As filed with the Securities and Exchange Commission on December 29, 1997
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TREADCO, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 71-0706271
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1101 SOUTH 21ST STREET
FORT SMITH, ARKANSAS 72901
(Address of principal executive offices) (Zip Code)
TREADCO, INC. EMPLOYEES'
INVESTMENT PLAN
(Full title of the plans)
Richard F. Cooper Copy to:
Secretary Riva Johnson, Esq.
Treadco, Inc. Jenkens & Gilchrist,
1101 South 21st Street A Professional Corporation
Fort Smith Arkansas 72901 1445 Ross Avenue, Suite 3200
(501) 785-6000 DALLAS, TEXAS 75202
(Name, address and telephone number
including area code of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF CLASS OF TO BE OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER SHARE(3)(4) OFFERING PRICE(3)(4) FEE(4)
======================================= ======================== ====================== ========================= ==================
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value per share 110,000 Shares $ 9.25 $ 1,017,500 $ 300.17
======================================= ======================== ====================== ========================= ==================
<FN>
(1) The securities to be registered include 110,000 shares that may be
offered or sold under the Treadco, Inc. Employees' Investment Plan (the "Plan").
(2) Pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan.
(3) Estimated solely for the purpose of calculating the registration
fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price
per share of the Common Stock offered hereunder pursuant to the Plan is based on
110,000 shares of Common Stock that may be offered or sold under the Plans at a
price per share of $ 9.25, which is the average of the highest and lowest
selling price per share of Common Stock on The Nasdaq National Market, Inc. on
December 22, 1997.
</FN>
</TABLE>
Page one of 78 sequentially numbered pages. Index to
exhibits is located on page 7 of the sequentially numbered
page system.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- -------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 of the Securities Act of 1933, as amended, and the Note
to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant and the Plan hereby incorporate by reference in this
registration statement the following documents previously filed by the
registrant with the Securities and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K filed with the
Commission for the fiscal year ended December 31, 1996;
(2) the registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, June 30 and September 30, 1997, filed with the
Commission;
(3) the description of the Common Stock, par value $0.01 per
share, of the registrant (the "Common Stock") set forth in the
Registration Statement on Form S-1 (No. 33-41605), dated July 3, 1991,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this registration
statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The registrant (hereinafter referred to as the "Corporation") has
authority under section 145 of the Delaware General Corporation law to indemnify
its directors, officers, employees and agents of the Corporation. The Articles
of Incorporation and Bylaws of the Corporation provide that officers, directors,
or a person serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other
II-2
<PAGE>
enterprise, including service with respect to an employee benefit plan (each an
"Indemnitee") shall be indemnified in any action, suit or proceeding brought
against such Indemnitee by reason of having served in such capacity, to the full
extent permitted by Delaware law; provided, however, that such Indemnitee acted
in good faith and in a manner he or she reasonably believed to be in the best
interest of the Corporation. The Corporation, however, shall indemnify an
Indemnitee in a proceeding brought by such Indemnitee only if such proceeding
was authorized by the Board of Directors. Pursuant to the Articles of
Incorporation, indemnification is a contract right, including the right to an
advancement of expenses, provided the Indemnitee undertakes to repay all amounts
advanced should it be determined by final judicial decision that such Indemnitee
is not entitled to be indemnified. In respect of any criminal action, such
Indemnitee shall be indemnified provided he had no reasonable cause to believe
his conduct was unlawful. The Corporation's Bylaws provide that the Corporation
may purchase and maintain insurance on behalf of any person who is, or was, an
Indemnitee, regardless of whether the Corporation has the power to indemnify
such Indemnitee under the Bylaws.
If a claim is not paid in full by the Corporation within sixty days
after a written claim has been received by the Corporation (except in the case
of a claim for an advancement of expenses, in which case the applicable period
shall be twenty days), the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, the Indemnitee shall also be entitled to
be paid the expense of prosecuting or defending such suit. In (i) any suit
brought by the Indemnitee to enforce a right to indemnification under the
Articles of Incorporation and Bylaws (but not in a suit brought by the
Indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final adjudication that, the
Indemnitee has not met the applicable standard of conduct set forth in the
Delaware General Corporation Law. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the Indemnitee is proper in the circumstances
because the Indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by an Indemnitee to
enforce a right to indemnification or to an advancement of expenses or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, shall be on the Corporation.
A director of the Corporation is not personally liable to the
Corporation or its stockholders for monetary damages for breach of his or her
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
after the filing of the Certificate of Incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
In addition to the foregoing, the Corporation has entered into
indemnification agreements (an "Indemnification Agreement") with each of its
directors. Each such Indemnification Agreement provides for indemnification of
directors of the Corporation to the fullest extent permitted by the Delaware
General Corporation Law and additionally permits advancing attorney's fees and
all other costs, expenses, obligations, fines and losses, paid or incurred by a
director generally in connection with the investigation, defense or other
participation in any threatened, pending or completed action, suit or proceeding
or any inquiry or investigation thereof, whether conducted by or on behalf of
the the Corporation or any other party. If it is later determined that the
director is or was not entitled to indemnification under applicable law, the
Corporation is entitled to reimbursement by the director.
The Indemnification Agreements further provide that in the event of a
change in control of the Corporation, then with respect to all matters
thereafter arising concerning the rights of directors to indemnity payments and
expense advances, all determinations regarding excludable claims will be made
only by a court of competent jurisdiction or by special independent legal
counsel selected by the director and approved by the Corporation.
II-3
<PAGE>
To the extent that the board of directors or the stockholders of the
Corporation may in the future wish to limit or repeal the ability of the
Corporation to indemnify directors, such repeal or limitation may not be
effective as to directors who are currently parties to the Indemnification
Agreements, because their rights to full protection are contractually assured by
the Indemnification Agreements. It is anticipated that similar contracts may be
entered into, from time to time, with future directors of the Corporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
------- ----------------------
4.1* Treadco, Inc. Employees' Investment Plan.
4.2* Amendment No. One to the Treadco, Inc. Employees' Investment Plan.
4.3* Amendment No. Two to the Treadco, Inc. Employees' Investment Plan.
4.4* Amendment No. Four to the Treadco, Inc. Employees' Investment Plan.
4.5 Certificate of Incorporation of the Company (previously filed
as Exhibit 3.1 to the Company's Form S-1 Registration
Statement under the Securities Act of 1933, as amended (the
"Act") dated July 3, 1991, Commission File No. 33-41605,) and
incorporated herein by reference.
4.6 Bylaws of the Company (previously filed as Exhibit 3.2 to the
Company's Form S-1 Registration Statement under the Act dated
July 3, 1991, Commission File No. 33-41605), and incorporated
herein by reference.
5.1** Opinion of Jenkens & Gilchrist, a Professional Corporation.
23.1*** Consent of Jenkens & Gilchrist, a Professional Corporation.
23.2* Consent of Ernst & Young LLP, Independent Auditors.
24.1* Power of Attorney (on signature page).
- --------------------
* Filed herewith.
** No opinion is being furnished herewith pursuant to instruction (a) to
Item 8 of Form S-8 as the Shares registered herein are not original
issuance securities.
*** No consent is being filed herewith pursuant to instruction (a) to Item
Form S-8, as the Shares being registered are not original issuance
securities.
II-4
<PAGE>
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
(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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard F. Cooper, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same with all exhibits, thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all 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 Fort Smith, State of Arkansas, on December 23,
1997:
TREADCO, INC.
By: /s/ Richard F. Cooper
----------------------
Name: Richard F. Cooper
Title: Secretary
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Robert A. Young, III Chairman of the Board, Director December 23, 1997
- ---------------------------------
Robert A. Young, III
/s/ John R. Meyers President and Chief Executive Officer (Principal December 23, 1997
- --------------------------------- Executive Officer, Director)
John R. Meyers
/s/ David E. Loeffler Vice President-Chief Financial Officer and December 23, 1997
- --------------------------------- Treasurer (Principal Financial and Accounting Officer)
David E. Loeffler
Director December __, 1997
- ---------------------------------
Nicolas M. Georgitsis
/s/ Robert B. Gilbert Director December 23, 1997
- ---------------------------------
Robert B. Gilbert
Director December __, 1997
- ---------------------------------
William A. Marquard
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Director December __, 1997
- ---------------------------------
John H. Morris
</TABLE>
THE PLAN.
---------
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following members of the Administrative
Committee of the Treadco, Inc.'s Employees' Investment Plan, in the City of Fort
Smith, State of Arkansas, on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Donald L. Neal
- --------------------------------------- Chairman December 23, 1997
Donald L. Neal
/s/ Richard F. Cooper
- --------------------------------------- Member December 23, 1997
Richard F. Cooper
/s/ John R. Meyers
- --------------------------------------- Member December 23, 1997
John R. Meyers
/s/ Randall M. loyd
- --------------------------------------- Member December 23, 1997
Randall M. Loyd
/s/ Jay Davidson
- --------------------------------------- Member December 23, 1997
Jay Davidson
/s/ David E. Loeffler
- --------------------------------------- Member December 23, 1997
David E. Loeffler
/s/ J. Lavon Moron
- --------------------------------------- Member December 23, 1997
J. Lavon Morton
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequential
Exhibit Page
Number Document Description Number
------ -------------------- ------
<S> <C> <C>
4.1* Treadco, Inc. Employees' Investment Plan. 9
4.2* Amendment No. One to the Treadco, Inc. Employees' Investment Plan. 67
4.3* Amendment No. Two to the Treadco, Inc. Employees' Investment Plan. 69
4.4* Amendment No. Four to the Treadco, Inc. Employees' Investment Plan. 70
4.5 Certificate of Incorporation of the Company (previously filed as Exhibit 3.1 to the
Company's Form S-1 Registration Statement under the Securities Act of 1933 dated
July 3, 1991, Commission File No. 33-41605,) and incorporated herein by reference.
4.6 Bylaws of the Company (previously filed as Exhibit 3.2 to the Company's Form S-1
Registration Statement under the Securities Act of 1933 dated July 3, 1991,
Commission File No. 33-41605), and incorporated herein by reference.
5.1** Opinion of Jenkens & Gilchrist, a Professional Corporation.
23.1*** Consent of Jenkens & Gilchrist, a Professional Corporation.
23.2* Consent of Ernst & Young LLP, Independent Auditors. 78
24.1* Power of Attorney (on signature page).
- --------------------
<FN>
* Filed herewith.
** No opinion is being furnished herewith pursuant to instruction (a) to Item 8 of Form S-8 as the Shares registered
herein are not original issuance securities.
*** No consent is being filed herewith pursuant to instruction (a) to Item
Form S-8, as the Shares being registered are not original issuance
securities.
</FN>
</TABLE>
II-8
EXHIBIT 4.1
TREADCO, INC.
EMPLOYEES' INVESTMENT PLAN
Generally Effective as of January 1, 1994
II-9
<PAGE>
EXHIBIT 4.1
<TABLE>
TABLE OF CONTENTS
<CAPTION>
Page
----
<S> <C>
SECTION ONE
PURPOSE AND RESTATEMENT OF THE PLAN,
PRIOR PLAN AND ESTABLISHMENT OF THE TRUST FUNDS..........................................................1
1.1 Restatement of the Plan.........................................................................1
1.2 Purposes........................................................................................1
1.3 Prior Plan......................................................................................1
1.4 Trusts..........................................................................................2
1.5 Separate Trusts.................................................................................2
SECTION TWO
DEFINITIONS..............................................................................................2
SECTION THREE
REQUIREMENTS FOR ELIGIBILITY............................................................................11
3.1 Service........................................................................................11
3.2 Service with a Predecessor Employer............................................................11
3.3 Periods of Severance...........................................................................12
3.4 Change in Status of Employee...................................................................12
3.5 Eligibility of Certain Employees...............................................................13
SECTION FOUR
ACTIVE PARTICIPATION IN THE PLAN........................................................................13
4.1 Active Participation...........................................................................13
4.2 Rollover Account...............................................................................13
SECTION FIVE
ADMINISTRATION OF THE PLAN..............................................................................14
5.1 Responsibility for Administration of the Plan..................................................14
5.2 Appointment of Administrative Committee........................................................14
5.3 Responsibility for Administration of the Trust Fund............................................15
5.4 Delegation of Powers...........................................................................15
5.5 Records........................................................................................15
5.6 General Administrative Powers..................................................................15
5.7 Appointment of Professional Assistants and Investment Manager..................................15
5.8 Actions of the Administrative Committee........................................................16
5.9 Directives of the Administrative Committee.....................................................17
5.10 Discretionary Acts.............................................................................17
5.11 Responsibility of Fiduciaries..................................................................17
5.12 Indemnity by Participating Companies...........................................................17
5.13 Payment of Fees and Expenses...................................................................17
5.14 Plan Administrator.............................................................................18
5.15 Allocation and Delegation of Administrative Committee
Responsibilities......................................................................18
SECTION SIX
DEPOSITS................................................................................................18
6.1 Company Matching Deposits......................................................................18
6.2 Basic and Supplemental Before-Tax Deposits.....................................................19
6.3 Date of Payment of Deposits....................................................................20
</TABLE>
II-10
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
6.4 Special Limitations on Before-Tax Deposits.....................................................20
6.5 Special Limitation on Company Matching Deposits................................................27
6.6 Right to Change Rate of, Resume or Discontinue
Before-Tax Deposits...................................................................30
6.7 Withdrawals from Participant Accounts..........................................................31
SECTION SEVEN
ALLOCATION TO PARTICIPANTS' ACCOUNTS....................................................................32
7.1 Methods of Allocating Deposits.................................................................32
7.2 Allocation to a Participant Transferred to a Participating Company.............................33
7.3 Allocation to a Participant Transferred to an Affiliated Company Which Has Not Adopted the Plan33
7.4 Limitations on Annual Additions................................................................33
7.5 Limitations on Annual Additions for Participating Companies or Affiliated Companies Maintaining
Other Defined Contribution Plans...............................................................35
7.6 Limitations on Benefits and Annual Additions for Participating Companies or Affiliated Companies
Maintaining Defined Benefit Plans..............................................................35
7.7 Definitions Relating to Annual Addition Limitations............................................36
SECTION EIGHT
VALUATION OF TRUST FUND.................................................................................38
8.1 Regular Valuation..............................................................................38
8.2 Valuation of Company Stock.....................................................................38
SECTION NINE
PARTICIPANTS' ACCOUNTS..................................................................................38
9.1 Separate Accounts..............................................................................38
9.2 Accounts of Participants Transferred to an Affiliated Company..................................38
9.3 Adjustment of Participant's Accounts...........................................................39
9.4 Account Investment Direction...................................................................39
9.5 Company Stock Fund.............................................................................40
SECTION TEN
COMMON TRUST FUND.......................................................................................42
SECTION ELEVEN
DESIGNATION OF BENEFICIARIES............................................................................42
11.1 Participant's Designation......................................................................42
11.2 Qualified Consent..............................................................................43
SECTION TWELVE
DISABILITY BENEFITS.....................................................................................43
12.1 Disability Retirement Benefits.................................................................43
12.2 Determination of Disability....................................................................44
SECTION THIRTEEN
RETIREMENT AND DEATH BENEFITS...........................................................................44
13.1 Retirement Benefits...........................................................................44
13.2 Death Benefits.................................................................................44
SECTION FOURTEEN
EMPLOYMENT TERMINATION BENEFITS.........................................................................45
14.1 Vesting upon Termination of Employment.........................................................45
14.2 Determination of Vesting Years of Service......................................................45
</TABLE>
II-11
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
14.3 Periods of Severance...........................................................................45
14.4 Forfeiture of Non-Vested Amount................................................................46
14.5 Restoration of Forfeited Non-Vested Amount.....................................................47
SECTION FIFTEEN
PAYMENT OF BENEFITS.....................................................................................47
15.1 Amount of Payment..............................................................................47
15.2 Method of and Time for Distribution of Benefits................................................48
15.3 Limitations on Timing..........................................................................49
15.4 Payments on Personal Receipt Except in Case of Legal Disability................................49
15.5 Benefits Payable in Cash.......................................................................50
15.6 Distribution Accounts..........................................................................50
15.7 Distribution Limitations Applicable to Before-Tax Deposits.....................................50
15.8 Benefits Payable Pursuant to a Qualified Domestic Relations Order..............................50
15.9 Direct Rollovers...............................................................................51
SECTION SIXTEEN
BENEFIT CLAIMS PROCEDURE................................................................................52
16.1 Claims for Benefits............................................................................52
16.2 Request for Review of Denial...................................................................52
16.3 Decision on Review of Denial...................................................................52
SECTION SEVENTEEN
MISCELLANEOUS PROVISIONS
RESPECTING PARTICIPANTS.................................................................................53
17.1 Participants to Furnish Required Information...................................................53
17.2 Participants' Rights in Trust Fund.............................................................53
17.3 Inalienability of Benefits.....................................................................53
17.4 Address for Mailing of Benefits................................................................56
17.5 Unclaimed Account Procedure....................................................................56
SECTION EIGHTEEN
LOANS TO PARTICIPANTS,
BENEFICIARIES AND ALTERNATE PAYEES......................................................................57
SECTION NINETEEN
ADOPTION OF PLAN BY AFFILIATED COMPANY..................................................................59
SECTION TWENTY
WITHDRAWAL FROM PLAN....................................................................................59
20.1 Notice of Withdrawal...........................................................................59
20.2 Segregation of Trust Assets upon Withdrawal....................................................59
20.3 Exclusive Benefit of Participants..............................................................60
20.4 Applicability of Withdrawal Provisions.........................................................60
</TABLE>
II-12
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
SECTION TWENTY-ONE
AMENDMENT OF THE PLAN...................................................................................60
SECTION TWENTY-TWO
PERMANENCY OF THE PLAN..................................................................................61
22.1 Right to Terminate Plan........................................................................61
22.2 Merger or Consolidation of Plan and Trust......................................................61
22.3 Continuance by Successor Company...............................................................62
</TABLE>
II-13
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
SECTION TWENTY-THREE
DISCONTINUANCE OF DEPOSITS AND TERMINATION.......................................................................62
23.1 Discontinuance of Deposits.....................................................................62
23.2 Termination of Plan and Trust..................................................................62
23.3 Rights to Benefits upon Termination of Plan or Complete
Discontinuance of Deposits............................................................63
SECTION TWENTY-FOUR
STATUS OF EMPLOYMENT RELATIONS..........................................................................63
SECTION TWENTY-FIVE
BENEFITS PAYABLE BY TRUST...............................................................................63
SECTION TWENTY-SIX
EXCLUSIVE BENEFIT OF TRUST FUND.........................................................................63
26.1 Limitation on Reversions.......................................................................63
26.2 Unallocated Amounts upon Termination of Plan and Trust.........................................64
26.3 Mistake of Fact or Disallowance of Deduction...................................................64
26.4 Failure of Initial Qualification of Plan and Trust.............................................64
SECTION TWENTY-SEVEN
APPLICABLE LAW..........................................................................................64
SECTION TWENTY-EIGHT
INTERPRETATION OF THE PLAN AND TRUST....................................................................65
SECTION TWENTY-NINE
TOP HEAVY PLAN RULES....................................................................................65
29.1 Definitions....................................................................................65
29.2 Determination of Top Heaviness.................................................................67
29.3 Minimum Requirements...........................................................................69
29.4 Minimum Benefits for Employers Maintaining Defined Benefit Plans...............................70
29.5 Super Top Heavy Plans..........................................................................70
</TABLE>
II-14
<PAGE>
EXHIBIT 4.1
TREADCO, INC.
EMPLOYEES' INVESTMENT PLAN
--------------------------
SECTION ONE
PURPOSE AND RESTATEMENT OF THE PLAN,
PRIOR PLAN AND ESTABLISHMENT OF THE TRUST FUNDS
-----------------------------------------------
1.1 Restatement of the Plan. Subject to the terms and conditions
hereinafter set forth, Treadco, Inc. (the "Sponsoring Company") hereby amends
and restates, effective as of January 1, 1994 (except as otherwise provided
herein), the Treadco, Inc. Employees' Investment Plan, a Code Section 401(k)
plan for the exclusive benefit of its Employees and their Beneficiaries, which
was originally established effective as of September 1, 1991, and was thereafter
amended from time to time.
Except as otherwise provided herein, the provisions of the
amended and restated Plan as contained herein are applicable to Employees and
Participants who have not died, retired, become disabled or otherwise terminated
employment prior to January 1, 1994, or who are reemployed by a Participating
Company or Affiliated Company after January 1, 1994, and while they are still
entitled to reinstatement of rights under the Plan. Except as otherwise provided
herein, any Employee or Participant who died, retired, became disabled or
terminated employment prior to January 1, 1994, shall receive any benefits to
which he is entitled based upon the provisions of the Plan as in effect prior to
January 1, 1994.
1.2 Purposes. The purposes hereof are to reward Employees for their
long and faithful service, to help the Employees accumulate funds for their
later years, and to provide funds for their Beneficiaries in case of death.
It is the intention of the Participating Companies that this
Plan shall meet all of the requirements necessary or appropriate to qualify as a
profit-sharing plan and a discretionary contribution plan under Sections 401(a)
and 401(k) of the Code and that the Fund made a part hereof shall be exempt from
tax under Section 501(a) of the Code and all provisions hereof shall be
interpreted accordingly. Contributions may be made hereunder without regard to
whether the Sponsoring Company has profits.
1.3 Prior Plan. Effective as of July 1, 1991, the employees of ABC
Treadco, Inc. ("Old Treadco") were transferred to employment with the newly
formed Treadco, Inc. Old Treadco maintained a Code Section 401(k) plan, which
was substantially similar to the Plan, for the benefit of its eligible
employees; this plan was known as the ABC Treadco, Inc. Employees' Investment
Plan (the "Prior Plan"). The assets of the Prior Plan were transferred to the
Plan and deposited with and held, subject to the provisions of the Plan, by the
Trustee of Investment Trust No. 2 (if attributable to contributions to the Best
Holding Corporation stock fund in the Prior Plan) or the Trustee of Investment
Trust No. 1 (if attributable to other assets of the Prior Plan).
1.4 Trusts. In furtherance of this Plan, effective as of September 1,
1991, Treadco, Inc. has become a participating employer in the Arkansas Best
Corporation and Affiliates Employees' Investment Trust ("Investment Trust No.
1"), a master trust which was established by Arkansas Best Corporation,
effective as of July 1, 1988, and effective as of September 1, 1991, Treadco,
Inc. has established an additional Trust, the Treadco, Inc. Employees'
Investment Trust No. 2 ("Investment Trust No. 2"); the Trust Agreements pursuant
to which such trusts are established are made a part hereof.
1.5 Separate Trusts. Two (2) separate Trusts, the Investment Trust No.
1 and the Investment Trust No. 2, have been established and will be maintained
for the purposes of the Plan (and other plans sponsored by Affiliated Companies)
and the moneys thereof will be invested in accordance with the terms of such
Trusts. The Investment Trust No. 2 shall consist solely of the assets held in
the Company Stock Fund. All Before-Tax Deposits and Company Matching Deposits
made in cash (unless the Board of Directors of the Sponsoring Company directs
otherwise), shall be paid to the Trustee of the Investment Trust No. 1 for
investment therein. The Investment Trust No. 1 shall consist of the assets held
II-15
<PAGE>
EXHIBIT 4.1
in each Investment Fund other than the Company Stock Fund. A Trustee shall have
no responsibility with respect to administration of assets held in another
Trust, and with respect to such other Trust, a Trustee shall have the full
protection of Section 405(b)(3) of ERISA.
SECTION TWO
DEFINITIONS
-----------
As used in the Plan:
2.1 "Account" or "Accounts" shall mean the Basic Before-Tax Deposit
Account, if any; the Supplemental Before-Tax Deposit Account, if any; the Choice
Benefits Deposit Account, if any; the Company Matching Deposit Account; and the
Rollover Account, if any, collectively or singly as the context requires,
maintained for each Participant under the Plan.
2.2 "Active Participant" shall mean a Participant who has currently
elected in accordance with the provisions of Section 4.1 hereof to have Basic
Before-Tax Deposits made on his behalf pursuant to the provisions of Section 6.2
hereof.
2.3 "Administrative Committee" shall mean the persons or entity
appointed to administer the Plan in accordance with the provisions of Section
Five of the Plan. The Administrative Committee shall be the "Named Fiduciary" as
referred to in Section 402(a) of ERISA with respect to the management, operation
and administration of the Plan.
2.4 "Affiliated Company" shall mean any company which is a component
member of a controlled group of corporations within the meaning of Section
1563(a) of the Code determined without regard to Sections 1563(a)(4) and
(e)(3)(C) thereof, which controlled group of corporations includes as a
component member the Sponsoring Company or any Participating Company, except
that with respect to Section 7.4 hereof, "50 per cent" shall be substituted for
"80 per cent" where it appears in paragraph 1 of Section 1563(a) of the Code.
The term "Affiliated Company" shall also mean any trade or business under common
control (as defined in Sections 414(b) and 414(c) of the Code) with a
Participating Company and any member of an affiliated service group (as defined
in Section 414(m) of the Code) of which a Participating Company is a member and
any entity required to be aggregated with a Participating Company pursuant to
regulations under Section 414(o) of the Code.
2.5 "Basic Before-Tax Deposit Account" shall mean the separate account
maintained for each Participant reflecting (i) the Basic Before-Tax Deposits
made on behalf of such Participant and (ii) funds transferred from the Prior
Plan and credited to the Participant's Basic Before-Tax Deposit Account, as
adjusted in accordance with the provisions of Section Nine of the Plan.
2.6 "Basic Before-Tax Deposits" shall mean the amount each Active
Participant has elected to have the Participating Companies contribute on his
behalf pursuant to the provisions of Section 6.2 hereof which is subject to a
Company Matching Deposit. Such amounts shall qualify as elective contributions
under Section 401(k) of the Code and the regulations thereunder.
2.7 "Before-Tax Deposits" shall mean, collectively or singly as the
context requires, a Participant's Basic Before-Tax Deposits, if any, and his
Supplemental Before-Tax Deposits, if any.
2.8 "Beneficiary" shall mean any person entitled to receive benefits
which are payable upon or after a Participant's death pursuant to Section Eleven
and Section 13.2 of the Plan.
II-16
<PAGE>
EXHIBIT 4.1
2.9 "Choice Benefits Deposit Account" shall mean the separate account
maintained for each Participant reflecting the Choice Benefits Deposits (as
defined in the Prior Plan) made to the Prior Plan prior to January 1, 1990 on
behalf of such Participant, as adjusted in accordance with Section Nine of the
Plan.
2.10 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time. References to any Section of the Internal Revenue Code shall
include any successor provision thereto.
2.11 "Company Matching Deposit Account" shall mean the separate account
maintained for each Participant reflecting (i) such Participant's allocable
share of the Company Matching Deposits under Subsection 6.1(1) hereof and (ii)
funds transferred from the Prior Plan and credited to the Participant's Company
Matching Deposits Account, as adjusted in accordance with the provisions of
Section Nine of the Plan.
2.12 "Company Matching Deposits" shall mean the amount of the
Participating Companies, contributions provided for in Subsection 6.1(1) hereof
which match the Participant's Basic Before-Tax Deposits.
2.13 "Company Stock" shall mean the common stock of the Sponsoring
Company which is readily tradable on an established securities market, or, if
there is no stock so tradable, common stock of the Sponsoring Company having a
combination of voting power and dividend rights equal to or in excess of that
class of common stock having the greatest voting power and the greatest dividend
rights.
2.14 "Company Stock Fund" shall mean the portion of the Trust Fund
invested in Company Stock or cash-equivalent investments as provided in Section
9.5.
2.15 "Compensation" shall mean, subject to the provisions of Subsection
29.3(1) hereof, the amounts actually paid to an Employee by the Participating
Company for services rendered, inclusive of bonuses, commissions and overtime
pay, and amounts, if any, that would have been included in the Employee's
Compensation for such calendar year if they had not received special tax
treatment because they were deferred by the Employee through a plan of deferred
compensation under Section 401(k) of the Code or under a salary reduction
agreement pursuant to Section 125 of the Code, but exclusive of expense
allowances and all other extraordinary compensation and any Compensation paid
for any period prior to the Entry Date on which a Participant first becomes a
Participant under the Plan. Notwithstanding the foregoing, for Plan Years
beginning before December 31, 1993, "Compensation" shall not include any
Compensation in excess of Two Hundred Thousand Dollars ($200,000) or such larger
amount as results from the adjustment provided in Section 401(a)(17) of the
Code. Notwithstanding the foregoing, for Plan Years beginning after December 31,
1993, "Compensation" shall not include any Compensation in excess of One Hundred
Fifty Thousand Dollars ($150,000) or such larger amount as results from the
adjustment provided in Section 401(a)(17) of the Code.
2.16 "Eligible Employee" shall mean each Employee who is employed by a
Participating Company except the following individuals:
2.16(1) any person who is a "casual employee" of a
Participating Company as defined by the Participating Company's uniform
and nondiscriminatory employment policy, unless and until such "casual
employee" completes a Vesting Year of Service as defined in Section
2.44 hereof, in which event such casual employee shall be treated as an
Eligible Employee as defined herein as of the date such casual employee
completes the Vesting Year of Service.
2.16(2) any person who is included in a collective bargaining
unit, if retirement benefits were the subject of good faith bargaining,
unless and until said bargaining unit has bargained for coverage under
the Plan, in which event such person shall be treated as an Employee as
defined herein as of the date said bargaining unit commences coverage
under this plan.
2.16(3) any person who is not treated as an employee on the
payroll of a Participating Company, regardless of whether such person
is considered a leased employee within the meaning of Code Sections
414(n) and 414(o).
II-17
<PAGE>
EXHIBIT 4.1
2.17 "Employee" shall mean any person who is employed as a common-law
employee by an Affiliated Company and receives a compensation from an Affiliated
Company that is subject to FICA tax. Any leased employee shall be considered an
"Employee" under the Plan to the extent required by Sections 414(n) or 414(o) of
the Code, but shall not be eligible to participate in the Plan unless and until
he actually becomes employed on the payroll of a Participating Company and
otherwise meets the eligibility criteria of Article Six hereof.
2.18 "Employment Commencement Date" shall mean the date an Employee
first performs an Hour of Service with the Participating Company or an
Affiliated Company.
2.19 "Entry Date" shall mean the first day of each calendar quarter.
2.20 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. References to any Section of ERISA shall
include any successor provision thereto.
2.21 "Hour of Service" shall mean each hour for which an Employee is
directly or indirectly paid, or entitled to payment by a Participating Company
or an Affiliated Company for the performance of duties.
2.22 "Inactive Participant" shall mean any Participant other than an
Active Participant.
2.23 "Investment Manager" shall mean any party that (i) is either (a)
registered as an investment adviser under the Investment Advisers Act of 1940,
or (b) a bank (as defined in the Investment Advisers Act of 1940), or (c) an
insurance company qualified to manage, acquire or dispose of Plan assets under
the laws of more than one State, (ii) acknowledges in writing that it is a
fiduciary with respect to the Plan, and (iii) is granted the power to manage,
acquire or dispose of any asset of the Plan pursuant to Section 5.7 hereof and
the Trust Agreement.
2.24 "Leave of Absence" shall mean an absence with or without pay from
the active employment of a Participating Company by reason of an approved
absence granted by such Participating Company in accordance with its leave and
personnel regulations, whether by reason of military service or for any other
reason on the basis of a uniform policy applied by such Participating Company
without discrimination (including periods during which an Employee is receiving
benefits under any disability or sickness plan of a Participating Company or an
Affiliated Company). Such a Leave of Absence will not constitute a Termination
of Employment provided the Employee returns to the active employment of the
Participating Company at or prior to the expiration of his leave or, if not
specified therein, within the period of time which accords with such
Participating Company's policy with respect to permitted absences. If the
Employee does not return to the active employment of such Participating Company
at or prior to the expiration of his Leave of Absence, his employment will be
considered terminated as of the earlier of (i) the date on which his Leave of
Absence expired, or (ii) the date which is twelve (12) months after the date on
which his Leave of Absence began. Notwithstanding the foregoing provisions of
this Section, an Employee's absence from the active service of a Participating
Company because of military service will be considered a Leave of Absence
granted by a Participating Company and will not terminate the employment of such
Employee if he returns to the active employment of the Participating Company
within the period of time during which he has reemployment rights under any
applicable federal law or within sixty (60) days from and after discharge or
separation from such military service if no federal law is applicable. However,
no provision of this Section or of the remainder of the Plan shall require
reemployment of any Employee whose active service with the Participating Company
was terminated by reason of military service.
2.25 "One-Year Period of Severance" shall mean a twelve (12)
consecutive month Period of Severance. Notwithstanding the foregoing provisions
hereof, or any other provision of this Plan to the contrary, in the case of an
Employee who is absent from work for any period (i) by reason of (a) the
Employee's pregnancy, (b) the birth of the Employee's child, (c) the placement
of a child with the Employee in connection with the adoption of such child by
the Employee, or (ii) for the purpose of caring for such child for a period
beginning immediately following such birth or placement, the twelve (12)
consecutive month period beginning on the first anniversary of the first date of
such absence shall not constitute a One-Year Period of Severance and shall not
constitute a Period of Service.
II-18
<PAGE>
EXHIBIT 4.1
2.26 "Participant" shall mean an Eligible Employee who becomes a
Participant in the Plan as provided in Section Three of the Plan.
2.27 "Participating Company" shall mean the Sponsoring Company or any
Affiliated Company which adopts the Plan pursuant to Section Nineteen of the
Plan.
2.28 "Period of Service" shall mean the period of time commencing on an
Employee's Employment Commencement Date or Reemployment Commencement Date, as
the case may be, and ending on such Employee's Severance from Service Date. A
Period of Service shall also include a Period of Severance of less than twelve
(12) consecutive months. Notwithstanding the preceding sentence:
2.28(1) If an Employee who is on Leave of Absence or who is
temporarily laid off, retires or suffers a Termination of Employment
during the first twelve (12) months of such Leave of Absence or
temporary layoff, as the case may be, such Employee's Period of Service
shall not include any Period of Severance beginning on the date such
Employee retired or suffered a Termination of Employment and ending on
such Employee's Reemployment Commencement Date, if any, if such
Reemployment Commencement Date, if any, does not occur within the
twelve (12) month period commencing on the date such Leave of Absence
or temporary layoff began.
2.28(2) If an Employee works simultaneously for more than one
Participating Company and/or Affiliated Company, the total Period of
Service for such Employee shall not be increased by reason of such
simultaneous employment.
2.29 "Period of Severance" shall mean the period of time commencing on
an Employee's Severance from Service Date and ending on such Employee's
Reemployment Commencement Date, if any.
2.30 "Plan" shall mean the Treadco, Inc. Employees' Investment Plan as
set forth in this document, and as hereafter amended from time to time.
2.31 "Plan Year" shall mean the twelve (12) consecutive month period
ending on December 31 of each year.
2.32 "Reemployment Commencement Date" shall mean the date on which an
Employee first performs an Hour of Service with a Participating Company or an
Affiliated Company following such Employee's Severance from Service Date.
2.33 "Retirement Date" of a Participant shall mean the Participant's
sixty-fifth (65th) birthday.
2.34 "Severance from Service Date" shall mean the earlier of:
2.34(1) The date on which an Employee separates from the
active employment of a Participating Company or an Affiliated Company
on account of retirement, death, Total and Permanent Disability or
Termination of Employment; or
2.34(2) In the case of an Employee on Leave of Absence who
does not return to the active employment of the Participating Company
or an Affiliated Company at or prior to the expiration of such Leave of
Absence, the earlier of (i) the expiration date of such Leave of
Absence, or (ii) the date which is twelve (12) months after the date on
which such Leave of Absence began, or, in the case of an Employee who
becomes absent (whether the absence is with or without pay) from the
active employment of a Participating Company or an Affiliated Company
by reason of a temporary layoff, the date which is twelve (12) months
after the date on which such Employee first becomes absent.
2.35 "Sponsoring Company" shall mean Treadco, Inc. or its successor.
II-19
<PAGE>
EXHIBIT 4.1
2.36 "Supplemental Before-Tax Deposit Account" shall mean the separate
account maintained for each Participant reflecting (i) the Supplemental
Before-Tax Deposits made on behalf of such Participant and (ii) funds
transferred from the Prior Plan and credited to the Participant's Supplemental
Before-Tax Deposit Account, as adjusted in accordance with the provisions of
Section Nine of the Plan.
2.37 "Supplemental Before-Tax Deposits" shall mean the amount each
Active Participant has elected to have the Participating Companies contribute on
his behalf pursuant to the provisions of Section 6.2 hereof which is not subject
to a Company Matching Deposit. Such amounts shall qualify as elective
contributions under Section 401(k) of the Code and the regulations thereunder.
2.38 "Termination of Employment" shall mean the termination of active
employment with any Participating Company, whether voluntarily or involuntarily,
other than by reason of a Participant's retirement after attaining his
Retirement Date or after sustaining Total and Permanent Disability, death or
transfer to an Affiliated Company.
2.39 "Total and Permanent Disability" shall mean a termination of
employment due to a physical or mental condition of a Participant resulting from
bodily injury, disease, or mental disorder which constitutes total disability
under the federal Social Security Act, and for which the Participant has
actually been approved for Social Security disability benefits.
2.40 "Trust" shall mean either or both (as the context shall require)
of the legal entities resulting from the Trust Agreements between the
Participating Companies and the Trustees which receive the Participating
Companies, and Participants' contributions, and hold, invest, and disburse funds
to or for the benefit of Participants and their Beneficiaries.
2.41 "Trust Fund" shall mean the total of contributions made by the
Participating Companies and Participants to either of the Trusts or both of the
Trusts (as the context shall require) pursuant to the Plan, increased by
profits, gains, income and recoveries received, and decreased by losses,
depreciation, benefits paid and expenses incurred in the administration of the
Trusts. The Trust Funds include all assets acquired by investment and
reinvestment which are held in the Trusts by the Trustees.
2.42 "Trustee" shall mean Fidelity Management Trust Company, trustee of
the Investment Trust No. 1, and the individual trustees of the Investment Trust
No. 2, or any of such Trustees as the context shall require, and any additional
or successor Trustees. Except as otherwise provided in the Trust Agreements and
herein, the Trustees shall be the "Named Fiduciaries" referred to in Section
402(a) of ERISA with respect to the control, management and disposition of the
Trust Funds.
2.43 "Valuation Date" shall mean the close of each day that the New
York Stock Exchange is open for business.
2.44 "Vesting Year of Service" shall mean a Period of Service of three
hundred sixty-five (365) days, subject to the provisions of Sections 3.2 and
14.3 hereof. Notwithstanding the preceding sentence, if a Participant has a
Reemployment Commencement Date, such Participant's Periods of Service before and
after such Reemployment Commencement Date which are required to be taken into
account under this Plan shall be determined on the basis of the actual number of
days in such aggregated Periods of Service.
2.45 Wherever appropriate, words used in the Plan in the singular may
mean the plural, the plural may mean the singular, and the masculine may mean
the feminine.
II-20
<PAGE>
EXHIBIT 4.1
2.46 The expressions listed below shall have the meanings stated in the
Sections or Subsections hereof respectively indicated:
<TABLE>
<CAPTION>
<S> <C>
"Actual Contribution Percentage" ("ACP") Subsection 6.5(7)(a)
"Actual Deferral Percentage" (or "ADP") Subsection 6.4(8)(a)
"Aggregated Family Group" Subsection 6.4(8)(e)
"Alternate Payee" Subsection 17.3(2)(e)
"Annual Additions" Section 7.4
"Benefit Commencement Date" Subsection 15.2(2)(c)(i)(A)
"Borrower" Section Eighteen
"Cash Transfers From Another Qualified Plan" Subsection 4.2(3)
"Compensation" Section 2.15;
Subsection 29.3(1)
"Defined Benefit Plan" Subsection 7.7(3);
Subsection 29.1(1)
"Defined Benefit Plan Fraction" Subsection 7.7(4)
"Defined Contribution Plan" Subsection 7.7(2);
Subsection 29.1(2)
"Defined Contribution Plan Fraction" Subsection 7.7(5)
"Determination Date" Subsection 29.1(3)
"Direct Rollover" Subsection 15.10(1)(d)
"Distributee" Subsection 15.10(1)(c)
"Election Period" Subsection 15.2(2)(c)(ii)
"Eligible Employee" Subsection 2.16;
Subsection 6.4(8)(d)
"Employer" Subsection 29.1(4)
"Excess Aggregate Contributions" Subsection 6.5(3)
"Excess Amounts" Subsection 7.4(3)
"Excess Contributions" Subsection 6.4(3)
"Excess Deferrals" Subsection 6.4(7)
"Family member" Subsection 6.4(8)(e)
"Highest Average Compensation" Subsection 7.7(4)
"Highly Compensated Employee" Subsection 6.4(8)(b)
"Investment Funds" Subsection 9.4(1)
</TABLE>
II-21
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
"Key Employee" Subsection 29.1(5)
"Key Employee Participant" Subsection 29.1(6)
"Limitation Year" Subsection 7.7(6)
"Limitation Year Compensation" Subsection 6.4(8)(b);
Subsection 7.7(7);
Subsection 29.1(7)
"Maximum Aggregate Amount" Subsection 7.7(5)
"Named Fiduciary" Section 2.3;
Section 2.42
"Non-Highly Compensated Employee" Subsection 6.4(8)(b)
"Non-Stock Investments" Subsection 15.2(1)(a)
"Non-Vested Amount" Subsection 14.4(1)(a)
"Permissive Aggregation Group" Subsection 29.1(8)
"Permitted Purpose" Subsection 6.7(1)
"Plan Administrator" Section 5.14
"Prior Plan" Section 1.3
"Projected Annual Benefit" Subsection 7.7(4)
"Qualified Domestic Relations Order" Subsection 17.3(2)(d)
"Required Aggregation Group" Subsection 29.1(9)
"Required Beginning Date" Section 15.3
"Retirement Plan" Subsection 7.7(1)
"Rollover Account" Subsection 4.2(1)
"Stock Investments" Subsection 15.2(l)(a)
"Super Top Heavy Plan" Subsection 29.2(2)
"Top Heavy Plan" Subsection 29.2(1)
"Top Heavy Ratio" Subsection 29.2(3)
"Total Compensated" Subsection 6.4(8)(d)
"Trust Agreement" Section 1.3
</TABLE>
II-22
<PAGE>
EXHIBIT 4.1
<TABLE>
<CAPTION>
<S> <C>
"Valuation Date" Subsection 29.1(10)
"Valuation Period" Section 9.3
"Vested Amount" Subsection 14.4(l)(a)
</TABLE>
SECTION THREE
REQUIREMENTS FOR ELIGIBILITY
----------------------------
3.1 Service. Each Eligible Employee who was a Participant on December
31, 1993, shall be a Participant in the Plan on January 1, 1994. Each Eligible
Employee whose Employment Commencement Date is on or after January 1, 1994,
shall be eligible to become a Participant in the Plan as of the Entry Date next
following a twelve month Period of Service. In the event an Eligible Employee
suffers a Termination of Employment prior to the Entry Date upon which such
Employee would have become a Participant in the Plan, as the case may be, and
such Eligible Employee is reemployed by a Participating Company prior to a
One-Year Period of Severance, such Eligible Employee shall be eligible to become
an Active Participant in the Plan as of the date the Eligible Employee would
have attained a twelve month Period of Service had such Termination of Service
not occurred and shall then be eligible to become an Active Participant in the
Plan as of the Entry Date coincident with or next following the date the
Eligible Employee became a Participant.
3.2 Service with a Predecessor Employer.
3.2(1) If the Plan had previously been maintained by a
predecessor of a Participating Company, whether a corporation,
partnership, sole proprietorship or other business entity, any period
of service with such predecessor shall be treated as a Period of
Service with a Participating Company. If the Plan had not been
maintained previously by a predecessor of a Participating Company,
service with such predecessor shall not be taken into account, except
to the extent required pursuant to regulations prescribed by the
Secretary of the Treasury or his delegate. Notwithstanding the
foregoing, service by a sole proprietor or partner shall not be counted
as a Period of Service with a Participating Company.
3.2(2) Notwithstanding the provisions of Subsection 3.2(1), an
Employee's period of employment with ABC Treadco, Inc. and any other
entity aggregated (pursuant to Code Sections 414(b), (c), (m) or (o))
with ABC Treadco, Inc. shall be treated as a Period of Service under
this Plan if it would be so treated if it were Service with a
Participating Company.
3.3 Periods of Severance. For purposes of this Section Three, the
aggregate of all Periods of Service shall be taken into account. In the event
that a Participant has a Severance from Service Date and such Participant is
reemployed by a Participating Company, he shall resume participation in the Plan
effective as of his Reemployment Commencement Date and shall be eligible to
become an Active Participant in the Plan as of the Entry Date coincident with or
next following his Reemployment Commencement Date.
3.4 Change in Status of Employee.
3.4(1) In the event an individual who is employed by the
Participating Company or an Affiliated Company but who is not defined
as an Eligible Employee under Section 2.16 hereof, becomes so defined
as an Eligible Employee, such individual shall be eligible to become a
Participant as of the date he becomes so defined, provided he has met
the other requirements for eligibility set forth in Section 3.1 hereof
and previously would have become a Participant had he been defined as
an Eligible Employee, and shall be eligible to become an Active
Participant in the Plan as of the Entry Date coincident with or next
following the date of becoming so defined as an Eligible Employee,
except in the case of an individual defined in Subsection 2.16(b)
hereof who shall be eligible to become an Active Participant as of the
first day of the payroll period coinciding with or next following the
date he becomes so defined as an Eligible Employee.
II-23
<PAGE>
EXHIBIT 4.1
3.4(2) A Participant who ceases to be an Eligible Employee but
who does not suffer a Termination of Employment shall become a
suspended Participant. During the period of suspension, no amounts
shall be credited to the Participant's Accounts which are based on his
Compensation from and after the date of suspension. The suspended
Participant shall be entitled to benefits in accordance with the other
provisions of the Plan throughout the period during which he is
suspended, other than the right to receive a loan as provided in
Section Eighteen hereof.
3.4(3) In the event a Participant who ceased to be defined as
an Eligible Employee under Section 2.16 hereof but who did not suffer a
Termination of Employment, subsequently becomes defined as an Employee
again, such Participant shall recommence participation without regard
to the limitations imposed by Subsection 3.4(2) hereof, as of the date
he became so redefined, but shall not be eligible to become an Active
Participant until the Entry Date coinciding with or next following the
date of becoming so redefined as an Eligible Employee.
3.5 Eligibility of Certain Employees. For purposes of Section 3.1,
notwithstanding any provision within this Section Three, Period of Service for
each Employee who was an employee of Transworld Tire Company, on August 31,
1993, shall be determined by treating such Employee's period of employment with
Transworld Tire Company as a Period of Service under this Plan, if such service
would be so treated if it were Service with a Participating Company. This
Section 3.5 is not intended to include service with Transworld Tire Company as a
Period of Service when determining such Employee's Vesting Years of Service
under Sections 2.44 and 14.2.
SECTION FOUR
ACTIVE PARTICIPATION IN THE PLAN
--------------------------------
4.1 Active Participation. Any Employee eligible to become a Participant
in the Plan in accordance with Section Three hereof, may become an Active
Participant in the Plan by electing no later than the date determined by the
Administrative Committee, pursuant to a uniform and nondiscriminatory procedure
established by the Administrative Committee, to have made on his behalf
Before-Tax Deposits in accordance with the provisions of Section 6.2 of the
Plan. Any Participant in the Plan who does not elect to have made on his behalf
Before-Tax Deposits at the time he becomes a Participant in the Plan shall be
and remain an Inactive Participant unless and until he elects to have made on
his behalf Before-Tax Deposits as provided in Section 6.2 of the Plan.
4.2 Rollover Account.
4.2(1) With the consent of the Administrative Committee, Cash
Transfers From Another Qualified Plan may be received by the Trustee on
behalf of any Employee or Participant. Such amount shall be credited to
a separate Account herein referred to as a "Rollover Account." However,
the transfer of such an amount hereunder to the Trustee will not cause
the transferring Employee to be eligible to participate in the Plan
prior to the time specified in Section Three and Section 4.1. Prior to
the time such an Employee becomes eligible to participate in the Plan,
the Employee shall be treated as a Participant solely with respect to
the amount in his or her Rollover Account.
4.2(2) Cash credited to a Rollover Account (i) shall be held
by the Trustee pursuant to the provisions of this Plan, (ii) shall be
fully vested at all times and shall not be subject to forfeiture for
any reason, (iii) shall be invested at the direction of the Employee in
accordance with the provisions of Section 9.4, and (iv) shall be
distributed to the Employee, Participant or Beneficiary at such time
and in the same manner as provided in Section Fifteen hereof for the
distribution of a Participant's Accounts under the Plan; and may be
withdrawn in accordance with Section 6.7.
4.2(3) For purposes of this Section, the term "Cash Transfers
From Another Qualified Plan" means amounts which are properly
characterized as a qualifying rollover distribution received by a
person who is now
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<PAGE>
EXHIBIT 4.1
an Employee, from another qualified plan, which amounts are eligible
for tax-free rollover treatment and which are transferred in cash by
the Employee to the Trustee of this Plan within sixty (60) days
following receipt thereof or are transferred in cash directly from such
qualified plan to this Plan; amounts transferred in cash to this Plan
from an individual retirement account, provided that the individual
retirement account contains only assets previously distributed from a
qualified plan, which amounts were eligible for tax-free rollover
treatment, and which amounts were deposited in such individual
retirement account within sixty (60) days of receipt thereof, and
amounts distributed to a person who is now an Employee from an
individual retirement account meeting the requirements of this
Subsection 4.2(3), and transferred in cash by the Employee to this Plan
within sixty (60) days of receipt thereof, from such individual
retirement account. Prior to accepting any cash transfers to which this
Section applies, the Administrative Committee may require the Employee
to establish that the amounts to be transferred in cash to this Plan
meet the requirements of this Section and may also require that the
Employee provide an opinion of counsel satisfactory to the
Administrative Committee that the amounts to be transferred meet the
requirements of this Section and will not jeopardize the tax exempt
status of this Plan or the Trust Fund for any reason (including, but
not limited to, the failure of the amount to be excluded from the
definition of annual addition in Section 415(c)(2) of the Code; thereby
causing the annual addition to the Account to exceed the permissible
limits of Section 415 of the Code, or to create adverse tax
consequences to a Participating Company.
SECTION FIVE
ADMINISTRATION OF THE PLAN
--------------------------
5.1 Responsibility for Administration of the Plan. The Administrative
Committee shall be responsible for the management, operation and administration
of the Plan.
5.2 Appointment of Administrative Committee. The Board of Directors of
the Sponsoring Company shall appoint an Administrative Committee consisting of
at least three (3) persons each of whom shall be employees of a Participating or
Affiliated Company. The President or an appropriate Vice President of the
Sponsoring Company shall certify to the Trustee the names of the members of the
Administrative Committee. A member of the Administrative Committee shall
automatically cease to be a member upon termination of employment with the
Participating Company or Affiliated Company. Any member of the Administrative
Committee may resign upon ten (10) days' prior written notice to the President
of the Sponsoring Company. The Board of Directors of the Sponsoring Company
shall be authorized to remove any member of the Administrative Committee at any
time and in its sole discretion to appoint a successor whenever a vacancy on the
Administrative Committee occurs.
5.3 Responsibility for Administration of the Trust Fund. Except as
otherwise provided herein, the Trustee shall be responsible for the management
and investment of the Trust Fund in accordance with the provisions of the Trust
Agreement.
5.4 Delegation of Powers. The Administrative Committee may appoint such
assistants or representatives as it deems necessary for the effective exercise
of its duties in administering the Plan and Trust. The Administrative Committee
may delegate to such assistants and representatives any powers and duties, both
ministerial and discretionary, as it deems expedient or appropriate.
5.5 Records. All acts and determinations with respect to the
administration of the Plan made by the Administrative Committee and any
assistants or representatives appointed by it shall be duly recorded by the
Administrative Committee or by the assistant or representative appointed by it
to keep such records. All records, together with such other documents as may be
necessary for the administration of the Plan, shall be preserved in the custody
of the Administrative Committee or the assistants or representatives appointed
by it.
5.6 General Administrative Powers. The Administrative Committee is
authorized to take such actions as may be necessary to carry out the provisions
and purposes of the Plan and shall have the authority to control and manage
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<PAGE>
EXHIBIT 4.1
the operation and administration of the Plan in accordance with its terms. In
order to effectuate the purposes of the Plan, the Administrative Committee shall
have the discretionary power to construe and interpret the Plan, to supply any
omissions therein, to reconcile and correct any errors or inconsistencies, to
decide any questions in the administration and application of the Plan, and to
make equitable adjustments for any mistakes or errors made in the administration
of the Plan. All such actions or determinations made by the Administrative
Committee, and the application of rules and regulations to a particular case or
issue by the Administrative Committee, in good faith, shall not be subject to
review by anyone, but shall be final, binding and conclusive on all persons ever
interested hereunder. In construing the Plan and in exercising its power under
provisions requiring Administrative Committee approval, the Administrative
Committee shall attempt to ascertain the purpose of the provisions in question
and when such purpose is known or reasonably ascertainable, such purpose shall
be given effect to the extent feasible. Likewise, the Administrative Committee
is authorized to determine all questions with respect to the individual rights
of all Participants and their Beneficiaries and Alternate Payees under this
Plan, including, but not limited to, all issues with respect to eligibility,
Compensation, service, valuation of Accounts, allocation of contributions and
Trust Fund earnings, retirement, Total and Permanent Disability, or Termination
of Employment, eligibility for loans and hardship withdrawals, and shall direct
the Trustee concerning the allocation, payment and distribution of all funds
held in trust for purposes of the Plan. The Administrative Committee shall
establish investment objectives and monitor, or cause to be monitored, the
investment performance of the Trustee or any Investment Manager which may be
appointed with respect to any assets of the Plan, and shall make such reports
and give such recommendations to the Board as it requests with respect thereto.
5.7 Appointment of Professional Assistants and Investment Manager. The
Administrative Committee may engage accountants, attorneys, physicians and such
other personnel as it deems necessary or advisable, including in its sole
discretion, one or more Investment Managers to manage (including the power to
acquire or dispose of) all or any of the assets of the Trust. The functions of
any such persons engaged by the Administrative Committee shall be limited to the
specific services and duties for which they are engaged, and such persons shall
have no other duties, obligations or responsibilities under the Plan or Trust.
Such persons shall exercise no discretionary authority or discretionary control
respecting the management of the Plan, and, unless engaged specifically as
Investment Manager, shall exercise no authority or control respecting management
or disposition of the assets of the Trust. The fees and costs of such services
are an administrative expense of the Plan to be paid out of the Trust Fund,
except to the extent that such fees and costs are paid by any of the
Participating Companies.
5.8 Actions of the Administrative Committee.
5.8(1) A majority of the members of the Administrative
Committee shall constitute a quorum for the transaction of business,
and shall have full power to act hereunder. Action by the
Administrative Committee shall be official if approved by a vote of a
majority of the members present at any official meeting. The
Administrative Committee may, without a meeting, authorize or approve
any action by written instrument signed by a majority of all of the
members. Any written memorandum signed by the Chairman, or any other
member of the Administrative Committee, or by any other person duly
authorized by the Administrative Committee to act, in respect of the
subject matter of the memorandum, shall have the same force and effect
as a formal resolution adopted in open meeting. The Administrative
Committee shall give to the Trustee any order, direction, consent,
certificate or advice required or permitted under the terms of the
Trust Agreement, and the Trustee shall be entitled to rely on, as
evidencing the action of the Administrative Committee, any instrument
delivered to the Trustee when: (i) if a resolution, it is certified by
the Chairman and Secretary, or (ii) if a memorandum, it is signed by a
majority of all of the members of the Administrative Committee, or by a
person who shall have been authorized to act for the Administrative
Committee in respect of the subject matter thereof.
5.8(2) A member of the Administrative Committee may not vote
or decide upon any matter relating solely to him or vote in any case in
which his individual right or claim to any benefit under the Plan is
specifically involved. If, in any case in which an Administrative
Committee member is so disqualified to act, the remaining members then
present cannot, by majority vote, act or decide, the Board will appoint
a temporary substitute member to exercise all of the powers of the
disqualified member concerning the matter in which he is disqualified.
II-26
<PAGE>
EXHIBIT 4.1
5.8(3) The Administrative Committee shall maintain minutes of
its meetings and written records of its actions, and as long as such
minutes and written records are maintained, members may participate and
hold a meeting of the Administrative Committee by means of conference
telephone or similar communications equipment which permits all persons
participating in the meeting to hear each other. Participating in such
a meeting constitutes presence in person at such meeting.
5.9 Directives of the Administrative Committee. Directives of the
Administrative Committee to the Trustee shall be delivered in writing, signed by
an appropriate member of the Administrative Committee.
5.10 Discretionary Acts. Any discretionary actions of the
Administrative Committee or any Participating Company with respect to the
administration of the Plan shall be made in a manner which does not discriminate
in favor of Highly Compensated Employees. In the event the Administrative
Committee exercises any discretionary authority under the Plan with respect to a
Participant who is a member of the Administrative Committee, such discretionary
authority shall be exercised solely and exclusively by those members of the
Administrative Committee other than such Participant, or, if such Participant is
the sole member of the Administrative Committee, such discretionary authority
shall be exercised solely and exclusively by the Board of Directors of the
Sponsoring Company.
5.11 Responsibility of Fiduciaries. The members of the Administrative
Committee and their assistants and representatives (other than any Investment
Manager) shall be free from all liability for their acts and conduct in the
administration of the Plan and Trust except for acts of willful misconduct or
gross negligence; provided, however, that the foregoing shall not relieve any of
them from any responsibility or liability for any responsibility, obligation or
duty that they may have pursuant to ERISA.
5.12 Indemnity by Participating Companies. In the event and to the
extent not insured against under any contract of insurance with an insurance
company, the Participating Companies shall indemnify and hold harmless each
"Indemnified Person," as defined below, against any and all claims, demands,
suits, proceedings, losses, damages, interest, penalties, expenses (specifically
including, but not limited to, counsel fees to the extent approved by the Board
of Directors of the Sponsoring Company or otherwise provided by law, court costs
and other reasonable expenses of litigation), and liability of every kind,
including amounts paid in settlement, with the approval of the Board of
Directors of the Sponsoring Company, arising from any action or cause of action
related to the Indemnified Person's act or acts or failure to act. Such
indemnity shall apply regardless of whether such claims, demands, suits,
proceedings, losses, damages, interest, penalties, expenses, and liability arise
in whole or in part from (i) the negligence or other fault of the Indemnified
Person, except when the same is judicially determined to be due to gross
negligence, fraud, recklessness, a willful or intentional misconduct of such
Indemnified Person or (ii) from the imposition on such Indemnified Person of any
penalties imposed by the Secretary of Labor, pursuant to Section 502(1) of
ERISA, relating to any breaches of fiduciary responsibility under Part 4 of
Title I of ERISA. "Indemnified Person" shall mean each member of the Board of
Directors of the Sponsoring Company, and the Administrative Committee and each
other Employee who is allocated fiduciary responsibility hereunder.
5.13 Payment of Fees and Expenses. The Trustee, the members of the
Administrative Committee and their assistants and representatives shall be
entitled to payment or reimbursement for all reasonable costs, charges and
expenses incurred in the administration of the Plan and Trust, including, but
not limited to, reasonable fees for accounting, legal and other services
rendered, to the extent incurred by the Trustee, the members of the
Administrative Committee or their assistants and representatives in the course
of performance of their duties under the Plan and the Trust. All costs, charges
and expenses incurred in the administration of the Plan and the Trust shall be
paid from the Trust Fund except to the extent paid by the Participating
Companies or any Affiliated Company. Notwithstanding any other provision of the
Plan or Trust, no person who is a "disqualified person," within the meaning of
Section 4975(e)(2) of the Code and who receives full-time pay from any
Participating Company shall receive compensation from the Trust Fund, except for
payment or reimbursement of expenses properly and actually incurred.
5.14 Plan Administrator. The Administrative Committee shall be the
"Plan Administrator" (as defined in Section 3(16)(A) of ERISA) of the Plan, and
shall be responsible for the performance of all reporting and disclosure
obligations under ERISA and all other obligations required or permitted to be
performed by the Plan Administrator under
II-27
<PAGE>
EXHIBIT 4.1
ERISA and not otherwise delegated to other parties under the terms of the Plan
or the Trust Agreement. The Plan Administrator shall be the designated agent for
service of legal process.
5.15 Allocation and Delegation of Administrative Committee
Responsibilities. The Administrative Committee may upon approval of a majority
of the members of the Administrative Committee, (i) allocate among any of the
members of the Administrative Committee any of the responsibilities of the
Administrative Committee under the Plan, or (ii) designate any person, firm or
corporation that is not a member of the Administrative Committee to carry out
any of the responsibilities of the Administrative Committee under the Plan. Any
such allocation or designation shall be made pursuant to a written instrument
executed by a majority of the members of the Administrative Committee.
SECTION SIX
DEPOSITS
--------
6.1 Company Matching Deposits.
6.1(1) Each Participating Company shall make a Company
Matching Deposit to the Trust for each calendar month in an amount
equal to a specified percent of the Basic Before-Tax Deposits, if any,
made by such Participating Company during such calendar month on behalf
of each Active Participant employed by such Participating Company
during such calendar month. The specified percentage of the Basic
Before-Tax Deposits to be matched for each Plan Year shall, no later
than December 1 of the preceding Plan Year, be determined by the Board
of Directors of the Sponsoring Company and be communicated to all
Participants and all Employees who will be eligible to become
Participants in the Plan during such succeeding Plan Year. In addition,
such specified percent may be increased by the Board of Directors of
the Sponsoring Company at any tune during the Plan Year.
6.1(2) Notwithstanding the foregoing, in no event shall any
Company Matching Deposit when added to any Before-Tax Deposits, exceed
the maximum permissible contribution under Section 404(a) of the Code.
All contributions of the Participating Companies hereunder are
conditioned on their deductibility under Section 404(a) of the Code.
The Participating Company's Company Matching Deposits to the Trust Fund
shall be made in cash. Company Matching Deposits shall be made in the
form of cash and deposited in Investment Trust No. 1 (unless the Board
of Directors of the Sponsoring Company directs otherwise).
6.1(3) In addition, there shall be paid as a separate,
one-time Company contribution an amount appropriate to compensate for
changing stock values in the transfer of assets from the Prior Plan
that created a shortfall in the accounts of certain Participants. Such
Company contribution shall be allocated to Company Matching Deposit
Accounts of Participants who had a portion of their Account transferred
from the Prior Plan, allocated in the ratio that the amount transferred
to the participant's matching Deposit Account as proceeds from the sale
of Arkansas Best Corporation stock in the Prior Plan bears to the value
of the total amount of such proceeds transferred to all Participants'
Accounts. Such values shall be determined in accordance with the
procedures established in Section 8.3 for the valuation of Company
Stock. Notwithstanding the foregoing, in no event shall such Company
contribution to any Participant's Account, when added to any Company
matching Deposit and any Before-Tax Deposits, exceed the maximum
permissible Contribution or Annual Addition, as described in Subsection
6.1(2) and Section 7.4 of this Plan, and the allocation of such Company
contribution to any Participant's account shall be further limited as
necessary to comply with the requirements of Code Section 401(a)(4).
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<PAGE>
EXHIBIT 4.1
6.2 Basic and Supplemental Before-Tax Deposits.
6.2(1) Each Participant may have contributed on his behalf to
the Trust Fund each month by salary reduction an amount ("Basic
Before-Tax Deposit") which shall be equal to one percent (1%), two
percent (2%), three percent (3%), or four percent (4%) of such
Participant's Compensation for such month, as such Participant shall
elect on the written authorization form provided for herein. Any Active
Participant who elects to have made on his behalf Basic Before-Tax
Deposits of four percent (4%) of his Compensation for each month may
also elect to have contributed on his behalf to the Trust Fund each
month by salary reduction an additional amount ("Supplemental
Before-Tax Deposit") equal to from one percent (1%) to eleven percent
(11%) of his Compensation; provided, however, such percent must be a
whole percent. Any designated Before-Tax Deposits (whether Basic or
Supplemental Deposits or both) shall qualify as elective contributions
under Section 401(k) of the Code and the regulations thereunder.
6.2(2) The percentage rate of Basic and Supplemental
Before-Tax Deposits, if any, which each Active Participant elects and
any changes thereto shall be made on a written form provided by and
filed with the Administrative Committee. The Administrative Committee
shall establish and communicate to Employees uniform and
nondiscriminatory procedures for the election of percentage rates of
Basic and Supplemental Before-Tax Deposits, including procedures
regarding the effective date of such election, and may change said
procedures at such times and in such manner as the Administrative
Committee may determine to be necessary or desirable. Any such change
in procedures shall be communicated to Employees.
6.2(3) An Active Participant's Basic and Supplemental
Before-Tax Deposits shall be credited to his appropriate Account under
the Plan. Any amounts of Basic or Supplemental Before-Tax Deposits
properly credited to a Participant's Accounts shall, for all purposes
and in all respects, be fully vested and nonforfeitable.
6.3 Date of Payment of Deposits. A Participating Company shall make its
Company Matching Deposits for a particular period on or before the last date,
including any extensions thereof, for filings its federal income tax return for
its taxable year ending with or after the last day of the Plan Year in which
such period falls or at such earlier time and in such amount as directed by the
Administrative Committee for the purpose of paying a Participant taking a final
distribution of the Company Match allocated to such Participant. A Participating
Company shall make all Basic and Supplemental Before-Tax Deposits as provided
for in Section 6.2 hereof to the Trust Fund as soon as administratively
practical following the deduction of such amounts from Active Participants' pay.
6.4 Special Limitations on Before-Tax Deposits. This Section 6.4 is
effective September 1, 1991. The limitations described in this Section 6.4 shall
be determined in accordance with Code Sections 401(k) and 402(g) and regulations
thereunder, which are incorporated by reference to the extent not expressly
stated below.
6.4(1) Notwithstanding any other provision of this Plan, in no
event shall a Participating Company make Before-Tax Deposits in any
Plan Year if such contribution would cause the "Actual Deferral
Percentage" (or "ADP") of Highly Compensated Employees to exceed the
greater of the limitations indicated below:
(a) One hundred twenty-five percent (125%) of the
ADP for all Non-Highly Compensated Employees; or
(b) The lesser of (i) the sum of the ADP for all
Non-Highly Compensated Employees plus two percent (2%), or
(ii) two hundred percent 200%) of the ADP for all Non-Highly
Compensated Employees.
Multiple use of the alternative method described in
this paragraph and in Code Section 401(m)(9)(A) will be
prevented through the pro rata reduction of both the actual
deferral percentage and the actual contribution percentage of
any Highly Compensated Employee eligible to make Before- Tax
Deposits pursuant to Section 6.2(1) and who is eligible to
make employee contributions or to receive Company Matching
Deposits under this Plan. Any reduction under this paragraph
will be made
II-29
<PAGE>
EXHIBIT 4.1
in accordance with Sections 6.4(3) and 6.5(3) hereof and Code
Section 401(m) and Treasury Regulation Sections 1.401(m)-1(b)
and 1.401(m)-2, the provisions of which are incorporated
herein by reference.
6.4(2) The Administrative Committee may, to the extent
necessary to conform the Before-Tax Deposits to the above limitations,
reduce prospectively, the percentage rates or dollar amounts of
Before-Tax Deposits to be made on behalf of Highly Compensated
Employees. Such prospective reductions may thereafter be adjusted by
the Administrative Committee, upon due notice to the affected
Participants, at any time thereafter to increase the elected percentage
rates for those Highly Compensated Employees whose rates or amounts
were previously reduced in accordance with this Subsection 6.4(2) if
the Administrative Committee shall determine that such increase will
not cause the limits set forth in Subsection 6.4(1) to be exceeded for
the Plan Year. Any decrease of a Participant's Before-Tax Deposits
under this Subsection 6.4(2) shall be in addition to and not otherwise
affect such Participant's rights to change or suspend contributions.
6.4(3) In the event that following the end of a Plan Year, it
is determined by the Administrative Committee that the Before-Tax
Deposits for Highly Compensated Employees exceed the limitations of
Subsection 6.4(1), then the amount in excess of such limitation
("Excess Contributions") (and the income thereon) shall be distributed
to the Highly Compensated Employees, notwithstanding any Plan provision
to the contrary, within the twelve (12) month period following the end
of the Plan Year in which such Excess Contributions occurred. In
distributing Excess Contributions, the following rules shall apply. The
Excess Contributions shall first be applied to reduce the percentage
rate elected by all those Highly Compensated Employees who have elected
the highest percentage rate of Before-Tax Deposits, shall then be
applied to reduce the percentage rate elected by all those Highly
Compensated Employees (including those Employees whose percentage rate
or dollar amount was previously reduced) whose elected percentage rate
is at the next highest percentage rate of Before-Tax Deposits and shall
thereafter continue to be applied to the extent necessary in like
manner in descending order on the basis of elected percentage rates
until the reductions enable the Before-Tax Deposits to conform to the
limitations of Subsection 6.4(1). The amount of Excess Contributions to
be distributed to each affected Highly Compensated Employee is equal to
the Before-Tax Deposits on behalf of such Employee (prior to reduction
of the Excess Contributions) less the product of such Employee's ADP
(after reduction of the Excess Contributions) times such Participant's
Total Compensation, rounded to the nearest one cent ($.01).
The amount of Excess Contributions that may be distributed
under this Subsection 6.4(3) with respect to a Highly Compensated
Employee for a Plan Year shall be reduced by any Excess Deferrals (as
defined in Subsection 6.4(7)) attributable to such Plan Year previously
distributed to the Employee. In the event a distribution of Before-Tax
Deposits constitutes a distribution of Excess Contributions and a
distribution of Excess Deferrals pursuant to Subsection 6.4(7), the
amounts distributed shall be treated as a simultaneous distribution of
both Excess Contributions and Excess Deferrals.
6.4(4) In determining the amount of income or loss allocable
to Excess Contributions which are being distributed, the following
rules shall apply:
(a) The income or loss allocable to Excess
Contributions for the Plan Year in which the contributions are
made is the income for the Plan Year allocable to Before-Tax
Deposits and amounts treated as Before-Tax Deposits with
respect to the Highly Compensated Employee, multiplied by a
fraction, the numerator of which is the amount of Excess
Contributions made on behalf of the Highly Compensated
Employee for the Plan Year and the denominator of which is the
combined balance of the aggregate of the Participant's Basic
Before-Tax Deposit Account and Supplemental Before-Tax Deposit
Account as of the end of the Plan Year before adjustment of
such Accounts as provided for in Section 9.3.
(b) No income or loss shall be allocable to the
Excess Contributions for the period between the end of the
Plan Year and the date of the distribution.
II-30
<PAGE>
EXHIBIT 4.1
For purposes of this Subsection 6.4(4), the income of
the Plan shall mean all earnings, gains and losses, computed
in accordance with the provisions of Section Eight.
6.4(5) Notwithstanding anything to the contrary contained
herein, in the case of a Highly Compensated Employee who is part of an
Aggregated Family Group, as defined in Subsection 6.4(8)(f), the
following rules shall apply:
(a) The ADP for the Aggregated Family Group (which
shall be treated as a single Highly Compensated Employee)
shall be the ADP determined by aggregating the Before-Tax
Deposits and Total Compensation of all Family Members, as
defined in Subsection 6.4(8)(f), who are Eligible Employees.
Otherwise, the Before Tax Deposits and Total Compensation of
all Family Members are disregarded for purposes of determining
the ADP for the Highly Compensated Employees, as a group, and
the Non-Highly Compensated Employees as a group.
(b) If the ADP of the Aggregated Family Group as
determined under Subsection 6.4(5)(a) above exceeds the
limitations of Subsection 6.4(1), the ADP shall be reduced as
provided in Subsection 6.4(3) in order to comply with the
limitations of Subsection 6.4(1), and Excess Contributions
shall be allocated among all of the Family Members in
proportion to each such Family Member's Before-Tax Deposits.
6.4(6) In addition to or in lieu of the above procedures to
conform Before-Tax Deposits to the limitations of Subsection 6.4(1),
the Sponsoring Company may, in its sole discretion, cause the
Participating Companies to contribute on behalf of any Non-highly
Compensated Employee additional contributions (which shall be treated
as Supplemental Before-Tax Deposits) to the extent necessary to insure
that the limitations of Subsection 6.4(1) are met. Such additional
contributions shall be immediately fully vested and subject to the
distribution restrictions of Section 15.8 hereof, applicable to
Before-Tax Deposits. Such additional contributions shall be treated as
Before-Tax Deposits only if the requirements of Treasury Regulation
Section 1.401(k)-1(b)(5) (or any successor thereto) are met.
6.4(7) Notwithstanding anything herein to the contrary, in no
event shall the Participating Employer make Before-Tax Deposits in any
calendar year on behalf of any Participant if such contribution would
cause the Before-Tax Deposits for such Participant for the calendar
year to exceed Seven Thousand Dollars ($7,000), or such amount as
adjusted by the Secretary of the Treasury or his delegate at the same
time and in the same manner as under Code Section 415(d). Should any
Before-Tax Deposits made to the Plan by the Participating Employer on
behalf of a Participant exceed Seven Thousand Dollars ($7,000), as
adjusted by the Secretary of the Treasury or his delegate at the same
time and in the same manner as under Code Section 415(d) ("Excess
Deferrals"), the Administrative Committee may distribute such Excess
Deferrals (and income thereon) to such Participant, notwithstanding any
Plan provision to the contrary, by the April 15 next following the
calendar year in which such Excess Deferral is made. The Administrative
Committee is authorized to establish such rules as may be necessary to
provide for distribution of Excess Deferrals (and income thereon)
caused by an individual's participation in more than one cash or
deferred arrangement where the total deferrals exceed the amount
referred to above and the individual allocates part of the aggregate
Excess Deferral to this Plan as permitted by law.
In determining the amount of income or loss allocable to
Excess Deferrals, the following rules shall apply:
(a) The income or loss allocable to Excess Deferrals
for the calendar year in which the deferrals are made is the
income or loss for the Plan Year allocable to Before-Tax
Deposits for the Participant multiplied by a fraction, the
numerator of which is the amount of Excess Deferrals made on
behalf of the Participant for the Plan Year and the
denominator of which is the aggregate balance of the
Participant's Basic Before-Tax Deposit Account and
Supplemental Before-Tax Deposit Account as of the end of the
Plan Year before adjustment of such Accounts as provided for
in Section 9.3.
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<PAGE>
EXHIBIT 4.1
(b) No income or loss shall be allocable to the
Excess Deferrals for the period between the end of the Plan
Year and the date of the distribution.
For purposes of this Subsection 6.4(7), the
income or loss of the Plan shall mean all earnings, gains and
losses computed in accordance with the provisions of Section
Eight.
The amount of Excess Deferrals that may be
distributed under this Subsection 6.4(7) with respect to a
Highly Compensated Employee for a calendar year shall be
reduced by any Excess Contributions previously distributed to
the Employee during such Plan Year. In the event a
distribution of Before-Tax Deposits constitutes a distribution
of Excess Contributions pursuant to Subsection 6.4(3) and a
distribution of Excess Deferrals pursuant to this Subsection
6.4(7), the amounts distributed shall be treated as a
simultaneous distribution of both Excess Contributions and
Excess Deferrals.
6.4(8) For purposes of this Section 6.4 and Section 6.5, the
following terms shall have the following meanings:
(a) "Actual Deferral Percentage" (or "ADP") shall
mean for the Highly Compensated Employees, as a group, and for
the Non-Highly Compensated Employees, as a group, the average
of the ratios (calculated separately for each Employee in such
group) of the Before-Tax Deposits, if any, made on behalf of
each such Employee for each Plan Year, to the Employee's Total
Compensation, as defined in Subsection 6.4(8)(e), for such
Plan Year. ADP for each group, and the ratio of Before- Tax
Contributions to Total Compensation for each individual, shall
be calculated to the nearest 100th of one percent.
In calculating ADP, Before-Tax Deposits
shall be taken into account for a Plan Year only if such
Before-Tax Deposits: (i) relate to Total Compensation that
would have been received by the Employee during such Plan Year
(but for the salary reduction election) or is attributable to
services performed by the Employee during such Plan Year and
would have been received by the Employee within two and
one-half (2 1/2) months after the close of such Plan Year (but
for the salary reduction agreement); and (ii) are allocated to
the Employee during such Plan Year. Before-Tax Deposits are
treated as allocated as of a particular date during a Plan
Year if allocation of such contribution is not contingent on
participation in the Plan or the performance of services after
such date and such contribution is paid to the Trust not later
than twelve (12) months after the close of such Plan Year.
In calculating the ADP of a Highly
Compensated Employee who participates in more than one plan
maintained by an Affiliated Company, all elective deferrals
(as defined in Section 401(m)(4) of the Code) of such Employee
shall be aggregated for purposes of determining such
percentage.
In calculating ADP, all elective deferrals
(as defined in Section 401(m)(4) of the Code) to any plan
required to be aggregated with the Plan for purposes of Code
Section 401(a)(4) or 410(b) shall be treated as if made under
the Plan. If the Plan is permissively aggregated with another
plan in order to comply with the limitations of Subsection
6.4(1), such aggregated plans must also meet the requirements
of Code Sections 401(a)(4) and 410(b) as a single plan.
(b) "Highly Compensated Employee" shall mean any
Eligible Employee who is a highly compensated employee as
defined in Code Section 414(q) and the regulations thereunder.
Generally, any Eligible Employee is considered a Highly
Compensated Employee if such Eligible Employee:
(i) Was at any time during the current Plan
Year or the prior Plan Year, a "five percent owner"
as defined in Section 416(i)(1)(B)(i) of the Code,
with respect to a Participating Company;
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EXHIBIT 4.1
(ii) received Limitation Year Compensation
from a Participating Company in excess of
Seventy-Five Thousand Dollars ($75,000) as adjusted
by the Secretary of Treasury pursuant to Section
414(q)(1) of the Code during the prior Plan Year;
(iii) received Limitation Year Compensation
from a Participating Company in excess of Fifty
Thousand Dollars ($50,000) as adjusted by the
Secretary of Treasury pursuant to Section 414(q)(1)
of the Code, and was in the top-paid group of
Employees during the prior Plan Year. An Employee is
in the top-paid group of Employees for any Plan Year
if such Employee is in the group consisting of the
top twenty percent (20%) of the Employees when ranked
on the basis of Limitation Year Compensation paid
during the Plan Year. For purposes of determining the
number of Employees in the top-paid group, Employees
who have not completed six (6) months of service,
normally work less than seventeen and one-half (17
1/2) hours per week, normally work during six (6) or
less months per year, have not attained the age of
twenty-one (21), are nonresident aliens with no
earned income from sources within the United States
(within the meaning of Section 861(a)(3) of the
Code), or are included in a unit of employees covered
by a collective bargaining agreement (except to the
extent provided in regulations), shall not be
included;
(iv) is an officer of a Participating
Company who received Limitation Year Compensation for
a Plan Year in excess of fifty percent (50%) of the
amount in effect under Code Section 415(b)(1)(A) for
such Plan Year (if no officer of a Participating
Company has Limitation Year Compensation in excess of
such amount, the officer having the highest
Limitation Year Compensation for such Plan Year shall
be treated as an officer). For purposes of this
Subsection, not more than fifty (50) Employees (or,
if less, the greater of three (3) Employees or ten
percent (10%) of Employees) shall be treated as
officers.
(v) An Eligible Employee who is not
described in (ii), (iii) or (iv) above for the
immediately preceding Plan Year shall only be
considered a Highly Compensated Employee if he is
among the 100 highest paid Employees during the
current Plan Year.
For purposes of this Section 6.4 and Section 6.5: (i) the
determination of "Limitation Year Compensation" shall include
amounts deferred pursuant to Code Sections 125, 401(k) and
403(b), (ii) Limitation Year Compensation shall include
compensation paid by any employer required to be aggregated
with a Participating Company under Section 414(b), (c), (m) or
(o) of the Code, and (iii) a Former Employee who is an
Eligible Employee shall be treated as a Highly Compensated
Employee if such Former Employee was a Highly Compensated
Employee when he separated from service with the Participating
Company or was a Highly Compensated Employee at any time after
attaining age fifty- five (55). "Former Employee" shall mean a
person who has been an Employee, but who ceased to be an
Employee for any reason and later returned to employment with
the Participating Company.
(c) "Non-Highly Compensated Employee" shall mean each
Eligible Employee who is not a Highly Compensated Employee.
(d) "Eligible Employee" shall mean each Eligible
Employee who has completed the service requirements of Section
3.01 and is eligible to become a Participant and each other
Employee who is an Active Participant.
(e) "Total Compensation" shall mean compensation
received by an Eligible Employee for the Plan Year in question
from an Affiliated Company which is required to be reported as
wages for income tax purposes on the Eligible Employee's Form
W-2 plus, if elected by the Administrative Committee in
accordance with Treasury Regulations, any amount that is not
currently includable in the Eligible Employee's gross income
by reason of a deferral pursuant to Sections 125 and 401(k) of
the Code. In the event an Employee begins, resumes or ceases
to be an Eligible Employee during a Plan
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EXHIBIT 4.1
Year, the amount of the Employee's Total Compensation for only
the portion of the Plan Year in which he was an Eligible
Employee shall be taken into account for purposes of Sections
6.4 and 6.5. Effective for periods prior to January 1, 1994,
Total Compensation shall be limited to Two Hundred Thousand
Dollars ($200,000) or such higher amount to which such amount
shall be adjusted by the Secretary of the Treasury or his
delegate pursuant to Section 401(a)(17) of the Code. Effective
January 1, 1994, Total Compensation shall be limited to One
Hundred Fifty Thousand Dollars ($150,000) or such higher
amount to which such amount shall be adjusted by the Secretary
of the Treasury or his delegate pursuant to Section 401(a)(17)
of the Code.
(f) "Aggregated Family Group" shall mean a family
group required to be aggregated under Code Section 414(q)(6)
and regulations thereunder and shall include any member of the
family, as defined in Code Section 414(q)(6) and regulations
thereunder, of either (i) a five percent (5%) owner, or (ii)
one of the ten (10) Highly Compensated Employees paid the
greatest Limitation Year Compensation for the current Plan
Year. Any spouse, lineal ascendant, lineal descendent, spouse
of a lineal ascendant, or spouse of a lineal descendent of
such a Highly Compensated Employee (a "Family Member") shall
be included in the "Aggregated Family Group."
6.4(9) Notwithstanding anything to the contrary in the Plan,
to the extent a Participant's Before-Tax Deposits for a Plan Year are
reduced and refunded to him pursuant to Subsection 6.4(3) or Subsection
7.4(4), such refunded amounts shall be disregarded in determining the
amount of Company Matching Deposits to which a Participant is entitled
for the Plan Year.
6.5 Special Limitation on Company Matching Deposits. The limitations
described in this Section 6.5 shall be determined in accordance with the
applicable sections of the Code and regulations thereunder. Notwithstanding
anything to the contrary in this Section 6.5 or in Section 6.4, the limitations
of Subsection 6.4 or 6.5 shall be reduced to the extent required by Treasury
Regulation Section 1.401(m)-2 (or any successor thereto).
6.5(1) Notwithstanding any other provision of this Plan, the
"Actual Contribution Percentage" (or "ACP") of Company Matching
Deposits made to this Plan for Highly Compensated Employees during any
Plan Year shall not exceed the greater of the limitations indicated
below:
(a) One hundred twenty-five percent (125%) of the
ACP for all Non-Highly Compensated Employees; or
(b) The lesser of (i) the sum of the ACP for all
Non-Highly Compensated Employees plus two percent (2%), or
(ii) two hundred percent (200%) of the ACP for all Non-Highly
Compensated Employees. However, multiple use of the
alternative method described in this paragraph and in Code
Section 401(m)(9)(A) will be prevented through the pro rata
reduction of both the actual deferral percentage and the
actual contribution percentage of any Highly Compensated
Employee eligible to make Before-Tax Deposits pursuant to
Section 6.2(1) and who is eligible to make employee
contributions or to receive Company Matching Deposits under
this Plan. Any reduction under this paragraph will be made in
accordance with Sections 6.4(3) and 6.5(3) hereof and Code
Section 401(m) and Treasury Regulation Sections 1.401(m)-1(b)
and 1.401(m)-2, the provisions of which are incorporated
herein by reference.
6.5(2) The Administrative Committee shall, to the extent
necessary to conform to the limitations of Subsection 6.5(1), reduce
prospectively, the percentage rates or dollar amounts of Company
Matching Deposits to be made on behalf of Highly Compensated Employees.
Such prospective reductions may thereafter be adjusted by the
Administrative Committee, upon due notice to the affected Participants,
at any time thereafter to increase the elected percentage rates for
those Highly Compensated Employees whose rates were previously reduced
in accordance with this subsection if the Administrative Committee
shall determine that such increase will not cause the limits set forth
in this subsection to be exceeded for the Plan Year.
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EXHIBIT 4.1
6.5(3) In the event that following the end of the Plan Year,
it is determined by the Administrative Committee that the Company
Matching Deposits for Highly Compensated Employees exceed the
limitations of Subsection 6.5(1), then the amount in excess of such
limitation ("Excess Aggregate Contributions") (and income thereon)
shall be distributed to the Highly Compensated Employees who are one
hundred percent (100%) vested in such amounts, notwithstanding any Plan
provision to the contrary, within the twelve months following the end
of the Plan Year in which such Excess Aggregate Contributions occurred.
In the case of any Highly Compensated Employee who is not one hundred
percent (100%) vested in his Company Matching Deposit Account, such
excess amount shall be treated as a forfeiture under Section 14.4. The
Excess Aggregate Contributions shall first be applied to reduce the
percentage rate elected by all those Highly Compensated Employees who
have elected the highest percentage rate of Company Matching Deposits,
shall then be applied to reduce the percentage rate elected by all
those Highly Compensated Employees (including those Employees whose
percentage rate was previously reduced) whose elected percentage rate
is at the next highest percentage rate of Company Matching Deposits,
and shall thereafter continue to be applied to the extent necessary in
like manner in descending order on the basis of elected percentage
rates until the reductions enable the Company Matching Deposits to
conform to the limitations of Subsection 6.5(1). The amount of Excess
Aggregate Contributions to be distributed to each affected Highly
Compensated Employee is equal to the Company Matching Deposits on
behalf of such Employee (prior to reduction of the Excess Aggregate
Contributions), less the product of such Employee's ACP (after
reduction of the Excess Aggregate Contributions) times such
Participant's Total Compensation, rounded to the nearest one cent
($.01).
6.5(4) In determining the amount of income or loss allocable
to Excess Aggregate Contributions which are being distributed, the
following rules shall apply:
(a) The income or loss allocable to Excess Aggregate
Contributions for the Plan Year in which the contributions are
made is the income or loss for the Plan Year allocable to
Company Matching Deposits with respect to the Highly
Compensated Employee multiplied by a fraction, the numerator
of which is the amount of Excess Aggregate Contributions made
on behalf of the Highly Compensated Employee for the Plan Year
and the denominator of which is the balance of the Company
Matching Deposits Account attributable to Company Matching
Deposits as of the end of the Plan Year.
(b) No income or loss shall be allocable to the
Excess Aggregate Contributions for the period between the end
of the Plan Year and the date of the distribution.
For purposes of this Subsection 6.5(4), the income or loss of the Plan
shall mean all earnings, gains and losses computed in accordance with
the provisions of Section Eight.
6.5(5) Notwithstanding anything to the contrary contained
herein, in the case of a Highly Compensated Employee who is part of an
Aggregated Family Group, the following rules shall apply:
(a) The ACP for the Aggregated Family Group (which
shall be treated as a Single Highly Compensated Employee), as
defined in Subsection 6.4(8)(e), shall be the ACP determined
by aggregating the Company Matching Deposits and Total
Compensation of all Family Members, as defined in Subsection
6.4(8)(e), who are Eligible Employees. Otherwise, the Company
Matching Deposits and Total Compensation of all Family Members
are disregarded for purposes of determining the ACP for the
Highly Compensated Employees, as a group, and the Non-Highly
Compensated Employees, as a group.
(b) If the ACP of the Aggregated Family Group is
determined under Subsection 6.5(5)(a) above and the
limitations of Subsection 6.5(1) are exceeded, the ACP shall
be reduced as provided in Subsection 6.5(3) in order to comply
with the limitations of Subsection 6.5(1), and Excess
Aggregate Contributions shall be allocated among all of the
Family Members in proportion to each such Family Member's
Company Matching Deposits.
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EXHIBIT 4.1
6.5(6) In addition to or in lieu of the above procedures to
conform Company Matching Deposits to the limitations of Subsection
6.5(1), the Sponsoring Company may, in its sole discretion, cause the
Participating Companies to contribute on behalf of any Non-highly
Compensated Employee additional contributions (which shall be treated
as Supplemental Before-Tax Deposits) to the extent necessary to insure
that the limitations of Subsection 6.5(1) are met. Such additional
contributions shall be immediately fully vested and subject to the
distribution restrictions of Section 15.8 hereof, applicable to
Before-Tax Deposits. Such additional contributions shall be treated as
Before-Tax Deposits only if the requirements of Treasury Regulation
Section 1.401(m)-1(b)(5) (or any successor thereto) are met. In
addition, the Administrative Committee may designate that all or part
of the Before-Tax Deposits shall be included in the calculations under
Subsection 6.5(1) (any such amounts shall not be included in the
calculations under Subsection 6.4(1)) provided such use complies with
the requirements of Treasury Regulation Section 1.401(m)-1(b)(2) (or
any successor thereto).
6.5(7) For purposes of this Section 6.5 the following terms
shall have the following meaning:
(a) "Actual Contribution Percentage" (or "ACP") shall
mean for the Highly Compensated Employees, as a group, and for
the Non-Highly Compensated Employees, as a group, the average
of the ratios (calculated separately for each Employee in such
group) of the amount of Company Matching Deposits paid to the
Trust for each such Employee for each Plan Year to the
Employee's Total Compensation, as defined in Subsection
6.4(8)(d), for such Plan Year.
In calculating ACP, a Company Matching
Deposit shall be taken into account for a Plan Year only if
such Contribution: (i) is made on account of the Employee's
Before-Tax Deposits for the Plan Year, (ii) is allocated to
the Employee during such Plan Year, and (iii) is paid to the
Trust not later than the last day of the twelfth (12th) month
following the close of such Plan Year.
In calculating ACP, all employee
contributions and employer matching contributions (as defined
in Section 401(m)(4) of the Code) of any Highly Compensated
Employee who participates in more than one plan maintained by
an Affiliated Company shall be aggregated for purposes of
determining such percentage.
In calculating ACP, all employee
contributions and employer matching contributions (as defined
in Section 401(m)(4) of the Code) to any plan required to be
aggregated with the Plan for purposes of Code Section
401(a)(4) or 410(b) shall be treated as if made under the
Plan. If the Plan is permissively aggregated with another plan
in order to comply with the limitations of Subsection 6.5(1),
such aggregated plans must also meet the requirements of Code
Sections 401(a)(4) and 410(b) as a single plan.
(b) "Highly Compensated Employee," "Eligible
Employee," "Non-Highly Compensated Employee," "Total
Compensation," "Aggregated Family Group," and "Family Member"
shall all have the meanings set forth in Subsection 6.4(8).
6.6 Right to Change Rate of, Resume or Discontinue Before-Tax Deposits.
6.6(1) An Active Participant may voluntarily suspend his
Before-Tax Deposits at any time by delivering to the Administrative
Committee written notification of his election to suspend said
contributions on the form prescribed for that purpose by the
Administrative Committee. No suspension of Basic Before-Tax Deposits
shall be effective unless the Participant has already suspended or is
simultaneously suspending his Supplemental Before-Tax Deposits. Any
such suspension shall be effective as of the first day of the payroll
period next following the date which is seven (7) days after the date
the Administrative Committee receives such written notification.
6.6(2) A Participant may, in accordance with this Section,
change the rate of the Before-Tax Deposits made to the Trust on his
behalf to another rate permitted under Section 6.2, or to resume having
made
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EXHIBIT 4.1
Before-Tax Deposits in any amount permitted under Section 6.2, to the
Trust on his behalf provided that (i) any such change of rate shall be
effective on the first day of the calendar month next following the
date written notice of such change is received by the Administrative
Committee, and (ii) any such change shall be in whole percentages of
the Participant's Compensation. A Participant who desires to change the
rate of or to resume such contributions must notify the Administrative
Committee thereof in writing on forms specified by the Administrative
Committee.
6.7 Withdrawals from Participant Accounts.
6.7(1) Subject to the provisions of Subsections 6.7(2) and
6.7(3), Section 15.3 and Subsection 29.3(3) hereof, a Participant, upon
or after attaining age fifty-nine and one-half (59 1/2) or upon meeting
the conditions of hardship, may withdraw the following amounts
(determined as of the most recently available Valuation Date coincident
with or next following the date a written request for such withdrawal
is received by the Administrative Committee) from the following
Accounts in the following order: (i) all or any portion of the
Participant's previously unwithdrawn Cash Transfers From Another
Qualified Plan credited to his Rollover Account, (ii) all or any
portion of the current value of previously unwithdrawn earnings in the
Participant's Rollover Account, (iii) all or any portion of the
Participant's previously unwithdrawn Supplemental Before-Tax Deposits,
and (iv) all or any portion of the Participant's previously unwithdrawn
Basic Before-Tax Deposits. No amount shall be withdrawn under a
succeeding clause until all amounts which may be withdrawn under a
preceding clause have been withdrawn (which withdrawal may be
simultaneous with the withdrawal under a succeeding clause).
Notwithstanding the foregoing, in no event shall a hardship withdrawal
of any amount allocated to a Participant's Accounts pursuant to
Subsection 6.4(6) or 6.5(6) or of any earnings or gains credited to a
Participant's Before- Tax Deposits be permitted.
The following provisions shall apply with respect to hardship
withdrawals:
(a) Application for withdrawal must be made in
writing on a form approved by the Administrative Committee,
and must set out in detail the circumstances establishing that
the proposed withdrawal is for a Permitted Purpose.
(b) The Administrative Committee's determination of
whether the application meets the requirements of this section
and the Code and regulations thereunder shall be final and
conclusive, and in making such determination, the
Administrative Committee shall follow uniform and
nondiscriminatory rules.
(c) If the Administrative Committee is satisfied that
the application meets the requirements of this section and the
Code and regulations thereunder, the application shall be
granted.
(d) The expression "Permitted Purpose," as used in
this Subsection 6.7(1), means a withdrawal which is necessary
in light of immediate and heavy financial need of the
Participant which is (i) due to medical expenses described in
Code Section 213 incurred by the Participant, the
Participant's spouse or dependents (as defined in Code Section
152) or necessary for such persons to obtain medical care,
(ii) for purchase of a principal residence of the Participant,
(iii) for payment of tuition for the next twelve (12) months
of post-secondary education for the Participant or such
Participant's immediate family, (iv) needed to prevent
eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's principal
residence, or (v) such other purposes as permitted by the
Commissioner of the Internal Revenue Service. Such payment
shall not be made unless the Committee determines the
Participant has obtained all distributions (other than
hardship distributions) and all nontaxable loans currently
available under all plans maintained by the Participating
Company or any Affiliated Company, and in no event will such
payment exceed the amount required to meet such financial
need.
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EXHIBIT 4.1
(e) A distribution will not be deemed necessary in
light of immediate and heavy financial need of a Participant
to the extent the amount of the distribution is in excess of
the amount required to relieve the financial need or to the
extent such need can be satisfied from other resources
reasonably available to the Participant, as determined by the
Administrative Committee on the basis of all relevant facts
and circumstances. In making such determination, the
Administrative Committee may rely on a certification by the
Participant that the financial need cannot be relieved: (i)
through reimbursement or compensation by insurance or
otherwise, (ii) by reasonable liquidation of the Participant's
(or the Participant's spouse's or minor children's) assets, to
the extent such liquidation would not itself cause a hardship,
(iii) by ceasing Before-Tax Deposits to the Plan or
contributions to other plans, or (iv) by other distributions
or loans from the Plan or any other plan, or by borrowing from
commercial sources on reasonable commercial terms, in an
amount sufficient to satisfy the need.
6.7(2) If, at any time, a Participant withdraws less than the
entire amount which is available for his withdrawal at such time from
all Accounts, then such Participant must withdraw a minimum amount
equal to Five Hundred Dollars ($500.00).
6.7(3) Notwithstanding the foregoing provisions of this
Section 6.7, the Administrative Committee shall, subject to any terms
and conditions imposed by the Trustee, establish additional uniform
policies and procedures, including procedures regarding the manner in
which the amount of any withdrawal shall be obtained from the
Investment Funds referred to in Section 9.4 hereof to which such
Participant has directed the investment of the amounts credited to his
Accounts.
SECTION SEVEN
ALLOCATION TO PARTICIPANTS' ACCOUNTS
------------------------------------
7.1 Methods of Allocating Deposits.
7.1(1) Subject to the limitations of Section 7.4 hereof and
subject to the provisions of Subsection 29.3(1) hereof, the Company
Matching Deposit of each Participating Company for each calendar month
pursuant to Subsection 6.1(1) above shall be allocated to the Company
Matching Deposit Account of the Participant on whose behalf said
Company Matching Deposit was made, as of the last day of such month.
7.1(2) Subject to the limitations of Section 7.4 hereof, each
Participant's Basic and Supplemental Before-Tax Deposits for each month
shall be allocated to the appropriate Account as of the last day of
such month.
7.2 Allocation to a Participant Transferred to a Participating Company.
If, during a Plan Year, an Active Participant is transferred from one
Participating Company to another Participating Company, such Participant's share
of the Company Matching Deposits of each Participating Company shall be
determined on the basis of the Basic Before-Tax Deposits made on behalf of such
Active Participant for the portion of the Plan Year that such Active Participant
was employed by such Participating Company.
7.3 Allocation to a Participant Transferred to an Affiliated Company
Which Has Not Adopted the Plan. Notwithstanding any other provision of the Plan,
if a Participant is transferred from a Participating Company to an Affiliated
Company which has not adopted the Plan, he shall continue to participate in the
Plan as an Inactive Participant who has elected a voluntary suspension of Basic
and Supplemental Before-Tax Deposits. If such Participant is subsequently
reemployed by a Participating Company, he shall be eligible to elect to have
made on his behalf Basic and Supplemental Before-Tax Deposits as of the Entry
Date coincident with or next following the Participant's reemployment, provided
he complies with the provisions of Section 6.2 of the Plan.
7.4 Limitations on Annual Additions.
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EXHIBIT 4.1
7.4(1) Notwithstanding any other provision of the Plan, the
sum of the Annual Additions to a Participant's Accounts for any
Limitation Year shall not exceed the lesser of (i) Thirty Thousand
Dollars ($30,000) or, if greater, one-fourth (1/4) of the defined
benefit dollar limitation set forth in Section 415(b)(1)(A) of the Code
as in effect for the Limitation Year, or (ii) twenty-five percent (25%)
of such Participant's Limitation Year Compensation for the entire
Limitation Year (even though such Participant may not have been a
Participant for the entire Limitation Year). The term "Annual
Additions" to a Participant's Accounts for any Limitation Year shall
mean the sum of:
(a) Such Participant's allocable share of the
contributions of the Participating Company, including
Before-Tax Deposits and Company Matching Deposits, credited to
such Participant within such Limitation Year;
(b) Any amount allocated to an "individual medical
account," as defined in Section 415(l)(2) of the Code, which
is part of a pension or annuity Plan maintained by a
Participating Company; and
(c) Any amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after
such date, which are attributable to post-retirement medical
benefits allocated to the separate account of a key employee
(as defined in Section 419A(d)(3) of the Code) under a welfare
benefit fund (as defined in Section 419(e) of the Code)
maintained by a Participating Company.
(d) Such Participant's allocable share of
forfeitures, if any, credited to such Participant within such
Plan Year; and
(e) Any Participant contributions;
provided, however, that the twenty-five percent (25%)
limitation set forth in Subsection 7.4(1)(ii) above shall not
apply to amounts described in Subsection (b) or (c) above.
Solely for purposes of this Section 7.4, the determination of a
Participant's allocable share of Participating Company contributions
and forfeitures, if any, for a Limitation Year shall exclude any
Participating Company contributions and forfeitures allocated to such
Participant for any of the reasons set forth in Sections
1.415-6(b)(2)(ii)-(vi) of the Income Tax Regulations (except as
otherwise provided in such Sections).
7.4(2) In the event that as a result of (i) the allocation of
forfeitures, (ii) a reasonable error in estimating a Participant's
Limitation Year Compensation, (iii) a reasonable error in determining
the amount of Before-Tax Deposits that may be made under this Section,
or (iv) other facts and circumstances which the Commissioner of
Internal Revenue or his delegate finds justify the availability of the
provisions of this Subsection 7.4(2) and Subsections 7.4(3) and 7.4(4),
it is determined that, but for the limitations contained in Subsection
7.4(1), the Annual Additions to a Participant's Accounts for any
Limitation Year would be in excess of the limitations contained herein,
such Annual Additions shall be reduced to the extent necessary to bring
such Annual Additions within the limitations contained in Subsection
7.4(1) in the following order:
(a) Such Participant's Supplemental Before-Tax
Deposits for the Plan Year ending within such Limitation Year
shall be reduced.
(b) Such Participant's allocable share of Basic
Before-Tax Deposits and Company Matching Deposits for the Plan
Year ending within such Limitation Year shall be
simultaneously reduced on a pro-rata basis.
7.4(3) If, and to the extent that the amount of any
Participant's allocable share of Company Matching Deposits or such
Participant's Basic or Supplemental Before-Tax Deposits are reduced in
accordance with the
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EXHIBIT 4.1
provisions of Subsection 7.4(2) above, the amount of such reduction
(the "Excess Amounts") shall be used to reduce the contributions made
for such Participant for the next Limitation Year (and succeeding
Limitation Years, as necessary), if that Participant is covered by the
Plan as of the end of the Limitation Year. However, if that Participant
is not covered by the Plan as of the end of the Limitation Year, then
the Excess Amounts shall be maintained in a separate suspense account
under the Trust for the Limitation Year and allocated and reallocated
in the next Limitation Year among all of the remaining Participants in
the Plan. If in said next Limitation Year, after the allocations as
provided for herein, there are any Excess Amounts remaining which
cannot be allocated to any Participant as a result of the limitations
contained herein, such amount shall be maintained in a separate
suspense account under the Trust to be used to reduce Company Matching
Deposits of the Participating Company in the next Limitation Year (and
succeeding Limitation Years, as necessary) for all of the remaining
Participants in the Plan.
7.4(4) Any suspense account established pursuant to this
Section 7.4 shall not be adjusted to reflect net income, loss,
appreciation or depreciation in the value of the Trust Fund as provided
for an Employee's regular Accounts pursuant to Section Nine of the
Plan.
7.4(5) If the amount of any Participant's Basic or
Supplemental Before-Tax Deposits are reduced in accordance with the
provision of Subsection 7.4(2) above, the amount of such reduction (the
"Excess Amounts"), adjusted for earnings or losses in a manner similar
to Section 6.4(4) above, shall be distributed to such Participant, and
shall be disregarded for purposes of Section 6.4 above.
7.4(6) In the event of termination of the Plan, the suspense
account established pursuant to this Section 7.4 shall refer to the
Participating Company to the extent it may not then be allocated to any
Participant's Account.
7.5 Limitations on Annual Additions for Participating Companies or
Affiliated Companies Maintaining Other Defined Contribution Plans. In the event
that any Participant in this Plan is a participant under any other Defined
Contribution Plan maintained by a Participating Company or an Affiliated Company
(whether or not terminated), the total amount of annual additions, as defined in
Section 415(c) of the Code and regulations thereunder, to such Participant's
accounts from all such Defined Contribution Plans shall not exceed the
limitations set forth in Subsection 7.4(1) hereof. If such total amount of
annual additions to each Participant's accounts from all such Defined
Contribution Plans does exceed the limitations set forth in Subsection 7.4(1)
hereof, then the Annual Additions to a Participant's Accounts in this Plan shall
be reduced, and such reduction shall be accomplished in accordance with the
provisions of Section 7.4 hereof.
7.6 Limitations on Benefits and Annual Additions for Participating
Companies or Affiliated Companies Maintaining Defined Benefit Plans. In the
event that any Participant in this Plan is a participant under one or more
Defined Benefit Plans maintained by a Participating Company or an Affiliated
Company (whether or not terminated), then the sum of the Defined Benefit Plan
Fraction for such Limitation Year and the Defined Contribution Plan Fraction for
such Limitation Year shall not exceed one (1.0). If the sum of the Defined
Benefit Plan Fraction for any Limitation Year and the Defined Contribution Plan
Fraction for such Limitation Year does exceed one (1.0), then the annual
additions to a Participant's Accounts under this Plan shall be reduced
subsequent to reductions under any Defined Benefit Plan.
7.7 Definitions Relating to Annual Addition Limitations. For purposes
of Sections 7.4, 7.5 and 7.6 hereof and this Section 7.7, the following
definitions shall apply:
7.7(1) "Retirement Plan" shall mean (a) any profit sharing,
pension or stock bonus plan described in Sections 401(a) and 501(a) of
the Code, (b) any annuity plan or annuity contract described in Section
403(a) or 403(b) of the Code, (c) any simplified employee pension plan
described in Section 408(k) of the Code and (d) any individual
retirement account or individual retirement annuity described in
Section 408(a) or 408(b) of the Code.
7.7(2) "Defined Contribution Plan" shall mean a Retirement
Plan which provides for an individual account for each participant and
for benefits based solely on the amount contributed to the
participant's accounts,
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EXHIBIT 4.1
and any income, expenses, gains or losses, and any forfeitures of
accounts of other participants which may be allocated to such
participant's account.
7.7(3) "Defined Benefit Plan" shall mean any Retirement Plan
which does not meet the definition of a Defined Contribution Plan.
7.7(4) "Defined Benefit Plan Fraction" shall mean a fraction
calculated in accordance with Code Section 415(e)(2).
7.7(5) "Defined Contribution Plan Fraction" shall mean a
fraction, the numerator of which is the sum of the Annual Additions to
the Participant's account under all the Defined Contribution Plans
(whether or not terminated) maintained by the Participating Companies
or any Affiliated Company for the current and all prior Limitation
Years, (including the Annual Additions attributable to the
Participant's nondeductible employee contributions to this and all
other Defined Contribution Plans, whether or not terminated, maintained
by the Participating Companies or any Affiliated Company), and the
denominator of which is the sum of the Maximum Aggregate Amounts for
the current and all prior Limitation Years of service with the
Participating Companies or any Affiliated Company (regardless of
whether a Defined Contribution Plan was maintained by the Participating
Companies or any Affiliated Company). The "Maximum Aggregate Amount" in
any Limitation Year is the lesser of one hundred twenty-five percent
(125%) of the dollar limitation in effect under Section 415(c)(1)(A) of
the Code or one hundred forty percent (140%) of the amount which may be
taken into account under Section 415(c)(1)(B) of the Code.
7.7(6)"Limitation Year" shall mean the twelve (12) consecutive
month period ending on December 31.
7.7(7) "Limitation Year Compensation" shall mean the aggregate
of (i) all wages, salaries and other amounts received for personal
services actually rendered in the course of employment with all
Participating Companies and Affiliated Companies (including, but not
limited to, commissions paid to salesmen, compensation for services on
the basis of a percentage of profits, commissions on insurance
premiums, tips, fringe benefits, expense accounts and bonuses) which
are actually paid or made available to a Participant within a
Limitation Year; (ii) in the case of a Participant who is an employee
within the meaning of Code Section 401(c)(1), the Participant's earned
income (as described in Code Section 401(c)(2)); (iii) amounts
described in Code Sections
104(a)(3), 105(a) and 105(h), but only to the extent that these
amounts are includable in the gross income of the Participant; (iv)
amounts paid or reimbursed for moving expenses incurred by a
Participant, but only to the extent that these amounts are not
deductible by the Participant under Code Section 217; (v) the value of
a non-qualified stock option granted to a Participant but only to the
extent that the value of the option is includable in the gross income
of the Participant for the taxable year in which granted; (vi) the
amount includable in the gross income of a Participant upon making the
election described in Code Section 83 (b); which are actually paid or
made available (or, for Limitation Years beginning prior to December
31, 1991, accrued, if the Company properly so elected) to a Participant
within a Limitation Year. Paragraphs (i) and (ii) of this section
include foreign earned income (as defined in Code Section 911(b)),
whether or not excludable from gross income under code Section 911.
Limitation Year Compensation shall not include the following:
(a) Contributions made by any Participating Company
or Affiliated Company to a plan of deferred compensation to
the extent that, before the application of the Section 415
limitations to the Plan, the contributions are not included in
the gross income of the Participant for the taxable year in
which contributed, or contributions made by any Participating
Company or Affiliated Company under a simplified employee
pension plan to the extent the contributions are deductible by
the Participant, and any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or
property) held by a Participant become freely transferable or
is no longer subject to a substantial risk of forfeiture;
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EXHIBIT 4.1
(c) Amount realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option;
and
(d) Other amounts that receive special tax benefits,
such as premiums for group term life insurance (but only to
the extent that premiums are includable in the gross income of
the Participant), or contributions made by any Participating
Company or Affiliated Company (whether or not under a salary
reduction agreement) towards the purchase of an annuity
contract as described in Section 403(b) of the Code (whether
or not the contributions are excludable from the gross income
of the Participant).
SECTION EIGHT
VALUATION OF TRUST FUND
-----------------------
8.1 Regular Valuation. The Trustee of the Investment Trust No. 1 shall
evaluate such Trust Fund (separately itemized with respect to each Investment
Fund under Section 9.4 hereof of the Investment Trust No. 1) at fair market
value as of the close of business on each Valuation Date. The Trustees of the
Investment Trust No. 2 shall evaluate the Company Stock Fund at fair market
value as of the close of business on each Valuation Date. In making such
valuations, except as otherwise provided for herein or in a Trust Agreement, the
Trustee shall use the modified cash basis method of accounting and shall deduct
all charges, expenses and other liabilities, if any, then chargeable against the
Trust Fund, in order to give effect to income realized and expenses paid, losses
sustained and unrealized gains or losses constituting appreciation or
depreciation in the value of Trust investments since the last previous
valuation. At the request of the Administrative Committee, as soon as
practicable after such valuation, the Trustee shall deliver in writing to the
Administrative Committee a valuation of the Trust Fund together with a statement
of the amount of net income or loss (including appreciation or depreciation in
the value of Trust investments) since the last previous valuation.
8.2 Valuation of Company Stock. In making any valuation of the portion
of the Trust Fund consisting of Company Stock, the Trustee of Investment Trust
No. 2 shall determine the fair market value of Company Stock.
SECTION NINE
PARTICIPANTS' ACCOUNTS
----------------------
9.1 Separate Accounts. Subject to the provisions of Section 17.2
hereof, the Administrative Committee shall maintain for each Participant a
separate Company Matching Deposit Account, a separate Basic Before-Tax Deposit
Account, a separate Supplemental Before-Tax Deposit Account, a separate Choice
Benefits Deposit Account, and a separate Rollover Account, as necessary. The
amount contributed by or on behalf of a Participant or allocated to such
Participant shall be credited to the appropriate Account in the manner set forth
in Sections Six and Seven hereof. All payments to a Participant or his
Beneficiaries shall be charged against the respective Accounts of such
Participant.
9.2 Accounts of Participants Transferred to an Affiliated Company. If a
Participant is transferred to an Affiliated Company which has not adopted the
Plan, the amount in the Trust which is credited to his Accounts shall continue
to share in the earnings or losses of the Trust and such Participant's rights
and obligations with respect to such Accounts shall be governed by the
provisions of the Plan and Trust.
9.3 Adjustment of Participant's Accounts. Except as otherwise provided
herein, the Administrative Committee shall adjust the Accounts of each
Participant so that the amount of net income, loss, appreciation or depreciation
in the value of the Trust Fund (as appropriately itemized with respect to each
Investment Fund under Section 9.4 hereof) for the period (hereinafter referred
to as the "Valuation Period") from the last previous valuation to the date of
such valuation shall be credited to or charged against the balance in the
Participants' Accounts as adjusted by the transactions occurring with respect to
each such Account during such Valuation Period. Any Plan earnings or losses
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EXHIBIT 4.1
attributable to the investment of a Participant's Account under the Plan in a
loan to the Participant under Section Eighteen shall be allocated solely to that
Participant's Account in accordance with the procedures of section Eighteen.
With respect to a Participant's Company Matching Deposit Accounts, such
adjustment, if necessary, shall be made by adjusting the number of shares, if
applicable, of Company Stock allocated to each Participant's Company Matching
Deposit Account.
9.4 Account Investment Direction.
9.4(1) Notwithstanding any other provision of the Plan or the
Trust Agreement with respect to control over and direction of the
investment of assets in the Trust Fund, each Participant may, at such
time and in such manner as the Administrative Committee shall determine
pursuant to a uniform policy established by it, direct that all or any
part (subject to such percentage increment limitations as the
Administrative Committee shall determine from time to time) of the
amounts constituting (i) such Participant's Before-Tax Deposit
Accounts, (ii) the portion of his Company Matching Deposit Account
invested in Investment Trust No. 1, (iii) his Choice Benefits Deposit
Account, (iv) his future Basic and Supplemental Before-Tax Deposits,
and (v) his future Company Matching Deposits which are invested in
Investment Trust No. 1, be invested among such investment funds as the
Administrative Committee shall offer from time to time ("Investment
Funds") for direction by Participants. This Section 9.4 is intended to
meet the requirements of Section 404(c) of ERISA by allowing each
Participant to direct the investment of his individual Accounts.
9.4(2) The Administrative Committee shall from time to time
designate the Investment Funds available hereunder, provided that at
all times there shall be at least three diversified Investment Funds
having materially different risk and reward characteristics in addition
to the Company Stock Fund. The assets of each such Investment Fund may
be invested in shares of a registered investment company, provided that
such shares constitute securities described in Section 401(b)(1) of
ERISA. Moneys in any such Fund in amounts estimated by the Trustee to
be needed for cash withdrawals, inter-Fund transfers or other purposes,
or in amounts too small to be reasonably invested, may be retained by
the Trustee in cash or invested in a manner consistent with such
purposes.
9.4(3) At such times as the Administrative Committee shall
permit, and in such manner as the Administrative Committee shall
determine, pursuant to uniform policies established by it, each
Participant may (i) direct that all, or any part (subject to such
percent increment limitations as the Administrative Committee shall
determine from time to time) of the amounts in the Participant's
Accounts (other than amounts invested in the Company Stock Fund) which
are invested on his behalf in any of the Investment Funds, be
liquidated and the proceeds thereof reinvested in the other Investment
Funds and (ii) redirect the investment of future Before-Tax Deposits
and Matching Contributions (and future earnings on all such amounts) in
accordance with the provisions of Subsection 9.4(1) hereof. In the
event at any time a Participant does not elect to redirect any Account
balances or future contributions as provided for in this Subsection
9.4(3), then such Participant's prior directions shall remain in
effect.
9.4(4) The Trustee of the Investment Trust No. 1 shall carry
out Participant's directions or redirections permitted by this Section
9.4 (or in the absence of directions, shall invest as provided in
Subsection 9.4(5) hereof) as soon as administratively practicable.
Notwithstanding the foregoing, in the event a Participant has directed
that only part of his interest in any of the Investment Funds be
liquidated and reinvested in one or more of the other Investment Funds
only the nearest value of whole units will be liquidated and
reinvested.
9.4(5) If a Participant fails or refuses to exercise any of
his investment direction rights as provided for in this Section 9.4,
the Trustee of the Investment Trust No. 1 shall invest all amounts (not
otherwise directed) in the lowest risk Investment Fund available, as
determined by the Administrative Committee.
9.4(6) The Administrative Committee shall establish and
maintain, or cause the appropriate Trustee to establish and maintain
procedures and records which will adequately reflect (i) the state of
each Investment Fund and the proportionate interest of each Participant
in each Investment Fund, including the amount of each Participant's
various Accounts allocated to each such Investment Fund and (ii) the
state of Company Stock Fund
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EXHIBIT 4.1
and the proportionate interest of each Participant in the Company Stock
Fund, including the amount of each Participant's Company Matching
Deposit Account allocated to the Company Stock Fund.
9.4(7) Proxy Voting. Shares of stock held in the Company Stock
Fund shall be voted in accordance with Subsection 9.5(3) below. Any
shares of a registered investment company allocated to a Participant's
Account shall be voted in accordance with directions of the Participant
(or Beneficiary or Alternate Payee), with any fractional shares being
voted on a combined basis to the extent possible to reflect the
directions of voting Participants. The Trustee or a duly appointed
Investment Manager shall be responsible for the voting of any other
securities within an Investment Fund and the exercise of any tender
offer or redemption rights with respect to any such securities.
9.5 Company Stock Fund.
9.5(1) Company Matching Deposits which are made in cash and
contributed to Investment Trust No. 2 and any forfeited, Non-Vested
Amounts held in the Company Stock Fund that are applied to reduce
Company Matching Deposits as provided in Subsection 14.4(2) will be
invested by the Trustee of Investment Trust No. 2 in the Company Stock
Fund. The Trustee may retain any shares of Company Stock which are
received as a result of a stock dividend or stock split, and shall
invest any cash or cash-equivalent amounts held in the Company Stock
Fund in Company Stock as soon as practicable unless directed otherwise
by the Board of Directors of the Sponsoring Company or unless the
Trustee determines that it is necessary to retain such amounts in cash
to make distribution or to pay administrative expenses.
9.5(2) Any amount in the Company Stock Fund not currently
invested in Company Stock shall be invested by the Trustee of
Investment Trust No. 2 only in cash-equivalent investments, including,
but not limited to, investments in commingled funds, as such Trustee
shall determine.
9.5(3) All shares of Company Stock in the Company Stock Fund
shall be voted by the Trustee of Investment Trust No. 2.
9.5(4) Subject to the provisions of the Plan and Trust, the
Company Stock Fund may sell shares of Company Stock to any person
(including the issuer of such shares), provided that any sale to a
party in interest must be made for not less than adequate
consideration. No commission shall be paid with respect to sales or
purchases of Company Stock from parties-in-interest. The sale price for
each such share of Company Stock sold to a party-in-interest shall not
be less than the price of Company Stock, prevailing at the time of
sale, on a national securities exchange which is registered under
section 6 of the Securities Exchange Act of 1934, or, if Company Stock
is not, at the time of such purchase, traded on such national
securities exchange, shall be not more than the offering price for the
Company Stock as established by the current bid and asked prices quoted
by persons independent of the Sponsoring Company and of any
party-in-interest. In the event that either (i) the sale price per
share from the Sponsoring Company as determined pursuant to the
foregoing is less than the then par value of such Company Stock, or
(ii) Trustee is of the opinion that the sale of such shares directly to
the Sponsoring Company or a party-in-interest might involve a possible
violation of any federal or state securities law, or any rule or
regulation thereunder, Trustee shall not sell such shares directly to
the Sponsoring Company, but shall sell such shares in the open market
in exchange transactions or in any other lawful manner.
9.5(5) Securities Law Restriction. Notwithstanding anything to
the contrary contained in the Plan, the Administrative Committee may,
in its sole discretion, restrict any Plan transactions involving
Company Stock to insure that the operation of the Plan complies with
Rule 16(b)(3), promulgated under the Securities Exchange Act of 1934,
as amended.
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EXHIBIT 4.1
SECTION TEN
COMMON TRUST FUND
-----------------
Except as otherwise provided in accordance with procedures adopted
under Subsection 9.4(6) hereof, the fact that for administrative purposes the
Administrative Committee maintains separate accounts for each Participant shall
not be deemed to segregate for such Participant, or to give such Participant any
direct interest in, any specific assets in the Trust Fund held by the Trustee.
Except as provided herein, all such assets may be held and administered by the
Trustee as a commingled fund, subject to the provisions of Section 9.4 hereof.
SECTION ELEVEN
DESIGNATION OF BENEFICIARIES
----------------------------
11.1 Participant's Designation.
11.1(1) Subject to the provisions of Sections 11.2, 13.2 and
17.2 hereof, each Participant may designate a Beneficiary or
Beneficiaries, and contingent Beneficiary or Beneficiaries, if desired,
including the executor or administrator of his estate, to receive his
interest in the Trust Fund in the event of his death, but the
designation of a Beneficiary shall not be effective for any purpose
unless and until it has been filed with the Administrative Committee on
the form provided therefor. If the Participant has a surviving spouse
and the deceased Participant failed to name a Beneficiary in the manner
herein prescribed, or the Beneficiary or Beneficiaries so named
predecease the Participant, the amount, if any, which is payable
hereunder with respect to such deceased Participant shall be paid to
the surviving spouse. If the Participant does not have a surviving
spouse and the deceased Participant failed to name a Beneficiary in the
manner herein prescribed, or the Beneficiary or Beneficiaries so named
predecease the Participant, the amount, if any, which is payable
hereunder in respect of such deceased Participant may be paid, in the
discretion of the Administrative Committee, either to (a) all or any
one (1) or more of the persons comprising the group consisting of such
Participant's descendants, parents, or heirs at law, and the
Administrative Committee may pay the entire benefit to any member of
such group or apportion such benefit among any two (2) or more of them
in such shares as the Administrative Committee, in its sole discretion,
shall determine, or (b) the executor or administrator of the estate of
such deceased Participant, provided that in any of such cases payment
shall be made in the form of an immediate lump sum as provided in
Subsection 15.2(l). If the Administrative Committee does not so direct
any of such payments, the Administrative Committee may elect to have a
court of applicable jurisdiction determine to whom a payment or
payments should be made. Any payment made to any person pursuant to the
power and discretion conferred upon the Administrative Committee by the
preceding sentence shall operate as a complete discharge of all
obligations under the Plan in respect of such deceased Participant and
shall not be subject to review by anyone, but shall be final, binding
and conclusive on all persons ever interested hereunder.
11.1(2) Subject to the provisions of Section 11.2 below, a
Participant may from time to time change any Beneficiary designated by
him without notice to such Beneficiary, under such rules and
regulations as the Administrative Committee may from time to time
promulgate, but the last Beneficiary designation filed with the
Administrative Committee shall control.
11.1(3) Any proper Beneficiary designation made pursuant to
the Prior Plan shall be treated as a Beneficiary designation under this
Plan unless changed by the Participant as permitted herein.
11.2 Qualified Consent. With respect to a Participant who on the date
of such Participant's death, is survived by and has been married to the same
spouse continuously for a period of at least one (1) year, such Participant's
Accounts shall, on his death, be paid to such surviving spouse to whom he was
married at the date of his death unless the surviving spouse has made a
Qualified Consent to the payment of any or all of said Accounts to a designated
Beneficiary other than the surviving spouse. "Qualified Consent" means an
irrevocable written consent executed by the Participant's spouse
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EXHIBIT 4.1
which acknowledges the effect of the consent and is witnessed by a Plan
representative or a notary public. A Participant may, after obtaining a
Qualified Consent, change his Beneficiary designation as permitted by Subsection
11.1(1) above, but any such change is subject to the requirements of this
Subsection 11.1(2) and will require another Qualified Consent should such a
spouse, if surviving, not be the sole Beneficiary of all amounts in said
Account, unless a Qualified Consent previously executed by such spouse expressly
authorizes changes in the Beneficiary without further consent of the spouse. A
Qualified Consent is effective only with respect to the spouse who executes it.
If the Plan Administrator is satisfied that there is no spouse, or that the
spouse cannot reasonably be located, or in such other circumstances as permitted
by governmental regulations, no Qualified Consent shall be required as a
condition to payment to a Beneficiary who is not the surviving spouse.
SECTION TWELVE
DISABILITY BENEFITS
-------------------
12.1 Disability Retirement Benefits. If a Participant retires by reason
of Total and Permanent Disability while in a Participating Company's or an
Affiliated Company's employ or on Leave of Absence, his Company Matching Deposit
Account shall fully vest and, subject to the provisions of Section 17.3 hereof,
he shall be entitled to receive benefits equal to the total amount in all of his
Accounts under the Plan, as determined in accordance with the provisions of
Section 15.2 hereof. Such benefits shall be paid as provided in Subsection
15.2(1) and Section 15.5 hereof.
12.2 Determination of Disability. The Administrative Committee shall
determine whether a Participant has suffered Total and Permanent Disability and
its determination in that respect is binding upon the Participant, provided that
the Administrative Committee shall rely upon professional medical advice in
making such determination. In making its determination, the Administrative
Committee may require the Participant to submit to medical examinations by
doctors selected by the Administrative Committee. The provisions of this Section
Twelve shall be uniformly and consistently applied to all Participants.
SECTION THIRTEEN
RETIREMENT AND DEATH BENEFITS
-----------------------------
13.1 Retirement Benefits. A Participant's Company Matching Deposit
Account shall fully vest and be nonforfeitable on his Retirement Date, provided
such Participant is employed by a Participating Company or an Affiliated Company
on such date. A Participant who continues in the Participating Company's employ
after his Retirement Date shall continue to be a Participant in the Plan until
his actual retirement. Subject to the provisions of Section 17.3 hereof, any
Participant who retires under this Section 13.1 shall be entitled to receive
benefits equal to the total amounts in all of his Accounts under the Plan as
determined in accordance with the provisions of Section 15.1 hereof. Such
benefit shall be paid as provided in Subsection 15.2(1) and Section 15.5 hereof.
13.2 Death Benefits. Upon the death of a Participant while in the
employ of a Participating Company, an Affiliated Company or on Leave of Absence,
his Company Matching Deposit Account shall fully vest and, subject to the
provisions of Section 17.3 hereof, the following person or persons shall be
entitled to receive benefits equal to the total amounts in the deceased
Participant's Accounts under the Plan as determined in accordance with the
provisions of Subsection 15.2(1) and Section 15.5 hereof:
(i) In the case of a Participant who is married as of the date
of his death, except as provided in Subsection (ii) below, his
surviving spouse.
(ii) In the case of a Participant who is married on the date
of his death but who has designated a Beneficiary other than his
surviving spouse pursuant to Section Eleven hereof and (a) whose
surviving spouse has executed a Qualified Consent as provided for in
Section 11.2 hereof or (b) who has not been married to the
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EXHIBIT 4.1
same spouse continuously for at least one (1) year as of the date of
his death, his designated Beneficiary pursuant to Section Eleven
hereof.
(iii) In the case of a Participant who is not married on the
date of his death, his designated Beneficiary pursuant to Section
Eleven hereof.
Upon the death of a Participant who is no longer employed by a Participating
Company or an Affiliated Company prior to the receipt by such Participant of all
amounts to which such Participant is entitled under the provisions of the Plan,
the person or persons entitled to receive death benefits as hereinabove provided
shall be entitled to receive the balance of any amounts owing to such deceased
Participant, as determined and to be paid in accordance with the provisions of
Subsection 15.2(1) and Section 15.5 hereof.
SECTION FOURTEEN
EMPLOYMENT TERMINATION BENEFITS
-------------------------------
14.1 Vesting upon Termination of Employment. Subject to the provisions
of Sections 14.4 and 17.3 hereof, in the event of the Termination of Employment
of a Participant, such Participant shall be entitled to receive (i) one hundred
percent (100%) of the amounts in all of his Accounts other than his Company
Matching Deposit Account, and (ii) the following percentage of the amount in his
Company Matching Deposit Account as determined in accordance with the provisions
of Subsection 15.2(1) and Section 15.5 hereof, based upon such Participant's
number of Vesting Years of Service prior to such Termination of Employment:
Number of Vesting
Years of Service Vested Percentage
---------------- -----------------
Less than 5 years None
5 years or more 100%
Such benefits shall be paid as provided in Section Fifteen hereof.
14.2 Determination of Vesting Years of Service. All Vesting Years of
Service (whether or not continuous) shall be taken into account, except Vesting
Years of Service not taken into account in accordance with Section 14.3 hereof.
14.3 Periods of Severance. Subject to the provisions of Section 14.5
hereof, Vesting Years of Service shall be disregarded as follows:
14.3(1) In the case of any Participant who suffers a
Termination of Employment and who has a One-Year Period of Severance,
Vesting Years of Service before such severance shall not be taken into
account until such Participant has completed a Vesting Year of Service
after such severance.
14.3(2) In the case of any Participant who suffers a
Termination of Employment and who has no vested amount in his Basic or
Supplemental Before-Tax Deposit Accounts, or his Choice Benefits
Deposit Account, or his Company Matching Deposit Account in accordance
with the provisions of Section 14.1 hereof, Vesting Years of Service
before any period of One-Year Periods of Severance shall not be taken
into account if such Participant's latest Period of Severance equals or
exceeds the greater of (i) five (5) consecutive One-Year Periods of
Severance, or (ii) his aggregate Periods of Service before the
commencement of such latest Period of Severance. Such aggregate Periods
of Service before the commencement of such latest Period of Severance
shall be deemed not to include any Vesting Year of Service which
precedes a One-Year Period of Severance if as of or prior to December
31, 1984, the duration of the consecutive One-Year Periods of Severance
measured
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EXHIBIT 4.1
in years equals or exceeds the Participant's Vesting Years of Service
prior to the One-Year Periods of Severance.
14.3(3) In the case of any Participant who has five (5)
consecutive One-Year Periods of Severance, Vesting Years of Service
after such five (5) year period shall not be taken into account for
purposes of determining the vested amount in his Company Matching
Deposit Account which accrued prior to such five (5) year period.
14.4 Forfeiture of Non-Vested Amount.
14.4(1)(a) In the case of any Participant who has suffered a
Termination of Employment and who has received a distribution
of the vested amount in his Company Matching Deposit Account
and his Basic and Supplemental Before-Tax Deposit Accounts and
his Choice Benefits Deposit Account (the "Vested Amount") on
or prior to the last day of the second (2nd) Plan Year
following the Plan Year in which such Termination of
Employment occurs, the excess, if any, of the amount in his
Company Matching Deposit Account over the vested amount in
such Account (the "Non-Vested Amount") shall be forfeited as
of the last day of the second (2nd) Plan Year following the
Plan Year during which such Participant suffers such
Termination of Employment.
(b) In the case of any Participant who has suffered a
Termination of Employment and who has no Vested Amount at the
time of such Termination of Employment, the amount in his
Company Matching Deposit Account shall be forfeited as of the
last day of the second (2nd) Plan Year following the Plan Year
during which such Participant suffers such Termination of
Employment.
(c) In the case of any Participant who has suffered a
Termination of Employment and who has not received a
distribution of the Vested Amount on or prior to the last day
of the second (2nd) Plan Year following the Plan Year in which
such Termination of Employment occurs, the Non-Vested Amount
shall be forfeited as of the last day of the Plan Year in
which the Participant incurs five (5) consecutive One-Year
Periods of Severance.
14.4(2) Subject to the provisions of Subsection 14.5(2)
hereof, forfeited, Non-Vested Amounts shall reduce the Company Matching
Deposits of each Participating Company under Subsection 6.1(1). If the
amount of the forfeited, Non-Vested Amounts for a Plan Year exceeds the
amount of the Company Matching Deposits for that Plan Year, the excess
shall be treated as an increase in the specified percent determined in
accordance with Subsection 6.1(1) for the Plan Year.
14.5 Restoration of Forfeited Non-Vested Amount.
14.5(1) In the event a Participant: (i) who has received a
distribution of the vested amount in his Company Matching Deposit
Account in accordance with Section 14.4 hereof, or (ii) who has no
vested amount in his Company Matching Deposit Account at the time of
his Termination of Employment as described in Subsection 14.4(1)(b)
hereof returns to employment with a Participating Company as an
Employee prior to the date on which such Participant has incurred five
(5) consecutive One-Year Periods of Severance, the amount in such
Participant's Company Matching Deposit Account which was forfeited
pursuant to Section 14.4 hereof (without adjustment for any gains or
losses in the Trust Fund subsequent to such forfeiture) shall be
restored to such Participant's Company Matching Deposit Account;
provided, however, that if a Participant received a distribution of the
vested amount of his Company Matching Deposit Account and is reemployed
by a Participating Company as an Employee more than one year after his
Termination of Employment, such restoration shall not occur unless and
until: (i) such Participant repays to the Plan the full amount of his
Company Matching Deposit Account previously distributed to him, and
(ii) such Participant's repayment is made before the earlier of the end
of (I) the five (5) year period beginning with the Participant's date
of reemployment or (II) a period of five (5) consecutive One-Year
Periods of Severance commencing after the date on which such
Participant received such distribution. Upon the restoration of a
Participant's Company Matching Deposit
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EXHIBIT 4.1
Account as provided for hereinabove, the vested amount in such
Participant's Company Matching Deposit Account (whether attributable to
amounts restored, amounts, if any, repaid by the Participant or
additional amounts added to such Account after such reemployment) shall
thereafter be determined in accordance with the provisions of this
Section 14 without regard to such Participant's original Termination of
Employment.
14.5(2) The restoration of a Participant's Non-Vested Amount
in his Company Matching Deposit Account as provided for in Subsection
14.5(1) above, shall be made from the Non-Vested Amounts forfeited
pursuant to Section 14.4 hereof during the Plan Year of such
restoration before any use of such forfeitures as provided in
Subsection 14.4(2) hereof. In the event there are not sufficient
forfeitures to restore the entire amount owing to Participants under
Subsection 14.5(1) above, the additional amount necessary for
restoration shall be contributed by the Participating Company employing
such Participant as a special contribution to be allocated to the
Company Matching Deposit Account of the affected Participant.
SECTION FIFTEEN
PAYMENT OF BENEFITS
-------------------
15.1 Amount of Payment. Upon a Participant's retirement, Total and
Permanent Disability, death or Termination of Employment, he or his Beneficiary
shall be entitled to an amount computed in accordance with the provisions of
Sections Twelve, Thirteen or Fourteen, as applicable.
15.2 Method of and Time for Distribution of Benefits.
15.2(1) Upon a Participant's Termination of Employment,
retirement, Total and Permanent Disability or death, distribution shall
be made in the form of a lump sum payment of the vested amounts in the
Participant's Accounts as soon as administratively practicable
following the date the Participant requests distribution, valued as of
the most recently available Valuation Date preceding the date of
distribution.
15.2(2) Notwithstanding any other provision of this Section
Fifteen to the contrary, if the vested amounts in the Participant's
Accounts (other than his Rollover Account) do not exceed Three Thousand
Five Hundred Dollars ($3,500), distribution shall be made as provided
in Subsection 15.2(l), as if the Participant had requested distribution
on the Participant's Severance from Service Date.
15.2(3) Subject to the provisions of this Section 15.2, if a
Participant or his Beneficiary is entitled to a distribution pursuant
to Section Twelve, Thirteen or Fourteen hereof, such amounts shall be
distributed not later than the sixtieth (60th) day after the close of
the Plan Year in which occurs the latest of:
(a) The date on which the Participant attains or
would have attained sixty-five (65) years of age;
(b) The tenth (10th) anniversary of the year in which
the Participant commenced participation in the Plan; or
(c) The Participant's termination of employment or
death.
15.2(4) Notwithstanding any other provision of this Section
Fifteen to the contrary, no distribution shall be made before the
earlier of the Participant's Retirement Date or death without the
Participant's written consent to the commencement of such distribution
obtained not more than ninety (90) days prior to such commencement of
distribution, if the combined vested value of such Participant's
Company Matching Deposit Account, Basic and Supplemental Before-Tax
Deposit Accounts and Choice Benefits Deposit Account as of such date
exceeds Three Thousand Five Hundred Dollars ($3,500).
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EXHIBIT 4.1
15.2(5) Explanation to Participants: no less than 30 days and
no more than 90 days prior to commencement of distribution, the
Participant must be furnished with a general description of the
material features, and an explanation of the relative values of any
optional forms of distribution available to him under this Section,
and, if applicable, of his right to defer distribution.
A distribution may commence less than 30 days after the notice
required under section 1.411(a)-11(c) of the Income Tax Regulations is
given, provided that:
(a) the Plan Administrator clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(b) the Participant, after receiving the notice,
affirmatively elects a distribution.
15.2(6) If, upon the date that payments are to commence under
this Section Fifteen, the amount of such payment cannot be ascertained,
a payment retroactive to such date may be made no later than sixty (60)
days after the end of the Plan Year during which such date occurs.
15.3 Limitations on Timing. Notwithstanding any other provision of the
Plan to the contrary, distributions must occur at least as rapidly as required
under this Section 15.3.
15.3(1) A Participant's entire interest in the Plan shall be
distributed to him no later than the Required Beginning Date. "Required
Beginning Date" shall mean April 1 of the calendar year following the
calendar year in which the Participant attains age seventy and one-half
(70 1/2).
15.3(2) In the event of the death of a Participant prior to
distribution of his benefits under the Plan, distribution of such
benefits to a Beneficiary shall be made within five (5) years after the
death of such Participant.
15.4 Payments on Personal Receipt Except in Case of Legal Disability.
All payments to any Participant or his Beneficiary, from the Trust Fund, shall
be made to the recipient entitled thereto in person or upon his personal
receipt, in a form satisfactory to the Administrative Committee, except when the
recipient entitled thereto shall be under a legal disability, or, in the sole
judgment of the Administrative Committee, shall otherwise be unable to apply
such payments in furtherance of his own interests and advantage. The
Administrative Committee may, in such event, in its sole discretion, direct all
or any portion of such payments to be made in any one or more of the following
ways: (i) directly to such person; (ii) to the guardian of his person or of his
estate, appointed by any court of competent jurisdiction; (iii) to his spouse or
to any other person, to be expended for his benefit; (iv) to a custodian under
any applicable Uniform Gifts to Minors Act; or (v) by the Administrative
Committee itself directing the expenditure of any payments so made. The decision
of the Administrative Committee, in each case, will be final, binding and
conclusive upon all persons ever interested hereunder, and, except in the case
of (v) above, the Administrative Committee shall not be obliged to see to the
proper application or expenditure of any payments so made. Any payment made
pursuant to the power herein conferred upon the Administrative Committee shall
operate as a complete discharge of all obligations of the Trustee and the
Administrative Committee, to the extent of the amounts so paid.
15.5 Benefits Payable in Cash. All disbursements from the Trust Fund
shall be made in cash, and no Participant may elect to receive an in kind
distribution of the portion of his Company Matching Deposit Account, if any,
which is invested in the Company Stock Fund.
15.6 Distribution Accounts. If the payment of a Participant's Accounts
is to be deferred pursuant to Section 15.2 hereof, the balance in the
Participant's Accounts shall remain invested in accordance with the
Participant's previous directions under Section 9.4 or in accordance with
Section 9.5, whichever is applicable, and such Participant may continue to
direct the investment of his Accounts in the manner and to the extent permitted
in Section 9.4 as if the Participant were still employed by the Participating
Company or an Affiliated Company.
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EXHIBIT 4.1
15.7 Distribution Limitations Applicable to Before-Tax Deposits.
Notwithstanding any provisions to the contrary herein, no distribution shall be
made of any Before-Tax Deposits or the earnings thereon prior to the earliest
of:
15.7(1) Separation from service, death, or Disability, as
provided in Sections Twelve, Thirteen and Fourteen above.
15.7(2) Termination of the Plan without establishment of or
maintenance of another defined contribution plan (other than an
employee stock ownership plan as defined in Code Section 4975(e)(7)),
as provided in Treasury Regulations.
15.7(3) The disposition by a Participating Company of
substantially all of the assets used by such Participating Company in a
trade or business of such Participating Company, as provided in
Treasury Regulations.
15.7(4) The disposition by a Participating Company of its
interest in a subsidiary, as provided in Treasury Regulations.
15.7(5) The attainment of age fifty-nine and one-half (59 1/2)
as provided in Section 6.7 above or the Required Beginning Date, as
provided in Section 15.3(1) above.
15.7(6) Financial hardship pursuant to the provisions of
Section 6.7 above.
15.8 Benefits Payable Pursuant to a Qualified Domestic Relations Order.
Notwithstanding any other provision of the Plan to the contrary, immediate
distribution of benefits payable to an Alternate Payee pursuant to a Qualified
Domestic Relations Order shall be permitted even though the Participant whose
benefits have been assigned to the Alternate Payee would not be entitled to
receive a distribution at such time, if all of the following requirements are
met: (i) the Participant's Account is one hundred percent (100%) vested and
nonforfeitable at such time pursuant to Section 14.1 hereof, (ii) the entire
amount payable to the Alternate Payee does not exceed Three Thousand Five
Hundred Dollars ($3,500), or the Alternate Payee has requested immediate
distribution in writing, (iii) allocation pursuant to Section 8.1 hereof of all
amounts required to be paid to the Alternate Payee has been completed, and (iv)
the Qualified Domestic Relations Order requires or permits immediate
distribution.
In the event an Alternate Payee dies prior to distribution of
the amounts payable to the Alternate Payee pursuant to the Qualified Domestic
Relations Order, the amount payable shall be distributed as provided in the
Qualified Domestic Relations Order. If the Qualified Domestic Relations Order
does not specify how such amounts are to be distributed in the event of the
Alternate Payee's death, the Administrative Committee shall cause such amounts
to be distributed in accordance with applicable law; without limitation, the
Administrative Committee may ascertain the requirements of applicable law by
filing an interpleader or declaratory judgment action in a court of competent
jurisdiction.
15.9 Direct Rollovers. This Article applies to distributions made on or
after January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a distributee's election under this Section, a
distributee may elect, at the time and in the manner prescribed by the
Administrative Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by the
distributee in a direct rollover. Such procedures may limit direct rollovers to
eligible rollover distributions of at least $200 (or those reasonably expected
to total at least $200 when aggregated with other distributions during the Plan
Year from this Plan). The procedures prescribed by the Administrative Committee
may include a deadline for making such an election and may require the
distributee to furnish adequate information regarding the transferee plan. Such
procedures may also require the direct rollover of at least $500 as a condition
of permitting direct rollover of less than the total distribution and may limit
Participants to a single direct rollover.
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EXHIBIT 4.1
15.9(1) Definitions.
(a) Eligible Rollover Distribution. An eligible
rollover distribution is any distribution of all or any
portion of the balance to the credit of the distributee,
except that an eligible rollover distribution does not
include: any distribution that is one of a series of
substantially equal periodic payments (not less than
frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion
of any distribution that is not includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employee securities).
(b) Eligible Retirement Plan. An eligible retirement
plan is an individual retirement account described in Section
408(a) of the Code, an individual retirement annuity described
in Section 408(b) of the Code, an annuity plan described in
Section 403(a) of the Code, or a qualified trust described in
Section 401(a) of the Code that is a defined contribution plan
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to a
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
(c) Distributee. A distributee includes an employee
or former employee. In addition, the employee's or former
employee's surviving spouse and the employee's or former
employee's spouse or former spouse who is the alternate payee
under a Qualified Domestic Relations Order, as defined in
Section 414(p) of the Code, are distributees with regard to
the interest of the spouse of former spouse.
(d) Direct Rollover. A direct rollover is a payment
by the Plan to the eligible retirement plan specified by the
distributee.
SECTION SIXTEEN
BENEFIT CLAIMS PROCEDURE
------------------------
16.1 Claims for Benefits. Any claim for benefits under the Plan shall
be made in writing to the Administrative Committee. If such claim for benefits
is wholly or partially denied, the Administrative Committee shall, within ninety
(90) days after receipt of the claim, notify the Participant or Beneficiary of
the denial of the claim. Such notice of denial (i) shall be in writing, (ii)
shall be written in a manner calculated to be understood by the Participant or
Beneficiary, and (iii) shall contain (a) the specific reason or reasons for
denial of the claim, (b) a specific reference to the pertinent Plan provisions
upon which the denial is based, (c) a description of any additional material or
information necessary to perfect the claim, along with an explanation of why
such material or information is necessary, and (d) an explanation of the claim
review procedure, in accordance with the provisions of this Section Sixteen.
16.2 Request for Review of Denial. Within sixty (60) days after the
receipt by the Participant or Beneficiary of a written notice of denial of the
claim, or such later time as shall be deemed reasonable taking into account the
nature of the benefit subject to the claim and any other attendant
circumstances, if the Participant or Beneficiary does not agree with the denial
of the claim, such Participant or Beneficiary or his authorized representative
shall file a written request with the Administrative Committee that it conduct a
full and fair review of the denial of the claim for benefits. In connection with
any request for a review of the denial of a claim for benefits, the Participant
or Beneficiary, or his authorized representative, may review pertinent documents
relating thereto and may submit issues and comments in writing to the
Administrative Committee.
16.3 Decision on Review of Denial. The Administrative Committee shall
deliver to the Participant or Beneficiary a written decision on the claim within
sixty (60) days after the receipt of the aforesaid request for review, except
that if there are special circumstances (such as the need to hold a hearing, if
necessary) which require an extension of time for processing, the aforesaid
sixty (60) day period shall be extended to one hundred twenty (120) days.
Written notice of any such extension shall be furnished to the Participant or
Beneficiary prior to the commencement of such
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EXHIBIT 4.1
extension. A decision on a review of a denial of a claim for benefits shall (i)
be written in a manner calculated to be understood by the Participant or
Beneficiary, (ii) include the specific reason or reasons for the decision, and
(iii) contain a specific reference to the pertinent Plan provisions upon which
the decision is based.
SECTION SEVENTEEN
MISCELLANEOUS PROVISIONS
------------------------
RESPECTING PARTICIPANTS
-----------------------
17.1 Participants to Furnish Required Information.
17.1(1) Each Participant shall furnish to the Administrative
Committee such information as the Administrative Committee considers
necessary or desirable for purposes of administering the Plan, and the
provisions of the Plan respecting any payments hereunder are
conditional upon the Participant's furnishing promptly such true, full
and complete information as the Administrative Committee may reasonably
request.
17.1(2) Each Participant shall submit proof of such
Participant's age to the Administrative Committee. The Administrative
Committee shall, if such proof of age is not submitted as required, use
as conclusive evidence thereof, such information as is deemed by it to
be reliable, regardless of the source of such information. Any
adjustment required by reason of lack of proof or the misstatement of
the age of persons entitled to benefits hereunder, by the Participant
or otherwise, shall be in such manner as the Administrative Committee
deems equitable.
17.1(3) Any notice or information which according to the terms
of the Plan or the rules of the Administrative Committee must be filed
with the Administrative Committee, shall be deemed so filed if
addressed and either delivered in person or mailed, postage fully
prepaid, to the Administrative Committee. Whenever a provision herein
requires that a Participant (or the Participant's Beneficiary) give
notice to the Administrative Committee within a specified number of
days or by a certain date, and the last day of such period, or such
date, falls on a Saturday, Sunday, or company holiday, the Participant
(or the Participant's Beneficiary) will be deemed in compliance with
such provision if notice is delivered in person to the Administrative
Committee or is mailed, properly addressed, postage prepaid, and
postmarked on or before the business day next following such Saturday,
Sunday or company holiday. The Administrative Committee may, in its
sole discretion, modify or waive any required notice; provided,
however, that such modification or waiver must be administratively
feasible, must be in the best interest of the Participant, and must be
made on the basis of rules of the Administrative Committee which are
applied uniformly to all Participants.
17.2 Participants' Rights in Trust Fund. No Participant or other person
shall have any right, title or interest in, to or under the Trust Fund, or any
part of the assets thereof, except and to the extent expressly provided in the
Plan.
17.3 Inalienability of Benefits.
17.3(1) Restrictions on Assignment. The benefits provided
hereunder are intended for the personal security of persons entitled to
payment under the Plan, and are not subject in any manner to the debts
or other obligations of the persons to whom they are payable. The
interest of a Participant or such Participant's Beneficiary or
Beneficiaries may not be sold, transferred, assigned or encumbered in
any manner, either voluntarily or involuntarily, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be null and void; neither shall the Trust Fund
nor any benefits thereunder or hereunder be liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person
to whom such benefits or funds are payable, nor shall they be subject
to garnishment, attachment, or other legal or equitable process nor
shall they be an asset in bankruptcy. All of the provisions of this
Section 17.3, however, are subject to Section 15.4.
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EXHIBIT 4.1
17.3(2) Exception for Qualified Domestic Relations Order.
(a) The prohibitions contained in Subsection 17.3(1)
hereof shall not apply to the creation, assignment or
recognition of a right to any benefit payable with respect to
a Participant pursuant to a Qualified Domestic Relations
Order.
(b) The Plan Administrator shall establish written
procedures for the determination of the qualified status of a
domestic relations order.
(c) Upon receiving a domestic relations order, the
Plan Administrator shall notify the Participant and Alternate
Payee named in the order, in writing, of the receipt of the
order and the Plan's procedures for determining the qualified
status of the order. Within a reasonable period of time after
receiving the domestic relations order, the Plan Administrator
shall determine the qualified status of the order and shall
notify the Participant and the Alternate Payee, in writing, of
its determination. The Plan Administrator shall provide notice
under this paragraph by mailing such notice to the
individual's address specified in the domestic relations
order, or in a manner consistent with Department of Labor
regulations.
If any portion of the Participant's Account is
payable during the period the Plan Administrator is making its
determination of the qualified status of the domestic
relations order, the Administrative Committee shall direct the
Trustee to segregate the amounts payable in a separate account
and to invest the segregated account solely in fixed income
investments. If the Plan Administrator determines the order is
a Qualified Domestic Relations Order within eighteen (18)
months of the time for commencement of distribution under the
order, the Administrative Committee shall direct the Trustee
to distribute the segregated account in accordance with the
order. If the Plan Administrator does not make its
determination of the qualified status of the order within
eighteen (18) months after the time for commencement of
distribution under the order, the Administrative Committee
shall direct the Trustee to distribute the segregated account
in the manner the Plan would distribute if the order did not
exist and shall apply the order prospectively if the Plan
Administrator later determines the order is a Qualified
Domestic Relations Order.
To the extent it is not inconsistent with the
provisions of the Qualified Domestic Relations Order, the
Trustee shall segregate the amount subject to the Qualified
Domestic Relations Order in a separate account and invest the
account in federally insured, interest-bearing savings
account(s) or time deposit(s) (or a combination of both),
direct obligations of the United States, or any other
investment providing for guarantee of principal and a fixed
rate of return. Any segregated account shall remain a part of
the Trust, but it alone shall share in any income it earns,
and it alone shall bear any expense or loss it incurs.
The Trustee shall make any payments or distributions
required under this Subsection 17.3(2) by separate benefit
checks or other separate distribution to the Alternate
Payee(s).
(d) "Qualified Domestic Relations order" shall mean
an order which:
(i) Relates to the provision of child
support, alimony payments, or marital property rights
to a spouse, child, or other dependent of a
Participant;
(ii) Is made pursuant to a state domestic
relations law (including a community property law);
(iii) Creates or recognizes the existence of
an Alternate Payee's right to, or assigns to an
Alternate Payee the right to, receive all or a
portion of the benefits payable with respect to a
Participant under the Plan; and
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EXHIBIT 4.1
(iv) Is determined by the Plan Administrator
to meet all applicable requirements pursuant to the
procedure established by the Committee for
determining whether an order is a Qualified Domestic
Relations Order.
A Qualified Domestic Relations Order
includes a domestic relations order issued before
January 1, 1985 that is treated by the Plan
Administrator as a Qualified Domestic Relations order
pursuant to the Retirement Equity Act of 1984.
(e) "Alternative Payee" shall mean an individual
entitled to benefits under the Plan pursuant to a Qualified
Domestic Relations Order.
17.4 Address for Mailing of Benefits.
17.4(1) Each Participant and each other person entitled to
benefits hereunder shall file with the Administrative Committee from
time to time in writing such Participant's post office address and each
change of address. Any check representing payment hereunder and any
communication addressed to a Participant, an Employee or Beneficiary,
at such person's last address filed with the Administrative Committee,
or if no such address has been filed, then at such person's last
address as indicated on the records of a Participating Company, shall
be deemed to have been delivered to such person on the date on which
such check or communication is deposited, postage prepaid, in the
United States mail.
17.4(2) If the Administrative Committee is in doubt as to
whether payments are being received by the person entitled thereto, it
shall, by registered mail addressed to the person concerned, at his
address last known to the Administrative Committee, notify such person
that all unmailed and future payments shall be withheld until he
provides the Administrative Committee with evidence of his continued
life and his proper mailing address.
17.5 Unclaimed Account Procedure. Neither the Trustee nor the
Administrative Committee shall be obliged to search for, or ascertain the
whereabouts of any Participant, Beneficiary or Alternate Payee. The
Administrative Committee, by certified or registered mail addressed to such
Participant's, Beneficiary's or Alternate Payee's last known address, shall
notify the Participant, Beneficiary or Alternate Payee that such Participant,
Beneficiary or Alternate Payee is entitled to a distribution under this Plan,
and the notice shall quote the provisions of this Section 17.5. If any
distribution or payment which is not claimed by the person entitled thereto or
before the termination or discontinuance of the Plan, whichever occurs first,
the Administrative Committee shall treat the Participant's, Beneficiary's or
Alternate Payee's unclaimed benefit as forfeited. Such forfeited amounts shall
be added to forfeitures and used as herein provided.
If a Participant, Beneficiary or Alternate Payee who has
incurred a forfeiture of his benefits under the provisions of the first
paragraph of this Section 17.5 makes a claim for such forfeited benefit, at any
time prior to termination or discontinuance of the Plan, the Administrative
Committee shall restore the Participant's, Beneficiary's or Alternate Payee's
forfeited benefit to the same dollar amount as the dollar amount of the benefit
forfeited, unadjusted for any gains or losses occurring subsequent to the date
of the forfeiture. The Administrative Committee shall make the restoration,
during the Plan Year in which the Participant, Beneficiary or Alternate Payee
makes the claim, first from the amount, if any, of Participant forfeitures the
Administrative Committee otherwise would use for the Plan Year, and then from
the amount, or additional amount, the Participating Company for whom such
Participant was employed shall contribute to the Plan to enable the
Administrative Committee to make the required restoration. The Administrative
Committee shall direct the Trustee to distribute the Participant's,
Beneficiary's or Alternate Payee's restored benefit to him in a lump sum not
later than sixty (60) days after the close of the Plan Year in which the
Administrative Committee restores the forfeited benefit.
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EXHIBIT 4.1
SECTION EIGHTEEN
LOANS TO PARTICIPANTS,
BENEFICIARIES AND ALTERNATE PAYEES
----------------------------------
Upon the written application of any Participant or any Beneficiary (and
any Former Participant or Beneficiary who is a party-in-interest with respect to
the Plan and who has an undistributed Account under the Plan) made to the
Administrative Committee on such form and accompanied by such additional
documentation and information as the Administrative Committee shall require, the
Administrative Committee shall, if the Administrative Committee determines the
loan would comply with all of the loan requirements, make a loan to such
individual (the "Borrower"); provided, however, that the amount of any such loan
to a Borrower when added to the outstanding balance of all other such loans, if
any, made to such Borrower hereunder, shall not exceed the lesser of (a) Fifty
Thousand Dollars ($50,000) reduced by the excess, if any, of the highest
outstanding balance of loans from the Plan during the one-year period ending on
the day before the date on which the loan is made, over the outstanding balance
of loans from the Plan on the date on which the loan is made, or (b) fifty
percent (50%) of the vested amounts in all of the Borrower's Accounts valued as
of the Valuation Date coincident with or next preceding the date of the loan, or
(c) one hundred percent (100%) of the amounts in the Borrower's Accounts, other
than Amounts invested in the Company Stock Fund, valued as of the Valuation Date
coincident with or next preceding the date of the loan. The Administrative
Committee may establish uniform and nondiscriminatory rules which further limit
the amount and the Accounts from which Participants, Beneficiaries and Alternate
Payees may borrow so long as such rules are in writing and are distributed to
Participants, Beneficiaries and Alternate Payees. Loans shall be available to
all Participants, Beneficiaries and Alternate Payees on a reasonably equivalent
basis, and shall not be made available to Highly Compensated Employees as a
percentage of their Accounts greater than the percentage of the Accounts made
available to other Participants, Beneficiaries or Alternate Payees. Loans
outstanding on September 1, 1991, which were made from the Prior Plan shall be
treated as a loan made from the Plan and any such loan shall not be treated as
renewed or renegotiated as a result of its transfer to this Plan. All loans
shall be subject to the following terms and conditions:
(a) Interest will be based on a reasonable rate of interest
which shall be commensurate with the interest rates charged by persons
in the business of lending money for loans of a similar nature. This
reasonable rate of interest shall be determined by the Administrative
Committee, in its sole discretion, through reasonable investigation of
the interest rates charged by lenders in Fort Smith, Arkansas for loans
of a similar nature at or near the time that the Plan loan is granted.
Administrative fees related to a loan may be charged against the loan
proceeds and/or the Borrower's Account in accordance with rules
prescribed by the Administrative Committee.
(b) Any loan made to a Borrower shall be considered a directed
investment of such Borrower. The Administrative Committee shall,
subject to any terms and conditions imposed by the Trustee, establish
uniform policies and procedures regarding the manner in which the
amount of any loan shall be obtained from the Investment Funds referred
to in Section 9.4 hereof to which the Borrower has directed the
investment of the amounts credited to his Accounts. Repayments of
principal amounts and interest paid on such loan shall be credited to
the Borrower's Account from which the loan was made on the basis of the
amount of the loan from each such account. Repayments of principal
amounts and interest payments on any loan shall be invested among the
Investment Funds in accordance with the Borrower's current investment
direction for his Accounts pursuant to Section 9.4.
(c) Loans shall be evidenced by promissory notes in the form
approved by the Administrative Committee, which shall specify the time
and manner of repayment as determined by the Administrative Committee
in accordance with uniform and nondiscriminatory rules. Notwithstanding
the foregoing provisions, it is generally intended that repayment of a
loan by an Employee will be made by payroll deduction. All loans shall
be amortized in level payments made no less frequently than quarterly
over the term of the loan. In no event shall any loan be repayable over
a period in excess of five (5) years from the date such loan is made,
unless such loan is used to acquire any dwelling unit which within a
reasonable time is to be used (determined at the time the loan is made)
as the principal residence of the Borrower, in which case, the loan
shall be
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EXHIBIT 4.1
repayable over a reasonable period as determined in accordance with
uniform rules established by the Administrative Committee.
(d) Every loan shall be secured by fifty percent (50%) of the
amount in the Borrower's Accounts under the Plan, and such other
security, if any, as the Administrative Committee shall deem necessary
to ensure that the loan is adequately secured.
(e) Loan funds shall be disbursed as soon as practicable
following receipt by tile Administrative Committee of the loan
application.
(f) In the event that (i) a terminated Participant elects to
defer distribution, (ii) a Participant on unpaid leave elects not to
repay his loan in full, or (iii) a Plan loan has been made to a
Beneficiary or Alternate Payee, repayments to the Plan shall be made
pursuant to such loan's repayment schedule. An "Event of Default" shall
be deemed to have occurred if two (2) consecutive loan repayments are
not made on or before the due date of the second (2nd) of such
payments. When an Event of Default occurs, the Administrative Committee
shall offset, to the extent legally permissible, the unpaid amount
(including interest) against the Borrower's Accounts to the extent such
Accounts are security for the loan. To the extent not so offset, the
unpaid balance will bear interest at the maximum legal rate until
offset.
(g) No loans shall be made for less than One Thousand Dollars
($1,000).
(h) No Borrower shall have more than one loan outstanding at
any time. If a Plan loan is prepaid, the Borrower may not take another
loan until after the end of the calendar quarter in which the
prepayment occurred.
(i) If a loan is made to a married Borrower, the Borrower's
spouse must consent to the loan. The spouse's consent to the loan (i)
must be in writing, (ii) must be witnessed by a Plan representative or
notary public, (iii) must acknowledge that the loan is secured by the
Borrower's Accounts under the Plan and that the amounts in such
Accounts may be offset by the amount of the unpaid principal and
interest under such loan, and (iv) shall be irrevocable.
Notwithstanding the foregoing provisions of this Section Eighteen, the
spouse's consent to a loan shall not be required if the Borrower can
establish to the satisfaction of the Administrative Committee that such
written consent cannot be obtained because the spouse cannot be
located.
(j) The Administrative Committee shall establish such
additional loan policies and procedures as are necessary to provide
uniform and nondiscriminatory rules governing the making of loans to
Participants, Beneficiaries and Alternate Payees.
(k) Loans shall not be made to the extent they would violate
Section 4975 of the Code or Section 406 of ERISA and the regulations
thereunder, to the extent they would be taxed as distributions to
Participants under Section 72(p) of the Code, or to the extent they
would violate any applicable law, and all provisions hereof shall be
interpreted accordingly.
SECTION NINETEEN
ADOPTION OF PLAN BY AFFILIATED COMPANY
--------------------------------------
Any Affiliated Company, whether or not presently existing, may, with
the approval of the Board of Directors of the Sponsoring Company, adopt this
Plan pursuant to appropriate written resolutions of the Board of Directors of
such Affiliated Company and, if appropriate, by executing such documents, if
any, with the Trustee as may be necessary to make such Affiliated Company a
party to the Trust Agreement as a Participating Company. Any Affiliated Company
which adopts the Plan is thereafter a Participating Company with respect to its
Employees for purposes of the Plan.
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EXHIBIT 4.1
SECTION TWENTY
WITHDRAWAL FROM PLAN
--------------------
20.1 Notice of Withdrawal. Any Participating Company may, with the
approval of the Board of Directors of the Sponsoring Company, as of any
Valuation Date, withdraw from the Plan upon giving the Administrative Committee
and the Trustee at least thirty (30) days' notice in writing of its intention to
withdraw.
20.2 Segregation of Trust Assets upon Withdrawal. Upon the withdrawal
of a Participating Company pursuant to Section 20.1, the Trustee shall segregate
the share of the assets in the Trust Fund, the value of which shall equal the
total credited to the Accounts of Participants of the withdrawing Participating
Company. The determination of which assets are to be so segregated shall be made
by the Trustee, in its sole discretion, after taking into account the investment
selections provided for in Section 9.4 hereof.
20.3 Exclusive Benefit of Participants. Neither the segregation and any
transfer of the Trust assets upon the withdrawal of a Participating Company nor
the execution of a new agreement and/or declaration of trust by such withdrawing
Participating Company shall operate to permit any part of the Trust Fund to be
used for or diverted to purposes other than for the exclusive benefit of the
Participants.
20.4 Applicability of Withdrawal Provisions. The withdrawal provisions
contained in this Section Twenty shall be applicable only if the withdrawing
Participating Company continues to cover its Participants and eligible Employees
in another profit-sharing plan and trust qualified under Sections 401 and 501 of
the Code. Otherwise, the termination provisions of the Plan and Trust shall
apply.
SECTION TWENTY-ONE
AMENDMENT OF THE PLAN
---------------------
The Board of Directors of the Sponsoring Company reserves the right to
amend the Plan with respect to all Participating Companies at any time and from
time to time. In addition, the Board of Directors of each Participating Company
may amend the Plan with respect to such Participating Company at any time, and
from time to time, pursuant to written resolutions adopted by such Board of
Directors, provided the Sponsoring Company approves such amendment. Unless
otherwise permitted by law, no amendment shall permit any part of the Trust Fund
to revert to or be recoverable by a Participating Company or be used for or
diverted to purposes other than the exclusive benefit of the Participants or
their Beneficiaries, or deprive any Participant of any interest he might have in
the Trust Fund at the time of the amendment to the extent that such interest
would be available to the Participant under Section Fifteen hereof were he to
voluntarily resign as of the effective date of the amendment.
(a) Under no condition, shall such amendment, amendments, or
restatements increase the duties or responsibilities, or decrease the
compensation, privileges, and immunities of the Trustee without the
Trustee's written consent.
(b) Under no condition, shall such amendment change the
vesting schedule to one which would result in the nonforfeitable
percentage of the accrued benefit derived from Company Matching
Deposits (determined as of the later of the date of the adoption of the
amendment or of the effective date of the amendment) of any Participant
being less than such nonforfeitable percentage computed under the Plan
without regard to such amendment; no amendment shall change the vesting
schedule unless each Participant with three (3) or more Vesting Years
of Service, is permitted to elect, within the election period described
below, to have his nonforfeitable percentage computed under the Plan
without regard to the amendment. The election period described herein
shall begin no later than the date upon which the amendment is adopted
and shall end no later than the latest of the following dates: (i) the
date which is sixty (60) days after the day the amendment is adopted,
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EXHIBIT 4.1
(ii) the date which is sixty (60) days after the day the amendment
becomes effective, or (iii) the date which is sixty (60) days after the
day the Participant is issued a written notice of the amendment by the
Sponsoring Company.
(c) Subject to the above stated limitations and the
requirement that no amendment shall eliminate, except with respect to
any future contributions or future accrual of benefits and except as
otherwise permitted by Treasury regulations or rulings, any
nondiscretionary optional form of payment (as provided in Treasury
Regulation Section 1.411(d)-4 and Code Section(d)(6)) with respect to
any Participant who is a Participant immediately prior to the
amendment, the Sponsoring Company shall have the power to amend the
Plan and Trust Agreement, retroactively or otherwise, in any manner in
which it deems desirable, including, but not by way of limitation, the
power to change any provisions relating to the administration of the
Plan and Trust Fund, and to change any provisions relating to the
benefits or payment of any of the assets of the Trust Fund. Each such
amendment shall become effective when executed by the Sponsoring
Company unless a different effective date is specified in the
amendment.
(d) Notwithstanding anything herein to the contrary, this Plan
may be amended at any time by the Sponsoring Company if necessary or
desirable in order to have it conform to the provisions and
requirements of the Code or any other law with respect to qualified
employees' plans and trusts, and no such amendment shall be considered
prejudicial to the rights of any Participant hereunder or of any
Beneficiary, Alternate Payee or Employee. Further, it is understood
that any provisions of this Plan as herein contained which are contrary
to the requirements of the Code for a qualified tax exempt employees'
plan and trust shall be deemed void and of no effect, without affecting
the validity of other provisions hereof.
SECTION TWENTY-TWO
PERMANENCY OF THE PLAN
----------------------
22.1 Right to Terminate Plan. Each Participating Company contemplates
that the Plan shall be permanent and that it shall be able to make contributions
to the Plan. Nevertheless, in recognition of the fact that future conditions and
circumstances cannot now be entirely foreseen, each Participating Company
reserves the right to terminate (as to such Participating Company) either the
Plan or both the Plan and the Trust, and the Sponsoring Company reserves the
right to terminate the Plan and Trust in its entirety.
22.2 Merger or Consolidation of Plan and Trust. Neither the Plan nor
the Trust may be merged or consolidated with, nor may its assets or liabilities
be transferred to, any other plan or trust, unless each Participant 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).
22.3 Continuance by Successor Company. In the event of the liquidation,
dissolution, merger, consolidation or reorganization of a Participating Company,
the successor company may adopt the Plan and Trust for the benefit of the
employees of such Participating Company. If such successor company does adopt
the Plan and Trust, it shall, in all respects, be substituted for such
Participating Company under the Plan and Trust. Any such substitution of such
successor company shall constitute an assumption of Plan liabilities by such
successor company, and such successor company shall have all of the powers,
duties and responsibilities of such Participating Company under the Plan and
Trust. If such successor company does not adopt the Plan and Trust, the Plan and
Trust shall be terminated with respect to such Participating Company in
accordance with the provisions of the Plan and Trust Agreement.
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EXHIBIT 4.1
SECTION TWENTY-THREE
DISCONTINUANCE OF DEPOSITS AND TERMINATION
------------------------------------------
23.1 Discontinuance of Deposits. Whenever a Participating Company
determines that it is impossible or inadvisable for it to make further
contributions as provided in the Plan, the Board of Directors of such
Participating Company may, without terminating the Trust, adopt an appropriate
resolution permanently discontinuing all further contributions by such
Participating Company. A certified copy of such resolution shall be delivered to
the Administrative Committee and the Trustee. Thereafter, the Administrative
Committee and the Trustee shall continue to administer all the provisions of the
Plan which are necessary and remain in force, other than the provisions relating
to contributions by such Participating Company. However, the Trust shall remain
in existence with respect to such Participating Company and all of the
provisions of the Trust Agreement shall remain in force.
23.2 Termination of Plan and Trust. If the Board of Directors of a
Participating Company determines to terminate (as to such Participating Company)
the Plan and Trust completely, they shall be terminated insofar as they are
applicable to such Participating Company as of the date specified in certified
copies of resolutions of such Board of Directors delivered to the Administrative
Committee and the Trustee. Upon such termination of the Plan and Trust, after
payment of all expenses and proportional adjustment of Accounts of Participants
employed by such Participating Company to reflect such expenses, Trust Fund
profits or losses, and subject to the limitations contained in Section 7.4
hereof, allocations of any previously unallocated funds to the date of
termination, such Participating Company's Participants shall be entitled to
receive the amount then credited to their respective Accounts in the Trust Fund.
The Administrative Committee shall make payment to such Participants of such
amount in cash; provided, however, that if the Administrative Committee
determines that certain assets (other than Company Stock) are not readily
saleable at their fair market value, the Administrative Committee shall
distribute such assets (other than Company Stock) in kind.
23.3 Rights to Benefits upon Termination of Plan or Complete
Discontinuance of Deposits. Upon the termination or partial termination of the
Plan or the complete discontinuance of contributions by a Participating Company,
the rights of each of such Participating Company's Employees who are then
Participants (or, in the case of a partial termination, who are then
Participants affected by the termination) and the rights of each other person,
other than a person who has forfeited his non-vested amounts pursuant to Section
14.4 hereof prior to the effective date of such termination (or partial
termination) or complete discontinuance, to the amounts credited to his Accounts
at such time, shall be nonforfeitable without reference to any formal action on
the part of such Participating Company, the Administrative Committee or the
Trustee.
SECTION TWENTY-FOUR
STATUS OF EMPLOYMENT RELATIONS
------------------------------
The adoption and maintenance of the Plan and Trust shall not be deemed
to constitute a contract between a Participating Company and its Employees or to
be consideration for, or an inducement or condition of, the employment of any
person. Nothing herein contained shall be deemed (i) to give to any Employee the
right to be retained in the employ of a Participating Company; (ii) to affect
the right of a Participating Company to discipline or discharge any Employee at
any time; (iii) to give a Participating Company the right to require any
Employee to remain in its employ; or (iv) to affect any Employee's right to
terminate his employment at any time.
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EXHIBIT 4.1
SECTION TWENTY-FIVE
BENEFITS PAYABLE BY TRUST
-------------------------
All benefits payable under the Plan shall be paid or provided for
solely from the Trust. The Participating Company assumes no liability or
responsibility therefor.
SECTION TWENTY-SIX
EXCLUSIVE BENEFIT OF TRUST FUND
-------------------------------
26.1 Limitation on Reversions. Except as otherwise provided in Section
6.4 hereof or in this Section Twenty-Six, the assets of the Trust Fund shall be
held for the exclusive purposes of providing benefits to Participants and their
Beneficiaries and defraying reasonable expenses of administering the Plan and
shall not inure to the benefit of any Participating Company.
26.2 Unallocated Amounts upon Termination of Plan and Trust. In the
event the Plan and Trust are terminated, any previously unallocated amounts
maintained in a suspense account in accordance with the provisions of Section
7.4 hereof which cannot be allocated to Participants upon the termination of the
Plan and Trust pursuant to Section 23.2 hereof because of the limitations
contained in Sections 7.4 through 7.7 hereof, shall revert to the Participating
Company or Participating Companies employing the Participant at the time of such
termination.
26.3 Mistake of Fact or Disallowance of Deduction. If the
Administrative Committee in good faith determines that (a) a contribution was
made by reason of a mistake of fact, or (b) a contribution is conditioned on its
being deductible under Code Section 404, but the Internal Revenue Service
disallows such deduction, the amount of the excess contribution less losses
attributable thereto may, upon direction of the Administrative Committee, be
returned to the contributing Participating Company. All payments of returned
contributions under this Section shall be made within one (1) year from the date
of the payment of such mistaken contribution or the disallowance by the Internal
Revenue Service of the deduction, whichever is applicable. The amount of the
excess contribution shall be the excess of (1) the amount contributed over (2)
the amount that would have been contributed had there not occurred a mistake of
fact or had the deduction not been disallowed. Earnings attributable to the
excess contribution shall not be returned to the contributing Participating
Company, but losses attributable thereto shall reduce the amount of such
contribution to be so returned. Furthermore, if the withdrawal of the amount
attributable to the mistaken contribution would cause the balance of a
Participant's Account to be reduced to an amount which is less than the balance
which would have been in said Account had the mistaken amount not been
contributed, then the amount to be returned to the Participating Company under
this Section will be reduced so as to avoid any such reduction.
26.4 Failure of Initial Qualification of Plan and Trust. The initial
establishment of the Plan and Trust by any Participating Company is contingent
upon obtaining the approval of the Internal Revenue Service. In the event that
the Internal Revenue Service fails initially to approve the Plan and Trust as to
any Participating Company, the Trustee shall, after paying any expenses
attributable to such initial establishment, return to such Participating Company
any remaining contribution made by such Participating Company. Such remaining
contribution shall be returned as promptly as practicable, but in no event later
than one (1) year after the date of the final denial of qualification of the
Plan as to such Participating Company, including the final resolution of any
appeals before the Internal Revenue Service or the courts.
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EXHIBIT 4.1
SECTION TWENTY-SEVEN
APPLICABLE LAW
--------------
To the extent not preempted by ERISA, the Plan and Trust which is a
part thereof shall be construed, regulated, interpreted and administered under
and in accordance with the laws of the State of Arkansas.
SECTION TWENTY-EIGHT
INTERPRETATION OF THE PLAN AND TRUST
------------------------------------
It is the intention of the Participating Companies that the Plan, and
the Trust established by the Participating Companies to implement the Plan,
shall qualify as a profit-sharing plan and a discretionary contribution plan and
shall comply with the provisions of Section 401(a), Section 401(k), and Section
501(a) of the Code and the requirements of ERISA, and the corresponding
provisions of any subsequent laws, and the provisions of the Plan and Trust
Agreement shall be construed to effectuate such intention.
SECTION TWENTY-NINE
TOP HEAVY PLAN RULES
--------------------
29.1 Definitions. As used in this Section Twenty-Nine:
29.1(1) "Defined Benefit Plan" shall have the meaning set
forth in Subsection 7.7(3) hereof.
29.1(2) "Defined Contribution Plan" shal have the meaning
set forth in Subsection 7.7(2) hereof.
29.1(3) "Determination Date" shall mean with respect to any
plan year, the last day of the preceding plan year, except that in the
case of the first plan year of any plan, the last day of such first
plan year.
29.1(4) "Employer" shall mean the Participating Company and
any Affiliated Companies.
29.1(5) "Key Employee" shall mean any person employed or
formerly employed by any Employer (and the beneficiaries of any such
person) who is, at any time during the plan year containing the
Determination Date, or who was, during any one or more of the four
preceding plan years, any one or more of the following:
(a) An officer of an Employer having Limitation Year
Compensation for the applicable plan year greater than fifty
percent (50%) of the maximum dollar limitation under Section
415(b)(1)(A) of the Code (as in effect for the calendar year
in which the Determination Date for such plan year falls).
(b) A person employed by an Employer having
Limitation Year Compensation for the applicable plan year
greater than the maximum dollar limitation under Section
415(c)(1)(A) of the Code as in effect for the calendar year in
which the Determination Date for such plan year falls, and
owning (or considered as owning within the meaning of Section
318 of the Code) both more than one-half of one percent (1/2
of 1%) interest and one of the ten (10) largest interests in
the Employer. For purposes of this Subsection (b), (i) a
person who has some ownership interest is considered to be one
of the top ten owners unless at least ten other persons own a
larger interest than that person, and (ii) if two or more have
the same ownership interest in the Employer, the person having
greater annual Limitation Year Compensation from all Employers
shall be treated as having the larger interest.
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EXHIBIT 4.1
(c) Any person owning (or considered as owning within
the meaning of Section 318 of the Code) more than five percent
(5%) of the outstanding stock of an Employer or stock
possessing more than five percent (5%) of the total combined
voting power of such stock or more than five percent (5%) of
the capital or profits interest of an Employer which is not a
corporation.
(d) A person who would be described in Subsection (c)
above if "one percent (1%)" were substituted for "five percent
(5%)" each place it appears in said Subsection (c), and whose
aggregate annual Limitation Year Compensation from all
Employers is more than One Hundred Fifty Thousand Dollars
($150,000).
(e) Notwithstanding any other provision in this Plan
to the contrary, for purposes of determining ownership under
this Subsection 29.1(5), the rules of Sections 414(b), (c) and
(m) of the Code shall not apply in defining who is an
Employer.
The determination of who is a Key Employee hereunder shall be
made in accordance with the provisions of Section 416(i)(1) of the Code
and the regulations thereunder.
29.1(6) "Key Employee Participant" shall mean a Participant in
this Plan who is a Key Employee.
29.1(7) "Limitation Year Compensation" shall have the meaning
set forth in Subsection 7.7(7) hereof, except that if the Limitation
Year and the plan year under the applicable plan are not the same, then
for purposes of this Section Twenty-Nine, "plan year" shall be
substituted for "Limitation Year" every place it occurs in said
Subsection 7.7(7).
29.1(8) "Permissive Aggregation Group" shall mean the Required
Aggregation Group, plus any other plan or plans of any Employer
selected by the Sponsoring Company, provided that such selected plans,
when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Sections 401(a)(4) and 410 of
the Code.
29.1(9) "Required Aggregation Group" shall mean the group of
plans consisting of (i) all tax qualified plans maintained by the
Employers in which at least one Key Employee participates, and (ii) any
other tax qualified plan maintained by the Employers which enables a
plan described in clause (i) above to meet the requirements of Sections
401(a)(4) and 410 of the Code.
29.1(10) "Valuation Date" shall mean (i) in the case of a
Defined Contribution Plan, the last day of the plan year for the
appropriate plan, and (ii) in the case of a Defined Benefit Plan, the
date used for computing plan costs for minimum funding, regardless of
whether a valuation is performed that year.
29.1(11) All of the definitions set forth in Section Two
hereof and not set forth herein shall have the same meaning in this
Section.
29.2 Determination of Top Heaviness.
29.2(1) This Plan shall be a "Top Heavy Plan" with respect to
any Plan Year if, as of the Determination Date for said Plan Year, any
of the following conditions exists:
(a) The Top Heavy Ratio for this Plan exceeds sixty
percent (60%) and this Plan is not part of a Required
Aggregation Group or a Permissive Aggregation Group.
(b) This Plan is part of a Required Aggregation
Group, but not part of a Permissive Aggregation Group, and the
Top Heavy Ratio for the Required Aggregation Group exceeds
sixty percent (60%).
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EXHIBIT 4.1
(c) This Plan is part of a Required Aggregation Group
and part of a Permissive Aggregation Group, and the Top Heavy
Ratio for the Permissive Aggregation Group exceeds sixty
percent (60%).
29.2(2) This Plan shall be a "Super Top Heavy Plan" if it
would be a Top Heavy Plan under the provisions of Subsection 29.2(1)
above if "ninety percent (90%)" were substituted for "sixty percent
(60%)" everywhere sixty percent (60%) appears in said Subsection
29.2(1).
29.2(3)The "Top Heavy Ratio" referred to in Subsection 29.2(1)
above shall be determined as follows:
(a) If the Employers maintain or have maintained one
or more Defined Contribution Plans but have never maintained a
Defined Benefit Plan which has covered or could cover a
Participant in this Plan, the Top Heavy Ratio is a fraction,
the numerator of which is the sum of the account balances
under the Defined Contribution Plans for all Key Employees as
of the Determination Date (including any part of any such
account balance distributed in the five (5) year period ending
on the Determination Date), and the denominator of which is
the sum of all account balances under the Defined Contribution
Plans for all participants as of the Determination Date
(including any part of any such account balance distributed in
the five (5) year period ending on the Determination Date).
Both the numerator and the denominator of the Top Heavy Ratio
shall be adjusted to reflect any contribution which is due but
unpaid as of the appropriate Determination Date. In
determining the account balances which have been distributed
in the five (5) year period ending on the Determination Date,
distributions under a terminated plan shall be included,
provided such terminated plan, if it had not been terminated,
would have been included in a Required Aggregation Group.
(b) If the Employers maintain one or more Defined
Contribution Plans and maintain or have maintained one or more
Defined Benefit Plans which have covered or could cover a
Participant in this Plan, the Top Heavy Ratio is a fraction,
the numerator of which is the sum of account balances under
the Defined Contribution Plans for all Key Employees and the
present value of accrued benefits under the Defined Benefit
Plans for all Key Employees, both calculated as of the
Determination Date, and the denominator of which is the sum of
the account balances under the Defined Contribution Plans for
all participants and the present value of accrued benefits
under the Defined Benefit Plans for all participants, both
calculated as of the Determination Date. Both the numerator
and denominator of the Top Heavy Ratio are adjusted for any
distribution of an account balance or an accrued benefit made
in the five (5) year period ending on the appropriate
Determination Date and any contribution due but unpaid as of
the appropriate Determination Date. In determining the account
balances or accrued benefits which have been distributed in
the five (5) year period ending on the Determination Date,
distributions under a terminated plan shall be included,
provided such terminated plan, if it had not been terminated,
would have been included in a Required Aggregation Group.
(c) For purposes of Subsections (a) and (b) above,
the value of account balances and the present value of accrued
benefits shall be determined as of the most recent Valuation
Date that falls within or ends with the twelve (12) month
period ending on the Determination Date. The present value of
accrued benefits under Defined Benefit Plans shall be
determined under the actuarial assumptions set forth in each
such plan as of said Valuation Date as if the person
voluntarily terminated service as of such Valuation Date. If
any Participant was a Key Employee as set forth in Subsection
29.1(5) above for any prior plan year, but such Participant
ceases to be a Key Employee for any plan year, such
Participant's account balances and accrued benefits shall not
be taken into account for purposes of determining whether this
Plan is a Top Heavy Plan or a Super Top Heavy Plan as of the
Determination Date of said plan year. Accounts and accrued
benefits shall be calculated to include all amounts
attributable to both Employer contributions and contributions
by persons employed by the Employer, but shall exclude amounts
attributable to voluntary deductible contributions by said
persons. The calculation of the Top Heavy Ratios, and the
extent to which distributions, rollovers and transfers
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EXHIBIT 4.1
are taken into account shall be made in accordance with
Section 416 of the Code and the regulations thereunder. When
aggregating plans for purposes of an Aggregation Group, the
value of account balances and accrued benefits will be
calculated with reference to the Determination Dates that fall
within the same calendar year. Notwithstanding the provisions
of Subsections (a) and (b) above, in determining the fractions
referred to therein, there shall not be taken into account the
accrued benefits or account balances of any person who has not
received any Limitation Year Compensation from any Employer
maintaining any Defined Contribution Plan or Defined Benefit
Plan referred to in such Subsections at any time during the
five (5) year period ending on the Determination Date.
29.3 Minimum Requirements. Notwithstanding any other provision of this
Plan to the contrary, if the Plan is a Top Heavy Plan for any Plan Year, then
the following provisions shall apply:
29.3(1) Minimum Allocation of Participating Company Deposits.
Except as otherwise provided in this Section Twenty-Nine, for any Plan
Year in which the Plan is a Top Heavy Plan, the Company Matching
Deposits allocated on behalf of each Participant who is not a Key
Employee Participant shall not be less than the lesser of (i) three
percent (3%) of such Participant's Limitation Year Compensation, or
(ii) the largest percentage of the sum of (a) the Company Matching
Deposits allocated on behalf of any Key Employee Participant for that
Plan Year, and (b) such Key Employee Participant's Basic and
Supplemental Before-Tax Deposits for that Plan Year; provided, however,
that the provisions of clause (ii) hereof shall not apply to any plan
included in a Required Aggregation Group if such plan enables a Defined
Benefit Plan included in such Required Aggregation Group to meet the
requirements of Section 401(a)(4) or Section 410 of the Code. The
minimum allocation provided for herein shall be determined without
taking into account contributions or benefits under Chapter 21 of the
Code (relating to the Federal Insurance Contributions Act), Title II of
the Social Security Act, or any other federal or state law, and shall
be made without regard to any contrary provisions of the Plan regarding
the allocation of Participating Company Deposits to affected
Participants which might otherwise result in any such Participant being
entitled to no allocation or a lesser allocation due to the
Participant's failure to complete one thousand (1,000) Hours of Service
(or the equivalent), the Participant's failure to make mandatory
employee contributions, or, in the case of a cash or deferred
arrangement, elective contributions, or the Participant's failure to
earn a stated amount of Compensation; provided however, that such
minimum allocation shall not be required to be made on behalf of any
Participant who is not actively employed by a Participating Company on
the last day of the applicable Plan Year. For purposes of this
Subsection 29.3(1), all Defined Contribution Plans required to be
included in an Aggregation Group shall be treated as one plan.
29.3(2) Vesting. Any Participant who is credited with an Hour
of Service in the first Plan Year in which the Plan is a Top Heavy
Plan, or in any subsequent Plan Year after such first Plan Year
(whether or not the Plan is a Top Heavy Plan in such subsequent Plan
Year) shall have his percentage of vested benefits owing upon a
Termination of Employment determined pursuant to the following
schedule, in lieu of the Schedule set forth in Section 14.1 hereof:
Vesting Years of Service Percentage
------------------------ ----------
Less than 2 years 0%
2 years 20%
3 years 40%
4 years 60%
5 years or more 100%
29.4 Minimum Benefits for Employers Maintaining Defined Benefit Plans.
If any Participant other than a Key Employee Participant is also a participant
under a Defined Benefit Plan maintained by an Employer which is also a Top Heavy
Plan, then Subsection 29.3(2) shall not apply, and such Participant shall
receive an allocation of Company Matching Deposits in an amount which, when
added to such Participant's Basic and Supplemental Before-Tax Deposits, is no
less than five percent (5%) of such Participant's Compensation under the Plan
for the applicable Plan Year. Such allocation shall be made without regard to
the amount allocated under the Plan on behalf of any Key Employee Participant
II-65
<PAGE>
EXHIBIT 4.1
for such Plan Year. For purposes of this Section 29.4, all Defined Contribution
Plans required to be included in an Aggregation Group shall be treated as one
plan.
29.5 Super Top Heavy Plans. If in any Plan Year in which the Plan is a
Top Heavy Plan, (i) it is also a Super Top Heavy Plan, or (ii) it does not
provide minimum benefits under Subsection 29.3(1) hereof after substituting
"four percent (4%)" for "three percent (3%)" contained in clause (i) of the
first sentence of said Subsection, or (iii) if Section 29.4 hereof applies, it
does not provide minimum benefits under said Section 29.4 after substituting
"seven and one-half percent (7 1/2%)" for "five percent (5%)" contained in the
first sentence of said Section, then, in any such event, for purposes of the
definitions set forth in Subsections 7.7(4) and 7.7(5) hereof, the dollar
limitations contained in Sections 415(e)(2)(B) and 415(e)(3)(B) of the Code
shall be multiplied by 1.0 rather than 1.25. Notwithstanding the foregoing
provisions of this Section 29.5, if the application of said provisions would
cause any individual to exceed the combined limits of Section 7.6 hereof, if
applicable, then the requirements of this Section 29.5 shall be suspended as to
such individual until such time as he no longer exceeds the limitations of said
Section 7.6 as modified by this Section 29.5, and during the period of such
suspension, said individual shall receive no allocation of contributions which
would be included in such individual's Annual Additions (as defined in Code
Section 415(c)) under this Plan or any other Defined Contribution Plan
maintained by an Employer, and there shall be no accruals of benefits for such
individual under any Defined Benefit Plan maintained by an Employer.
IN WITNESS WHEREOF, Treadco, Inc. has caused this Plan to be executed
and attested by the officers hereunto duly authorized, this 12th day of August
1995, effective as of January 1, 1994, except as specifically noted otherwise
herein.
TREADCO, INC.
By: /s/ R. F. Cooper
----------------
Title: Secretary
----------
ATTEST:
/s/ Jay Davidson
- ----------------
II-66
EXHIBIT 4.2
AMENDMENT ONE TO
TREADCO, INC. EMPLOYEES' INVESTMENT PLAN
AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994
-------------------------------------------------
WHEREAS, effective September 1, 1991, Treadco, Inc. (the "Company")
adopted the Treadco, Inc. Employees' Investment Plan (the "Plan") for the
benefit of its employees, and effective January 1, 1994, the Plan was amended
and restated in its entirety; and
WHEREAS, the Company wants to amend the Plan to allow for loans other
than by written application (e.g., electronic loans), and to allow participants
to make loans more frequently, to remove the participant loan requirement for
spousal consent, to provide for a waiver of the 30-day notice requirement for
direct rollovers and other distributions from the Plan and to permit the
forfeiture of matching contributions in the event excess contributions are
forfeited; and
NOW, THEREFORE, pursuant to its authority under Section Twenty-One of
the Plan, the Company amends the Plan effective January 1, 1996, as follows:
1. Existing Section 6.4(3) is amended to add the following sentence to
the end thereof:
"Notwithstanding any Plan provision to the contrary, in no
event shall Company Matching Deposits remain allocated to a Highly
Compensated Employee's Account and such amounts shall be treated as
forfeited in accordance with Subsection 14.4(2) hereof and forfeited
not later than the last day of the Plan Year following the Plan Year
such Excess Contributions occurred, if the Before-Tax Deposits which
were matched by such Company Matching Deposits are refunded as Excess
Contributions under this Subsection 6.4(3)."
2. Existing Section 15.9 is amended to add the following new Subsection
15.9(2) to the end of Section 15.9:
"15.9(2) A distribution under Section 15.10 or
otherwise allowable under the Plan may commence less than 30 days after
the notice required under Section 402(f) of the Code and Section
1.411(a)-11(c) of the Treasury Regulations ("Notice") is given,
provided that:
(i) the Administrative Committee clearly informs the
Participant that the Participant has a right to a period of at
least 30 days after receiving the Notice to consider the
decision of whether or not to elect a Direct Rollover or
otherwise receive a distribution (and if applicable, a
particular distribution option); and
(ii) the Participant, after receiving the Notice,
affirmatively elects a distribution or Direct Rollover in
accordance with the Plan's terms."
3. The first sentence only of existing Section Eighteen is hereby
deleted in its entirety, and the following sentence is substituted in its place:
II-67
<PAGE>
EXHIBIT 4.2
"Upon the application of any Participant or any Beneficiary
(and any Former Participant or Beneficiary who is a party-in-interest
with respect to the Plan and who has an undistributed Account under the
Plan) made to the Administrative Committee on such form and accompanied
by such additional documentation and information as the Administrative
Committee shall require, the Administrative Committee shall, if the
Administrative Committee determines the loan would comply with all of
the loan requirements, make a loan to such individual (the "Borrower");
provided, however, that the amount of any such loan to a Borrower when
added to the outstanding balance of all other such loans, if any, made
to such Borrower hereunder, shall not exceed the lesser of (a) Fifty
Thousand Dollars ($50,000) reduced by the excess, if any, of the
highest outstanding balance of loans from the Plan during the one-year
period ending on the day before the date on which the loan is made,
over the outstanding balance of loans from the Plan on the date on
which the loan is made, or (b) fifty percent (50%) of the vested
amounts in all of the Borrower's Accounts valued as of the Valuation
Date coincident with or next preceding the date of the loan, or (c) one
hundred percent (100%) of the amounts in the Borrower's Accounts, other
than Amounts invested in the Company Stock Fund, valued as of the
Valuation Date coincident with or next preceding the date of the loan."
4. Existing Section 18(h) is hereby deleted in its entirety, and the
following is substituted in its place:
"(h) No Borrower shall have more than one loan outstanding at
any time. When a Plan loan is repaid, the Borrower may not take another
loan until after the expiration of at least sixty (60) days from the
date of full repayment."
5. Existing paragraph (i) of Section Eighteen is hereby deleted in its
entirety and is replaced in its entirety by existing paragraph (j) of Section
Eighteen, which is hereby redesignated as the new paragraph (i) of Section
Eighteen.
6. Existing paragraph (k) of Section Eighteen is hereby redesignated as
new paragraph (j) of Section Eighteen.
IN WITNESS WHEREOF, TREADCO, INC. has caused this instrument to be executed
by its duly authorized officers on this 6th day of March, 1996. TREADCO, INC.
BY /s/ R. F. Cooper
-------------------
TITLE Secretary
-----------
II-68
EXHIBIT 4.3
AMENDMENT NO. TWO
TO THE
TREADCO, INC. EMPLOYEES' INVESTMENT PLAN
Amendment made this 11th day of August, 1997, by Treadco, Inc., (the
"Company"):
WHEREAS, the Company adopted the Treadco, Inc. Employees Investment
Plan (the "Plan") effective November 1, 1991; and
WHEREAS, the Plan was amended and restated as of January 1, 1994; and
WHEREAS, the Plan has been amended since its restatement; and
WHEREAS, the Company, acting pursuant to Section 21 of the Plan, has
the sole and exclusive power to amend the Plan; and
WHEREAS, the Company acquired the assets of Five Bros., Incorporated
("Five Bros.") on July 12, 1996 and, on July 15, 1996, certain former employees
of Five Bros. became employees of the Company; and
WHEREAS, the Company desires to amend the Plan to extend participation
in the Plan to all former employees of Five Bros. who became employees of the
Company effective as of July 15, 1996:
NOW, THEREFORE, the Plan is amended, effective August 15, 1996, as
provided below:
1. Section 3.1 of the Plan is amended to add the following paragraph
to the end of Section 3.1 of the Plan:
"Notwithstanding any provision in the Plan to the contrary, all
individuals formerly employed by Five Bros., Incorporated on or before
July 12, 1996, and who became employees of the Company on July 15,
1996, shall become eligible to participate in the Plan on August 15,
1996."
IN WITNESS WHEREOF, this Amendment has been executed the day and year
first above written.
TREADCO, INC.
BY: /s/ R. F. Cooper
----------------
ITS: Secretary
----------
II-69
EXHIBIT 4.4
AMENDMENT NO. FOUR TO
TREADCO, INC. EMPLOYEES' INVESTMENT PLAN
AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1994
-------------------------------------------------
WHEREAS, effective as of September 1, 1991, Treadco, Inc. (the "Company")
adopted the Treadco, Inc. Employees' Investment Plan (the "Plan") for the
benefit of its employees, and effective as of January 1, 1994, the Plan was
amended and restated in its entirety; and
WHEREAS, the Plan was subsequently amended effective as of January 1, 1996
and again, effective August 15, 1996; and
WHEREAS, the Company has submitted a proposed third amendment to the Plan
to the Internal Revenue Service; and
WHEREAS, pursuant to Section Twenty-One of the Plan, the Company has the
authority to amend the Plan as provided herein; and
WHEREAS, the Company desires to amend the Plan to effect a merger of the
Treadco Employee Stock Ownership Plan into the Plan.
NOW, THEREFORE, pursuant to its authority under Section Twenty-One of the
Plan, the Company amends the Plan effective on November 1, 1997, except as
otherwise provided below:
30. Existing Section 1.3 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"1.3 Prior Plans. Effective as of July 1, 1991, the employees
of ABC Treadco, Inc. ("Old Treadco") were transferred to employment
with the newly formed Treadco, Inc. Old Treadco maintained a Code
Section 401(k) plan, which was substantially similar to the Plan, for
the benefit of its eligible employees; this plan was known as the ABC
Treadco, Inc. Employees' Investment Plan (the "Prior Plan"). The
assets of the Prior Plan were transferred to the Plan and deposited
with and held, subject to the provisions of the Plan, by the Trustee
of Investment Trust No. 2 (if attributable to contributions to the
Arkansas Best Corporation stock fund in the Prior Plan) or the Trustee
of Investment Trust No. 1 (if attributable to other assets of the
Prior Plan).
Effective on November 1, 1997, the Treadco Employee Stock
Ownership Plan ("ESOP") was amended to merge the ESOP into the Plan.
The assets of the ESOP were transferred to the Plan and deposited and
held, subject to the provisions of the Plan, by the Trustee of
Investment Trust No. 1, which was established pursuant to a "Trust
Agreement"."
31. Existing Section 1.5 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"1.5 Separate Trusts. Two (2) separate Trusts, the Investment
Trust No. 1 and the Investment Trust No. 2, have been established and
have been maintained for the purposes of the Plan (and other plans
sponsored by Affiliated Companies) and the moneys thereof have been
invested in accordance with the terms of such Trusts. Effective as of
November 1, 1997, the Investment Trust No. 2 shall be terminated and
its assets transferred into Investment Trust No. 1. All Before-Tax
Deposits and Company Matching Deposits made in cash (unless the Board
of Directors of the Sponsoring Company directs otherwise), shall be
paid to the Trustee of the Investment Trust No. 1 for investment
therein. The Investment Trust No. 1 shall consist of the assets held
in each Investment Fund, including the Company Stock Fund."
II-70
<PAGE>
EXHIBIT 4.4
32. Existing Section 2.42 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"2.42 "Trustee" shall mean Fidelity Management Trust Company,
trustee of the Investment Trust No. 1, and any additional or successor
Trustees. Except as otherwise provided in the Trust Agreements and
herein, the Trustees shall be the "Named Fiduciaries" referred to in
Section 402(a) of ERISA with respect to the control, management and
disposition of the Trust Funds."
33. Existing Section 2.46 of the Plan is hereby amended to add the
following new language between the expressions "Employer" and "Excess Aggregate
Contributions":
""ESOP" Section 1.3
"ESOP Account" Section 9.1"
34. Existing Section 8.1 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"8.1 Regular Valuation. The Trustee of the Investment Trust
No. 1 shall evaluate such Trust Fund (separately itemized with respect
to each Investment Fund under Section 9.4 hereof of the Investment
Trust No. 1) at fair market value as of the close of business on each
Valuation Date. The Trustees of the Investment Trust No. 1 shall
evaluate the Company Stock Fund at fair market value as of the close of
business on each Valuation Date. In making such valuations, except as
otherwise provided for herein or in a Trust Agreement, the Trustee
shall use the modified cash basis method of accounting and shall deduct
all charges, expenses and other liabilities, if any, then chargeable
against the Trust Fund, in order to give effect to income realized and
expenses paid, losses sustained and unrealized gains or losses
constituting appreciation or depreciation in the value of Trust
investments since the last previous valuation. At the request of the
Administrative Committee, as soon as practicable after such valuation,
the Trustee shall deliver in writing to the Administrative Committee a
valuation of the Trust Fund together with a statement of the amount of
net income or loss (including appreciation or depreciation in the value
of Trust investments) since the last previous valuation."
35. Existing Section 9.1 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"9.1 Valuation of Company Stock. In making any valuation of
the portion of the Trust Fund consisting of Company Stock, the Trustee
of Investment Trust No. 1 shall determine the fair market value of
Company Stock."
36. Existing Section 9.1 of the Plan is hereby deleted in its entirety, and
the following is substituted in its place:
"9.1 Separate Accounts. Subject to the provisions of Section
17.2 hereof, the Administrative Committee shall maintain for each
Participant a separate Company Matching Deposit Account, a separate
Basic Before-Tax Deposit Account, a separate Supplemental Before-Tax
Deposit Account, a separate Choice Benefits Deposit Account as
necessary, an ESOP Account as necessary, and a separate Rollover
Account, as necessary. The term "ESOP Account" means the separate
account maintained for each Participant who was a Participant in the
ESOP on the date of its merger into the Plan and to which shall be
posted all of such Participant's funds transferred from the ESOP, as
adjusted in accordance with the provisions of Section Nine. The amount
contributed by or on behalf of a Participant or allocated to such
Participant shall be credited to the appropriate Account in the manner
set forth in Sections Six and Seven hereof. All payments to a
Participant or his Beneficiaries shall be charged against the
respective Accounts of such Participant."
37. The last sentence of existing Section 9.3 of the Plan is hereby deleted
in its entirety, and the following is substituted in its place:
"With respect to a Participant's Company Matching Deposit Account and
ESOP Account, such adjustment, if necessary, shall be made by adjusting
the number of shares, if applicable, of Company
II-71
<PAGE>
EXHIBIT 4.4
Stock allocated to each Participant's Company Matching Deposit Account
and ESOP Account, respectively."
38. Effective on January 1, 1998, existing Subsection 9.4(1) of the Plan is
hereby deleted in its entirety, and the following is substituted in its place:
"9.4(1) Notwithstanding any other provision of the Plan or the
Trust Agreement with respect to control over and direction of the
investment of assets in the Trust Fund, each Participant may, at such
time and in such manner as the Administrative Committee shall determine
pursuant to a uniform policy established by it, direct that all or any
part (subject to such percentage increment limitations as the
Administrative Committee shall determine from time to time) of the
amounts constituting such Participant's existing Account and his future
Before-Tax Deposits and Company Matching Deposits (and such other
contributions to the Plan, or amounts attributable to such other
contributions, as determined by the Administrative Committee, in its
sole discretion) be invested among such investment funds as the
Administrative Committee shall offer from time to time ("Investment
Funds") for direction by Participants. This Section 9.4 is intended to
meet the requirements of Section 404(c) of ERISA by allowing each
Participant to direct the investment of his individual Accounts."
39. Effective on January 1, 1998, existing Subsection 9.4(3) of the Plan is
hereby deleted in its entirety, and the following is substituted in its place:
"9.4(3) At such times as the Administrative Committee shall
permit, and in such manner as the Administrative Committee shall
determine, pursuant to uniform policies established by it, each
Participant may (i) direct that all, or any part (subject to such
percent increment limitations as the Administrative Committee shall
determine from time to time) of the amounts in the Participant's
Accounts which are invested on his behalf in any of the Investment
Funds, be liquidated and the proceeds thereof reinvested in the other
Investment Funds and (ii) redirect the investment of future Before-Tax
Deposits and Matching Contributions (and future earnings on all such
amounts) in accordance with the provisions of Subsection 9.4(1) hereof.
In the event at any time a Participant does not elect to redirect any
Account balances or future contributions as provided for in this
Subsection 9.4(3), then such Participant's prior directions shall
remain in effect."
40. Effective on January 1, 1998, existing Subsection 9.4(4) of the Plan is
hereby deleted in its entirety, and the following is substituted in its place:
"9.4(4) The Trustee shall carry out Participant's directions
or redirections permitted by this Section 9.4 (or in the absence of
directions, shall invest as provided in Subsection 9.4(5) hereof) as
soon as administratively practicable. Notwithstanding the foregoing, in
the event a Participant has directed that only part of his interest in
any of the Investment Funds be liquidated and reinvested in one or more
of the other Investment Funds only the nearest value of whole units
will be liquidated and reinvested."
41. Effective on January 1, 1998, Existing Subsection 9.4(5) of the Plan is
hereby deleted in its entirety, and the following is substituted in its place:
"9.4(5) If a Participant fails or refuses to exercise any of
his investment direction rights as provided for in this Section 9.4,
the Trustee shall invest all amounts (not otherwise directed) in the
lowest risk Investment Fund available, as determined by the
Administrative Committee."
42. Existing Subsection 9.5(1) of the Plan is hereby deleted in its
entirety, and the following is substituted in its place:
II-72
<PAGE>
EXHIBIT 4.4
"9.5(1) Company Matching Deposits which are made in cash and
contributed to Investment Trust No. 1 and any forfeited, Non-Vested
Amounts held in the Company Stock Fund that are applied to reduce
Company Matching Deposits as provided in Subsection 14.4(2) will be
invested by the Trustee of Investment Trust No. 1 in the Company Stock
Fund. The Trustee may retain any shares of Company Stock which are
received as a result of a stock dividend or stock split, and shall
invest any cash or cash-equivalent amounts held in the Company Stock
Fund in Company Stock as soon as practicable unless directed otherwise
by the Board of Directors of the Sponsoring Company or unless the
Trustee determines that it is necessary to retain such amounts in cash
to make distribution or to pay administrative expenses."
43. Effective on January 1, 1998, existing Subsection 9.5(1) of the Plan is
hereby deleted in its entirety, and the following is substituted in its place:
"9.5(1) The Company Stock Fund shall be one of the Investment
Funds available for the investment of any portion of a Participant's
Account in accordance with Section 9.4. The Company Stock Fund may be
partially invested in cash, cash-equivalents, or short-term investments
as needed to meet liquidity requirements or if amounts are too small to
reasonably invest in Company Stock."
44. Existing Subsection 9.5(2) of the Plan is hereby deleted in its
entirety, and the following is substituted in its place:
"9.5(2) Any amount in the Company Stock Fund not currently
invested in Company Stock shall be invested by the Trustee of
Investment Trust No. 1 only in cash-equivalent investments, including,
but not limited to, investments in commingled funds, as such Trustee
shall determine."
45. Existing Subsection 9.5(3) of the Plan is hereby deleted in its
entirety, and the following is substituted in its place:
"9.5(3) All shares of Company Stock in the Company Stock Fund
shall be voted by the Trustee of Investment Trust No. 1 in the manner
provided by Investment Trust No. 1."
46. Existing Section 14.1 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"14.1 Vesting upon Termination of Employment. Subject to the
provisions of Sections 14.4 and 17.3 hereof, in the event of the
Termination of Employment of a Participant, such Participant shall be
entitled to receive (i) one hundred percent (100%) of the amounts in
all of his Accounts other than his Company Matching Deposit Account and
ESOP Account, and (ii) the following percentage of the amount in his
Company Matching Deposit Account and ESOP Account as determined in
accordance with the provisions of Subsection 15.2(1) and Section 15.5
hereof, based upon such Participant's number of Vesting Years of
Service prior to such Termination of Employment:
Number of Vesting
Years of Service Vested Percentage
---------------- -----------------
Less than 5 years None
5 years or more 100%
Such benefits shall be paid as provided in Section Fifteen hereof.
Notwithstanding the above, any portion of a Participant's ESOP Account
which is attributable to the 1991 transfer of assets from the Arkansas
Best Employee Stock Ownership Plan will become one hundred percent
(100%) vested and nonforfeitable if he is employed by the Sponsoring
Company or an Affiliated Company on his 55th birthday."
II-73
<PAGE>
EXHIBIT 4.4
47. Existing Subsection 14.3(2) of the Plan is hereby deleted in its
entirety, and the following is substituted in its place:
"14.3(2) In the case of any Participant who suffers a
Termination of Employment and who has no vested amount in his Basic or
Supplemental Before-Tax Deposit Accounts, his Choice Benefits Deposit
Account, his Company Matching Deposit Account or his ESOP Account in
accordance with the provisions of Section 14.1 hereof, Vesting Years of
Service before any period of One-Year Periods of Severance shall not be
taken into account if such Participant's latest Period of Severance
equals or exceeds the greater of (i) five (5) consecutive One-Year
Periods of Severance, or (ii) his aggregate Periods of Service before
the commencement of such latest Period of Severance. Such aggregate
Periods of Service before the commencement of such latest Period of
Severance shall be deemed not to include any Vesting Year of Service
which precedes a One-Year Period of Severance if as of or prior to
December 31, 1984, the duration of the consecutive One-Year Periods of
Severance measured in years equals or exceeds the Participant's Vesting
Years of Service prior to the One-Year Periods of Severance."
48. Existing Subsection 14.3(3) of Plan is hereby deleted in its entirety,
and the following sentence is substituted in its place:
"14.3(3) In the case of any Participant who has five (5)
consecutive One-Year Periods of Severance, Vesting Years of Service
after such five (5) year period shall not be taken into account for
purposes of determining the vested amount in his Company Matching
Deposit Account or ESOP Account which accrued prior to such five (5)
year period."
49. Existing Section 14.4 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"14.4(1) Forfeiture of Non-Vested Amount.
(a) In the case of any Participant who has
suffered a Termination of Employment and who has
received a distribution of the vested amount in his
Company Matching Deposit Account, ESOP Account, and
his Basic and Supplemental Before-Tax Deposit
Accounts and his Choice Benefits Deposit Account
(the "Vested Amount") on or prior to the last day of
the second (2nd) Plan Year following the Plan Year
in which such Termination of Employment occurs, the
excess, if any, of the amount in his Company
Matching Deposit Account and ESOP Account over the
vested amount in such Accounts (the "Non-Vested
Amount") shall be forfeited as of the last day of
the second (2nd) Plan Year following the Plan Year
during which such Participant suffers such
Termination of Employment.
(b) In the case of any Participant who has
suffered a Termination of Employment and who has no
Vested Amount at the time of such Termination of
Employment, the amount in his Company Matching
Deposit Account and ESOP Account shall be forfeited
as of the last day of the second (2nd) Plan Year
following the Plan Year during which such
Participant suffers such Termination of Employment.
(c) In the case of any Participant who has
suffered a Termination of Employment and who has not
received a distribution of the Vested Amount on or
prior to the last day of the second (2nd) Plan Year
following the Plan Year in which such Termination of
Employment occurs, the Non-Vested Amount shall be
forfeited as of the last day of the second (2nd)
Plan Year following the Plan Year in which the
Participant incurs five (5) consecutive One-Year
Periods of Severance.
II-74
<PAGE>
EXHIBIT 4.4
14.4(2) Subject to the provisions of Subsection 14.5(2)
hereof, forfeited, Non-Vested Amounts shall reduce the Company Matching
Deposits of each Participating Company under Subsection 6.1(1). If the
amount of the forfeited, Non-Vested Amounts for a Plan Year exceeds the
amount of the Company Matching Deposits for the Plan Year, the excess
shall be treated as an increase in the specified percentage determined
in accordance with Subsection 6.1(1) for the Plan Year."
50. Existing Section 14.5 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"14.5 Restoration of Forfeited Non-Vested Amount.
14.5(1) In the event a Participant: (i) who has
received a distribution of the vested amount in his Company
Matching Deposit Account and, if applicable, his ESOP Account
in accordance with Section 14.4 hereof, or (ii) who has no
vested amount in his Company Matching Deposit Account and, if
applicable, his ESOP Account at the time of his Termination of
Employment, as described in Subsection 14.4(1)(b) hereof,
returns to employment with a Participating Company as an
Employee prior to the date on which such Participant has
incurred five (5) consecutive One-Year Periods of Severance,
the amount in such Participant's Company Matching Deposit
Account or ESOP Account which was forfeited pursuant to
Section 14.4 hereof (without adjustment for any gains or
losses in the Trust Fund subsequent to such forfeiture) shall
be restored to such Participant's Company Matching Deposit
Account and ESOP Account; provided, however, that if a
Participant received a distribution of the vested amount of
his Company Matching Deposit Account and ESOP Account and is
reemployed by a Participating Company as an Employee more than
one year after his Termination of Employment, such restoration
shall not occur unless and until: (i) such Participant repays
to the Plan the full amount of his Company Matching Deposit
Account or ESOP Account previously distributed to him, and
(ii) such Participant's repayment is made before the earlier
of the end of (I) the five (5) year period beginning with the
Participant's date of reemployment or (II) a period of five
(5) consecutive One-Year Periods of Severance commencing after
the date on which such Participant received such distribution.
Upon the restoration of a Participant's Company Matching
Deposit Account and ESOP Account as provided for hereinabove,
the vested amount in such Participant's Company Matching
Deposit Account and ESOP Account (whether attributable to
amounts restored, amounts, if any, repaid by the Participant
or additional amounts added to such Account after such
reemployment) shall thereafter be determined in accordance
with the provisions of this Section Fourteen without regard to
such Participant's original Termination of Employment.
14.5(2) The restoration of a Participant's
Non-Vested Amount in his Company Matching Deposit Account or
ESOP Account, as provided for in Subsection 14.5(1) above,
shall be made from the Non-Vested Amounts forfeited pursuant
to Section 14.4 hereof during the Plan Year of such
restoration before any use of such forfeitures as provided in
Subsection 14.4(2) hereof. In the event there are not
sufficient forfeitures to restore the entire amount owing to
Participants under Subsection 14.5(1) above, the additional
amount necessary for restoration shall be contributed by the
Participating Company employing such Participant as a special
contribution to be allocated to the Company Matching Deposit
Account or ESOP Account of the affected Participant."
51. Existing Section 15.5 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"15.5 Benefits Payable in Cash. All disbursements from the
Trust Fund shall be made in cash, and no Participant may elect to
receive an in kind distribution except as specifically provided in this
Section 15.5 and Section 15.10 below; provided, however, that a
Participant shall have a right to demand that distribution of his ESOP
Account be made in whole shares of Company Stock (with the value of any
fractional shares paid in cash)."
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EXHIBIT 4.4
52. The following new Section 15.10 of the Plan is hereby added after
Section 15.9 of the Plan:
"15.10 Put Option for ESOP Accounts Only. The Sponsoring
Company shall provide a "put option" to any Participant (or
Beneficiary) who receives a distribution of Company Stock from his ESOP
Account at times when such Company Stock is not readily tradable on an
established market. The put option is to be exercisable only by the
Participant, the Participant's donees or a Beneficiary, including
Alternate Payees or a person (including an estate or its distributee)
to whom the Company Stock passes by reason of a Participant's death.
The put option must permit the Participant to put the Company Stock to
the Sponsoring Company. The put option must be exercisable during the
sixty (60) consecutive days beginning on the date that the Company
Stock subject to the put option is distributed by the Plan, and for
another sixty (60) consecutive days during the Plan Year next following
the Plan Year in which the shares were distributed. The put option may
be exercised by the holder notifying the Sponsoring Company in writing
that the put option is being exercised. The period during which a put
option is exercisable does not include any period when a distributee is
unable to exercise it because the party bound by the put option is
prohibited from honoring it by applicable Federal or state law. The
price at which the put option is exercisable is the fair market value
of the Company Stock on the date of the transaction determined in good
faith based on all relevant factors.
Payment pursuant to the put option shall be made: (1) in the
case of distribution of the Participant's entire ESOP Account within
one taxable year of the recipient, no less rapidly than in
substantially equal installments at least annually over a period
beginning no later than thirty (30) days after the exercise of the put
option and not exceeding five (5) years in all; adequate security shall
be provided and reasonable interest shall be paid on any installments
outstanding after thirty (30) days after exercise of the put option;
and (2) in the case of any other form of distribution not described in
(1), within thirty (30) days of the exercise of the put option. Payment
pursuant to the put option shall be made no less rapidly than in
substantially equal installments at least annually over a period
beginning no later than thirty (30) days after the put option and not
exceeding five (5) years in all, except that the repayment period may
be extended to a date no later than ten (10) years after the earlier of
the date the put option is exercised or the date of final repayment of
any debt incurred in connection with the acquisition of the Company
Stock. The provisions described in this Section 15.10 are nonterminable
even by the custodian or trustee of an individual retirement account
described in Section 408(a) of the Code established by the Participant
or his surviving spouse.
Shares of Company Stock held or distributed by the Trustee may
include such legend restrictions on transferability as the Sponsoring
Company may reasonably require in order to assure compliance with
applicable Federal and state securities law. Except as otherwise
provided in this Section 15.10, no shares of Company Stock held or
distributed by the Trustee may be subject to a put, call, or other
option, or buy-sell or similar arrangement."
53. Existing Section 22.2 of the Plan is hereby amended to add the
following new sentence to the end thereof:
"The Administrative Committee is empowered to direct the Trustee to
transfer assets and liabilities from the Plan relating to such
Participant Accounts as the Administrative Committee designates to
another plan; provided, however, that such transfer must meet the
requirements of the directly preceding sentence of this Section 22.2
and Section 414 of the Code. Any trust-to-trust transfer under this
Section 22.2 shall, except as allowed by the Administrative Committee
in its sole discretion, not include any amounts in a Participant's
Account attributable to Company Stock."
54. Existing Section 22.3 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"22.3 Continuance by Successor Company. In the event of the
liquidation, dissolution, merger, consolidation or reorganization of a
Participating Company, the successor company may adopt the Plan and
Trust for the benefit of the employees of such Participating Company,
if such adoption is approved by the Sponsoring Company. If the
Sponsoring Company approves such successor
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EXHIBIT 4.4
company's adoption of the Plan and Trust, the successor company shall,
in all respects, be substituted for such Participating Company under
the Plan and Trust. Any such substitution of such successor company
shall constitute an assumption of Plan liabilities by such successor
company, and such successor company shall have all of the powers,
duties and responsibilities of such Participating Company under the
Plan and Trust. If such successor company does not adopt the Plan and
Trust, subject to the Sponsoring Company's approval, the Plan and Trust
shall be terminated with respect to such Participating Company in
accordance with the provisions of the Plan and Trust Agreement."
55. Existing Section 23.3 of the Plan is hereby deleted in its entirety,
and the following is substituted in its place:
"23.3 Rights to Benefits upon Termination of Plan or Complete
Discontinuance of Deposits. Upon the termination or partial termination
of the Plan or the complete discontinuance of contributions by each and
all of the Participating Companies, the rights of each Participating
Company's Employees who are then Participants (or, in the case of a
partial termination, who are then Participants affected by the
termination) and the rights of each other person, other than a person
who has forfeited his non-vested amounts pursuant to Section 14.4
hereof prior to the effective date of such termination (or partial
termination) or complete discontinuance, to the amounts credited to his
Accounts at such time, shall be nonforfeitable without reference to any
formal action on the part of any affected Participating Company, the
Administrative Committee or the Trustee."
IN WITNESS WHEREOF, TREADCO, INC. has caused this instrument to be executed
by its duly authorized officers on this 28th day of October, 1997.
TREADCO, INC.
BY /s/ R. F. Cooper
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TITLE
------------------------
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Treadco, Inc. Employees' Investment Plan of our report
dated January 30, 1997, with respect to the consolidated financial statements
and schedules of Treadco, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
---------------------
Little Rock, Arkansas
December 24, 1997
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