As filed with the Securities and Exchange Commission
on May 16, 1997
Registration No. ___________
- ------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
VIAD 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)
1850 North Central Avenue
Phoenix, Arizona 85077
(Address of Principal Executive Offices) (Zip Code)
VIAD CORP CAPITAL ACCUMULATION PLAN
(Full title of plan)
---------------
Peter J. Novak, Esq.
Vice President-General Counsel
Viad Corp
1850 North Central Avenue
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 1,200,000 $15 1/4 $18,300,000 $5,545.45
Stock
$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 May 14, 1997, 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 Viad Corp (the
"Corporation") 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 Corporation
for the year ended December 31, 1996.
(2) The Annual Report on Form 11-K filed by The Dial
Companies (now named Viad Corp) Capital Accumulation Plan for the
year ended December 31, 1995.
(3) 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.
(4) The description of the Corporation's Common Stock
contained in the Corporation's Registration Statement on Form 8-B
filed with the SEC pursuant to Section 12 of the Exchange Act on
February 25, 1992.
(5) The description of the Corporation's Rights contained
in the Corporation'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 Corporation 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 Corporation
by Peter J. Novak, Vice President-General Counsel of the
Corporation. Mr. Novak owns, and has options to purchase, shares
of Common Stock of the Corporation.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Restated Certificate of Incorporation (the "Certificate
of Incorporation") of the Corporation provides that each person
who is or was or had agreed to become a director or officer of
the Corporation, 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 Corporation or an officer of the Corporation as an employee
or agent of the Corporation 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 Corporation, 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
Corporation to provide broader indemnification rights than said
law permitted the Corporation to provide prior to such amendment)
or any other applicable laws as presently or hereafter in effect.
In addition, the Corporation 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 Corporation (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 Corporation or is
or was serving at the request of the Corporation 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 Corporation 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 Corporation to
provide broader indemnification rights than said law permitted
the Corporation 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 Corporation 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 Corporation.
Pursuant to the Bylaws, if a claim described in the
preceding paragraph is not paid in full by the Corporation within
thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit
against the Corporation 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 Corporation) 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 Corporation to indemnify the claimant for
the amount claimed, but the burden of proving such defense will
be on the Corporation. 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 Corporation (the "Board") (which
approval may not be unreasonably withheld) and retained by the
Board on behalf of the Corporation. Neither the failure of the
Corporation (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 Corporation (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 Corporation to maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss
under the Delaware Law. The Corporation has obtained directors
and officers liability insurance providing coverage to its
directors and officers. In addition, the Bylaws authorize the
Corporation, to the extent authorized from time to time by the
Board, to grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any
Proceeding in advance of its final disposition, to any agent of
the Corporation 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 Corporation.
The Bylaws provide that the right to indemnification
conferred therein is a contract right and includes the right to
be paid by the Corporation 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 Corporation 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 Corporation has entered into indemnification agreements
with each of the Corporation's directors. The indemnification
agreements, among other things, require the Corporation 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
Corporation must also indemnify and advance all expenses incurred
by directors seeking to enforce their rights under the
indemnification agreements, and cover directors under the
Corporation'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
- ------- -----------
4.1 - Restated Certificate of Incorporation of the
Registrant filed as Exhibit 3.A to Registrant's
1996 Form 10-K.*
4.2 - Bylaws of the Registrant, as amended through
February 20, 1997, filed as Exhibit 3.B to
Registrant's 1996 Form 10-K.*
4.3 - Viad Corp Capital Accumulation Plan.
4.4 - 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 (now
named Viad Corp) 1992 Stock Incentive Plan.*
5 - Opinion of the Registrant's General Counsel as to
the legality of securities offered under Viad Corp
Capital Accumulation 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 Corporation 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 financial statements incorporated in this Registration
Statement on Form S-8 by reference from the Corporation's Annual
Report on Form 10-K for the year ended December 31,1996, have
been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report (which report expresses an unqualified
opinion and includes an explanatory paragraph referring to the
Corporation's change in the method of accounting for impairment
of long-lived assets in 1995) which is incorporated herein by
reference, and has been so incorporated in reliance upon the
reports of such firm given upon their authority as experts in
accounting and auditing.<PAGE>
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 13th day of May, 1997.
VIAD CORP
By: /s/ Robert H. Bohannon
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/ Robert H. Bohannon Director; Chairman, 5/13/97
President and Chief
Executive Officer
Principal Financial
Officer
/s/ Ronald G. Nelson Vice President-Finance 5/13/97
and Treasurer
Principal Accounting
Officer
/s/ Richard C. Stephan Vice President-Controller 5/13/97
Directors
/s/ Jess Hay 5/13/97
/s/ Judith K. Hofer 5/13/97
/s/ Jack F. Reichert 5/13/97
/s/ Linda Johnson Rice 5/13/97
/s/ Douglas L. Rock 5/13/97
/s/ Timothy R. Wallace 5/13/97
<PAGE>
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
Plan Administrators have duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Phoenix, State of Arizona, on the 13th day of May, 1997.
VIAD CORP CAPITAL ACCUMULATION
PLAN
By: /s/ C.D. Walling
I:\WP\WPWIN60\SES\REGN\1997\TRIM\S-8.
Exhibit 4.3
VIAD CORP CAPITAL ACCUMULATION PLAN
RESTATED 6/15/94
WITH REVISIONS THROUGH MARCH 27, 1997
VIAD CORP CAPITAL ACCUMULATION PLAN
INDEX
Article Description Page
I Purpose i-1
II Definitions and Construction ii-
2.1 Definitions 1
Accounts 1
Actual Deferral Percentages 1
Adoption Agreement 1
Affiliate 2
Aggregate Limit 2
Annual Additions 2
Authorized Leave of Absence 2-3
Average Contribution Percentage 3
Beneficiary 3
CODA 3
Code 3
Committee 3
Compensation 3-5
Contribution Percentage 5
Contribution Percentage Amounts 5
Disability 5-6
Elective Deferrals 6
Eligible Employee 6
Eligible Participant 6
Employee 7
Employee Contribution 7
Employee Contribution Account 7
Employer 7
Employer Contribution Account 7
Employer Stock 7
Excess Aggregate Contributions 8
Excess Contribution 9
Excess Elective Deferrals 9
Effective Date 9
Entry Date 9
ERISA 9
Family Member 9
Fiduciaries 9
GFCFC Stock Account 10
Highly Compensated Employee 12
Income 12
Investment Fund(s) 12
Matching Contribution 12
Participant 13
Participation 13
Plan 13
Qualified Matching Contributions 13
Qualified Non-elective Contributions 13
Salary Contribution Account 13
Special Valuation Date 14
Trust (or Trust Fund) 14
Trustee 14
Valuation Date 14
Vested Rollover Contribution Account 14
Year 14
Andrews Bartlett 14
Andrews Bartlett Plan 14
Gelco 14
Gelco Plan 14
Concept 15
Concept Plan 15
Giltspur 15
Giltspur Plan 15
Viad Corp Stock Account 15
Acquired Company 15
2.2 Construction 16
III Participation iii-
3.1 Participation 1
3.2 Termination of Employment 1-2
3.3 Transfers 2
3.4 Suspension 2
3.5 Transfer of Bargaining Unit Employees 2
IV Contributions iv-
4.1 Employer Contributions 1-2
4.2 Code Section 401(k) Salary Reduction 2-4
4.3 Employee Contributions 4
4.4 After-Tax Salary Deduction 4-5
4.5 Rollover Amount From Other Plans 5-6
V Allocations to Participant's Account v-
5.1 Individual Accounts 1
5.2 Account Adjustments 1-4
5.3 Actual Deferral Percentage Test 5-7
5.4 Average Contribution Percentage Test 7-10
5.5 Distribution of Excess Aggregate
Contributions 10-11
5.6 Distribution of Excess Elective
Deferrals 11-13
5.7 Distribution of Excess Contributions 13-14
5.8 Recharacterization 14
5.9 Maximum Additions 14-17
5.10 Recognition of Different Investment
Funds 17-18
5.11 Top-Heavy Provisions 18-22
5.12 Securities Law Requirements 22-24
VI Benefits vi-
6.1 Entitlement to Benefits 1
6.2 Death 1
6.3 Payment of Benefits 2-4
6.4 Designation of Beneficiary 4-6
6.5 Withdrawals 6-9
6.6 Debiting of Investment Funds 9
6.7 Required Distributions 9
6.8 Distribution Requirements 9-10
6.9 Loans to Participants 11-13
6.10 Eligible Rollover Distributions 13-14
6.11 Distribution of Andrews Bartlett Plan
and Gelco Plan Balances 14-24
VII Investment Options, Trust Fund vii-
7.1 Participant Directed Individual
Account Plan 1
7.2 Employee Selected Investment Options
Investment Funds 1-2
7.3 Investment Elections 3
7.4 Investment Transfers 3
7.5 Trust Fund 3-4
7.6 Tender Offers 4-5
7.7 Voting of Stock 5-6
7.8 GFCFC Common Stock Fund 6-9
7.8A The Dial Corporation Common Stock Fund 9-11
7.9 Exercise of Control 11-13
7.10 Adjustment of Accounts 13
7.11 Limitation of Liability And Responsibility 13
7.12 Former Participants And Beneficiaries 14
VIII Administration viii-
8.1 Allocation of Responsibility Among
Fiduciaries for Plan and Trust
Administration 1
8.2 Appointment of Committee 2
8.3 Claims Procedure 2
8.4 Records and Reports 2
8.5 Other Committee Powers and Duties 3-4
8.6 Rules and Decisions 4
8.7 Committee Procedures 4-5
8.8 Authorization of Benefit Payments 5
8.9 Application and Forms for Benefits 5
8.10 Facility of Payment 5
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
9.4 Nonforfeitability of Benefits 2
X Amendments and Action by Employer x-
10.1 Amendments 1
10.2 Action by Viad Corp 1
XI Successor Employer and Merger or
Consolidation of Plans xi-
11.1 Successor Employer 1
11.2 Conditions Applicable to Mergers
or Consolidations of Plans 1-2
11.3 Transfer of Plan Assets to the Viad
Corp Capital Accumulation Plan 3-7
11.4 Transfer of Plan Assets from
the Viad Corp Employees'
Stock Ownership Plan 7-9
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 1-2
<PAGE>
VIAD CORP CAPITAL ACCUMULATION PLAN
ARTICLE I. - PURPOSE
Effective as of January 1, 1985 (the "Effective Date"), the
Employer adopted the Plan set forth herein, formerly called the
Greyhound Employees' Capital Accumulation Plan.
The Viad Companies Capital Accumulation Plan Trust, formerly
called the Dial Companies Capital Accumulation Plan Trust, and
prior thereto the Greyhound Employees' Capital Accumulation Plan
Trust, as established by trust agreement executed effective as of
January 1, 1985 ("Trust") 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 this 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.
The Plan and Trust have been amended from time to time since
they were established principally to conform to law changes.
The Plan is restated on June 27, 1994, to incorporate Plan
amendments approved June 27, 1994 which, unless otherwise
provided, were effective retroactive to January 1, 1993. These
amendments were primarily to comply with Code section 401(a)(31),
added by the Unemployment Compensation Amendments of 1992, and
the new compensation limit established by the Omnibus Budget
Reconciliation Act of 1993.
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, Salary
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 Contributions
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
and Qualified Matching 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 Viad Corp.
(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
Salary 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) AUTHORIZED LEAVE OF ABSENCE: Any absence
authorized by the Employer under the Employer's standard
personnel practices provided that all persons under similar
circumstances must be treated alike in the granting of such
Authorized Leaves of Absence and provided further that the
Employee returns to employment with the Employer or retires
within the period of authorized absence. An absence due to
service in the Armed Forces of the United States shall be
considered an Authorized Leave of Absence provided that the
Employee complies with all of the requirements of federal law in
order to be entitled to reemployment and provided further that
the Employee returns to employment with the Employer within the
period provided by such law.
(h) AVERAGE CONTRIBUTION PERCENTAGE: The average of the
Contribution Percentages of the Eligible Participants in a group.
(i) 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.
(j) CODA: A cash or deferred arrangement as described
in Section 401(k) of the Code.
(k) CODE: The Internal Revenue Code of 1986, as
amended.
(l) COMMITTEE: The persons appointed pursuant to
Article VIII to assist the Viad Corp in the administration of the
Plan in accordance with said Article.
(m) COMPENSATION: Subject to the other provisions of
the Plan and except as defined in the Adoption Agreement of an
Employer in accordance with Article XIII, hereof, 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, overtime, bonuses and any benefits
paid under this Plan; provided, however, that consistent with
past practice the Committee, in its discretion, may use any
definition of "compensation" to determine whether the various
nondiscrimination tests are met as long as such definition
satisfies Code Section 414(s) 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 $200,000, as
adjusted by the Secretary of Treasury at the same time and in the
same manner as under Section 415(d) of the Code. If, as a result
of the application of such rules the adjusted $200,000 limitation
is exceeded, then the limitation shall be prorated among affected
individuals in proportion to each such individual's Compensation
as determined under this Section prior to the application of this
limitation. 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. In addition to the other
applicable limitations set forth in the Plan, and notwithstanding
any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual Compensation of
each Employee taken into account under the Plan 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. For
Plan Years beginning on or after January 1, 1994, 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 '94 annual compensation limit is $150,000.
(n) 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).
(o) CONTRIBUTION PERCENTAGE AMOUNTS: The sum of the
Employee Contributions, Matching Contributions, and Qualified
Matching Contributions (to the extent not taken into account for
purposes of the ADP test) made under the plan on behalf of the
Participant for the Plan Year. Such Contribution Percentage
Amounts shall include forfeitures of Excess Aggregate
Contributions or Matching 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.
(p) DISABILITY: A physical or mental condition which,
in the sole judgment 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.
(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)
pursuant to a salary reduction agreement.
(r) ELIGIBLE EMPLOYEE: Any Employee whose customary
employment is for not less than 1000 hours of service (as defined
in Section 3.1) per year and for a regular fixed compensation,
except an Employee who is covered by a collective bargaining
agreement.
(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), or to receive a
Matching Contribution (including forfeitures) or a Qualified
Matching Contribution. 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: means any person classified by an
Employer or an Affiliate (hereinafter "Employer") to be a common
law employee. Any determination by a court or governmental
agency, whether by adjudication or settlement with the Employer,
that an individual, who had not previously been classified as a
common law employee, is, for other purposes, a common law
employee of the Employer shall not affect the Employer's
classification of that individual for purposes of the Plan.
(u) 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: Viad Corp, or any Affiliate that has
adopted the Plan.
(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) EMPLOYER STOCK: The common stock, $1.50 par value,
of Viad Corp.
(z) 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 Matching 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.
The Employer may elect to make Qualified Non-elective
Contributions under the plan on behalf of Employees.
(aa) 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).
(bb) 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
unless such amounts are distributed no later than the first April
15 following the close of the Participant's taxable year.
(cc) EFFECTIVE DATE: January 1, 1985, 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.
(dd) ENTRY DATE: The first day of each calendar month.
(ee) ERISA: Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended.
(ff) FAMILY MEMBER: A member of the Employee's family
as defined in Section 414(q)(6) of the Code.
(gg) 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.
(hh) GFCFC STOCK ACCOUNT: The account maintained
pursuant to Sections 5.1 and 7.1, hereof, to record for a
Participant his or her shares of common stock of GFC Financial
Corporation ("GFCFC Stock") credited to the Plan as of March 18,
1992.
(ii) 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.
(jj) 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.
(kk) INVESTMENT FUND(S): The investment funds described
in Section 7.1.
(ll) MATCHING CONTRIBUTION: An Employer contribution
made to this or any other defined contribution plan on behalf of
a Participant on account of an Employee Contribution made by such
Participant, or on account of a Participant's Elective Deferral,
under a plan maintained by the Employer.
(mm) PARTICIPANT: An Employee participating in the Plan
in accordance with the provisions of Section 3.1.
(nn) 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.
(oo) PLAN: Viad Corp Capital Accumulation Plan, the
Plan set forth herein, as amended from time to time.
(pp) QUALIFIED MATCHING CONTRIBUTIONS: Matching
Contributions which are subject to the distribution and
nonforfeitability requirements under Section 401(k) of the Code
when made.
(qq) QUALIFIED NON-ELECTIVE CONTRIBUTIONS:
Contributions (other than Matching Contributions or Qualified
Matching 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 and Qualified Matching Contributions.
(rr) SALARY REDUCTION CONTRIBUTION ACCOUNT: The account
maintained to record for a Participant his or her pre-tax salary
reduction contributions made by the Employer pursuant to Section
4.1(a) and 4.2 hereof, and adjustments relating thereto.
(ss) SPECIAL VALUATION DATE: The date on which a
special valuation is made pursuant to Section 5.2.
(tt) TRUST (OR TRUST FUND): The fund known as the Viad
Corp Capital Accumulation 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.
(uu) TRUSTEE: The corporation or individuals appointed
by the Board of Directors of Viad Corp to administer the Trust.
(vv) 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.
(ww) 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.
(xx) YEAR: The 12-month period commencing on January 1
and ending on December 31.
(yy) ANDREWS BARTLETT: Andrews, Bartlett & Associates,
Inc.
(zz) ANDREWS BARTLETT PLAN: The Andrews, Bartlett &
Associates, Inc. 401(k) Savings Plan.
(aaa) GELCO: Gelco Convention Services, Inc.
(bbb) GELCO PLAN: The Gelco Convention Services, Inc.
401(k) Retirement Plan.
(ccc) CONCEPT: Concept Convention Services, Inc.
(ddd) CONCEPT PLAN: The Concept Convention Services,
Inc. 401(k) Profit Sharing Plan.
(eee) GILTSPUR: Giltspur, Inc.
(fff) GILTSPUR PLAN: The Giltspur, Inc. Tax Deferred
Savings Plan.
(ggg) DIAL CORPORATION STOCK ACCOUNT: The account
maintained pursuant to Section 5.1 and 7.2, hereof, to record for
a Participant his or her shares of common stock of The Dial
Corporation ("Dial Corporation Stock").
(hhh) ACQUIRED COMPANY: "Acquired Company" means any
business entity which has been acquired or whose assets have been
acquired by an Employer as defined in Section 2.1(w); for this
purpose "hour of service" means any prior service equivalent to
"hour of service" as defined in Section 3.1 with the Acquired
Company and any other prior service recognized as eligible or
vesting service under a qualified plan of an Acquired Company.
Notwithstanding the foregoing, the participation of an Acquired
Company employee in the Plan shall be subject to the intent of
the acquiring Employer in making the acquisition which may deny
the recognition of service with the Acquired Company in order to
prevent discrimination or to protect the qualification of the
Plan or for any other reason arising out of the acquisition. The
Committee shall ensure that appropriate records are kept to carry
out the terms of this provision.
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.
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 last twelve
consecutive month period during which he or she has at least
1,000 hours of service with the Employer or an Acquired Company,
provided that said Eligible Employee has entered into a duly
executed salary reduction agreement under Section 4.2 in advance
of said Entry Date 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. 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; except that a
rehired former Participant need not fulfill the 1000 hours of
service requirement if such former Participant is rehired as an
Eligible Employee. The term "hour of service" shall mean for the
purposes hereof, each hour (i) for which an Eligible Employee is
paid, or entitled to payment for the performance of duties for
the Employer or (ii) during which the Eligible Employee is absent
due to an Authorized Leave of Absence, vacation, holiday,
temporary sickness, maternity or paternity leave under ERISA
Section 203(b), but in each case only to the extent such Eligible
Employee is or would be (but for the absence) entitled to payment
for the performance of his or her regular duties for the
Employer, as reasonably determined by the Committee consistent
with U.S. Department of Labor regulations, during the applicable
computation period.
3.2 TERMINATION OF EMPLOYMENT: "Termination of
Employment" shall be deemed to be the date:
(i) The Participant quit, was discharged (for any
reason, including, by reason of Disability), died
or retired; or
(ii) The first anniversary of the date the Participant
was continuously absent (with or without pay) for
any other reason, such as vacation, holiday,
temporary sickness, Authorized Leave of Absence or
layoff, or the date within such 12-month period
when the Participant quit, was discharged, died or
retired.
3.3 TRANSFERS: For the purposes of determining
eligibility to Participate in the Plan under Section 3.1, an
Eligible Employee shall receive credit for employment with an
Employer or an Affiliate.
3.4 SUSPENSION: If a Participant (i) elects to defer
distribution of his or her benefit pursuant to Section 6.3(c),
(ii) is transferred to employment with an Affiliate that has not
adopted the Plan, (iii) ceases to be an Eligible Employee, (iv)
goes on an unpaid maternity or paternity leave under ERISA
Section 203(b), (v) receives a hardship withdrawal in accordance
with Section 6.5, or (vi) commences an Authorized Leave of
Absence, as reasonably determined by the Committee, his or her
Participation under the Plan shall be suspended, provided,
however, that during the period of his or her employment in such
ineligible status or position: (a) he or she shall cease to have
any right to make contributions pursuant to Article IV, hereof;
(b) his or her Employer Contribution Account shall receive no
Employer contribution allocation under Section 5.2(c); (c) he or
she shall continue to participate in Income allocations pursuant
to Section 5.2(a); (d) the withdrawal privileges under the
provisions of Article VI, other than the loan provision of
Section 6.9, shall continue to apply except for a Participant who
has deferred distribution of his or her benefit pursuant to
Section 6.3(c); and (d) the investment Fund transfer provisions
of Section 7.3 shall continue to apply.
3.5 TRANSFER OF BARGAINING UNIT EMPLOYEES: Pursuant
to collective bargaining, effective September 30, 1995 certain
employees of Dobbs International Services, Inc. are no longer
eligible to participate in this Plan. Effective January 1, 1996,
those employees will be eligible to participate in the Dobbs
International Services, Inc. Bargained Employees' 401(k) Plan
(the "Dobbs Plan"), which provides for and permits transfers from
this Plan to the Dobbs Plan. The Committee and Trustee are
hereby authorized and directed to take all actions necessary or
appropriate to accomplish the transfer of Account balances of
such employees from this Plan to the Dobbs Plan. The Accounts of
each Participant shall be valued and adjusted as of the year-end
Valuation Date, and the sum of the Account balances so determined
shall equal the amount transferred. Following the transfer, the
affected employees will no longer have any claim for benefits
under this Plan, and the Dobbs Plan, in accepting the assets
transferred for this Plan,, shall be deemed to have accepted the
liability for all amounts due to each Participant.
In the future, if a Participant becomes included in a unit
of employees covered by a collective bargaining agreement and
pursuant to collective bargaining is excluded from this Plan and
included in a collectively bargained plan, the Participant's
Accounts in the Plan may be transferred to the collectively
bargained plan if the collective bargaining agreement so
provides. The Committee and Trustee are hereby authorized and
directed to take all actions necessary or appropriate to
accomplish such transfer. The Accounts of the Participant shall
be valued and adjusted as of the Valuation Date immediately
preceding the transfer effective date, and the sum of the Account
balances so determined shall equal the amount transferred.
Following the transfer, Participants will no longer have any
claim for benefits under this Plan, and the collectively
bargained plan, in accepting the assets transferred from this
Plan, shall be deemed to have accepted the liability for all
amounts due to each Participant.
ARTICLE IV. - CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS: (a) For each Year, the
Employer shall contribute an amount to a Participant's Salary
Reduction Contribution Account equal to the total amount of
contributions agreed to be made by it pursuant to a salary
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 salary
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 allocated among Participants either with regard to a
uniform percentage of each Participant's Compensation; or with
regard to a uniform percentage of the amount of contributions
agreed to by the Participant under Section 4.2; or a combination
of the two. The formulation decided upon by the Board of
Directors shall operate in a nondiscriminatory manner. Such
additional contributions shall be deemed made on account of a
Year if either (a) the Board of Directors of the particular
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, or (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 not 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 credited to a
Participant's Employer Contribution Account shall be 100% vested
and nonforfeitable at all times.
4.2 CODE SECTION 401(K) SALARY 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 salary reduction agreement with
the Employer which will be applicable to Compensation for payroll
periods after such Entry Date within such Year. The terms of any
such salary 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 salary from the Employer equal to
any dollar amount or percentage of his Compensation per payroll
period, not to exceed 12% of such Compensation, or be less than
the lesser of 1% of such Compensation or One Hundred Twenty
Dollars ($120.00) per calendar quarter. In consideration of such
agreement, the Employer will make a salary reduction contribution
to the Participant's Salary 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 salary
reduction agreement. Amounts credited to a Participant's Salary
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. If a Participant
enters into a salary 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 salary deduction
agreement under Section 4.4, hereof, shall be equal to his or her
Compensation after application of the salary reduction agreement.
(b) Unless otherwise amended or terminated in
accordance with (ii), below, a Participant's salary reduction
agreement shall be deemed automatically renewed from year to
year, while this Plan remains in force and effect. Further,
salary reduction agreements shall include, but not by way of
limitation, and be governed by the following:
(i) A salary reduction agreement shall apply to each
payroll period during which an effective salary
reduction agreement is on file with the Employer.
(ii) A salary reduction agreement may be amended or
terminated by a Participant only once during each
calendar quarter if the purpose of the amendment is
to decrease or increase the amount of such
Participant's Compensation which is subject to
salary reduction during the remainder of such Year.
(iii) Any amendment or termination of a salary reduction
agreement shall be effective on the following Entry
date after at least 30 days prior written notice by
a Participant in the form required by Employer.
(iv) The Employer may amend or revoke its salary
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 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) and 401(m) of the Code are met for
such Year.
(v) The Employer may revoke its salary reduction
agreements with all Participants or amend its
salary reduction agreements with all Participants
on a uniform basis, if it determines that it will
not have sufficient current or accumulated earnings
to make the contributions to the Plan that may be
required by the salary reduction agreements.
(vi) Except as provided above, a salary reduction
agreement applicable to any given Year, once made,
may not be revoked or amended by the Participant.
(vii) 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 salary 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 salary 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
salary deduction agreement under Section 4.4 not intended to
qualify for income tax deferral under Code Section 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 nonforfeitable at all times.
4.4 AFTER-TAX SALARY DEDUCTION: A Participant may
elect to enter into a written salary 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 salary deduction agreement may be
amended or terminated only once during each calendar quarter if
the purpose of the amendment is to decrease or increase the
amount of such Participant's Compensation which is subject to
salary deduction agreement during the remainder of such Year.
The terms of such salary deduction agreement shall provide, among
other things, that for the purposes of Section 4.3 the
Participant agrees to accept a deduction from salary from the
Employer equal to any whole percentage of his Compensation per
payroll period, not to exceed 10% 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 a "Qualifying
Rollover Distribution," defined in Section 402(a)(5)(D)(i) of the
Code as "1 or more distributions (I) within one taxable year of
the Employee on account of a termination of the plan of which the
trust is a part or, in the case of a profit-sharing stock bonus
plan, a complete discontinuance of contributions under such plan,
or (II) which constitutes a lump sum distribution within the
meaning of subsection (e)(4)(A) (determined without reference to
subparagraphs (B) and (H) of subsection (e)(4) which, in part,
defines lump sum distribution as "the distribution or payment
within one taxable year of the recipient of the balance to the
credit of an Employee which becomes payable to the recipient (i)
on account of the Employee's death, (ii) after the Employee
attains age 59 1/2, (iii) on account of the Employee's separation
from service, or (iv) after the Employee has become disabled",
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(a)(5)(B) of the
Code, limiting such amount to the fair market value of all
property received in such a distribution reduced by Employee
contributions, as defined in Section 402(a)(5)(d)(ii) of the
Code.
(b) Notwithstanding the foregoing, if an Employee had
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.
(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.
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 (e.g., Qualified
Matching Contribution and Matching Contribution subaccounts of
the Employer Contribution Account). 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. A GFCFC Stock Account shall be
created to reflect a Participant's interest in GFC Financial
Corporation stock. A Dial Corporation Stock Account shall be
created to reflect a Participant's interest in Dial Corporation
Common Stock.
5.2 ACCOUNT ADJUSTMENTS: The Accounts of Participants
shall be adjusted no less frequently than quarterly, recognizing
the Participant's elections pursuant to Section 5.5, 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 receipt or distributions during the period,
based on generally acceptable principals of trust accounting
agreed to by the Committee, the Trustee, and the record keeper
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 loan
in accordance with Section 6.9 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) Salary Reduction Contributions: The Employer
contributions for a calendar quarter (or more frequent account
period) that are made pursuant to a salary reduction agreement
entered into with a Participant under Section 4.2 shall be
allocated to the Participant's Salary Reduction Contribution
Account as of each Valuation Date or Special Valuation Date for
the accounting period in which they are received.
(c) Additional Employer Contributions: As of each
Valuation Date the Employer's additional contribution described
in Section 4.1(b), if any, shall be allocated among the Employer
Contribution Accounts of Participants in accordance with Section
4.1(b).
(d) Contributions: A Participant's contributions shall
be allocated to his or her Employee Contribution Account as of
each Valuation Date.
(e) Transfers from Andrews Bartlett Plan and Gelco
Plan: Following the merger of the Andrews Bartlett Plan and the
Gelco Plan with and into the Plan, the accounts of individuals
previously employed by Andrews Bartlett and Gelco will be
transferred from the Andrews Bartlett Plan and the Gelco Plan
into this Plan. The Committee and Trustee are hereby authorized
and directed to accept the transfer of assets and liabilities
from these Plans. The assets transferred to this Plan from the
Andrews Bartlett Plan and the Gelco Plan shall be allocated to
the appropriate accounts of the Plan Participants in the
following manner:
(i) amounts allocated to the Participant's
"Elective Account" in the Andrews Bartlett Plan and to the
"Elective Deferrals subaccount" and the "Qualified Non-Elective
Contributions subaccount" in the Gelco Plan shall
be allocated to the Participant's Salary Reduction
Contribution Account in this Plan;
(ii) amounts allocated to the "Participant's
Account" in the Andrews Bartlett Plan and to the "Matching
Contributions subaccount" and to the "Discretionary
Contributions subaccount" in the Gelco Plan shall be
allocated to the Participant's Employer Contribution Account
in this Plan; and
(iii) amounts allocated to the Participant's
"Rollover Account" in the Andrews Bartlett Plan and to the
"Rollover Contributions Account" and the "Transfer
Contributions Account" in the Gelco Plan shall be allocated
to the Participant's Vested Rollover Account in this Plan.
(f) Transfer from the Concept Plan: Following the
merger of the Concept Plan with and into the Plan, the accounts
of individuals previously employed by Concepts will be
transferred from the Concept Plan to this Plan. The Committee
and the Trustee are hereby authorized and directed to accept the
transfer of assets and liabilities from the Concept Plan. The
assets transferred to this Plan from the Concept Plan shall be
allocated to the appropriate accounts of the Plan Participant in
the following manner:
(i) amounts allocated to the Participant's
"Deferred Contributions Account" and the "Qualified Non-Elective
Contribution Account" in the Concept Plan shall be
allocated to the Participant's Salary Reduction Account in
this Plan;
(ii) amounts allocated to the Participant's
"Regular Matching Contributions Account", the "Employer
Contributions Account" and the "Qualified Matching
Contributions Account" in the Concept Plan shall be
allocated to the Participant's Employer Contributions
Account in this Plan; and
(iii) amounts allocated to the Participant's
"Segregated Rollover Account" in the Concept Plan shall be
allocate to the Participant's Vested Rollover Contribution
Account in this Plan.
(g) Transfers from the Giltspur Plan: Following the
merger of the Giltspur Plan with and into the Plan, the accounts
of individuals previously employed by Giltspur will be
transferred from the Giltspur Plan to this Plan. The Committee
and the Trustee are hereby authorized and directed to accept the
transfer of assets and liabilities from the Giltspur Plan. The
assets transferred to this Plan from the Giltspur Plan shall be
allocated to the appropriate accounts of the Plan Participant in
the following manner:
(i) amounts allocated to the Participant's
"Elective Account" in the Giltspur Plan shall be allocated
to the Participant's Salary Reduction Account in this Plan;
and
(ii) amounts allocated to the Participant's
"Matching Account" in the Giltspur Plan shall be allocated
to the Participant's Employer Contribution Account in this
Plan.
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:
(i) 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
(ii) 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
or Qualified Matching Contributions, or both, 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 or
Qualified Matching Contributions, or both) 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)(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 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 or Qualified Matching
Contributions, or both, 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 Qualified Matching
Contributions, or both) 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, Qualified Non-elective Contributions and Qualified
Matching Contributions must be made before the last day of the
twelve-month period immediately following the Plan Year to which
contributions relate.
(f) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the amount of
Qualified Non-elective Contributions or Qualified Matching
Contributions, or both, 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 Matching Contributions and 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 and Matching 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 Matching Contributions and 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:
(i) 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
(ii) 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, Employee Contributions are considered to have
been made in the Plan Year in which contributed to the trust.
Matching Contributions and 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 or Qualified Matching Contributions,
or both, 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. This
forfeiture or distribution of Excess Aggregate Contributions
shall be made for the Participants who are Highly Compensated
Employees in the order of their contribution percentages
described in Section 5.4, beginning with those having the highest
percentage and then continuing with others who have the next
highest percentage, until the requirements for the ACP test in
Section 5.4 are met. For this purpose, each forfeiture or
distribution of Excess Aggregate Contributions that occurs shall
be treated as reducing both the amount of such contributions and
the adjusted percentage that is determined for the affected
Participant under Section 5.4. 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. In addition, excess deferrals
and other contributions described in Section 5.3, plus any income
and minus any loss allocable thereto, shall be distributed no
later than the end of each Plan Year to Participants to whose
accounts they were allocated for the preceding Plan Year. This
distribution of excess amounts pursuant to Section 5.3 shall be
made for the Participants who are Highly Compensated Employees in
the order of their deferral percentages described in Section 5.3,
beginning with those having the highest percentage and then
continuing with others who have the next highest percentage,
until the requirements of the ADP test in Section 5.3 are met.
For this purpose, each distribution of excess deferrals and other
contributions that occurs shall be treated as reducing both the
amount of the deferrals and the adjusted percentage that is
determined for the affected Participant under Section 5.3.
(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 and
Qualified Matching Contributions (if applicable) were allocated
in proportion to the Participant's Elective Deferrals and
Qualified Matching Contributions (to the extent used in the ADP
test) 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 and Qualified Matching Contribution account.
5.8 RECHARACTERIZATION: (a) 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 Salary Reduction Contribution Account, Employer
Contribution Account, 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 salary
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:
(i) Any contributions to such Participant's
Employee Contribution Account, to the extent they would
reduce the excess amount, will be returned to the
Participant.
(ii) If after the application of paragraph (i) an
excess amount still exists, any contributions to such
Participant's Salary Reduction Contribution Account, to the
extent they would reduce the excess amount, will be returned
to the Participant.
(iii) If after the application of paragraph (ii) 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.
(iv) If after the application of paragraph (ii) 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 the 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 2.3(b), 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 four 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 Salary Reduction
Contribution Account, Vested Rollover 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 Salary Reduction
Contribution Account, a Vested Rollover 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 shall be invested only in the Employer Stock, and the
Participant shall have no choice of Investment Funds with respect
to such balance.
5.11 TOP-HEAVY PROVISIONS: (a) The following provisions
shall become effective in any Year in which the Plan is
determined to be a Top-Heavy Plan, notwithstanding any contrary
provision in the Plan. The Plan will be considered a Top-Heavy
Plan for the Year if as of the last day of the preceding Year,
(1) the value of the sum of Salary Reduction Contribution
Accounts, Employer Contribution Accounts and Employee
Contribution Accounts (but not including any allocations to be
made as of such last day of the Year except contributions
actually made on or before that date and allocated pursuant to
Section 5.2) of Participants who are Key Employees (as defined in
Section 416(i) of the Code) exceeds 60% of the value of the sum
of Salary Reduction Contribution Accounts, Employer Contribution
Accounts and Employee Contribution Accounts (but not including
any allocations to be made as of such last day of the Year except
contributions actually made on or before that date and allocated
pursuant to Section 5.2) of all Participants (the "60% Test") or
(2) the Plan is part of a required aggregation group (within the
meaning of Section 416(g) of the Code and the required
aggregation group is top-heavy. However, and notwithstanding the
result of the 60% Test, the Plan shall not be considered a
Top-Heavy Plan for any Year in which the Plan is a part of a
required or permissive aggregation group (within the meaning of
Section 416(g) of the Code) which is not top-heavy.
(b) Notwithstanding any contrary provision of the Plan,
and except as otherwise provided in (c) and (d) below, for any
Year during which the Plan is deemed a Top-Heavy Plan, Employer
contributions pursuant to Section 5.2(c) which are allocated to
Employer Contribution Accounts on behalf of any Participant who
is not a Key Employee shall not be less than the lesser of:
(i) Three percent of such Participant's
Compensation; or
(ii) In the case where the Employer has no defined
benefit plan which designates the Plan to satisfy Section
416(f) of the Code, the largest percentage of Employer
contributions as a percentage of the first $200,000 of the
Key Employee's Compensation allocated on behalf of any Key
Employee for that Year.
The above mentioned minimum allocation is determined without
regard to any Social Security contribution. The minimum
allocation shall be made even though, under other Plan
provisions, the Participant would not otherwise be entitled to
receive an allocation, or would have received a lesser allocation
for the Year.
(c) The provisions of (b), above, shall not apply to
any Participant who was not employed by the Employer on the last
day of the Year preceding the Year the Plan is considered to be a
Top-Heavy Plan.
(d) The provisions of (b), above, shall not apply to
any Participant to the extent the Participant is covered under
any other plan or plans of the Employer and the Employer has
provided in the Adoption Agreement that the minimum allocation or
benefit requirement applicable to top-heavy plans will be met in
the other plan or plans.
(e) The minimum allocation required in (b), above, (to
the extent required to be nonforfeitable under Section 416(b) of
the Code) may not be forfeited under Code Section 411(a)(3)(B) or
411(a)(3)(D).
(f) If a Participant's termination of employment occurs
while the Plan is a Top-Heavy Plan, such Participant's vested
percentage in his Employer Contribution Account shall not be less
than the percentage determined in accordance with the following
table:
Vested Forfeited
Years of Service Percentage Percentage
- ---------------- ---------- ----------
less than 2 0% 100%
2 but less than 3 20% 80%
3 but less than 4 40% 60%
4 but less than 5 60% 40%
5 but less than 6 80% 20%
6 or more 100% 0%
(g) For any Year in which the Plan is a Top-Heavy Plan,
the compensation limitation described in Section 416(d) of the
Code shall apply.
(h) If the Plan becomes a Top-Heavy Plan and
subsequently ceases to be such, the vesting schedule in
Subsection (f) of this Section to the extent it is more favorable
than any vesting schedule that may be contained in the Plan shall
continue to apply in determining the vested percentage of any
Participant who had at least five years of Service as of December
31 in the last Year of top-heaviness. For other Participants,
said more favorable schedule shall apply only to their Employer
Contribution Account balance as of such December 31. For the
purposes of Subsection (f), Year of Service shall be defined in
the same manner as the term Year of Service is used for vesting
purposes in the event the Plan is amended to include a vesting
provision. In the event that the Plan is amended to change or
modify any vesting schedule, a Participant with at least three
(3) Years of Service as of the expiration of the election period
may elect to have his nonforfeitable percentage computed under
the Plan without regard to such amendment. If a Participant
fails to make such election, then such Participant shall be
subject to the new vesting schedule. The Participant's election
period shall commence on the adoption date of the amendment and
shall end 60 days after the latest of:
(1) the adopted date of the amendment;
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice of
the amendment from the Employer or Administrator.
(i) Notwithstanding any contrary provisions contained
herein, for any Year in which the Plan is a Top-Heavy Plan, any
benefits to which the Participant who is a Key Employee is
entitled shall commence not later than the Participant's taxable
year in which he or she attains age 70 1/2, whether or not his or
her employment has terminated in such year. If a benefit
distribution under the Plan is made to a Key Employee before he
or she attains age 59 1/2, and during a Year in which the Plan is a
Top-Heavy Plan, the Participant shall be advised by the Committee
that an additional income tax may be imposed equal to 10% of the
portion of the amount so received which is included in his or her
gross income for such taxable year, unless such distribution is
made on account of death or Disability.
(j) For any Year in which the Plan is a Top-Heavy Plan,
Section 5.4(c) shall be read by substituting the number "1.00"
for the number "1.25" wherever it appears therein except such
substitution shall not have the effect of reducing any benefit
accrued under a defined benefit plan prior to the first day of
the Year in which this provision becomes applicable.
(k) Neither Elective Deferrals nor Matching
Contributions may be taken into account for the purpose of
satisfying the minimum top-heavy contribution requirement.
5.12 SECURITIES LAW REQUIREMENTS: The Plan is intended
to comply with the requirements for exemption from liability
under Section 16(b) of the Securities Exchange Act of 1934 ("1934
Act") in the case of any transaction that is reportable under
Section 16(a) of the 1934 Act. As of September 1, 1992, the
Company has chosen, for purposes of liability under Section 16(b)
of the Exchange Act, to apply the new Section 16 rules that
became effective May 1, 1991, for reporting purposes.
Accordingly, the Plan shall be interpreted and administered so as
to preserve such exemption under Rule 16b-3 or any other
applicable rules and regulations promulgated pursuant to Section
16 of the 1934 Act with respect to any Plan transaction that is
reportable by a Participant, Beneficiary, or other person,
including, if applicable, the Trust, who is a Company officer,
director, or ten percent beneficial owner subject to Section 16
of the 1934 Act (hereinafter, a "Section 16 Insider"). This
section of the Plan provides special rules allowing the Plan to
satisfy certain conditions for exemption from Section 16(b)
liability. This section also contains references to other Plan
sections that, in addition to being included in the Plan for
other reasons, enable the Plan to satisfy other conditions for
such exemption.
The Plan is a written pension or retirement plan with broad-based
Employee participation and objective, nondiscriminatory rules
that are subject to the Code's qualification requirements and the
requirements of the Employee Retirement Income Security Act of
1974 ("ERISA"), including ERISA reporting rules that make the
Plan subject to an annual audit by independent accountants and
ERISA fiduciary rules that protect the interests of all Plan
Participants and Beneficiaries, including Section 16 Insiders.
Article III of the Plan provides rules for determining
eligibility to participate, as it relates to Section 16 Insiders
and other Employees; and Articles IV through VII contain detailed
rules for Plan contributions, benefits, investments, and
accounting that include rules setting forth the method for
determining the price and amount of Employer Stock that can be
allocated to the Accounts of Section 16 Insiders and other
Employees. Accordingly, the Plan satisfies the general
conditions for 16(b) exemption relating to a written plan
described in Rule 16b-3(a)(1) that is exempt from the Rules 16b-3(b)
requirement to obtain approval by the Company's security
holders. Moreover, the limitations in Article V of the Plan,
including the Code Section 415 limitations that are expressed in
Section 5.9 of the Plan, operate in conjunction with other Plan
provisions relating to contributions and benefits in a manner
that permits a determination of the maximum number of shares of
Employer Stock that can be provided to Section 16 Insiders under
the Plan each year. Therefore, to the extent that current rules
continue to subject the Plan to a requirement similar to that in
former Rule 16b-3(c) to specify the maximum number of shares that
the Plan makes available to Section 16 Insiders, the Plan
satisfies such requirement. In addition, Section 9.3 of the Plan
restricts the assignment of Plan benefits in a manner required by
the Code and ERISA. In the event that the Plan is ever deemed to
issue derivative securities, Section 9.3 shall be interpreted and
applied with respect to Section 16 Insiders in a manner that also
satisfies the requirements to include a transferability
restriction, as described in Rule 16b-3(a)(2).
The Plan's rules for contributions, benefits, investments, and
accounting in Articles IV through VII collectively provide a
formula that uses objective criteria to determine the amount,
price, and timing of Employer Stock allocations to Section 16
Insiders and other Participants in a manner that satisfies Rule
16b-3(c)(ii)(A). Notwithstanding Section 10.1 or any other Plan
provision, to the extent required by Rule 16b-3(c)(2)(ii)(B),
such Plan provisions shall not be amended more than once every
six months, other than to comport with changes in the Code,
ERISA, or the rules thereunder. Moreover, the Committee is
authorized to approve and enforce administrative restrictions
that, without discriminating in favor of Section 16 Insiders for
purposes of Plan qualification under the Code, ensure compliance
with the requirement of Rule 16b-3(c)(1) to satisfy a six-month
holding requirement with respect to the grant and award
transactions of Section 16 Insiders under the Plan or ensure
compliance with a requirement of Rule 16b-3(d) with respect to
Participant-directed transactions of Section 16 Insiders that
must meet such requirement as a condition for exemption under
Section 16(b) of the 1934 Act. In order to permit compliance
with Rule 16b-3(d) the restrictions that the Committee may apply
to Employer Stock-related transactions of Section 16 Insiders may
include requirements that cause them to make an irrevocable
election six months in advance, to cease further Plan
participation or Employer Stock purchases for six months, or to
make elections for intra-Plan investment transfers no more often
than every six months and during a specified period in which
recently released financial data for the Company is available to
the public.
In addition to the foregoing, the Plan is intended to comply with
the following rules in order to ensure that it will be exempt
from any requirement to obtain approval by the Company's security
holders even if it is not treated as a pension or retirement
plan. Thus, the following limitation shall apply notwithstanding
other Plan provisions for allocations. In no event shall
Employer Stock be allocated to the Account of a Section 16
Insider if such allocation would cause the aggregate fair market
value of Employer Stock that is held in the Trust and credited to
the Accounts of Section 16 Insiders to equal or exceed twenty
percent of the market value of all Employer Stock held in the
Trust. Any reduction in the number of shares of Employer Stock
in the Accounts of Section 16 Insiders that is necessary to
comply with this limitation shall be made on a proportionate
basis for all such Section 16 Insiders and shall be allocated
among the remaining Participants in the same manner as shares of
Employer Stock are allocated to them.
ARTICLE VI. - BENEFITS
6.1 ENTITLEMENT TO BENEFITS: If a Participant's
employment with the Employer is terminated for any reason, 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(a), hereof. Except as
provided in Section 6.3(c), hereof, 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.
In addition to the foregoing, any Participant who has as
account balance in this Plan transferred from the Gelco Plan may,
upon attaining age 65, receive a distribution not to exceed the
amount transferred from the Gelco Plan (determined without regard
to earnings or losses thereon following the date of the
transfer). A distribution made pursuant to the preceding
sentence shall commence as soon as administratively feasible
following the date on which a distribution is requested or
otherwise payable, and shall be made in accordance with the
provisions of Section 6.11. Notwithstanding the foregoing, with
respect to amounts transferred to this Plan from the Giltspur
Plan, payment of benefits shall commence in no event later than
one year following the Participant's separation from service.
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(a), 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.
Notwithstanding the foregoing, with respect to amounts
transferred to this Plan from the Giltspur Plan, payment of
benefits shall commence in no event later than 180 days after
such Valuation Date; provided, however, that the Committee is
reasonably satisfied that the designated Beneficiary is otherwise
entitled to receive such entire amount.
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 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 the 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 6.7, unless the Participant consents in
writing to an earlier distribution. Thus, if under the age
specified in Section 6.7, 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) The amount which a Participant or Beneficiary is
entitled to receive at any time and from time to time may be
paid, in the discretion of the Participant or Beneficiary, in
cash or in Employer Stock, or in any combination thereof,
provided, however, payment in Employer Stock may be limited to
the extent a Participant's Account balances are invested in whole
shares of such Employer Stock under Section 7.1(i), and the
Committee may require that all such Employer Stock be transferred
to such Participant or Beneficiary.
(e) 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 schedule 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 Section 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.
(f) Notwithstanding anything in Section 6.3 or any
other provision of this Plan to the contrary, with respect to the
amounts transferred to this Plan from the Concept Plan,
determined without regard to any earning or losses thereon
following the date of transfer, if a Participant's vested Account
balance exceeds $3,500, he may, with respect to the amount so
transferred, elect distribution under one, or any combination, of
the following methods; (i) by payment in a lump sum; or (ii) by
payment in monthly, quarterly or annual installments over a fixed
reasonable period of time, not exceeding the life expectancy of
the Participant or the joint life and last survivor expectancy of
the Participant and the Beneficiary. In the absence of an
election, the Committee will direct the Trustee to distribute the
amounts so transferred in a lump sum. The Committee shall create
and maintain records indicating the exact amounts transferred to
this Plan from the Concept Plan so that the provisions of the
preceding sentence may be applied. A Participant or Beneficiary
who qualifies to receive a distribution in the form of
installments may elect to receive an installment distribution in
the form of a nontransferable annuity contract. Under an
installment distribution, the Participant or Beneficiary may
elect to accelerate the payment of all, or any portion, of the
Participant's unpaid balance.
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 judgment 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:
(i) The surviving spouse of such Participant or,
if not living,
(ii) 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, Salary 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) Salary 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 Salary
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 balances, a
Participant may not withdraw any amounts from his or her Employer
Contribution Account.
Notwithstanding the foregoing, any Participant who has an account
balance in this Plan transferred from the Gelco Plan may, upon
attainment of age 59 1/2 years, withdraw all or a portion of the
amount transferred from the Gelco Plan (determined without regard
to earnings or losses thereon following the date of the
transfer), including amounts transferred to the Participant's
Employer Contributions Account. Any amounts withdrawn pursuant
to the preceding sentence shall be made in accordance with the
provisions of Section 6.11.
(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. Except as provided in
Section 6.5(e), distribution of withdrawals shall be made in a
lump sum within 45 days following the Valuation Date or Special
Valuation Date immediately following receipt by the Committee of
a properly completed application. Withdrawal distributions shall
be based on the value of the Participant's Account(s) as of the
Valuation Date or the Special Valuation Date occurring in the
same calendar month as the application is received, and subject
to the provisions of Section 6.6, may be made in the discretion
of the Participant in the form of cash, or in Employer Stock or
in any combination thereof, provided, however, payment in
Employer Stock shall be limited to the extent a Participant's
Account balances are invested in whole shares of such Employer
Stock under Section 7.1(i) and the Committee may require that all
such Employer Stock be transferred to such Participant or
Beneficiary.
(d) Distribution of Elective Deferrals (and earnings
thereon accrued as of December 31, 1988) 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 reasonably 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) Notwithstanding anything contained in Section
6.5(b) regarding the age of a 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 existence of any financial
hardship if such Participant satisfies all of the other terms and
conditions contained in this Section 6.5.
6.6 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.
6.7 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. If the Participant
has not yet terminated employment and has balances invested in
Employer Stock under the Common Stock Fund, the distribution of
such balances shall, to the maximum extent possible, be made in
whole shares of Employer Stock.
6.8 DISTRIBUTION REQUIREMENTS: (a) Elective
Deferrals, Qualified Non-elective Contributions, and Qualified
Matching Contributions and income allocable to each, must comply
with the distribution requirements under Section 401(k)(2)(B) of
the Code.
(b) Elective Deferrals, Qualified Non-elective
Contributions, and Qualified Matching 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:
(i) Termination of the Plan without the
establishment of another defined contribution plan.
(ii) 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.
(iii) 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.
(iv) The attainment of age 59 1/2 in the case of a
profit-sharing plan.
(v) The hardship of the Participant subject to
the provisions of Section 6.5(d) of the Plan.
All distributions that may be made pursuant to one or more of the
fore-going distributable events are subject to the spousal and
Participant consent requirements (if applicable) contained in
Sections 401(a)(11) and 417 of the Code.
6.9 LOANS TO PARTICIPANTS: (a) The Committee may, in
its sole discretion, and upon such terms and conditions as it may
require, direct the Trustee to loan a Participant an amount
which, when added to all loans outstanding under the Plan and
made by the Participant does not exceed the allowable portion, as
determined under the following table, of the Participant's total
Account balances:
Maximum Loan
(Allowable Portion of Total
Total Vested Balance Account Balances)
-------------------- ----------------------------
0 - 999 0%
$1,000 or more 50%, but not to exceed
$50,000
(b) If the Participant participates in another plan or
plans by the Employer or any of the members of the controlled
group of corporations of which the Employer is a part which
allow(s) loans, the maximum loan limits reflected in the above
table apply in the aggregate to the Plan and any such other plan
or plans less any Matching Contributions made under the Plan.
(c) For purposes of this Section, "Total Account
Balance" means the total dollar value, as of the Valuation Date
or Special Valuation Date coinciding with or immediately
preceding the date of the loan, of the Participant's Accounts.
(d) Although used in determining the Total Account
Balances, the Employer Contribution Account balance is not
available for loan.
(e) All loans shall be subject to the approval of the
Committee which shall investigate each application for a loan.
(f) In addition to such rules and regulations as the
Committee may adopt, all loans shall comply the following terms
and conditions:
1. An application for a loan by a Participant shall be made in
writing to the Committee whose action thereon shall be final.
2. The period of repayment for any loan shall be arrived at by
mutual agreement between the Committee and the borrower, but such
period in no event shall exceed five years, except that such
five-year repayment rule shall not apply to any loan used for the
purpose of establishing or preserving a home which is the
Participant's principal residence.
3. Each loan shall be made against collateral being the
assignment of the borrower's entire right, title and interest in
and to the Trust Fund, supported by the borrower's collateral
promissory note for the amount of the loan, including interest,
payable to the order of the Trustee.
4. Each loan shall bear interest at a rate to be fixed by the
Committee and, in determining the interest rate, the Committee
shall take into consideration interest rates currently being
charged. The Committee shall not discriminate among Participants
in the matter of interest rates; but loans granted at different
times may bear different interest rates if, in the opinion of the
Committee, the difference in rates is justified by a change in
general economic conditions. Each loan shall bear interest at an
effective annual percentage rate which is not less than the prime
rate currently being charged to the Trustee in its banking
business, provided that such rate does not violate any applicable
usury laws.
5. No distribution, other than a hardship withdrawal which is
approved by the Committee pursuant to Section 6.5 shall be made
to any Participant or to a Beneficiary of any such Participant
unless and until all unpaid loans, including accrued interest
thereon, have been repaid.
6. Notwithstanding anything contained herein to the contrary, a
Participant may not obtain a loan unless it is consented to by
his or her spouse 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.
6.10 ELIGIBLE ROLLOVER DISTRIBUTIONS: (a) This Section
applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this
Section, a distributee may elect, at the time and in the manner
prescribed by the Committee, to have any portion of an "eligible
rollover distribution" paid directly to an "eligible retirement
plan" specified by the "distributee" in the "direct rollover."
(b) For purposes of this Section, the following
definitions shall apply:
(i) "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 is required
under Section 401(a)(9) of the Code; and the portion of any
distribution that is not includable in gross income
(determined without regard to the exclusion of net
unrealized appreciation with respect to Employer
securities).
(ii) "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 that distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement
plan is an individual retirement account or individual
retirement annuity.
(iii) "Distributee" - A distributee includes an
Employee or former Employee. In addition, the Employee's or
former Employee's surviving spouse and the Employee's or
former Employee's spouse or former spouse who is the
alternate payee under a qualified domestic relations order,
as defined in Section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former spouse.
(iv) "Direct rollover" - A direct rollover is a
payment by the Plan to the eligible retirement plan
specified by the distributee.
6.11 DISTRIBUTION OF ANDREWS BARTLETT PLAN AND GELCO
PLAN BALANCES: This Section 6.11 shall be applicable in place of
Sections 6.2, 6.3(a) and 6.3(b) of the Plan with respect to the
amounts transferred to this Plan from the Andrews Bartlett Plan
or the Gelco Plan, determined without regard to any earnings or
losses thereon, following the date of the transfer. The
Committee shall create and maintain records indicating the exact
amounts transferred to this Plan from the Andrews Bartlett Plan
and the Gelco Plan so that the provisions of this Section 6.11
may be applied to said amounts.
(a) Survivor Annuity for Married Participants:
Notwithstanding any Beneficiary designation made by the
Participant to the contrary, except as otherwise noted below, the
Participant's surviving spouse shall be deemed to be his
Beneficiary if the Participant (which term for purposes of this
Section includes former Participants) dies prior to his Benefit
Commencement Date. Subject to the Committee's right to direct
the payment of amounts less than $3,500.00 in a lump sum, the
death benefit payable to the Participant's surviving spouse as
Beneficiary shall be paid in the form of a survivor annuity
consisting of a monthly benefit for the spouse's life equal to
the amount that can be obtained by applying the entire balance of
the Participant's accounts toward the purchase of an annuity for
the life of the spouse. Under the terms of the annuity contract,
the surviving spouse must have the right to elect to commence
receiving payments immediately and the payments under the annuity
must commence no later than the dates specified in Section 6.7.
In lieu of the survivor annuity, the surviving spouse may elect
to receive payment of the Participant's accounts in any form
permitted in paragraph (j), below, as long as the election is
made before benefit payments begin.
(b) Waiver of Survivor Annuity; Revocation of Waiver:
The spouse will be deemed to be the Participant's Beneficiary and
the survivor annuity will be payable unless prior to his death
the Participant made a valid election to waive the survivor
annuity. If the Participant properly waives the survivor
annuity, the Participant may designate a Beneficiary other than
his spouse or may elect to have benefits payable to his spouse in
some form other than a survivor annuity. Any waiver shall be in
writing in a form acceptable to the Committee and shall clearly
indicate that the Participant is electing to waive payment of the
survivor annuity. A Participant may revoke an election to waive
the survivor annuity at any time before the commencement of
benefits without the consent of the Participant's spouse. The
number of revocations may not be limited.
(c) Spouse's consent to Waiver: An election to waive
the survivor annuity shall not be valid unless consented to by
the Participant's spouse. Such consent must be in writing, must
acknowledge the effect of the election and the spouse's consent
thereto, and must be witnessed by a notary public or a designated
representative of the Committee. The spouse may not consent to
the waiver of the survivor annuity generally, but rather must
consent to the waiver in favor of a benefit payable to a specific
designated Beneficiary. If the Participant later elects to
change the Beneficiary, the spouse's consent to the waiver of the
survivor annuity will be of no further force or effect and a new
consent will be required, unless the spouse's consent expressly
permits a change of the designation without the further consent
of the spouse.
No spousal election shall be required under this Section 6.11(c)
if the Committee determines, in its sole and absolute discretion,
that such consent cannot be obtained because the spouse cannot be
located or other circumstances exist that preclude the
Participant from obtaining such consent (to the degree permitted
under applicable regulations issued by the United States Treasury
Department). Any spousal consent given pursuant to this
paragraph or dispensed with pursuant to the preceding sentence
will be valid only with respect to the spouse who signs the
consent or with respect to whom the consent requirement is waived
by the Committee.
(d) Election Period: A Participant shall have the
right to make or revoke an election to waive payment of the
survivor annuity at any time during the period beginning on the
first day of the Plan Year in which the Participant attains the
age of 35 years and ending on the date of death of the
Participant. If the Participant separates from service prior to
the first day of the Plan Year in which he attains the age of
35, the election period shall begin on the date of the
Participant's separation from service with respect to amounts
allocated to the Participant as of his date of separation, any
contributions made by or on behalf of the Participant with
respect to service performed prior to his date of separation, and
earnings attributable to said amounts.
(e) Written Explanation: The Committee must provide a
written explanation of the survivor annuity to the Participant
within whichever of the following periods is applicable:
(1) If an individual becomes a Participant after
attaining age 32, the Committee must provide the
written explanation prior to the later of (1) the
last day of the Plan Year prior to the Plan Year in
which the Participant will attain age 35 or (2) a
reasonable period of time after the individual
becomes a Participant;
(2) If a Participant separates from employment prior to
receiving the written explanation called for by
this subparagraph (e), the written explanation will
be provided at the time of separation or within one
year thereafter;
(3) In all other cases, the written explanation will be
provided within the period beginning on the first
day of the Plan Year in which the Participant
attains the age of 32 years and ending on the last
day of the Plan Year prior to the Plan Year in
which the Participant attains the age of 35 years.
The written explanation shall describe (1) the terms and
conditions of the surviving annuity, (2) the Participant's right
to elect during the election period to waive the survivor
annuity, (3) the Participant's right to revoke such election
during the election period and the effect thereof, (4) the
effect of such election or revocation, and (5) the right of the
Participant's spouse to consent to the election. The survivor
annuity payable to a surviving spouse shall not terminate upon
remarriage of the spouse.
(f) Payments to Other Beneficiaries: The Beneficiary
of an unmarried Participant, or of a married Participant who has
made a valid election to waive the survivor annuity, or who dies
prior to his Benefit Commencement Date shall be entitled to full
distribution of all amounts credited to the Participant's
accounts as of the date of the Participant's death. Such amounts
shall be distributed in one of the optional forms of benefit
described in paragraph (j), below, as selected in a written
instrument delivered to the Committee by the Beneficiary.
(g) Spousal Consent to Beneficiary Designations: If a
Participant is married at the time a Beneficiary designation is
made, the designation will be ineffective unless the
Participant's spouse consents thereto in writing in a form
acceptable to the Committee. The Committee shall adopt such
rules as it deems appropriate concerning such consents, including
rules waiving the consent requirement in appropriate
circumstances.
(h) Death of Participants Receiving Benefits: In the
event that a former Participant shall die after his Benefit
Commencement Date but prior to the complete distribution of all
amounts to which such Participant is entitled under the
provisions of Article 6, the balance, if any, shall be
distributed to the Participant's spouse or designated Beneficiary
in accordance with the method of payment selected pursuant to the
provisions of paragraphs (i) and (j) below. The Committee may
require and rely upon such proof of death and the right of the
Participant's spouse or Beneficiary to receive benefits pursuant
to this Section as the Committee may reasonably determine, and
its determination of death and the right or such spouse or
Beneficiary to receive payment shall be binding and conclusive
upon all persons whomsoever.
(i) Standard Form of Payment: Subject to the
Committee's right to direct payment of benefits in the form of a
single lump-sum payment but despite any other provisions of this
Plan to the contrary, a Participant who is married on his Benefit
Commencement Date shall receive payment in the form of the
"qualified joint and survivor annuity", and an unmarried
Participant shall receive payment in the form of the "life
annuity" described below, unless, not later than the Benefit
Commencement Date, the Participant elects, in the manner
described hereinafter, to receive payment in another form
permitted by paragraph (j). If not waived, the "qualified joint
and survivor annuity" shall continue to the spouse during the
spouse's life at a rate equal to (A) 50% of the rate at which
such benefits were payable during the Participant's life, if the
amounts transferred originated in the Andrews Bartlett Plan, or
(B) 100% of the rate at which such benefits were payable during
the Participant's life, if the amounts transferred originated in
the Gelco Plan, whichever is applicable.
(j) Optional Methods of Payment: Subject to the
requirements of paragraph (i), immediately preceding,
distribution of benefits may be by means of any one or more of
the following methods:
(1) "Lump Sum" - a single lump sum payment.
(2) "Installment Payments" - by distribution in
substantially equal monthly, quarterly, semiannual, or annual
cash installments over a fixed period selected by the Participant
or Beneficiary that does not extend beyond the Participant's life
expectancy (or the life expectancy of the Participant and his
designated Beneficiary). Until such time as the Participant's
accounts are distributed in full, the Committee shall invest the
balance of the Participant's accounts in the Investment Funds
selected by the Participant in accordance with Article 7.
(3) "Life Annuity" - by the purchase from a legal
reserve life insurance company and delivery to the Participant or
Beneficiary of a single-premium nontransferable annuity contract
providing an annuity for the life of the Participant or
Beneficiary.
(4) "Qualified Joint and Survivor Annuity" - by the
purchase of a "qualified joint and survivor annuity" from a legal
reserve life insurance company with the Participant's account
balances. For this purpose, a "qualified joint and survivor" is
a single-premium nontransferable annuity contact providing an
annuity for the life of the Participant with a survivor annuity
for the life of the Participant's spouse's as contingent survivor
annuitant, under which the annuity payments for the spouse are
equal to either 50% or 100%, as selected by the Participant and
his spouse, of the amount of the annuity which is payable during
the joint lives of the Participant and spouse.
(5) "Purchase of or Providing an Annuity" - by purchase
and delivery to the Participant or Beneficiary of an annuity.
However, such annuity may not be in any form that will provide
for payments over a period extending beyond either the life of
the Participant (or the lives of the Participant and his
designated Beneficiary) or the life expectancy of the Participant
(or the joint life expectancy of the Participant and his
designated Beneficiary).
(k) Minimum Distribution and Incidental Benefit
Requirements: The distribution or a Participant's interest must
commence by the date determined pursuant to Section 6.7 (the
"required beginning date"). Unless the Participant's entire
interest is distributed to him by the required beginning date,
the distributions must by made over the life of the Participant,
over the life of the Participant and the Participant's designated
Beneficiary, over a period certain not extending beyond the life
expectancy of the Participant, or over a period certain not
extending beyond the joint life and last survivor life expectancy
of the Participant and the Participant's designated Beneficiary.
In addition, all benefit payment options shall be structured so
as to comply with the incidental benefit requirements of Section
401(a)(9)(G) of the Code and any regulations issued pursuant
thereto, which require, generally, that certain minimum amounts
be distributed to a Participant during each calendar year,
commencing with the calendar year in which the Participant's
required beginning date falls, in order to assure that only
"incidental" benefits are provided to a Participant's
beneficiaries. The provisions of this paragraph (k) shall
control over any conflicting provisions of this Plan. In
addition, all distributions made pursuant to the Plan shall
comply with any regulations issued by the United States Treasury
Department under Section 401(a)(9) of the Code, including any
regulations issued pursuant to Section 401(a)(9)(G), and such
regulations shall override and supersede any conflicting
provisions of this Section or any other Section of this Plan.
(l) Distributions of Small Amounts: - Notwithstanding
any provisions of this Plan to the contrary, the Committee, in
its sole discretion, may direct payment of benefits in a single
lump sum if the total amount distributable to the Participant
from all of his accounts does not exceed $3,500.00. No
distribution may be made pursuant to the preceding sentence after
the Benefit Commencement Date unless the Participant and the
Participant's spouse, if any, (or where the Participant has died,
his spouse alone) consent in writing to the distribution. All
distributions pursuant to this paragraph must be made no later
than the close of the second Plan Year following the Plan Year in
which Participant's employment is terminated.
(m) Benefits Elections; Waiver of Annuities: An
election by a married Participant to receive payment of benefits
in a form other than a qualified joint and survivor annuity and
an election by an unmarried Participant to receive payment in a
form other than life annuity shall be made in writing to the
Committee in the manner designated by the Committee and shall
clearly indicate that the Participant is electing to receive
benefits in a form other than a qualified joint and survivor
annuity or life annuity, as the case may be. No election by a
married Participant shall be valid unless consented to by the
Participant's spouse. Such consent must be in writing, must
acknowledge the effect of the election and the spouse's consent
thereto, and must be witnessed by a notary public or a designated
representative of the Committee. A spouse may not waive the
joint and survivor annuity generally but rather may waive the
joint and survivor annuity only in favor of a specific form of
benefit payment and, if the form of payment selected is other
than a lump-sum payment to the Participant, only in favor of a
specific Beneficiary or Beneficiaries. If the Participant later
elects to change the form in which his benefits are to be paid or
the designated Beneficiary, a new spousal consent will be
required unless the payment form selected by the Participant is a
qualified joint and survivor annuity. No spousal consent shall
be required if the Committee determines, in its sole and absolute
discretion, that the spouse cannot be located or other
circumstances exist that preclude the Participant from obtaining
such consent (as permitted under applicable regulations issued by
the United States Treasury Department). Any spousal consent
given pursuant to this Section or dispensed with pursuant to the
preceding sentence will be valid only with respect to the spouse
who signs the consent or with respect to whom the consent
requirement is waived by the Committee.
(n) Explanation of Options: At least 90 days before a
Participant's scheduled Benefit Commencement Date, the Committee
shall provide to the Participant a written explanation of (i) the
qualified joint and survivor annuity or, in the case of an
unmarried Participant, the life annuity, (ii) the Participant's
right to elect (during the election period) an optional form of
benefit described in Section 6.11(j), (iii) the Participant's
right to revoke such an election during the election period, (iv)
the effect of such an election or revocation on the Participant's
benefits, (v) the right of the Participant's spouse to consent to
the Participant's election of an optional form of benefit, and
(vi) the Participant's right to request an explanation of the
specific financial effect on the Participant's benefit of the
election of an optional form of benefit. If the Participant
requests additional information from the Committee, such
information shall be provided within 30 days of the date of such
request.
(o) Election Period: The election period shall begin
90 days prior to a Participant's Benefit Commencement Date and
end on such Benefit Commencement Date, unless the Participant has
requested additional information from the Committee, in which
case it shall end no earlier than 90 days after the date on which
such information is furnished. During the election period, any
election made pursuant to this Section 6.11 shall be revocable
without the consent of the Participant's spouse. The number of
elections and revocations of elections shall not be limited.
Upon expiration of the election period, any election made shall
be irrevocable and the Participant shall not be entitled to make
an election if no election has been made. Any such election
shall be made in writing to the Committee and shall clearly
indicate that the Participant is electing to receive benefits in
a form other than the qualified joint and survivor annuity
described above, or, in the case of an unmarried Participant, the
single life annuity described above.
(p) Life Expectancies: For purposes of this Plan, life
expectancies shall be calculated by use of the expected return
multiples specified in Table V and VI of 1.72-9 of the
regulations issued by the United States Treasury Department, and
in accordance with the rules and procedures specified in
regulations issued under Section 401(a)(9) of the Code, as such
Tables and regulations may be amended from time to time, or any
Tables or regulations subsequently issued in replacement of said
Tables or regulations. The life expectancy of a Participant and
his spouse, may be recalculated annually. The life expectancy of
any other individual's attained age on his birthday in the
relevant calendar year (as determined in accordance with
regulations issued pursuant to Section 401(a)(9) of the Code) and
such individual's life expectancy during any later calendar year
shall be the life expectancy as originally determined less the
number of calendar years that have elapsed since the calendar
year of the initial determination.
(q) Definitions: For purposes of this Section 6.11,
the following special definition shall apply:
(1) "Benefit Commencement Date" - the first day of the
first period for which an amount is payable to a
Participant as an annuity or, if the Participant
(with the consent of his spouse if the Participant
is married) has elected to receive benefit payments
in some form other than an annuity pursuant to
this Section 6.11, the first day on which all
events (including the passing of the day on which
benefit payments are scheduled to commence) have
occurred which entitle the Participant to receive
his first benefit payment from the Plan.
ARTICLE VII. - INVESTMENT OPTIONS, TRUST FUND
7.1 PARTICIPANT DIRECTED INDIVIDUAL ACCOUNT PLAN: This
Plan is intended to constitute a participant directed individual
account plan under Section 404(c) of ERISA. As such,
Participants shall be provided the opportunity to exercise
control over the investment of a portion of their Accounts under
the Plan and to choose from a broad range of investment
alternatives.
7.2 EMPLOYEE SELECTED INVESTMENT OPTIONS, INVESTMENT
FUNDS: (a) Each Participant shall designate, on a form supplied
by the Committee, signed by the Participant and delivered to the
Committee, the Investment Fund(s) established pursuant to
paragraph (b) below to which contributions made pursuant to
Sections 4.1(a), and 4.3 and 4.5, hereof, are to be invested.
(b) The Investment Funds into which Plan Participants
may direct the investment of their Accounts shall include the
following:
(i) A common stock fund, consisting of Employer Stock;
(ii) An equity fund or equity funds, consisting of
common stock and other equity securities, held
directly or indirectly;
(iii) A money market fund;
(iv) A bond fund, consisting of interest bearing
accounts, certificates of deposit, or bonds,
debentures and other evidences of indebtedness
issued by corporations and governmental units; and
(v) A fixed fund, consisting of "guaranteed" investment
contracts with insurance companies.
The available Investment Funds may be changed or
supplemented from time to time by action of the Committee.
(c) Following the Company's distribution of common
stock of GFC Financial Corporation ("GFCFC") to the Plan and the
Company's other stockholders, and the Committee's decision to
establish a new Investment Fund in connection with that
distribution, the new Investment Fund indicated below shall be
added to the list set forth in paragraph (b):
(i) A GFCFC Common Stock Fund consisting of GFCFC
common stock. This Investment Fund shall be
subject to the special rules in Section 7.8.
(d) Following the Company's distribution of Dial
Corporation Common Stock to the Plan and the Company's other
stockholders, the New Investment Fund indicated below shall be
added to the list set forth in paragraph (b), as supplemented by
paragraph (c):
(i) The Dial Corporation Common Stock Fund consists of
Dial Corporation Common Stock. This Investment
Fund shall be subject to the special rules in
Section 7.8A.
7.3 INVESTMENT ELECTIONS: (a) Each Participant may,
except as hereinafter provided, elect with respect to future
contributions to his Employee Contribution Account, Salary
Reduction Contribution Account and Vested Rollover Contribution
Account to have the aggregate contributions to such Account(s) be
invested in a single Fund, or he may direct that 10% increments
(or multiples of 10% increments), of such Accounts be invested in
such Funds as he shall desire.
(b) Each Participant may change his investment
directions in accordance with the provisions of Section 7.3(a) to
provide for the investment of future contributions among the
various Funds in 10% increments (or multiples of 10% increments),
as he shall desire. Any such change may be made in accordance
with procedures established by the Committee.
7.4 INVESTMENT TRANSFERS: Generally, a Participant may
transfer amounts between the Investment Funds in accordance with
procedures established by the Committee. The transfers shall be
made in accordance with Section 7.3 in 10% increments (or
multiples of 10% increments).
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
shares of Employer Stock, GFCFC Stock or Dial Corporation Common
Stock, the Committee shall use its reasonable best efforts to
cause each Participant (who has an Account allocated in whole or
in part to Employer Stock, GFCFC Stock or Dial Corporation Common
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 Participants of the terms of the Offer, the Committee
may include statements from the management of Viad Corp setting
forth its position with respect to the Offer. The giving of
instructions to the Trustee to tender shares of Employer Stock,
GFCFC Stock, or Dial Corporation Common Stock 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 Employer Stock, GFCFC
Stock or Dial Corporation Common Stock, as the case may be, 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 Employer Stock, GFCFC Stock or Dial Corporation
Common Stock 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 Employer Stock, GFCFC
Stock or Dial Corporation Common 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 Employer
Stock, GFCFC Stock or Dial Corporation Common Stock, and to
revoke any such instruction, to the extent permitted under the
terms of such vote. Such instruction or revocation thereof shall
apply to the total number of shares of Employer Stock, GFCFC
Stock or Dial Corporation Common Stock credited to the
Participant's Accounts, whether or not vested, as of the date
coinciding 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 the shares of Employer Stock, GFCFC Stock or
Dial Corporation Common Stock for which no instructions are
received shall be voted by the Trustee in a uniform manner as a
single block in accordance with the instructions received with
respect to a majority of such shares for which instruction is
received, unless the Trustee, in exercising its discretion as a
fiduciary with respect to the voting of such shares, determines
that the interest of Participants and Beneficiaries requires it
to vote in a different way. The Committee shall use its
reasonable best efforts to cause each Participant (whose Account
has allocated to it any shares of Employer Stock, GFCFC Stock or
Dial Corporation Common 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 Employer Stock, GFCFC Stock or Dial Corporation Common
Stock credited to his or her Account.
(b) Subsequent to a Participant's investment in any
Investment Fund other than one comprised of Employer Stock,
GFCFC Stock or Dial Corporation Common 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.
7.8 GFCFC COMMON STOCK FUND: (a) The Plan is
authorized to receive GFCFC common stock that is distributed to
it (i) when the Company distributes such stock to the Plan and
its other stockholders and (ii) from the Viad ESOP. In addition,
following the Plan's receipt of GFCFC Stock, the Committee may
institute a special program that allows Participants to retain
such stock in accordance with the rules set forth below.
(b) If the Committee chooses to implement a special
program for the retention of GFCFC Stock in this Plan, it shall
provide a special investment election to Participants within a
reasonable time after the Company's distribution of GFCFC Stock
to its stockholders. The timing shall be no later than 90 days
after such distribution of GFCFC Stock unless the satisfaction of
legally required preconditions for the election or other special
circumstances require a longer waiting period. In providing the
election, the Committee shall identify the GFCFC Stock that is
allocated to the Accounts of Participants, and shall allow all
Participants who remain in the employ of an Employer under this
Plan (excluding Participants who are employed by GFCFC or another
employer that participants in GFCFC's new qualified plans) to
make a one-time election to keep or dispose of all the GFCFC
Stock in their Account. This election may be coordinated with a
similar election relating to GFCFC Stock that is allocated to
such Participant's accounts in the Viad Corp Employees' Stock
Ownership Plan so that a single election to keep or dispose of
GFCFC Stock will apply to all of a Participant's GFCFC Stock in
both that Plan and this Plan. Effective May 1, 1994,
Participants may freely dispose of GFCFC Stock allocated to their
Accounts.
(c) For Participants who elect to dispose of GFCFC
Stock, the following investment rules shall apply.
(i) If such GFCFC Stock was in a Participant's Employer
Contribution Account, it shall be replaced with
Employer Stock (by means of either a sale and
reinvestment or an arm's-length exchange with a
person who is not a party in interest under ERISA
or a disqualified person under the Code) and
invested in the Common Stock Fund. Thereafter,
such Employer Stock in the Employer Contribution
Accounts of such Participants will be subject to
the Plan's normal rules requiring such investments
to remain in the Employer Stock, as provided in
Section 5.10(c), and to the Plan's normal rules for
making distributions of balances in the Employer
Contribution Account that are invested in this
manner.
(ii) If such GFCFC Stock was in a Participant's Employee
Contribution Account, Salary Reduction Contribution
Account, or Vested Rollover Contribution Account,
it shall be sold in an arm's-length transaction and
the proceeds shall be reinvested in available
Investment Funds according to the Participant's
most recent investment election for Elective
Deferrals and shall thereafter be subject to the
Plan's normal rules for investments and
distributions of balances in such Accounts.
(d) For Participants who elect to keep GFCFC Stock, it
shall be invested in the GFCFC Common Stock Fund and retained for
them in the GFCFC Stock Account until the time for distribution
under the rules of the Plan, or, if sooner, the time at which the
Participant decides to dispose of his GFCFC stock, provided,
however, that it may be converted to cash for the purpose of
making a loan in accordance with the special rules in Section
7.8(e) below. When a distribution is due from the GFCFC Common
Stock Fund following a Participant's termination of employment,
the usual rules of the Plan shall apply, except that the
Participant or Beneficiary shall be allowed to elect to receive
the distribution from such Investment Fund in the form of whole
shares of GFCFC common stock (plus cash in lieu of any fractional
share) instead of receiving it in cash. Except in the case of
stock dividends, stock splits, or nontaxable distributions with
respect to GFCFC Stock, no GFCFC Stock or other assets shall be
added to the GFCFC Common Stock Fund, and the dividends on GFCFC
common stock and any other earnings of the GFCFC Common Stock
Fund shall be reinvested in other investment funds as provided
below.
(i) If such GFCFC Stock is in a Participant's Employer
Contribution Account, the dividends on such stock
and any other earnings of the GFCFC Common Stock
Fund for such Account shall be used to acquire
Employer Stock by means of reinvestment in the
Common Stock Fund.
(ii) If such GFCFC Stock is in a Participant's Employee
Contribution Account, Salary Reduction Contribution
Account, or Vested Rollover Account, the dividends
on such stock and any other earnings of the GFCFC
Common Stock Fund for such Accounts shall be
reinvested in other Investment Funds according to
the Participant's most recent investment election
for Elective Deferrals.
(e) GFCFC Stock that is being retained in a
Participant's Employee Contribution Account, Salary Reduction
Contribution Account, or Vested Rollover Account (but not GFCFC
Stock that is being retained in a Participant's Employer
Contribution Account) can be liquidated to the extent necessary
to provide a loan to the Participant. For this purpose, the
Committee may establish uniform rules providing that such
liquidation will not occur unless all other Account balances and
investments that are available to provide the loan funds have
been used first.
(f) The Committee shall establish special rules and
accounting procedures as necessary to preserve any distribution
forms or other valuable rights that are protected by Code Section
411(d)(6) with respect to amounts attributable to assets
transferred directly to this Plan from the Viad Corp Employees'
Stock Ownership Plan, including, to the extent applicable, rules
requiring (i) the tracking of such amounts in special accounts,
and (ii) the preservation of the Code Section 401(a)(28) right of
diversification, the Code Section 4975(e)(7) right to receive
distributions in the form of Employer Stock, and the Code Section
409(o) right to receive a distribution that complies with certain
special timing requirements.
7.8A THE DIAL CORPORATION COMMON STOCK FUND: (a) The
Plan is authorized to receive The Dial Corporation common stock
that is distributed to it (i) when the Company distributes such
stock to the Plan and its other stockholders and (ii) pursuant to
Section 11.4 from the Viad ESOP. In addition, following the
Plan's receipt of Dial Corporation Common Stock, the Committee
may institute a special program that allows Participant's to
retain such stock in accordance with the rules set forth below.
(b) Participants may freely dispose of Dial Corporation
Common Stock allocated to their Accounts at the time and in the
manner permitted pursuant to this Article 7 subject to the
special rules set forth in this Section 7.8A.
(c) For Participant who elect to dispose of Dial
Corporation Common Stock, the following investment rules shall
apply:
If such Dial Corporation Common Stock was in a Participant's
Employer Contribution Account, or was transferred to this Plan
from the Viad ESOP pursuant to Section 11.4, it shall be replaced
with Employer Stock (by means of either a sale and reinvestment
or an arm's-length exchange with a person who is not a party in
interest under ERISA or a disqualified person under the Code) and
invested in the Common Stock Fund. Thereafter, such Employer
Stock in the Employer Contribution Accounts of such Participants
will be subject to the Plan's normal rules requiring such
investments to remain in the Employer Stock, as provided in
Section 5.10(c), and to the Plan's normal rules for making
distributions of balances in the Employer Contribution Account
that are invested in this manner.
If such Dial Corporation Common Stock was in a Participant's
Employee Contribution Account, Salary Reduction Contribution
Account, or Vested Rollover Contribution Account, it shall be
sold in an arms-length transaction and the proceeds shall be
reinvested in available Investment Funds according to the
Participant's most recent investment election for Elective
Deferrals and shall thereafter be subject to the Plan's normal
rules for investments and distributions of balances in such
Accounts.
(d) For Participants who elect to keep Dial Corporation
Common Stock, it shall be invested in the Dial Corporation Common
Stock Fund and retained for them in the Dial Corporation Stock
Account until the time for distribution under the rules of the
Plan, or, if sooner, the time at which the Participant decides to
dispose of his Dial Corporation Common Stock, provided, however,
that it may be converted to cash for the purpose of making a loan
in accordance with the special rules in Section 7.8A(e) below.
When a distribution is due from the Dial Corporation Common Stock
Fund following a Participant's termination of employment, the
usual rules of the Plan shall apply, except that the Participate
or Beneficiary shall be allowed to elect to receive the
distribution from such Investment Fund in the form of whole
shares of Dial Corporation Common Stock (plus cash in lieu of any
fractional share) instead of receiving it in cash. Except in the
case of stock dividends, stock splits, or nontaxable
distributions with respect to Dial Corporation Common Stock, no
Dial Corporation Common Stock or other assets shall be added to
the Dial Corporation Common Stock Fund, and the dividends on Dial
Corporation Common Stock and any other earnings of the Dial
Corporation Common Stock Fund shall be reinvested in other
investment funds as provided below.
If such Dial Corporation Common Stock is in a Participant's
Employer Contribution Account, or was transferred to this Plan
from the Viad ESOP pursuant to Section 11.4, the dividends on
such stock and any other earnings of the Dial Corporation Common
Stock Fund for such Account shall be used to acquire Employer
Stock by means of reinvestment in the Common Stock Fund.
If such Dial Corporation Common Stock is in a Participant's
Employee Contribution Account, Salary Reduction Contribution
Account, or Vested Rollover Account, the dividends on such stock
and any other earnings of the Dial Corporation Common Stock Fund
for such Accounts shall be reinvested in other Investment Funds
according to the Participant's most recent investment election
for Elective Deferrals.
(e) Dial Corporation Common Stock that is being
retained in a Participant's Employee Contribution Account, Salary
Reduction Contribution Account, or Vested Rollover Account (but
not Dial Corporation Common Stock that is being retained in a
Participant's Employer Contribution Account) can be liquidated to
the extent necessary to provide a loan to the Participant. For
this purpose, the Committee may establish uniform rules providing
that such liquidation will not occur unless all other Account
balances and investments that are available to provide the loan
funds have been used first.
7.9 EXERCISE OF CONTROL: (a) The Committee shall
provide each Participant with the opportunity to obtain
sufficient information to make informed decisions with regard to
investment alternatives available under the Plan, and incidents
of ownership appurtenant to such investments. The Committee
shall promulgate and distribute to Participants an explanation
that the Plan is intended to comply with Section 404(c) of ERISA
and any relief from fiduciary liability resulting therefrom, a
description of investment alternatives available under the Plan,
an explanation of the circumstances under which Participants may
give investment instructions and any limitations thereon, along
with all other information and explanations required under
Department of Labor Regulation Section 2550.404c-1(b)(2)(B)(1).
In addition, the Committee shall provide information to
Participants upon request as required by Department of Labor
Regulation Section 2550.404c-1(b)(2)(B)(2). Neither the
Employer, Committee, Trustee, nor any other individual associated
with the Plan or the Employer shall give investment advice to
Participants with respect to Plan investments. The providing of
information pursuant to this Article VII shall not in any way be
deemed to be the providing of investment advice, and shall in no
way obligate the Employer, Committee, Trustee or any other
individual associated with the Plan or the Employer to provide
any investment advice.
(b) The Committee, pursuant to uniform and
nondiscriminatory rules, may charge each Participant's Accounts
for the reasonable expenses of carrying out investment
instructions directly related to such Account, provided that each
Participant is periodically (not less than quarterly) informed of
such actual expenses incurred with respect to his or her
respective Accounts.
(c) The Committee shall decline to implement any
Participant instructions if the instruction is inconsistent with
any provisions of the Plan or Trust Agreement or any investment
direction policies adopted by the Committee from time to time.
The Committee also may decline to implement any Participant
instructions to the extent permitted by Department of Labor
regulations issued under Section 404(c) of ERISA. The Committee,
pursuant to uniform and nondiscriminatory rules, may promulgate
additional limitations on investment instruction consistent with
Section 404(c) of ERISA from time to time.
(d) A Participant shall be given the opportunity to
make independent investment directions. No Plan fiduciary shall
subject any Participant to improper influence with respect to any
investment decisions, and nor shall any Plan fiduciary conceal
any non-public facts regarding a Participant's Plan investment
unless disclosure is prohibited by law. Plan fiduciaries shall
remain completely neutral in all regards with respect to
Participant investment direction. A Plan fiduciary may not accept
investment instructions from a Participant known to be legally
incompetent, and any transactions with a fiduciary, otherwise
permitted under this Article VII and the uniform and
nondiscriminatory rules regarding investment direction
promulgated by the Committee, shall be fair and reasonable to the
Participant in accordance with Department of Labor Regulation
Section 404c-1(c)(3).
7.10 ADJUSTMENT OF ACCOUNTS: Adjustments pursuant to
Section 5.2 shall be made on a separate fund basis. Gains and
Income or losses attributable to each Investment Fund shall be
allocable strictly to the Investment Fund and Accounts invested
therein. Each Investment Fund shall be invested in accordance
with the provisions of the Plan and the Trust Agreement.
7.11 LIMITATION OF LIABILITY AND RESPONSIBILITY: The
Trustee, the Committee and the Employer shall not be liable for
acting in accordance with the directions of a Participant
pursuant to this Article VII or for failing to act in the absence
of any such direction. The Trustee, the Committee and the
Employer shall not be responsible for any loss resulting from any
direction made by a Participant and shall have no duty to review
any direction made by a Participant. The Trustee shall have no
obligation to consult with any Participant regarding the
propriety or advisability of any selection made by the
Participant.
7.12 FORMER PARTICIPANTS AND BENEFICIARIES: For
purposes of this Article VII, the term "Participant" shall be
deemed to include former Participants and the Beneficiaries of
any deceased Participants.
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 Viad Corp shall have the sole authority to
appoint and remove the Trustee. Viad Corp shall have the sole
authority to appoint and remove the Committee. The Board of
Directors of Viad Corp shall have the authority to amend or
terminate, in whole or in part, any provision of this Plan or the
Trust. The Chief Executive Officer of Viad Corp also shall have
the authority to amend any provision of this Plan or the Trust,
provided that such amendment does not materially increase the
cost of the Plan. Viad Corp 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 Viad Corp. 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 Chief Executive Officer of Viad Corp 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 Viad Corp (or a
benefits review committee appointed by it) whose decision shall
be final.
8.4 RECORDS AND REPORTS: Viad Corp (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 Viad Corp 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 construe and interpret the Plan, decide all
question of 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 requirement 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. The decision of the
Committee upon all matters within the scope of its authority
shall be binding and conclusive on all persons.
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, 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 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 a 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.
ARTICLE IX. - MISCELLANEOUS
9.1 NONGUARANTEE OF EMPLOYMENT: Nothing contained in
the 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 payment of
benefits as provided for the in 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 therefore 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.
ARTICLE X. - AMENDMENTS AND ACTION BY EMPLOYER
10.1 AMENDMENTS: Viad Corp 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 Viad Corp 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 VIAD CORP: Any action by Viad Corp
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.
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 Viad
Corp 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 MERGERS OR CONSOLIDATIONS
OF PLANS: 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:
(i) 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;
(ii) Resolutions of the Boards 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
(iii) Such other plan and trust are qualified under
Sections 401(a) and 501(a) of the Code.
Pursuant to this section and consistent with the agreement
between the Company and GFCFC, the Account balances and assets
for Participants who are covered by the GFC Financial Corporation
Capital Accumulation Plan shall be transferred to that plan
following the Company's distribution of GFCFC common stock to the
Plan and its other shareholders. In addition to the foregoing,
any merger, consolidation, or transfer of assets described in
this section shall comply with applicable requirements of Code
Section 411(d)(6) to preserve optional forms of benefits and
other valuable rights that are legally protected.
Effective as of January 1, 1995, the Andrews Bartlett Plan and
the Gelco Plan shall be merged with and into the Plan and all
Andrews Bartlett Plan and Gelco Plan assets shall be transferred
to the Plan. The Trustee and the Committee shall accept all
assets transferred from the Andrews Bartlett Plan and the Gelco
Plan. All amounts received from these Plans shall be credited to
the accounts established pursuant to this Plan in accordance with
Section 5.2(e) of this Plan. Following the merger, Participants
in this Plan will include Participants in the Andrews Bartlett
Plan and the Gelco Plan and such Participants shall accrue
benefits under the terms of this Plan. The Committee, the
Employer, and the Trustee do not guarantee the amounts
transferred pursuant to this Section in any way from loss or
depreciation.
Effective as of May 31, 1996, or as soon thereafter as
administratively feasible, the Giltspur Plan shall be merged with
and into the Plan and all Giltspur Plan assets shall be
transferred to the Plan. The Trustee and the Committee shall
accept all assets transferred from the Giltspur Plan. All
amounts received from the Giltspur Plan shall be credited to the
accounts established pursuant to this Plan in accordance with
Section 5.2(g) of this Plan. Following the merger, Participants
in this Plan will include Participant in the Giltspur Plan and
such Participants shall accrue benefits under the terms of this
Plan. The Committee, the Employer, and the Trustee do not
guarantee the amounts transferred pursuant to this Section in any
way from loss or depreciation.
Effective as of July 15, 1996, or as soon thereafter as
administratively feasible, the Concept Plan shall be merged with
and into the Plan and all Concept Plan assets shall be
transferred to the Plan. The Trustee and the Committee shall
accept all assets transferred from the Concept Plan. All amounts
received from the Concept Plan shall be credited to the accounts
established pursuant to this Plan in accordance with Section
5.2(f) of this Plan. Following their merger, Participants in
this Plan will include Participants in the Concept Plan and such
Participants shall accrue benefits under the terms of this Plan.
The Committee, the Employer, and the Trustee do not guarantee the
amounts transferred pursuant to this Section in any way from loss
or depreciation.
11.3 TRANSFER OF PLAN ASSETS TO THE DIAL CORPORATION
CAPITAL ACCUMULATION PLAN. Pursuant to the terms and provisions
of a Distribution Agreement entered into between the Company, The
Dial Corporation, and Exhibitgroup/Giltspur, Inc. (the
"Distribution Agreement"), the Company will spin-off The Dial
Corporation, a wholly owned subsidiary of the Company, by
distributing all of The Dial Corporation's Common Stock, par
value $.01 per share, to the Company's shareholders as of the
"Distribution Date" to be determined by the Company in accordance
with the Distribution Agreement. In accordance with the terms of
the Distribution Agreement, The Dial Corporation has established
The Dial Corporation Capital Accumulation Plan ("The Dial
Corporation Plan") to provide benefits for all "Consumer Products
Individuals" who, immediately prior to the "Cut-Off Date", were
participants in, or otherwise entitled to benefits under the
Plan. Pursuant to the terms of The Dial Corporation Plan,
"Consumer Products Employees" are credited with the service and
account balance credited or earned under this Plan as if such
service and account balance had originally been credited to such
Consumer Products Employees under The Dial Corporation Plan.
The Trustee of the Trust Fund shall transfer to the trustee
of The Dial Corporation Plan, cash, securities or other property
or a combination thereof, as reasonably determined and directed
by the Company, in an amount equal to the aggregate account
balances, as of the Transfer Effective Date, attributable to the
Consumer Products Individuals, plus the portion of any
unallocated contributions and trust earnings or losses
attributable to the Consumer Products Individuals. To the extent
practicable, such transfers shall be effected so as to preserve
investment elections of the Consumer Products Individuals.
The Transfer of assets from this Plan to The Dial
Corporation Plan shall take place (the "Transfer Effective Date")
as soon as practicable following the Distribution Date; provided,
however, that the Transfer Effective Date shall not occur until
the later of (1) the expiration of a thirty (30) day waiting
period following the filing of form 5310-A with the Internal
Revenue Service, if required, and (2) the earlier of (a) the
receipt of a favorable determination letter issued by the
Internal Revenue Service with respect to the qualification of The
Dial Corporation Capital Accumulation Plan or (b) the receipt by
the Company of an opinion by counsel reasonably satisfactory in
form and substance to the Company and The Dial Corporation to the
effect that such counsel believes that The Dial Corporation Plan
is qualified within the meaning of Section 401(a) of the Code.
The transfer of assets from this Plan to The Dial
Corporation Plan shall comply with the requirements of Section
414(l) of the Code and Section 11.2 of this Plan.
During the period from the Cut-Off Date through the date
assets are actually transferred to The Dial Corporation Plan from
this Plan (the "Interim Period"), the Company will cause benefits
that become payable to Consumer Products Individuals to be paid
from the Trust Fund. Records will be maintained to reflect
amounts paid on behalf of such individuals and the aggregate
amount so paid will reduce the amount transferred to The Dial
Corporation Plan as explained in the second paragraph of this
Section 11.3.
As of and after the Transfer Effective Date, neither the
Company nor this Plan shall be responsible or liable for the
payment of benefits to Consumer Products Individuals. From and
as of the Transfer Effective Date, Consumer Products Individuals
will be paid from The Dial Corporation Plan for any and all
account balances accrued under this Plan.
For purposes of this Section 11.3 the following terms shall
have the following specialized meanings:
"AFFILIATE" - with respect to any specific Person, a Person that
directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such
specified Person; provided, however, that no member of either
Group shall be deemed to be an Affiliate of any member of the
other Group.
"CONSUMER PRODUCTS BUSINESS" - all of the businesses conducted
immediately prior to the Distribution Date by any member of
either Group and reported by the Company in the "Consumer
Products" segment in the footnotes to its consolidated financial
statements (or which would have been reported had it been
conducted as of December 31, 1995) in the Annual Report on Form
10-K for the year ending December 31, 1995.
"CONSUMER PRODUCTS EMPLOYEE" - any individual who (1) immediately
prior to the Distribution Date is an officer or employee of any
member of either Group and (a) is primarily employed in the
Consumer Products Business or (b) will be an employee of the
Consumer Products Group immediately following the Distribution or
(2) immediately prior to the Distribution Date is not an officer
or employee of any member of either Group but at any time prior
to the Distribution Date was an officer or employee of any member
of either Group and throughout such period was primarily employed
in the Consumer Products Business.
"CONSUMER PRODUCTS GROUP" - The Dial Corporation and the Consumer
Products Subsidiaries.
"CONSUMER PRODUCTS INDIVIDUALS" - any individual who (1) is a
Consumer Products Employee or (2) is a beneficiary of any
individual specified in clause (1).
"CONSUMER PRODUCTS SUBSIDIARIES" - all of the corporations listed
on Schedule 1.01(d) of the Distribution Agreement. Such Schedule
is hereby incorporated by reference.
"CUT-OFF DATE" - the last day of the calendar month immediately
preceding the Distribution Date or, if such last day is less than
fourteen (14) days before the Distribution Date, the last day of
the next preceding calendar month.
"DIAL CORPORATION COMMON STOCK" - the common stock, par value
$.01 per share, of The Dial Corporation.
"DIAL GROUP" - the Company and it Affiliates, other than members
of the Consumer Products Group.
"DISTRIBUTION" - the distribution to holders of shares of Company
Stock to be effected pursuant to the Distribution Agreement on
the basis of one share of The Dial Corporation Common Stock for
each share of Company Stock held of record as of the Record Date.
"DISTRIBUTION DATE" - the date, to be determined by the Board of
Directors of the Company, or the Executive Committee thereof, as
of which the Distribution shall be effected.
"GROUP" - the Dial Group, or the Consumer Products Group.
"PERSON" - an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a
government or any department or agency thereof.
"RECORD DATE" - the date determined by the Board of Directors of
the Company, or the Executive Committee thereof, as the record
date for determining stockholders of the Company entitled to
receive the Distribution.
11.4 TRANSFER OF PLAN ASSETS FROM VIAD CORP EMPLOYEES'
STOCK OWNERSHIP PLAN. Effective as of the Distribution Date, or
as soon thereafter as administratively feasible (the "ESOP
Transfer Effective Date"), shares of Dial Corporation Common
Stock held by Dial Individuals in the Viad Corp Employees' Stock
Ownership Plan, as that plan may be renamed in the future (the
"ESOP"), will be transferred to this Plan. The Committee and the
Trustee are hereby authorized and directed to accept the transfer
of assets and liabilities from the ESOP, and in so doing accept
the liability to each Participant for the amounts transferred.
The Committee, the Employer, and the Trustee do not guarantee the
amounts transferred pursuant to this Section in any way from loss
or depreciation. The assets transferred to this Plan from the
ESOP shall be allocated to the Participants' Dial Corporation
Stock Account in this Plan. Participants may dispose of, or
retain, Dial Corporation Common Stock transferred to this Plan in
accordance with the provisions of Section 7.8A.
For purposes of this Section 11.4, the following terms shall
have the following specialized meanings:
"DIAL EMPLOYEE" - any individual who at any time prior to the
Distribution Date is or was an officer or employee of any member
of any Group, other than a Consumer Products Employee.
"DIAL INDIVIDUAL" - any individual who (1) is a Dial Employee,
(2) at any time prior to the Distribution Date is or was an
officer or employee of any Former Dial Business or (3) is a
beneficiary of any individual specified in clause (1).
"FORMER DIAL BUSINESS" - all of the businesses and operations (1)
heretofore but not currently conducted by any member of the Dial
Group or (2) currently or heretofore conducted by any former
Subsidiary of any such member.
"SUBSIDIARY" - with respect to any specified Person, any
corporation or other legal entity of which such Person or any of
its Subsidiaries controls or owns, directly or indirectly, more
than 50% of the stock or other equity interest entitled to vote
on the election of members to the board of directors or similar
governing body; provided, however, that for purposes of this
Section 11.4, (1) the Consumer Products Subsidiaries shall be
deemed to be Subsidiaries of The Dial Corporation and (2) the
Consumer Products Subsidiaries shall not be deemed to be
Subsidiaries of the Company or any of the Company's Subsidiaries.
The terms "Dial Corporation Common Stock", "Distribution",
"Distribution Date", "Consumer Products Employee", "Dial Group",
"Group", and "Person" shall be given the meaning ascribed to such
terms in Section 11.3 of the Plan.
ARTICLE XII. - PLAN TERMINATION
12.1 RIGHT TO TERMINATE: In accordance with the
procedures set forth in this Article, Viad Corp 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 Viad Corp 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.
ARTICLE XIII. - ADOPTION OF PLAN
13.1 ADOPTION AGREEMENT: (a) Subject to the approval of
Viad Corp 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. To the extent approved by
the Committee, each Affiliate may:
(i) Modify the definition of Eligible Employee
set forth in Section 2.2(d) hereof, with respect to its
Employees; and
(ii) Modify the definition of Compensation set
forth in Section 2.3(d), hereof, with respect of its
Employees.
Any such modification shall be reflected in the Adoption
Agreement and may be amended from time to time by a written
supplement to the Adoption Agreement with the approval of the
Committee. Each Employer may determine the level of Employer
contributions to be made by the Employer to the Employer
Contribution Accounts of its Eligible Employees in each Year.
(b) The Committee may prospectively require that all
provisions of the Plan be uniformly applied to an Employer, as
set forth in the Plan, notwithstanding any modification
provisions in an Adoption Agreement. Viad Corp 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.
Exhibit 5
May 16, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: Viad Corp Registration Statement on Form S-8
Viad Corp Capital Accumulation Plan
Gentlemen:
This opinion is delivered in connection with the
registration by Viad Corp, a Delaware corporation (the
"Corporation"), on Form S-8 (the "Registration Statement"), under
the Securities Act of 1933, as amended, for 1,200,000 shares of
the Corporation's Common Stock ("Common Stock"), together with
the associated preferred stock purchase rights ("Rights"),
issuable pursuant to Viad Corp Capital Accumulation Plan (the
"Plan").
In arriving at this opinion, I have examined such corporate
instruments, documents, statements and records of the Corporation
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
1,200,000 shares of Common Stock to be sold pursuant to the
Registration Statement, together with the associated Rights, when
issued and delivered by the Corporation in accordance with the
terms of the Plan, will be legally issued, fully paid and
nonassessable securities of the Corporation.
The provisions of the written documents constituting the
Plan are in compliance with the requirements of ERISA pertaining
to such provisions.
<PAGE>
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 regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ Peter J. Novak
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EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this
Registration Statement of Viad Corp on Form S-8 of our report
dated February 21, 1997, which report expresses an unqualified
opinion and includes an explanatory paragraph referring to the
Company's change in the method of accounting for impairment of
long-lived assets in 1995, appearing in the Annual Report on Form
10-K of Viad Corp for the year ended December 31, 1996, and of
our report dated June 7, 1996, appearing in the Annual Report on
Form 11-K of The Dial Companies Capital Accumulation Plan for the
year ended December 31, 1995, respectively.
We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ Deloitte & Touche
Deloitte & Touche LLP
Phoenix, Arizona
May 13, 1997
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