<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 1996
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------------
GENERAL GROWTH PROPERTIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 42-1283895
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
55 WEST MONROE STREET, SUITE 3100, CHICAGO, ILLINOIS 60603
(Address of Principal Executive Offices) (Zip Code)
GENERAL GROWTH MANAGEMENT SAVINGS PLAN
(Full title of the plan)
MARSHALL E. EISENBERG, ESQ.
NEAL, GERBER & EISENBERG
TWO NORTH LASALLE STREET
SUITE 2200
CHICAGO, ILLINOIS 60602
(Name and address of agent for service)
312/269-8000
(Telephone number, including area code, of agent for service)
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------
Common Stock, par value $.10
per share 500,000 Shares (1) N/A $12,593,750 (2) $4,342.68 (2)
</TABLE>
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1. In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate amount of
interests to be offered and sold pursuant to the employee benefit plan
described herein.
2. Estimated solely for purposes of calculating the registration fee, in
accordance with Rule 457(h) based on the average of the high and low prices
of the Company's Common Stock reported on the New York Stock Exchange
composite tape on August 27, 1996.
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- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by General Growth Properties, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1995;
(b) All other reports that the Company has filed pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since December 31, 1995;
(c) The description of the Company's common stock, par value $.10 per
share (the "Common Stock") set forth under the caption "Description of
Registrant's Securities to be Registered" in the Company's Registration
Statement on Form 8-A (No. 1-11656) filed under the Exchange Act; and
(d) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective
amendment which indicates that all shares of Common Stock being offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Marshall E. Eisenberg, the Secretary of the Company, is a partner in the
law firm of Neal, Gerber & Eisenberg, which firm performs legal services for the
Company on a regular basis. Additionally, certain partners of, and attorneys
associated with, Neal, Gerber & Eisenberg beneficially own shares of Common
Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of Delaware, as amended (the "DGCL"), provides
for indemnification by the Company of its directors and officers. In addition,
the Amended and Restated Certificate of Incorporation, as amended and Bylaws, as
amended of the Company require the Company to indemnify any current or former
director or officer to the fullest extent permitted by the DGCL. The Company
maintains officers' and directors' liability insurance which insures against
liabilities that officers and directors of the Company may incur in such
capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index on page 5.
ITEM 9. UNDERTAKINGS.
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
the Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE> 3
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section 13(a) or
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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the DGCL, the Amended and Restated Certificate of Incorporation of
the Company, the Bylaws of the Company or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by the director, officer or controlling person of the Company
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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Chicago, State of Illinois, on August 28, 1996.
GENERAL GROWTH PROPERTIES, INC.
(Registrant)
MATTHEW BUCKSBAUM
By:
Matthew Bucksbaum
Chairman of the Board and Chief
Executive Officer
We, the undersigned officers and directors of General Growth Properties,
Inc., hereby severally constitute Matthew Bucksbaum, Robert Michaels and Bernard
Freibaum, and each of them singly, our true and lawful attorneys with full power
to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, any and all amendments, including post-effective
amendments, to this registration statement, and generally to do all such things
in our name and behalf in such capacities to enable General Growth Properties,
Inc. to comply with the applicable provisions of the Securities Act of 1933 and
all requirements of the Securities and Exchange Commission, and we hereby ratify
and confirm our signatures as they may be signed by our said attorneys, or any
of them, to any and all such amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on August 28, 1996, by the
following persons in the capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------- ------------------------------------------------------
<C> <S>
/s/ MATTHEW BUCKSBAUM Chairman of the Board, Chief Executive Officer and
- ------------------------------------- Director (Principal Executive Officer)
Matthew Bucksbaum
s/s ROBERT MICHAELS President and Director
- -------------------------------------
Robert Michaels
s/s JOHN BUCKSBAUM Executive Vice President and Director
- -------------------------------------
John Bucksbaum
s/s BERNARD FREIBAUM Executive Vice President and Chief Financial Officer
- ------------------------------------- (Principal Financial and Accounting Officer)
Bernard Freibaum
/s/ ANTHONY DOWNS Director
- -------------------------------------
Anthony Downs
Director
- -------------------------------------
Morris Mark
Director
- -------------------------------------
Beth Stewart
s/s A. LORNE WEIL Director
- -------------------------------------
A. Lorne Weil
</TABLE>
3
<PAGE> 5
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
Trustees (or other persons who administer the employee benefit plan) have duly
caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Minneapolis, State of
Minnesota, on August 29, 1996.
GENERAL GROWTH MANAGEMENT SAVINGS PLAN (THE
PLAN)
NORWEST BANK MINNESOTA
NATIONAL ASSOCIATION. TRUSTEE
By: G.S. Scalia, V.P.
Trustee
4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
FORM OF
EXHIBIT NUMBER DESCRIPTION OF DOCUMENT FILING
-------------- --------------------------------------------------------------- -------
<C> <S> <C>
4 General Growth Management
Savings Plan...................................................
5 Internal Revenue Service Determination
Letter dated October 26, 1994..................................
23.1 Consent of Coopers & Lybrand, L.L.P............................
23.2 Consent of Deloitte & Touche LLP...............................
23.3 Consent of Deloitte & Touche LLP...............................
24 Powers of Attorney
(included in signature pages)..................................
</TABLE>
5
<PAGE> 1
EXHIBIT 4
3-31-95
GENERAL GROWTH MANAGEMENT
SAVINGS PLAN
(AS AMENDED AND RESTATED EFFECTIVE APRIL 1, 1995)
<PAGE> 2
GENERAL GROWTH MANAGEMENT SAVINGS PLAN
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I GENERAL
Sec. 1.1 Name of Plan............................................................ 1
Sec. 1.2 Purpose................................................................. 1
Sec. 1.3 Effective Date.......................................................... 1
Sec. 1.4 Company................................................................. 1
Sec. 1.5 Participating Employers................................................. 1
Sec. 1.6 Construction and Applicable Law......................................... 1
Benefits Determined Under Provisions in Effect at Termination of
Sec. 1.7 Employment.............................................................. 1
Sec. 1.8 Effective Date of Document.............................................. 2
ARTICLE II MISCELLANEOUS DEFINITIONS
Sec. 2.1 Account................................................................. 3
Sec. 2.2 Active Participant...................................................... 3
Sec. 2.3 Affiliate............................................................... 3
Sec. 2.4 Beneficiary............................................................. 3
Sec. 2.5 Board................................................................... 3
Sec. 2.6 Code.................................................................... 3
Sec. 2.7 Common Control.......................................................... 3
Sec. 2.8 Earnings................................................................ 3
Sec. 2.9 ERISA................................................................... 4
Sec. 2.10 Family Member........................................................... 4
Sec. 2.11 Forfeitures............................................................. 4
Sec. 2.12 Fund.................................................................... 5
Sec. 2.13 Funding Agency.......................................................... 5
Sec. 2.14 Highly Compensated Employee............................................. 5
Sec. 2.15 Leased Employee......................................................... 6
Sec. 2.16 Named Fiduciary......................................................... 6
Sec. 2.17 Non-Highly Compensated Employee......................................... 6
Sec. 2.18 Normal Retirement Age................................................... 7
Sec. 2.19 Participant............................................................. 7
Sec. 2.20 Plan Year............................................................... 7
Sec. 2.21 Predecessor Employer.................................................... 7
Sec. 2.22 Qualified Employee...................................................... 7
Sec. 2.23 Successor Employer...................................................... 8
Sec. 2.24 Top-Heavy Plan.......................................................... 8
Sec. 2.25 Valuation Date.......................................................... 8
ARTICLE III SERVICE PROVISIONS
Sec. 3.1 Employment Commencement Date............................................ 9
Sec. 3.2 Termination of Employment............................................... 9
Sec. 3.3 Hours of Service........................................................ 9
Sec. 3.4 Eligibility Computation Period.......................................... 10
Sec. 3.5 Year of Eligibility Service............................................. 11
Sec. 3.6 Year of Vesting Service................................................. 11
Sec. 3.7 1-Year Break In Service................................................. 12
ARTICLE IV PLAN PARTICIPATION
Sec. 4.1 Entry Date.............................................................. 13
Sec. 4.2 Eligibility for Participation........................................... 13
Sec. 4.3 Duration of Participation............................................... 14
Sec. 4.4 No Guarantee of Employment.............................................. 14
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE V CONTRIBUTIONS
Sec. 5.1 Basic Contributions..................................................... 15
Sec. 5.2 Matching Contributions.................................................. 16
Sec. 5.3 Adjustment of Contributions Required by Code Section 401(k)............. 16
Sec. 5.4 Distribution of Excess Deferrals........................................ 19
Sec. 5.5 Adjustment of Contributions Required by Code Section 401(m)............. 20
Sec. 5.6 Multiple Use of the Alternative Limitations............................. 22
Sec. 5.7 Time of Contributions................................................... 23
Sec. 5.8 Allocations............................................................. 23
Sec. 5.9 Limitations on Contributions............................................ 23
ARTICLE VI LIMITATION ON ALLOCATIONS
Sec. 6.1 Limitation on Allocations............................................... 25
ARTICLE VII INDIVIDUAL ACCOUNTS
Sec. 7.1 Accounts for Participants............................................... 28
Sec. 7.2 Valuation Procedure..................................................... 28
Sec. 7.3 Investment of Accounts.................................................. 29
Sec. 7.4 Participant Statements.................................................. 30
Sec. 7.5 Rollover Accounts....................................................... 30
Sec. 7.6 Transfers from Other Plans.............................................. 31
ARTICLE VIII DESIGNATION OF BENEFICIARY
Sec. 8.1 Persons Eligible to Designate........................................... 32
Sec. 8.2 Special Requirements for Married Participants........................... 32
Sec. 8.3 Form and Method of Designation.......................................... 32
Sec. 8.4 No Effective Designation................................................ 32
Sec. 8.5 Successor Beneficiary................................................... 33
Sec. 8.6 Insurance Contract...................................................... 33
ARTICLE IX BENEFIT REQUIREMENTS
Sec. 9.1 Benefit on Retirement or Disability..................................... 34
Sec. 9.2 Other Termination of Employment......................................... 34
Sec. 9.3 Death................................................................... 36
Sec. 9.4 Withdrawals of Basic Contributions Before Termination of Employment..... 36
Withdrawals of Voluntary Contributions Before Termination of Employment.
Sec. 9.5 38
Sec. 9.6 Loans to Participants................................................... 38
ARTICLE X DISTRIBUTION OF BENEFITS
Sec. 10.1 Time and Method of Payment.............................................. 41
Sec. 10.2 Distribution In Cash Only............................................... 43
Sec. 10.3 Accounting Following Termination of Employment.......................... 43
Sec. 10.4 Reemployment............................................................ 43
Sec. 10.5 Source of Benefits...................................................... 43
Sec. 10.6 Incompetent Payee....................................................... 43
Sec. 10.7 Benefits May Not Be Assigned or Alienated............................... 44
Sec. 10.8 Payment of Taxes........................................................ 44
Sec. 10.9 Conditions Precedent.................................................... 44
Sec. 10.10 Company Directions to Funding Agency.................................... 44
Sec. 10.11 Effect on Unemployment Compensation..................................... 44
Sec. 10.12 Special Distribution Events............................................. 44
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE XI FUND
Sec. 11.1 Composition............................................................. 46
Sec. 11.2 Funding Agency.......................................................... 46
Sec. 11.3 Compensation and Expenses of Funding Agency............................. 46
Sec. 11.4 Funding Policy.......................................................... 46
Sec. 11.5 Securities and Property of Participating Employers...................... 46
Sec. 11.6 No Diversion............................................................ 47
ARTICLE XII ADMINISTRATION OF PLAN
Sec. 12.1 Administration by Company............................................... 48
Sec. 12.2 Certain Fiduciary Provisions............................................ 48
Sec. 12.3 Discrimination Prohibited............................................... 49
Sec. 12.4 Evidence................................................................ 49
Sec. 12.5 Correction of Errors.................................................... 49
Sec. 12.6 Records................................................................. 49
Sec. 12.7 General Fiduciary Standard.............................................. 49
Sec. 12.8 Prohibited Transactions................................................. 49
Sec. 12.9 Claims Procedure........................................................ 49
Sec. 12.10 Bonding................................................................. 50
Sec. 12.11 Waiver of Notice........................................................ 50
Sec. 12.12 Agent For Legal Process................................................. 50
Sec. 12.13 Indemnification......................................................... 50
ARTICLE XIII AMENDMENT, TERMINATION, MERGER
Sec. 13.1 Amendment............................................................... 51
Sec. 13.2 Permanent Discontinuance of Contributions............................... 51
Sec. 13.3 Termination............................................................. 51
Sec. 13.4 Partial Termination..................................................... 52
Sec. 13.5 Merger, Consolidation, or Transfer of Plan Assets....................... 52
Sec. 13.6 Deferral of Distributions............................................... 52
Sec. 13.7 Reorganizations of Participating Employers.............................. 52
Sec. 13.8 Discontinuance of Joint Participation of a Participating Employer....... 53
Sec. 13.9 Participating Employers Not Under Common Control........................ 53
ARTICLE XIV TOP-HEAVY PLAN PROVISIONS
Sec. 14.1 Key Employee Defined.................................................... 54
Sec. 14.2 Determination of Top-Heavy Status....................................... 54
Sec. 14.3 Minimum Contribution Requirement........................................ 56
Sec. 14.4 Vesting Schedule........................................................ 56
Participation under Defined Benefit Plan and Defined Contribution
Sec. 14.5 Plan.................................................................... 57
Sec. 14.6 Definition of Employer.................................................. 57
Sec. 14.7 Exception For Collective Bargaining Unit................................ 57
ARTICLE XV MISCELLANEOUS PROVISIONS
Sec. 15.1 Insurance Company Not Responsible for Validity of Plan.................. 58
Sec. 15.2 Headings................................................................ 58
Sec. 15.3 Capitalized Definitions................................................. 58
Sec. 15.4 Gender.................................................................. 58
Sec. 15.5 Use of Compounds of Word "Here"......................................... 58
Sec. 15.6 Construed as a Whole.................................................... 58
</TABLE>
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<PAGE> 5
GENERAL GROWTH MANAGEMENT
SAVINGS PLAN
ARTICLE I
GENERAL
SEC. 1.1 NAME OF PLAN. The name of the discretionary contribution profit
sharing plan set forth herein is General Growth Management Savings Plan. It is
sometimes herein referred to as the "Plan".
SEC. 1.2 PURPOSE. The Plan has been established so that eligible employees
may have an additional source of retirement income.
SEC. 1.3 EFFECTIVE DATE. The "Effective Date" of the Plan, the date as of
which the Plan was established as a separate Plan as a result of a spin-off of a
portion of the General Growth Associates' Savings Plan, is October 1, 1992. The
original effective date of the Plan was January 1, 1988.
SEC. 1.4 COMPANY. The "Company" is General Growth Management, Inc., a
Delaware corporation, and any Successor Employer thereof.
SEC. 1.5 PARTICIPATING EMPLOYERS. The Company is a Participating Employer
in the Plan. With the consent of the Company, any other employer may also become
a Participating Employer in the Plan effective as of the date specified by it in
its adoption of the Plan. Any Successor Employer to a Participating Employer
shall also be a Participating Employer in the Plan. The other Participating
Employers on April 1, 1995 are:
General Growth Management of California, Inc.
General Growth Management of Hawaii, Inc.
GG Management Company, Inc.
SEC. 1.6 CONSTRUCTION AND APPLICABLE LAW. The Plan is intended to meet the
requirements for qualification under section 401(a) of the Code and the
requirements applicable to qualified cash or deferred arrangements under section
401(k) of the Code. The Plan is also intended to be in full compliance with
applicable requirements of ERISA. The Plan shall be administered and construed
consistent with said intent. It shall also be construed and administered
according to the laws of the State of Minnesota to the extent that such laws are
not preempted by the laws of the United States of America. All controversies,
disputes, and claims arising hereunder shall be submitted to the United States
District Court for the District of Minnesota, except as otherwise provided in
any trust agreement entered into with a Funding Agency.
SEC. 1.7 BENEFITS DETERMINED UNDER PROVISIONS IN EFFECT AT TERMINATION OF
EMPLOYMENT. Except as may be specifically provided herein to the contrary,
benefits under the Plan attributable to service prior to a Participant's
Termination of Employment shall be determined and paid in accordance with the
provisions of the Plan as in effect as of the date the Termination of Employment
occurred unless he or she becomes an Active Participant after that date and such
active participation causes a contrary result under the provisions hereof.
However, the provisions of this document shall apply to any such Participant to
the extent necessary to maintain the qualified status of the Plan under Code
section 401(a) or to comply with the requirements of ERISA.
SEC. 1.8 EFFECTIVE DATE OF DOCUMENT. Unless a different date is specified
for some purpose in this document, the provisions of this Plan document are
generally effective as of April 1, 1995.
<PAGE> 6
ARTICLE II
MISCELLANEOUS DEFINITIONS
SEC. 2.1 ACCOUNT. "Account" means a Participant's or Beneficiary's
interest in the Fund of any of the types described in Sec. 7.1.
SEC. 2.2 ACTIVE PARTICIPANT. An employee is an "Active Participant" only
while he or she is both a Participant and a Qualified Employee.
SEC. 2.3 AFFILIATE. "Affiliate" means any trade or business entity under
Common Control with a Participating Employer, or under Common Control with a
Predecessor Employer while it is such.
SEC. 2.4 BENEFICIARY. "Beneficiary" means the person or persons designated
as such pursuant to the provisions of Article VIII.
SEC. 2.5 BOARD. The "Board" is the board of directors of the Company, and
includes any executive committee thereof authorized to act for said board of
directors.
SEC. 2.6 CODE. "Code" means the Internal Revenue Code of 1986 as from time
to time amended.
SEC. 2.7 COMMON CONTROL. A trade or business entity (whether a
corporation, partnership, sole proprietorship or otherwise) is under "Common
Control" with another trade or business entity (i) if both entities are
corporations which are members of a controlled group of corporations as defined
in Code section 414(b), or (ii) if both entities are trades or businesses
(whether or not incorporated) which are under common control as defined in Code
section 414(c), or (iii) if both entities are members of an affiliated service
group as defined in Code section 414(m), or (iv) if both entities are required
to be aggregated pursuant to regulations under Code section 414(o). Service for
all entities under Common Control shall be treated as service for a single
employer to the extent required by the Code; provided, however, that an
individual shall not be a Qualified Employee by reason of this section. In
applying the first sentence of this section for purposes of Article VI, the
provisions of subsections (b) and (c) of section 414 of the Code are deemed to
be modified as provided in Code section 415(h).
SEC. 2.8 EARNINGS. "Earnings" of a Participant from a Participating
Employer for a Plan Year means the amount determined by the Participating
Employer and reported to the Company to be the total compensation paid to the
Participant by the Participating Employer during such Plan Year for service as
an Active Participant, subject to the following:
(a) Any compensation paid prior to the date as of which an individual
becomes a Participant in this Plan shall be disregarded.
(b) Earnings include Basic Contributions to this Plan and any
contributions made by salary reduction to any other plan which meets the
requirements of Code sections 125, 401(k), 402(h)(1)(B), or 403(b),
whether or not such contributions are actually excludable from the
Participant's gross income for federal income tax purposes. However, for
purposes of Sec. 5.3, "net Earnings" means Earnings determined after
deduction of any salary reduction contributions described in the
previous sentence. Earnings do not include the Matching Contributions to
this Plan.
(c) Allowances or reimbursements for expenses, severance pay, payments or
contributions to or for the benefit of the employee under any other
deferred compensation, pension, profit sharing, insurance, or other
employee benefit plan, stock options, stock appreciation rights or cash
payments in lieu thereof, merchandise or service discounts, non-cash
employee awards, benefits in the form of property or the use of
property, earnings payable in a form other than cash, or other similar
fringe benefits shall not be included in computing Earnings, except as
provided in subsection (b) or to the extent such amounts are required to
be included in determining the employee's regular rate of pay under the
Federal Fair Labor Standards Act for purposes of computing overtime pay
thereunder.
(d) Earnings of a Participant for any Plan Year shall not exceed $150,000,
adjusted for each Plan Year to take into account any cost of living
increase provided for that year in accordance with regulations
prescribed by the Secretary of the Treasury, subject to the provisions
of Sec. 2.10(b) in the case of certain Family Members. The dollar
increase in effect on January 1 of any calendar year shall apply
2
<PAGE> 7
to Plan Years beginning in that calendar year. If a Plan Year is shorter
than 12 months, the limit under this subsection for that year shall be
multiplied by a fraction, the numerator of which is the number of months
in the short Plan Year and the denominator of which is 12.
SEC. 2.9 ERISA. "ERISA" means the Employee Retirement Income Security Act
of 1974 as from time to time amended.
SEC. 2.10 FAMILY MEMBER. "Family Member" means an individual described in
Code section 414(q)(6) with respect to a Highly Compensated Employee who is a
more than 5-percent owner or is among the 10 Highly Compensated Employees paid
the greatest compensation. Family Members include the Highly Compensated
Employee, his or her spouse and lineal ascendants or descendants, and the
spouses of such lineal ascendants or descendants. Legal adoptions shall be taken
into account and treated as blood relations for purposes of determining lineal
ascendants and descendants.
(a) An individual who qualifies as a Family Member on any day of a Plan
Year will be treated as a Family Member for the entire Plan Year.
(b) For purposes of applying the dollar limit on Earnings under Sec.
2.8(d), any Participant who is the spouse of a Highly Compensated
Employee who is a more than 5-percent owner or is among the 10 Highly
Compensated Employees paid the greatest compensation and any of the
lineal descendants of such a Highly Compensated Employee who have not
attained age 19 before the end of the Plan Year shall not be treated as
a separate Participant, and any Earnings of the Family Member shall be
treated as Earnings of the Highly Compensated Employee. If the dollar
limit is exceeded as a result of the preceding sentence, the limit shall
be prorated among the affected individuals in proportion to each such
individual's compensation determined prior to the application of the
preceding sentence (except for purposes of determining the portion of
compensation up to the integration level if the Plan provides for
permitted disparity). The dollar limit shall be applied separately to
any other Family Member.
SEC. 2.11 FORFEITURES. "Forfeitures" means that part of the Fund so
recognized under Sec. 9.2(b)(2).
SEC. 2.12 FUND. "Fund" means the aggregate of assets described in Sec.
11.1.
SEC. 2.13 FUNDING AGENCY. "Funding Agency" is a trustee or trustees or an
insurance company appointed and acting from time to time in accordance with the
provisions of Sec. 11.2 for the purpose of holding, investing, and disbursing
all or a part of the Fund.
SEC. 2.14 HIGHLY COMPENSATED EMPLOYEE. "Highly Compensated Employee" for
any Plan Year means an individual described as such in Code section 414(q).
(a) Unless otherwise provided in Code section 414(q), each employee who
meets one of the following requirements is a "Highly Compensated
Employee":
(1) The employee at any time during the current or prior Plan Year was
a more than 5-percent owner as defined in Code section 414(q)(3).
(2) The employee received Compensation from the employer in excess of
$75,000 for the prior Plan Year.
(3) The employee both received Compensation from the employer in excess
of $50,000 for the prior Plan Year and was in the top 20 percent of
employees of the employer who performed services for the employer
in such prior Plan Year, when ranked on the basis of Compensation
paid during the Plan Year. For purposes of determining the top 20
percent of employees under Code section 414(q)(8), any non-resident
aliens who receive no earned income from the employer which
constitutes income from sources within the United States shall be
disregarded.
(4) The employee was an officer of the employer receiving Compensation
in excess of $45,000 for the prior Plan Year. However, no more than
the lesser of (i) 50 employees or (ii) the greater of 3 employees
or 10 percent of all employees of the employer shall be treated as
officers for purposes of this paragraph. If for any Plan Year no
officer meets the requirements of this
3
<PAGE> 8
paragraph (4), then the officer receiving the greatest Compensation
in the prior Plan Year shall be treated as a Highly Compensated
Employee.
(5) The employee would meet the requirements of paragraph (2), (3), or
(4) in the current Plan Year (but not in the prior Plan Year) and
is among the 100 employees paid the greatest Compensation by the
employer during the current Plan Year.
(6) The individual is a former employee who had a separation year prior
to the current Plan Year and such individual performed services for
the employer and was a Highly Compensated Employee for either (i)
such separation year, or (ii) any Plan Year ending on or after the
individual's 55th birthday. A "separation year" is the Plan Year in
which the individual separates from service with the employer. With
respect to an individual who separated from service before January
1, 1987, the individual will be included as a Highly Compensated
Employee only if the individual was a more than 5-percent owner or
received Compensation in excess of $50,000 during (i) the
employee's separation year (or the year preceding such separation
year), or (ii) any year ending on or after such individual's 55th
birthday (or the last year ending before such individual's 55th
birthday).
(7) Notwithstanding the foregoing, if the Participating Employers
maintained significant business activities and employed employees
in at least two significantly separate geographic areas at all
times during the Plan Year and satisfied such other conditions as
the Secretary may prescribe, the Company may elect to determine
whether an employee is a Highly Compensated Employee for that year
by substituting "$50,000" for "$75,000" in paragraph (2) and
disregarding paragraph (3).
(b) The dollar amounts specified in paragraphs (2), (3), and (4) of
subsection (a) shall be indexed for cost of living increases for each
calendar year after 1987 as provided in the applicable Treasury
regulations. For any Plan Year, the applicable dollar amount shall be
the dollar amount in effect for the calendar year in which the Plan Year
commences.
(c) For purposes of this section, "employer" includes all Participating
Employers and Affiliates, and "employee" includes Leased Employees.
(d) For purposes of this section, "Compensation" means the amount defined
as such under Sec. 6.1(f) plus the Basic Contributions to this Plan and
any elective salary reduction contributions made by or on behalf of the
employee to any other plan maintained by a Participating Employer or an
Affiliate which are not includable in the gross income of the employee
under Code sections 125, 401(k), 402(h)(1)(B), or 403(b).
SEC. 2.15 LEASED EMPLOYEE. "Leased Employee" means any person defined as
such by Code section 414(n). In general, a Leased Employee is any person who is
not otherwise an employee of a Participating Employer or an Affiliate (referred
to collectively as the "recipient") and who pursuant to an agreement between the
recipient and any other person ("leasing organization") has performed services
for the recipient (or for the recipient and related persons determined in
accordance with Code section 414(n)(6)) on a substantially full-time basis for a
period of at least one year and such services are of a type historically
performed by employees in the business field of the recipient. For purposes of
the requirements listed in Code section 414(n)(3), any Leased Employee shall be
treated as an employee of the recipient, and contributions or benefits provided
by the leasing organization which are attributable to services performed for the
recipient shall be treated as provided by the recipient. However, if Leased
Employees constitute less than 20% of the Participating Employers' non-highly
compensated work force within the meaning of Code section 414(n)(5)(C)(ii),
those Leased Employees covered by a plan described in Code section 414(n)(5)
shall be disregarded. Notwithstanding the foregoing, no Leased Employee shall be
a Qualified Employee or a Participant in this Plan.
SEC. 2.16 NAMED FIDUCIARY. The Company is a "Named Fiduciary" for purposes
of ERISA with authority to control or manage the operation and administration of
the Plan, including control or management of the assets of the Plan. Other
persons are also Named Fiduciaries under ERISA if so provided thereunder or if
so identified by the Company, by action of the Board. Such other person or
persons shall have such authority
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to control or manage the operation and administration of the Plan, including
control or management of the assets of the Plan, as may be provided by ERISA or
as may be allocated by the Company, by action of the Board.
SEC. 2.17 NON-HIGHLY COMPENSATED EMPLOYEE. "Non-Highly Compensated
Employee" means an employee of the Participating Employers who is neither a
Highly Compensated Employee nor a Family Member.
SEC. 2.18 NORMAL RETIREMENT AGE. "Normal Retirement Age" is age 60.
SEC. 2.19 PARTICIPANT. A "Participant" is an individual described as such
in Article IV.
SEC. 2.20 PLAN YEAR. Commencing January 1, 1993, the "Plan Year" is the
12-consecutive-month period commencing on each January 1st. Prior to October 1,
1992, the Plan Year was the 12-consecutive-month period commencing on each
October 1st. The period from October 1, 1992 to December 31, 1992 was a short
Plan Year.
SEC. 2.21 PREDECESSOR EMPLOYER. Any corporation, partnership, firm, or
individual, a substantial part of the assets and employees of which are acquired
by a successor is a "Predecessor Employer" if named in this section, subject to
any conditions and limitations with respect thereto imposed by this section;
provided, however, that any such corporation, partnership, firm, or individual
may be named as a Predecessor Employer only if all of its employees who at the
time of the acquisition become employees of the successor and Participants
hereunder are treated uniformly, the use of service with it does not produce
discrimination in favor of Highly Compensated Employees, and there is no
duplication of benefits for such service. To be considered a Predecessor
Employer, the acquisition of assets and employees of a corporation, partnership,
firm, or individual must be by a Participating Employer, by an Affiliate, or by
another Predecessor Employer. Each employer that was covered by the General
Growth Associates' Savings Plan prior to October 1, 1992 shall be treated as a
Predecessor Employer for periods prior to that date, but only to the extent that
service with such employer was recognized by that Plan. Any other employer shall
be a Predecessor Employer if so required by regulations prescribed by the
Secretary of the Treasury.
SEC. 2.22 QUALIFIED EMPLOYEE. "Qualified Employee" means any employee of a
Participating Employer, subject to the following:
(a) An employee is not a Qualified Employee prior to the date as of which
his or her employer becomes a Participating Employer.
(b) A nonresident alien within the meaning of Code section 7701(b)(1)(B)
while not receiving earned income (within the meaning of Code section
911(d)(2)) from a Participating Employer which constitutes income from
sources within the United States (within the meaning of Code section
861(a)(3)) is not a Qualified Employee.
(c) An employee is not a Qualified Employee unless his or her services are
performed within the continental United States (including Alaska) or
Hawaii, or the principal base of operations to which the employee
frequently returns is within the continental United States (including
Alaska) or Hawaii.
(d) Eligibility of employees in a collective bargaining unit to
participate in the Plan is subject to negotiations with the
representative of that unit. During any period that an employee is
covered by the provisions of a collective bargaining agreement between a
Participating Employer and such representative, the employee shall not
be considered a Qualified Employee for purposes of this Plan unless such
agreement expressly so provides. For purposes of this section only, such
an agreement shall be deemed to continue after its formal expiration
during collective bargaining negotiations pending the execution of a new
agreement.
(e) An employee shall be deemed to be a Qualified Employee during a period
of absence from active service which does not result from a Termination
of Employment, provided he or she is a Qualified Employee at the
commencement of such period of absence.
SEC. 2.23 SUCCESSOR EMPLOYER. A "Successor Employer" is any entity that
succeeds to the business of a Participating Employer through merger,
consolidation, acquisition of all or substantially all of its assets, or
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any other means and which elects before or within a reasonable time after such
succession, by appropriate action evidenced in writing, to continue the Plan;
provided, however, that in the case of such succession with respect to any
Participating Employer other than the Company, the acquiring entity shall be a
Successor Employer only if consent thereto is granted by the Company, by action
of the Board or a duly authorized officer.
SEC. 2.24 TOP-HEAVY PLAN. "Top-Heavy Plan" is defined in Sec. 14.2(a).
SEC. 2.25 VALUATION DATE. "Valuation Date" means the date on which the
Fund and Accounts are valued as provided in Article VII. Each of the following
is a Valuation Date:
(a) April 30, May 31 and June 30, 1995, and each business day after June
30, 1995.
(b) Such other day, as designated by the Company in written notice to the
Funding Agency, as the Company may consider necessary or advisable to
provide for the orderly and equitable administration of the Plan.
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ARTICLE III
SERVICE PROVISIONS
SEC. 3.1 EMPLOYMENT COMMENCEMENT DATE. "Employment Commencement Date"
means the date on which an employee first performs an Hour of Service for a
Participating Employer (whether before or after the Participating Employer
becomes such), an Affiliate, or a Predecessor Employer. The date on which an
employee first performs an Hour of Service after a 1-Year Break in Service is
also an "Employment Commencement Date".
SEC. 3.2 TERMINATION OF EMPLOYMENT. The "Termination of Employment" of an
employee for purposes of the Plan shall be deemed to occur upon resignation,
discharge, retirement, death, failure to return to active work at the end of an
authorized leave of absence or the authorized extension or extensions thereof,
failure to return to work when duly called following a temporary layoff, or upon
the happening of any other event or circumstance which, under the policy of a
Participating Employer, Affiliate, or Predecessor Employer as in effect from
time to time, results in the termination of the employer-employee relationship;
provided, however, that a Termination of Employment shall not be deemed to occur
upon a transfer between any combination of Participating Employers, Affiliates,
and Predecessor Employers. If the employer-employee relationship is terminated
because of the entry of an employee into the armed forces of the United States
and if the employee subsequently returns to employment with a Participating
Employer or an Affiliate under circumstances such that he or she has
reemployment rights under the provisions of any applicable federal law, for all
purposes of the Plan and only for such purposes the employee shall be deemed to
have been on authorized leave of absence during the period of military service.
Notwithstanding the foregoing, a Termination of Employment shall be deemed not
to have occurred for purposes of entitling a Participant to distributions from
his or her Basic Contribution Account if the Participant has not incurred a
"separation from service" or "disability" as defined in applicable regulations,
except as provided in Sec. 10.12.
SEC. 3.3 HOURS OF SERVICE. "Hours of Service" are determined according to
the following subsections with respect to each applicable computation period.
The Company may round up the number of Hours of Service at the end of each
computation period or more frequently as long as a uniform practice is followed
with respect to all employees determined by the Company to be similarly situated
for compensation, payroll, and recordkeeping purposes.
(a) Hours of Service are computed only with respect to service with
Participating Employers (for service both before and after the
Participating Employer becomes such), Affiliates, and Predecessor
Employers and are aggregated for service with all such employers.
(a) For any portion of a computation period during which a record of hours
is maintained for an employee, Hours of Service shall be credited as
follows:
(1) Each hour for which the employee is paid, or entitled to payment,
for the performance of duties for his or her employer during the
applicable computation period is an Hour of Service.
(2) Each hour for which the employee is paid, or entitled to payment,
by his or her employer on account of a period of time during which
no duties are performed (irrespective of whether the employment
relationship has terminated) due to vacation, holiday, illness,
incapacity (including disability), layoff, jury duty, military
duty, or leave of absence, is an Hour of Service. No more than 501
Hours of Service shall be credited under this paragraph for any
single continuous period (whether or not such period occurs in a
single computation period). Hours of Service shall not be credited
under this paragraph with respect to payments under a plan
maintained solely for the purpose of complying with applicable
workers' compensation, unemployment compensation, or disability
insurance laws or with respect to a payment which solely reimburses
the individual for medical or medically related expenses incurred
by the employee.
(3) Each hour for which back pay, irrespective of mitigation of
damages, is either awarded or agreed to by the employer is an Hour
of Service. Such Hours of Service shall be credited to the
computation period or periods to which the award or agreement for
back pay pertains,
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<PAGE> 12
rather than to the computation period in which the award,
agreement, or payment is made. Crediting of Hours of Service for
back pay awarded or agreed to with respect to periods described in
paragraph (2) shall be subject to the limitations set forth
therein.
(4) Hours under this subsection shall be calculated and credited
pursuant to section 2530.200b-2 of the Department of Labor
Regulations, which are incorporated herein by this reference.
(5) The Company may use any records to determine Hours of Service which
it considers an accurate reflection of the actual facts.
(c) For any portion of a computation period during which an employee is
within a classification for which a record of hours for the performance
of duties is not maintained, the employee shall be credited with 190
Hours of Service for each month for which he or she would otherwise be
credited with at least one Hour of Service under subsection (b).
(d) Nothing in this section shall be construed as denying an employee
credit for an Hour of Service if credit is required by any federal law
other than ERISA. The nature and extent of such credit shall be
determined under such other law.
(e) In no event shall duplicate credit as an Hour of Service be given for
the same hour.
(f) This subsection shall apply to an individual who has service as (i)
either a common law employee or a Leased Employee of (ii) either a
Participating Employer or Affiliate. For purposes of determining Hours
of Service, such an individual shall be considered an employee of the
Participating Employer or Affiliate during any period he or she would
have been a Leased Employee of such Participating Employer or Affiliate
but for the requirement that he or she must have performed services for
such Participating Employer or Affiliate on a substantially full-time
basis for a period of at least one year. If this Plan is a multiple
employer plan as defined in section 2530.210 of the Department of Labor
Regulations, service as a leased individual with more than one legal
entity shall be aggregated only in accordance with the rules set forth
in said section.
SEC. 3.4 ELIGIBILITY COMPUTATION PERIOD. An employee's first Eligibility
Computation Period is the 12-consecutive-month period beginning on his or her
Employment Commencement Date. The second Eligibility Computation Period is the
Plan Year commencing in said 12-consecutive-month period. Each subsequent Plan
Year prior to the end of the Plan Year in which the employee has a 1-Year Break
In Service is an Eligibility Computation Period. If subsequent to a 1-Year Break
In Service the employee has another Employment Commencement Date, Eligibility
Computation Periods for the period beginning on such date shall be computed as
though such date were the employee's first Employment Commencement Date. For
purposes of this section, the Plan Year that began on October 1, 1992 shall be
deemed to end on September 30, 1993.
SEC. 3.5 YEAR OF ELIGIBILITY SERVICE. A "Year of Eligibility Service" is
an Eligibility Computation Period in which an employee has at least 1000 Hours
of Service.
SEC. 3.6 YEAR OF VESTING SERVICE. A "Year of Vesting Service" is a Plan
Year in which an employee has at least 1000 Hours of Service, subject to the
following:
(a) Any service prior to January 1, 1988 shall be disregarded. In
addition, any Plan Year prior to the Plan Year in which the employee's
Participating Employer first maintained the Plan or a predecessor plan
(or, if earlier, the earliest Plan Year in which any trade or business
entity at that time under Common Control with that Participating
Employer first maintained the Plan or a predecessor plan) shall be
disregarded.
(b) For purposes of this section, the Plan Year beginning October 1, 1992
shall be deemed to end on September 30, 1993. Any Participant who was
credited with at least 1000 Hours of Service both during the period
described in the previous sentence and during 1993 was credited with two
Years of Vesting Service for the period from October 1, 1992 to December
31, 1993.
(c) If the Participant has had a period of five consecutive 1-Year Breaks
In Service, for purposes of determining the vested percentage of the
Participant's Accounts attributable to employer contribu-
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<PAGE> 13
tions which accrued before such break, any Years of Vesting Service
after such break in service shall not be taken into account.
(d) If a nonvested Participant has had a break-in-service period, for
purposes of determining the vested percentage of the Participant's
Accounts (if any) attributable to employer contributions made on his or
her behalf after such period, Years of Vesting Service prior to such
period shall not be taken into account if the number of consecutive
1-Year Breaks In Service within such period equals or exceeds the
aggregate number of Years of Vesting Service before such period, subject
to the following:
(1) The preceding sentence shall not apply unless the Participant has a
minimum of five consecutive 1-Year Breaks In Service.
(2) If any Years of Vesting Service are not required to be taken into
account by reason of a break-in-service period to which this
subsection applies, such Years of Vesting Service shall not be
taken into account in applying this subsection to a subsequent
break-in-service period.
(3) For purposes of this subsection, a "nonvested Participant" is a
Participant who has no vested right to an accrued benefit under the
Plan derived from employer contributions (including Basic
Contributions).
SEC. 3.7 1-YEAR BREAK IN SERVICE. "1-Year Break In Service" means a Plan
Year in which the employee has 500 or fewer Hours of Service. The 1-Year Break
In Service shall be recognized as such on the last day of such Plan Year.
(a) Notwithstanding the provisions of Sec. 3.3, for purposes of
determining whether a 1-Year Break In Service has occurred with respect
to a Plan Year, an individual who is absent from work for maternity or
paternity reasons shall receive credit for the Hours of Service which
would otherwise have been credited to such individual but for such
absence, or in any case in which such hours cannot be determined, 8
Hours of Service per day of such absence; provided, however, that the
total number of Hours of Service recognized under this subsection shall
not exceed 501 hours. The Hours of Service credited under this
subsection shall be credited in the Plan Year in which the absence
begins if the crediting is necessary to prevent a 1-Year Break In
Service in that Plan Year or, in all other cases, in the following Plan
Year.
(b) For purposes of subsection (a), an absence from work for maternity or
paternity reasons means an absence (i) by reason of the pregnancy of the
individual, (ii) by reason of the birth of a child of the individual,
(iii) by reason of the placement of a child with the individual in
connection with the adoption of such child by such individual, or (iv)
for purposes of caring for such child for a period beginning immediately
following such birth or placement.
(c) For purposes of this section, the Plan Year commencing October 1, 1992
shall be disregarded.
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ARTICLE IV
PLAN PARTICIPATION
SEC. 4.1 ENTRY DATE. "Entry Date" means January 1 and July 1 of each Plan
Year.
SEC. 4.2 ELIGIBILITY FOR PARTICIPATION. Eligibility to participate in the
Plan shall be determined as follows:
(a) An employee of a Participating Employer shall become a Participant in
the Plan on the earliest Entry Date (on or after the date the Plan
becomes effective with respect to his or her Participating Employer) on
which all of the following requirements are met:
(1) The employee is a Qualified Employee.
(2) The employee has completed one Year of Eligibility Service during
an Eligibility Computation Period that ended prior to the Entry
Date.
(3) The employee has attained age 21 prior to the Entry Date.
(b) If a former Participant is reemployed and meets the requirements of
subsection (a) on the date of rehire, the employee will become a
Participant again on that date.
(c) If a former employee who was not previously a Participant is
reemployed as a Qualified Employee, if the employee meets the
requirements of subsection (a) on the date of rehire, and if the
employee would have met the requirements of subsection (a) on the
immediately preceding Entry Date if he or she had been a Qualified
Employee on that Entry Date, the employee shall become a Participant on
the date of rehire.
(d) If an employee of a Participating Employer or an Affiliate who is
neither a Participant nor a Qualified Employee is transferred to a
position in which he or she is a Qualified Employee, and if the employee
would have met the eligibility requirements of subsection (a) on the
Entry Date preceding the transfer had he or she been a Qualified
Employee on that Entry Date, the employee shall become a Participant on
the date of transfer.
(e) If a nonvested employee has a 1-Year Break In Service, Years of
Eligibility Service prior to such break shall not be recognized for
purposes of this section if the number of the employee's consecutive
1-Year Breaks In Service equals or exceeds the aggregate number of Years
of Eligibility Service before the break, subject to the following:
(1) The preceding sentence shall not apply unless the employee has a
minimum of five consecutive 1-Year Breaks In Service.
(2) If any Years of Eligibility Service are not required to be taken
into account by reason of a break-in-service period to which this
subsection applies, such Years of Eligibility Service shall not be
taken into account in applying this subsection to a subsequent
break-in-service period.
(3) For purposes of this subsection, a "nonvested employee" is an
individual who has no vested right to an accrued benefit under the
Plan derived from employer contributions (including Basic
Contributions).
SEC. 4.3 DURATION OF PARTICIPATION. A Participant shall continue to be
such until the later of:
(a) The Participant's Termination of Employment.
(b) The date all benefits, if any, to which the Participant is entitled
hereunder have been distributed from the Fund.
SEC. 4.4 NO GUARANTEE OF EMPLOYMENT. Participation in the Plan does not
constitute a guarantee or contract of employment with the Participating
Employers. Such participation shall in no way interfere with any rights the
Participating Employers would have in the absence of such participation to
determine the duration of an employee's employment.
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ARTICLE V
CONTRIBUTIONS
SEC. 5.1 BASIC CONTRIBUTIONS. On and after April 1, 1995, each Active
Participant may elect to have his or her Participating Employer make Basic
Contributions on his or her behalf, subject to the following:
(a) The Participant may elect to have his or her current earnings reduced
by any whole percent the Participant may designate, but not exceeding
10% percent of Earnings. This election may only be made pursuant to a
written salary reduction agreement. The agreement shall be in such form
and executed subject to such rules as the Company may prescribe. Each
election shall apply only to earnings which become payable after the
election is filed with the Company. Each election shall continue in
effect until a new election is filed pursuant to this section.
(b) Each Participating Employer will make a Basic Contribution with
respect to each Participant in its employ who elects to have Earnings
for that period reduced pursuant to this section. The amount of the
contribution will be equal to the amount by which the Participant's
Earnings were reduced.
(c) The salary reduction agreement may be effective as of the date on
which the employee becomes a Participant or the first day of any
subsequent payroll period; provided that the employee has filed the
agreement with the Company prior to the deadline established by the
Company for the payroll period for which the election is to take effect.
(d) An Active Participant may amend his or her salary reduction agreement
to increase or decrease the contribution rate, or to discontinue making
Basic Contributions, effective as of any payroll period by filing an
approved amendment form with the Company prior to the deadline
established by the Company for the payroll period for which the election
is to take effect. However, no more than four such changes may be made
by a Participant during any calendar year (disregarding any changes made
on or prior to April 1, 1995).
(e) All Basic Contributions by a Participant shall cease when the
Participant ceases to be a Qualified Employee.
(f) Basic Contributions by a Participant for any calendar year may not
exceed $9,240, and shall cease at the point that limit is reached during
the year. The limit in the previous sentence shall be adjusted for any
cost of living increases provided for any calendar year after 1995 in
accordance with regulations issued by the Secretary of the Treasury.
(g) Notwithstanding the foregoing provisions, if the Participant has
received a hardship distribution from this Plan in accordance with Sec.
9.4(a) or from any other plan maintained by a Participating Employer or
an Affiliate, no Basic Contributions shall be made to this Plan on
behalf of such Participant for 12 months following the date on which the
hardship distribution was made. Furthermore, the limit under subsection
(f) for the calendar year following the year in which the hardship
withdrawal is made shall be reduced by the amount of Basic Contributions
(and any elective contributions to any other plan maintained by the
employer) for the calendar year in which the hardship withdrawal was
made.
(h) If a Participant's Basic Contributions are suspended under subsection
(g), the earliest that the Participant may recommence such Contributions
is the first day of the payroll period beginning immediately after the
end of the 12-month suspension period.
SEC. 5.2 MATCHING CONTRIBUTIONS. The Participating Employers will match
each Participant's Basic Contributions as follows:
(a) The Matching Contribution for an eligible Participant for a Plan Year
shall be equal to 100% of the first $500 of Basic Contributions, and 50%
of the next $500 of Basic Contributions, contributed by the Participant
for that year.
(b) To be eligible to receive Matching Contributions from a Participating
Employer for a particular Plan Year, a Participant must be employed by a
Participating Employer on the last day of the Plan Year.
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<PAGE> 16
(c) No Matching Contribution will be made with respect to any amount by
which the Participant's Basic Contribution must be reduced pursuant to
Sec. 5.3, Sec. 5.4, Sec. 5.6 or Sec. 6.1. Any such Matching
Contributions which are made before the amount of the reduction is
determined shall be forfeited and shall be applied as a credit against
future contributions from the Participating Employers.
(d) Any Forfeitures attributable to a Participating Employer for a Plan
Year which are not used to reinstate Accounts pursuant to Sec. 9.2(b)
shall be credited against the Participating Employer's Matching
Contributions for that Plan Year.
SEC. 5.3 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION 401(K).If
necessary to satisfy the requirements of Code section 401(k), Basic
Contributions shall be adjusted in accordance with the following:
(a) Each Plan Year, the "deferral percentage" will be calculated for each
Active Participant. Each Participant's deferral percentage is calculated
by dividing the amount referred to in paragraph (1) by the amount
referred to in paragraph (2), subject to the family aggregation rules in
subsection (g):
(1) The total Basic Contributions (including Excess Deferrals of Highly
Compensated Employees distributed under Sec. 5.4 but excluding
Excess Deferrals of Non-Highly Compensated Employees that arise
solely from contributions made under plans of the Participating
Employers or Affiliates), if any, allocated to the Participant's
Accounts with respect to the Plan Year.
(2) The Participant's Compensation with respect to the Plan Year. For
purposes of this section, a Participant's "Compensation" for the
Plan Year means compensation determined according to a definition
selected by the Company for that year which satisfies the
requirements of Code section 414(s). Compensation may or may not
include the Basic Contributions to this Plan and any contributions
made pursuant to a salary reduction agreement by or on behalf of
the Participant to any other plan which meets the requirements of
Code sections 125, 401(k), 402(h)(1)(B), or 403(b), as determined
by the Company. The same definition of Compensation shall be used
for all Participants for a particular Plan Year, but different
definitions may be used for different Plan Years. Compensation
shall be subject to the limit provided under Sec. 2.8(d).
(b) Each Plan Year, the average deferral percentage for Active
Participants who are Highly Compensated Employees and the average
deferral percentage for Active Participants who are Non-Highly
Compensated Employees will be calculated. In each case, the average is
the average of the percentages calculated under subsection (a) for each
of the employees in the particular group. The deferral percentage for
each Participant and the average deferral percentage for a particular
group of employees shall be calculated to the nearest one-hundredth of
one percent.
(c) If the requirements of either paragraph (1) or (2) are satisfied, then
no further action is needed under this section:
(1) The average deferral percentage for Participants who are Highly
Compensated Employees is not more than 1.25 times the average
deferral percentage for Participants who are Non-Highly Compensated
Employees.
(2) The excess of the average deferral percentage for Participants who
are Highly Compensated Employees over the average deferral
percentage for Participants who are Non-Highly Compensated
Employees is not more than two percentage points, and the average
deferral percentage for such Highly Compensated Employees is not
more than 2 times the average deferral percentage for such
Non-Highly Compensated Employees.
(d) If neither of the requirements of subsection (c) is satisfied, then
the Basic Contributions with respect to Highly Compensated Employees
shall be reduced, beginning with the contributions representing the
highest percent of Compensation and taking into account the family
aggregation
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rules under subsection (g)(2), if applicable, to the extent necessary to
meet the requirements of subsection (c)(1) or (c)(2), whichever is met
first.
(e) At any time during the Plan Year, the Company may make an estimate of
the amount of Basic Contributions by Highly Compensated Employees that
will be permitted under this section for the year and may reduce the
percent specified in Sec. 5.1(a) for such Participants to the extent the
Company determines in its sole discretion to be necessary to satisfy at
least one of the requirements in subsection (c).
(f) If Basic Contributions with respect to a Highly Compensated Employee
are reduced pursuant to subsection (d), the Excess Basic Contributions
shall be distributed, subject to the following:
(1) For purposes of this subsection, "Excess Basic Contributions" mean
the amount by which Basic Contributions for Highly Compensated
Employees have been reduced under subsection (d).
(2) Excess Basic Contributions (adjusted for income or losses allocable
thereto as specified in paragraph (3), if any) shall be distributed
to Participants on whose behalf such excess contributions were made
for the Plan Year no later than the last day of the following Plan
Year. Furthermore, the Company shall attempt to distribute such
amount by the 15th day of the third month following the Plan Year
for which the excess contributions were made to avoid the
imposition on the Participating Employers of an excise tax under
Code section 4979.
(3) Income or losses allocable to Excess Basic Contributions for the
Plan Year shall be determined by multiplying the amount of income
or loss for the Plan Year which is allocable to the Participant's
Basic Contributions by a fraction. The numerator of the fraction is
the Participant's Excess Basic Contributions for the Plan Year. The
denominator of the fraction is the total balance in the
Participant's Accounts attributable to Basic Contributions on the
first day of the Plan Year, plus Basic Contributions for the Plan
Year.
(4) The amount of Excess Basic Contributions and income or losses
allocable thereto which would otherwise be distributed pursuant to
this subsection shall be reduced, in accordance with regulations,
by the amount of Excess Deferrals and income or losses allocable
thereto previously distributed to the Participant pursuant to Sec.
5.4 for the calendar year ending with or within the Plan Year.
(g) If a Highly Compensated Employee is subject to the family aggregation
rules of Code section 414(q)(6) because such individual is a more than
5-percent owner or is among the 10 highest paid Highly Compensated
Employees, the following rules shall apply:
(1) For purposes of determining the deferral percentage of the Highly
Compensated Employee and Family Members under subsection (a), one
combined deferral percentage shall apply to the family group (which
is treated as one Highly Compensated Employee).
(A) The combined deferral percentage shall be determined by
combining the contributions and Compensation for all of the
eligible Family Members.
(B) All Family Members included in the family group shall be
disregarded in determining the average deferral percentage for
Participants who are Non-Highly Compensated Employees. If an
employee is required to be aggregated as a member of more than
one family group, all eligible employees who are members of
those family groups that include that employee shall be treated
as one family group under this subsection (g).
(2) If subsection (d) requires the reduction of contributions on behalf
of a Highly Compensated Employee who is subject to the family
aggregation rules set forth in paragraph (1) of this subsection,
the Excess Basic Contributions shall be allocated among the Family
Members in proportion to the dollar amount of Basic Contributions
(and amounts treated as Basic Contributions under subsection (a)(1)
of this section) made by each Family Member who was included in the
combined deferral percentage.
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(h) The deferral percentage for any Participant who is a Highly
Compensated Employee for the Plan Year, and who is eligible to
participate in two or more plans with cash or deferred arrangements
described in Code section 401(k) to which any Participating Employer or
Affiliate contributes, shall be determined as if all employer
contributions were made under a single arrangement unless mandatorily
disaggregated pursuant to regulations under Code section 401(k). All
cash or deferred arrangements with Plan Years ending within the same
calendar year shall be treated as a single arrangement for purposes of
this subsection.
(i) If two or more plans which include cash or deferred arrangements are
considered as one plan for purposes of Code section 401(a)(4) or Code
section 410(b), the cash or deferred arrangements shall be treated as
one for the purposes of applying the provisions of this section unless
mandatorily disaggregated pursuant to regulations under Code section
401(k).
(j) If the entire Account balance of a Highly Compensated Employee has
been distributed during the Plan Year in which an excess arose, the
distribution shall be deemed to have been a corrective distribution of
the excess and income attributable thereto to the extent that a
corrective distribution would otherwise have been required under
subsection (f) of this section, Sec. 5.4 or Sec. 5.5(f).
(k) A corrective distribution of excess contributions under subsection (f)
of this section, Excess Aggregate Contributions under Sec. 5.5(f), or
Excess Deferrals under Sec. 5.4 may be made without regard to any notice
or Participant or spousal consent required under Article VIII or X.
(l) In the event of a complete termination of the Plan during the Plan
Year in which an excess arose, any corrective distribution under
subsection (f) of this section or Sec. 5.5(f) shall be made as soon as
administratively feasible after the termination, but in no event later
than 12 months after the date of termination.
SEC. 5.4 DISTRIBUTION OF EXCESS DEFERRALS. Notwithstanding any other
provisions of the Plan, Excess Deferrals for a calendar year and income or
losses allocable thereto shall be distributed no later than the following April
15 to Participants who claim such Excess Deferrals, subject to the following:
(a) For purposes of this section, "Excess Deferrals" means the amount of
Basic Contributions for a calendar year that the Participant claims
pursuant to the procedure set forth in subsection (b) because the total
amount deferred for the calendar year exceeds $9,240 for 1995 (indexed
for inflation for subsequent calendar years) or such other limit imposed
on the Participant for that year under Code section 402(g).
(b) The Participant's written claim, specifying the amount of the
Participant's Excess Deferral for any calendar year, shall be submitted
to the Company no later than the March 1 following such calendar year.
The claim shall include the Participant's written statement that if such
amounts are not distributed, such Excess Deferrals, when added to
amounts deferred under other plans or arrangements described in Code
section 401(k), 403(b), or 408(k), exceed the limit imposed on the
Participant by Code section 402(g) for the year in which the deferral
occurred. A Participant shall be deemed to have submitted such a claim
to the extent the Participant has Excess Deferrals for the calendar year
taking into account only contributions under this Plan and any other
plan maintained by a Participating Employer or an Affiliate.
(c) Excess Deferrals distributed to a Participant with respect to a
calendar year shall be adjusted to include income or losses allocable
thereto using the same method specified for excess Basic Contributions
under Sec. 5.3(f)(3).
(d) The amount of Excess Deferrals and income allocable thereto which
would otherwise be distributed pursuant to this section shall be
reduced, in accordance with applicable regulations, by the amount of
Excess Basic Contributions and income allocable thereto previously
distributed to the Participant pursuant to Sec. 5.3 for the Plan Year
beginning with or within such calendar year, and by the amount of any
deferrals properly distributed as excess annual additions under Sec.
6.1.
SEC. 5.5 ADJUSTMENT OF CONTRIBUTIONS REQUIRED BY CODE SECTION
401(M). After the provisions of Sec. 5.3 and Sec. 5.4 have been satisfied, the
requirements set forth in this section must also be met. If
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necessary to satisfy the requirements of Code section 401(m), Matching
Contributions shall be adjusted in accordance with the following:
(a) Each Plan Year, the "contribution percentage" will be calculated for
each Active Participant. Each Participant's contribution percentage is
calculated by dividing the amount referred to in paragraph (1) by the
amount referred to in paragraph (2), subject to the family aggregation
rules in subsection (g).
(1) The total Matching Contributions under Sec. 5.2, if any, allocated
to the Participant's Accounts with respect to the Plan Year. The
Company may also elect to include all or part of the Basic
Contributions to be allocated to the Participant's Accounts with
respect to that Plan Year, provided that the requirements of
Treasury Regulation .401(m)-1(b) are satisfied and provided that
the requirements of Sec. 5.3 are met before such contributions are
used under this section and continue to be met after the exclusion
for purposes of Sec. 5.3 of those contributions that are used to
satisfy the requirements of this section. However, any Matching
Contributions that are forfeited, either to correct excess
contributions under subsection (f) of this section, or because the
contributions to which they relate are Excess Basic Contributions
under Sec. 5.3, Excess Deferrals under Sec. 5.4 or excess
contributions under subsection (f) of this section, shall be
disregarded.
(2) The Participant's Compensation with respect to the Plan Year For
purposes of this section, "Compensation" has the same meaning as
provided in Sec. 5.3(a)(2).
(b) Each Plan Year, the average contribution percentage of Active
Participants who are Highly Compensated Employees and the average
contribution percentage for Active Participants who are Non-Highly
Compensated Employees will be calculated. In each case, the average is
the average of the percentages calculated under subsection (a) for each
of the employees in the particular group. The contribution percentage
for each Participant and the average contribution percentage for a
particular group of employees shall be calculated to the nearest
one-hundredth of one percent.
(c) If the requirements of either paragraph (1) or (2) are satisfied, then
no further action is needed under this section:
(1) The average contribution percentage for Participants who are Highly
Compensated Employees is not more than 1.25 times the average
contribution percentage for Participants who are Non-Highly
Compensated Employees.
(2) The excess of the average contribution percentage for Participants
who are Highly Compensated Employees over the average contribution
percentage for Participants who are Non-Highly Compensated
Employees is not more than two percentage points, and the average
contribution percentage for such Highly Compensated Employees is
not more than 2 times the average contribution percentage for such
Non-Highly Compensated Employees.
(d) If neither of the requirements of subsection (c) is satisfied, then
the Matching Contributions with respect to Highly Compensated Employees
shall be reduced, beginning with the contributions representing the
highest percentage of Compensation, to the extent necessary to meet the
requirements of subsection (c)(1) or (c)(2), whichever is met first.
(e) At any time during the Plan Year, the Company may make an estimate of
the amount of Matching Contributions on behalf of Highly Compensated
Employees that will be permitted under this section for the year. If the
Company determines in its sole discretion that reductions are necessary
to assure that at least one of the requirements in subsection (c) are
satisfied, the Company may take written action amending Sec. 5.2 to
reduce or eliminate Matching Contributions for Highly Compensated
Employees with respect to Earnings to be paid from the date such action
is adopted to the end of the Plan Year.
(f) If contributions with respect to a Highly Compensated Employee are
reduced pursuant to subsection (d), the Excess Aggregate Contributions
shall be treated as follows:
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(1) For purposes of this subsection, "Excess Aggregate Contributions"
mean the amount by which Matching Contributions must be reduced
under subsection (d).
(2) Excess Matching Contributions (adjusted for income or losses
allocable thereto) shall be forfeited (if otherwise forfeitable
under the provisions of Sec. 9.2 if the Participant were to
terminate employment on the last day of the Plan Year for which the
contribution was made). Excess Matching Contributions which are
non-forfeitable (adjusted for income or losses allocable thereto)
shall be distributed to Participants on whose behalf such excess
contributions were made for the Plan Year no later than the last
day of the following Plan Year. Furthermore, the Company shall
attempt to distribute such amount by the 15th day of the third
month following the Plan Year for which the excess contributions
were made to avoid the imposition on the Participating Employers of
an excise tax under Code section 4979.
(3) Income or losses allocable to Excess Aggregate Contributions shall
be determined in the same manner specified for Excess Basic
Contributions under Sec. 5.3(f)(3).
(4) Amounts forfeited by Highly Compensated Employees pursuant to
paragraph (2) shall be applied to reduce future Matching
Contributions as provided in Sec. 5.2.
(g) For purposes of subsection (a), the contribution percentage of a
Highly Compensated Employee who is a more than 5-percent owner or who is
among the 10 highest paid Highly Compensated Employees and any Family
Members of such a person shall be determined in the same manner
specified for determining the deferral percentage under Sec. 5.3(g)(1).
If subsection (d) requires reduction of the contributions by or on
behalf of a Highly Compensated Participant who is subject to family
aggregation, reductions of contributions for that family group shall be
determined in the same manner specified for reducing Basic Contributions
under Sec. 5.3(g)(2).
(h) The contribution percentage for any Participant who is a Highly
Compensated Employee for the Plan Year, and who is eligible to make
nondeductible employee contributions or to receive matching
contributions under two or more plans described in Code section
401(a) that are maintained by the Participating Employers or any
Affiliate, shall be determined as if all such contributions were
made under a single arrangement unless mandatorily disaggregated
pursuant to regulations under Code section 401(m).
(i) If two or more plans maintained by the Participating Employers or
Affiliates are treated as one plan for purposes of satisfying the
eligibility requirements of Code section 410(b), those plans must be
treated as one plan for purposes of applying the provisions of this
section unless mandatorily disaggregated pursuant to regulations under
Code section 401(m).
(j) Notwithstanding the foregoing, if neither subparagraph (c)(1) of this
section nor Sec. 5.3(c)(1) was satisfied, the requirements set forth in
Sec. 5.6 must also be satisfied.
SEC. 5.6 MULTIPLE USE OF THE ALTERNATIVE LIMITATIONS. If neither Sec.
5.3(c)(1) nor Sec. 5.5(c)(1) was satisfied for a Plan Year, the following
additional requirements must also be satisfied:
(a) The sum of the following two amounts must not exceed the greater of
the limit determined under subsection (b) or the limit determined under
subsection (c):
(1) The average deferral percentage for Highly Compensated Employees
(determined under Sec. 5.3(b) following any adjustments required by
Sec. 5.3).
(2) The average contribution percentage for Highly Compensated
Employees (determined under Sec. 5.5(b) following any adjustments
required by Sec. 5.5).
(b) The limit under this subsection is the sum of the following amounts:
(1) 1.25 multiplied by the greater of:
(A) The average deferral percentage for Non-Highly Compensated
Employees (determined under Sec. 5.3(b) following any
adjustments required by Sec. 5.3), or
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<PAGE> 21
(B) The average contribution percentage for Non-Highly Compensated
Employees (determined under Sec. 5.5(b) following any
adjustments required by Sec. 5.5).
(2) Two percentage points plus the lesser of:
(A) The average deferral percentage for Non-Highly Compensated
Employees, or (B) The average contribution percentage for
Non-Highly Compensated Employees.
Notwithstanding the foregoing, the amount under this paragraph (2)
cannot exceed the lesser of (A) or (B) above, multiplied by two, or such other
limit as may be prescribed by Treasury Regulations.
(c) The limit under this subsection (c) is the amount that would be
determined under subsection (b) by:
(1) Substituting "lesser" for "greater" in paragraph (1) of subsection
(b), and
(2) Substituting "greater" for "lesser" each place that word appears in
paragraph (2) of subsection (b).
(d) If the amount determined under subsection (a) exceeds the greater of
the limits determined under subsections (b) and (c), an additional
amount must be treated as Excess Basic Contributions and distributed
under Sec. 5.3. In addition, any Matching Contributions attributable to
those Basic Contributions shall be treated as forfeited and shall be
applied as a credit against future contributions from the Participating
Employers. Appropriate adjustments under this subsection must be made
pursuant to Treasury regulations until the sum of the average deferral
percentage and average contribution percentage for Highly Compensated
Employees is equal to the greater of the limits determined under
subsections (b) and (c).
SEC. 5.7 TIME OF CONTRIBUTIONS. Basic Contributions and Matching
Contributions by a Participating Employer for a Plan Year shall be paid to the
Funding Agency no later than the time (including extensions thereof) prescribed
by law for filing the employer's federal income tax return for the tax year in
which the Plan Year ends. Basic Contributions shall be paid to the Funding
Agency no later than 12 months following the end of the Plan Year, if earlier.
In addition, Basic Contributions or Matching Contributions shall be paid to the
Funding Agency by any earlier date that may be specified in Treasury or
Department of Labor regulations.
SEC. 5.8 ALLOCATIONS. Contributions under Sections 5.1 and 5.2 shall be
allocated to the Accounts of Participants as follows:
(a) Basic Contributions with respect to each Participant electing
deferrals pursuant to Sec. 5.1 for each quarter of the Plan Year shall
be allocated to the Basic Contribution Account of each such Participant
as of the last day of that quarter.
(b) Matching Contributions for a Plan Year, and the Forfeitures credited
against such Contributions, shall be allocated to the Matching
Contribution Account of each eligible Participant as of the last day of
the Plan Year.
(c) Allocations shall be reflected in Accounts as provided in Article VII.
(d) Basic Contributions and Matching Contributions for a Plan Year which
are deposited with the Funding Agency after the end of that Plan Year
but prior to the deadline specified in Sec. 5.7 shall also be allocated
to the appropriate Basic Contribution Account or Matching Contribution
Account as of the last day of that Plan Year except to the extent the
Company determines that it is necessary to treat some or all of such
contributions as being contributions for the Plan Year in which they are
deposited with the Funding Agency in order to satisfy the requirements
of Sec. 5.3 or Sec. 5.5.
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SEC. 5.9 LIMITATIONS ON CONTRIBUTIONS. In no event shall the amount of a
Participating Employer's contribution under this Article for any Plan Year
exceed the lesser of:
(a) The maximum amount allowable as a deduction in computing its taxable
income for that Plan Year for federal income tax purposes.
(b) The aggregate amount of the contributions by such Participating
Employer that may be allocated to the Accounts of each Participant under
the provisions of Article VI.
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ARTICLE VI
LIMITATION ON ALLOCATIONS
SEC. 6.1 LIMITATION ON ALLOCATIONS. Notwithstanding any provisions of the
Plan to the contrary, allocations to Participants under the Plan for any
Limitation Year shall not exceed the maximum amount permitted under Code section
415. For purposes of the preceding sentence, the following rules shall apply
unless otherwise provided in Code section 415:
(a) The Annual Additions with respect to a Participant for any Limitation
Year shall not exceed the lesser of:
(1) $30,000, as adjusted for each Limitation Year to take into account
cost-of-living increases pursuant to regulations prescribed by the
Secretary of the Treasury.
(2) 25% of the Compensation of such Participant for such Limitation
Year.
(b) If a Participant is also a participant in one or more other defined
contribution plans maintained by a Participating Employer or an
Affiliate, and if the amount of employer contributions and forfeitures
otherwise allocated to the Participant for a Limitation Year must be
reduced to comply with the limitations under Code section 415, such
allocations under this Plan and each of such other plans shall be
reduced pro rata in the sequence specified in subsection (c), and pro
rata within each category within that sequence, to the extent necessary
to comply with said limitations, except that reductions to the extent
necessary shall be made in allocations under profit sharing plans before
any reductions are made under money purchase plans or employee stock
ownership plans.
(c) If for any Limitation Year the limitation described in subsection (a)
would otherwise be exceeded by contributions to this Plan with respect
to any Participant (after application of subsection (b)), the
Participant's Annual Additions shall be adjusted in the following
sequence, but only to the extent necessary to reduce Annual Additions to
the level permitted in subsection (a):
(1) The Participant's voluntary after-tax contributions to other plans
for the Limitation Year, if any, shall be refunded to the
Participant during the year or as soon as reasonably possible
following the end of the year.
(2) The Participant's Basic Contributions for the Limitation Year, if
any, shall be reduced, and that amount shall be refunded to the
Participant during the year or as soon as reasonably possible
following the end of the year.
(3) If, after the adjustments in paragraphs (1) and (2) there is an
excess amount with respect to a Participant for a Limitation Year,
such excess amount shall be held unallocated in a suspense account.
The suspense account will be applied to reduce future employer
contributions for all Participants in the current Limitation Year,
the next Limitation Year, and in each succeeding year, if
necessary. The suspense account will participate in the allocation
of the investment gains and losses of the Fund and the value of
such account will be considered in valuing other Accounts under the
Plan.
(4) Any amounts refunded under paragraphs (1) or (2) shall be
disregarded for purposes of applying the limits under Sec. 5.3,
Sec. 5.4 and Sec. 5.5.
(d) If the Participant is also a participant in one or more defined
benefit plans maintained by a Participating Employer or an Affiliate,
the sum of the Participant's defined benefit plan fraction and defined
contribution plan fraction, determined according to Code section 415(e),
for any Limitation Year may not exceed 1.0. If the sum of a
Participant's defined benefit fraction and defined contribution fraction
would otherwise exceed 1.0 for any Limitation Year, the benefits
provided under the defined benefit plan or plans shall be reduced to the
extent necessary to reduce the sum of the fractions to 1.0.
(e) For purposes of this section:
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<PAGE> 24
(1) "Annual Additions" means the sum of the following amounts allocated
to a Participant for a Limitation Year under this Plan and all
other defined contribution plans maintained by a Participating
Employer or an Affiliate in which he or she participates:
(A) Employer contributions, including Basic Contributions made
under this Plan. Excess Basic Contributions, and Excess
Aggregate Contributions which are distributed under the
provisions of Article V are included in Annual Additions, but
Excess Deferrals which are distributed under Sec. 5.4 are not
included in Annual Additions.
(B) Forfeitures, if any.
(C) Voluntary non-deductible contributions, if any.
(D) Amounts attributable to medical benefits as described in Code
sections 415(1)(2) and 419A(d)(2).
An Annual Addition with respect to a Participant's Accounts shall
be deemed credited thereto with respect to a Limitation Year if it
is allocated to the Participant's Accounts under the terms of the
Plan as of any date within such Limitation Year.
(2) The "Limitation Year" is the 12-month period beginning on each
October 1 on or before October 1, 1991, and beginning on each
January 1 on or after January 1, 1992. The limitations of this
section and of Code Section 415 shall apply separately to the
Limitation Years beginning on October 1, 1991 and January 1, 1992
and to the period from October 1, 1991 to December 31, 1991 to the
extent provided by applicable Treasury regulations.
(f) For purposes of this section, "Compensation" means an employee's
earned income, wages, salaries, fees for professional services and other
amounts received (without regard to whether or not an amount is paid in
cash) for personal services actually rendered in the course of
employment with the Participating Employers and Affiliates to the extent
that the amounts are includable in gross income (including, but not
limited to, commissions, compensation for services on the basis of a
percentage of profits, tips, bonuses, fringe benefits, and
reimbursements or other expense allowances under a nonaccountable plan
described in Treasury Regulation sec. 1.62-2(c)), subject to the
following:
(1) Compensation excludes the Basic Contributions to this Plan, any
elective salary reduction contributions to any other plan which are
not includable in the gross income of the employee under Code
sections 125, 401(k), 402(h)(1)(B) or 403(b), any other employer
contributions to a plan of deferred compensation which are not
includible in the employee's gross income for the taxable year in
which contributed, any distributions from a plan of deferred
compensation, and any other amounts which receive special tax
benefits. However, any amounts received by an employee pursuant to
an unfunded non-qualified plan of deferred compensation may be
considered as Compensation in the year such amounts are includible
in the employee's gross income.
(2) Compensation excludes amounts realized from the exercise of a
non-qualified stock option, or when restricted stock (or property)
either becomes transferable or is no longer subject to a
substantial risk of forfeiture.
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ARTICLE VII
INDIVIDUAL ACCOUNTS
SEC. 7.1 ACCOUNTS FOR PARTICIPANTS. The following Accounts may be
established under the Plan for a Participant:
(a) A Basic Contribution Account and Matching Contribution Account shall
be established for each Participant who makes or receives contributions
under Article V allocable to such an Account.
(b) A Voluntary Contribution Account shall be maintained for each
Participant who made after-tax contributions allocable to such an
Account prior to April 1, 1995.
(c) A Supplemental Contribution Account shall be maintained for each
Participant who received Employer Supplemental Contributions under the
provisions of the Plan in effect prior to January 1, 1992.
(d) A Forfeiture Account shall be established for each Participant whose
Termination of Employment occurs under circumstances such that at that
time the Participant has not become 100% vested in his or her Matching
Contribution Account.
(e) A Rollover Account shall be established for each Participant who makes
a Rollover Contribution, as provided by Sec. 7.5.
(f) One or more Profit Sharing Accounts shall be maintained for each
Participant whose Accounts were transferred to this Plan from the
General Growth Employees' Retirement Plan.
More than one of any of the above types of Accounts may be established if
required by the Plan or if considered advisable by the Company in the
administration of the Plan. Except as expressly provided herein to the contrary,
the Fund shall be held and invested on a commingled basis, Accounts shall be for
bookkeeping purposes only, and the establishment of Accounts shall not require
any segregation of Fund assets.
SEC. 7.2 VALUATION PROCEDURE. As of each Valuation Date, the value of each
Account shall be adjusted to reflect the effect of distributions, transfers,
withdrawals, income, realized and unrealized profit and losses, contributions,
and all other transactions with respect to the Fund since the next preceding
Valuation Date, as follows:
(a) The value of each Account determined in accordance with this section
as of the preceding Valuation Date (and adjusted as provided in
subsection (c) below) shall be adjusted to reflect any investment gains,
losses or expenses credited to or charged against the Account by the
Funding Agency pursuant to Sec. 7.3.
(b) There shall be added to the adjusted value of each Account the amount
of any contributions made pursuant to Article V during the period
subsequent to the preceding Valuation Date and ending on the current
Valuation Date.
(c) From the value of each Account determined as of the next preceding
Valuation Date, there shall be deducted the amount of all distributions
and withdrawals, if any, made from the Account since the preceding
Valuation Date.
If a Participant's Termination of Employment (or any other event) occurred
after the preceding Valuation Date and on or before the current Valuation Date,
and if the Participant was not 100% vested in his or her Matching Contribution
Account, the value of such Account as determined above shall be adjusted by
deducting the percentage of such Account not so vested and crediting it to the
Participant's Forfeiture Account.
SEC. 7.3 INVESTMENT OF ACCOUNTS. Each Participant shall direct the
investment of his or her Accounts, subject to the following:
(a) The Company shall determine the class or classes of investments which
will be made available as investment options under this Plan from time
to time. The Company may in its sole discretion add additional options
or delete existing options at any time.
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(b) All investment directions shall be filed in writing on a prescribed
form with the Company, or with such agent or agents as may be designated
from time to time by the Company for this purpose. Each investment
direction shall remain in effect until a new investment direction is
filed by the Participant. An initial investment direction shall be filed
when the Participant first elects to make contributions to the Plan.
Thereafter, a Participant may change the investment of the existing
Account balances and future contributions as of any Valuation Date. All
investment directions must be in whatever increments for any investment
option that are established by the Company from time to time. All such
investment directions will be implemented within a reasonable period of
time, as determined by the Company and the Funding Agency, after the
direction is filed. Notwithstanding the foregoing, an individual may
change his or her investment direction no more than four times during
any calendar year (disregarding any changes made on or prior to April 1,
1995).
(c) All investment directions by a Participant shall be complete as to the
terms of the investment transaction. An investment direction shall
provide for both the investment of existing Account balances and the
investment of future contributions on behalf of the Participant. No
Funding Agency shall have any obligation whatsoever to invest or manage
any assets held in a Participant's Accounts, its sole duty being to
follow within a reasonable period of time all proper directions of the
Participant which are made in accordance with the Plan and which are not
contrary to ERISA. If a Participant fails to provide directions as to
the investment of any cash held in his or her Accounts, the Company may
in its sole discretion designate an investment vehicle to be used to
hold such funds.
(d) All earnings and losses on the investments held for each of the
Participant's Accounts shall be credited directly to such Account, and
the Account shall be charged with all expenses attributable to such
investments. The Funding Agency may also charge to each such Account
such portion of the general expenses of the Fund as the Funding Agency
determines in its sole discretion to be reasonable.
(e) Following the death of the Participant, each of his or her
Beneficiaries shall have the right to direct the investment of the
portion of the Participant's Accounts held on behalf of the Beneficiary,
subject to the same terms and conditions as applied to the Participant
prior to death.
(f) The Funding Agency shall at all times retain title to all assets held
for Accounts, and shall have the voting power with respect to all stock
or other securities held for Accounts.
(g) All investment directions shall be in accordance with such rules and
regulations as the Company or the Funding Agency may establish from time
to time for this purpose.
(h) Each Account shall be valued by the Funding Agency at fair market
value as of each Valuation Date and at such other times as may be
necessary for the proper administration of the Plan. If fair market
value of an asset is not available, it shall be deemed to be fair value
as determined in good faith by the Company or other Named Fiduciary
assigned such function, or if such asset is held in trust and the trust
agreement so provides, as determined in good faith by the trustee. If
any portion of the fund is invested in a contract issued by an insurance
company, of a type sometimes referred to as a "guaranteed income
contract", under which the insurance company pays a guaranteed minimum
rate of interest for a stated period of time, and if no event has
occurred that will result in repayment of principal at a discounted
value, the fair market value of the contract shall be deemed to be its
book value.
(i) Notwithstanding the foregoing, a Participant shall not be allowed to
direct the investment of any Forfeiture Account. All such Accounts shall
be invested in the investment option or options selected by the Company
from time to time for this purpose.
SEC. 7.4 PARTICIPANT STATEMENTS. Each Plan Year the Company may cause each
Participant to be provided with a statement of Account balances as of the end of
the immediately preceding Plan Year.
SEC. 7.5 ROLLOVER ACCOUNTS. With the consent of the Company, a Qualified
Employee may transfer to the Fund an amount that constitutes a Rollover
Contribution. The Company shall grant such consent only if it
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<PAGE> 27
is certain that the amount to be transferred will constitute a proper Rollover
Contribution. Notwithstanding any provisions of the Plan to the contrary, the
following shall apply with respect to a Rollover Contribution:
(a) A Rollover Account shall be established for each employee who makes a
Rollover Contribution. From the date the assets of the Rollover
Contribution are transferred to the Fund through the first Valuation
Date following such transfer, the Rollover Account shall be valued at
the fair market value of said assets on the date of such transfer.
(b) A Rollover Account shall be treated in all respects the same as a
Matching Contribution Account except as provided in (a) above, and any
references in the Plan to a Matching Contribution Account shall apply
equally to a Rollover Account, except that no employer or employee
contributions or Forfeitures shall ever be added to a Rollover Account,
and in the event of the employee's Termination of Employment entitling
him or her to a benefit under Sec. 9.2, the vested percentage in the
Rollover Account shall be 100%.
(c) The employee shall be treated the same as a Participant hereunder from
the time of the transfer, but shall not actually be a Participant and
shall not be eligible to receive an allocation of employer contributions
or Forfeitures or to make employee contributions until he or she has
satisfied the requirements of Article IV.
(d) For purposes of this section, "Rollover Contribution" means a
contribution of an amount which may be rolled over to this Plan pursuant
to Code section 401(a)(31), 402(c), 403(a)(4), 408(d)(3), or any other
provision of the Code which may permit rollovers to this Plan from time
to time.
SEC. 7.6 TRANSFERS FROM OTHER PLANS. At the request of a Qualified
Employee and with the consent of the Company, which shall be granted in its sole
discretion and only if it determines that the transfer of funds is consistent
with the provisions of the Code, the Plan may accept a direct transfer from
another plan of funds credited to the employee under such other plan (provided
such plan is a qualified plan under Code section 401(a) to which the survivor
annuity requirements of Code section 401(a)(11)(A) do not apply). Such a
transfer shall be subject to the following:
(a) Any funds so received shall be credited to one or more separate
Accounts in the categories listed in Sec. 7.1 which are subject to the
same requirements under the Code as applied to the transferred funds
while they were held in the other plan. If no such Account exists under
Sec. 7.1 to receive any part of the transferred funds, such funds shall
be placed in a separate Rollover Account which shall thereafter be
subject to any requirements under the other plan which are required by
the Code to continue to apply to those funds after the transfer. From
the date of the transfer through the first Valuation Date following such
transfer, such Accounts shall be valued at the fair market value of the
transferred assets on the date of such transfer.
(b) Each separate Account established as provided in (a) shall be treated
in all respects as the corresponding type of Account under this Plan,
except as provided in subsection (a) and except that no employer or
employee contributions or Forfeitures shall ever be added to such a
separate Account, and in the event of the employee's Termination of
Employment entitling him or her to a benefit under Sec. 9.2, the vested
percentage in each such separate Account shall be not less than the
vested percentage in such funds prior to the transfer.
(c) The employee shall be treated the same as a Participant from the time
of the transfer, but shall not actually be a Participant and shall not
be eligible to share in employer contributions or Forfeitures or to make
contributions until he or she has satisfied the requirements of Article
IV.
(d) Any amounts transferred from another plan in a direct rollover
pursuant to Code section 401(a)(31) shall be governed by Sec. 7.5 rather
than by this section.
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<PAGE> 28
ARTICLE VIII
DESIGNATION OF BENEFICIARY
SEC. 8.1 PERSONS ELIGIBLE TO DESIGNATE. Any Participant may designate a
Beneficiary to receive any amount payable from the Fund as a result of the
Participant's death, provided that the Beneficiary survives the Participant. The
Beneficiary may be one or more persons, natural or otherwise. By way of
illustration, but not by way of limitation, the Beneficiary may be an
individual, trustee, executor, or administrator. A Participant may also change
or revoke a designation previously made, without the consent of any Beneficiary
named therein.
SEC. 8.2 SPECIAL REQUIREMENTS FOR MARRIED PARTICIPANTS. Notwithstanding
the provisions of Sec. 8.1, if a Participant is married at the time of his or
her death, the Beneficiary shall be the Participant's spouse unless the spouse
has consented in writing to the designation of a different Beneficiary, the
spouse's consent acknowledges the effect of such designation, and the spouse's
consent is witnessed by a representative of the Plan or a notary public. Such
consent shall be deemed to have been obtained if it is established to the
satisfaction of the Company that such consent cannot be obtained because there
is no spouse, because the spouse cannot be located, or because of such other
circumstances as may be prescribed by federal regulations. Any consent by a
spouse shall be irrevocable. Any designation of a Beneficiary which has received
spousal consent may be changed (other than by being revoked) without spousal
consent only if the consent by the spouse expressly permits subsequent
designations by the Participant without any requirement for further consent by
the spouse. Any such consent shall be valid only with respect to the spouse who
signed the consent, or in the case of a deemed consent, the designated spouse.
SEC. 8.3 FORM AND METHOD OF DESIGNATION. Any designation or a revocation
of a prior designation of Beneficiary shall be in writing on a form acceptable
to the Company and shall be filed with the Company. The Company and all other
parties involved in making payment to a Beneficiary may rely on the latest
Beneficiary designation on file with the Company at the time of payment or may
make payment pursuant to Sec. 8.4 if an effective designation is not on file,
shall be fully protected in doing so, and shall have no liability whatsoever to
any person making claim for such payment under a subsequently filed designation
of Beneficiary or for any other reason.
SEC. 8.4 NO EFFECTIVE DESIGNATION. If there is not on file with the
Company an effective designation of Beneficiary by a deceased Participant, the
Beneficiary shall be the person or persons surviving the Participant in the
first of the following classes in which there is a survivor, share and share
alike:
(a) The Participant's spouse.
(b) The Participant's children, except that if any of the Participant's
children predecease the Participant but leave issue surviving the
Participant, such issue shall take by right of representation the share
their parent would have taken if living.
(c) The Participant's parents.
(d) The Participant's brothers and sisters.
(e) The Participant's estate.
Determination of the identity of the Beneficiary in each case shall be made
by the Company.
SEC. 8.5 SUCCESSOR BENEFICIARY. If a Beneficiary who survives the
Participant subsequently dies before receiving all payments to which the
Beneficiary was entitled, the successor Beneficiary, determined in accordance
with the provisions of this section, shall be entitled to the balance of any
remaining payments due. A Beneficiary who is not the surviving spouse of the
Participant may not designate a successor Beneficiary. A Beneficiary who is the
surviving spouse may designate a successor Beneficiary only if the Participant
specifically authorized such designations on the Participant's Beneficiary
designation form. If a Beneficiary is permitted to designate a successor
Beneficiary, each such designation shall be made according to the same rules
(other than Sec. 8.2) applicable to designations by Participants. If a
Beneficiary is not permitted to designate a successor Beneficiary, or is
permitted to do so but fails to make such a designation, the balance of any
payments remaining due will be payable to a contingent Beneficiary if the
Participant's Beneficiary
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<PAGE> 29
designation so specifies, and otherwise to the personal representative (executor
or administrator) of the deceased Beneficiary.
SEC. 8.6 INSURANCE CONTRACT. Notwithstanding the foregoing provisions of
this Article VIII, as to benefits payable under a contract issued by an
insurance company, said contract shall govern the designation of Beneficiary
entitled to benefits thereunder except to the extent the contract is
inconsistent with the provisions of Sec. 8.2 or Sec. 10.1.
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<PAGE> 30
ARTICLE IX
BENEFIT REQUIREMENTS
SEC. 9.1 BENEFIT ON RETIREMENT OR DISABILITY. If a Participant's
Termination of Employment occurs (for any reason other than death) after either
of the following events, the Participant shall be 100% vested and shall be
entitled to a benefit equal to the value of all of his or her Accounts
determined as of the Valuation Date coincident with or next following the
Termination of Employment:
(a) The Participant has reached age 60.
(b) The Participant's Termination of Employment has occurred due to a
bodily injury or disease which the Company determines, based on
competent medical evidence, makes the Participant disabled from
performing the normal duties of his or her position with a Participating
Employer, and the disability is expected to continue indefinitely or for
a substantial period of time.
The benefit shall be paid at the times and in the manner determined under
Article X.
SEC. 9.2 OTHER TERMINATION OF EMPLOYMENT. If a Participant's Termination
of Employment occurs (for any reason other than death) under circumstances such
that the Participant is not entitled to a benefit under Sec. 9.1, the
Participant shall be entitled to a benefit equal to the value of all of his or
her Accounts other than any Matching Contribution Account and also a benefit
equal to the vested percentage of the value of the Participant's Matching
Contribution Account, determined as of the Valuation Date coincident with or
next following the Termination of Employment, subject, however, to the
following:
(a) The vested percentage shall depend upon the number of the
Participant's Years of Vesting Service at the time of the Termination of
Employment, as follows:
VESTING SCHEDULE
<TABLE>
<CAPTION>
YEARS OF VESTING SERVICE VESTED PERCENTAGE
----------------------------------------------------- -----------------
<S> <C>
less than 2.......................................... 0%
2 but less than 3.................................... 20%
3 but less than 4.................................... 40%
4 but less than 5.................................... 60%
5 but less than 6.................................... 80%
6 or more............................................ 100%
</TABLE>
(b) The portion of any Matching Contribution Account that is not vested
shall be transferred to the Participant's Forfeiture Account as of the
Valuation Date coincident with or next following his or her Termination
of Employment, as provided in Sec. 7.2. Thereafter, the disposition of
said Forfeiture Account shall be as provided below:
(1) If the Participant is subsequently reemployed before the last day
of the Plan Year in which the Termination of Employment occurred,
the Forfeiture Account shall be reinstated as a separate Matching
Contribution Account, to which the Participant shall be entitled in
accordance with the provisions of this Article IX upon a subsequent
Termination of Employment, subject to the provisions of paragraph
(4).
(2) If the Participant is not reemployed before the last day of the
Plan Year in which the Termination of Employment occurred, the
value of the Forfeiture Account shall be recognized as Forfeitures
as of the earlier of the following dates:
(A) The date the Participant incurred his or her fifth consecutive
1-Year Break In Service.
(B) The date that the vested portion of all of the Participant's
Accounts has been distributed to the Participant. If the
Participant was 0% vested in a particular Account, that Account
will be deemed for purposes of this subparagraph (B) to have
been distributed when the Participant's Termination of
Employment occurred.
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<PAGE> 31
The Participant shall lose all claim to the Forfeiture Account when
the Forfeiture occurs. The Forfeiture Account shall then be
allocated as provided in Article V, subject to appropriate
revaluation of the Forfeiture Account at the time the allocation
occurs.
(3) If a former Participant whose Account was forfeited under paragraph
(2) is subsequently reemployed and completes a Year of Vesting
Service before incurring five consecutive 1-Year Breaks In Service,
a separate Matching Contribution Account shall be reinstated for
the Participant as of the Valuation Date coincident with the last
day of the Plan Year in which such Year of Vesting Service is
completed. The Participant shall be entitled to such Account in
accordance with the provisions of this Article IX upon any
subsequent Termination of Employment, subject to the provisions of
paragraph (4). The value of such Account as of such Valuation Date
shall be equal to the value of the Forfeiture Account at the time
the Forfeiture occurred under paragraph (2). The reinstated Account
shall be funded as provided in paragraph (5).
(4) If a Participant referred to in paragraph (1) or paragraph (3) is
not 100% vested in the reinstated Matching Contribution Account
upon a subsequent Termination of Employment, the benefit to which
the Participant is entitled therefrom shall be determined as of the
Valuation Date coincident with or next following the subsequent
Termination of Employment as follows:
(A) To the value of such reinstated Account determined as of such
Valuation Date there shall be added the amount of the benefit
from the Account which the Participant received as a result of
the prior Termination of Employment.
(B) The applicable vested percentage from the vesting schedule
shall be applied to such sum.
(C) From the result obtained in (B), there shall be subtracted the
amount added to the value of the reinstated Account under (A).
(5) The amount required to reinstate an Account pursuant to paragraph
(3) as of the last day of a Plan Year shall be provided from the
following sources in the priority indicated:
(A) Amounts forfeited under this subsection (b) for the Plan Year.
(B) Employer contributions for the Plan Year.
(C) Net income or gain of the Fund not previously allocated to
other Accounts.
(6) If Forfeitures are to be applied as a credit against future
contributions and a Forfeiture attributable to a Participating
Employer would exceed the amount remaining due from that
Participating Employer for the Plan Year, the Forfeiture shall
instead occur on the first day of the following Plan Year.
(7) This subsection (b) shall not apply to any Forfeiture Account which
became a Forfeiture pursuant to the provisions of the Plan in
effect prior to the adoption of this version of this subsection.
Any such Forfeiture Account shall be disposed of pursuant to such
prior Plan provisions.
(c) The benefit under this section shall be paid at the times and in the
manner determined under Article X.
SEC. 9.3 DEATH. If a Participant's Termination of Employment is the result
of death, his or her Beneficiary shall be entitled to a benefit equal to the
value of all of the Participant's Accounts determined as of the Valuation Date
coincident with or next following the date of death. Such benefit shall be paid
at the times and in the manner determined under Article X. If a Participant's
death occurs after his or her Termination of Employment, distribution of the
balance of the Participant's Accounts shall be made to the Beneficiary in
accordance with the provisions of Article X.
SEC. 9.4 WITHDRAWALS OF BASIC CONTRIBUTIONS BEFORE TERMINATION OF
EMPLOYMENT. A Participant may request a cash withdrawal from his or her Basic
Contribution Account to meet a financial hardship at any time
27
<PAGE> 32
prior to the date benefits first become payable to the Participant under Sec.
9.1 or Sec. 9.2 pursuant to the following:
(a) A hardship withdrawal will be permitted only if the Company determines
that both of the following requirements are met:
(1) The distribution must be made on account of one of the following
reasons:
(A) Expenses for medical care described in section 213(d) of the
Code incurred by the Participant, the Participant's spouse, or
any dependents of the Participant, as defined in section 152 of
the Code, or expenses necessary for any of those persons to
obtain such medical care.
(B) Costs directly related to the purchase of the principal
residence of the Participant (excluding mortgage payments).
(C) Payment of tuition for the next 12 months of post-secondary
education for the Participant, or for his or her spouse,
children or dependents.
(D) The need to prevent the eviction of the Participant from his or
her principal residence or foreclosure on the mortgage of the
Participant's principal residence.
(E) Funeral expenses due to the death of the Participant's spouse
or dependent.
(2) All of the following requirements must be satisfied:
(A) The amount of the distribution cannot exceed the amount of the
immediate and heavy financial need of the Participant. The
Company may reasonably rely on the Participant's representation
as to that amount. However, the amount of the distribution may
include any amounts determined by the Company to be necessary
to pay any federal, state or local income taxes or penalties
reasonably expected to result from the distribution.
(B) The Participant must have obtained all distributions, other
than hardship distributions, and all nontaxable loans currently
available under all plans maintained by the Participating
Employers or any Affiliate.
(C) The Participant's elective contributions and employee
contributions under the Plan and all other qualified and
nonqualified plans of deferred compensation maintained by the
Participating Employers or any Affiliate will be suspended
pursuant to the terms of the plan or an otherwise legally
enforceable agreement for at least 12 months after the receipt
of the hardship distribution.
(D) For the calendar year immediately following the calendar year
of the hardship distribution, the Participant may not make
contributions under all plans maintained by the Participating
Employers or any Affiliate in excess of the applicable limit
under section 402(g) of the Code for such next calendar year
less the amount of the Participant's elective contributions for
the calendar year of the hardship distribution.
(E) Notwithstanding the foregoing provisions of this paragraph
(2), this paragraph (2) will be satisfied if the IRS issues a
revenue ruling, notice, or other document of general
applicability which establishes an alternative method under
which distributions will be deemed to be necessary to satisfy
an immediate and heavy financial need and all of the
requirements of such alternative method are met.
(b) With respect to any such hardship withdrawal, earnings credited to the
Participant's Basic Contribution Account cannot be withdrawn under this
section.
(c) No withdrawal shall be permitted under this section unless the
Participant has previously withdrawn or concurrently withdraws the
maximum amount of voluntary non-deductible contributions permitted to be
withdrawn under Sec. 9.5.
28
<PAGE> 33
(d) Requests for withdrawals under this section shall be made pursuant to
applicable rules and regulations adopted by the Company which are
uniform and non-discriminatory as to all Participants and shall be
submitted in writing to the Company on such form as the Company
prescribes for this purpose. The Company shall determine whether the
requirements of this section have been met.
(e) The Company shall direct the Funding Agency respecting the payment of
withdrawals under this section. Payment shall be made to the Participant
as soon as administratively feasible following a Valuation Date selected
by the Funding Agency for this purpose which is after the date the
withdrawal request was approved by the Company.
SEC. 9.5 WITHDRAWALS OF VOLUNTARY CONTRIBUTIONS BEFORE TERMINATION OF
EMPLOYMENT. At any time prior to the date benefits first become payable to the
Participant under Sec. 9.1 or Sec. 9.2, a Participant may make a withdrawal from
his or her Voluntary Contribution Account, if any, subject to the following:
(a) An election to make a withdrawal shall be on a form prescribed by and
filed with the Company.
(b) A withdrawal shall be paid from the Fund as soon as administratively
feasible following a Valuation Date selected by the Funding Agency for
this purpose which is after the date the withdrawal request was filed
with the Company.
(c) The amount of a withdrawal shall not exceed the balance standing to
the credit of the Participant's Voluntary Contribution Account.
SEC. 9.6 LOANS TO PARTICIPANTS. Commencing July 1, 1995, the Company may
authorize a loan to a Participant who is an employee of a Participating Employer
or an Affiliate and who makes application therefor. Each such loan shall be
subject to the following provisions:
(a) The amount of any loan to a Participant, when added to the balance of
all other loans to the Participant under this Plan and all related plans
which are outstanding on the day on which such loan is made, shall not
exceed the lesser of:
(1) $50,000, reduced by the excess (if any) of (i) the highest
outstanding balance of loans to the Participant from the Plan and
all related plans during the one-year period ending on the day
before the date the loan is made, over (ii) the outstanding balance
of loans to the Participant from the Plan and all related plans on
the date the loan is made; or
(2) 50% of the amount to which the Participant would be entitled in the
event his or her Termination of Employment were to occur on the
date the loan is made.
For purposes of this section, a related plan is any "qualified employer
plan", as defined in Code section 72(p)(4), sponsored by the
Participant's Participating Employer or any related employer, determined
according to Code section 72(p)(2)(D).
(b) The minimum amount of any loan shall be $1,000.
(c) Each loan shall be evidenced by the Participant's promissory note
payable to the order of the Funding Agency. Each loan shall be
adequately secured as determined by the Company. A loan shall be
considered adequately secured whenever the outstanding balance does not
exceed the amount in which the Participant would have a vested interest
in the event of his or her Termination of Employment.
(d) The Company shall determine the rate of interest to be paid with
respect to each loan, which shall be a reasonable rate of interest
within the meaning of Code section 4975. The rate shall be based on the
interest rates charged by persons in the business of lending money in
the region in which the Company operates for loans which would be made
under similar circumstances.
(e) Each such loan shall provide for the payment of accrued interest and
for repayment of principal in substantially equal installments not less
frequently than quarterly. There will be no penalty for prepayments of
any loan. While the Participant is employed by the Participating
Employers, all loans shall be repaid through payroll deductions to the
extent possible. The Participant shall execute any documents required to
authorize such deductions.
29
<PAGE> 34
(f) Each loan shall extend for a stated period determined by agreement of
the Participant and the Company, not exceeding five years. The
limitation in the preceding sentence shall not apply to any loan
designated by the Company as a home loan. For purposes of this
paragraph, a home loan is a loan used to acquire any dwelling unit which
within a reasonable time is to be used as the principal residence of the
Participant. The maximum duration of home loans shall be 20 years.
Notwithstanding the foregoing, all loans will become due and payable in
full upon the Participant's Termination of Employment unless subsection
(p) applies. A Participant is allowed to have only one home loan and one
other loan outstanding at any time.
(g) Failure to pay any installment of interest or principal when due shall
constitute a default with respect to that payment (subject to any
applicable grace period for correcting the default). Upon any such
default, the entire loan balance may be declared to be in default to the
extent permitted under the Participant's note. Events of default shall
also include any other events identified as such in the Participant's
note. In the event of a default on a loan, foreclosure on the note and
application of the Participant's Accounts to satisfy the note will not
occur until the earliest date on which the Participant or Beneficiary is
eligible to receive payment of benefits under the Plan.
(h) If a loan to a Participant is outstanding on the date a distribution
is to be made from the Fund with respect to the portion of the
Participant's Account or Accounts represented by the loan, the balance
of the loan, or a portion thereof equal to the amount to be distributed,
if less, shall on such date become due and payable. The portion of the
loan due and payable shall be satisfied by offsetting such amount
against the amount to be distributed to the Participant. Alternatively,
the portion of the Participant's Account or Accounts equal to the
outstanding balance on the loan may be distributed in kind by
distribution of the Participant's note.
(i) If a loan to a Participant is outstanding at the time of the
Participant's death, and if the loan is not repaid by the Participant's
executor or administrator, the note shall be distributed in kind to the
Participant's Beneficiary.
(j) The Company shall administer the loan program under this section and
shall direct the Funding Agency with respect to the making of loans to
Participants, the collection thereof, and all other matters pertaining
thereto. The Funding Agency shall follow such directions to the extent
possible and shall not take any independent action with respect to such
loans. The Funding Agency shall have no responsibility whatsoever with
respect to loans to Participants except to follow the directions of the
Company to the extent possible.
(k) In accordance with the foregoing standards and requirements, loans
shall be available to all Participants on a reasonably equivalent basis.
(l) All loans shall be governed by such non-discriminatory written rules
as the Company may adopt, which shall be deemed to be a part of this
Plan. Applications for loans shall be filed with the Company on such
forms as the Company may provide for this purpose.
(m) The Company shall cause to be furnished to any Participant receiving a
loan any information required to be furnished pursuant to the Federal
Truth In Lending Act, if applicable, or pursuant to any other applicable
law.
(n) The portion of a Participant's Account or Accounts represented by the
outstanding loan principal shall be segregated for investment purposes.
In lieu of sharing in income or losses on investments of the Fund, the
segregated portion of the Participant's Accounts shall be credited with
all interest paid by the Participant on the loan. Repayments of
principal and interest on a loan shall be reinvested in accordance with
the investment designation in effect under Sec. 7.3 for future
contributions on the date the repayment is received by the Funding
Agency. The Funding Agency may charge to the Participant's Accounts any
expenses attributable to the loan and such portion of the general
expenses of the Fund as the Funding Agency determines in its discretion
to be reasonable. If a Participant's Termination of Employment results
in a transfer to a Forfeiture Account, no portion of an Account
attributable to an outstanding loan may be transferred to the Forfeiture
Account.
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<PAGE> 35
(o) The Participant shall provide directions as to the investments held in
his or her Accounts that are to be liquidated to provide the Fund with
cash equal to the loan principal.
(p) Solely for purposes of this section, a former Participant (or any
Beneficiary of a deceased Participant) who is entitled to a benefit from
the Plan, and who is a "party in interest" as defined in section 3(14)
of ERISA, is considered to be an employee of a Participating Employer.
(q) No loan shall be made to a Participant who is a shareholder-employee
(as defined in Code section 1379(d), as in effect on the day before the
enactment of the Subchapter S Revision Act of 1982) unless a prohibited
transaction exemption for the loan has been obtained from the Department
of Labor.
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<PAGE> 36
ARTICLE X
DISTRIBUTION OF BENEFITS
SEC. 10.1 TIME AND METHOD OF PAYMENT. The benefit to which a Participant
or Beneficiary may become entitled under Article IX shall be distributed to that
individual at such time as he or she elects, subject to the following:
(a) The distribution may be made at any time after the date as of which
the Participant or Beneficiary becomes entitled to a benefit payment.
All distributions shall be made by payment in a single sum.
(b) Unless the Participant elects otherwise, distribution must be made no
later than the 60th day after the close of the Plan Year in which the
Participant reaches Normal Retirement Age or in which the Participant's
Termination of Employment occurs, whichever is later; provided, however,
that if the amount of the payment to be made cannot be determined by the
later of the aforesaid dates, a payment retroactive to such date may be
made no later than 60 days after the earliest date on which the amount
of such payment can be ascertained. For purposes of this subsection, the
failure of a Participant to elect to receive a distribution shall be
deemed to be an election to defer distribution of the benefit.
(c) The distribution to a Participant must be made by April 1 following
the calendar year in which the Participant attains age 70 1/2 unless the
Participant's death occurs before that date. However, if the Participant
attained age 70 1/2 before January 1, 1988 and is not a more than
5-percent owner, the distribution is not required to be made until April
1 following the calendar year in which the Participant's Termination of
Employment occurs, if later. For purposes of this subsection, a "more
than 5-percent owner" is a person who was a more than 5-percent owner of
a Participating Employer (as defined in Code section 416) at any time
during the Plan Year ending with or within the calendar year in which he
or she attained age 66 1/2 or any subsequent Plan Year.
(1) If a Participant is employed by a Participating Employer on the
date that a distribution is required to occur under this
subsection, the lump sum distribution requirement under subsection
(a) shall not apply until the Participant's Termination of
Employment occurs. The amount to be distributed on each date by
which a distribution is required prior to the Participant's
Termination of Employment will be determined under paragraphs (2)
and (3), below.
(2) The amount to be distributed to the Participant on or before April
1 following the calendar year in which the Participant attains age
70 1/2 shall be equal to the Participant's entire interest in the
Plan as of the December 31st preceding such calendar year divided
by the smaller of:
(A) The joint life and last survivor expectancy (determined
pursuant to Treasury Regulation .72-9) of the Participant and
the Participant's oldest designated Beneficiary, if any, based
on the age of each individual as of their birthdays in such
calendar year.
(B) In the case of distributions to a Participant whose designated
Beneficiary is not the Participant's spouse, the applicable
divisor provided in regulations under Code section 401(a)(9)(G)
relating to incidental death benefits.
(3) The amount to be distributed to the Participant by December 31 of
each calendar year following the year in which the Participant
attains age 70 1/2 shall be equal to the Participant's entire
interest in the Plan as of the December 31st preceding each such
calendar year divided by the divisor determined in paragraph (2)
reduced by one year for each subsequent calendar year.
(4) The Participant's entire remaining interest in the Plan shall be
distributed not later than December 31 of the calendar year in
which the Participant's Termination of Employment occurs, unless
the Participant's death occurs prior to that date.
(d) If the Participant dies before receiving the distribution and before
the date that the distribution was required to occur under subsection
(c), the Participant's Accounts shall be distributed to the
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Beneficiary not later than December 31 of the year containing the fifth
anniversary of the Participant's death; provided, however, that if the
designated Beneficiary is the surviving spouse of the Participant, the
payment may be made any time on or before the later of (i) December 31
of the year in which the Participant would have reached age 70 1/2, or
(ii) December 31 of the year following the year in which the
Participant's death occurred. If a surviving spouse who is entitled to
benefits under this subsection dies before the distribution to the
surviving spouse has been made, this subsection (other than the special
exception which applies to a designated Beneficiary who is the surviving
spouse of the Participant) shall be applied as if the surviving spouse
were the Participant, with the date of death of the surviving spouse
being substituted for the date of death of the Participant.
(e) If more than one Beneficiary is entitled to benefits following the
Participant's death, the interest of each Beneficiary shall be
segregated into a separate Account for purposes of applying this
section.
(f) For purposes of this section, "designated Beneficiary" means any
individual who is a Beneficiary pursuant to Article VIII.
(g) Notwithstanding the foregoing, if the total vested value of the
Accounts of a Participant (or a Beneficiary following the Participant's
death) is $3,500 or less on the Valuation Date coincident with or
immediately following the date the Participant's Termination of
Employment or death occurs, a single-sum distribution shall be made to
the Participant (or Beneficiary) as of the earliest date permitted by
the Plan. However, this subsection shall not apply to a Participant if
the total vested value of the Participant's Accounts exceeded $3,500 at
the time any previous distribution was made to the Participant.
(h) Notwithstanding any provision of the Plan to the contrary,
distributions under this section shall be made in accordance with the
requirements of Code section 401(a)(9), including the incidental death
benefit requirements of Code section 401(a)(9)(G) and the regulations
thereunder. No distribution option otherwise permitted under this Plan
will be available to a Participant or Beneficiary if such distribution
option does not meet the requirements of Code section 401(a)(9),
including subparagraph (G) thereof.
(i) Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election, a distributee may elect, at
the time and in the manner prescribed by the Company, to have any
portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this subsection:
(1) 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 to the extent such distribution is required under Code
section 401(a)(9), and the portion of any distribution that is not
includible in gross income.
(2) An "eligible retirement plan" is an individual retirement account
described in Code section 408(a), an individual retirement annuity
described in Code section 408(b), an annuity plan described in Code
section 403(a), or a qualified trust described in Code section
401(a), that accepts the 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.
(3) A "distributee" includes a Participant or former Participant. In
addition, the Participant's or former Participant's surviving
spouse and the Participant's or former Participant's spouse or
former spouse who is the alternate payee under a qualified domestic
relations order, as defined in Code section 414(p), are
distributees with regard to the interest of the spouse or former
spouse.
(4) A "direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
SEC. 10.2 DISTRIBUTION IN CASH ONLY. Distributions will be made in cash
only.
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SEC. 10.3 ACCOUNTING FOLLOWING TERMINATION OF EMPLOYMENT. If distribution
of a benefit is deferred or delayed for any reason, the undistributed Accounts
shall continue to be revalued as of each Valuation Date as provided in Article
VII. Payment shall be made as of a Valuation Date selected by the Funding Agency
which is within a reasonable time after the date the Participant (or Beneficiary
following the Participant's death) files the request for payment with the
Company and the request has been received by the Funding Agency.
SEC. 10.4 REEMPLOYMENT. Except where distributions are required under Sec.
10.1, entitlement to a distribution from the Fund shall cease upon reemployment
of a Participant in a regular position by a Participating Employer, and shall
recommence in accordance with the provisions of this Article upon the
Participant's subsequent Termination of Employment.
SEC. 10.5 SOURCE OF BENEFITS. All benefits to which persons become
entitled hereunder shall be provided only out of the Fund and only to the extent
that the Fund is adequate therefor. No benefits are provided under the Plan
except those expressly described herein.
SEC. 10.6 INCOMPETENT PAYEE. If in the opinion of the Company a person
entitled to payments hereunder is disabled from caring for his or her affairs
because of mental or physical condition, or age, payment due such person may be
made to such person's guardian, conservator, or other legal personal
representative upon furnishing the Company with evidence satisfactory to the
Company of such status. Prior to the furnishing of such evidence, the Company
may cause payments due the person under disability to be made, for such person's
use and benefit, to any person or institution then in the opinion of the Company
caring for or maintaining the person under disability. The Company shall have no
liability with respect to payments so made. The Company shall have no duty to
make inquiry as to the competence of any person entitled to receive payments
hereunder.
SEC. 10.7 BENEFITS MAY NOT BE ASSIGNED OR ALIENATED. Except as otherwise
expressly permitted by the Plan or required by law, the interests of persons
entitled to benefits under the Plan may not in any manner whatsoever be assigned
or alienated, whether voluntarily or involuntarily, or directly or indirectly.
However, the Plan shall comply with the provisions of any court order which the
Company determines is a qualified domestic relations order as defined in Code
section 414(p). Any expenses relating to review or administration of a domestic
relations order may be charged against the Accounts of the Participant and/or
the alternate payee. Notwithstanding any provisions in the Plan to the contrary,
an individual who is entitled to payments from the Plan as an "alternate payee"
pursuant to a qualified domestic relations order shall receive a lump sum
payment from the Plan as soon as administratively feasible after the Valuation
Date coincident with or next following the date of the Company's determination
that the order is a qualified domestic relations order, unless the order
specifically provides for payment to be made at a later time.
SEC. 10.8 PAYMENT OF TAXES. The Funding Agency may pay any estate,
inheritance, income, or other tax, charge, or assessment attributable to any
benefit payable hereunder which in the Funding Agency's opinion it shall be or
may be required to pay out of such benefit. The Funding Agency may require,
before making any payment, such release or other document from any taxing
authority and such indemnity from the intended payee as the Funding Agency shall
deem necessary for its protection.
SEC. 10.9 CONDITIONS PRECEDENT. No person shall be entitled to a benefit
hereunder until his or her right thereto has been finally determined by the
Company nor until the person has submitted to the Company relevant data
reasonably requested by the Company, including, but not limited to, proof of
birth or death.
SEC. 10.10 COMPANY DIRECTIONS TO FUNDING AGENCY. The Company shall issue
such written directions to the Funding Agency as are necessary to accomplish
distributions to the Participants and Beneficiaries in accordance with the
provisions of the Plan.
SEC. 10.11 EFFECT ON UNEMPLOYMENT COMPENSATION. For purposes of any
unemployment compensation law, a distribution hereunder in one sum to the extent
attributable to employer contributions, shall be considered to be a severance
payment and shall be allocated over a period of weeks equal to the one sum
payment divided by the employee's regular weekly pay while employed by the
Participating Employers, which period shall commence immediately following the
employee's Termination of Employment.
SEC. 10.12 SPECIAL DISTRIBUTION EVENTS. Notwithstanding anything herein to
the contrary, if the agreement between the buyer and the seller in one of the
following types of transaction provides that
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distributions are to be made to affected Participants, each such Participant
shall receive a distribution of his or her vested Account balance as soon as
administratively feasible after either of the following events:
(a) The disposition by a Participating Employer to an unrelated
corporation of substantially all of the assets (within the meaning of
Code section 409(d)(2)) used in a trade or business of such
Participating Employer if such Participating Employer continues to
maintain this Plan after the disposition, but only with respect to
employees who continue employment with the corporation acquiring such
assets.
(b) The disposition by a Participating Employer or by an Affiliate to an
unrelated entity of such corporation's interest in a subsidiary (within
the meaning of Code section 409(d)(3)) which was a Participating
Employer if such corporation continues to maintain this Plan, but only
with respect to employees who continue employment with such subsidiary.
All distributions under this section are subject to any applicable consent
requirements under Sec. 10.1. In addition, distributions under this section must
be made in a lump sum.
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ARTICLE XI
FUND
SEC. 11.1 COMPOSITION. All sums of money and all securities and other
property received by the Funding Agency for purposes of the Plan, together with
all investments made therewith, the proceeds thereof, and all earnings and
accumulations thereon, and the part from time to time remaining shall constitute
the "Fund". The Company may cause the Fund to be divided into any number of
parts for investment purposes or any other purposes necessary or advisable for
the proper administration of the Plan.
SEC. 11.2 FUNDING AGENCY. The Fund may be held and invested as one fund or
may be divided into any number of parts for investment purposes. Each part of
the Fund, or the entire Fund if it is not divided into parts for investment
purposes, shall be held and invested by one or more trustees or by an insurance
company. The trustee or trustees or the insurance company so acting with respect
to any part of the Fund is referred to herein as the Funding Agency with respect
to such part of the Fund. The selection and appointment of each Funding Agency
shall be made by the Company. The Company shall have the right at any time to
remove a Funding Agency and appoint a successor thereto, subject only to the
terms of any applicable trust agreement or group annuity contract. The Company
shall have the right to determine the form and substance of each trust agreement
and group annuity contract under which any part of the Fund is held, subject
only to the requirement that they are not inconsistent with the provisions of
the Plan. Any such trust agreement may contain provisions pursuant to which the
trustee will make investments on direction of a third party.
SEC. 11.3 COMPENSATION AND EXPENSES OF FUNDING AGENCY. The Funding Agency
shall be entitled to receive such reasonable compensation for its services as
may be agreed upon with the Company. The Funding Agency shall also be entitled
to reimbursement for all reasonable and necessary costs, expenses, and
disbursements incurred by it in the performance of its services. Such
compensation and reimbursements shall be paid from the Fund if not paid directly
by the Participating Employers in such proportions as the Company shall
determine.
SEC. 11.4 FUNDING POLICY. The Company shall adopt a procedure, and revise
it from time to time as it shall consider advisable, for establishing and
carrying out a funding policy and method consistent with the objectives of the
Plan and the requirements of ERISA. It shall advise each Funding Agency of the
funding policy in effect from time to time.
SEC. 11.5 SECURITIES AND PROPERTY OF PARTICIPATING EMPLOYERS. An agreement
with a Funding Agency may provide that all or any part of the Fund may be
invested in qualifying employer securities or qualifying employer real property,
as those terms are used in ERISA; provided, however, that the Company shall take
any steps necessary to assure that investments in securities of any
Participating Employer or any trade or business entity directly or indirectly
controlling, controlled by, or under Common Control with a Participating
Employer do not exceed those that can be acquired by that part of the Fund
attributable to contributions by Participating Employers (other than Basic
Contributions), as distinguished from that part of the Fund, if any,
attributable to contributions by Participants or Basic Contributions, unless
there has been compliance with any applicable securities laws. If qualifying
employer securities or qualifying employer real property are purchased or sold
as an investment of the Fund from or to a disqualified person or party in
interest, as those terms are used in ERISA, and if there is no generally
recognized market for such securities or property, the purchase shall be for not
more than fair market value and the sale shall be for not less than fair market
value, as determined in good faith by the Company or other Named Fiduciary
assigned such function, or if such assets are held in trust and the trust
agreement so provides, as determined in good faith by the trustee.
SEC. 11.6 NO DIVERSION. The Fund shall be for the exclusive purpose of
providing benefits to Participants under the Plan and their beneficiaries and
defraying reasonable expenses of administering the Plan. Such expenses may
include premiums for the bonding of Plan officials required by ERISA. No part of
the corpus or income of the Fund may be used for, or diverted to, purposes other
than for the exclusive benefit of employees of the Participating Employers or
their beneficiaries. Notwithstanding the foregoing:
(a) If any contribution or portion thereof is made by a Participating
Employer by a mistake of fact, the Funding Agency shall, upon written
request of the Company, return such contribution or portion
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thereof to the Participating Employer within one year after the payment
of the contribution to the Funding Agency; however, earnings
attributable to such contribution or portion thereof shall not be
returned to the Participating Employer but shall remain in the Fund, and
the amount returned to the Participating Employer shall be reduced by
any losses attributable to such contribution or portion thereof.
(b) Contributions by a Participating Employer are conditioned upon initial
qualification of the Plan as to such Participating Employer under Code
section 401(a). If the Plan receives an adverse determination letter
from the Internal Revenue Service with respect to such initial
qualification, the Funding Agency shall, upon written request of the
Company, return the amount of such contribution to the Participating
Employer within one year after the date of denial of qualification of
the Plan. For this purpose, the amount to be so returned shall be the
contributions actually made, adjusted for the investment experience of,
and any expenses chargeable against, the portion of the Fund
attributable to the contributions actually made.
(c) Contributions by the Participating Employers are conditioned upon the
deductibility of each contribution under Code section 404. To the extent
the deduction is disallowed, the Funding Agency shall return such
contribution to the Participating Employer within one year after the
disallowance of the deduction; however, earnings attributable to such
contribution (or disallowed portion thereof) shall not be returned to
the Participating Employer but shall remain in the Fund, and the amount
returned to the Participating Employer shall be reduced by any losses
attributable to such contribution (or disallowed portion thereof).
In the case of any such return of contribution the Company shall cause such
adjustments to be made to the Accounts of Participants as it considers fair and
equitable under the circumstances resulting in the return of such contribution.
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ARTICLE XII
ADMINISTRATION OF PLAN
SEC. 12.1 ADMINISTRATION BY COMPANY. The Company is the "administrator" of
the Plan for purposes of ERISA. Except as expressly otherwise provided herein,
the Company shall control and manage the operation and administration of the
Plan and make all decisions and determinations incident thereto. In carrying out
its Plan responsibilities, the Company shall have discretionary authority to
construe the terms of the Plan. Except in cases where the Plan expressly
provides to the contrary, action on behalf of the Company may be taken by any of
the following:
(a) The Board.
(b) The chief executive officer of the Company.
(c) Any person or persons, natural or otherwise, or committee, to whom
responsibilities for the operation and administration of the Plan are
allocated by the Company, by resolution of the Board or by the chief
executive officer of the Company, but action of such person or persons
or committee shall be within the scope of said allocation.
SEC. 12.2 CERTAIN FIDUCIARY PROVISIONS. For purposes of the Plan:
(a) Any person or group of persons may serve in more than one fiduciary
capacity with respect to the Plan.
(b) A Named Fiduciary, or a fiduciary designated by a Named Fiduciary
pursuant to the provisions of the Plan, may employ one or more persons
to render advice with regard to any responsibility such fiduciary has
under the Plan.
(c) To the extent permitted by any applicable trust agreement or group
annuity contract a Named Fiduciary with respect to control or management
of the assets of the Plan may appoint an investment manager or managers,
as defined in ERISA, to manage (including the power to acquire and
dispose of) any assets of the Plan.
(d) At any time the Plan has more than one Named Fiduciary, if pursuant to
the Plan provisions fiduciary responsibilities are not already allocated
among such Named Fiduciaries, the Company, by action of the Board or its
chief executive officer, may provide for such allocation; except that
such allocation shall not include any responsibility, if any, in a trust
agreement to manage or control the assets of the Plan other than a power
under the trust agreement to appoint an investment manager as defined in
ERISA.
(e) Unless expressly prohibited in the appointment of a Named Fiduciary
which is not the Company acting as provided in Sec. 12.1, such Named
Fiduciary by written instrument may designate a person or persons other
than such Named Fiduciary to carry out any or all of the fiduciary
responsibilities under the Plan of such Named Fiduciary; except that
such designation shall not include any responsibility, if any, in a
trust agreement to manage or control the assets of the Plan other than a
power under the trust agreement to appoint an investment manager as
defined in ERISA.
(f) A person who is a fiduciary with respect to the Plan, including a
Named Fiduciary, shall be recognized and treated as a fiduciary only
with respect to the particular fiduciary functions as to which such
person has responsibility.
Each Named Fiduciary (other than the Company), each other fiduciary, each person
employed pursuant to (b) above, and each investment manager shall be entitled to
receive reasonable compensation for services rendered, or for the reimbursement
of expenses properly and actually incurred in the performance of their duties
with the Plan and to payment therefor from the Fund if not paid directly by the
Participating Employers in such proportions as the Company shall determine.
Notwithstanding the foregoing, no person so serving who already receives
full-time pay from any employer or association of employers whose employees are
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Participants, or from an employee organization whose members are Participants,
shall receive compensation from the Plan, except for reimbursement of expenses
properly and actually incurred.
SEC. 12.3 DISCRIMINATION PROHIBITED. No person or persons in exercising
discretion in the operation and administration of the Plan shall discriminate in
favor of Highly Compensated Employees.
SEC. 12.4 EVIDENCE. Evidence required of anyone under this Plan may be by
certificate, affidavit, document, or other instrument which the person acting in
reliance thereon considers to be pertinent and reliable and to be signed, made,
or presented to the proper party.
SEC. 12.5 CORRECTION OF ERRORS. It is recognized that in the operation and
administration of the Plan certain mathematical and accounting errors may be
made or mistakes may arise by reason of factual errors in information supplied
to the Company or Funding Agency. The Company shall have power to cause such
equitable adjustments to be made to correct for such errors as the Company in
its discretion considers appropriate. Such adjustments shall be final and
binding on all persons. Any return of a contribution due to a mistake in fact
will be subject to Sec. 11.6.
SEC. 12.6 RECORDS. Each Participating Employer, each fiduciary with
respect to the Plan, and each other person performing any functions in the
operation or administration of the Plan or the management or control of the
assets of the Plan shall keep such records as may be necessary or appropriate in
the discharge of their respective functions hereunder, including records
required by ERISA or any other applicable law. Records shall be retained as long
as necessary for the proper administration of the Plan and at least for any
period required by ERISA or other applicable law.
SEC. 12.7 GENERAL FIDUCIARY STANDARD. Each fiduciary shall discharge its
duties with respect to the Plan solely in the interests of Participants and
their beneficiaries and with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent person acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims.
SEC. 12.8 PROHIBITED TRANSACTIONS. A fiduciary with respect to the Plan
shall not cause the Plan to engage in any prohibited transaction within the
meaning of ERISA.
SEC. 12.9 CLAIMS PROCEDURE. The Company shall establish a claims procedure
consistent with the requirements of ERISA. Such claims procedure shall provide
adequate notice in writing to any Participant or beneficiary whose claim for
benefits under the Plan has been denied, setting forth the specific reasons for
such denial, written in a manner calculated to be understood by the claimant and
shall afford a reasonable opportunity to a claimant whose claim for benefits has
been denied for a full and fair review by the appropriate Named Fiduciary of the
decision denying the claim.
SEC. 12.10 BONDING. Plan personnel shall be bonded to the extent required
by ERISA. Premiums for such bonding may, in the sole discretion of the Company,
be paid in whole or in part from the Fund. Such premiums may also be paid in
whole or in part by the Participating Employers in such proportions as the
Company shall determine. The Company may provide by agreement with any person
that the premium for required bonding shall be paid by such person.
SEC. 12.11 WAIVER OF NOTICE. Any notice required hereunder may be waived
by the person entitled thereto.
SEC. 12.12 AGENT FOR LEGAL PROCESS. The Company shall be the agent for
service of legal process with respect to any matter concerning the Plan, unless
and until the Company designates some other person as such agent.
SEC. 12.13 INDEMNIFICATION. In addition to any other applicable provisions
for indemnification, the Participating Employers jointly and severally agree to
indemnify and hold harmless, to the extent permitted by law, each director,
officer, and employee of the Participating Employers against any and all
liabilities, losses, costs, or expenses (including legal fees) of whatsoever
kind and nature which may be imposed on, incurred by, or asserted against such
person at any time by reason of such person's services as a fiduciary in
connection with the Plan, but only if such person did not act dishonestly, or in
bad faith, or in willful violation of the law or regulations under which such
liability, loss, cost, or expense arises.
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ARTICLE XIII
AMENDMENT, TERMINATION, MERGER
SEC. 13.1 AMENDMENT. Subject to the non-diversion provisions of Sec. 11.6,
the Company, by action of the Board, or by written action of a person so
authorized by resolution of the Board, may amend the Plan at any time and from
time to time. No action by a person other than the Board shall be an amendment
of the Plan unless it specifically references the Plan and states that it alters
the terms or conditions of the Plan. No amendment of the Plan shall have the
effect of changing the rights, duties, and liabilities of any Funding Agency
without its written consent. Also, no amendment shall divest a Participant or
Beneficiary of Accounts accrued prior to the amendment or decrease a
Participant's accrued benefit except to the extent permitted by Code section
411(d)(6).
(a) Promptly upon adoption of any amendment to the Plan, the Company will
furnish a copy of the amendment, together with a certificate evidencing
its due adoption, as follows:
(1) To each Funding Agency then acting.
(2) To any other Participating Employer who is not under Common Control
with the Company. The amendment shall be effective as to such a
Participating Employer and its employees unless, within 30 days of
receipt of the certificate it notifies the Company and each Funding
Agency in writing that it is discontinuing its joint participation
in the Plan pursuant to Sec. 13.8.
(b) If an amendment to the Plan changes the vesting schedule of the Plan,
each Participant having not less than three years of service by the end
of the election period with respect to such amendment shall be permitted
within such election period to elect to have his or her vested
percentage computed under the Plan without regard to such amendment.
Each election shall be made in writing by filing with the Company within
the election period a form available from the Company for the purpose.
The election period shall be a reasonable period determined by the
Company commencing not later than the date the amendment is adopted and
shall be in conformance with any applicable regulation prescribed by the
Secretary of Labor or the Secretary of the Treasury. Notwithstanding the
foregoing, no election need be provided for any Participant whose vested
percentage under the Plan, as amended, cannot at any time be less than
the vested percentage determined without regard to such amendment.
SEC. 13.2 PERMANENT DISCONTINUANCE OF CONTRIBUTIONS. The Company, by
action of the Board, may completely discontinue contributions in support of the
Plan by all Participating Employers. In such event, notwithstanding any
provisions of the Plan to the contrary, (i) no employee shall become a
Participant after such discontinuance, (ii) any then existing Forfeiture Account
of a Participant shall revert to its prior status as a Matching Contribution
Account and be nonforfeitable, and (iii) the Accounts of each Participant in the
employ of the Participating Employers at the time of such discontinuance shall
be nonforfeitable. Subject to the foregoing, all of the provisions of the Plan
shall continue in effect, and upon entitlement thereto distributions shall be
made in accordance with the provisions of Article X.
SEC. 13.3 TERMINATION. The Company, by action of the Board, may terminate
the Plan as applicable to all Participating Employers and their employees. After
such termination no employee shall become a Participant, no further
contributions shall be made, and any then existing Forfeiture Account of a
Participant shall revert to its prior status as a Matching Contribution Account
and be nonforfeitable. The Accounts of each Participant in the employ of the
Participating Employers at the time of such termination shall be nonforfeitable,
the Participant shall be entitled to a benefit equal to the value of those
Accounts determined as of the Valuation Date coincident with or next following
the termination of the Plan, distributions shall be made to Participants and
Beneficiaries promptly after the termination of the Plan, but not before the
earliest date permitted under the Code and applicable regulations, and the Plan
and any related trust agreement or group annuity contract shall continue in
force for the purpose of making such distributions.
SEC. 13.4 PARTIAL TERMINATION. If there is a partial termination of the
Plan, either by operation of law, by amendment of the Plan, or for any other
reason, which partial termination shall be confirmed by the
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Company, any then existing Forfeiture Account of a Participant (who was in the
classification of employees with respect to which the partial termination
occurs) shall revert to its prior status as a Matching Contribution Account and
be nonforfeitable, and the Accounts of each Participant with respect to whom the
partial termination applies shall be nonforfeitable. Subject to the foregoing,
all of the provisions of the Plan shall continue in effect as to each such
Participant, and upon entitlement thereto distributions shall be made in
accordance with the provisions of Article X.
SEC. 13.5 MERGER, CONSOLIDATION, OR TRANSFER OF PLAN ASSETS. In the case
of any merger or consolidation of the Plan with any other plan, or in the case
of the transfer of assets or liabilities of the Plan to any other plan,
provision shall be made so that each Participant and Beneficiary would (if such
other plan then terminated) receive a benefit immediately after the merger,
consolidation, or transfer which is equal to or greater than the benefit he or
she would have been entitled to receive immediately before the merger,
consolidation, or transfer (if the Plan had then terminated). No such merger,
consolidation, or transfer shall be effected until such statements with respect
thereto, if any, required by ERISA to be filed in advance thereof have been
filed.
SEC. 13.6 DEFERRAL OF DISTRIBUTIONS. Notwithstanding any provisions of the
Plan to the contrary, in the case of a complete discontinuance of contributions
to the Plan or of a complete or partial termination of the Plan, the Company or
the Funding Agency may defer any distribution of benefit payments to
Participants and Beneficiaries with respect to which such discontinuance or
termination applies (except for distributions which are required to be made
under Sec. 10.1) until after the following have occurred:
(a) Receipt of a final determination from the Treasury Department or any
court of competent jurisdiction regarding the effect of such
discontinuance or termination on the qualified status of the Plan under
Code section 401(a).
(b) Appropriate adjustment of Accounts to reflect taxes, costs, and
expenses, if any, incident to such discontinuance or termination.
SEC. 13.7 REORGANIZATIONS OF PARTICIPATING EMPLOYERS. In the event two or
more Participating Employers are consolidated or merged or in the event one or
more Participating Employers acquires the assets of another Participating
Employer, the Plan shall be deemed to have continued, without termination and
without a complete discontinuance of contributions, as to all the Participating
Employers involved in such reorganization and their employees. In such event, in
administering the Plan the corporation resulting from the consolidation, the
surviving corporation in the merger, or the employer acquiring the assets shall
be considered as a continuation of all of the Participating Employers involved
in the reorganization.
SEC. 13.8 DISCONTINUANCE OF JOINT PARTICIPATION OF A PARTICIPATING
EMPLOYER. The Company, by action of the Board, may discontinue the joint
participation in the Plan by another Participating Employer. A Participating
Employer which is not under Common Control with the Company may discontinue its
joint participation in the Plan with the other Participating Employers by action
of its board of directors and on appropriate written notice to the Company and
each Funding Agency then acting.
(a) If the Company determines in its sole discretion to spin off the
portion of the Plan attributable to the withdrawing employer, the
Company shall cause a determination to be made of the equitable part of
the Fund assets held on account of Participants of the withdrawing
employer and their Beneficiaries. The Company shall direct the Funding
Agency or Funding Agencies to transfer assets representing such
equitable part to a separate fund for the plan of the withdrawing
employer. Such withdrawing employer may thereafter exercise, with
respect to such separate fund, all the rights and powers reserved to the
Company with respect to the Fund. The plan of the withdrawing employer
shall, until amended by the withdrawing employer, continue with the same
terms as the Plan herein, except that with respect to the separate plan
of the withdrawing employer the words "Participating Employer",
"Participating Employers", and "Company" shall thereafter be considered
to refer only to the withdrawing employer. Any such spinoff shall be
effected in such manner that each Participant or Beneficiary would (if
the Plan and the plan of the withdrawing employer then immediately
terminated) receive a benefit which is equal to or greater than the
benefit the individual would have been entitled to receive immediately
before such spinoff if the Plan had then
41
<PAGE> 46
terminated. No transfer of assets pursuant to this section shall be
effected until such statements with respect thereto, if any, required by
ERISA to be filed in advance thereof have been filed.
(b) If subsection (a) does not apply, the Accounts of Participants of the
withdrawing employer and their Beneficiaries shall continue to be held
in the Plan for distribution in accordance with the provisions hereof.
SEC. 13.9 PARTICIPATING EMPLOYERS NOT UNDER COMMON CONTROL. If a
Participating Employer is not under Common Control with the Company, the
provisions of the Plan (other than this Article XIII) shall be applied as though
a separate plan is being maintained for that Participating Employer to the
extent required by Code section 413(c).
42
<PAGE> 47
ARTICLE XIV
TOP-HEAVY PLAN PROVISIONS
SEC. 14.1 KEY EMPLOYEE DEFINED. "Key Employee" means any employee or
former employee of the employer who at any time during the determination period
was an officer of the employer or is deemed to have had an ownership interest in
the employer and who is within the definition of key employee in Code section
416(i). "Non-Key Employee" means any employee who is not a Key Employee.
SEC. 14.2 DETERMINATION OF TOP-HEAVY STATUS. The top-heavy status of the
Plan shall be determined according to Code section 416 and the regulations
thereunder, using the following standards and definitions:
(a) The Plan is a Top-Heavy Plan for a Plan Year if either of the
following applies:
(1) If this Plan is not part of a required aggregation group and the
top-heavy ratio for this Plan exceeds 60 percent.
(2) If this Plan is part of a required aggregation group of plans and
the top-heavy ratio for the group of plans exceeds 60 percent.
Notwithstanding paragraphs (1) and (2) above, the Plan is not a
Top-Heavy Plan with respect to a Plan Year if it is part of a permissive
aggregation group of plans for which the top-heavy ratio does not exceed
60 percent.
(b) The "top-heavy ratio" shall be determined as follows:
(1) If the employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and has not
maintained any defined benefit plan which during the 5-year period
ending on the determination date has or has had accrued benefits,
the top-heavy ratio for this Plan or for the required or permissive
aggregation group (as appropriate) is a fraction, the numerator of
which is the sum of the account balances of all Key Employees under
the Plan or plans as of the determination date (including any part
of any account balance distributed in the five-year period ending
on the determination date), and the denominator of which is the sum
of the account balances (including any part of any account balance
distributed in the five-year period ending on the determination
date) of all employees under the Plan or plans as of the
determination date. Both the numerator and denominator of the
top-heavy ratio shall be increased to reflect any contribution not
actually made as of the determination date but which is required to
be taken into account on that date under Code section 416 and the
regulations thereunder.
(2) If the employer maintains one or more defined contribution plans
(including any simplified employee pension plan) and maintains or
has maintained one or more defined benefit plans which during the
5-year period ending on the determination date has or has had any
accrued benefits, the top-heavy ratio for any required or
permissive aggregation group (as appropriate), is a fraction, the
numerator of which is the sum of the account balances of all Key
Employees under the aggregated defined contribution plan or plans,
determined according to paragraph (1) above, and the present value
of accrued benefits of all Key Employees under the defined benefit
plan or plans as of the determination date, and the denominator of
which is the sum of such account balances of all employees under
the aggregated defined contribution plan or plans and the present
value of accrued benefits of all employees under the defined
benefit plan or plans as of the determination date. The account
balances and accrued benefits in both the numerator and denominator
of the top-heavy ratio shall be adjusted to reflect any
distributions made in the five-year period ending on the
determination date and any contributions due but unpaid as of the
determination date.
(3) For purposes of paragraphs (1) and (2), the value of account
balances and the present value of accrued benefits will be
determined as of the most recent valuation date that falls within
the 12-month period ending on the determination date, except as
provided in Code section 416 and the regulations thereunder for the
first and second plan years of a defined
43
<PAGE> 48
benefit plan. The account balances and accrued benefits of an
employee (i) who is not a Key Employee but who was a Key Employee
in a prior year, or (ii) who has not been credited with at least
one hour of service with any employer maintaining the Plan at any
time during the 5-year period ending on the determination date,
will be disregarded. The calculation of the top-heavy ratio and the
extent to which distributions, rollovers, and transfers are taken
into account will be made in accordance with Code section 416 and
the regulations thereunder. When aggregating plans, the value of
account balances and accrued benefits will be calculated with
reference to the determination dates that fall within the same
calendar year.
(c) "Required aggregation group" means (i) each qualified plan of the
employer in which at least one Key Employee participates in the Plan
Year containing the determination date, or any of the four preceding
Plan Years, and (ii) any other qualified plan of the employer that
enables a plan described in (i) to meet the requirements of Code
sections 401(a)(4) and 410.
(d) "Permissive aggregation group" means the required aggregation group of
plans plus any other plan or plans of the employer which, when
consolidated as a group with the required aggregation group, would
continue to satisfy the requirements of Code sections 401(a)(4) and 410.
(e) "Determination date" means, for any Plan Year subsequent to the first
Plan Year, the last day of the preceding Plan Year. For the first Plan
Year of the Plan, the last day of that year is the determination date.
(f) The "determination period" for a Plan Year is the Plan Year in which
the applicable determination date occurs and the four preceding Plan
Years.
(g) The "valuation date" is the last day of each Plan Year and is the date
as of which account balances or accrued benefits are valued for purposes
of calculating the top-heavy ratio.
(h) For purposes of establishing the "present value" of benefits under a
defined benefit plan to compute the top-heavy ratio, any benefit shall
be discounted only for mortality and interest based on the interest rate
and mortality table specified in the defined benefit plan for this
purpose.
(i) If an individual has not performed services for the employer at any
time during the five-year period ending on the determination date with
respect to a Plan Year, any account balance or accrued benefit for such
individual shall not be taken into account for such Plan Year.
(j) For purposes of determining if a defined benefit plan included in a
required aggregation group of which this Plan is a part is a Top-Heavy
Plan, the accrued benefit to any employee (other than a Key Employee)
shall be determined as follows:
(1) Under the method which is used for accrual purposes under all
defined benefit plans maintained by the employer.
(2) If there is no method described in paragraph (1), as if such
benefit accrued not more rapidly than the lowest accrual rate
permitted under Code section 411(b)(1)(C).
SEC. 14.3 MINIMUM CONTRIBUTION REQUIREMENT. For any Plan Year with respect
to which the Plan is a Top-Heavy Plan, the employer contributions and
Forfeitures allocated to each Active Participant who is not a Key Employee and
whose Termination of Employment has not occurred prior to the end of such Plan
Year shall not be less than the minimum amount determined in accordance with the
following:
(a) The minimum amount shall be the amount equal to that percentage of the
Participant's Compensation for the Plan Year which is the smaller of:
(1) 3 percent.
(2) The percentage which is the largest percentage of Compensation
allocated to any Key Employee from employer contributions and
Forfeitures for such Plan Year.
For purposes of this section, "Compensation" means the amounts specified
in Sec. 6.1(f), subject to the limitation in Sec. 2.8(d).
44
<PAGE> 49
(b) For purposes of this section, any employer contribution attributable
to a salary reduction or similar arrangement shall be taken into
account. Any employer contribution attributable to a salary reduction or
similar arrangement (including Basic Contributions and Matching
Contributions under this Plan) may not be used to satisfy the minimum
amount of employer contributions which must be allocated under
subsection (a).
(c) This section shall not apply to any Participant who is covered under
any other plan of the employer under which the minimum contribution or
minimum benefit requirement applicable to Top-Heavy Plans will be
satisfied.
SEC. 14.4 VESTING SCHEDULE. If the Plan is a Top-Heavy Plan, a
Participant's vested accrued benefit under the Plan derived from employer
contributions shall be the greater of the vested accrued benefit attributable to
such contributions determined under Sec. 9.2 or the vested accrued benefit
determined under the following subsections:
(a) Subject to the following subsections, the vested percentage applied to
the Participant's Accounts attributable to employer contributions shall
be determined from the following table:
<TABLE>
<CAPTION>
YEARS OF VESTING SERVICE VESTED PERCENTAGE
----------------------------------------------------- -----------------
<S> <C>
Less than 2.......................................... 0%
2 but less than 3.................................... 20%
3 but less than 4.................................... 40%
4 but less than 5.................................... 60%
5 but less than 6.................................... 80%
6 or more............................................ 100%
</TABLE>
(b) Years of Vesting Service for purposes of this section shall be as
defined in Sec. 3.6.
(c) This section shall not apply to a Participant who has no Hours of
Service after the Plan becomes a Top-Heavy Plan.
(d) If the Plan ceases to be a Top-Heavy Plan and continues to be a
non-Top-Heavy Plan until the Participant's Termination of Employment,
the Participant's Accounts attributable to employer contributions for
purposes of this section shall not include the portion of such Accounts
attributable to employer contributions for periods after such cessation.
However, for purposes of Sec. 13.1(b), the vesting schedule of the Plan
shall be deemed to have been amended effective as of the first day of
the Plan Year following the last Plan Year for which the Plan was a
Top-Heavy Plan.
SEC. 14.5 PARTICIPATION UNDER DEFINED BENEFIT PLAN AND DEFINED CONTRIBUTION
PLAN. If a Participant is also a participant in a defined benefit plan
maintained by the employer, with respect to any Plan Year for which the Plan is
a Top-Heavy Plan, Sec. 6.1(d) shall be applied:
(a) By substituting "1.0" for "1.25" in paragraphs (2)(B) and (3)(B) of
Code section 415(e).
(b) By substituting "$41,500" for "$51,875" in Code section
415(e)(6)(B)(i).
The foregoing provisions of this section shall be suspended with respect to
any individual so long as there are no employer contributions, forfeitures, or
voluntary nondeductible contributions allocated to such individual, and no
defined benefit plan accruals for such individual, either under this Plan or
under any other plan that is in a required aggregation group of plans, within
the meaning of Code section 416(g)(2)(A)(i), that includes this Plan.
SEC. 14.6 DEFINITION OF EMPLOYER. For purposes of this Article XIV, the
term "employer" means all Participating Employers and any trade or business
entity under Common Control with a Participating Employer.
SEC. 14.7 EXCEPTION FOR COLLECTIVE BARGAINING UNIT. Sections 14.3, and
14.4 shall not apply with respect to any employee included in a unit of
employees covered by an agreement which the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives and one or more
employers if there is evidence that retirement benefits were the subject of good
faith bargaining between such employee representative and such employer or
employers.
45
<PAGE> 50
ARTICLE XV
MISCELLANEOUS PROVISIONS
SEC. 15.1 INSURANCE COMPANY NOT RESPONSIBLE FOR VALIDITY OF PLAN. No
insurance company that issues a contract under the Plan shall have any
responsibility for the validity of the Plan. An insurance company to which an
application may be submitted hereunder may accept such application and shall
have no duty to make any investigation or inquiry regarding the authority of the
applicant to make such application or any amendment thereto or to inquire as to
whether a person on whose life any contract is to be issued is entitled to such
contract under the Plan.
SEC. 15.2 HEADINGS. Headings at the beginning of articles and sections
hereof are for convenience of reference, shall not be considered a part of the
text of the Plan, and shall not influence its construction.
SEC. 15.3 CAPITALIZED DEFINITIONS. Capitalized terms used in the Plan
shall have their meaning as defined in the Plan unless the context clearly
indicates to the contrary.
SEC. 15.4 GENDER. Any references to the masculine gender include the
feminine and vice versa.
SEC. 15.5 USE OF COMPOUNDS OF WORD "HERE". Use of the words "hereof",
"herein", "hereunder", or similar compounds of the word "here" shall mean and
refer to the entire Plan unless the context clearly indicates to the contrary.
SEC. 15.6 CONSTRUED AS A WHOLE. The provisions of the Plan shall be
construed as a whole in such manner as to carry out the provisions thereof and
shall not be construed separately without relation to the context.
46
<PAGE> 1
EXHIBIT 5
DEPARTMENT OF TREASURY
<TABLE>
<S> <C>
INTERNAL REVENUE SERVICE Employer Identification Number:
DISTRICT DIRECTOR 42-1285297
P.O. BOX A-3617 DPN20-6 File Folder Number:
CHICAGO, IL 60690 36010329
Person to Contact:
Date: OCT-26-1994 TECHNICAL SCREENER
Contact Telephone Number:
GENERAL GROWTH MANAGEMENT INC. (312) 435-1040
C/O RICHARD A. NELSON Plan Name:
FAEGRE & BENSON SAVINGS PLAN
2700 NORWEST CENTER 90 SO. 7TH ST.
MINNEAPOLIS, MN 55402 Plan Number: 002
</TABLE>
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend on
its effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination is subject to your adoption of the proposed amendments
submitted in your letter dated June 30, 1994. The proposed amendments should be
adopted on or before the date prescribed by the regulations under Code section
401(b).
This plan has been mandatorily disaggregated, permissively aggregated, or
restructured to satisfy the nondiscrimination requirements.
This letter is issued under Rev. Proc. 93-39 and considers the amendments
required by the Tax Reform Act of 1986 except as otherwise specified in this
letter.
This plan qualifies for Extended Reliance described in the last paragraph
of Publication 794 under the caption "Limitations of a Favorable Determination
Letter".
We have sent a copy of this letter to your representative as indicated in
the power of attorney.
<PAGE> 2
GENERAL GROWTH MANAGEMENT INC.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,
Marilyn W. Day
District Director
Enclosures:
Publication 794
Reporting & Disclosure Guide for Employee Benefit Plans
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
General Growth Properties, Inc. on Form S-8 of our reports dated February 13,
1996, on our audits of the consolidated financial statements and financial
statement schedule of General Growth Properties, Inc. as of December 31, 1995
and 1994, and for the three years in the period ended December 31, 1995, and of
our report dated February 13, 1996, on our audits of the consolidated financial
statements of CenterMark Properties, Inc. as of December 31, 1995 and the
periods from February 12, 1994 through December 31, 1994 and from January 1,
1994 through February 12, 1994, which reports are included in the Annual Report
on Form 10-K.
Coopers & Lybrand L.L.P.
Chicago, Illinois
August 27, 1996
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement of General Growth Properties, Inc. on Form S-8 of our report dated
March 15, 1996 on our audit of the consolidated financial statements of
GGP/Homart, Inc. as of December 31, 1995, and for the period from December 22,
1995 (Date of Acquisition) through December 31, 1995, appearing in the Annual
Report on Form 10-K of General Growth Properties, Inc. for the year ended
December 31, 1995.
DELOITTE & TOUCHE LLP
Chicago, Illinois
August 30, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement of
General Growth Properties, Inc. on Form S-8 of our report dated February 25,
1994 on our audit of the consolidated financial statements of CenterMark
Properties, Inc. for the year ended December 31, 1993, appearing in the Annual
Report on Form 10-K of General Growth Properties, Inc. for the year ended
December 31, 1995.
DELOITTE & TOUCHE LLP
St. Louis, Missouri
August 30, 1996
