As filed with the Securities and Exchange Commission
on September 15, 1998
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 1,500,000 $23.46875 $35,203,125.00 $10,385.00
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 September 10, 1998, 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.
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, 1997.
(2) The Annual Report on Form 11-K filed by the Viad Corp
Capital Accumulation Plan for the year ended December 31, 1997.
(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 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, 1997, 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 its method of accounting for impairment
of long-lived assets in 1995) which is incorporated herein by
reference, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in
accounting and auditing.
The financial statements incorporated in this Registration
Statement by reference from the Plan's Annual Report on Form 11-K
for the year ended December 31, 1997, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been
so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe it
meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hot Springs,
and State of Virginia, on the 20th day of August, 1998.
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 Robert H. Bohannon and Richard C. Stephan, and each of them
as his or her 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, 8/20/98
President and Chief
Executive Officer
Principal Financial Officer
/s/ Ronald G. Nelson Vice President-Finance 8/25/98
and Treasurer
Principal Accounting Officer
/s/ Richard C. Stephan Vice President-Controller 8/25/98
Directors Date
/s/ Jess Hay 8/20/98
/s/ Judith K. Hofer 8/20/98
/s/ Jack F. Reichert 8/20/98
/s/ Linda Johnson Rice 8/20/98
/s/ Douglas L. Rock 8/20/98
/s/ John C. Tolleson 8/20/98
/s/ Timothy R. Wallace 8/20/98
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 25th day of August,
1998.
VIAD CORP CAPITAL ACCUMULATION
PLAN
By: /s/ C.D. Walling
Exhibit 4.3
VIAD CORP CAPITAL ACCUMULATION PLAN
RESTATED 6/15/94
NOVEMBER 7, 1997
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 1
Aggregate Limit 1
Annual Additions 1
Authorized Leave of Absence 2
Average Contribution Percentage 2
Beneficiary 2
CODA 2
Code 2
Committee 2
Compensation 3
Contribution Percentage 3
Contribution Percentage Amounts 3
Disability 3
Elective Deferrals 3
Eligible Employee 3
Eligible Participant 3
Employee 4
Employee Contribution 4
Employee Contribution Account 4
Employer 4
Employer Contribution Account 4
Employer Stock 4
Excess Aggregate Contributions 4
Excess Contribution 5
Excess Elective Deferrals 5
Effective Date 5
Entry Date 5
ERISA 5
Family Member 5
Fiduciaries 5
GFCFC Stock Account 5
Highly Compensated Employee 5
Income 6
Investment Fund(s) 6
Matching Contribution 6
Participant 7
Participation 7
Plan 7
Qualified Matching Contributions 7
Qualified Non-elective Contributions 7
Salary Contribution Account 7
Trust (or Trust Fund) 7
Trustee 7
Valuation Date 7
Vested Rollover Contribution Account 7
Year 7
Acquired Company 7
Andrews Bartlett 8
Andrews Bartlett Plan 8
Gelco 8
Gelco Plan 8
Concept 8
Concept Plan 8
Giltspur 8
Giltspur Plan 8
Dial Corporation Stock Account 8
Acquired Company 8
2.2 Construction 16
III Participation iii-
3.1 Participation 1
3.2 Termination of Employment 1
3.3 Transfers 1
3.4 Suspension 1
3.5 Transfer of Bargaining Unit Employees 2
IV Contributions iv-
4.1 Employer Contributions 1
4.2 Code Section 401(k) Salary Reduction 1
4.3 Employee Contributions 2
4.4 After-Tax Salary Deduction 2
4.5 Rollover Amount From Other Plans 3
V Allocations to Participant's Account v-
5.1 Individual Accounts 1
5.2 Account Adjustments 1
5.3 Actual Deferral Percentage Test 3
5.4 Average Contribution Percentage Test 4
5.5 Distribution of Excess Aggregate Contributions 5
5.6 Distribution of Excess Elective Deferrals 6
5.7 Distribution of Excess Contributions 7
5.8 Maximum Additions 7
5.9 Top-Heavy Provisions 9
5.10 Securities Law Requirements 11
VI Benefits vi-
6.1 Entitlement to Benefits 1
6.2 Death 1
6.3 Payment of Benefits 1
6.4 Designation of Beneficiary 2
6.5 Withdrawals 3
6.6 Debiting of Investment Funds 5
6.7 Required Distributions 5
6.8 Distribution Requirements 5
6.9 Loans to Participants 6
6.10 Eligible Rollover Distributions 7
6.11 Distribution of Andrews Bartlett Plan and
Gelco Plan Balances 8
VII Investment Options, Trust Fund vii-
7.1 Participant Directed Individual Account Plan 1
7.2 Employee Selected Investment Options 1
7.3 Investment Elections 2
7.4 Investment Transfers 2
7.5 Trust Fund 2
7.6 Tender Offers 2
7.7 Voting of Stock 2
7.8 GFCFC Common Stock Fund 3
7.8A The Dial Corporation Common Stock Fund 4
7.9 Exercise of Control 6
7.10 Adjustment of Accounts 7
7.11 Limitation of Liability And Responsibility 7
7.12 Former Participants And Beneficiaries 7
VIII Administration viii-
8.1 Allocation of Responsibility Among Fiduciaries
for Plan and Trust Administration 1
8.2 Appointment of Committee 1
8.3 Claims Procedure 1
8.4 Records and Reports 2
8.5 Other Committee Powers and Duties 2
8.6 Rules and Decisions 3
8.7 Committee Procedures 3
8.8 Authorization of Benefit Payments 3
8.9 Application and Forms for Benefits 3
8 10 Facility of Payment 3
8.11 Indemnification of the Committee 4
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 1
9.5 Compliance with Code Section 414(u) 1
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
11.2A Plan Merger or Consolidation 2
11.3 Transfer of Plan Assets to the Dial
Corporation Capital Accumulation Plan 3
11.4 Transfer of Plan Assets from the Viad Corp
Employees' Stock Ownership Plan 4
XII Plan Termination xii-
12.1 Right to Terminate 1
12.2 Partial Termination 1
12.3 Liquidation of the Trust Fund 1
XIII Adoption of Plan xiii-
13.1 Adoption Agreement 1
VIAD CORP CAPITAL ACCUMULATION PLAN
Article 1.- 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 Corp 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 portion of the
Plan Year beginning with the date the Participant was first
eligible to Participate (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 The 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(1)(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 41
9A(d)(3) of the Code, under a welfare benefit fund, as defined in
Section 41 9(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 5.8(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.
(i) 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(9)(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 "0BRA '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 portion of the Plan
Year beginning with the date the Participant was first eligible
to participate (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: The 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, 51.50 par value,
of The 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 ail 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, now known as The FINOVA Group Inc., ("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 550,000 (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 Ln 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: The 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) 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.
(tt) TRUSTEE: The corporation or individuals appointed
by the Board of Directors of Viad Corp to administer the Trust.
(uu) VALUATION DATE: Each business day of the Plan Year.
(vv) 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.
(ww) YEAR: The 12-month period commencing on January 1
and ending on December 31.
(xx) 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.
(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").
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. Except where otherwise
indicated by the context, any masculine or feminine term shall
also include the other gender, and the use of any term in the
singular or plural shall also include the opposite number.
ARTICLE III. - PARTICIPATION
3.l 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 any "eligibility
computation 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. For purposes of this
Section, the initial "eligibility computation period" is the
twelve consecutive month period commencing on the date on which
the Employee first performs an Hour of Service and the second and
subsequent "eligibility computation periods" are the twelve
consecutive month periods commencing on the anniversaries of said
date. 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 be credited with all Hours of Service
performed prior to his termination of employment. If a rehired
Eligible Employee was a Participant or had satisfied the
eligibility service requirements of this Section during his prior
period of employment and following his return he is otherwise
eligible to participate in the Plan, he shall commence
participation upon the later of his date of rehire or the date on
which he would have commenced participation if his employment had
not terminated. 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, ether 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.
Ln 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 Committee in the
exercise of its discretion, may direct that 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. 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.
Highly Compensated Employees may not elect to make Employee
Contributions.
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,
who has received a distribution from a profit sharing plan, stock
bonus plan or pension plan intended to "qualify" under Section 401
of the Code (the "Other Plan") may transfer such contribution to
the Trust Fund if such contribution would constitute, in the sole
and absolute discretion of the Comnmittee, a "rollover
contribution" within the meaning of the applicable provisions of
the Code. Additionally, a Participant may request, with the
approval of the Committee, that the Trustee accept a transfer from
the trustee of another qualiDed plan. Upon such approval, the
Trustee shall accept such transfer. The Committee may, in its
sole discretion decline to accept such transfer. For purposes of
this Plan, both a "rollover contribution" within the meaning of
the applicable provisions of the Code and a transfer initiated by
the Participant from another plan shall be referred to as a
"Rollover Contribution." If the Committee decides to grant a
Participant's request to make a Rollover Contribution, the
Participant may contribute to the Trust Fund cash or other
property acceptable to the Trustee to the extent of such
distribution. 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.
(b) Notwithstanding the foregoing, if an Employee had
deposited a distribution previously received from an Other Plan
into an individual retirement account ("I-A"), as defined in
Section 408 of the Code, he or she may transfer the amount of such
distribution, plus eamings 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 six separate Accounts, an
Employer Contribution Account, an Employee Contribution Account, a
Salary Reduction Contribution Account, a GFCFC Stock Account, a
Dial Corporation Stock 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.
Because Participants have a choice of Investment Funds, any
reference in this Plan to a Salary Reduction Contribution Account,
a Vested Rollover 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.
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 as of each business day
during the Plan Year in proportion to the balances in such
Accounts as adjusted to reflect and give appropriate weighting to
any receipt or distributions during the period, based on generally
acceptable principles of trust accounting agreed to by the
Committee, the Trustee, and the record keeper for the Plan and
consistently applied. Each valuation shall be based on the fair
market value of assets in the Trust Fund on the appropriate day.
(b) SALARY REDUCTION CONTRIBUTIONS: The Employer contributions
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 soon as
possible following receipt by the Trustee.
(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 soon as
possible following receipt by the Trustee.
(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 allocared 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 NonElective
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 Pian shall be allocated to the
Participant's Employer Contribution Account in this Plan.
(h) ADMINISTRATIVE FEES. One quarter of any per-participant
annual fees incurred by or charged by the Trustee to administer
the Accounts of a Participant who has terminated employment with
the Employer or a Beneficiary shall be charged directly to his
Account as of the last business day of each quarter. Such fees
will not be charged against the Accounts of Participants who
continue to be active Employees.
5.3 ACTUAL DEFERRAL PERCENTAGE TEST: Notwithstandina 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 vho are Highly Compensated Employees does not
exceed the ADP for Participants who are Non-highly
Compensated Empioyees 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 purpose$ 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 [vIatching 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(1;) 401(a)(4), or 41O(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 Pian 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 recluired 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 41O(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 suffcient 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 Eiective 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 submlt their claims in writing to the
Committee by March 15.
5.7 DISTRIBUTION OF EXCESS CONTRIBUTIONS: (a)
Nohvithstanding 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(9)(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 Quaiifed
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
Participants 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 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 resumed
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 resumed 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 resumed 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 durino the Year pursuant to this
Section, it will not participate in the allocation of the
l~rust 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 disgualification 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 41 5(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 41 5(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 41 5(c)(1)(A) of the
Code for such year, or (ii) the product of 1.4, multiplied by the
amount which may be taken into account under Section 415(c)(1)(B)
with respect to such Participants under the Plan for such year.
When the term "Annual Additions" is used in the context of other
defined contribution plans under this Section, it shall have the
same meaning as set forth in Section 2.1(f), hereof, but with
respect to Employer contributions and Employee contributions made
under such other plans. For purposes of this limitation, all
defined benefit plans of the Employers, whether or not terminated,
are to be treated as one defined benefit plan and all defined
contribution plans of the Employers, including the Plan whether or
not terminated, are to be treated as one defined contribution
plan. As such, annual benefits and Annual Additions of such plans
are to be aggregated for the purposes of determining the defined
benefit plan fraction and the defined contribution plan fraction.
The extent to which Annual Additions under the Plan shall be
reduced, as compared with the extent to which annual benefits or
Annual Additions under any defined benefit plans or any other
defined contribution plans shall be reduced in order to achieve
compliance with the limitations of Code Section 415 shall be
dependent on the provisions of such other plans. To the extent
any such other plan or plans provide for a reduction first in
benefits from or Annual Additions to such other plan or plans, the
necessary reductions shall be under such other plan or plans. To
the extent any such other plan or plans do not provide for a
reduction first in benefits from or Annual Additions to such other
plan or plans, the reduction in Annual Additions necessary to
achieve compliance with Code Section 415 shall be under the Pian.
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 5.8.
5.8 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 Saiary 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 Pian is part of a required aggregation
group (within the meaning of Section 41 6(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 ag`tregation 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 $150,000 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~/:,
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 he minimum top-heavy
contribution requirement.
5.10 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. 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").
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.
The Plan is intended to satisfy the revised Section 16 rules that
apply to transactions occurring on or after August 15, 1996.
Under these newly-issued rules, the Plan is designed to be a
"Tax-Conditioned" plan and is designed to comply with the exemption for
"Discretionary Transactions." Under these new rules, and
acquisition or disposition of Employer Stock held in the plan,
except for Discretionary Transactions, are exempt, provided that
the Plan satisfies the definition of a "qualified plan." Because
the Plan satisfies the coverage and participation requirements set
forth in Section 410 and 401(a)(26) of the Code (as the new
Section 16 rules require), the Plan will be deemed to be a
qualified plan under the new Section 16 rules. Even though
transactions under the Plan involving Employer Stock are generally
exempt under Section 16, Discretionary Transactions must
nevertheless satisfy certain timing requirements. A Discretionary
Transaction is any transaction under the Plan that (i) is at the
volition of a Plan Participant, (ii) is not made in connection
with the Participant's death, disability, retirement, or
termination of employment, (iii) is not required to be made
available to a Plan Participant pursuant to any provision of the
Code, and (iv) results in either an intra-plan transfer involving
Employer Stock, or a cash distribution funded by a volitional
disposition of Employer Stock. A Discretionary Transaction will
be exempt under the new Section 16 rules only if it is effected
pursuant to an election made at least six months following the
date ofd the most recent election that effects a Discretionary
Transaction that was an acquisition, if the transaction to be
exempted would be a disposition, or a disposition, if the
transaction to be exempted would be an acquisition. The Committee
has the authority to implement such timing restrictions for
Discretionary Transactions with respect to Section 16 Insiders.
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 Lnsiders 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. Except as provided in Section 6.3(c), hereof, payment
of benefits shall commence promptly after such termination of
employment.
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 eamings 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 other~vise payable, and
shall be made in accordance with the provisions of Section 6. l l.
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. Payment shall
commence promptly after the Participant's death, but the
Beneficiary shall not be entitled to receive such payment until
the Committee is reasonably satisfied that such Beneficiary is
othervvise 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 l80 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.l
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 reguire.
(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 effective date of distribution, and distributed as soon
as practicable following the separation from the service. If the
vested balance, in a Participant Account exceeds $3,500, or, for
Plan Years beginning after August 5, 1997, exceeds $5,000.00 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, or, for Plan Years beginning after August
5, 1997, $5,000, 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 ofthe Participant or Beneficiary, in cash or in
Employer Stock, or in any combination thereof, provided, however,
payment in Employer Stocl; 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. To the extent that a Participant's
Account is invested in stock of The FINOVA Group Inc., or The Dial
Corporation, the foregoing rules for Employer Stock shall be
applied as if such other stock was "Employer Stock".
(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. 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 eaming 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 designator 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 nor 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 eamings 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 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 effective date of their
withdrawal, 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. To the extent that a Participant's
Account is invested in stock of The FINOVA Group Inc., or The Dial
Corporation, the foregoing rules for Employer Stock shall be
applied as if such other stock was "Employer Stock".
(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, or board and room, 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 aRer 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 ofthe 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
Lnvestment 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. Notwithstanding the
provisions of this Section 6.7 to the contrary no distributions
shall be required under this section on or after January 1, 1998.
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. To the extent that a Participant's Account is
invested in stock of The FINOVA Group Inc., or The Dial
Corporation, the foregoing rules for Employer Stock shall be
applied as if such other stock; was "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
foregoing distributable events are subject to the spousal and
Participant consent requirements (if applicable) contained in
Sections 401(a)(11) and 417 of the Code.
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 Account
Total Vested Balance Balances)
- -------------------- -----------------------------------
O - 999 0%
$1,000 or more 50%, but not to exceed 550,000
(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 effective date of the loan, of
the Participant's Accounts.
(d) Although used in determining the Total Account Balances, the
Employer Contribution Account balance, and the Employer
Contribution subaccounts of the Dial Corporation and GFCFC Stock
Accounts balances, are not available for loan.
(e) Ali 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 acquiring or constructing 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
effectlve annual percenta~e 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 vvithdrawal 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.
7. Any costs incurred by or charged by the Trustee to establish,
process, or collect the loan shall be charged directly and solely
to the Participant and vvill be subtracted from the loan proceeds
unless otherwise mutually agreeable arrangements are made by the
Trustee and the Participant.
(g) Any costs incurred by or charged by the Trustee to establish,
process, or collect the loan shall be charged directly and solely
to the Participant and will be subtracted from the loan proceeds
unless otherwise mutually agreeable arrangements are made by the
Trustee and the Participant.
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 altemate payee under a 9ualified 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.ll 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 Comminee
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.l1 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 permined 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
Panicipant'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 eiects to change
the Beneficiary, the spouse's consent to the waiver of the
survivor annuity Will be of no funkier 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 Comminee 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 ofthe
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 conceming 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 Committees 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 follovving 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 viith
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
gualified 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
riaht 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
recluests additional information from the Committee, such
information shall be provided within 30 days ofthe 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 retum
multiples specified in Table V and VI of Section 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 altematives.
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.l(a), and 4.3, 4.4, and 4.5 hereof, are to be invested.
A Participant's Employer Contribution Account balance shall be
invested only in Employer Stock, and the Participant shall have no
choice of Lnvestment Funds with respect to such balance
(b) The Committee shall direct the Trustee to establish three (3)
or more Investment Funds. The Committee also may direct the
Trustee to change the number and type of Investment Funds made
available under the Plan from time to time, without the necessity
of Board action or Plan Amendment.
(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 hereinaRer 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 tne 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 resumed 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 fumished
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, ail 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 stocl; 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 Stocl; 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 7.2(a), 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 eamings 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 eamings 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 Stocl; 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 1
1.4 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:
(i) 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 7.2(a), 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 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.
(i) 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.
(ii) 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
altematives 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 altematives 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-l(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 25SO.404c-l(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 Comminee 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 regardin, 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 Offtcer 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 Pian, 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
responsibility with respect to the Plan as detailed in the Trust
Agreement executed by the Company and the Trustee. Each Fiduciary
warrants that any direction given, information fumished, 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.
Benefits will begin upon receipt of a written claim in the form
and manner prescribed by the Committee. If an Employee,
Participant, Beneficiary, or any other person is dissatisfied with
the determination of his benefits, eligibility, participation, or
any other right or interest in the Plan, such person may file a
written statement setting forth the basis of the claim with the
Committee in a manner prescribed by the Committee. In connection
with the detemmination of a claim, or in connection with review of
a denied claim, the claimant may examine this Plan and any other
pertinent documents generally available to Participants relating
to the claim and may submit comments in writing.
A written notice of the disposition of any such claim shall be
furnished to the claimant within thirty days after the claim is
filed with the Committee, provided that the Committee or its
designee may have an additional period to decide the claim if it
advises the claimant in writing of the need for an extension and
the date on which it expects to decide the claim. The notice of
the disposition of a claim shall refer, if appropriate, to
pertinent provisions of this Plan, shall set forth in writing the
reasons for denial of the claim if the claim is denied (including
references to any pertinent provisions of this Plan), and where
appropriate shall explain how the claimant can perfect the claim.
If the claim is denied, in whole or in part, the claimant shall
also be notified in writing that a review procedure is available.
Thereafter, within ninety days after receiving the vvritten notice
of the Committee's or its designee's disposition of the claim, the
claimant may request in writing, and shall be entitled to, a
review meeting with the Committee or its designee to present
reasons why the claim should be allowed. The claimant also may
submit a written statement of his claim and the reasons for
granting the claim. Such statement may be submitted in addition
to, or in lieu of, the review meeting with the Committee or its
designee. The Committee or its designee shall have the right to
request of, and receive from, a claimant such additional
information, documents, or other evidence as the Committee or it
designee may reasonable require. If the claimant does not request
a review meeting within ninety days after receiving vvritten
notice of the Committee's or its designee's disposition of the
claim, the claimant shall be deemed to have accepted the
Committee's or its designee's written disposition, unless the
claimant shall have been physically or mentally incapacitated so
as to be unable to request review within the ninety day period.
A decision on review shall be rendered in writing by the Committee
or its designee ordinarily not later than sixty days after review,
and a written copy of such decision shall be delivered to the
claimant. If special circumstances require an extension of the
ordinary period, the Committee or its designee shall so notify the
claimant. In any event, if a claim is not determined within one
hundred twenty days after submission for review, it shall be
deemed to be denied.
To the extend permitted by law, a decision on review by the
Committee or its designee shall be binding and conclusive upon all
persons whomever. To the extent permitted by law, completion of
the claims procedures described in this section shall be a
mandatory precondition that must be complied with prior to
commencing of a legal or equitable action in connection with the
Plan by a person claiming rights under the Plan or by another
person claiming rights through such a person. The Committee or
its designee, in its sole discretion, may waive those procedures
as a mandatory precondition to such an action.
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
ERJSA, other applicable law and govemmental regulations issued
thereunder relating to records of Participant's employment,
Account balances, notifications to Participants' and annual
reports to the Intemal 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 discretionary 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 ivlanaaer 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 asslst in the
adminlstration 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 fumished 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 fumished 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 malcing 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 permitted
by the Plan in accordance with Code Section 401(a)(13) and ERISA
Section 206(d), no benefit payable at any time under the Plan
shall be subject to the debts or liabilities of a Participant or
his or her Beneficiary, and any attempt to alienate, sell,
transfer, assign, pledge, or otherwise encumber any such benefit,
whether presently or thereafter payable, shall be void. Subject to
the foregoing exceptions, no benefit under the Plan shall be
subject in any manner to attachment, garnishment, or encumbrance
of any kind.
(b) In accordance with the procedures consistent with Code
section 414(p) that are established by the Committee (including
procedures requiring prompt notification of the affected
Participant and each potential alternate payee of the Plan's
receipt of a domestic relations order and its procedures for
determining the qualified status of such order), judicial orders
for purposes of enforcing family support obligations or pertaining
to domestic relations (which orders do not alter the amount,
timing or form of benefit other than to have it commence at the
earliest permissible date) shall be honored by the Plan if the
Committee determines that they constitute qualified domestic
relations orders within the meaning of Code section 414(p) and
ERISA section 206(d).
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.
9.5 COMPLIANCE WITH CODE SECTION 414(u):
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to
qualified military service will be provided in accordance with
Section 414(u) of the Code.
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 Pian 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 Giitspur Plan. All amounts
received from the Giltspur Plan shall bcredited 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 l5, 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.
11.2A PLAN MERGER OR CONSOLIDATION ON OR AFTER JANUARY 1,
1997. Subject to the restrictions noted in this Section, the
Employer reserves the right to merge or consolidate this Plan with
any other plan or to direct the Trustee to transfer the assets
held in the Trust Fund and/or the liabilities of this Plan to any
other plan or to accept a transfer of assets and liabilities from
any other plan, as long as such other plan is qualified within the
meaning of Section 40l (a) of the Code. In the event of the
merger or consolidation of this Plan and the Trust Fund with any
other plan, or a transfer of assets or liabilities to or from the
Trust Fund to or from any other plan, then each Participant shall
be entitled to a benefit immediately after such merger,
consolidation or transfer (determined as if the plan was then
terminated) that is equal to or greater than the benefit he would
have been entitled to receive immediately before such merger,
consolidation or transfer (if this Plan had then terminated) and
the determination of such benefit shall be made in the manner and
at the time prescribed in regulations issued under ERISA. In
connection with a plan merger, consolidation or transfer and upon
authorization by the Board of Directors of the Employer, the
Committee may, without the necessity of formally amending this
Plan each time, accept a transfer of assets and liabilities to
this Plan, or transfer assets and liabilities to another plan.
Following a transfer of assets and liabilities to this Plan from
any other plan (the "Transferring Plan"), the assets so
transferred shall be credited to the Accounts in this Plan that
most closely correspond, in the Committee's discretion, to the
accounts in the Transferring Plan. For example, amounts credited
to an account in the Transferring Plan to which Code Section
401(k) deferrals were credited would be credited to the Salary
Reduction Contribution Account in this Plan. The Committee, the
Employer and the Trustee do not guarantee the amounts transferred
to this Plan in accordance with this Section l1.2A in any way from
loss or depreciation. In addition to the foregoing, any merger,
consolidation or transfer of assets described in this Section
shall comply with the requirements of Code Section 4ll(d)(6) to
preserve optional forms of benefits and other rights that are
legally protected.
11.3 TRANSFER OF PLAN ASSETS TO THE DIAL CORPORATI0N
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
5.01 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 benefts 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 originaily 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(1) ofthe
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 0 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 vvith, 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 (l) 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 (l) is a
Consumer Products Employee or (2) is a beneficiary of any
individual specified in clause (l).
"Consumer Products Subsidiaries" - all of the corporations listed
on Schedule l.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 determiried by the Board of
Directors of the Company, or the Executive Comminee 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
govemment 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.
Ln addition to the foregoing, any merger, consolidation or
transfer of assets described in this section shall comply with
applicable requirements of Code Section 4ll(d)(6) to preserve
optional forms of benefits and other valuable rights that are
legally protected.
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
Ovvnership 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 follovv1ng terms shall
have the follovving 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 heresofore 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
goveming 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 distributron of assets under Section l
2.3 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 Afftliate 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 2.1(r) hereof, with respect to its Employees; and
(ii) Modify the definition of Compensation set forth in
Section 2.1(m), 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 and delegate
all authority to amend or terminate the Plan, and to appoint and
remove the Committee and Trustee, to Viad Corp.
Exhibit 5
September 10, 1998
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 1,500,000
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
1,500,000 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.
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
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Viad Corp on Form S-8 of our report
dated February 20, 1998 (which expresses an unqualified opinion
and includes an explanatory paragraph referring to the Company's
change in its 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, 1997, and of our report
dated June 12, 1998, appearing in the Annual Report on Form 11-K
of the Viad Corp Capital Accumulation Plan for the year ended
December 31, 1997, respectively.
We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Phoenix, Arizona
September 11, 1998
