all powers and
duties concerning the investment, retention or sale of property
held in trust as if it were absolute owner of the property, and
no restrictions with regard to the property so held shall be
implied, warranted or sustained by reason of this Agreement;
provided, however, at no time shall the exercise of such powers
and duties establish any evidence which would permit a third
party to assert a right, title or interest superior to that of
the Plans in the property held in the Fund.
SECTION 9
---------
Discretionary Powers
--------------------
9.1 MASTER TRUSTEE GRANTED DISCRETION. The Master Trustee is
hereby granted any and all discretionary powers not explicitly or
implicitly conferred by this Agreement which it may deem
necessary or proper for the protection of the property held
hereunder.
SECTION 10
----------
Prohibited Transactions
-----------------------
10.1 TRANSACTIONS WHICH ARE PROHIBITED. Notwithstanding any
provision of this Agreement, either appearing before or after
this Section, the Master Trustee shall not engage in or cause the
Trust to engage in any transaction if it knows or should know,
that such transaction constitutes a direct or indirect prohibited
transaction, as defined in ERISA section 406 or Code section 4975
except to the extent there exists a statutory or administrative
prohibited transaction exemption.
10.2 PROVISION OF ANCILLARY SERVICES BY MASTER TRUSTEE.
Notwithstanding the foregoing, the Master Trustee may, in
addition to the services rendered in conjunction with its duties
and responsibilities as Master Trustee under the terms of this
Agreement, provide such ancillary services as meet the following
standards:
(a) there have been adopted by the Master Trustee internal
safeguards which assure that such ancillary services are
consistent with sound banking and financial practices as
determined by the appropriate banking authority;
(b) the ancillary services are provided in accordance with
guidelines which are intended to meet the standards established
by the appropriate banking authority; and
(c) the compensation received by the Master Trustee for such
services is reasonable and established in an arm's-length manner.
SECTION 11
----------
Expenses, Compensation and Taxes
--------------------------------
11.1 COMPENSATION AND EXPENSES OF THE MASTER TRUSTEE. The
Master Trustee shall be entitled to such reasonable compensation
for services rendered by it in accordance with the schedule of
compensation as agreed upon by the Benefit Committee and the
Master Trustee from time to time together with all reasonable
expenses incurred by the Master Trustee as a result of the
execution of its duties hereunder, including, but not limited to,
legal and accounting
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<PAGE> 15
expenses, expenses incurred as a result of disbursements and
payments made by the Master Trustee, and reasonable compensation
for agents, counsel or other services rendered to the Master
Trustee by third parties and expenses incident thereto.
11.2 PAYMENT FROM THE FUND.
(a) EXCEPT AS PROVIDED IN PARAGRAPH (b) BELOW, PROPERLY
APPROVED REASONABLE FEES AND EXPENSES OF ANY OF THE FOLLOWING
SHALL BE PAID FROM THE FUND AND SHALL CONSTITUTE A CHARGE ON THE
FUND UNTIL SO PAID: THE MASTER TRUSTEE, ANY OTHER MASTER TRUSTEE,
ANY INVESTMENT MANAGER, ANY FEES FROM THE PLAN'S AUDITORS, ANY
FEES FROM THE PLAN'S RECORDKEEPER, LEGAL FEES, ANY INVESTMENT
ADVISOR AND ANY OTHER COSTS AND FEES RELATED TO THE FUND;
PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE FUND PAY ANY SUCH
FEES OR EXPENSES INCURRED:
(1) FOR PREPARATION OR PROSECUTION OF ANY ACTION AGAINST
THE CORPORATION, THE PLANS, THE PLAN ADMINISTRATOR OR
ANY MEMBER OF THE BENEFIT COMMITTEE, OR
(2) FOR THE DEFENSE OR SETTLEMENT OF, OR THE SATISFACTION
OF A JUDGMENT RELATED TO, ANY PROCEEDING ARISING EITHER
OUT OF ANY ALLEGED MISFEASANCE OR NONFEASANCE IN ANY
PERSON'S PERFORMANCE OF DUTIES WITH RESPECT TO THE
PLANS OR OUT OF ANY ALLEGED WRONGFUL ACT AGAINST THE
PLANS.
NEITHER THE PLAN ADMINISTRATOR NOR ANY MEMBER OF THE
BENEFIT COMMITTEE SHALL BE COMPENSATED FROM THE PLANS BUT MAY BE
COMPENSATED BY THE CORPORATION FOR SERVICES RENDERED ON BEHALF OF
THE PLANS.
THE CORPORATION MAY, IF IT DEEMS NECESSARY, PAY THESE FEES
AND EXPENSES DIRECTLY AND MAY OR MAY NOT SEEK REIMBURSEMENT FROM
THE FUND.
(b) BROKERAGE FEES, COMMISSIONS, STOCK TRANSFER TAXES AND OTHER
CHARGES AND EXPENSES INCURRED IN CONNECTION WITH TRANSACTIONS
RELATED TO THE ACQUISITION OR DISPOSITION OF PROPERTY FOR OR OF
THE MASTER TRUST, INCLUDING ANY PART SEGREGATED IN AN INVESTMENT
MANAGER ACCOUNT, OR DISTRIBUTIONS THEREFROM SHALL BE PAID FROM
THE FUND, INCLUDING ANY PART SEGREGATED IN AN INVESTMENT MANAGER
ACCOUNT. TAXES, IF ANY, PAYABLE BY THE MASTER TRUSTEE ON THE
ASSETS AT ANY TIME HELD IN THE FUND OR ON THE INCOME THEREOF
SHALL BE PAID FROM THE FUND.
(c) THE FREQUENCY OF THE BILLING OF A PARTICULAR EXPENSE, THE
PARTICULAR INVESTMENT ACCOUNT TO BE CHARGED AND THE BASIS OF THE
EXPENSE ALLOCATION SHALL BE GOVERNED BY THE PROVISIONS OF
APPENDIX C; WHICH APPENDIX MAY BE AMENDED, FROM TIME TO TIME, BY
THE BENEFIT COMMITTEE; PROVIDED, HOWEVER, THAT NO SUCH AMENDMENT
SHALL AFFECT EXPENSES CHARGED AGAINST AN INVESTMENT VEHICLE PRIOR
THE MASTER TRUSTEE'S RECEIPT OF NOTICE OF THE AMENDMENT.
11.3 PAYMENT OF TAXES. The Master Trustee shall notify the
Benefit Committee upon receipt of notice with regard to any
proposed tax deficiencies or any tax assessments which it
receives on any income or property in the Fund and, unless
notified to the contrary by the Benefit Committee within thirty
(30) days, shall pay any such assessments. If the Benefit
Committee notifies the Master Trustee within said period that, in
its opinion or the opinion of counsel, such assessments are
invalid or that they should be contested, then the Master
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<PAGE> 16
Trustee shall take whatever action is indicated in the notice
received from the Benefit Committee or counsel, including
contesting the assessment or litigating any claims.
SECTION 12
----------
Accounts, Books and Records of the Fund
---------------------------------------
12.1 RECORDKEEPING DUTY OF MASTER TRUSTEE. The Master Trustee
shall keep accurate and detailed accounts of all investments,
receipts and disbursements and other transactions hereunder, and
all accounts, books and records relating thereto shall be open at
all reasonable times to inspection and audit by any person
designated by the Benefit Committee.
12.2 PERIODIC REPORTS. In addition, within sixty (60) days
following the close of each fiscal year of the Fund, or following
the close of such other period as may be agreed upon between the
Master Trustee and the Benefit Committee, and within one hundred
twenty (120) days, or such other agreed upon period, unless such
period be waived, after the removal or resignation of the Master
Trustee as provided for in this Agreement, the Master Trustee
shall file with the Plan Administrator and the Benefit Committee,
a certified written report setting forth all investments,
receipts and disbursements, and other transactions effected
during the fiscal year or other annual period or during the
period from the close of the preceding fiscal year or other
preceding period to the date of such removal or resignation,
including a description of all securities and investment
purchases and sales with the cost or net proceeds of such
purchases or sales and showing all cash, securities and other
property held at the close of such fiscal year or other period,
valued currently, and such other information as may be required
of the Master Trustee under any applicable law.
12.3 ADDITIONAL ACCOUNTING. Except as provided below, neither
the Plan Administrator, Benefit Committee, the Corporation, nor
any Participating Employer shall have the right to demand or be
entitled to any further accounting different from the normal
accounting rendered by the Master Trustee. Further, no
participant, beneficiary or any other person shall have the right
to demand or be entitled to any accounting by the Master Trustee,
other than those to which they may be entitled under the law.
The Plan Administrator, Benefit Committee, or the Corporation
shall have the right to inspect the Master Trustee's books and
records relating to the Fund during normal business hours or to
designate an accountant to make such inspection, study, and/or
audit with all expenses related thereto to be paid by the
Corporation.
12.4 JUDICIAL DETERMINATION OF ACCOUNTS. Nothing contained
herein will be construed or interpreted to deny the Master
Trustee or the Benefit Committee the right to have the Master
Trustee's account judicially determined.
12.5 LIMITATION OF ACTIONS. Notwithstanding any other provision
of the Plans or this Agreement, the Master Trustee shall not be
subject to any liability for any act or omission, regardless of
its nature, after the expiration of six (6) years commencing with
the day next following the date that any report is filed with the
Secretary of Labor which discloses such error or omission, or, if
earlier, six (6) years after the date a party plaintiff did or
should have had knowledge of such act or omission.
12.6 FILINGS BY THE PLAN ADMINISTRATOR. For the purposes of
this Section, the Master Trustee shall conclusively presume that
the Plan Administrator has made or caused to be made, or will
make or cause to be made, all Federal filings as of the date
required.
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<PAGE> 17
12.7 DETERMINATION OF FAIR MARKET VALUE. The Master Trustee
shall determine the fair market value of the Fund monthly and
annually based upon generally accepted accounting principles
applicable to trusts of a same or similar nature to the one
created herein.
12.8 RETENTION OF RECORDS. All records and accounts maintained
by the Master Trustee with respect to the Fund shall be preserved
for such period as may be required under any applicable law.
Upon the expiration of any such required retention period, the
Master Trustee shall have the right to destroy such records and
accounts after first notifying the Benefit Committee in writing
of its intention and transferring to the Benefit Committee any
records and accounts requested. The Master Trustee shall have
the right to preserve all records and accounts in original form,
or on microfilm, magnetic tape, or any other similar process.
SECTION 13
----------
Fiduciary Duties of Master Trustee
----------------------------------
13.1 ACKNOWLEDGMENT OF FIDUCIARY DUTY. The Master Trustee
acknowledges that it assumes the fiduciary duties established by
this Agreement.
13.2 JUDICIAL DETERMINATION. The Master Trustee shall not,
however, be liable for any loss to or diminution of the Fund
except to the extent that any such loss or diminution results
from act or inaction on the part of the Master Trustee which is
judicially determined to be due to its negligence or a breach of
its fiduciary duties.
SECTION 14
----------
Resignation and Removal
-----------------------
14.1 POWER TO RESIGN OR REMOVE. The Master Trustee may be
removed with respect to all, or a part of, the Fund by the
Benefit Committee, upon written notice to the Master Trustee to
that effect. The Master Trustee may resign as Master Trustee
hereunder, upon written notice to that effect delivered to the
Benefit Committee.
14.2 NOTICE. Such removal or resignation shall become effective
as of the last day of the month which coincides with or next
follows the expiration of ninety (90) days from the date of the
delivery of such written notice, unless an earlier or later date
is agreed upon in writing by the Benefit Committee and the Master
Trustee.
14.3 SUCCESSOR APPOINTMENT. In the event of such removal or
resignation, a successor master trustee, or a separate trustee or
trustees, shall be appointed by the Benefit Committee to become
master trustee, or a separate trustee or trustees, as of the time
such removal or resignation becomes effective. Such successor
master trustee, or separate trustee or trustees, shall accept
such appointment by an instrument in writing delivered to the
Benefit Committee and the Master Trustee and upon becoming
successor master trustee, or separate trustee or trustees, shall
be vested with all the rights, powers, duties, privileges and
immunities as successor master trustee, or separate trustee or
trustees, hereunder as if originally designated as Master
Trustee, or separate trustee or trustees, in this Agreement.
14.4 TRANSFER OF FUND TO SUCCESSOR. Upon such appointment and
acceptance, the retiring Master Trustee shall endorse, transfer,
assign, convey and deliver to the successor master trustee, or
separate trustee or trustees, all of the funds, securities and
other property then held
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<PAGE> 18
by it in the Fund, except such amount as may be reasonable and
necessary to cover its compensation and expenses as may be
agreed to by the Benefit Committee in connection with the
settlement of its accounts and the delivery of the Fund
to the successor master trustee, or separate trustee or
trustees, and the balance remaining of any amount so reserved
shall be transferred and paid over to the successor master
trustee, or separate trustee or trustees, promptly upon
settlement of its accounts, subject to the right of the retiring
Master Trustee to retain any property deemed unsuitable by it for
transfer until such time as transfer can be made.
14.5 RETENTION OF NONTRANSFERABLE ASSETS. If the retiring
Master Trustee holds any property unsuitable for transfer, it
shall retain such property, and as to such property alone it
shall be a trustee with the successor master trustee, or separate
trustee or trustees, its duties and obligations being solely
limited to any such property, and it shall not have fiduciary
duties of any nature as to assets transferred. Should the
successor master trustee, or separate trustee or trustees, accept
fiduciary responsibility as to such property, the Master Trustee
shall retain only custodian duties as to such property.
14.6 ACCOUNTING. In the event of the removal or resignation of
the Master Trustee hereunder, the Master Trustee shall file with
the Benefit Committee a statement and report of its accounts and
proceedings covering the period from its last annual statement
and report, and its liability and accountability to anyone with
respect to the propriety of its acts and transactions shown in
such written statement and report shall be governed by the terms
of this Agreement.
SECTION 15
----------
Actions by the Corporation,
the Plan Administrator or Benefit Committee
-------------------------------------------
15.1 ACTION BY CORPORATION. Any action by the Corporation
pursuant to this Agreement shall, in accordance with
Section 23.1, be evidenced or empowered in writing to the Master
Trustee, and the Master Trustee shall be entitled to rely on such
writing.
15.2 ACTION BY THE PLAN ADMINISTRATOR OR BENEFIT COMMITTEE. Any
action by any person or entity duly empowered to act on behalf of
the Plan Administrator or Benefit Committee with respect to any
rights, powers or duties specified in this Agreement shall be in
writing, signed by such person or by the person designated by the
Plan Administrator or Benefit Committee or any other Named
Fiduciary, and the Master Trustee shall act and shall be fully
protected in acting in accordance with such writing.
SECTION 16
----------
Amendment or Termination
------------------------
16.1 AMENDMENT OR TERMINATION. The Benefit Committee shall have
the right at any time and from time to time by appropriate
action:
(a) to modify or amend in whole or in part any or all of the
provisions of this Agreement upon sixty (60) days' prior notice
in writing to the Master Trustee, unless the Master Trustee
agrees to waive such notice; provided, however, that no
modification or amendment which affects the rights, duties or
responsibilities of the Master Trustee may be made without the
Master Trustee's consent, or
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<PAGE> 19
(b) to terminate this Agreement upon sixty (60) days' prior
notice in writing delivered to the Master Trustee;
provided, further, that no termination, modification or amendment
shall permit any part of the corpus or income of the Fund to be
used for or diverted to purposes other than for the exclusive
benefit of such participants, retired participants and their
beneficiaries, except for the return of Participating Employer
contributions which are allowed by law.
16.2 TERMINATION OF A PLAN. Should the Corporation notify the
Master Trustee of the termination of a Plan by a Participating
Employer, the Master Trustee shall distribute all cash,
securities and other property then held in the Fund with respect
to such Plan, less any amounts constituting charges and expenses
payable from the Fund, on the date or dates specified by the Plan
Administrator to such persons and in such manner as the Plan
Administrator shall direct. In making such distributions, the
Master Trustee shall be entitled to assume that such
distributions are in full compliance with and are not in
violation of any applicable law regulating the termination of any
kind whatsoever arising from any distribution made by the Master
Trustee at the direction of the Plan Administrator as a result of
the termination of this Agreement.
16.3 RETENTION OF NONTRANSFERABLE PROPERTY. The Master Trustee
reserves the right to retain such property as is not, in the sole
discretion of the Master Trustee, suitable for distribution at
the time of termination of this Agreement and shall hold such
property as custodian for those persons or other entities
entitled to such property until such time as the Master Trustee
is able to make distribution. The Master Trustee's duties and
obligations with respect to any property held in accordance with
the above shall be purely custodial in nature and the Master
Trustee shall only be obligated to see to the safekeeping of such
property and make a reasonable effort to prevent deterioration or
waste of such property prior to its distribution. Upon complete
distribution of all property constituting the Fund, this
Agreement shall be deemed terminated.
16.4 TERMINATION IN THE ABSENCE OF DIRECTIONS FROM THE PLAN
ADMINISTRATOR. In the event no direction is provided by the Plan
Administrator with respect to the distribution of a Plan's
portion of the Fund upon termination of this Agreement, the
Master Trustee shall make such distributions as are specified by
the Plan after notice to the Benefit Committee. In the event the
Plan is silent as to the distributions to be made upon
termination of the Plan or the terms of the Plan are inconsistent
with the then applicable law or the Master Trustee cannot obtain
a copy of the most recent Plan, the Master Trustee shall
distribute the Fund to participants and their beneficiaries under
the Plan in an equitable manner that will not adversely affect
the qualified status of the Plan under Code section 401(a) or any
other statute of similar import and that will comply with any
applicable provisions of ERISA regulating the allocation of
assets upon termination of plans such as the Plan. The Master
Trustee, in such case, reserves the right to seek a judicial and
administrative determination as to the proper method of
distribution of the Fund upon termination of this Agreement.
16.5 TERMINATION ON CORPORATE DISSOLUTION. If any Participating
Employer ceases to exist as a result of liquidation, dissolution
or acquisition in some manner, that portion of the Fund
attributable to the Plans of the affected Participating Employer
shall be distributed as provided above upon termination of a Plan
unless a successor to the affected Participating Employer elects
to continue the Plan and this Agreement as provided in this
Agreement.
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<PAGE> 20
SECTION 17
----------
Merger or Consolidation
-----------------------
17.1 MERGER OR CONSOLIDATION OF MASTER TRUSTEE. Any
corporation, or national association, into which the Master
Trustee may be merged or with which it may be consolidated, or
any corporation, or national association, resulting from any
merger or consolidation to which the Master Trustee is a party,
or any corporation, or national association, succeeding to the
trust business of the Master Trustee, shall become the successor
of the Master Trustee hereunder, without the execution or filing
of any instrument or the performance of any further act on the
part of the parties hereto.
17.2 MERGER OR CONSOLIDATION OF CORPORATION OR ANY PARTICIPATING
EMPLOYER. Any partnership or corporation into which the
Corporation or any Participating Employer may be merged or with
which it may be consolidated, or any partnership or corporation
succeeding to all or a substantial part of the business interests
of the Corporation or any Participating Employer may become the
Corporation or any Participating Employer hereunder by expressly
adopting and agreeing to be bound by the terms and conditions of
the Plan and this Agreement and so notifying the Master Trustee
to such effect by submission to the Master Trustee of an
appropriate written document.
17.3 MERGER OR CONSOLIDATION OF PLAN. In the event that the
Benefit Committee authorizes and directs that the assets of
another plan be merged or consolidated with or transferred to a
Plan participating in this Master Trust, the Master Trustee shall
take no action with regard to such merger, consolidation or
transfer until it has been notified in writing that each
participant covered under the plan the assets of which are to be
merged consolidated or transferred will immediately after such
merger, consolidation or transfer be entitled to a benefit either
equal to or then greater than the benefit he would have been
entitled to had the Plan been terminated.
SECTION 18
----------
Acceptance of Master Trust
--------------------------
18.1 ACCEPTANCE BY MASTER TRUSTEE. Master Trustee accepts the
Master Trust created hereunder and agrees to be bound by all the
terms of this Agreement.
SECTION 19
----------
Nonalienation of Master Trust
-----------------------------
19.1 MASTER TRUST NOT SUBJECT TO ASSIGNMENT OR ALIENATION.
Except as heretofore provided, no Participating Employer,
participant or beneficiary of the Plans to which the Master Trust
applies shall have any interest in or right to the assets of this
Master Trust, and to the full extent of all applicable laws, the
assets of this Master Trust shall not be subject to any form of
attachment, garnishment, sequestration or other actions of
collection afforded creditors of a Participating Employer,
participants or beneficiaries. The Master Trustee shall not
recognize any assignment or alienation of benefits unless, and
then only to the extent, written notices are received from the
Plan Administrator.
19.2 PLANS' INTEREST IN MASTER TRUST NOT ASSIGNABLE. The equity
or interest of any participating Plan in the Fund shall not be
assignable.
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<PAGE> 21
SECTION 20
----------
Governing Law
-------------
20.1 GOVERNING LAW. This Agreement shall be construed and
enforced, to the extent possible, according to the laws of the
State of California, and all provisions hereof shall be
administered according to the laws of said State and any federal
laws, regulations or rules which may from time to time be
applicable.
SECTION 21
----------
Parties to Court Proceedings
----------------------------
21.1 ONLY BENEFIT COMMITTEE AND MASTER TRUSTEE NECESSARY. To
the extent permitted by law, only the Master Trustee and the
Benefit Committee shall be necessary parties in any application
to the courts for an interpretation of this Agreement or for an
accounting by the Master Trustee, and no participant under any
Plan of any Participating Employer or other person having an
interest in the Fund shall be entitled to any notice or service
of process. Any final judgment entered in such an action or
proceeding shall, to the extent permitted by law, be conclusive
upon all persons claiming under this Agreement or any Plan.
SECTION 22
----------
Subsidiaries and Affiliates
---------------------------
22.1 ADOPTION OF MASTER TRUST BY SUBSIDIARIES AND AFFILIATES.
Any Controlled Group Member which is now or may hereafter be
organized under the laws of the United States of America, or of
any State or Territory thereof, with the approval of the
Corporation, by resolution of its own board of directors, may
adopt this Agreement, if such subsidiary or affiliate shall have
adopted one or more Plans qualified under Code section 401(a).
If any such Controlled Group Member so adopts this Agreement,
such Controlled Group Member shall be deemed a Participating
Employer hereunder and this Agreement shall establish the trust
for such Plans as are specified by such Participating Employer
and shall constitute a continuation, amendment and restatement of
any prior trust for any such Plans. Furthermore, the assets of
any such Plans may be commingled with the assets of other Plans
held in the Fund pursuant to Section 2.6 hereof. However, the
assets of any Plan so held in the Fund shall not be subject to
any claim arising under any other Plan, the assets of which are
commingled therewith by the Master Trustee for investment
purposes, and under no circumstances shall any of the assets of
one Plan be available to provide the benefits under another Plan.
A separate trust shall be deemed to have been created with
respect to each Plan of such Participating Employer.
22.2 SEGREGATION FROM FURTHER PARTICIPATION. Any Participating
Employer may, at any time, with the consent of the Corporation,
segregate a Plan's trust from further participation in this
Agreement. In such event, such Participating Employer shall file
with the Master Trustee a document evidencing the segregation of
the Plan from the Fund and its continuance of a separate trust in
accordance with the provisions of this Agreement as though such
Participating Employer were the sole creator thereof. In such
event, the Master Trustee shall deliver to itself as Master
Trustee of such separate trust such share of the Fund as may be
determined by the Master Trustee to constitute the appropriate
share of the Fund, as confirmed by the Benefit Committee, then
held in respect of the participating employees of such former
Participating Employer. Such former Participating Employer may
thereafter exercise, in respect of such
-20-
<PAGE> 22
separate trust, all of the rights and powers reserved to the
Benefit Committee under the provisions of this Agreement.
The equitable share of any Plan participating in the Fund
shall be immediately segregated and withdrawn from the Fund
if the Plan ceases to be qualified under Code section 401(a)
and the Corporation shall promptly notify the Master Trustee
of any determination by the Internal Revenue Service that any
such Plan has ceased to be so qualified.
22.3 SEGREGATION OF ASSETS ALLOCABLE TO SPECIFIC EMPLOYEES. The
Plan Administrator may at any time direct the Master Trustee to
segregate and withdraw the equitable share of any such Plan, or
that portion of such equitable share as may be certified to the
Master Trustee by the Plan Administrator as allocable to any
specified group or groups of employees or beneficiaries.
Whenever segregation is required, the Master Trustee shall
withdraw from the Fund such assets as it shall in its absolute
discretion deem to be equal in value to the equitable share to be
segregated. Such withdrawal from the Fund shall be in cash or in
any property held in such Fund, or in a combination of both, in
the absolute discretion of the Master Trustee. The Master
Trustee shall thereafter hold the assets so withdrawn as a
separate trust fund in accordance with the provisions of this
Agreement, which shall be construed in respect of such assets as
if the Participating Employer maintaining such Plan (determined
without regard to whether any subsidiaries or affiliates of such
Participating Employer have joined in such Plan) has been named
as the Benefit Committee hereunder. Such segregation shall not
preclude later readmission to the Fund.
SECTION 23
----------
Authorities
-----------
23.1 CORPORATION. Whenever the provisions of this Agreement
specifically require or permit any action to be taken by "the
Corporation", such action must be authorized by the Board of
Directors. Any resolution adopted by the Board of Directors or
other evidence of such authorization shall be certified to the
Master Trustee by the Secretary or Assistant Secretary of the
Corporation, and the Master Trustee may rely upon any
authorization so certified until revoked or modified by a further
action of the Board of Directors similarly certified to the
Master Trustee.
23.2 PARTICIPATING EMPLOYER. Any action required or permitted
to be taken under this Agreement by a Participating Employer
shall be given by the board of directors thereof in the manner
described in Section 23.1.
23.3 BENEFIT COMMITTEE AND PLAN ADMINISTRATOR. The Benefit
Committee shall furnish the Master Trustee from time to time with
a list of the names and signatures of all Persons (other than the
Benefit Committee): authorized to act as the designee of the
Benefit Committee under Section 1.1, serving as members of the
Benefit Committee; serving as the Plan Administrator; or in any
other manner authorized to issue orders, notices, requests,
instructions and objections to the Master Trustee pursuant to the
provisions of this Agreement. Any such list shall be certified
by the Secretary of the Benefit Committee, and may be relied upon
for accuracy and completeness by the Master Trustee. Each such
Person shall thereupon furnish the Master Trustee with a list of
the names and signatures of those individuals who are authorized,
jointly or severally, to act for such Person hereunder, and the
Master Trustee shall be fully protected in acting upon any
notices or directions received from any of them.
-21-
<PAGE> 23
23.4 INVESTMENT MANAGER. The Benefit Committee shall cause each
Investment Manager to furnish the Master Trustee from time to
time with the names and signatures of those persons authorized to
direct the Master Trustee on its behalf hereunder.
23.5 FORM OF COMMUNICATIONS. Any agreement between the Benefit
Committee and any Person (including an Investment Manager) or any
other provision of this Agreement to the contrary
notwithstanding, all notices, directions and other communications
to the Master Trustee shall be in writing or in such other form,
including transmission by electronic means through the facilities
of third parties or otherwise, specifically agreed to in writing
by the Master Trustee, and the Master Trustee shall be fully
protected in acting in accordance therewith.
23.6 CONTINUATION OF AUTHORITY. The Master Trustee shall have
the right to assume, in the absence of written notice to the
contrary, that no event constituting a change in the Plan
Administrator, or membership of the Benefit Committee or
terminating the authority of any Person, including any Investment
Manager, has occurred.
23.7 NO OBLIGATION TO ACT ON UNSATISFACTORY NOTICE. The Master
Trustee shall incur no liability under this Agreement for any
failure to act pursuant to any notice, direction or any other
communication from any Asset Manager, the Corporation, the Plan
Administrator, the Benefit Committee, or any other Person or the
designee of any of them unless and until it shall have received
instructions in form satisfactory to it.
-22-
<PAGE> 24
SECTION 24
----------
Counterparts
------------
24.1 EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one and the
same instrument and may be sufficiently evidenced by any one
counterpart.
IN WITNESS WHEREOF, the parties hereto, each intending to
be legally bound hereby, have hereunto set their hands and seals
as of the day and year first above written.
THE EMPLOYEE BENEFIT COMMITTEE OF ROCKWELL
INTERNATIONAL CORPORATION - Named Fiduciary
By _________________________________________________
Name:
Title:
ROCKWELL INTERNATIONAL CORPORATION - Plan Sponsor
By _________________________________________________
Name:
Title:
FIRST INTERSTATE BANK OF CALIFORNIA - Master Trustee
By _________________________________________________
Name:
Title:
-23-
<PAGE> 25
Appendix A
Prior Agreements
----------------
Amendatory Trust Agreement effective June 1, 1979 between
Rockwell International Corporation and National Bank of Detroit.
Amendatory Trust Agreement Number Three effective November 9,
1983 between Rockwell International Corporation and First
Interstate Bank of California.
Allen-Bradley Savings Plan Trust Agreement effective December 1,
1992 between Allen-Bradley Company and Gene R. Stevens.
<PAGE> 26
Appendix B
Participating Plans
-------------------
Rockwell International Corporation Savings Plan
Rockwell Retirement Savings Plan for Certain Employees
Allen-Bradley Company Savings Plan for Salaried Employees
Allen-Bradley Company Savings Plan for Hourly Employees
Allen-Bradley Company Savings Plan for IAM Union Employees
<PAGE> 27
Appendix D
Investment Funds
----------------
D.1 To the extent directed by the Benefit Committee, the Master
Trustee shall establish:
(i) A Diversified Fund consisting of all contributions
made by Participants under the Plan prior to March 1,
1971, and all subsequent contributions made by
Participants under the plan and designated pursuant to
provisions of the Plan as applicable from time to time
(including provisions, if any, regarding transfers of sums
between funds), as contributions to the Diversified Fund
and all contributions made by a Participating Employer to
match contributions deducted from the Participant's
compensation prior to March 1, 1969; all property
purchased therewith and the proceeds and income of such
contributions and property; and
(ii) A Fixed Income Fund consisting of all
contributions made by Participants under the Plan
subsequent to March 1, 1971, and designated pursuant to
provisions of the Plan as applicable from time to time
(including provisions, if any, regarding transfers of sums
between funds), as contributions to the Fixed Income Fund,
all property purchased therewith and proceeds and income
of such contributions and property; and
(iii) A Stock Fund A consisting of all cash and
Qualifying Employer Securities of the Corporation or a
Controlled Group Member contributed by the Corporation or
a Participating Employer to match contributions deducted
from the Participant's compensation on or after March 1,
1969, and the proceeds and income therefrom; and
(iv) A Stock Fund B consisting of all contributions
made by Participants under the Plan and designated
pursuant to provisions of the Plan as applicable from time
to time (including provisions, if any, regarding transfers
of sums between funds), as contributions to the Stock Fund
B, all Qualifying Employer Securities purchased therewith
and proceeds and income therefrom; and
(v) A Guaranteed Return Fund consisting of all
contributions made by Participants under the Plan and
designated pursuant to provisions of the Plan as
applicable from time to time as contributions to the
Guaranteed Return Fund (including provisions, if any,
regarding transfers of sums between funds), any interest
in a guaranteed return contract or contracts with an
insurance company or companies acquired therewith and any
other proceeds therefrom.
D.2 To the extent directed by the Benefit Committee, the
Master Trustee shall from time to time:
(i) Subject to the terms of the Agreement, invest
and reinvest the principal and income of the Diversified
Fund, without direction and without distinction between
principal and income of said Diversified Fund, which has
not been segregated in an Investment Manager Account or
accounts, in every kind of property (real, personal or
mixed, and every kind of investment, specifically
including, but not by way of limitation, corporate
obligations of every kind and stocks preferred or common)
which men of prudence, acting in a like capacity and
familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims, as the
Master Trustee
<PAGE> 28
shall in its discretion determine, provided
that the Master Trustee shall not invest such principal
and income in any security issued by the Corporation or a
Controlled Group Member. Notwithstanding any other
provision of this Appendix D, up to 10% of the
contributions made after March 1, 1969, to the Diversified
Fund may, to the extent directed by the Benefit Committee,
be invested by the Master Trustee in any special
investment fund maintained by the Master Trustee designed
to offer unusual possibilities for growth and capital
investment, and specifically within the contemplation
hereof, and notwithstanding any other provision of this
instrument, the persons, natural or legal, who control the
investments of this Trust, may cause any part or all of
the assets of this Trust to be invested collectively with
the money and other assets of trust created by others by
causing such money and other assets to be invested as part
of any common, collective or commingled trust fund, as the
same may have heretofore been or may hereafter be
established by the Master Trustee, which is qualified
under the provisions of Code section 401(a) and exempt
under the provisions of Code section 501(a), as the same
may be amended. The money and other assets of this Trust
so added to any such common, collective or commingled
trust fund maintained by the Master Trustee shall be
subject to all of the provisions of the Agreement, as the
same may be amended, under which any such common,
collective or commingled trust fund shall be maintained,
and for the period of any such collective investment of
assets of this Trust such Agreement, as the same may be
amended, shall constitute a part of this instrument. The
Master Trustee shall have the sole responsibility with
respect to selecting, making and retaining investments;
and
(ii) Invest and reinvest the principal and income of
the Fixed Income Fund without direction and without
distinction between principal and income of said Fixed
Income Fund, in the following kinds of instruments of debt
with maturity of not more than three years: treasury bills,
treasury notes, treasury bonds, federal agency obligations,
other instruments of federal, state and local government
debt, bankers acceptances and bank certificates of deposit,
and cash equivalents including short-term fixed income
commingled and collective investment funds of banks, but the
Master Trustee shall not invest such principal and income in
any instrument of debt issued by the Corporation or a
Controlled Group Member. The Master Trustee shall have the
sole responsibility with respect to selecting, making and
retaining investments, and
(iii) Use all cash in the Stock Fund A only to
purchase Qualifying Employer Securities. Purchases may be
made from or through any source (other than the Corporation
or a Controlled Group Member) including a Participant.
Rights, options or warrants offered to purchase Qualifying
Employer Securities shall be exercised by the Master Trustee
in his discretion but only to the extent that there is cash
available in the Stock Fund A for investment. To the extent
they are not exercised, the same shall be sold on the open
market. Rights, options or warrants to purchase securities
of the Corporation or a Controlled Group Member other than
Qualifying Employer Securities shall be sold by the Master
Trustee on the open market; and
(iv) Use all cash in the Stock Fund B only to purchase
Qualifying Employer Securities. Purchases may be made from
or through any source (other than the Corporation) including
a Participant. Rights, options or warrants offered to
purchase Qualifying Employer Securities shall be exercised
by the Master Trustee in his discretion but only to the
extent that there is cash available in the Stock Fund B for
investment. To the extent they are not exercised, the same
shall be sold on the open market. Rights, options, or
warrants to purchase securities of the Corporation or a
Controlled Group
<PAGE> 29
Member other than Qualifying Employer Securities shall be sold
by the Master Trustee on the open market; and
(v) Invest and reinvest the principal and income of
the Guaranteed Return Fund only in one or more contracts
executed by, assumed by, or transferred to the Master
Trustee and one or more insurance companies whereby such
companies agree to guarantee a defined rate or rates of
earnings or interest on amounts so invested. Such contract
or contracts shall contain such terms, and shall be with
such insurance company or companies, as the Benefit
Committee may direct; and
(vi) In making all investments pursuant to subsections
(i), (ii), (iii), (iv) and (v) above, the Master Trustee (A)
shall not, except as provided in Part 4 of Title I of ERISA,
be bound by any law or court doctrine of any state or
jurisdiction limiting trust investments, (B) makes no
warranty or representation with respect to the continuing
value of participating units, and (C) shall give
consideration to the cash requirements of the Plan.
D.3 While the provisions of Article XVII of the Rockwell
International Corporation Savings Plan are in effect, the
Master Trustee shall establish:
(i) A Sub Fund A consisting of any cash, securities or
other consideration received by the Master Trustee as
payment for shares of Qualifying Employer Securities
previously held in the Stock Fund A which were tendered or
deposited in accordance with Appendix E, all property
purchased therewith and the proceeds and income therefrom;
and
(ii) A Sub Fund B consisting of any cash, securities or
other consideration received by the Master Trustee as
payment for shares of Qualifying Employer Securities
previously held in the Stock Fund B which were tendered or
deposited in accordance with Appendix E, all property
purchased therewith and the proceeds and income therefrom.
The Master Trustee shall use all cash in the Sub Fund A and
the Sub Fund B only to purchase the kinds of instruments of
debt with maturity of not more than three years in which the
Master Trustee and any Investment Manager may invest and
reinvest the principal and income of the Fixed Income Fund
pursuant to Paragraph D.1 and shall so invest and reinvest
the principal thereof and income thereon. Dividends, income
and other distributions received on, and proceeds from the
sale or other disposition of, any securities or other
consideration held by the Master Trustee for Participants in
the Sub Fund A or the Sub Fund B pursuant to a tender or
deposit of shares of Qualifying Employer Securities in
accordance with Appendix E shall be similarly invested and
reinvested.
<PAGE> 30
Appendix E
Voting of Qualifying Employer Securities
----------------------------------------
(a) Except as otherwise provided in this Appendix E, the duty
with respect to the voting, retention, and tendering of
Qualifying Employer Securities held in the Stock Fund A or the
Stock Fund B shall be solely that of the Master Trustee, to be
exercised solely in the Master Trustee's discretion.
(b) With respect to any matter as to which a vote of the
outstanding shares of Qualifying Employer Securities is solicited
by proxies, consents or authorizations:
(i) Each Participant shall be entitled to direct the
Master Trustee, and the Master Trustee shall solicit the
direction in writing of each Participant, as to the manner
in which voting rights of shares of Qualifying Employer
Securities held in the Stock Fund A or the Stock Fund B
which either represent the vested or non-vested interest of
such Participant in the Stock Fund A as of the record date
fixed for determining the holders of Qualifying Employer
Securities entitled to vote on such matter or have been
credited as of such record date to the Stock Fund B account
of such Participant are to be exercised with respect to such
matter, and the Master Trustee shall exercise the voting
rights of such shares with respect to such matter in
accordance with the last-dated timely written direction, if
any, of such Participant. In connection with the
solicitation of written directions from Participants, the
Corporation will cause to be furnished to each Participant
and the Master Trustee notice of each occasion for the
exercise of such voting rights, an appropriate form on which
such written direction may be given, and a statement
containing the information that the Corporation distributes
to stockholders generally regarding the exercise of such
voting rights; and
(ii) The duty with respect to the exercise of voting
rights on shares of Qualifying Employer Securities held in
the Stock Fund A or the Stock Fund B as to which no timely
direction in writing has been received pursuant to paragraph
(i) of this subsection (b) shall be solely that of the
Master Trustee, to be exercised solely in the Master
Trustee's discretion.
(c) In the event of any Tender Offer (as defined in Section
17.1 of the Rockwell International Corporation Savings Plan):
(i) Each Participant shall be entitled to direct the
Master Trustee, and the Master Trustee shall solicit the
direction in writing of each Participant, as to the
tendering or disposition of any shares of Qualifying
Employer Securities held in the Stock Fund A or the Stock
Fund B which either represent the vested or non-vested
interest of such Participant in the Stock Fund A as of the
Tender Date (as defined herein) with respect to such
Participant or have been credited as of such Tender Date to
the Stock Fund B account of such Participant, and, except as
limited by paragraph (iii) hereof, the Master Trustee shall
tender or deposit into a sub-fund established pursuant to
Appendix D such shares pursuant to any such Tender Offer in
accordance with the last dated timely written direction, if
any, of such Participant;
(ii) Except as limited by Paragraph (iii) hereof, the
duty with respect to the retention, tendering or depositing
of shares of Qualifying Employer Securities held in the
Stock Fund A or the Stock Fund B as to which no timely
direction in writing has been
<PAGE> 31
received pursuant to paragraph (i) hereof shall be solely
that of the Master Trustee to be exercised solely in the
Master Trustee's discretion; and
(iii) Shares of Qualifying Employer Securities held
in the Stock Fund A or the Stock Fund B shall not be
tendered or deposited into a sub-fund established pursuant
to Appendix D by the Master Trustee pursuant to any such
Tender Offer until the earliest of (A) immediately preceding
the scheduled expiration of the Tender Offer pursuant to
which such shares are to be tendered or deposited or (B)
immediately preceding the expiration of the period during
which such shares of Qualifying Employer Securities will be
taken up and paid for on a pro rata basis pursuant to such
Tender Offer or (C) the expiration of 30 days from the date
of the Master Trustee's solicitation of Participants'
written direction pursuant to paragraph (i) hereof; and
(iv) The duty with respect to the withdrawing of, or
other exercise of any right to withdraw, shares of
Qualifying Employer Securities held in the Stock Fund A or
the Stock Fund B which have been tendered or deposited into
a sub-fund established pursuant to Appendix D pursuant to
any such Tender Offer shall be solely that of the Master
Trustee, provided that the Master Trustee may solicit the
direction in writing of each Participant with respect to
whom any such shares of Qualifying Employer Securities have
been tendered or deposited pursuant to any such Tender
Officer as to the withdrawing of, or other exercise of any
right to withdraw, such shares of Qualifying Employer
Securities, and if such solicitation is made, the Master
Trustee shall act in accordance with the last dated timely
written direction, if any, of each such Participant.
As used in this subparagraph (c) with respect to a
Participant, the term "Tender Date" means the date on which the
Master Trustee tenders or deposits into a sub-fund established
pursuant to Appendix D any shares of the Qualifying Employer
Securities either representing the vested or non-vested interest
of such Participant in the Stock Fund A or credited to the Stock
Fund B account of such Participant in accordance with this
subparagraph (c).
<PAGE> 1
Exhibit 5-a
November 21, 1995
Rockwell International Corporation
2201 Seal Beach Boulevard
Seal Beach, CA 90740
Ladies and Gentlemen:
I am Senior Vice President, General Counsel and Secretary of
Rockwell International Corporation, a Delaware corporation
(the "Company"), and am delivering this opinion in
connection with the filing on this date by the Company of a
Registration Statement on Form S-8 (the "Registration
Statement") registering under the Securities Act of 1933, as
amended (the "Act"), 200,000 shares of Common Stock, par
value $1.00 per share, of the Company (the "Common Shares")
that may be issued in accordance with the Rockwell
Retirement Savings Plan for Certain Employees (the "Plan").
I have examined such documents, records and matters of law
as I have deemed necessary as a basis for the opinions
hereinafter expressed.
On the basis of the foregoing, and having regard for legal
considerations that I deem relevant, I am of the opinion
that when the Registration Statement becomes effective under
the Act, any Common Shares issued and delivered in
accordance with the Plan will, when so delivered, be legally
issued, fully paid and non-assessable.
I hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
I express no opinion herein as to any laws other than the
General Corporation Law of the State of Delaware and the
Federal laws of the United States.
Very truly yours,
/s/ William J. Calise, Jr.
