As filed with the Securities and Exchange Commission on November 18, 1994
Registration No. 33-_________
________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
THE DIAL CORP
(Exact name of registrant as specified in its charter)
Delaware 36-1169950
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Dial Tower, Phoenix, Arizona 85077
(Address of Principal Executive Offices) (Zip Code)
DOBBS INTERNATIONAL SERVICES, INC. BARGAINED EMPLOYEES' 401(k) PLAN
(Full title of plan)
_______________
L. Gene Lemon, Esq.
Vice President-General Counsel
The Dial Corp
Dial Tower
Phoenix, Arizona 85077
(Name and address of agent for service)
(602) 207-4000
(Telephone number, including area code,
of agent for service)
_______________
<PAGE>
CALCULATION OF REGISTRATION FEE
________________________________________________________________________
Title of Amount Proposed Maximum Proposed Maximum
Securities to be Offering Price Aggregate Amount of
to be Registered Per Share Offering Price Registration
Registered (1) (2) (2) Fee
________________________________________________________________________
Common 50,000 $ 20.25 $1,012,500.00 $ 349.14
Stock shares
$1.50 par
value (1)(2)
________________________________________________________________________
(1) Represents maximum aggregate number of shares of Common Stock
issuable under the Plan that are covered by this Registration
Statement pursuant to Rule 457(h). This Registration Statement
also pertains to Rights to purchase shares of Junior Participating
Preferred Stock of the Registrant (the "Rights"). One Right is
included with each share of Common Stock. Until the occurrence of
certain prescribed events, the Rights are not exercisable, are
evidenced by the certificates for the Common Stock and will be
transferred along with and only with such securities. Thereafter,
separate Rights certificates will be issued representing one Right
for each share of Common Stock held, subject to adjustment pursuant
to antidilution provisions.
(2) The amounts are based upon the average of the high and low sale
prices for the Common Stock as reported on the New York Stock
Exchange on November 14, 1994, and are used solely for the purpose
of calculating the registration fee pursuant to Rule 457(c) under
the Securities Act of 1933.
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
The information called for in Part I of Form S-8 is not
being filed with or included in this Form S-8 (by incorporation
by reference or otherwise) in accordance with the rules and
regulations of the Securities and Exchange Commission (the
"SEC").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by The Dial Corp
(the "Company") with the SEC pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act") are incorporated in
this Registration Statement by reference and shall be deemed to
be a part hereof:
(1) The Annual Report on Form 10-K filed by the Company for
the year ended December 31, 1993.
(2) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the registrant document referred to in (1) above.
(3) The description of the Company's Common Stock contained
in the Company's Registration Statement on Form 8-B filed with
the SEC pursuant to Section 12 of the Exchange Act on February
25, 1992.
(4) The description of the Company's Rights contained in
the Company's Registration Statement on Form 8-A filed with the
SEC pursuant to Section 12 of the Exchange Act on February 24,
1992.
In addition, all documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all such
securities then remaining unsold, shall be deemed to be
incorporated in this registration statement by reference and to
be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the securities offered pursuant to this
Registration Statement has been passed upon for the Company by L.
Gene Lemon, Vice President-General Counsel of the Company. Mr.
Lemon owns, and has options to purchase, shares of Common Stock
of the Company.
Item 6. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation (the "Certificate
of Incorporation") of the Company provides that each person who
is or was or had agreed to become a director or officer of the
Company, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors of the
Company or an officer of the Company as an employee or agent of
the Company or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise (including the heirs, executors, administrators or
estate of such person), will be indemnified by the Company, in
accordance with the Bylaws, to the full extent permitted from
time to time by Delaware law, as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment) or any other applicable laws as
presently or hereafter in effect. In addition, the Company may
enter into one or more agreements with any person providing for
indemnification greater or different than that provided in the
Certificate of Incorporation.
The Bylaws of the Company (the "Bylaws") provide that each
person who was or is made a party or is threatened to be made a
party to or is involved in any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (a
"Proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative is or was a
director, officer or employee of the Company or is or was serving
at the request of the Company as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such Proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent, will be indemnified and
held harmless by the Company to the fullest extent authorized by
Delaware law as the same exists or may in the future be amended
(but, in the case of any such amendment, only to the extent that
such amendment permits the Company to provide broader
indemnification rights than said law permitted the Company to
provide prior to such amendment), against all expense, liability
and loss (including attorneys, fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such person in connection
therewith and such indemnification will continue as to a person
who has ceased to be a director, officer, employee or agent and
will inure to the benefit of his or her heirs, executors and
administrators; however, except as described in the following
paragraph with respect to Proceedings to enforce rights to
indemnification, the Company will indemnify any such person
seeking indemnification in connection with a Proceeding (or part
thereof) initiated by such person only if such Proceeding (or
part thereof) was authorized by the Board of Directors of the
Company.
Pursuant to the Bylaws, if a claim described in the
preceding paragraph is not paid in full by the Company within
thirty days after a written claim has been received by the
Company, the claimant may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim,
and, if successful in whole or in part, the claimant will be
entitled to be paid also the expense of prosecuting such claims.
The Bylaws provide that it will be a defense to any such action
(other than an action brought to enforce a claim for expenses
incurred in defending any Proceeding in advance of its final
disposition where the required undertaking, if any is required,
has been tendered to the Company) that the claimant has not met
the standards of conduct which make it permissible under the
General Corporation Law of the State of Delaware (the "Delaware
Law") for the Company to indemnify the claimant for the amount
claimed, but the burden of proving such defense will be on the
Company. The Certificate of Incorporation and the Bylaws provide
that any such determination will be made by independent legal
counsel selected by the claimant, approved by the Board of
Directors of the Company (the "Board") (which approval may not be
unreasonably withheld) and retained by the Board on behalf of the
Company. Neither the failure of the Company (including the
Board, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the Delaware Law, nor an actual determination by the
Company (including the Board, independent legal counsel or
stockholders) that the claimant has not met such applicable
standard of conduct, will be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
The Bylaws provide that the right to indemnification and the
payment of expenses incurred in defending a Proceeding in advance
of its final disposition conferred in the Bylaws will not be
exclusive of any other right which any person may have or may in
the future acquire under any statute, provision of the
Certificate of Incorporation, the Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise. The Bylaws
permit the Company to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Company or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such
person against such expense, liability or loss under the Delaware
Law. The Company has obtained directors and officers liability
insurance providing coverage to its directors and officers. In
addition, the Bylaws authorize the Company, to the extent
authorized from time to time by the Board, to grant rights to
indemnification, and rights to be paid by the Company the
expenses incurred in defending any Proceeding in advance of its
final disposition, to any agent of the Company to the fullest
extent of the provisions of the Bylaws with respect to the
indemnification and advancement of expenses of directors,
officers and employees of the Company.
The Bylaws provide that the right to indemnification
conferred therein is a contract right and includes the right to
be paid by the Company the expenses incurred in defending any
such Proceeding in advance of its final disposition, except that
if Delaware law requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in
advance of the final disposition of a Proceeding will be made
only upon delivery to the Company of an undertaking by or on
behalf of such director or officer to repay all amounts so
advanced if it is ultimately determined that such director or
officer is not entitled to be indemnified under the Bylaws or
otherwise.
The Company has entered into indemnification agreements with
each of the Company's directors. The indemnification agreements,
among other things, require the Company to indemnify the officers
and directors to the fullest extent permitted by law, and to
advance to the directors all related expenses, subject to
reimbursement if it is subsequently determined that
indemnification is not permitted. The Company must also
indemnify and advance all expenses incurred by directors seeking
to enforce their rights under the indemnification agreements, and
cover directors under the Company's directors' liability
insurance. Although the form of indemnification agreement offers
substantially the same scope of coverage afforded by provisions
in the Certificate of Incorporation and the Bylaws, it provides
greater assurance to directors that indemnification will be
available, because, as a contract, it cannot be modified
unilaterally in the future by the Board or by the stockholders to
eliminate the rights it provides, an action that is possible with
respect to the relevant provisions of the Bylaws, at least as to
prospective elimination of such rights.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number Description
______ ___________
3.1 - Restated Certificate of Incorporation of the
Registrant filed as Exhibit (3)(A) to Registrant's
1991 Form 10-K.*
3.2 - Bylaws of the Registrant filed as Exhibit (3)(B)
to Registrant's 1991 Form 10-K.*
4.1 - Dobbs International Services, Inc. Bargained
Employees' 401(k) Plan.
4.2 - Rights Agreement dated as of February 15, 1992
between the Registrant and the Rights Agent named
therein filed as Exhibit 4.4 to Registrant's Form
S-8 Registration Statement for The Dial Corp 1992
Stock Incentive Plan.*
5 - Opinion of the Registrant's General Counsel as to
the legality of securities offered under the Dobbs
International Services, Inc. Bargained Employees'
401(k) Plan.
23.1 - Consent of Independent Auditors, Deloitte & Touche
LLP.
23.2 - Consent of Counsel (contained in the Opinion of
the Registrant's General Counsel, Exhibit 5
hereto).
24 - Power of Attorney (included on signature page of
this Registration Statement).
_______________________________
* Incorporated herein by reference.
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually, or in
the aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for the purpose
of determining any liability under the Securities Act of 1933,
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.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
informed that in the opinion of the SEC such indemnification is
against public policy as expressed in the Act and is therefore
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
Experts.
The consolidated financial statements and the related
financial statement schedules incorporated in this Registration
Statement on Form S-8 by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1993, have
been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports (which reports express an unqualified
opinion and include an explanatory paragraph referring to the
Company's change in the method of accounting for postretirement
benefits other than pensions in 1992), which are incorporated
herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as
experts in accounting and auditing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Phoenix, and
State of Arizona, on the 17th day of November, 1994.
THE DIAL CORP
By: /s/John W. Teets
John W. Teets
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Richard C. Stephan, as his attorney-in-fact, with full power
of substitution and resubstitution, to sign and file on his or her
behalf individually and in each such capacity stated below any and all
amendments and post-effective amendments to this Registration
Statement, as fully as such person could do in person, hereby
verifying and confirming all that said attorney-in-fact, or his
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
Principal Executive
Officer
/s/John W. Teets Director; Chairman, November 17, 1994
John W. Teets President and Chief
Executive Officer
Principal Financial
Officer
/s/Ronald G. Nelson Vice President-Finance November 17, 1994
Ronald G. Nelson and Treasurer
Principal Accounting
Officer
/s/Richard C. Stephan Vice President- November 17, 1994
Richard C. Stephan Controller
Directors
/s/Joe T. Ford
Joe T. Ford November 17, 1994
/s/Thomas L. Gossage
Thomas L. Gossage November 17, 1994
/s/Donald E. Guinn
Donald E. Guinn November 17, 1994
/s/Jess Hay
Jess Hay November 17, 1994
/s/Judith K. Hofer
Judith K. Hofer November 17, 1994
/s/Jack F. Reichert
Jack F. Reichert November 17, 1994
/s/Linda Johnson Rice
Linda Johnson Rice November 17, 1994
/s/Dennis C. Stanfill
Dennis C. Stanfill November 17, 1994
/s/A. Thomas Young
A. Thomas Young November 17, 1994
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Trustees have duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City
of Memphis, State of Tennessee, on the 16th day of November 1994.
DOBBS INTERNATIONAL SERVICES, INC.
BARGAINED EMPLOYEES' 401(k) PLAN
By: /s/William R. Bowers
EXHIBIT 4.1
DOBBS INTERNATIONAL SERVICES, INC.
BARGAINED EMPLOYEES' 401(k) PLAN
DOBBS INTERNATIONAL SERVICES, INC.
BARGAINED EMPLOYEES' 401(K) PLAN
INDEX
Article Description Page
i
I Purpose i-1
1.1 Establishment of the Plan I-1
II Definitions and Construction II-2
2.1 Definitions 1
Accounts 1
Actual Deferral Percentages 1 - 2
Adoption Agreement 2
Affiliate 2
Aggregate Limit 2
Annual Additions 2 - 3
Average Contribution Percentage 3
Beneficiary 3
CODA 3
Code 3
Committee 3
Compensation 3 - 5
Contribution Percentage 5
Contribution Percentage Amounts 6
Disability 6
Effective Date 6
Elective Deferrals 7
Eligible Employee 7 - 9
Eligible Participant 9 - 10
Employee 10
Employee Contribution 10
Employee Contribution Account 10
Employer 10
Employer Contribution Account 10
Excess Aggregate Contributions 10 - 12
Excess Contribution 12
Excess Elective Deferrals 12
Entry Date 12
ERISA 13
Family Member 13
Fiduciaries 13
Highly Compensated Employee 13 - 15
Included Unit 15
Income 15
Investment Fund(s) 15
Participant 16
Participation 16
Plan 16
Qualified Non-elective Contributions 16
Wage Reduction Contribution Account 17
Special Valuation Date 17
Trust (or Trust Fund) 17
Trustee 17
Valuation Date 17
Vested Rollover Contribution Account 17
Year 17
2.2 Construction 17 - 18
III Participation III-
3.1 Participation 1
3.2 Termination of Employment 1 - 2
3.3 Transfers 2
IV Contributions IV-
4.1 Employer Contributions 1 - 2
4.2 Code Section 401(k) Salary Reduction 2 - 5
4.3 Employee Contributions 5
4.4 After-Tax Salary Deduction 5
4.5 Rollover Amount From Other Plans 6 - 7
V Allocations to Participant's Account V-
5.1 Individual Accounts 1
5.2 Account Adjustments 1 - 2
5.3 Actual Deferral Percentage Test 2 - 5
5.4 Average Contribution Percentage Test 5 - 8
5.5 Distribution of Excess Aggregate
Contributions 8 - 10
5.6 Distribution of Excess Elective
Deferrals 10 - 11
5.7 Distribution of Excess Contributions 11 - 12
5.8 Recharacterization 12 - 13
5.9 Maximum Additions 13 - 16
5.10 Recognition of Different Investment
Funds 16 - 17
VI Benefits vi-
6.1 Entitlement to Benefits 1
6.2 Death 1
6.3 Payment of Benefits 2 - 3
6.4 Designation of Beneficiary 3 - 4
6.5 Withdrawals 5 - 6
6.6 Spousal Consent 6
6.7 Debiting of Investment Funds 6
6.8 Required Distributions 6
6.9 Distribution Requirement 6 - 8
6.10 Direct Rollovers 9 - 10
VII Investment Options, Trust Fund vii-
7.1 Investment Options 1
7.2 Investment of Contributions 1 - 2
7.3 Investment Transfers 2
7.4 Transfer of Assets 2
7.5 Trust Fund 3
7.6 Tender Offer
7.7 Voting of Stock
VIII Administration VIII-
8.1 Allocation of Responsibility Among
Fiduciaries for Plan and Trust
Administration 1 - 2
8.2 Appointment of Committee 2
8.3 Claims Procedure 2
8.4 Records and Reports 3
8.5 Other Committee Powers and Duties 3 - 4
8.6 Rules and Decisions 4
8.7 Committee Procedures 5
8.8 Authorization of Benefit Payments 5
8.9 Application and Forms for Benefits 5
8.10 Facility of Payment 6
8.11 Indemnification of the Committee 6
IX Miscellaneous ix-
9.1 Nonguarantee of Employment 1
9.2 Rights to Trust Assets 1
9.3 Nonalienation of Benefits 1 - 2
9.4 Nonforfeitability of Benefits 2
X Amendments and Action by Employer X-
10.1 Amendments 1
10.2 Action by Dobbs International Services, Inc. 1
XI Successor Employer and Merger or
Consolidation of Plans XI-
11.1 Successor Employer 1
11.2 Conditions Applicable to Plan Mergers,
Consolidations, or Asset Transfers 1 - 2
XII Plan Termination XII-
12.1 Right to Terminate 1
12.2 Partial Termination 1
12.3 Liquidation of the Trust Fund 1 - 2
XIII Adoption of Plan XIII-
13.1 Adoption Agreement 1
Appendix A
Included Units
Appendix B
<PAGE>
DOBBS INTERNATIONAL SERVICES, INC.
BARGAINED EMPLOYEES' 401(K) PLAN
Article I. - Purpose
Effective as of January 1, 1995 (the "Effective Date"), the
Employer adopted the Plan set forth herein.
Dobbs International Services, Inc. Bargained Employees'
401(k) Plan Trust, as established by trust agreement executed
effective as of January 1, 1995 is intended to form a part of the
Plan.
The Plan and Trust are intended to meet the requirements of
Sections 401(a), 401(k) and 501(a) of the Internal Revenue Code
of 1986, as amended.
The provisions of the Plan shall apply only to an Eligible
Employee who is actively employed by an Employer after the
Effective Date and who is a Participant, as defined in Section
2.1 of the Plan.
<PAGE>
Article II. - Definitions and Construction
2.1 Definitions: Where the following words and phrases
appear in this Plan, they shall have the respective meanings set
forth in this Article, unless the context clearly indicates to
the contrary.
(a) Account(s): One or all of the Employee
Contribution Account, Employer Contribution Account, Wage
Reduction Contribution Account and Vested Rollover Contribution
Account, as the case may be, and as appropriate in the context of
each provision of the Plan containing such term, for each
Participant.
(b) Actual Deferral Percentage: shall mean, for a
specified group of Participants for a Plan Year, the average of
the ratios (calculated separately for each Participant in such
group) of (1) the amount of Employer contributions actually paid
over to the Trust on behalf of such Participant for the Plan Year
to (2) the Participant's Compensation for such Plan Year (whether
or not the Employee was a Participant for the entire Plan Year).
Employer contributions on behalf of any Participant shall
include: (1) any Elective Deferrals made pursuant to the
Participant's deferral election, including Excess Elective
Deferrals of Highly Compensated Employees, but excluding Elective
Deferrals that are taken into account in the Contribution
Percentage test (provided the ADP test is satisfied both with and
without exclusion of these Elective Deferrals); and (2) at the
election of the Employer, Qualified Non-elective Contributions.
For purposes of computing Actual Deferral Percentages, an
Employee who would be a Participant but for the failure to make
Elective Deferrals shall be treated as a Participant on whose
behalf no Elective Deferrals are made.
(c) Adoption Agreement: The agreement executed by each
Affiliate Employer in order to adopt the Plan pursuant to the
provisions of Article XIII.
(d) Affiliate: An entity which, by reason of Code Section
414(b), 414(c), or 414(m), is treated as a single Employer with
Dobbs International Services, Inc.
(e) Aggregate Limit: The sum of (i) 125 percent of the
greater of the ADP of the Non-highly Compensated Employees for
the Plan Year or the ACP of Non-highly Compensated Employees
under the plan subject to Code Section 401(m) for the Plan Year
beginning with or within the Plan Year of the CODA and (ii) the
lesser of 200% or two plus the lesser of such ADP or ACP.
"Lesser" is substituted for "greater" in "(i)" above, and
"greater" is substituted for "lesser" after "two plus the" in
"(ii)" if it would result in a larger Aggregate Limit.
(f) Annual Additions: With respect to each Year, the total
of the Employer contributions allocated to a Participant's Wage
Reduction Contribution Account, Employee Contribution Account and
Employer Contribution Account. Amounts allocated, after March
31, 1984, 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 the Employer are treated as Annual Additions to a
defined contribution plan. Also 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 the Employer are treated as
Annual Additions to a defined contribution plan. For this
purpose, any excess amount applied under Section 5.9(b) in the
Year to reduce Employer contributions will be considered Annual
Additions for such Year.
(g) Average Contribution Percentage: The average of the
Contribution Percentages of the Eligible Participants in a group.
(h) Beneficiary: A person or persons (natural or
otherwise) designated by a Participant in accordance with the
provisions of Section 6.4 to receive any death benefit payable
under this Plan.
(i) CODA: A cash or deferred arrangement as described in
Section 401(k) of the Code.
(j) Code: The Internal Revenue Code of 1986, as amended.
(k) Committee: The persons appointed pursuant to Article
VIII to assist Dobbs International Services, Inc. in the
administration of the Plan in accordance with said Article.
(l) Compensation: Subject to the other provisions of the
Plan the total of all amounts paid to a Participant by the
Employer for personal services as would be reported on the
Participant's Federal Income Tax Withholding Statement (Form W-2)
had Participant not been a Participant under the Plan or any Plan
sponsored by the Employer which is qualified under Sections 125
or 129 of the Code and excluding fringe benefits, bonuses and any
benefits paid under this Plan; provided, however, that the
Committee, in its discretion, may use any definition of
"compensation" to determine whether the various
non-discrimination tests are met as long as such definition
satisfies Section 414(s) of the Code and is applied uniformly to
all Participants. For purposes of allocating the Employer's
contribution for the Year in which a Participant begins or
resumes Participation, Compensation allocable to time periods
before his or her Participation began or resumed shall be
disregarded.
The annual Compensation of each Participant taken into
account under the Plan for any year shall not exceed the "OBRA
'93 annual compensation limit". The "OBRA '93 annual
compensation limit" is $150,000 as adjusted by the Commissioner
for increases in the cost-of-living in accordance with Section
401(a)(17)(B) of the Code. The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding
12 months, over which Compensation is determined (the
"determination period") beginning in such calendar year. If a
determination period consists of fewer than 12 months, the OBRA
'93 annual compensation limit will be multiplied by a fraction,
the numerator of which is the number of months in the
determination period, and the denominator of which is 12. Any
reference in this Plan to the limitation under Section 401(a)(17)
of the Code shall mean the OBRA '93 annual compensation limit set
forth in this provision. If Compensation for any prior
determination period is taken into account in determining an
Employee's benefits accruing in the current Plan Year, the
Compensation for that prior determination period is subject to
the OBRA '93 annual compensation limit in effect for that prior
determination period. For this purpose, for determination
periods beginning before the first day of the first Plan Year,
beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000. In determining the Compensation
of a Participant for purposes of this limitation, the rules of
Section 414(q)(6) of the Code shall apply, except in applying
such rules, the term "Family" shall include only the spouse of
the Participant and any lineal descendants of the Participant who
have not attained age 19 before the close of the year.
(m) Contribution Percentage: The ratio (expressed as a
percentage) of the Participant's Contribution Percentage Amounts
to the Participant's Compensation for the Plan Year (whether or
not the Employee was a Participant for the entire Plan Year).
(n) Contribution Percentage Amounts: The Employee
Contributions, made under the plan on behalf of the Participant
for the Plan Year. Such Contribution Percentage Amounts shall
include forfeitures of Excess Aggregate Contributions allocated
to the Participant's account which shall be taken into account in
the year in which such forfeiture is allocated. The Employer may
include Qualified Non-elective Contributions in the Contribution
Percentage Amounts. The Employer also may elect to use Elective
Deferrals in the Contribution Percentage Amounts so long as the
ADP test is met before the Elective Deferrals are used in the ACP
test and continues to be met following the exclusion of those
Elective Deferrals that are used to meet the ACP test.
(o) Disability: A physical or mental condition which, in
the sole judgement of the Committee, based upon medical reports
and other evidence satisfactory to the Committee, permanently
prevents an Employee from satisfactorily performing his or her
usual duties for the Employer and the duties of any other
position or job for the Employer for which such Employee is
qualified by reason of his or her training, education or
experience.
(p) Effective Date: January 1, 1995, the date on which the
provisions of this Plan became effective, or with respect to an
Affiliate who adopts the Plan on a later date, the date set forth
in the Adoption Agreement.
(q) Elective Deferrals: Any Employer contributions made to
the Plan at the election of the Participant, in lieu of cash
compensation, and shall include contributions made pursuant to a
salary reduction agreement or other deferral mechanism. With
respect to any taxable year, a Participant's Elective Deferral is
the sum of all Employer contributions made on behalf of such
Participant pursuant to an election to defer under any qualified
CODA as described in Section 401(k) of the Code, any simplified
Employee pension cash or deferred arrangement as described in
402(h)(1)(B), any eligible deferred compensation plan under
Section 457, any plan as described under Section 501(c)(18), and
any Employer contributions made on the behalf of a Participant
for the purchase of an annuity contract under Section 403(b) of
the Code pursuant to a salary reduction agreement.
(r) Eligible Employee: Employees, regularly scheduled to
work at least 4 hours of service daily, who are covered by a
collective bargaining agreement between the Employer and a union
representing Employees which provides for Plan participation
(hereinafter "Collective Bargaining Agreement"). An Eligible
Employee will be credited with a year of service upon completion
of 1,000 hours of service in a twelve consecutive month period.
For purposes hereof, the term "Hour of Service" means:
(1) each hour for which an Eligible Employee is paid or
entitled to payment for the performance of duties for the
Employer during a twelve consecutive month period;
(2) each hour for which an Eligible Employee is paid or
entitled to payment by the Employer on account of a period of
time during which no services are performed (irrespective of
whether the employment relationship has terminated) due to
vacation, holiday, illness, incapacity, disability, layoff, jury
duty or leave of absence;
(3) each hour for which an Eligible Employee is paid or
entitled to payment of back pay (regardless of mitigation of
damages) either awarded or agreed to by the Employer.
The number of Hours of Service to be credited to an Eligible
Employee because of his being entitled to payment for reasons
other than for the performance of duties shall be determined in
accordance with Department of Labor Regulations 2530.200(b) or
any successor thereto published by the Department of Labor or
Treasury Department and which is incorporated herein by
reference.
An Eligible Employee shall not incur a break in service and
shall be deemed to have completed Hours of Service due to the
following reasons for absence from work:
(1) By reason of pregnancy of the Eligible Employee;
(2) By reason of the birth of a child of the Eligible
Employee;
(3) By reason of the placement of a child in
connection with the adoption of the child by the Eligible
Employee, or
(4) For purposes of caring for the child during the
period immediately following the birth or placement for adoption.
Notwithstanding the foregoing, in consideration of periods
of time in which no duties are performed for an Employer by an
Eligible Employee, no more than 501 Hours of Service shall be
required to be credited to such Eligible Employee; no Hours of
Service shall be credited to an Eligible Employee if he is paid
or entitled to payment under a plan maintained solely for the
purpose of complying with applicable worker's compensation,
unemployment compensation or disability insurance laws; no Hours
of Service shall be required to be credited to an Eligible
Employee if he is paid or entitled to be paid solely for
reimbursement of medical or medically related expenses incurred.
(s) Eligible Participant: Any Employee who is eligible to
make an Employee Contribution, or an Elective Deferral (if the
Employer takes such contributions into account in the calculation
of the Contribution Percentage). If an Employee Contribution is
required as a condition of participation in the Plan, any
Employee who would be a Participant in the Plan if such Employee
made such a contribution shall be treated as an Eligible
Participant on behalf of whom no Employee Contributions are made.
(t) Employee: Any person who, on or after the Effective
Date applicable to his Included Unit, is actively employed by an
Employer or an Affiliate.
(u) Employee Contribution: Employee Contribution: Any
contribution made to the Plan by or on behalf of a Participant
that is included in the Participant's gross income in the year in
which made and that is maintained under a separate account to
which earnings and losses are allocated.
(v) Employee Contribution Account: The account maintained
pursuant to Section 4.3, hereof, to record for a Participant his
or her after-tax contributions and adjustments relating thereto.
(w) Employer: Dobbs International Services, Inc., or any
Affiliate set forth in Appendix "B" that has adopted the Plan and
been accepted into the Plan pursuant to Article XIII.
(x) Employer Contribution Account: The account maintained
pursuant to Section 4.1(b), hereof, to record for a Participant
his or her share of the contributions of the Employer, if any,
and adjustments relating thereto.
(y) Excess Aggregate Contributions: Shall mean, with
respect to any Plan Year, the excess of:
(1) The aggregate Contribution Percentage Amounts taken
into account in computing the numerator of the Contribution
Percentage actually made on behalf of Highly Compensated
Employees for such Plan Year, over
(2) The maximum Contribution Percentage Amounts
permitted by the ACP test (determined by reducing contributions
made on behalf of Highly Compensated Employees in order of their
Contribution Percentages beginning with the highest of such
percentages).
Such determination shall be made after first determining
Excess Elective Deferrals and then determining Excess
Contributions.
In computing the Average Contribution Percentage, the
Employer shall take into account, and include as Contribution
Percentage Amounts Elective Deferrals, and Qualified Non-elective
Contributions under this Plan or any other plan of the Employer,
as provided by regulations.
Forfeitures of Excess Aggregate Contributions shall be:
(1) Applied to reduce Employer contributions for the
Plan Year in which the excess arose, but allocated as in (2),
below, to the extent the excess exceeds Employer contributions or
the Employer has already contributed for such Plan Year.
(2) Allocated, after all other forfeitures under the
Plan, to the Employer Contribution account of each Non-highly
Compensated Participant who made Elective Deferrals or Employee
Contributions in the ratio which each such Participant's
Compensation for the Plan Year bears to the total Compensation of
all such Participants for such Plan Year. Excess Elective
Deferrals shall be treated as Annual Additions under the Plan
unless such amounts are distributed no later than the first April
15 following the close of the Participant's taxable year.
(z) Excess Contribution: Shall mean, with respect to any
Plan Year, the excess of:
(1) The aggregate amount of Employer contributions
actually taken into account in computing the ADP of Highly
Compensated Employees for such Plan Year over
(2) The maximum amount of such contributions permitted
by the ADP test (determined by reducing contributions made on
behalf of Highly Compensated Employees in order of the ADPs,
beginning with the highest of such percentages).
(aa) Excess Elective Deferrals: shall mean those Elective
Deferrals that are includible in a Participant's gross income
under Section 402(g) of the Code to the extent such Participant's
Elective Deferrals for a taxable year exceed the dollar
limitation under such Code section. Excess Elective Deferrals
shall be treated as Annual Additions under the plan.
(bb) Entry Date: The first day of each calendar quarter.
(cc) ERISA: Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended.
(dd) Family Member: A member of the Employee's family as
defined in Section 414(q)(6) of the Code.
(ee) Fiduciaries: The Committee and the Trustee, but only
with respect to the specific responsibilities of each for Plan
and Trust administration, all as described in Section 8.1.
(ff) Highly Compensated Employee: Includes active Highly
Compensated Employees and former Highly Compensated Employees.
An active Highly Compensated Employee includes any Employee who
performs service for the Employer during the determination year
and who during the look-back year: (i) received compensation from
the Employer in excess of $75,000 as adjusted pursuant to Section
415(d) of the Code; (ii) received compensation from the Employer
in excess of $50,000 as adjusted pursuant to Section 415(d) of
the Code and was a member of the top-paid group for such year; or
(iii) was an officer of the Employer and received compensation
during such year that is greater than 50% of the dollar
limitation in effect under Section 415(b)(1)(A) of the Code. The
term Highly Compensated Employee also includes: (i) Employees who
are both described in the preceding sentence if the term
"determination year" is substituted for the term "look-back year"
and the Employee is one of the 100 Employees who receive the most
compensation from the Employer during the determination year; and
(ii) Employees who are 5-percent owners at any time during the
look-back year or determination year. If no officer has
satisfied the compensation requirements of (iii) above during
either a determination year or look-back year, the highest paid
officer for such year shall be treated as a Highly Compensated
Employee. For this purpose, the determination year shall be the
Plan Year. The look-back year shall be the twelve-month period
immediately preceding the determination year. A former Highly
Compensated Employee includes any Employee who separated from
service (or was deemed to have separated) prior to the
determination year, performs no service for the Employer during
the determination year, and was an active Highly Compensated
Employee for either the separation year or any determination year
ending on or after the Employee's 55th birthday.
If an Employee is, during a determination year or look-back
year, a Family Member of either a 5-percent owner who is an
active or former Employee or a Highly Compensated Employee who is
one of the 10 most Highly Compensated Employees ranked on the
basis of compensation paid by the Employer during such year, then
the Family Member and the 5-percent owner or top ten Highly
Compensated Employee shall be aggregated. In such case, the
Family Member and 5-percent owner or top ten Highly Compensated
Employee shall be treated as a single Employee receiving
compensation and Plan contributions or benefits equal to the sum
of such compensation and contributions or benefits of the Family
Member and 5-percent owner or top ten Highly Compensated
Employee. For purposes of this Section, Family member includes
the spouse, lineal ascendants and descendants of the Employee or
former Employee and the spouses of such lineal ascendants and
descendants.
The determination of who is a Highly Compensated Employee,
including the determinations of the number and identity of
Employees in the top-paid group, the top 100 Employees, the
number of Employees treated as officers and the compensation that
is considered, will be made in accordance with Section 414(q) of
the Code and the regulations thereunder.
The Employer may elect to use the calendar year to determine
whether an Employee is a Highly Compensated Employee in the
look-back year (as defined in Treasury Regulations under Section
414(q) of the Code) calculation. The calendar year used will be
the calendar year ending with or within the determination year
(as defined in the regulations under Section 414(q) of the Code).
The determination year shall be the months (if any) in the
current Plan Year which follow the end of the calendar year look
back year. If the Employer elects to make the calendar year
calculation election with respect to any Plan, entity or
arrangement, such election must apply with respect to all Plans,
entities and arrangements of the Employer.
(gg) Included Unit: A bargaining unit of its employees
identified on Appendix "A" to whom the Plan has been extended by
action of an Employer pursuant to a Collective Bargaining
Agreement.
(hh) Income: The net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends,
realized and unrealized gains and losses on securities, other
investment transactions and expenses paid from the Trust Fund.
In determining the Income of the Trust Fund as of any date,
assets shall be valued on the basis of their fair market value.
(ii) Investment Fund(s): The investment funds described in
Section 7.1.
(jj) Participant: An Employee participating in the Plan in
accordance with the provisions of Section 3.1.
(kk) Participation: The period commencing as of the date
the Employee became a Participant and ending on the date his or
her employment with the Employer terminated in accordance with
Section 3.2, hereof.
(ll) Plan: Dobbs International Services, Inc. Bargained
Employees' 401(k) Plan, the Plan set forth herein, as amended
from time to time.
(mm) Qualified Non-elective Contributions: Contributions
made by the Employer and allocated to Participants' Accounts that
the Participants may not elect to receive in cash until
distributed from the Plan; that are nonforfeitable when made; and
that are distributable only in accordance with the distribution
provisions that are applicable to Elective Deferrals.
(nn) Wage Reduction Contribution Account: The account
maintained to record for a Participant his or her pre-tax wage
reduction contributions made by the Employer pursuant to Sections
4.1(a) and 4.2 hereof, and adjustments relating thereto.
(oo) Special Valuation Date: The date on which a special
valuation is made pursuant to Section 5.2.
(pp) Trust (or Trust Fund): The fund known as the Dobbs
International Services, Inc. Bargained Employees' 401(k) Plan
Trust, maintained in accordance with the terms of the trust
agreement, as from time to time amended, which constitutes a part
of the Plan.
(qq) Trustee: The corporation or individuals appointed by
the Board of Directors of Dobbs International Services, Inc. to
administer the Trust.
(rr) Valuation Date: The last day of each calendar quarter
or more frequent accounting period determined pursuant to Section
5.2(a), provided that the last day of the Plan Year shall always
be a Valuation Date.
(ss) Vested Rollover Contribution Account: The account
maintained pursuant to Section 4.5, hereof, to record for a
Participant rollover amounts transferred to the Trust Fund and
adjustments relating thereto.
(tt) Year: The 12-month period commencing on January 1 and
ending on December 31.
2.2 Construction: The words "hereof," "herein,"
"hereunder," and other similar compounds of the word "here" shall
mean and refer to the entire Plan and not to any particular
provision or Section. Article and Section headings are included
for convenience of reference and are not intended to add to, or
subtract from, the terms of the Plan.
<PAGE>
ARTICLE III. - PARTICIPATION
3.1 Participation. An Eligible Employee shall become a
Participant as of the later of the Effective Date or the first
Entry Date coincident with or next following the date on which
such Eligible Employee completes a year of service in accordance
with the provisions of Section 2.1(r), provided in any case, that
said Eligible Employee has entered into a duly executed wage
reduction agreement under Section 4.2 in advance of said
Effective Date or Entry Date, as the case may be, and has
fulfilled the Plan's enrollment procedures as provided by the
Committee. Participation under the Plan shall cease and a person
shall no longer be a Participant upon termination of employment
with the Employer, as defined in Section 3.2, hereof. After a
termination of employment a rehired Eligible Employee shall
fulfill all of the requirements of the first sentence of this
Section 3.1 in their entirety in order to become a Participant.
A rehired former Participant shall again participate on the Entry
Date coincident with or next following his reemployment date
provided that such rehired Participant (i) is reemployment as an
Eligible Employee within one year from his or her termination
date, and (ii) has entered into a duly executed wage reduction
agreement in advance of said Entry Date. A rehired former
Participant shall not be required to fulfill the 1,000 Hours of
Service requirement if such Participant is reemployed within one
year of his or her termination date.
3.2 Termination of Employment: Subject to the provisions
of Section 3.3(b) "termination of employment" shall be deemed to
be the date the Participant quit, was terminated or discharged
(for any reason, with or without cause, including by reason of
Disability), died or retired.
3.3 Transfers.
(a) For the purpose of determining eligibility to
Participate in the Plan under Section 3.1, an Eligible Employee
shall receive credit for employment with an Employer or any
entity ("member of the Controlled Group") which by reason of Code
Section 414(b) or 414(m) is treated as a single employer with
Dobbs International Services, Inc.
(b) If a Participant (i) elects to defer distribution
of his or her benefit pursuant to Section 6.3(d), (ii) is
transferred to employment with a member of the Controlled Group
that has not adopted the Plan, (iii) becomes an Employee who is
no longer employed in an Included Unit, (iv) becomes an Employee
who no longer fits the definition of Eligible Employee or (v)
ceases active employment with an Employer, but is not terminated
or discharged from employment under Section 3.2 (i.e., on
authorized leave of absence, furlough, etc.), his or her
Participation under the Plan shall be suspended, provided,
however, that during the period of his or her inactive status or
employment in such ineligible position: (i) he or she shall
receive no Employer contribution allocation under Section 5.2;
(ii) he or she shall continue to participate in Income
allocations pursuant to Section 5.2(a); (iii) the withdrawal
privileges under the provisions of Article VI shall continue to
apply, and (iv) the Investment Fund transfer provisions of
Section 7.3 shall continue to apply.
<PAGE>
Article IV. - Contributions
4.1 Employer Contributions.
(a) For each Year, the Employer shall contribute an
amount to a Participant's Wage Reduction Contribution Account
equal to the total amount of contributions agreed to be made by
it pursuant to a wage reduction agreement under Section 4.2
entered into between the Employer and the Participant for such
Year. Contributions made by Employer for a given payroll period
pursuant to wage reduction agreements under Section 4.2 shall be
promptly deposited in the Trust Fund as soon as practicable after
the payroll period to which they relate.
(b) In addition, for each Year, each Employer may
contribute such additional amounts to the Participants' Employer
Contribution Accounts as its Board of Directors shall determine
in its sole discretion from time to time. Such additional
contributions with respect to each Participant may be conditioned
upon and keyed to the amount of contributions agreed to by such
Participant under Section 4.2. Such additional contributions
shall be deemed made on account of a Year if (a) the Board of
Directors of the Employer determines the amount of such
Contribution by appropriate action and announces the amount in
writing to its Employees before the close of such Year, (b) the
Employer designates such amount in writing to the Trustee as
payment on account of such Year, or (c) the Employer claims such
amount as a deduction on its federal tax return for such Year.
All additional contributions of an Employer shall be paid to the
Trustee and payment shall be made no later than the time
prescribed by law for filing the federal income tax return of the
Employer, including any extensions which have been granted for
the filing of such tax return. Amounts properly credited under
the terms of the Plan to a Participant's Employer Contribution
Account shall be 100% vested and nonforfeitable at all times.
4.2 Code Section 401(k) Wage Reduction:
(a) In addition to the other terms and conditions
herein, each Eligible Employee shall enter into prior to the
Entry Date that such Eligible Employee's Participation under the
Plan is to commence pursuant to Section 3.1 a written wage
reduction agreement with the Employer which will be applicable to
all payroll periods after such Entry Date within such Year. The
terms of any such wage reduction agreement shall provide for the
purposes of Section 4.1(a) hereof that the Eligible Employee as a
Participant agrees to accept a reduction in wages from the
Employer equal to any whole percentage of his Compensation per
payroll period, not less than 1% but not to exceed 10%, of such
Compensation. In consideration of such agreement, the Employer
will make a wage reduction contribution to the Participant's Wage
Reduction Contribution Account on behalf of the Participant for
such Year in an amount equal to the total amount by which the
Participant's Compensation from the Employer was reduced during
the Year pursuant to the wage reduction agreement. Amounts
credited to a Participant's Wage Reduction contribution Account
are intended to qualify for income tax deferral under Section
401(k) of the Code, and, as such, shall be 100% vested and
nonforfeitable at all times. Unless otherwise provided herein if
a Participant enters into a wage reduction agreement with the
Employer for a given Year, his or her Compensation for such Year
for all other purposes of this Plan, except with respect to a
wage deduction agreement under Section 4.4, hereof, shall be
equal to his or her Compensation after application of the wage
reduction agreement.
(b) Unless otherwise amended or terminated in
accordance with (ii) below, a Participant's wage reduction
agreement shall be deemed automatically renewed from year to
year, while this Plan remains in force and effect. Further, wage
reduction agreements shall include, but not by way of limitation,
and be governed by the following:
(1) A wage reduction agreement shall apply to each
payroll period during which an effective wage reduction agreement
is on file with the Employer.
(2) A wage reduction agreement may be amended or
terminated by a Participant only once during each calendar month
if the purpose of the amendment is to decrease or increase the
percentage of such Participant's Compensation which is subject to
wage reduction during the remainder of such Year.
(3) Any amendment or termination of a wage
reduction agreement shall be effective on the first day of the
month following at least 30 days prior written notice by a
Participant in the form required by Employer.
(4) The Employer may amend or revoke its wage
reduction agreement with any Participant at any time, if the
Committee determines that such revocation or amendment is
necessary to insure that a Participant's Annual Additions for any
Year will not exceed the limitations of Section 415 of the Code
or to insure that the discrimination tests of Section 401(k) of
the Code are met for such Year.
(5) Except as provided above, a wage reduction
agreement applicable to any given Year, once made, may not be
revoked or amended by the Participant.
(6) No amounts may be withdrawn by a Participant
from any of his Accounts, except as provided in Section 6.5,
hereof. All withdrawal elections shall be made by a Participant
on forms supplied by the Committee for that purpose.
(c) The Committee may, from time to time, alter and/or
add to the requirements for wage reduction agreements expressed
in Section 4.2(b). The Employer shall abide by the Committee's
determinations and directions with respect to all matters covered
in wage reduction agreements.
4.3 Employee Contributions: Subject to the provisions of
Section 4.4, hereof, a Participant may contribute each Year to an
Employee Contribution Account an amount pursuant to a written
wage deduction agreement under Section 4.4 not intended to
qualify for income tax deferral under Code 401(k), but to be
subtracted from such Participant's Compensation on an after-tax
basis. Amounts credited to a Participant's Employee Contribution
Account shall remain 100% vested and non-forfeitable at all
times.
4.4 After-Tax Salary Deduction: A Participant may elect to
enter into a written wage deduction agreement with Employer which
shall be in the form and substance acceptable to Employer and the
Committee and will be applicable to all payroll periods within a
Year. A wage deduction agreement may be amended or terminated
only once during each calendar month if the purpose of the
amendment is to decrease or increase the amount of such
Participant's Compensation which is subject to wage deduction
agreement during the remainder of such Year. Any amendment or
termination of a wage deduction agreement shall be effective on
the first day of the month following at least 30 days prior
written notice by the Participant in the form required by the
Employer. The terms of such wage deduction agreement shall
provide, among other things, that for the purposes of Section 4.3
the Participant agrees to accept a deduction from wages from the
Employer equal to any whole percentage of his Compensation per
payroll period, not to exceed 5% of such Compensation.
4.5 Rollover Amount From Other Plans:
(a) An Employee eligible to Participate in the Plan,
regardless of whether he or she has satisfied the Participation
requirements of Section 3.1, may, with the approval of the
Committee, in its sole and exclusive discretion, transfer to the
Trust Fund an "eligible rollover distribution," defined in
Section 402(c)(4) of the Code provided that such distribution is
from a plan which meets the requirements of Section 401(a) of the
Code (the "Other Plan"). The procedure approved by the Committee
shall provide that such a transfer may be made only if the
following conditions are met: (a) the transfer occurs on or
before the 60th day following the Employee's receipt of the
distribution from the Other Plan; and (b) the amount transferred
is equal to any portion of the distribution the Employee received
from the Other Plan, subject to the maximum rollover provision of
Section 402(c)(2) of the Code.
(b) Notwithstanding the foregoing, if an Employee has
deposited a distribution previously received from an Other Plan
into an individual retirement account ("IRA"), as defined in
Section 408 of the Code, he or she may transfer the amount of
such distribution, plus earnings thereon from the IRA, to this
Plan; provided such rollover amount is deposited with the Trustee
on or before the 60th day following receipt thereof from the IRA,
and is otherwise proper in accordance with applicable law.
(c) The Committee shall develop such procedures, and
may require such information from an Employee desiring to make or
effectuate any transfer under this Section 4.5, as it deems
necessary or desirable to determine that the proposed transfer
will meet the requirements of this Section. Upon approval by the
Committee, the amount transferred shall be deposited in the Trust
Fund and shall be credited to a Vested Rollover Contribution
Account. Such account shall be 100% vested in the Employee,
shall share in Income allocations in accordance with Section
5.2(a), but shall not share in Employer contribution allocations.
Upon termination of employment, the total amount of the
Employee's Vested Rollover Contribution Account shall be
distributed in accordance with Article VI.
(d) Upon such a transfer by an Employee who is
otherwise eligible to participate in the Plan but who has not yet
completed the Participation requirements of Section 3.1, his or
her Vested Rollover Contribution Account shall represent his or
her sole interest in the Plan until he or she becomes a
Participant.
<PAGE>
Article V. - Allocations to Participant's Account
5.1 Individual Accounts: The Committee shall create and
maintain adequate records to disclose the interest in the Trust
of each Participant and Beneficiary. Such records shall be in
the form of individual Accounts, and credits and charges shall be
made to such Accounts in the manner herein described. When
appropriate, a Participant shall have four separate Accounts, an
Employer Contribution Account, an Employee Contribution Account,
a Salary Reduction Contribution Account and a Vested Rollover
Contribution Account. Where necessary, the Committee shall
create and maintain subaccounts adequate to distinguish between
funds in an Account for the purposes of the Plan. The maintenance
of individual Accounts and subaccounts is only for accounting
purposes, and a segregation of the assets of the Trust Fund to
each Account or subaccount shall not be required. Distributions
and withdrawals made from an Account shall be charged to the
Account as of the date paid.
5.2 Account Adjustments: The Accounts of Participants
shall be adjusted no less frequently than quarterly, recognizing
the Participant's elections pursuant to Section 5.10, hereof, in
accordance with the following:
(a) Income: The Income of the Trust Fund for each
accounting period within the Plan Year (which shall be no less
frequent than quarterly) shall be allocated to the Accounts of
Participants who had unpaid balances in their Accounts on the
Valuation Date corresponding to the end of such period, in
proportion to the balances in such Accounts as of the beginning
of the period, as adjusted to reflect and give appropriate
weighting to any receipts or distributions during the period,
based on generally acceptable principals of trust accounting
agreed to by the Committee, the Trustee, and the recordkeeper for
the Plan and consistently applied. At any time when the
accounting period is less frequent than daily, the Committee may
in its sole and exclusive discretion instruct the Trustee to pick
a "Special Valuation Date" to determine the Income since the last
Valuation Date, in which event the accounts of any Participant
who receives a withdrawal in accordance with Section 6.5 or who
has a distribution paid out due to a termination of employment
pursuant to Section 6.1 or Section 6.2 shall be adjusted to
reflect this determination. Each valuation shall be based on the
fair market value of assets in the Trust Fund on the Valuation
Date or Special Valuation Date, as the case may be.
(b) Employer Contributions: As of each Valuation Date
the Employer's contribution described in Section 4.1, if any,
shall be allocated among the Employer Contribution Accounts of
Participants.
(c) Employee Contributions: A Participant's
contributions shall be allocated to his or her Employee
Contribution Account as of each Valuation Date.
(d) Wage Reduction Contributions: The Employer
contributions for a calendar quarter (or more frequent account
period) that are made pursuant to a wage reduction agreement
entered into with a Participant under Section 4.2 shall be
allocated to the Participant's Wage Reduction Contribution
Account as of the Valuation Date or Special Valuation Date for
the accounting period in which they are received.
5.3 Actual Deferral Percentage Test: Notwithstanding any
other provisions of the Plan,
(a) The Actual Deferral Percentage (hereinafter "ADP")
for Participants who are Highly Compensated Employees for each
Plan Year and the ADP for Participants who are Non-highly
Compensated Employees for the same Plan Year must satisfy one of
the following tests:
(1) The ADP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the ADP
for Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
(2) The ADP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the ADP
for Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 2.0, provided that the ADP for
Participants who are Highly Compensated Employees does not exceed
the ADP for Participants who are Non-highly Compensated Employees
by more than two (2) percentage points.
(b) The ADP for any Participant who is a Highly
Compensated Employee for the Plan Year and who is eligible to
have Elective Deferrals (and Qualified Non-elective Contributions
if treated as Elective Deferrals for purposes of the ADP test)
allocated to his or her accounts under two or more arrangements
described in Section 401(k) of the Code, that are maintained by
the Employer, shall be determined as if such Elective Deferrals
(and, if applicable, such Qualified Non-elective Contributions)
were made under a single arrangement. If a Highly Compensated
Employee participates in two or more cash or deferred
arrangements that have different Plan Years, all cash or deferred
arrangements ending with or within the same calendar year shall
be treated as a single arrangement.
(c) In the event that this Plan satisfies the
requirements of Sections 401(k), 401(a), or 410(b) of the Code
only if aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of such Sections of the
Code only if aggregated with this Plan, then this Section shall
be applied by determining the ADP of Employees as if all such
plans were a single plan. For Plan Years beginning after
December 31, 1989, plans may be aggregated in order to satisfy
Section 401(k) of the Code only if they have the same Plan Year.
(d) For purposes of determining the ADP of a
Participant who is a 5-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the Elective Deferrals
(and Qualified Non-elective Contributions if treated as Elective
Deferrals for purposes of the ADP test) and Compensation of such
Participant shall include the Elective Deferrals (and, if
applicable, Qualified Non-elective Contributions) and
Compensation for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code). Family Members, with respect to
such Highly Compensated Employees, shall be disregarded as
separate Employees in determining the ADP both for Participants
who are Non-highly Compensated Employees and for Participants who
are Highly Compensated Employees.
(e) For purposes of determining the ADP test, Elective
Deferrals and Qualified Non-elective Contributions must be made
before the last day of the twelve-month period immediately
following the Plan Year to which contributions related.
(f) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount of
Qualified Non- elective Contributions used in such test.
(g) The determination and treatment of the ADP amounts
of any Participant shall satisfy such other requirements as may
be prescribed by the Secretary of the Treasury.
(h) Qualified Non-elective Contributions may be taken
into account as Elective Deferrals for purposes of calculating
the Actual Deferral Percentages.
5.4 Average Contribution Percentage Test: Notwithstanding
any other provision of the Plan,
(a) Employee Contributions must meet the
nondiscrimination requirements of Section 401(a)(4) of the Code,
and the Average Contribution Percentage (hereinafter "ACP") test
of Section 401(m) of the Code. The ACP test is required in
addition to the ADP test under Code Section 401(k). Qualified
Non-elective Contributions used to satisfy the ADP test may not
be used to satisfy the ACP test.
(b) The ACP for Participants who are Highly
Compensated Employees for each Plan Year and the ACP for
Participants who are Non-highly Compensated Employees for the
same Plan Year must satisfy one of the following tests:
(1) The ACP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the ACP
for Participants who are Non-highly Compensated Employees for the
same Plan Year multiplied by 1.25; or
(2) The ACP for Participants who are Highly
Compensated Employees for the Plan Year shall not exceed the ACP
for Participants who are non-highly Compensated Employees for the
same Plan Year multiplied by two (2), provided that the ACP for
Participants who are Highly compensated Employees does not exceed
the ACP for Participants who are Non-highly Compensated Employees
by more than two (2) percentage points.
(c) Multiple use: if one or more Highly Compensated
Employees participate in both a CODA and a plan subject to the
ACP test maintained by the Employer and the sum of the ADP and
ACP of those Highly Compensated Employees subject to either or
both tests exceeds the Aggregate Limit, then the ACP of those
Highly Compensated Employees who also participate in a CODA will
be reduced (beginning with such Highly Compensated Employee whose
ACP is the highest) so that the limit is not exceeded. The
amount by which each Highly Compensated Employee's Contribution
Percentage Amounts is reduced shall be treated as an Excess
Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections
required to meet the ADP and ACP tests. Multiple use does not
occur if either the ADP or ACP of the Highly Compensated
Employees does not exceed 1.25 multiplied by the ADP and ACP of
the Non-highly Compensated Employees.
(d) For purposes of this Section, the Contribution
Percentage for any Participant who is a Highly Compensated
Employee and who is eligible to have Contribution Percentage
Amounts allocated to his or her account under two or more plans
described in Section 401(a) of the Code, or arrangements
described in Section 401(k) of the Code that are maintained by
the Employer, shall be determined as if the total of such
Contribution Percentage Amounts was made under each Plan. If a
Highly Compensated Employee participates in two or more cash or
deferred arrangements that have different plan years, all cash or
deferred arrangements ending with or within the same calendar
year shall be treated as a single arrangement.
(e) In the event that this Plan satisfies the
requirements of Sections 401(m), 401(a)(4) or 410(b) of the Code
only if aggregated with one or more other plans, or if one or
more other plans satisfy the requirements of such Sections of the
Code only if aggregated with this Plan, then this Section shall
be applied by determining the Contribution Percentage of
Employees as if all such plans were a single plan. For plan
years beginning after December 31, 1989, plans may be aggregated
in order to satisfy Section 401(m) of the Code only if they have
the same Plan Year.
(f) For purposes of determining the Contribution
Percentage of a Participant who is a five-percent owner or one of
the ten most highly-paid Highly Compensated Employees, the
Contribution Percentage Amounts and Compensation of such
Participant shall include the Contribution Percentage Amounts and
Compensation for the Plan Year of Family Members (as defined in
Section 414(q)(6) of the Code). Family Members, with respect to
Highly Compensated Employees, shall be disregarded as separate
Employees in determining the Contribution Percentage both for
Participants who are Non-highly Compensated Employees and for
Participants who are Highly Compensated Employees.
(g) For purposes of determining the Contribution
Percentage test, Employees Contributions are considered to have
been made in the Plan Year in which contributed to the trust.
Qualified Non-elective Contributions will be considered made for
a Plan Year if made no later than the end of the twelve-month
period beginning on the day after the close of the Plan Year.
The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the amount of
Qualified Non-elective Contributions used in such test.
The determination and treatment of the Contribution
Percentage of any Participant shall satisfy such other
requirements as may be prescribed by the Secretary of the
Treasury.
5.5 Distribution of Excess Aggregate Contributions:
(a) Notwithstanding any other provisions of this Plan,
Excess Aggregate Contributions, plus any income and minus any
loss allocable thereto, shall be forfeited, if forfeitable, or if
not forfeitable, distributed no later than the last day of each
Plan Year to Participants to whose accounts such Excess Aggregate
Contributions were allocated for the preceding Plan Year. Excess
Aggregate Contributions shall be allocated to Participants who
are subject to the family member aggregation rules of Section
414(q)(6) of the Code in the manner prescribed by the
regulations. If such Excess Aggregate Contributions are
distributed more than 2-1/2 months after the last day of the Plan
Year in which such excess amounts arose, a ten (10) percent
excise tax will be imposed on the Employer maintaining the plan
with respect to those amounts. Excess Aggregate Contributions
shall be treated as Annual Additions under the Plan.
(b) Excess Aggregate Contributions shall be adjusted
for any income or loss up to the end of the Plan Year for which
they were determined to occur (excluding any gap period after the
end of that Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Aggregate Contributions shall be as determined under the Plan's
normal method of accounting.
(c) Forfeitures of Excess Aggregate Contributions may
either be reallocated to the Accounts of Non-highly Compensated
Employees or applied to reduce Employer contributions.
(d) Excess Aggregate Contributions shall be forfeited,
if forfeitable or distributed on a pro-rata basis from the
Participant's Accounts.
(e) In addition, in lieu of distributing Excess
Contributions as provided in the Plan, or Excess Aggregate
Contributions as provided in the Plan, the Employer may make
Qualified Non-elective Contributions on behalf of Non-highly
Compensated Employees that are sufficient to satisfy either the
Actual Deferral Percentage test or the Average Contribution
Percentage Test, or both, pursuant to the regulations under the
Code.
5.6 Distribution of Excess Elective Deferrals:
(a) No Participant shall be permitted to have Elective
Deferrals made under this Plan, or any other qualified plan
maintained by the Employer, during any taxable year in excess of
the dollar limitation contained in Section 402(g) of the Code in
effect at the beginning of such taxable year.
(b) A Participant may assign to this Plan any Excess
Elective Deferrals made during a taxable year of the Participant
by notifying the Committee on or before the date specified in
Section 5.6(e) of the amount of the Excess Elective Deferrals to
be assigned to the Plan.
(c) Notwithstanding any other provision of the Plan,
Excess Elective Deferrals, plus any income and minus any loss
allocable thereto, shall be distributed no later than April 15 to
any Participant to whose account Excess Elective Deferrals were
assigned for the preceding year and who claims Excess Elective
Deferrals for such taxable year.
(d) Excess Elective Deferrals shall be adjusted for
any income or loss up to the end of the Plan Year for which they
were determined to occur (excluding any gap period after the end
of that Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Elective Deferrals shall be as determined under the Plan's normal
method of accounting.
(e) Participants who claim Excess Elective Deferrals
for the preceding taxable year must submit their claims in
writing to the Committee by March 15.
5.7 Distribution of Excess Contributions:
(a) Notwithstanding any other provision of this Plan,
Excess Contributions, plus any income and minus any loss
allocable thereto, shall be distributed no later than the last
day of each Plan Year to Participants to whose accounts such
Excess Contributions were allocated for the preceding Plan Year.
If such excess amounts are distributed more than 2-1/2 months
after the last day of the Plan Year in which such excess amounts
arose, a ten (10) percent excise tax will be imposed on the
Employer maintaining the Plan with respect to such amounts. Such
distributions shall be made to Highly Compensated Employees on
the basis of the respective portions of the Excess Contributions
attributable to each of such Employees. Excess Contributions
shall be allocated to Participants who are subject to the family
member aggregation rules of Section 414(q)(6) of the Code in the
manner prescribed by the regulations.
(b) Excess Contributions (including the amounts
recharacterized) shall be treated as Annual Additions under the
Plan.
(c) Excess Contributions shall be adjusted for any
income or loss up to the end of the Plan Year for which they were
determined to occur (excluding any gap period after the end of
the Plan Year and up to the date of distribution in the
subsequent Plan Year). The income or loss allocable to Excess
Contributions shall be as determined under the Plan's normal
method of accounting.
(d) Excess Contributions shall be distributed from the
accounts to which the Participant's Elective Deferrals were
allocated in proportion to the Participant's Elective Deferrals
for the Plan Year. Excess Contributions shall be distributed
from the Participant's Qualified Non-elective Contribution
account only to the extent that such Excess Contributions exceed
the balance in the Participant's Elective Deferral account.
5.8 Recharacterization: A Participant may treat his or her
Excess Contributions as an amount distributed to the Participant
and then contributed by the Participant to the plan.
Recharacterized amounts will remain nonforfeitable and subject to
the same distribution requirements as Elective Deferrals.
Amounts may not be recharacterized by a Highly Compensated
Employee to the extent that such amount in combination with other
Employee Contributions made by that Employee would exceed any
stated limit under the Plan on Employee Contributions.
Recharacterization must occur no later than two and one-half
months after the last day of the Plan Year in which such Excess
Contributions arose and is deemed to occur no earlier than the
date the last Highly Compensated Employee is informed in writing
of the amount recharacterized and the consequences thereof.
Recharacterized amounts will be taxable to the Participant for
the Participant's tax year in which the Participant would have
received them in cash.
5.9 Maximum Additions:
(a) Notwithstanding anything contained herein to the
contrary, the total Annual Additions made to the Wage Reduction
Contribution Account, Employer Contribution Account, and Employee
Contribution Account of a Participant for any Year shall not
exceed the lesser of $30,000.00 or 25 percent of the
Participant's Compensation (as defined in Code Section 415 and
after application of the wage reduction agreement set forth in
Section 4.2) for such Year, except that such $30,000 shall be
increased as permitted by Internal Revenue Service regulations to
reflect cost-of-living adjustments.
(b) If such Additions exceed the above limitations,
the contributions for the Year which cause the excess shall be
returned to the Participant in the following order:
(1) Any contributions to such Participant's
Employee Contribution Account, to the extent they would reduce
the excess amount, will be returned to the Participant.
(2) If after the application of paragraph (1) an
excess amount still exists, any contributions to such
Participant's Wage Reduction Contribution Account, to the extent
they would reduce the excess amount, will be returned to the
Participant.
(3) If after the application of paragraph (2) an
excess amount still exists, and the Participant is covered by the
Plan at the end of the Year, the excess amount in Participant's
account will be used to reduce Employer contributions to such
Participant's Employer Contribution Account, for such Participant
in the next Year, and each succeeding Year if necessary.
(4) If after the application of paragraph (2) an
excess amount still exists, and the Participant is not covered by
the Plan at the end of the Year, the excess amount will be held
unallocated in a suspense account. The suspense account will be
applied to reduce future Employer contributions of that
Participant's Employer to Employer Contribution Accounts for all
remaining Participants in the next Year, and each succeeding Year
if necessary. If a suspense account is in existence at any time
during the Year, pursuant to this Section, it will not
participate in the allocation of Trust income.
(c) Notwithstanding the foregoing, the otherwise
permissible annual Additions for any Participant under this Plan
may be further reduced to the extent necessary, as determined by
the Committee, to prevent disqualification of the Plan under
Section 415 of the Code, which imposes the following additional
limitations on the benefits payable to Participants who also may
be participating in other tax-qualified pension, profit-sharing,
savings or stock bonus plans maintained by the Employer or any of
the members of the controlled group of corporations (for the
purposes of this Section "Employers") of which the Employer is a
part: If an individual is a Participant at any time in both a
defined benefit plan and a defined contribution plan maintained
by any of the Employers, the sum of the defined benefit plan
fraction and the defined contribution plan fraction for any Year
may not exceed 1.0. The defined benefit plan fraction for any
Year is a fraction, the numerator of which is the Participant's
projected annual benefit under the Plan (determined at the close
of the Year) and the denominator of which is the lesser of (i)
the product of 1.25, multiplied by the dollar limitation in
effect under Section 415(b)(1)(A) of the Code, or (ii) the
product of 1.4, multiplied by the amount which may be taken into
account under Section 415(b)(1)(B) of the Code with respect to
such Participant under the Plan for such Year. The defined
contribution plan fraction for any Year is a fraction, the
numerator of which is the sum of the Annual Additions to the
Participant's accounts as of the close of the Year, and the
denominator of which is the sum of the lesser of the following
amounts determined for such Year and for each prior year of
service with the Employer; (i) the product of 1.25, multiplied by
the dollar limitation in effect under Section 415(c)(1)(A) of the
Code for such year, or (ii) the product of 1.4, multiplied by the
amount which may be taken into account under Section 415(c)(1)(B)
with respect to such Participants under the Plan for such year.
When the term "Annual Additions" is used in the context of other
defined contribution plans under this Section, it shall have the
same meaning as set forth in Section 2.1(f), hereof, but with
respect to Employer contributions and Employee contributions made
under such other plans. For purposes of this limitation, all
defined benefit plans of the Employers, whether or not
terminated, are to be treated as one defined benefit plan and all
defined contribution plans of the Employers, including the Plan
whether or not terminated, are to be treated as one defined
contribution plan. As such, annual benefits and Annual Additions
of such plans are to be aggregated for the purposes of
determining the defined benefit plan fraction and the defined
contribution plan fraction. The extent to which Annual Additions
under the Plan shall be reduced, as compared with the extent to
which annual benefits or Annual Additions under any defined
benefit plans or any other defined contribution plans shall be
reduced in order to achieve compliance with the limitations of
Code Section 415 shall be dependent on the provisions of such
other plans. To the extent any such other plan or plans provide
for a reduction first in benefits from or Annual Additions to
such other plan or plans, the necessary reductions shall be under
such other plan or plans. To the extent any such other plan or
plans do not provide for a reduction first in benefits from or
Annual Additions to such other plan or plans, the reduction in
Annual Additions necessary to achieve compliance with Code
Section 415 shall be under the Plan. If the reduction is under
the Plan, the Committee shall advise affected Participants of any
additional limitations on their Annual Additions required by this
Section 5.9.
5.10 Recognition of Different Investment Funds:
(a) Subject to the terms and conditions herein stated,
and as provided in Article VII, initially three Investment Funds
shall be established by the Trustee and each Participant shall
direct what portion of the aggregate of his or her Account
balances shall be deposited in each such Investment Fund. The
Committee may direct the Trustee to change the number and type of
Investment Funds made available under the Plan from time to time.
Consequently, when appropriate, a Participant shall have a
percentage of the aggregate of his or her Wage Reduction
Contribution Account, Vested Rollover Contribution Account,
Employer Contribution Account and/or Employee Contribution
Account in each such Investment Fund and the allocations
described in Section 5.2 shall be adjusted in such manner as is
appropriate to recognize the existence of such Investment Funds.
(b) Because Participants have a choice of Investment
Funds, any reference in this Plan to a Wage Reduction
Contribution Account, a Vested Rollover Contribution Account,
Employer Contribution Account or an Employee Contribution Account
shall be deemed to mean and include all accounts of a like nature
which are maintained for the Participant under each Investment
Fund.
(c) A Participant's Employer Contribution Account
balance, if any, shall be invested at the same percentage(s) as
the Participant's Wage Reduction Contribution Account.
<PAGE>
Article VI. - Benefits
6.1 Entitlement to Benefits: If a Participant's employment
with the Employer is terminated as defined in Section 3.2, he or
she shall be vested in the entire amount in each of his or her
Accounts as of the Valuation Date or Special Valuation Date which
occurs on or following such termination of employment as
determined in accordance with Section 5.2, hereof. Except as
otherwise provided in this Article VI, payment of benefits shall
commence promptly after such termination of employment, but in no
event shall such Participant be entitled to receive such entire
amount sooner than 45 days after such Valuation Date.
6.2 Death:
(a) In the event that the termination of employment of
a Participant is caused by his or her death, his or her
Beneficiary shall be vested in, and paid the entire amount of,
each of the deceased Participant's Accounts as of the Valuation
Date or Special Valuation Date which occurs on or following such
termination of employment as determined in accordance with
Section 5.2, hereof, but in no event shall such Beneficiary be
entitled to receive such entire amount earlier than the later of
(i) 45 days after such Valuation Date, or (ii) the date the
Committee is reasonably satisfied that such Beneficiary is
otherwise entitled to receive such entire amount.
(b) Payment of benefits due under this Section shall
be made in accordance with Section 6.3.
6.3 Payment of Benefits:
(a) Upon a Participant's or Beneficiary's entitlement
to payment of benefits under Section 6.1 or 6.2 he or she shall
file with the Committee his or her written application therefor
on such form or forms, and subject to such reasonable conditions,
as the Committee shall provide.
(b) The Committee shall follow a Participant's
Beneficiary designation made pursuant to Section 6.4. The
Committee shall make payment of benefits in lump sum only.
Payment to a Participant's Beneficiary shall be made or commence
as soon as practicable after a Participant's death and upon such
proofs of death and entitlement to benefits as the Committee may
require.
(c) Except as otherwise provided below, every
Participant who has a separation from service for any reason,
including retirement, death or Disability, shall have his or her
vested Account, valued as of the Valuation Date or Special
Valuation Date coinciding with or immediately preceding the date
of the distribution, and distributed as soon as practicable
following the separation from service. If the vested balance, in
a Participant Account exceeds $3,500, then no distribution shall
be made to the Participant before the date specified in Section
6.8, unless the Participant consents in writing to an earlier
distribution. Thus, if under the age specified in Section 6.8, a
Participant whose vested Account balance exceeds $3,500 may elect
to defer receipt of such balance until that date by withholding
written consent to the distribution. A Beneficiary does not have
a similar right to defer a distribution of the Participant's
vested Account balance following the Participant's death.
(d) Subject to all the provisions of this Article VI,
at any time prior to Participant's termination of employment,
such Participant may elect to defer the lump sum distribution he
or she is entitled to under the Plan for a period of time not to
exceed one year. Such election shall be made in accordance with
the rules and procedures the Committee may prescribe.
(e) The amount which a Participant or Beneficiary is
entitled to receive at any time and from time to time will be
paid in cash.
6.4 Designation of Beneficiary:
(a) Each Participant from time to time may designate
any person or persons (who may be designated contingently or
successively and who may be an entity other than a natural
person) as his or her Beneficiary or Beneficiaries to whom his
Plan benefits are paid if he or she dies before receipt of all
such benefits. Each Beneficiary designation shall be in the form
prescribed by the Committee, will be effective only when filed
with the Committee during the Participant's lifetime, and, if the
Committee allows, may specify the method of payment of his or her
benefits to the Beneficiary. Each Beneficiary designation filed
with the Committee will cancel all Beneficiary designations
previously filed with the Committee. The revocation of a
Beneficiary designation by a Participant no matter how effected,
shall not require the consent of any designated Beneficiary
unless the Beneficiary affected is the Participant's spouse, in
which case such spouse's consent shall be required to effect any
such revocation in accordance with Section 6.4(c). By
designating a Beneficiary or Beneficiaries as hereunder provided,
a Participant grants the Committee the discretion, in good faith,
to make benefit payment(s) to any Beneficiary or Beneficiaries
named by such Participant despite any dispute by any person or
persons claiming such benefits, and holds the Plan, the Employer
and the Committee harmless from any claims arising out of any
such good faith payment(s) of benefits. Each Participant by
designating a Beneficiary or Beneficiaries, authorizes the
Committee to retain any benefits otherwise payable in the Trust
Fund or, in its sole discretion, pay-over such benefits to a
court or other tribunal of competent jurisdiction pending the
final and binding disposition of any dispute as to the proper
Beneficiary or Beneficiaries by agreement of the parties or by a
judgement of such court or other tribunal of competent
jurisdiction, as the case may be.
(b) If any Participant fails to designate a
Beneficiary in the manner provided above, or if the Beneficiary
or Beneficiaries designated by a deceased Participant die(s)
before him or her or before complete distribution of the
Participant's benefits, the Committee, in its sole discretion,
may direct the Trustee to distribute such Participant's benefits
(or the balance thereof) in the following order to:
(1) The surviving spouse of such Participant or,
if not living,
(2) The estate of such Participant.
(c) Notwithstanding anything contained herein to the
contrary, a Participant may not name as a Beneficiary someone
other than his or her spouse, and such designation shall have no
effect, unless his or her spouse consents thereto, in a signed
writing which is notarized or witnessed by a Plan representative,
or if the Committee determines in its sole discretion that such
consent is not obtainable for good cause shown, consistent with
applicable law.
6.5 Withdrawals:
(a) Subject to Subsections (b), (c), (d) and (e) of
this Section 6.5, any Participant may make a withdrawal of all or
part of his or her Employee Contribution Account, Wage Reduction
Contribution Account and Vested Rollover Contribution Account,
provided, however, that withdrawals must be made of all amounts
in each classification below (listed in descending order) before
amounts in the next lower classification may be withdrawn.
(i) Employee Contribution Account
(ii) Wage Reduction Contribution Account
(iii) Vested Rollover Contribution Account
(b) A Participant must have attained age 59-1/2 or
have been determined by the Committee to have a "hardship" in
accordance with Section 6.5(d) in order to qualify for a
withdrawal under Section 6.5(a) with respect to his or her
Employee Contribution Account, Wage Reduction Contribution
Account and/or Vested Rollover Contribution Account balances.
Except for a Participant who is age 59-1/2 or older and who
withdraws his entire Account Balance, a Participant may not
withdraw any amounts from his or her Employer Contribution
Account.
(c) Application for withdrawals shall be made on such
forms as the Committee prescribes and as permitted herein, and
may be made once each calendar month. Distribution of
withdrawals shall be made in a lump sum within 45 days after the
Valuation Date or Special Valuation Date occurring in the same
calendar month as the application is received provided such
application is received by the Committee, properly completed, at
least 30 days before said Valuation Date. Withdrawal
distributions shall be based on the value of the Participant's
Account(s) as of the Valuation Date or Special Valuation Date
occurring in the same calendar month as the application is
received, and subject to the provisions of Section 6.6, will be
made in the form of cash.
(d) Distribution of Elective Deferrals may be made to
a Participant in the event of hardship. For the purposes of this
Section, hardship is defined as an immediate and heavy financial
need of the Employee where such Employee lacks other available
resources. The following are the only financial needs considered
immediate and heavy: deductible medical expenses (within the
meaning of Section 213(d) of the Code) of the Employee, the
Employee's spouse, children, or dependents; the purchase
(excluding mortgage payments)of a principal residence for the
Employee; payment of tuition for the next quarter or semester of
post-secondary education for the Employee, the Employee's spouse,
children or dependents; or the need to prevent the eviction of
the Employee from, or a foreclosure on the mortgage of, the
Employee's principal residence. A distribution will be
considered as necessary to satisfy an immediate and heavy
financial need of the Employee only if:
(i) The Employee has obtained all distributions
other than hardship distributions, and all nontaxable loans under
all plans maintained by the Employer:
(ii) All plans maintained by the Employer provide
that the Employee's Elective Deferrals (and Employee
Contributions) will be suspended for twelve months after the
receipt of the hardship distribution;
(iii) The distribution is not in excess of the
amount of an immediate and heavy financial need; and
(iv) All plans maintained by the Employer provide
that the Employee may not make Elective Deferrals for the
Employee's taxable year immediately following the taxable year of
the hardship distribution in excess of the applicable limit under
Section 402(g) of the Code for such taxable year less the amount
of such Employee's Elective Deferrals for the taxable year of the
hardship distribution.
A distribution based upon financial hardship cannot exceed the
amount required to meet the immediate financial need created by
the hardship and not reasonable available from other resources of
the Participant. Entitlement to a distribution based on
financial hardship shall be determined by the Committee in its
sole and exclusive discretion. The Committee may require such
reasonable proof of immediate financial need as it deems
necessary to uniformly and fairly administer this Section 6.5, as
a condition precedent to any distribution by reason of financial
hardship.
(e) Nothwithstanding anything contained in Section
6.5(b) regarding the age of the Participant or financial
hardship, to the contrary, a Participant may withdraw all or a
portion of his or her Employee Contribution Account once each
calendar month regardless of his or her age or the existance of
any financial hardship if such Participant satisfies all of the
other terms and conditions of this Section 6.5, including the
requirement that no withdrawal under this Section 6.5(e) may be
for an amount less than $100.00.
6.6 Spousal Consent: Notwithstanding anything contained
herein to the contrary, a Participant may not make a withdrawal
unless his or her spouse consents thereto in a signed writing,
notarized or witnessed by an administrator of the Plan, or if the
Committee determines in its sole discretion that such consent is
not obtainable for good cause shown, and consistent with
applicable law.
6.7 Debiting of Investment Funds: If a Participant making
less than a total withdrawal of his or her Accounts under Section
6.5 has his or her Accounts invested in more than one Investment
Fund, the amount withdrawn from his or her Accounts shall be
debited, on a pro rata basis, against each Investment Fund in
which such Accounts are invested.
6.8 Required Distributions: Distribution of the Account
balances of a Participant will be made by April 1 of the year
following the calendar year in which such Participant attains age
70-1/2, and any balances that arise thereafter will be distributed
by each December 31 thereafter.
6.9 Distribution Requirements:
(a) Elective Deferrals and Qualified Non-elective
Contributions, and income allocable to each, must comply with the
distribution requirements under Section 401(k)(2)(B) of the Code.
(b) Elective Deferrals and Qualified Non-elective
Contributions, and income allocable to each are not distributable
to a Participant or his or her Beneficiary or Beneficiaries in
accordance with such Participant's or Beneficiary or
Beneficiaries' election, earlier than upon separation from
service, death or disability.
(c) Such amounts may also be distributed upon:
(1) Termination of the Plan without the
establishment of another defined contribution plan.
(2) The disposition by a corporation to an
unrelated corporation of substantially all of the assets (within
the meaning of Section 409(d)(2) of the Code) used in a trade or
business of such corporation if such corporation continues to
maintain this Plan after the disposition, but only with respect
to Employees who continue employment with the corporation
acquiring such assets.
(3) The disposition by a corporation to an
unrelated entity of such corporation's interest in a subsidiary
(within the meaning of Section 409(d)(3) of the Code) if such
corporation continues to maintain this Plan, but only with
respect to Employees who continue employment with such
subsidiary.
(4) The attainment of age 59-1/2 in the case of a
profit-sharing plan which provides for such a distribution.
(5) The hardship of the Participant but only in
the case of a plan which provides for such a distribution.
All distributions that may be made pursuant to one or
more of the foregoing distributable events are subject to the
spousal and Participant consent requirements (if applicable)
contained in Sections 401(a)(11) and 417 of the Code. To the
extent required by the regulations issued under Code Section
411(a) (11), at least 30 days but not more than 90 days before a
Participant's scheduled benefit commencement date, the Committee
shall provide to the Participant a written explanation of his
right to defer receipt of the distribution. If a distribution is
one to which Sections 401(a)(11) and 417 of the Code do not
apply, such distributions 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:
(i) the 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 distribution (and, if applicable, a particular
distribution option); and
(ii) the Participant, after receiving the notice,
affirmatively elects a distribution.
6.10 Direct Rollovers: Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a
distributee's election under this part, a distributee may elect,
at the time and in the manner prescribed by the 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. For purposes of this Section
6.10, the following terms shall have the indicated meaning:
(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 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 required under
Section 401(a)(9) of the Internal Revenue Code; and the portion
of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer 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 accepts the distributee's eligible
rollover distribution. However, in the case of an eligible
rollover distribution to the surviving spouse, an eligible
rollover plan is an individual retirement account or individual
retirement annuity.
(c) Distributee: A distributee includes a Participant
or former Participant. In addition, the Participant's or former
Participant's surviving spouse and the Participant's or former
Participant'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 distributed with regard to the interest
of the spouse or former spouse.
(d) Direct Rollover: A direct rollover is a payment
by the Plan to the eligible retirement plan specified by the
distributee.
<PAGE>
Article VII. - Investment Options, Trust Fund
7.1 Investment Options: Each Participant shall designate
the Investment Funds(s) under which contributions made pursuant
to Sections 4.1(a), 4.3 and 4.5, hereof, are to be invested.
Initially, there shall be at least three such investment funds,
as hereinafter indicated:
(a) A common stock fund consisting of the stock of The
Dial Corp;
(b) An Equity Fund, consisting of common stock and
other equity securities, held directly or indirectly; and
(c) A Fixed Fund, consisting of interest bearing
accounts, certificates of deposit, or bonds, debentures, and
other evidence of indebtedness issued by corporations and
governmental units.
(d) A Fixed Fund, consisting of insurance company
guaranteed investment contracts.
The available Investment Funds may be changed or
supplemented from time to time by action of the Committee.
7.2 Investment of Contributions:
(a) Each Participant may elect with respect to future
contributions to his Wage Reduction Contribution Account,
Employee Contribution Account, and Vested Rollover Contribution
Account to have the aggregate contributions to such Account(s)
invested in increments of 10% of the total contributions in an
Investment Fund or Funds. In the event an Employer contributes
to Participant Employer Contribution Accounts, such Employer may
limit the investment elections with respect to such
contributions.
(b) Each Participant may make such elections by filing
an election form with the Committee in the form prescribed by it,
upon becoming a Participant. Such elections may be changed in
accordance with the rules of the Committee by properly completing
and filing an election with the Committee on the form prescribed
by it.
7.3 Investment Transfers:
(a) Subject to all of the other provisions herein
contained, and the rules of the Committee, each Participant may
elect to have the assets in any or all Investment Fund(s), in
increments of 10% of the total, transferred to any one or more
other Investment Fund(s).
(b) Each Participant may change his election by
properly completing and filing an election form with the
Committee in the form prescribed by it.
7.4 Transfer of Assets: The Committee shall direct the
Trustee to transfer monies or other property from the appropriate
Investment Funds to the other Investment Funds as may be
necessary to carry out the aggregate transfer transactions after
such Committee has caused the necessary entries to be made in the
Participant's Accounts and in the Investment Funds and has
reconciled offsetting transfer elections, in accordance with
uniform rules therefor established by such Committee.
7.5 Trust Fund:
(a) All contributions under this Plan shall be
paid to the Trustee and deposited in the Trust Fund. However,
all contributions made by the Employer are expressly conditioned
upon the continued qualification of the Plan under the Code,
including any amendments to the Plan. Upon the Employer's
request, a contribution which was made by a mistake of fact, or
conditioned upon qualification of the plan or any amendment
thereof shall be returned to the Employer within one year after
the payment of the contribution, or the denial of the
qualification, whichever is applicable.
(b) Except as provided above, all assets of the
Trust Fund, including investment Income, shall be retained for
the exclusive benefit of Participants and Beneficiaries and shall
be used to pay benefits to such persons or to pay administrative
expenses of the Plan and Trust fund to the extent not paid by the
Employer and shall not revert to or inure to the benefit of the
Employer.
7.6 Tender Offers: As soon as practicable after the
commencement of a tender offer or exchange offer ("Offer") for
share of The Dial Corp, the Committee shall use its reasonable
best efforts to cause each Participant (who has an Account
allocated in whole or in part to The Dial Corp stock) to be
advised in writing of the terms of the Offer, together with forms
by which the Participant may instruct the Committee to instruct
the Trustee, or revoke such instruction, to tender shares
credited to his or her Account, to the extent permitted under the
terms of any such Offer. The Trustee shall follow the directions
of the Committee but the Trustee shall not tender shares for
which no instructions are received. In advising Participant of
the terms of the Offer, the Committee may include statements from
the management of The Dial Corp setting forth its position with
respect to the Offer. The giving of instructions to the Trustee
to tender shares of The Dial Corp and the tender thereof shall
not be deemed a withdrawal or suspension from the Plan or a
forfeiture of any portion of the Participant's interest in the
Plan. The number of shares of The Dial Corp stock to which a
Participant may provide instructions shall be the total number of
shares credited to his or her Account(s), whether or not the
shares are vested, as of the close of business on the day
preceding the date on which the tender offer commences or such
earlier date which shall be designated by the Committee, which
the Committee, in its sole discretion, deems appropriate for
reasons of administrative convenience. Any securities received
by the Trustee as a result of a tender of shares hereunder shall
be held, and any cash so received shall be invested in short-term
investments, for the account of each Participant with respect to
whom shares of The Dial Corp were tendered pending any
reinvestment by the Trustee, as it may deem appropriate,
consistent with the purposes of the Plan.
7.7 Voting of Stock:
(a) Each Participant (whose Account has allocated to
it any shares of The Dial Corp stock) shall be entitled to
instruct the Committee to instruct the Trustee in writing how to
vote, at each meeting of shareholders, such shares of The Dial
Corp, and to revoke any such instructions, to the extent
permitted under the terms of such vote. Such instruction or
revocation thereof shall apply to the total number of shares of
The Dial Corp credited to the Participant's Account, whether or
not vested, as of the date coincident with or immediately
preceding the record date for the shareholders' meeting or such
earlier date which shall be designated by the Committee, which
the Committee, in its sole discretion, deems appropriate for
reasons of administrative convenience. All shares of The Dial
Corp for which no instructions are received shall be voted by the
Trustee in its discretion. The Committee shall use its
reasonable best efforts to cause each Participant (whose Account
has allocated to it any shares of The Dial Corp stock) to receive
such notices and informational statements as are furnished to the
shareholders in respect of the exercise of voting rights,
together with forms by which the Participant may instruct the
Committee to instruct the Trustee, or revoke such instruction,
with respect to the vote of shares of The Dial Corp stock
credited to his or her Account.
(b) Subsequent to a Participant's investment in any
Investment Fund other than one comprised of The Dial Corp stock,
all proxies relating to the exercise of voting rights incidental
to the ownership of any asset which is held in such Investment
Fund shall be passed through, either directly or indirectly, to
the Participant. Each Participant who so receives any proxies
shall be entitled to instruct the Committee to instruct the
Trustee in writing how to vote such proxies and to revoke any
such instruction, to the extent permitted under the terms of the
proxy. Neither the Committee nor the Trustee shall have
authority to vote proxies for which no instructions have been
received.
<PAGE>
Article VIII. - Administration
8.1 Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration: The Fiduciaries shall have only those
specific powers, duties, responsibilities and obligations as are
specifically given them under the Plan or the Trust. The Board
of Directors of Dobbs International Services, Inc. shall have the
sole authority to appoint and remove the Trustee. Dobbs
International Services, Inc. shall have the sole authority to
appoint and remove the Committee, and any Investment Manager
which may be provided for under and defined in the Trust, and to
amend or terminate, in whole or in part, this Plan or the Trust.
Dobbs International Services, Inc. shall have the final
responsibility for administration of the Plan, which
responsibility is specifically described in this Plan and the
Trust. The Committee, appointed pursuant to Section 8.2, hereof,
shall have the specific delegated powers and duties described in
the further provisions of this Article VIII, and such further
powers and duties as hereinafter may be delegated to it by Dobbs
International Services, Inc. The Trustee shall have sole
responsibility for the administration of the Trust and the
management of the assets held under the Trust, all as
specifically provided in the Trust. Each Fiduciary warrants that
any direction given, information furnished, or action taken by it
shall be in accordance with the provisions of the Plan or the
Trust, as the case may be, authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary
may rely upon any such direction, information or action of
another Fiduciary as being proper under this Plan or the Trust,
and is not required under the Plan or the Trust to inquire into
the propriety of any such direction, information or action. It
is intended under the Plan and the Trust that each Fiduciary
shall be responsible for the proper exercise of its own powers,
duties, responsibilities and obligations under this Plan and the
Trust and shall not be responsible for any act or failure to act
of another Fiduciary. No Fiduciary guarantees the Trust Fund in
any manner against investment loss or depreciation in asset
value.
8.2 Appointment of Committee: A Committee consisting of at
least three persons shall be appointed by and serve at the
pleasure of the President of Dobbs International Services, Inc.
to assist in the administration of the Plan. All usual and
reasonable expenses of the Committee may be paid in whole or in
part by the Employer, and any expenses not paid by the Employer
shall be paid by the Trustee out of the principal or income of
the Trust Fund. Any members of the Committee who are Employees
shall not receive compensation with respect to their services for
the Committee.
8.3 Claims Procedure: The Committee shall make all
determinations as to the right of any person to a benefit. Any
denial by the Committee of the claim for benefits under the Plan
by a Participant or Beneficiary shall be stated in writing by the
Committee and delivered or mailed to the Participant or
Beneficiary at his or her last address shown on Plan records; and
such notice shall set forth the specific reasons for the denial,
written to the best of the Committee's ability in a manner that
may be understood without legal or actuarial counsel. In
addition, the Committee shall afford a reasonable opportunity to
any Participant or Beneficiary whose claim for benefits has been
denied for a review of the decision denying the claim and, in the
event of continued disagreement, may appeal to Dobbs
International Services, Inc. (or a benefits review committee
appointed by it) whose decision shall be final.
8.4 Records and Reports: Dobbs International Services,
Inc. (or the Committee if so designated by it) shall exercise
such authority and responsibility as it deems appropriate in
order to comply with ERISA, other applicable law and governmental
regulations issued thereunder relating to records of
Participant's employment, Account balances, notifications to
Participants and annual reports to the Internal Revenue Service
and Department of Labor. Each Employer agrees to abide by the
directions of Dobbs International Services, Inc. or its designee,
in the exercise of its responsibilities hereunder.
8.5 Other Committee Powers and Duties: The Committee shall
have such power and authority as may be necessary to discharge
its duties hereunder, including, but not by way of limitation,
the discretionary authority to do the following:
(a) To, in its sole discretion, construe and interpret
the Plan, decide all questions of fact relevant to the Plan
including issues as to eligibility and determine the amount,
manner and time of payment of any benefits hereunder;
(b) To select, monitor and replace the Investment
Manager or add new Investment Funds;
(c) To prescribe procedures to be followed by
Participants and Beneficiaries filing applications for benefits;
(d) To prepare and distribute, in such manner as the
Committee determines to be appropriate, information explaining
the Plan;
(e) To receive from the Employer and from Participants
and Beneficiaries such information as shall be necessary for the
proper administration of the Plan;
(f) To furnish the Employer, upon request, such annual
reports with respect to the administration of the Plan as are
reasonable and appropriate;
(g) To receive, review and keep on file (as it deems
convenient or proper) reports of the financial condition, and of
the receipts and disbursements, of the Trust Fund from the
Trustee; and
(h) To appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems
advisable, including legal and actuarial counsel.
Except as otherwise provided by the Plan, the Committee
shall have no power to add to, subtract from or modify any of the
terms of the Plan, or to change or add to any benefits provided
by the Plan, or to waive or fail to apply any requirements of
eligibility for a benefit under the Plan. All decisions,
interpretations and actions of the Committee pursuant to the Plan
shall be conclusive and binding on all persons, and shall be
given the maximum deference permitted by law.
8.6 Rules and Decisions: The Committee may adopt such
rules as it deems necessary, desirable or appropriate. All rules
and decisions of the Committee shall be uniformly and
consistently applied to all Participants and Beneficiaries in
similar circumstances. When making a determination or
calculation, the Committee shall be entitled to rely upon
information furnished by a Participant or Beneficiary, the
Employer, the legal counsel of any such person or the Trustee.
8.7 Committee Procedures: The Committee may act at a
meeting or in writing without a meeting. The Committee shall
elect one of its members as chairman, appoint a secretary, who
may or may not be a Committee member, and advise the Trustee of
such actions in writing. The secretary shall keep a record of
all meetings and forward all necessary communications to the
Employer, or the Trustee. The Committee may adopt such bylaws
and regulations as it deems desirable for the conduct of its
affairs. All decisions of the Committee shall be made by the
vote of the majority including actions in writing taken without a
meeting. A dissenting Committee member who, within a reasonable
time after he or she has knowledge of any action or failure to
act by the majority, registers his or her dissent in writing
delivered to the other Committee members, the Employer and the
Trustee shall not be responsible for any such action or failure
to act.
8.8 Authorization of Benefit Payments: The Committee shall
issue directions to the Trustee concerning all benefits which are
to be paid from the Trust Fund pursuant to the provisions of the
Plan, and shall warrant to the Trustee that all such directions
are in accordance with the Plan.
8.9 Application and Forms for Benefits: The Committee may
require a Participant or Beneficiary to complete and file with
the Committee an application for a benefit on the forms approved
by the Committee, and to furnish all pertinent information
requested by the Committee as a condition precedent to payment of
benefits. The Committee may rely upon all such information so
furnished it, including the Participant's or Beneficiary's
current mailing address.
8.10 Facility of Payment: Whenever, in the Committee's
opinion, a person entitled to receive any payment of a benefit or
installment thereof hereunder is under a legal disability or is
incapacitated in any way so as to be unable to manage his or her
financial affairs, the Committee may direct the Trustee to make
payments to such person or to his or her legal representative or
to a relative or friend of such person for his or her benefit, or
the Committee may direct the Trustee to apply the payment for the
benefit of such person in such manner as the Committee considers
advisable. Any payment of a benefit or installment thereof in
accordance with the provisions of this Section shall be complete
discharge of any liability for the making of such payment under
the provisions of the Plan.
8.11 Indemnification of the Committee: The Committee and
the individual members thereof shall be indemnified by the
Employer and not from the Trust Fund against any and all
liability arising by reason of any act or failure to act made in
good faith pursuant to the provisions of the Plan, including
expenses reasonably incurred in the defense of any claim relating
thereto.
<PAGE>
Article IX. - Miscellaneous
9.1 Nonguarantee of Employment: Nothing contained in this
Plan shall be construed as a contract of employment between the
Employer and any Employee, or as a right of any Employee to be
continued in the employment of the Employer, or as a limitation
of the right of the Employer to discharge any of its Employees,
with or without cause.
9.2 Rights to Trust Assets: No Employee, Participant, or
Beneficiary shall have any right to, or interest in, any assets
of the Trust Fund at any time, including upon termination of his
or her employment or otherwise, except as provided from time to
time under the Plan, and then only to the extent of the benefits
properly payable under the Plan to a Participant or Beneficiary
out of the assets of the Trust Fund. All payments of benefits as
provided for in the Plan shall be made solely out of the assets
of the Trust Fund to the extent sufficient, and none of the
Fiduciaries or Employers shall be liable therefor in any manner.
9.3 Nonalienation of Benefits:
(a) Except as provided in Article VI or as required by
law, benefits payable under the Plan shall not be subject in any
manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of
any kind, either voluntary or involuntary, prior to actually
being received by the person entitled to the benefit under the
terms of the Plan; and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, charge or otherwise dispose
of any right to benefits payable hereunder, shall be void. The
Trust Fund shall not in any manner be liable for, or subject to,
the debts, contracts, liabilities, engagements or torts of any
person entitled to benefits hereunder.
9.4 Nonforfeitability of Benefits: Subject only to the
specific provisions of the Plan, nothing shall be deemed to
divest a Participant of his or her right to the nonforfeitable
benefit to which he or she becomes entitled in accordance with
the provisions of the Plan.
<PAGE>
Article X. - Amendments and Action by Employer
10.1 Amendments: Dobbs International Services, Inc.
reserves the right to make from time to time any amendment or
amendments to the Plan which do not cause (i) any adverse
consequences to any Participant's rights in his or her Account
balances and Funds in which such balances are invested, or (ii)
any part of the Trust Fund to be used for, or diverted to, any
purpose other than the exclusive benefit of Participants or their
Beneficiaries, provided, however, that Dobbs International
Services, Inc. may make any amendment it determines necessary or
desirable, with or without retroactive effect, to comply with the
Code and other applicable law.
10.2 Action by Dobbs International Services, Inc.: Any
action by Dobbs International Services, Inc. under the Plan may
be by resolution of its Board of Directors, or by any person or
persons duly authorized by resolution of said Board to take such
action.
<PAGE>
Article XI. - Successor Employer and Merger
or Consolidation of Plans
11.1 Successor Employer: In the event of the dissolution,
merger, consolidation or reorganization of an Employer, provision
may be made in the sole discretion of Dobbs International
Services, Inc. by which the Plan and Trust will be continued by
the successor; and, in that event, such successor shall be
substituted for Employer under the Plan. The substitution of the
successor shall constitute an assumption of Plan liability by the
successor and the successor shall have all of the powers, duties
and responsibilities of the Employer under the Plan.
11.2 Conditions Applicable to Plan Mergers, Consolidations,
or Asset Transfers: In the event of any merger or consolidation
of the Plan with, or transfer in whole or in part of the assets
and liabilities of the Trust Fund to another trust fund held
under, any other plan of deferred compensation maintained or to
be established for the benefit of all or some of the Participants
of the Plan, the assets of the Trust Fund applicable to such
Participants shall be merged or consolidated with or transferred
to the other trust fund only if:
(a) Each Participant would (if either this Plan or the
other plan then terminated) receive a benefit immediately after
the merger, consolidation or transfer which is equal or greater
than the benefit he would have been entitled to receive
immediately before the merger, consolidation or transfer (if this
Plan had then been terminated); and the determination of such
benefits shall be made in the manner and at the time prescribed
in regulations issued under ERISA;
(b) Resolutions of the Board of Directors of the
Employer under the Plan, or of any new or successor Employer of
the affected Participants, shall authorize such transfer of
assets; and, in the case of the new or successor Employer of the
affected Participants, its resolutions shall include an
assumption; of liabilities with respect to such Participants'
inclusion in the new Employer's plan; and
(c) Such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
<PAGE>
Article XII. - Plan Termination
12.1 Right to Terminate: In accordance with the procedures
set forth in this Article, Dobbs International Services, Inc. may
terminate the Plan at any time in its entirety or with respect to
any Employer or group of Employees or Participants. The Board of
Directors of an Employer may terminate the Plan at any time with
respect to its Employees or any group of its Employees or
Participants, provided such Employer has made all contributions
due to the Plan to the date of such termination.
12.2 Partial Termination: Upon termination of the Plan by
Dobbs International Services, Inc. or by the Employer with
respect to such Employer or a group of Employees or Participants
of such Employer, the Trustee shall, in accordance with the
directions of the Committee, allocate and segregate for the
benefit of the Participants with respect to which the Plan is
being terminated the proportionate interest of such Participants
in the Trust Fund. The funds so allocated and segregated shall
be used by the Trustee to pay benefits to or on behalf of
Participants in accordance with Section 12.3.
12.3 Liquidation of the Trust Fund:
(a) Upon termination or partial termination of the
Plan, the accounts of all Participants affected thereby shall
become fully vested, and the Committee may direct the Trustee:
(a) to continue to administer the Trust Fund and pay Account
balances in accordance with Article VI to Participants affected
by the termination upon their termination of employment or to
their Beneficiaries upon such a Participant's death, until the
Trust Fund has been liquidated; or (b) to distribute the assets
remaining in the Trust Fund, after payment of any expenses
properly chargeable thereto, to Participants and Beneficiaries in
proportion to their respective Account balances or rights
thereto.
(b) In case the Committee directs liquidation of the
Trust Fund pursuant to (a) above, the expenses of administering
the Plan and Trust, if not paid by the Employer, shall be paid
from the Trust Fund.
(c) The Trustee may delay distribution of assets under
Section 12.3 pending receipt of written determination by the
Internal Revenue Service that the Plan is qualified upon
termination.
<PAGE>
Article XIII. - Adoption of Plan
13.1 Adoption Agreement:
(a) Subject to the approval of Dobbs International
Services, Inc., and consistent with the provisions of ERISA and
other applicable law, an Affiliate may adopt the Plan for its
Eligible Employees by entering into an Adoption Agreement in the
form and substance prescribed by the Committee.
Each Employer may determine the level of Employer
contributions, if any, to be made by the Employer to the Employer
Contribution Accounts of its Eligible Employees in each Year.
(b) Dobbs International Services, Inc. may
prospectively revoke or modify any Employer's participation in
the Plan at any time and for any or no reason, without regard to
the terms of any Adoption Agreement, or terminate the Plan with
respect to such Employer's Employee Participants.
(c) By execution of an Adoption Agreement (each of
which by this reference shall become a part of the Plan), the
Employer agrees to be bound by all the terms and conditions of
the Plan.
<PAGE>
Appendix A
DOBBS INTERNATIONAL SERVICES, INC.
BARGAINED EMPLOYEES' 401(k) PLAN
COVERED BRANCHES
Effective January 1, 1995
Unit 498 Charlotte, N. C. Amalgamated Clothing and Textile
Workers Union, AFL-CIO;
Units 115,239,240,241,247 Chicago, Ill. Hotel Employees &
Restaurant Employees Union Local 1,
AFL-CIO
Unit 702 Philadelphia, Pa. Highway Truck Drivers and Helpers,
Local 107 International Brotherhood
of Teamsters; and Hotel Employees
and Restaurant Employees, Local
274, AFL-CIO.
Units 242, 243, 646 San Francisco, Ca. Retail Delivery Drivers,
Driver Salesmen & Helpers Union,
Local 278, an Affiliate of the
International Brotherhood of
Teamsters.
Effective April 1, 1995
Unit 800 Dallas/Fort Worth, Tx. Baker, Confectionery & Tobacco
Workers Union, Local 111
Unit 123 Kansas City, Mo. Int. Assoc. of Machinists &
Aerospace Workers AFL-CIO District
Lodge 142
Units 237,571,574 Los Angeles, Ca. Local 572, Int. Brotherhood
of Teamsters;
Units 114, 156 St. Louis Mo. Teamster Local No. 688, Intl.
Brotherhood of Teamsters.
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DOBBS INTERNATIONAL SERVICES, INC. BARGAINED EMPLOYEES'
401 (k) PLAN
EMPLOYER CONTRIBUTION DESIGNATION
Pursuant to Section 4.1(b) of the Dobbs International
Services, Inc. Bargained Employees' 401(k) Plan, Dobbs
International Services, Inc. (Employer), hereby designates that
starting on or after ____________, 19 , the amount of the
Employer's contribution to the Employer Contribution Account of
an Eligible Employee shall be _____% of the Employee's Wage
Reduction Contribution, limited to no more than $_______ per
week. This designation terminates on __________, 19__.
Signed this __________ day of ________________, 19__.
For the Employer: For the Union:
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
____________________ ____________________
EXHIBIT 5
November 18, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: The Dial Corp Registration Statement on Form S-8
Dobbs International Services, Inc. Bargained
Employees' 401(k) Plan
Gentlemen:
This opinion is delivered in connection with the registration by The
Dial Corp, a Delaware corporation (the "Company"), on Form S-8 (the
"Registration Statement"), under the Securities Act of 1933, as
amended, for 50,000 shares of the Company's Common Stock ("Common
Stock"), together with the associated preferred stock purchase rights
("Rights"), issuable pursuant to the Dobbs International Services, Inc.
Bargained Employees' 401(k) Plan (the "Plan").
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Company and
others as I have deemed relevant and necessary or appropriate for the
purposes of this opinion.
I have assumed the genuineness of all signatures and the authenticity
of all documents submitted to me as originals, the conformity to
original documents of all the documents submitted to me as certified or
photostatic copies, and the authenticity of the originals of such
latter documents.
Based upon the foregoing, I am of the opinion that the 50,000 shares of
Common Stock to be sold pursuant to the Registration Statement,
together with the associated Rights, when issued and delivered by the
Company in accordance with the terms of the Plan, will be legally
issued, fully paid and nonassessable securities of the Company.
The provisions of the written documents constituting the Plan are in
compliance with the requirements of ERISA pertaining to such
provisions.
I hereby consent to the reference to my name in the Registration
Statement and further consent to the inclusion of this opinion as
Exhibit 5 to the Registration Statement. In giving this consent, I do
not hereby admit that I am in the category of persons whose consent is
required under Section 7 of the Act or the rules and regulation of the
Securities and Exchange Commission.
Very truly yours,
/s/L. Gene Lemon
L. Gene Lemon
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
To the Board of Directors of
The Dial Corp:
We consent to the incorporation by reference in this Registration
Statement of The Dial Corp on Form S-8 of our reports dated February
25, 1994, appearing in the Annual Report on Form 10-K of The Dial
Corp for the year ended December 31, 1993 and to the reference to
us under the heading "Experts", in such Registration Statement.
/s/Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Phoenix, Arizona
November 17, 1994
