<PAGE> 1
As filed with the Securities and Exchange Commission on October 1, 1996.
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SPIEKER PROPERTIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MARYLAND 94-3185802
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2180 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(415) 854-5600
(Address of Principal Executive Offices)
SPIEKER PROPERTIES, L. P.
SPIEKER PROPERTIES RETIREMENT SAVINGS PLAN
(Full Title of Plans)
---------------
CRAIG G. VOUGHT
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
2180 SAND HILL ROAD
MENLO PARK, CALIFORNIA 94025
(Name and Address of Agent for Service)
(415) 854-5600
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
STEPHEN J. SCHRADER, ESQ.
JUSTIN L. BASTIAN, ESQ.
MORRISON & FOERSTER LLP
755 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(415) 813-5600
---------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE(1) PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0001
par value per share 100,000 $29.1875 $2,918,750 $1,006.47
==============================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(h) and (c) under the Securities Act of 1933, based
upon an average of the high and low prices of Spieker Properties, Inc.
common stock reported on the New York Stock Exchange on September 27, 1996.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Spieker Properties Retirement Savings
Plan described herein.
==========================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION BY REFERENCE TO PRIOR FORM S-8.
In accordance with General Instruction E to Form S-8, the contents
of the Registrant's Registration Statements on Form S-8, Commission File No.
33-74736, including exhibits thereto, are hereby incorporated by reference into
this Registration Statement, except as the same may be modified by the
information set forth herein.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Spieker Properties, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference herein:
(a) The Registrant's Annual Reports on Form 10-K and Form 10-K/A (Amendment
No. 1) for the Fiscal Year ended December 31, 1995, each as filed with the
Commission;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 and Quarterly Report on Form 10-Q for the quarter ended June 30,
1996, each as filed with the Commission;
(c) The Registrant's Current Report on Form 8-K dated July 15, 1996, the
Registrant's Current Report on Form 8-K dated June 18, 1996, the Registrant's
Current Report on Form 8-K dated February 26, 1996 and the Registrant's Current
Report on Form 8-K dated January 24, 1996, each filed with the Commission; and
(d) The description of the Registrant's Common Stock contained in the
Company's Registration Statement on Form 8-A (File No. 1-12528), filed with the
Commission under the Exchange Act and including any amendment or report filed
for the purposes of updating such description.
All documents filed by the Registrant with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, and prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference into this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 8. EXHIBITS.
4.1 Articles of Incorporation, as amended, of the Registrant
(incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-11 (File
No. 33-67906))
II-2
<PAGE> 3
4.2 Articles Supplementary of Spieker Properties, Inc. for
Series A Preferred Stock (incorporated by reference to
Exhibit 4.2 to Spieker Properties, Inc.'s Report on Form
10-Q for the quarter ended March 31, 1994)
4.3 Articles Supplementary of Spieker Properties, Inc. for
Class B Common Stock (incorporated by reference to
Exhibit 4.2 to Spieker Properties, Inc.'s Report on Form
10-Q for the quarter ended March 31, 1995)
4.4 Articles Supplementary of Spieker Properties, Inc. for
the Series B Preferred Stock (incorporated by reference
to Exhibit 3.5 to Spieker Properties, Inc.'s Report on
Form 10-K for the Fiscal Year ended December 31, 1995)
4.5 Articles Supplementary of Spieker Properties, Inc. for
the Class C Common Stock (incorporated by reference to
Exhibit 3.6 to Spieker Properties, Inc.'s Report on Form
10-K for the Fiscal Year ended December 31, 1995)
4.6 Articles of Amendment of Spieker Properties, Inc.
(incorporated by reference to Exhibit 3.2 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1996)
4.7 Spieker Properties Retirement Savings Plan and Trust
Agreement
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (See page II-4)
In accordance with Item 8(b) of Form S-8 the Registrant hereby undertakes to
submit the Spieker Properties Retirement Savings Plan and Trust Agreement and
any amendments thereto (the "Plan") to the Internal Revenue Service ("IRS") in a
timely manner and has made or will make all changes required by the IRS in order
to qualify the Plan.
II-3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Spieker Properties, Inc. 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 Menlo Park, State of California, on
October 1, 1996.
SPIEKER PROPERTIES, INC.
By: /s/ Craig G. Vought
-------------------------------------
Craig G. Vought
Executive Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Warren E.
Spieker, Dennis E. Singleton, John K. French and Craig G. Vought, and each of
them, as attorneys-in-fact, each with the power of substitution, for him in any
and all capacities, to sign any amendment to this Registration Statement and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting to said
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact or any
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Warren E. Spieker, Jr. Chairman of the Board, October 1, 1996
- ---------------------------------- Director and
Warren E. Spieker, Jr. Chief Executive Officer
(Principal Executive Officer)
/s/ John K. French Executive Vice President, October 1, 1996
- ---------------------------------- Chief Operating Officer
John K. French and Director
/s/ Dennis E. Singleton Executive Vice President, October 1, 1996
- ---------------------------------- Chief Investment Officer
Dennis E. Singleton and Director
</TABLE>
II-4
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Elke Strunka Vice President and October 1, 1996
- ---------------------------------- Principal Accounting Officer
Elke Strunka (Principal Accounting Officer)
/s/ Craig G. Vought Executive Vice President October 1 , 1996
- ---------------------------------- and Chief Financial Officer
Craig G. Vought (Principal Financial Officer)
Director October 1, 1996
- ----------------------------------
Harold M. Messmer
/s/ David M. Petrone Director October 1, 1996
- ----------------------------------
David M. Petrone
/s/ William S. Thompson, Jr. Director October 1, 1996
- ----------------------------------
William S. Thompson, Jr.
</TABLE>
II-5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
4.1 Articles of Incorporation, as amended, of the Registrant (incorporated
by reference to Exhibit 3.1 to the Registrant's Registration Statement
on Form S-11 (File No. 33-67906))
4.2 Articles Supplementary of Spieker Properties, Inc. for Series A
Preferred Stock (incorporated by reference to Exhibit 4.2 to Spieker
Properties, Inc.'s Report on Form 10-Q for the quarter ended March
31, 1994)
4.3 Articles Supplementary of Spieker Properties, Inc. for Class B
Common Stock (incorporated by reference to Exhibit 4.2 to Spieker
Properties, Inc.'s Report on Form 10-Q for the quarter ended March
31, 1995)
4.4 Articles Supplementary of Spieker Properties, Inc. for the Series B
Preferred Stock (incorporated by reference to Exhibit 3.5 to Spieker
Properties, Inc.'s Report on Form 10-K for the Fiscal Year ended
December 31, 1995)
4.5 Articles Supplementary of Spieker Properties, Inc. for the Class C
Common Stock (incorporated by reference to Exhibit 3.6 to Spieker
Properties, Inc.'s Report on Form 10-K for the Fiscal Year ended
December 31, 1995)
4.6 Articles of Amendment of Spieker Properties, Inc. (incorporated by
reference to Exhibit 3.2 to Spieker Properties, Inc.'s Quarterly Report
on Form 10-Q for the quarter ended June 30, 1996)
4.7 Spieker Properties Retirement Savings Plan and Trust Agreement
23.1 Consent of Arthur Andersen LLP
24.1 Power of Attorney (see page II-4)
</TABLE>
II-6
<PAGE> 1
BZW BARCLAYS GLOBAL INVESTORS
Spieker Properties
Retirement Savings
Plan and Trust Agreement
As Amended and Restated
Effective October 1, 1996
<PAGE> 2
Spieker Properties Retirement Savings Plan and Trust
As Amended and Restated Effective October 1, 1996
Spieker Properties, L.P. previously established the Money Purchase Pension Plan
for Employees of Spieker Northwest, Inc. and the Profit-Sharing Plan for
Employees of Spieker Northwest, Inc., both effective September 1, 1987, for the
benefit of eligible employees of the Company and its participating affiliates.
Effective January 1, 1994, the Money Purchase Pension Plan for Employees of
Spieker Northwest, Inc. was merged into the Profit-Sharing Plan for Employees of
Spieker Northwest, Inc. and was renamed the Spieker Properties Retirement
Savings Plan. The Plan is intended to constitute a qualified profit sharing
plan, as described in Code section 401(a), which includes a qualified cash or
deferred arrangement, as described in Code section 401(k).
The provisions of the Plan and Trust relating to the Trustee constitute the
trust agreement which is entered into by and between Spieker Properties, L.P.
and BZW Barclays Global Investors, National Association. The Trust is intended
to be tax exempt as described under Code section 501(a).
The Plan constitutes an amendment and restatement of the Spieker Properties
Retirement Savings Plan effective October 1, 1996, which was last amended and
restated effective January 1, 1994, and its related trust agreement.
The Spieker Properties Retirement Savings Plan and Trust, as set forth in this
document, is hereby amended and restated effective as of October 1, 1996.
Date: ____________________________, 19__ Spieker Properties, L.P.
By:______________________________
Title:___________________________
The trust agreement set forth in those provisions of the Plan and Trust which
relate to the Trustee is hereby executed.
Date: ____________________________, 19 BZW Barclays Global Investors,
National Association
By:______________________________
Title:___________________________
Date: ____________________________, 19 BZW Barclays Global Investors,
National Association
By:______________________________
Title:___________________________
________________________________________________________________________________
<PAGE> 3
TABLE OF CONTENTS
1 DEFINITIONS......................................................... 1
2 ELIGIBILITY......................................................... 10
2.1 Eligibility............................................... 10
2.2 Ineligible Employees...................................... 10
2.3 Ineligible or Former Participants......................... 10
3 PARTICIPANT CONTRIBUTIONS........................................... 11
3.1 401(k) Contribution Election.............................. 11
3.2 Changing a Contribution Election.......................... 11
3.3 Revoking and Resuming a Contribution Election............. 11
3.4 Contribution Percentage Limits............................ 11
3.5 Refunds When Contribution Dollar Limit Exceeded........... 12
3.6 Timing, Posting and Tax Considerations.................... 12
4 ROLLOVER CONTRIBUTIONS AND TRANSFERS FROM AND TO OTHER
QUALIFIED PLANS..................................................... 13
4.1 Rollover Contributions.................................... 13
4.2 Transfers From and To Other Qualified Plans............... 13
5 EMPLOYER CONTRIBUTIONS.............................................. 14
5.1 Spieker Match Contributions............................... 14
5.2 Profit Sharing Contributions.............................. 14
5.3 SP Extra Contributions.................................... 15
6 ACCOUNTING.......................................................... 16
6.1 Individual Participant Accounting......................... 16
6.2 Sweep Account is Transaction Account...................... 16
6.3 Trade Date Accounting and Investment Cycle................ 16
6.4 Accounting for Investment Funds........................... 16
6.5 Payment of Fees and Expenses.............................. 16
6.6 Accounting for Participant Loans.......................... 17
6.7 Error Correction.......................................... 17
6.8 Participant Statements.................................... 18
6.9 Special Accounting During Conversion Period............... 18
6.10 Accounts for Alternate Payees............................. 18
7 INVESTMENT FUNDS AND ELECTIONS...................................... 19
7.1 Investment Funds.......................................... 19
7.2 Investment Fund Elections................................. 19
7.3 Responsibility for Investment Choice...................... 19
7.4 Default if No Election.................................... 20
7.5 Timing.................................................... 20
7.6 Investment Fund Election Change Fees...................... 20
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i
<PAGE> 4
8 VESTING & FORFEITURES............................................... 21
8.1 Fully Vested Accounts..................................... 21
8.2 Full Vesting Upon Certain Events.......................... 21
8.3 Vesting Schedule.......................................... 21
8.4 Forfeitures of Non-Vested Account Balances................ 21
8.5 Use of Forfeiture Account Amounts......................... 22
8.6 Rehired Employees......................................... 22
9 PARTICIPANT LOANS................................................... 23
9.1 Participant Loans Permitted............................... 23
9.2 Loan Application, Note and Security....................... 23
9.3 Spousal Consent........................................... 23
9.4 Loan Approval............................................. 23
9.5 Loan Funding Limits, Account Sources and Funding Order.... 23
9.6 Maximum Number of Loans................................... 24
9.7 Source and Timing of Loan Funding......................... 24
9.8 Interest Rate............................................. 24
9.9 Loan Payment.............................................. 24
9.10 Loan Payment Hierarchy.................................... 25
9.11 Repayment Suspension...................................... 25
9.12 Loan Default.............................................. 25
9.13 Call Feature.............................................. 25
10 IN-SERVICE WITHDRAWALS.............................................. 26
10.1 In-Service Withdrawals Permitted.......................... 26
10.2 In-Service Withdrawal Application and Notice.............. 26
10.3 Spousal Consent........................................... 26
10.4 In-Service Withdrawal Approval............................ 26
10.5 Minimum Amount, Payment Form and Medium................... 26
10.6 Source and Timing of In-Service Withdrawal Funding........ 27
10.7 Hardship Withdrawals...................................... 27
10.8 Over Age 59 1/2 Withdrawals............................... 29
10.9 Prior Profit Sharing Account Withdrawals.................. 29
11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS OR AS REQUIRED BY LAW ........... 31
11.1 Benefit Information, Notices and Election................. 31
11.2 Spousal Consent........................................... 31
11.3 Payment Form and Medium................................... 31
11.4 Distribution of Small Amounts............................. 32
11.5 Source and Timing of Distribution Funding................. 32
11.6 Deemed Distribution....................................... 33
11.7 Latest Commencement Permitted............................. 33
11.8 Payment Within Life Expectancy............................ 33
11.9 Incidental Benefit Rule................................... 34
11.10 Payment to Beneficiary.................................... 34
11.11 Beneficiary Designation................................... 34
11.12 QJSA and QPSA Information and Elections .................. 35
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ii
<PAGE> 5
12 ADP AND ACP TESTS................................................... 37
12.1 Contribution Limitation Definitions....................... 37
12.2 ADP and ACP Tests......................................... 40
12.3 Correction of ADP and ACP Tests........................... 40
12.4 Multiple Use Test......................................... 41
12.5 Correction of Multiple Use Test........................... 42
12.6 Adjustment for Investment Gain or Loss.................... 42
12.7 Testing Responsibilities and Required Records............. 42
12.8 Separate Testing.......................................... 42
13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS........................ 43
13.1 "Annual Addition" Defined................................. 43
13.2 Maximum Annual Addition................................... 43
13.3 Avoiding an Excess Annual Addition........................ 43
13.4 Correcting an Excess Annual Addition...................... 43
13.5 Correcting a Multiple Plan Excess......................... 44
13.6 "Defined Benefit Fraction" Defined........................ 44
13.7 "Defined Contribution Fraction" Defined................... 44
13.8 Combined Plan Limits and Correction....................... 44
14 TOP HEAVY RULES..................................................... 45
14.1 Top Heavy Definitions..................................... 45
14.2 Special Contributions..................................... 46
14.3 Adjustment to Combined Limits for Different Plans......... 47
15 PLAN ADMINISTRATION................................................. 48
15.1 Plan Delineates Authority and Responsibility.............. 48
15.2 Fiduciary Standards....................................... 48
15.3 Company is ERISA Plan Administrator....................... 48
15.4 Administrator Duties...................................... 49
15.5 Advisors May be Retained.................................. 49
15.6 Delegation of Administrator Duties........................ 50
15.7 Committee Operating Rules................................. 50
16 MANAGEMENT OF INVESTMENTS........................................... 51
16.1 Trust Agreement........................................... 51
16.2 Investment Funds.......................................... 51
16.3 Authority to Hold Cash.................................... 52
16.4 Trustee to Act Upon Instructions.......................... 52
16.5 Administrator Has Right
to Vote Registered Investment Company Shares.............. 52
16.6 Custom Fund Investment Management ........................ 52
16.7 Authority to Segregate Assets............................. 53
16.8 Investment in Company Stock............................... 53
16.9 Participants Have Right to Vote and Tender Company Stock.. 53
16.10 Registration and Disclosure for Company Stock............. 54
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iii
<PAGE> 6
17 TRUST ADMINISTRATION................................................ 55
17.1 Trustee to Construe Trust................................. 55
17.2 Trustee To Act As Owner of Trust Assets................... 55
17.3 United States Indicia of Ownership........................ 55
17.4 Tax Withholding and Payment............................... 56
17.5 Trust Accounting.......................................... 56
17.6 Valuation of Certain Assets............................... 56
17.7 Legal Counsel............................................. 57
17.8 Fees and Expenses......................................... 57
17.9 Trustee Duties and Limitations............................ 57
18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION................... 58
18.1 Plan Does Not Affect Employment Rights.................... 58
18.2 Limited Return of Contributions........................... 58
18.3 Assignment and Alienation................................. 58
18.4 Facility of Payment....................................... 59
18.5 Reallocation of Lost Participant's Accounts............... 59
18.6 Claims Procedure.......................................... 59
18.7 Construction.............................................. 60
18.8 Jurisdiction and Severability............................. 60
18.9 Indemnification by Employer............................... 60
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION..................... 61
19.1 Amendment................................................. 61
19.2 Merger.................................................... 61
19.3 Divestitures.............................................. 61
19.4 Plan Termination.......................................... 62
19.5 Amendment and Termination Procedures...................... 62
19.6 Termination of Employer's Participation................... 63
19.7 Replacement of the Trustee................................ 63
19.8 Final Settlement and Accounting of Trustee................ 63
APPENDIX A - INVESTMENT FUNDS................................................ 65
APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES............................... 66
APPENDIX C - LOAN INTEREST RATE.............................................. 67
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iv
<PAGE> 7
1 DEFINITIONS
When capitalized, the words and phrases below have the following
meanings unless different meanings are clearly required by the context:
1.1 "Account". The records maintained for purposes of accounting
for a Participant's interest in the Plan. "Account" may refer
to one or all of the following accounts which have been
created on behalf of a Participant to hold amounts
attributable to specific types of Contributions under the
Plan, contributions previously permitted under the Plan and
amounts transferred from the Money Purchase Pension Plan for
Employees of Spieker Northwest, Inc. as merged herein
effective January 1, 1994:
(a) "401(k) Account". An account created to hold amounts
attributable to 401(k) Contributions.
(b) "Rollover Account". An account created to hold
amounts attributable to Rollover Contributions.
(c) "Spieker Match Account". An account created to hold
amounts attributable to Spieker Match Contributions.
(d) "Profit Sharing Post-09/30/96 Account". An account
created to hold amounts attributable to Profit
Sharing Contributions for Plan Years commencing on
or after January 1, 1996.
(e) "Profit Sharing Pre-10/01/96". An account created to
hold amounts attributable to Profit Sharing
Contributions for Plan Years ending December 31,
1994 and December 31, 1995.
(f) "Prior Profit Sharing Account". An account created
to hold amounts attributable to Profit Sharing
Contributions for Plan Years commencing prior to
January 1, 1994.
(g) "SP Extra Account". An account created to hold
amounts attributable to SP Extra Contributions.
(h) "Prior Money Purchase Account". An account created
to hold amounts attributable to amounts transferred
from the Money Purchase Pension Plan for Employees
of Spieker Northwest, Inc.
1.2 "ACP" or "Average Contribution Percentage". The percentage
calculated in accordance with Section 12.1.
1.3 "Administrator". The Company, which may delegate all or a
portion of the duties of the Administrator under the Plan to
a Committee in accordance with Section 15.6.
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1
<PAGE> 8
1.4 "ADP" or "Average Deferral Percentage". The percentage
calculated in accordance with Section 12.1.
1.5 "Alternate Payee". Any spouse, former spouse, child or other
dependent of a Participant recognized by a domestic relations
order as having a right to receive all, or a portion of, a
Participant's benefits under the Plan.
1.6 "Beneficiary". The person or persons who is to receive
benefits after the death of the Participant pursuant to the
"Beneficiary Designation" paragraph in Section 11, or as a
result of a QDRO.
1.7 "Break in Service". The fifth anniversary (or sixth
anniversary if absence from employment was due to a Parental
Leave) of the date on which a Participant's employment ends.
1.8 "Code". The Internal Revenue Code of 1986, as amended.
Reference to any specific Code section shall include such
section, any valid regulation promulgated thereunder, and any
comparable provision of any future legislation amending,
supplementing or superseding such section.
1.9 "Committee". If applicable, the committee which has been
appointed by the Company to administer the Plan in accordance
with Section 15.6.
1.10 "Company". Spieker Properties, L.P. or any successor by
merger, purchase or otherwise.
1.11 "Company Stock". Shares of common stock of the Company, its
predecessor(s), or its successors or assigns, or any
corporation with or into which said corporation may be
merged, consolidated or reorganized, or to which a majority
of its assets may be sold.
1.12 "Compensation". The sum of a Participant's Taxable Income and
salary reductions, if any, pursuant to Code sections 125,
402(e)(3), 402(h), 403(b), 414(h)(2) or 457.
For purposes of determining benefits under the Plan,
Compensation is limited to $150,000, (as adjusted for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year. For purposes of the preceding
sentence, in the case of an HCE who is a 5% Owner or one of
the 10 most highly compensated Employees, (i) such HCE and
such HCE's family group (as defined below) shall be treated
as a single employee and the Compensation of each family
group member shall be aggregated with the Compensation of
such HCE, and (ii) the limitation on Compensation shall be
allocated among such HCE and his or her family group members
in proportion to each individual's Compensation before the
application of this sentence. For purposes of this Section,
the term "family group" shall mean an Employee's spouse and
lineal descendants who have not attained age 19 before the
close of the year in question.
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2
<PAGE> 9
For purposes of determining HCEs and key employees,
Compensation for the entire Plan Year shall be used. For
purposes of determining ADP and ACP, Compensation shall be
limited to amounts paid to an Eligible Employee while a
Participant.
1.13 "Contribution". An amount contributed to the Plan by the
Employer or an Eligible Employee, and allocated by
contribution type to Participants' Accounts, as described in
Section 1.1. Specific types of contribution include:
(a) "401(k) Contribution". An amount contributed by an
eligible Participant in conjunction with his or her
Code section 401(k) salary deferral election which
shall be treated as made by the Employer on an
eligible Participant's behalf.
(b) "Rollover Contribution". An amount contributed by an
Eligible Employee which originated from another
employer's or an Employer's qualified plan.
(c) "Spieker Match Contribution". An amount contributed
by the Employer on an eligible Participant's behalf
based upon the amount contributed by the eligible
Participant.
(d) "Profit Sharing Contribution". An amount contributed
by the Employer on an eligible Participant's behalf
and allocated on a pay based formula.
(e) "SP Extra Contribution". An amount contributed by
the Employer on an eligible Participant's behalf and
allocated on a pay based formula.
1.14 "Contribution Dollar Limit". The annual limit placed on each
Participant's 401(k) Contributions, which shall be $7,000 per
calendar year (as adjusted for the cost of living pursuant to
Code sections 402(g)(5) and 415(d)). For purposes of this
Section, a Participant's 401(k) Contributions shall include
(i) any employer contribution made under any qualified cash
or deferred arrangement as defined in Code section 401(k) to
the extent not includible in gross income for the taxable
year under Code section 402(e)(3) or 402(h)(1)(B) (determined
without regard to Code section 402(g)), and (ii) any employer
contribution to purchase an annuity contract under Code
section 403(b) under a salary reduction agreement (within the
meaning of Code section 3121(a)(5)(D)).
1.15 "Conversion Period". The period of converting the prior
accounting system of any plan and trust which is merged into
the Plan and Trust, to the accounting system described in
Section 6.
1.16 "Direct Rollover". An Eligible Rollover Distribution that is
paid directly to an Eligible Retirement Plan for the benefit
of a Distributee.
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3
<PAGE> 10
1.17 "Disability". A Participant's total and permanent, mental or
physical disability resulting in termination of employment as
evidenced by presentation of medical evidence satisfactory to
the Administrator.
1.18 "Distributee". An Employee or former Employee, the surviving
spouse of an Employee or former Employee and a spouse or
former spouse of an Employee or former Employee determined to
be an Alternate Payee under a QDRO.
1.19 "Effective Date". The date upon which the provisions of this
document become effective. This date is October 1, 1996,
unless stated otherwise. In general, the provisions of this
document only apply to Participants who are Employees on or
after the Effective Date. However, investment and
distribution provisions apply to all Participants with
Account balances to be invested or distributed after the
Effective Date.
1.20 "Eligible Employee". An Employee of an Employer, except any
Employee:
(a) whose compensation and conditions of employment are
covered by a collective bargaining agreement to
which an Employer is a party unless the agreement
calls for the Employee's participation in the Plan;
or
(b) who is treated as an Employee because he or she is a
Leased Employee.
1.21 "Eligible Retirement Plan". 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 a
Distributee's Eligible Rollover Distribution, except that
with regard to an Eligible Rollover Distribution to a
surviving spouse, an Eligible Retirement Plan is an
individual retirement account or individual retirement
annuity.
1.22 "Eligible Rollover Distribution". A distribution of all or
any portion of the balance to the credit of a Distributee,
excluding a distribution that is one of a series of
substantially equal periodic payments (not less frequently
than annually) made for the life (or life expectancy) of a
Distributee or the joint lives (or joint life expectancies)
of a Distributee and the Distributee's designated
Beneficiary, or for a specified period of ten years or more;
a distribution to the extent such distribution is required
under Code section 401(a)(9); and the portion of a
distribution that is not includible in gross income
(determined without regard to the exclusion for net
unrealized appreciation with respect to Employer securities).
1.23 "Employee". An individual who is:
(a) directly employed by any Related Company and for
whom any income for such employment is subject to
withholding of income or social security taxes, or
(b) a Leased Employee.
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<PAGE> 11
1.24 "Employer". The Company and any Related Company of the
Company which adopts the Plan with the approval of the
Company.
1.25 "ERISA". The Employee Retirement Income Security Act of 1974,
as amended. Reference to any specific ERISA section shall
include such section, any valid regulation promulgated
thereunder, and any comparable provision of any future
legislation amending, supplementing or superseding such
section.
1.26 "Forfeiture Account". An account holding amounts forfeited by
Terminated Participants, invested in interest bearing
deposits, money market type assets or funds, pending
disposition as provided in the Plan and Trust and as directed
by the Administrator.
1.27 "HCE" or "Highly Compensated Employee". An Employee described
as a Highly Compensated Employee in Section 12.
1.28 "Hour of Service". Each hour for which an Employee is
entitled to:
(a) payment for the performance of duties for any
Related Company;
(b) payment from any Related Company for any period
during which no duties are performed (irrespective
of whether the employment relationship has
terminated) due to vacation, holiday, sickness,
incapacity (including disability), layoff, leave of
absence, jury duty or military service;
(c) back pay, irrespective of mitigation of damages, by
award or agreement with any Related Company (and
these hours shall be credited to the period to which
the agreement pertains); or
(d) no payment, but is on a Leave of Absence (and these
hours shall be based upon his or her normally
scheduled hours per week or a 40 hour week if there
is no regular schedule).
The crediting of hours for which no duties are performed
shall be in accordance with Department of Labor regulation
sections 2530.200b-2(b) and (c). Actual hours shall be used
whenever an accurate record of hours are maintained for an
Employee. Otherwise, an equivalent number of hours shall be
credited for each payroll period in which the Employee would
be credited with at least 1 hour. The payroll period
equivalencies are 45 hours weekly, 90 hours biweekly, 95
hours semimonthly and 190 hours monthly.
An Employee's service with a predecessor or acquired company
shall only be counted in the determination of his or her
Hours of Service for eligibility and/or vesting purposes if
(1) the Company directs that credit for such service be
granted, or (2) a qualified plan of the predecessor or
acquired company is subsequently maintained by any Employer
or Related Company.
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<PAGE> 12
1.29 "Ineligible". The Plan status of an individual during the
period in which he or she is (1) an Employee of a Related
Company which is not then an Employer, (2) an Employee, but
not an Eligible Employee, or (3) not an Employee.
1.30 "Investment Fund" or "Fund". An investment fund as described
in Section 16.2. The Investment Funds authorized by the
Administrator to be offered under the Plan as of the
Effective Date are set forth in Appendix A.
1.31 "Leased Employee". An individual who is deemed to be an
employee of any Related Company as provided in Code section
414(n) or (o).
1.32 "Leave of Absence". A period during which an individual is
deemed to be an Employee, but is absent from active
employment, provided that the absence:
(a) was authorized by a Related Company; or
(b) was due to military service in the United States
armed forces and the individual returns to active
employment within the period during which he or she
retains employment rights under federal law.
1.33 "Loan Account". The record maintained for purposes of
accounting for a Participant's loan and payments of principal
and interest thereon.
1.34 "NHCE" or "Non-Highly Compensated Employee". An Employee
described as a Non-Highly Compensated Employee in Section 12.
1.35 "Normal Retirement Date". The date of a Participant's 55th
birthday.
1.36 "Owner". A person with an ownership interest in the capital,
profits, outstanding stock or voting power of a Related
Company within the meaning of Code section 318 or 416 (which
exclude indirect ownership through a qualified plan).
1.37 "Parental Leave". The period of absence from work by reason
of pregnancy, the birth of an Employee's child, the placement
of a child with the Employee in connection with the child's
adoption, or caring for such child immediately after birth or
placement as described in Code section 410(a)(5)(E).
1.38 "Participant". The Plan status of an Eligible Employee after
he or she completes the eligibility requirements as described
in Section 2.1. An Eligible Employee who makes a Rollover
Contribution prior to completing the eligibility requirements
as described in Section 2.1 shall also be considered a
Participant, except that he or she shall not be considered a
Participant for purposes of provisions related to
Contributions, other than a Rollover Contribution, until he
or she completes the eligibility requirements as described in
Section 2.1. A Participant's participation continues until
his or her employment with all Related Companies ends and his
or her Account is distributed or forfeited.
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<PAGE> 13
1.39 "Pay". The base pay, overtime and bonuses paid to an Eligible
Employee by an Employer while a Participant during the
current period.
Pay is neither increased by any salary credit or decreased by
any salary reduction pursuant to Code sections 125 or
402(e)(3). Pay is limited to $150,000 (as adjusted for the
cost of living pursuant to Code sections 401(a)(17) and
415(d)) per Plan Year.
For purposes of the Contributions described in Section 5.2,
the additional limitations as described in the second
paragraph of Section 1.12 shall also apply.
1.40 "Period of Employment". The period beginning on the date an
Employee first performs an hour of service and ending on the
date his or her employment ends. Employment ends on the date
the Employee quits, retires, is discharged, dies or (if
earlier) the first anniversary of his or her absence for any
other reason. The period of absence starting with the date an
Employee's employment temporarily ends and ending on the date
he or she is subsequently reemployed is (1) included in his
or her Period of Employment if the period of absence does not
exceed one year, and (2) excluded if such period exceeds one
year.
Period of Employment includes the period prior to a Break in
Service.
An Employee's service with a predecessor or acquired company
shall only be counted in the determination of his or her
Period of Employment for eligibility and/or vesting purposes
if (1) the Company directs that credit for such service be
granted, or (2) a qualified plan of the predecessor or
acquired company is subsequently maintained by any Employer
or Related Company.
1.41 "Plan". The Spieker Properties Retirement Savings Plan set
forth in this document, as from time to time amended.
1.42 "Plan Year". The annual accounting period of the Plan and
Trust which ends on each December 31.
1.43 "QDRO". A domestic relations order which the Administrator
has determined to be a qualified domestic relations order
within the meaning of Code section 414(p).
1.44 "Related Company". With respect to any Employer, that
Employer and any corporation, trade or business which is,
together with that Employer, a member of the same controlled
group of corporations, a trade or business under common
control, or an affiliated service group within the meaning of
Code sections 414(b), (c), (m) or (o), except that for
purposes of Section 13 "within the meaning of Code sections
414(b), (c), (m) or (o), as modified by Code section 415(h)"
shall be substituted for the preceding reference to "within
the meaning of Code section 414(b), (c), (m) or (o)".
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<PAGE> 14
1.45 "Settlement Date". For each Trade Date, the Trustee's next
business day.
1.46 "Spousal Consent". The written consent given by a spouse to a
Participant's election or waiver of a specified form of
benefit, including a loan or an in-service withdrawal, or
Beneficiary designation. The spouse's consent must
acknowledge the effect on the spouse of the Participant's
election, waiver or designation, and be duly witnessed by a
notary public. Spousal Consent shall be valid only with
respect to the spouse who signs the Spousal Consent and only
for the particular choice made by the Participant which
requires Spousal Consent. A Participant may revoke (without
Spousal Consent) a prior election, waiver or designation that
required Spousal Consent at any time before payments begin.
Spousal Consent also means a determination by the
Administrator that there is no spouse, the spouse cannot be
located, or such other circumstances as may be established by
applicable law.
1.47 "Sweep Account". The subsidiary Account for each Participant
through which all transactions are processed, which is
invested in interest bearing deposits of the Trustee.
1.48 "Sweep Date". The cut off date and time for receiving
instructions for transactions to be processed on the next
Trade Date.
1.49 "Taxable Income". Compensation in the amount reported by the
Employer or a Related Company as "Wages, tips, other
compensation" on Form W-2, or any successor method of
reporting under Code section 6041(d).
1.50 "Terminated Participant". A Participant who is not an
Employee and for whom the Administrator has reported to the
Trustee that the Participant's employment has terminated with
all Related Companies.
1.51 "Trade Date". Each day the Investment Funds are valued, which
is normally every day the assets of such Funds are traded.
1.52 "Trust". The legal entity created by those provisions of this
document which relate to the Trustee. The Trust is part of
the Plan and holds the Plan assets which are comprised of the
aggregate of Participants' Accounts, any unallocated funds
invested in interest bearing deposits, money market type
assets or funds, pending allocation to Participants' Accounts
or disbursement to pay Plan fees and expenses and the
Forfeiture Account.
1.53 "Trustee". Wells Fargo Bank, National Association. BZW
Barclays Global Investors, National Association.
1.54 "Year of Vesting Service". A 12 month Period of Employment.
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8
<PAGE> 15
Notwithstanding, a Year of Vesting Service for periods
commencing January 1, 1990 through December 31, 1993, is a 12
consecutive month period ending on the last day of a Plan
Year in which an Employee is credited with at least 1,000
Hours of Service and a Year of Vesting Service for periods
prior to January 1, 1990 is a 12 consecutive month period
ending on the anniversary date of an Employee's hire date, or
as that date may be adjusted as a result of termination of
employment and reemployment, in which an Employee is credited
with at least 1,000 Hours of Service. Each Hour of Service
during the portion of the 1990 Plan Year where two 12
consecutive month periods overlapped were counted for
purposes of both 12 consecutive month periods.
Years of Vesting Service shall include service credited prior
to September 1, 1987.
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<PAGE> 16
2 ELIGIBILITY
2.1 Eligibility
All Participants as of October 1, 1996 shall continue their
eligibility to participate.
For purposes of 401(k) Contributions, each other Eligible
Employee shall become a Participant on the later of October
1, 1996 or on the first day of employment as an Eligible
Employee.
For all other purposes, each other Eligible Employee shall
become a Participant on the first day of the next payroll
period after the date he or she completes a 12 month
eligibility period in which he or she is credited with at
least 1,000 Hours of Service. The initial eligibility period
begins on the date an Employee first performs an Hour of
Service. Subsequent eligibility periods begin with the start
of each Plan Year beginning after the first Hour of Service
is performed.
2.2 Ineligible Employees
If an Employee completes the above eligibility requirements,
but is Ineligible at the time participation would otherwise
begin (if he or she were not Ineligible), he or she shall
become a Participant on the first subsequent date on which he
or she is an Eligible Employee.
2.3 Ineligible or Former Participants
A Participant may not make or share in Plan Contributions,
nor generally be eligible for a new Plan loan, during the
period he or she is Ineligible, but he or she shall continue
to participate for all other purposes. An Ineligible
Participant or former Participant shall automatically become
an active Participant on the date he or she again becomes an
Eligible Employee.
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<PAGE> 17
3 PARTICIPANT CONTRIBUTIONS
3.1 401(k) Contribution Election
Upon becoming a Participant, an Eligible Employee may elect
to reduce his or her Pay by an amount which does not exceed
the Contribution Dollar Limit, within the limits described in
the Contribution Percentage Limits paragraph of this Section
3, and have such amount contributed to the Plan by the
Employer as a 401(k) Contribution. The election shall be made
as a whole percentage of Pay in such manner and with such
advance notice as prescribed by the Administrator. In no
event shall an Employee's 401(k) Contributions under the Plan
and comparable contributions to all other plans, contracts or
arrangements of all Related Companies exceed the Contribution
Dollar Limit for the Employee's taxable year beginning in the
Plan Year.
3.2 Changing a Contribution Election
A Participant who is an Eligible Employee may change his or
her 401(k) Contribution election at any time in such manner
and with such advance notice as prescribed by the
Administrator, and such election shall be effective with the
first payroll paid after such date. Participants'
Contribution election percentages shall automatically apply
to Pay increases or decreases.
3.3 Revoking and Resuming a Contribution Election
A Participant may revoke his or her 401(k) Contribution
election at any time in such manner and with such advance
notice as prescribed by the Administrator, and such
revocation shall be effective with the first payroll paid
after such date.
A Participant who is an Eligible Employee may resume 401(k)
Contributions by making a new 401(k) Contribution election at
any time in such manner and with such advance notice as
prescribed by the Administrator, and such election shall be
effective with the first payroll paid after such date.
3.4 Contribution Percentage Limits
The Administrator may establish and change from time to time,
in writing, without the necessity of amending the Plan and
Trust, the minimum, if applicable, and maximum 401(k)
Contribution percentages, prospectively or retrospectively
(for the current Plan Year), for all Participants. In
addition, the Administrator may establish any lower
percentage limits for Highly Compensated Employees as it
deems necessary to satisfy the tests described in Section 12.
As of the Effective Date, the 401(k) Contribution minimum
percentage is 1% and the maximum percentage is 15%.
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<PAGE> 18
Irrespective of the limits that may be established by the
Administrator in accordance with the paragraph above, in no
event shall the contributions made by or on behalf of a
Participant for a Plan Year exceed the maximum allowable
under Code section 415.
3.5 Refunds When Contribution Dollar Limit Exceeded
A Participant who makes 401(k) Contributions for a calendar
year to the Plan and comparable contributions to any other
qualified defined contribution plan in excess of the
Contribution Dollar Limit may notify the Administrator in
writing by the following March 1 (or as late as April 14 if
allowed by the Administrator) that an excess has occurred. In
this event, the amount of the excess specified by the
Participant, adjusted for investment gain or loss, shall be
refunded to him or her by April 15 and shall not be included
as an Annual Addition under Code section 415 for the year
contributed. Refunds shall not include investment gain or
loss for the period between the end of the applicable
calendar year and the date of distribution. The excess
amounts shall first be taken from unmatched 401(k)
Contributions and then from matched 401(k) Contributions. Any
Spieker Match Contributions attributable to refunded excess
401(k) Contributions as described in this Section shall be
forfeited and used as described in Section 8.5.
3.6 Timing, Posting and Tax Considerations
Participants' Contributions, other than Rollover
Contributions, may only be made through payroll deduction.
Such amounts shall be paid to the Trustee in cash and posted
to each Participant's Account(s) as soon as such amounts can
reasonably be separated from the Employer's general assets
and balanced against the specific amount made on behalf of
each Participant. In no event, however, shall such amounts be
paid to the Trustee more than 90 days after the date amounts
are deducted from a Participant's Pay, except that effective
February 3, 1997, "15 business days following the end of the
month that includes the date amounts are deducted from a
Participant's Pay (or as that maximum period may be extended
for such amounts for a single month subject to the Employer's
compliance with an extension procedure provided under ERISA)"
shall be substituted for the preceding reference to "90 days
after the date amounts are deducted from a Participant's
Pay". 401(k) Contributions shall be treated as Contributions
made by an Employer in determining tax deductions under Code
section 404(a).
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<PAGE> 19
4 ROLLOVER CONTRIBUTIONS AND TRANSFERS FROM AND TO OTHER QUALIFIED
PLANS
4.1 Rollover Contributions
The Administrator may authorize the Trustee to accept a
Rollover Contribution in cash, directly from an Eligible
Employee or as a Direct Rollover from another qualified plan
on behalf of the Eligible Employee, even if he or she is not
yet a Participant. The Employee shall be responsible for
providing satisfactory evidence, in such manner as prescribed
by the Administrator, that the amount qualifies as a rollover
contribution, within the meaning of Code section 402(c) or
408(d)(3)(A)(ii). Such amounts received directly from an
Eligible Employee must be paid to the Trustee in cash within
60 days after the date received by the Eligible Employee from
a qualified plan or conduit individual retirement account.
Rollover Contributions shall be posted to the Eligible
Employee's Rollover Account as of the date received by the
Trustee.
If the Administrator later determines that an amount
contributed pursuant to the above paragraph did not in fact
qualify as a rollover contribution, within the meaning of
Code section 402(c) or 408(d)(3)(A)(ii), the balance credited
to the Participant's Rollover Account shall immediately be
(1) segregated from all other Plan assets, (2) treated as a
nonqualified trust established by and for the benefit of the
Participant, and (3) distributed to the Participant. Any such
amount shall be deemed never to have been a part of the Plan.
4.2 Transfers From and To Other Qualified Plans
The Administrator may instruct the Trustee to receive assets
in cash or in-kind directly from another qualified plan or
transfer assets in cash or in-kind directly to another
qualified plan; provided that receipt of a transfer should
not be directed if:
(a) any amounts are not exempted by Code section
401(a)(11)(B) from the annuity requirements of Code
section 417 unless the Plan complies with such
requirements; or
(b) any amounts include benefits protected by Code
section 411(d)(6) which would not be preserved under
applicable Plan provisions.
The Trustee may refuse the receipt of any transfer if:
(a) the Trustee finds the in-kind assets unacceptable;
or
(b) instructions for posting amounts to Participants'
Accounts are incomplete.
Such amounts shall be posted to the appropriate Accounts of
Participants as of the date received by the Trustee.
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<PAGE> 20
5 EMPLOYER CONTRIBUTIONS
5.1 Spieker Match Contributions
(a) Frequency and Eligibility. For each period for which
Participants' Contributions are made, the Employer
shall make Spieker Match Contributions, as described
in the following Allocation Method paragraph, on
behalf of each Participant who contributed during
the period and who has met the eligibility
requirements of Section 2.1, other than a
Participant for whom the maximum Spieker Match
Contribution for the Plan Year has been made.
(b) Allocation Method. The Spieker Match Contributions
(including any Forfeiture Account amounts applied as
Spieker Match Contributions in accordance with
Section 8.5) for each period shall total 100% of
each eligible Participant's 401(k) Contributions for
the period, provided that no Spieker Match
Contributions (and Forfeiture Account amounts) shall
be made based upon a Participant's Contributions in
excess of 5% of his or her Pay and the maximum
Spieker Match Contribution made on behalf of a
Participant for the Plan Year shall not exceed
$5,000.
(c) Timing, Medium and Posting. The Employer shall make
each period's Spieker Match Contribution in cash as
soon as administratively feasible, and for purposes
of deducting such Contribution, not later than the
Employer's federal tax filing date, including
extensions. The Trustee shall post such amount to
each Participant's Spieker Match Account once the
total Contribution received has been balanced
against the specific amount to be credited to each
Participant's Spieker Match Account.
5.2 Profit Sharing Contributions
(a) Frequency and Eligibility. For each Plan Year, the
Employer may make a Profit Sharing Contribution on
behalf of each Participant who was an Eligible
Employee on the last day of the Plan Year and who
has met the eligibility requirements of Section 2.1,
other than, effective January 1, 1996, a Participant
whose entire Pay for the Plan Year was attributable
to his or her employment as an officer.
If such Contributions are made, such Contributions
shall also be made on behalf of each Participant who
was an Eligible Employee at any time during the Plan
Year and who is otherwise eligible as described
above but who ceased being an Employee during the
Plan Year after having attained age 55, or by reason
of his or her Disability or death.
(b) Allocation Method. The Profit Sharing Contribution
(including any Forfeiture Account amounts applied as
Profit Sharing Contributions in accordance with
Section 8.5) for each Plan Year, shall be in an
amount determined by the Employer and allocated
among eligible Participants in
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<PAGE> 21
direct proportion to their Pay, excluding,
effective January 1, 1996, a Participant's Pay
attributable to his or her employment as an officer
and provided that, effective January 1, 1996, no
Profit Sharing Contributions (and Forfeiture Account
amounts) shall be made based upon a Participant's
Pay in excess of $60,000.
(c) Timing, Medium and Posting. The Employer shall make
each Plan Year's Profit Sharing Contribution in cash
as soon as administratively feasible, and for
purposes of deducting such Contribution, not later
than the Employer's federal tax filing date,
including extensions. The Trustee shall post such
amount to each Participant's Profit Sharing
Post-09/30/96 Account once the total Contribution
received has been balanced against the specific
amount to be credited to each Participant's Profit
Sharing Post-09/30/96 Account.
5.3 SP Extra Contributions
(a) Frequency and Eligibility. If determined necessary
to satisfy the tests described in Section 12, for
each Plan Year, the Employer may make a SP Extra
Contribution on behalf of each Non-Highly
Compensated Employee Participant who was an Eligible
Employee on the last day of the Plan Year and who
has met the eligibility requirements of Section 2.1.
If such Contributions are made, such Contributions
shall also be made on behalf of each Non-Highly
Compensated Employee Participant who was an Eligible
Employee at any time during the period and who is
otherwise eligible as described above but who ceased
being an Employee during the Plan Year after having
attained age 55, or by reason of his or her
Disability or death.
(b) Allocation Method. The SP Extra Contribution
(including any Forfeiture Account amounts applied as
SP Extra Contributions in accordance with Section
8.5) for each Plan Year shall be in an amount
determined by the Employer and allocated among
eligible Participants in direct proportion to their
Pay, subject to a maximum dollar amount which may be
contributed on behalf of any Participant as
determined by the Employer.
(c) Timing, Medium and Posting. The Employer shall make
each Plan Year's SP Extra Contribution in cash as
soon as administratively feasible, and for purposes
of deducting such Contribution, not later than the
Employer's federal tax filing date, including
extensions. Notwithstanding, for purposes of
satisfying the tests described in Section 12, SP
Extra Contributions shall be made before the end of
the Plan Year following the Plan Year being tested.
The Trustee shall post such amount to each
Participant's SP Extra Account once the total
Contribution received has been balanced against the
specific amount to be credited to each Participant's
SP Extra Account.
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<PAGE> 22
6 ACCOUNTING
6.1 Individual Participant Accounting
The Administrator shall maintain an individual set of
Accounts for each Participant in order to reflect
transactions both by type of Account and investment medium.
Financial transactions shall be accounted for at the
individual Account level by posting each transaction to the
appropriate Account of each affected Participant. Participant
Account values shall be maintained in shares for the
Investment Funds and in dollars for the Sweep and Loan
Accounts. At any point in time, the Account value shall be
determined using the most recent Trade Date values provided
by the Trustee.
6.2 Sweep Account is Transaction Account
All transactions related to amounts being contributed to or
distributed from the Trust shall be posted to each affected
Participant's Sweep Account. Any amount held in the Sweep
Account shall be credited with interest up until the date on
which it is removed from the Sweep Account.
6.3 Trade Date Accounting and Investment Cycle
Participant Account values shall be determined as of each
Trade Date. For any transaction to be processed as of a Trade
Date, the Trustee must receive instructions for the
transaction by the Sweep Date. Such instructions shall apply
to amounts held in the Account on that Sweep Date. Financial
transactions of the Investment Funds shall be posted to
Participants' Accounts as of the Trade Date, based upon the
Trade Date values provided by the Trustee, and settled on the
Settlement Date.
6.4 Accounting for Investment Funds
Investments in each Investment Fund shall be maintained in
shares. The Trustee is responsible for determining the share
values of each Investment Fund as of each Trade Date. To the
extent an Investment Fund is comprised of collective
investment funds of the Trustee, or any other fiduciary to
the Plan, the share values shall be determined in accordance
with the rules governing such collective investment funds,
which are incorporated herein by reference. All other share
values shall be determined by the Trustee. The share value of
each Investment Fund shall be based on the fair market value
of its underlying assets.
6.5 Payment of Fees and Expenses
Except to the extent Plan fees and expenses related to
Account maintenance, transaction and Investment Fund
management and maintenance, set forth below, are paid by the
Employer directly, or indirectly, through the Forfeiture
Account as directed by the Administrator, such fees and
expenses shall be paid
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<PAGE> 23
as set forth below. The Employer may pay a lower portion of
the fees and expenses allocable to the Accounts of
Participants who are no longer Employees or who are not
Beneficiaries, unless doing so would result in
discrimination.
(a) Account Maintenance: Account maintenance fees and
expenses, may include but are not limited to,
administrative, Trustee, government annual report
preparation, audit, legal, nondiscrimination testing
and fees for any other special services. Account
maintenance fees shall be charged to Participants on
a per Participant basis provided that no fee shall
reduce a Participant's Account balance below zero.
(b) Transaction: Transaction fees and expenses, may
include but are not limited to, periodic installment
payment, Investment Fund election change and loan
fees. Transaction fees shall be charged to the
Participant's Account involved in the transaction
provided that no fee shall reduce a Participant's
Account balance below zero.
(c) Investment Fund Management and Maintenance:
Management and maintenance fees and expenses related
to the Investment Funds shall be charged at the
Investment Fund level and reflected in the net gain
or loss of each Fund.
As of the Effective Date, a breakdown of which Plan fees and
expenses shall generally be borne by the Trust (and charged
to individual Participants' Accounts or charged at the
Investment Fund level and reflected in the net gain or loss
of each Fund) and those that shall be paid by the Employer is
set forth in Appendix B and may be changed from time to time
by the Administrator, in writing, without the necessity of
amending the Plan and Trust.
The Trustee shall have the authority to pay any such fees and
expenses, which remain unpaid by the Employer for 60 days,
from the Trust.
6.6 Accounting for Participant Loans
Participant loans shall be held in a separate Loan Account of
the Participant and accounted for in dollars as an earmarked
asset of the borrowing Participant's Account.
6.7 Error Correction
The Administrator may correct any errors or omissions in the
administration of the Plan by restoring any Participant's
Account balance with the amount that would be credited to the
Account had no error or omission been made. Funds necessary
for any such restoration shall be provided through payment
made by the Employer, or by the Trustee to the extent the
error or omission is attributable to actions or inactions of
the Trustee, or if the restoration involves an Account
holding amounts contributed by an Employer, the Administrator
may direct the Trustee to use amounts from the Forfeiture
Account.
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<PAGE> 24
6.8 Participant Statements
The Administrator shall provide Participants with statements
of their Accounts as soon after the end of each quarter of
the Plan Year as administratively feasible.
6.9 Special Accounting During Conversion Period
The Administrator and Trustee may use any reasonable
accounting methods in performing their respective duties
during any Conversion Period. This includes, but is not
limited to, the method for allocating net investment gains or
losses and the extent, if any, to which contributions
received by and distributions paid from the Trust during this
period share in such allocation.
6.10 Accounts for Alternate Payees
A separate Account shall be established for an Alternate
Payee entitled to any portion of a Participant's Account
under a QDRO as of the date and in accordance with the
directions specified in the QDRO. In addition, a separate
Account may be established during the period of time the
Administrator, a court of competent jurisdiction or other
appropriate person is determining whether a domestic
relations order qualifies as a QDRO. Such a separate Account
shall be valued and accounted for in the same manner as any
other Account.
(a) Distributions Pursuant to QDROs. If a QDRO so
provides, the portion of a Participant's Account
payable to an Alternate Payee may be distributed, in
a form as permissible under Section 11 and Code
section 414(p), to the Alternate Payee at the time
specified in the QDRO, regardless of whether the
Participant is entitled to a distribution from the
Plan at such time. The Alternate Payee shall be
provided the notice prescribed by Code section
402(f).
(b) Participant Loans. Except to the extent required by
law, an alternate payee, on whose behalf a separate
Account has been established, shall not be entitled
to borrow from such Account. If a QDRO specifies
that the alternate payee is entitled to any portion
of the Account of a Participant who has an
outstanding loan balance, all outstanding loans
shall generally continue to be held in the
Participant's Account and shall not be divided
between the Participant's and alternate payee's
Accounts.
(c) Investment Direction. Where a separate Account has
been established on behalf of an Alternate Payee and
has not yet been distributed, the Alternate Payee
may direct the investment of such Account in the
same manner as if he or she were a Participant.
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<PAGE> 25
7 INVESTMENT FUNDS AND ELECTIONS
7.1 Investment Funds
Except for Participants' Sweep and Loan Accounts, the Trust
shall be maintained in various Investment Funds. The
Administrator shall select the Investment Funds offered to
Participants and may change the number or composition of the
Investment Funds, subject to the terms and conditions agreed
to with the Trustee. As of the Effective Date, a list of the
Investment Funds offered under the Plan is set forth in
Appendix A, and may be changed from time to time by the
Administrator, in writing, and as agreed to by the Trustee,
without the necessity of amending the Plan and Trust.
7.2 Investment Fund Elections
Each Participant shall direct the investment of all of his or
her Accounts except for his or her Profit Sharing
Post-09/30/96 Account which shall be entirely invested in the
Investment Fund specified by the Administrator, which
Investment Fund as of the Effective Date is set forth in
Appendix A. However, a Participant who has attained age 55
may direct the investment of the balance in his or her Profit
Sharing Post-09/30/96 Account. Future amounts allocated to
his or her Profit Sharing Post-09/30/96 Account shall
continue to be entirely invested in the Investment Fund
specified by the Administrator, until otherwise directed by
the Participant.
A Participant shall make his or her investment election in
any combination of one or any number of the Investment Funds
offered in accordance with the procedures established by the
Administrator and Trustee. However, during any Conversion
Period, Trust assets may be held in any investment vehicle
permitted by the Plan, as directed by the Administrator,
irrespective of Participant investment elections.
The Administrator may set a maximum percentage of the total
election that a Participant may direct into any specific
Investment Fund, which maximum, if any, as of the Effective
Date is set forth in Appendix A, and may be changed from time
to time by the Administrator, in writing, without the
necessity of amending the Plan and Trust.
7.3 Responsibility for Investment Choice
Each Participant shall be solely responsible for the
selection of his or her Investment Fund choices. No fiduciary
with respect to the Plan is empowered to advise a Participant
as to the manner in which his or her Accounts are to be
invested, and the fact that an Investment Fund is offered
shall not be construed to be a recommendation for investment.
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<PAGE> 26
7.4 Default if No Election
The Administrator shall specify an Investment Fund for the
investment of that portion of a Participant's Account which
is not yet held in an Investment Fund and for which no valid
investment election is on file. The Investment Fund specified
as of the Effective Date is set forth in Appendix A, and may
be changed from time to time by the Administrator, in
writing, without the necessity of amending the Plan and
Trust.
7.5 Timing
A Participant shall make his or her initial investment
election upon becoming a Participant and may change his or
her investment election at any time in accordance with the
procedures established by the Administrator and Trustee.
Investment elections received by the Trustee by the Sweep
Date shall be effective on the following Trade Date.
7.6 Investment Fund Election Change Fees
A reasonable processing fee may be charged directly to a
Participant's Account for Investment Fund election changes in
excess of a specified number per year as determined by the
Administrator.
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<PAGE> 27
8 VESTING & FORFEITURES
8.1 Fully Vested Accounts
A Participant shall be fully vested in these Accounts at all
times:
401(k) Account
Rollover Account
SP Extra Account
8.2 Full Vesting Upon Certain Events
A Participant's entire Account shall become fully vested once
he or she has attained his or her Normal Retirement Date as
an Employee or upon his or her terminating employment with
all Related Companies due to his or her Disability or death.
8.3 Vesting Schedule
In addition to the vesting provided above, a Participant's
Spieker Match, Profit Sharing Post-09/30/96, Profit Sharing
Pre-10/01/96, Prior Profit Sharing and Prior Money Purchase
Accounts shall become vested in accordance with the
following schedule:
YEARS OF VESTING VESTED
SERVICE PERCENTAGE
Less than 1 0%
1 but less than 2 20%
2 but less than 3 40%
3 but less than 4 60%
4 but less than 5 80%
5 or more 100%
If this vesting schedule is changed, the vested percentage
for each Participant shall not be less than his or her vested
percentage determined as of the last day prior to this
change, and for any Participant with at least three Years of
Vesting Service when the schedule is changed, vesting shall
be determined using the more favorable vesting schedule.
8.4 Forfeitures of Non-Vested Account Balances
A Terminated Participant shall forfeit his or her non-vested
Account balance as of the Settlement Date following the Sweep
Date on which he or she is determined to be a Terminated
Participant. Forfeitures from all Accounts subject to vesting
shall be transferred to and maintained in the Forfeiture
Account.
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<PAGE> 28
8.5 Use of Forfeiture Account Amounts
Forfeiture Account amounts shall be used to restore Accounts,
to pay Plan fees and expenses and to reduce Spieker Match,
Profit Sharing and SP Extra Contributions as directed by the
Administrator.
8.6 Rehired Employees
(a) Service Restoration. If a former Employee again
becomes an Employee, all Periods of Employment
credited when his or her employment last terminated
shall be counted in determining his or her vested
interest.
(b) Account Restoration. If a former Employee again
becomes an Employee before he or she has a Break in
Service, the amount forfeited after his or her
employment last terminated shall be restored to his
or her Account. The restoration shall include the
interest which would have been credited had such
forfeiture been invested in the Sweep Account from
the date forfeited until the date the restoration
amount is restored. The restoration amount shall
come from the Forfeiture Account to the extent
possible, and any additional amount needed shall be
contributed by the Employer. The vested interest in
his or her restored Account shall then be equal to:
V% times (AB + D) - D
where:
V% = current vested percentage
AB = current Account balance
D = amount previously distributed
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<PAGE> 29
9 PARTICIPANT LOANS
9.1 Participant Loans Permitted
Loans to Participants are permitted pursuant to the terms and
conditions set forth in this Section.
9.2 Loan Application, Note and Security
A Participant shall apply for any loan in such manner and
with such advance notice as prescribed by the Administrator.
All loans shall be evidenced by a promissory note, secured
only by the portion of the Participant's Account from which
the loan is made, and the Plan shall have a lien on this
portion of his or her Account.
9.3 Spousal Consent
A Participant is required to obtain Spousal Consent in order
to borrow from his or her Account under the Plan.
9.4 Loan Approval
The Administrator, or the Trustee, if otherwise authorized by
the Administrator and agreed to by the Trustee, is
responsible for determining that a loan request conforms to
the requirements described in this Section and granting such
request.
9.5 Loan Funding Limits, Account Sources and Funding Order
The loan amount must meet all of the following limits as
determined as of the Sweep Date the loan is processed and
shall be funded from the Participant's Accounts as follows:
(a) Plan Minimum Limit. The minimum amount for any loan
is $500.
(b) Plan Maximum Limit, Account Sources and Funding
Order. Subject to the legal limit described in (c)
below, the maximum a Participant may borrow,
including the outstanding balance of existing Plan
loans, is 100% of the following of the Participant's
Accounts which are fully vested in the priority
order as follows:
401(k) Account
SP Extra Account
Spieker Match Account
Profit Sharing Pre-10/01/96 Account
Prior Profit Sharing Account
Prior Money Purchase Account
Rollover Account
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<PAGE> 30
(c) Legal Maximum Limit. The maximum a Participant may
borrow, including the outstanding balance of
existing Plan loans, is 50% of his or her vested
Account balance, not to exceed $50,000. However, the
$50,000 maximum is reduced by the Participant's
highest outstanding loan balance during the 12 month
period ending on the day before the Sweep Date as of
which the loan is made. For purposes of this
paragraph, the qualified plans of all Related
Companies shall be treated as though they are part
of the Plan to the extent it would decrease the
maximum loan amount.
9.6 Maximum Number of Loans
A Participant may have only one loan outstanding at any given
time.
9.7 Source and Timing of Loan Funding
A loan to a Participant shall be made solely from the assets
of his or her own Account. The available assets shall be
determined first by Account type and then within each Account
used for funding a loan, amounts shall first be taken from
the Sweep Account and then taken by Investment Fund in direct
proportion to the market value of the Participant's interest
in each Investment Fund as of the Trade Date on which the
loan is processed.
The loan shall be funded on the Settlement Date following the
Trade Date as of which the loan is processed. The Trustee
shall make payment to the Participant as soon thereafter as
administratively feasible.
9.8 Interest Rate
The interest rate charged on Participant loans shall be a
fixed reasonable rate of interest, determined from time to
time by the Administrator, which provides the Plan with a
return commensurate with the prevailing interest rate charged
by persons in the business of lending money for loans which
would be made under similar circumstances. As of the
Effective Date, the interest rate is determined as set forth
in Appendix C, and may be changed from time to time by the
Administrator, in writing, without the necessity of amending
the Plan and Trust.
9.9 Loan Payment
Substantially level amortization shall be required of each
loan with payments made at least monthly, generally through
payroll deduction. Loans may be prepaid in full or in part at
any time. The Participant may choose the loan repayment
period, not to exceed 5 years.
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<PAGE> 31
9.10 Loan Payment Hierarchy
Loan principal payments shall be credited to the
Participant's Accounts in the inverse of the order used to
fund the loan. Loan interest shall be credited to the
Participant's Accounts in direct proportion to the principal
payment. Loan payments are credited to the Investment Funds
based upon the Participant's current investment election for
new Contributions.
9.11 Repayment Suspension
The Administrator may agree to a suspension of loan payments
for up to 3 months for a Participant who is on a Leave of
Absence without pay. During the suspension period interest
shall continue to accrue on the outstanding loan balance. At
the expiration of the suspension period all outstanding loan
payments and accrued interest thereon shall be due unless
otherwise agreed upon by the Administrator.
9.12 Loan Default
A loan is treated as a default if scheduled loan payments are
more than 90 days late. A Participant shall then have 30 days
from the time he or she receives written notice of the
default and a demand for past due amounts to cure the default
before it becomes final.
In the event of default, the Administrator may direct the
Trustee to report the outstanding principal balance of the
loan and accrued interest thereon as a taxable distribution.
As soon as a Plan withdrawal or distribution to such
Participant would otherwise be permitted, the Administrator
may instruct the Trustee to execute upon its security
interest in the Participant's Account by distributing the
note to the Participant.
9.13 Call Feature
The Administrator shall have the right to call any
Participant loan once a Participant's employment with all
Related Companies has terminated or if the Plan is
terminated.
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<PAGE> 32
10 IN-SERVICE WITHDRAWALS
10.1 In-Service Withdrawals Permitted
In-service withdrawals to a Participant who is an Employee
are permitted pursuant to the terms and conditions set forth
in this Section and as required by law pursuant to the terms
and conditions set forth in Section 11.
10.2 In-Service Withdrawal Application and Notice
A Participant shall apply for any in-service withdrawal in
such manner and with such advance notice as prescribed by the
Administrator. The Participant shall be provided the notice
prescribed by Code section 402(f).
Code sections 401(a)(11) and 417 do not apply to in-service
withdrawals under the Plan as described in this Section. An
in-service withdrawal may therefore commence less than 30
days after the aforementioned notice is provided, if:
(a) the Participant is clearly informed that he or she
has the right to a period of at least 30 days after
receipt of such notice to consider his or her option
to elect or not elect a Direct Rollover for all or a
portion, if any, of his or her in-service withdrawal
which shall constitute an Eligible Rollover
Distribution; and
(b) the Participant after receiving such notice,
affirmatively elects a Direct Rollover for all or a
portion, if any, of his or her in-service withdrawal
which shall constitute an Eligible Rollover
Distribution or alternatively elects to have all or
a portion made payable directly to him or her,
thereby not electing a Direct Rollover for all or a
portion thereof.
10.3 Spousal Consent
A Participant is required to obtain Spousal Consent in order
to receive an inservice withdrawal under the Plan.
10.4 In-Service Withdrawal Approval
The Administrator, or the Trustee, if otherwise authorized by
the Administrator and agreed to by the Trustee, is
responsible for determining that an in-service withdrawal
request conforms to the requirements described in this
Section and granting such request.
10.5 Minimum Amount, Payment Form and Medium
The minimum amount for any type of in-service withdrawal is
$500.
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<PAGE> 33
The form of payment for an in-service withdrawal shall be a
single lump sum and payment shall be made in cash. With
regard to the portion of an in-service withdrawal
representing an Eligible Rollover Distribution, a Participant
may elect a Direct Rollover for all or a portion of such
amount.
10.6 Source and Timing of In-Service Withdrawal Funding
An in-service withdrawal to a Participant shall be made
solely from the assets of his or her own Account and shall be
based on the Account values as of the Trade Date the
in-service withdrawal is processed. The available assets
shall be determined first by Account type and then within
each Account used for funding an in-service withdrawal,
amounts shall first be taken from the Sweep Account and then
taken by Investment Fund in direct proportion to the market
value of the Participant's interest in each Investment Fund
(which excludes his or her Loan Account balance) as of the
Trade Date on which the in-service withdrawal is processed.
The in-service withdrawal shall be funded on the Settlement
Date following the Trade Date as of which the in-service
withdrawal is processed. The Trustee shall make payment as
soon thereafter as administratively feasible.
10.7 Hardship Withdrawals
(a) Requirements. A Participant who is an Employee may
request the withdrawal of up to the amount necessary
to satisfy a financial need including amounts
necessary to pay any federal, state or local income
taxes or penalties reasonably anticipated to result
from the withdrawal. Only requests for withdrawals
(1) on account of a Participant's "Deemed Financial
Need" or "Demonstrated Financial Need", and (2)
which are "Deemed Necessary" to satisfy the
financial need shall be approved.
(b) "Deemed Financial Need". An immediate and heavy
financial need relating to:
(1) the payment of unreimbursable medical
expenses described under Code section
213(d) incurred (or to be incurred) by the
Employee, his or her spouse or dependents;
(2) the purchase (excluding mortgage payments)
of the Employee's principal residence;
(3) the payment of unreimbursable tuition,
related educational fees and room and board
for up to the next 12 months of
post-secondary education for the Employee,
his or her spouse or dependents;
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<PAGE> 34
(4) the payment of funeral expenses of an
Employee's family member;
(5) the payment of amounts necessary for the
Employee to prevent losing his or her
principal residence through eviction or
foreclosure on the mortgage; or
(6) any other circumstance specifically
permitted under Code section
401(k)(2)(B)(i)(IV).
(c) "Demonstrated Financial Need". A determination by
the Administrator that an immediate and heavy
financial need exists relating to:
(1) a sudden and unexpected illness or accident
to the Employee or his or her spouse or
dependents;
(2) the loss, due to casualty, of the
Employee's property other than nonessential
property (such as a boat or a television);
or
(3) some other similar extraordinary and
unforeseeable circumstances arising as a
result of events beyond the control of the
Employee.
(d) "Deemed Necessary". A withdrawal is "deemed
necessary" to satisfy the financial need only if the
withdrawal amount does not exceed the financial need
and all of these conditions are met:
(1) the Employee has obtained all possible
withdrawals (other than hardship
withdrawals) and nontaxable loans available
from the Plan and all other plans
maintained by Related Companies;
(2) the Administrator shall suspend the
Employee from making any contributions to
the Plan and all other qualified and
nonqualified plans of deferred compensation
and all stock option or stock purchase
plans maintained by Related Companies for
12 months from the date the withdrawal
payment is made; and
(3) the Administrator shall reduce the
Contribution Dollar Limit for the Employee
with regard to the Plan and all other plans
maintained by Related Companies, for the
calendar year next following the calendar
year of the withdrawal by the amount of the
Employee's 401(k) Contributions for the
calendar year of the withdrawal.
(e) Account Sources and Funding Order. The withdrawal
amount shall come from the following of the
Participant's fully vested Accounts, in the priority
order as follows:
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<PAGE> 35
Rollover Account
Spieker Match Account
Profit Sharing Pre-10/01/96 Account
Prior Profit Sharing Account
401(k) Account
The amount that may be withdrawn from a
Participant's 401(k) Account shall not include any
earnings credited to his or her 401(k) Account.
(f) Permitted Frequency. There is no restriction on the
number of Hardship withdrawals permitted to a
Participant.
(g) Suspension from Further Contributions. Upon making a
Hardship withdrawal, a Participant may not make
additional 401(k) Contributions (or additional
contributions to all other qualified and
nonqualified plans of deferred compensation and all
stock option or stock purchase plans maintained by
Related Companies) for a period of 12 months from
the date the withdrawal payment is made.
10.8 Over Age 59 1/2 Withdrawals
(a) Requirements. A Participant who is an Employee and
over age 59 1/2 may withdraw from the Accounts
listed in paragraph (b) below.
(b) Account Sources and Funding Order. The withdrawal
amount shall come from the following of the
Participant's fully vested Accounts, in the priority
order as follows:
Rollover Account
401(k) Account
SP Extra Account
Spieker Match Account
Profit Sharing Pre-10/01/96 Account
Prior Profit Sharing Account
(c) Permitted Frequency. There is no restriction on the
number of Over Age 59 1/2 withdrawals permitted to a
Participant.
(d) Suspension from Further Contributions. An Over Age
59 1/2 withdrawal shall not affect a Participant's
ability to make or be eligible to receive further
Contributions.
10.9 Prior Profit Sharing Account Withdrawals
(a) Requirements. Withdrawal is no longer permitted
because an amount contributed to a Participant's
Account has been on deposit for at least two years.
In order to preserve benefits protected by Code
section
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<PAGE> 36
411(d)(6), a Participant who is an Employee may
withdraw from the Accounts listed in paragraph (b)
below any amount credited to such Accounts as of
January 1, 1994 or accrued as of such date with
regard to Profit Sharing Contributions for the Plan
Year ending December 31, 1993, plus earnings
subsequently credited thereon.
(b) Account Sources and Funding Order. The withdrawal
amount shall come from the Participant's fully vested
Prior Profit Sharing Account.
(c) Permitted Frequency. There is no restriction on the
number of Prior Profit Sharing Account withdrawals
permitted to a Participant.
(d) Suspension from Further Contributions. A Prior Profit
Sharing Account withdrawal shall not affect a
Participant's ability to make or be eligible to
receive further Contributions.
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<PAGE> 37
11 DISTRIBUTIONS ONCE EMPLOYMENT ENDS OR AS REQUIRED BY LAW
11.1 Benefit Information, Notices and Election
A Participant, or his or her Beneficiary in the case of his
or her death, shall be provided with information regarding
all optional times and forms of distribution available, to
include the notices prescribed by Code sections 402(f) and
411(a)(11). Subject to the other requirements of this
Section, a Participant, or his or her Beneficiary in the case
of his or her death, may elect, in such manner and with such
advance notice as prescribed by the Administrator, to have
his or her vested Account balance paid to him or her
beginning upon any Settlement Date following the
Participant's termination of employment with all Related
Companies or, if earlier, at the time required by law as set
forth in Section 11.7.
A distribution may commence less than 30 days, but more than
7 days if such distribution is one to which Code sections
401(a)(11) and 417 apply, after the aforementioned notices
are provided, if:
(a) the Participant is clearly informed that he or she
has the right to a period of at least 30 days after
receipt of such notices to consider the decision as
to whether to elect a distribution and if so to
elect a particular form of distribution and to elect
or not elect a Direct Rollover for all or a portion,
if any, of his or her distribution which shall
constitute an Eligible Rollover Distribution;
(b) the Participant after receiving such notices,
affirmatively elects a distribution and a Direct
Rollover for all or a portion, if any, of his or her
distribution which shall constitute an Eligible
Rollover Distribution or alternatively elects to
have all or a portion made payable directly to him
or her, thereby not electing a Direct Rollover for
all or a portion thereof; and
(c) if such distribution is one to which Code sections
401(a)(11) and 417 apply, the Participant's election
includes Spousal Consent.
11.2 Spousal Consent
A Participant is required to obtain Spousal Consent in order
to receive a distribution under the Plan, except with regard
to a distribution made to a Participant without his or her
consent.
11.3 Payment Form and Medium
Except to the extent otherwise provided by Section 11.4, and
subject to the requirements of Section 11.12, if applicable,
a Participant may elect to be paid in any of these forms,
except that the forms described in (d) are only available to
a Participant who entered the Plan prior to January 1, 1994:
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<PAGE> 38
(a) a single lump sum,
(b) a portion paid in a lump sum, and the remainder paid
later,
(c) periodic installments over a period not to exceed
the life expectancy of the Participant and his or
her Beneficiary, or
(d) for a single Participant, a single life annuity and
for a married Participant, a joint and 50% survivor
annuity with his or her spouse as the joint
annuitant.
With regard to a Participant who entered the Plan prior to
January 1, 1994 and except to the extent otherwise provided
by Section 11.4, unless the Participant elects otherwise as
provided for above, a married Participant's benefit shall be
paid in the form of an immediate qualified joint and 50%
survivor annuity with the Participant's spouse as the joint
annuitant and a single Participant's or surviving spouse
Beneficiary's benefit shall be paid in the form of a single
life annuity.
Any annuity option permitted shall be provided through the
purchase of a non-transferable single premium contract from
an insurance company which must conform to the terms of the
Plan and which shall be distributed to the Participant or
Beneficiary in complete satisfaction of the benefit due.
Distributions other than annuity contracts shall be made in
cash, except to the extent a distribution consists of a loan
call as described in Section 9. With regard to the portion of
a distribution representing an Eligible Rollover
Distribution, a Distributee may elect a Direct Rollover for
all or a portion of such amount.
11.4 Distribution of Small Amounts
If after a Participant's employment with all Related
Companies ends, the Participant's vested Account balance is
$3,500 or less, and if at the time of any prior in-service
withdrawal or distribution the Participant's vested Account
balance did not exceed $3,500, the Participant's benefit
shall be paid as a single lump sum as soon as
administratively feasible in accordance with procedures
prescribed by the Administrator.
11.5 Source and Timing of Distribution Funding
A distribution to a Participant shall be made solely from the
assets of his or her own Account and shall be based on the
Account values as of the Trade Date the distribution is
processed. The available assets shall be determined first by
Account type and then within each Account used for funding a
distribution, amounts shall first be taken from the Sweep
Account and then taken by Investment Fund in direct
proportion to the market value of the Participant's interest
in each Investment Fund as of the Trade Date on which the
distribution is processed.
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<PAGE> 39
The distribution shall be funded on the Settlement Date
following the Trade Date as of which the distribution is
processed. The Trustee shall make payment as soon thereafter
as administratively feasible.
11.6 Deemed Distribution
For purposes of Section 8, if at the time a Participant is
determined to be a Terminated Participant, his or her vested
Account balance attributable to Accounts subject to vesting
as described in Section 8, is zero, his or her vested Account
balance shall be deemed distributed as of the Settlement Date
following the Sweep Date on which he or she is determined to
be a Terminated Participant.
11.7 Latest Commencement Permitted
In addition to any other Plan requirements and unless a
Participant elects otherwise, his or her benefit payments
shall begin not later than 60 days after the end of the Plan
Year in which he or she attains his or her Normal Retirement
Date or retires, whichever is later. However, if the amount
of the payment or the location of the Participant (after a
reasonable search) cannot be ascertained by that deadline,
payment shall be made no later than 60 days after the
earliest date on which such amount or location is ascertained
but in no event later than as described below. A
Participant's failure to elect in such manner as prescribed
by the Administrator to have his or her vested Account
balance paid to him or her, shall be deemed an election by
the Participant to defer his or her distribution.
Benefit payments shall begin by the April 1 immediately
following the end of the calendar year in which the
Participant attains age 70 1/2, whether or not he or she is
an Employee.
If benefit payments cannot begin at the time required because
the location of the Participant cannot be ascertained (after
a reasonable search), the Administrator may, at any time
thereafter, treat such person's Account as forfeited subject
to the provisions of Section 18.5.
11.8 Payment Within Life Expectancy
The Participant's payment election must be consistent with
the requirement of Code section 401(a)(9) that all payments
are to be completed within a period not to exceed the lives
or the joint and last survivor life expectancy of the
Participant and his or her Beneficiary. The life expectancies
of a Participant and his or her Beneficiary, if such
Beneficiary is his or her spouse, may be recomputed annually.
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<PAGE> 40
11.9 Incidental Benefit Rule
The Participant's payment election must be consistent with
the requirement that, if the Participant's spouse is not his
or her sole primary Beneficiary, the minimum annual
distribution for each calendar year, beginning with the year
in which he or she attains age 70 1/2, shall not be less than
the quotient obtained by dividing (a) the Participant's
vested Account balance as of the last Trade Date of the
preceding year by (b) the applicable divisor as determined
under the incidental benefit requirements of Code section
401(a)(9).
11.10 Payment to Beneficiary
Payment to a Beneficiary must either: (1) be completed by the
end of the calendar year that contains the fifth anniversary
of the Participant's death or (2) begin by the end of the
calendar year that contains the first anniversary of the
Participant's death and be completed within the period of the
Beneficiary's life or life expectancy, except that:
(a) If the Participant dies after the April 1
immediately following the end of the calendar year
in which he or she attains age 70 1/2, payment to
his or her Beneficiary must be made at least as
rapidly as provided in the Participant's
distribution election;
(b) If the surviving spouse is the Beneficiary, payments
need not begin until the end of the calendar year in
which the Participant would have attained age 70 1/2
and must be completed within the spouse's life or
life expectancy; and
(c) If the Participant and the surviving spouse who is
the Beneficiary die (1) before the April 1
immediately following the end of the calendar year
in which the Participant would have attained age 70
1/2 and (2) before payments have begun to the
spouse, the spouse shall be treated as the
Participant in applying these rules.
11.11 Beneficiary Designation
Each Participant may complete a beneficiary designation form
indicating the Beneficiary who is to receive the
Participant's remaining Plan interest at the time of his or
her death. The designation may be changed at any time.
However, a Participant's spouse shall be the sole primary
Beneficiary unless the designation includes Spousal Consent
for another Beneficiary. If no proper designation is in
effect at the time of a Participant's death or if the
Beneficiary does not survive the Participant, the Beneficiary
shall be, in the order listed, the:
(a) Participant's surviving spouse,
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<PAGE> 41
(b) Participant's children, in equal shares, (or if a
child does not survive the Participant, and that
child leaves issue, the issue shall be entitled to
that child's share, by right of representation) or
(c) Participant's estate.
11.12 QJSA and QPSA Information and Elections
The following definitions, information and election rules
shall apply to any Participant who entered the Plan prior to
January 1, 1994:
(a) Annuity Starting Date. The first day of the first
period for which an amount is payable as an annuity,
or, in the case of a benefit not payable in the form
of an annuity, the first day on which all events
have occurred which entitle the Participant to such
benefit. Such date shall be a date no earlier than
the expiration of the 30-day period that commences
the day after the information described in the QJSA
Information to a Participant paragraph below is
provided to the Participant, except that effective
January 1, 1996, "7-day period" shall be substituted
for the preceding reference to "30-day period".
(b) "QJSA". A qualified joint and survivor annuity,
meaning for a married Participant, a form of benefit
payment which is the actuarial equivalent of the
Participant's vested Account balance at the Annuity
Starting Date, payable to the Participant in monthly
payments for life and providing that, if the
Participant's spouse survives him or her, monthly
payments equal to 50% of the amount payable to the
Participant during his or her lifetime shall be paid
to the spouse for the remainder of such person's
lifetime and for a single Participant, a form of
benefit payment which is the actuarial equivalent of
the Participant's vested Account balance at the
Annuity Starting Date, payable to the Participant in
monthly payments for life.
(c) "QPSA". A qualified pre-retirement survivor annuity,
meaning that upon the death of a Participant before
the Annuity Starting Date, the vested portion of the
Participant's Account becomes payable to the
surviving spouse as a life annuity, except to the
extent of any Loan Account balance, unless Spousal
Consent has been given to a different Beneficiary or
the surviving spouse chooses a different form of
payment.
(d) QJSA Information to a Participant. No more than 90
days before the Annuity Starting Date, each
Participant who is eligible for an annuity form of
payment shall be given a written explanation of (1)
the terms and conditions of the QJSA, (2) the right
to a period of at least 30 days after receipt of the
written explanation to make an election to waive
this form of payment and choose an optional form of
payment and the effect of this election, (3) the
right to revoke this election and the effect of this
revocation, and (4) the need for Spousal Consent.
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<PAGE> 42
(e) QJSA Election. A Participant may elect, and such
election shall include Spousal Consent if married,
at any time within the 90 day period ending on the
Annuity Starting Date, to (1) waive the right to
receive the QJSA and elect an optional form of
payment, or (2) revoke or change any such election.
(f) QPSA Beneficiary Information to a Participant. Upon
becoming a Participant, and with updates as needed
to insure such information is accurate and readily
available to each Participant who is between the
ages of 32 and 35, each married Participant shall be
given written information stating that (1) his or
her death benefit is payable to his or her surviving
spouse, (2) he or she may choose that the benefit be
paid to a different Beneficiary, (3) he or she has
the right to revoke or change a prior designation
and the effects of such revocation or change, and
(4) the need for Spousal Consent.
(g) QPSA Beneficiary Designation by Participant. A
married Participant may designate, with Spousal
Consent, a non-spouse Beneficiary at any time after
the Participant has been given the information in
the QPSA Beneficiary Information to a Participant
paragraph above and upon the earlier of (1) the date
the Participant is no longer an Employee, or (2) the
beginning of the Plan Year in which the Participant
attains age 35. A Participant who has been given the
information in the QPSA Beneficiary Information to a
Participant paragraph above may, prior to the time
described in the preceding sentence, make a special
qualified election to designate, with Spousal
Consent, a non-spouse Beneficiary. Such special
qualified designation shall become invalid at the
beginning of the Plan Year in which the Participant
attains age 35 and a new designation, with Spousal
Consent, shall be necessary.
(h) QPSA Information to a Surviving Spouse. Each
surviving spouse who is eligible for an annuity form
of payment shall be given a written explanation of
(1) the terms and conditions of being paid his or
her Account balance in the form of a single life
annuity, (2) the right to make an election to waive
this form of payment and choose an optional form of
payment and the effect of this election, and (3) the
right to revoke this election and the effect of this
revocation.
(i) QPSA Election by Surviving Spouse. A surviving
spouse may elect, at any time up to the Annuity
Starting Date, to (1) waive the right to receive a
single life annuity and elect an optional form of
payment, or (2) revoke or change any such election.
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<PAGE> 43
12 ADP AND ACP TESTS
12.1 Contribution Limitation Definitions
The following definitions are applicable to this Section 12
(where a definition is contained in both Sections 1 and 12,
for purposes of Section 12 the Section 12 definition shall be
controlling):
(a) "ACP" or "Average Contribution Percentage". The
Average Percentage calculated using Contributions
allocated to Participants as of a date within the
Plan Year.
(b) "ACP Test". The determination of whether the ACP is
in compliance with the Basic or Alternative
Limitation for a Plan Year (as defined in Section
12.2).
(c) "ADP" or "Average Deferral Percentage". The Average
Percentage calculated using Deferrals allocated to
Participants as of a date within the Plan Year.
(d) "ADP Test". The determination of whether the ADP is
in compliance with the Basic or Alternative
Limitation for a Plan Year (as defined in Section
12.2).
(e) "Average Percentage". The average of the calculated
percentages for Participants within the specified
group. The calculated percentage refers to either
the "Deferrals" or "Contributions" (as defined in
this Section) made on each Participant's behalf for
the Plan Year, divided by his or her Compensation
for the portion of the Plan Year in which he or she
was an Eligible Employee while a Participant.
(401(k) Contributions to the Plan or comparable
contributions to plans of Related Companies which
shall be refunded solely because they exceed the
Contribution Dollar Limit are included in the
percentage for the HCE Group but not for the NHCE
Group.)
(f) "Contributions" shall include Spieker Match
Contributions. In addition, Contributions may
include 401(k) and SP Extra Contributions, but only
to the extent that (1) the Employer elects to use
them, (2) they are not used or counted in the ADP
Test, (3) SP Extra Contributions are fully vested
when made, not withdrawable by an Employee before he
or she attains age 59 1/2 and (4) they otherwise
satisfy the requirements as prescribed under Code
section 401(m) permitting treatment as Contributions
for purposes of the ACP Test, including with regard
to SP Extra Contributions, satisfaction of the
requirements of Code section 401(a) in the manner
prescribed under Code section 401(m).
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<PAGE> 44
(g) "Deferrals" shall include 401(k) Contributions. In
addition, Deferrals may include SP Extra
Contributions, but only to the extent that (1) the
Employer elects to use them, (2) they are not used
or counted in the ACP Test, (3) they are fully
vested when made, not withdrawable by an Employee
before he or she attains age 59 1/2 and (4) they
otherwise satisfy the requirements as prescribed
under Code section 401(k) permitting treatment as
Deferrals for purposes of the ADP Test, including
satisfaction of the requirements of Code section
401(a) in the manner prescribed under Code section
401(k).
(h) "Family Member". An Employee who is, at any time
during the Plan Year or Lookback Year, a spouse,
lineal ascendant or descendant, or spouse of a
lineal ascendant or descendant of (1) an active or
former Employee who at any time during the Plan Year
or Lookback Year is a more than 5% Owner (within the
meaning of Code section 414(q)(3)), or (2) an HCE
who is among the 10 Employees with the highest
Compensation for such Year.
(i) "HCE" or "Highly Compensated Employee". With respect
to each Employer and its Related Companies, an
Employee during the Plan Year or Lookback Year who
(in accordance with Code section 414(q)):
(1) Was a more than 5% Owner at any time during
the Lookback Year or Plan Year;
(2) Received Compensation during the Lookback
Year (or in the Plan Year if among the 100
Employees with the highest Compensation for
such Year) in excess of (i) $75,000 (as
adjusted for such Year pursuant to Code
sections 414(q)(1) and 415(d)), or (ii)
$50,000 (as adjusted for such Year pursuant
to Code sections 414(q)(1) and 415(d)) in
the case of a member of the "top-paid
group" (within the meaning of Code section
414(q)(4)) for such Year), provided,
however, that if the conditions of Code
section 414(q)(12)(B)(ii) are met, the
Company may elect for any Plan Year to
apply clause (i) by substituting $50,000
for $75,000 and not to apply clause (ii);
(3) Was an officer of a Related Company and
received Compensation during the Lookback
Year (or in the Plan Year if among the 100
Employees with the highest Compensation for
such Year) that is greater than 50% of the
dollar limitation in effect under Code
section 415(b)(1)(A) and (d) for such Year
(or if no officer has Compensation in
excess of the threshold, the officer with
the highest Compensation), provided that
the number of officers shall be limited to
50 Employees (or, if less, the greater of
three Employees or 10% of the Employees);
or
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<PAGE> 45
(4) Was a Family Member at any time during the
Lookback Year or Plan Year, in which case
the Deferrals, Contributions and
Compensation of the HCE and his or her
Family Members shall be aggregated and they
shall be treated as a single HCE.
A former Employee shall be treated as an HCE if (1)
such former Employee was an HCE when he separated
from service, or (2) such former Employee was an HCE
in service at any time after attaining age 55.
The determination of who is an HCE, including the
determinations of the number and identity of
Employees in the top-paid group, the top 100
Employees and the number of Employees treated as
officers shall be made in accordance with Code
section 414(q).
(j) "HCE Group" and "NHCE Group". With respect to each
Employer and its Related Companies, the respective
group of HCEs and NHCEs who are eligible to have
amounts contributed on their behalf for the Plan
Year, including Employees who would be eligible but
for their election not to participate or to
contribute, or because their Pay is greater than
zero but does not exceed a stated minimum.
(1) If the Related Companies maintain two or
more plans which are subject to the ADP or
ACP Test and are considered as one plan for
purposes of Code sections 401(a)(4) or
410(b), all such plans shall be aggregated
and treated as one plan for purposes of
meeting the ADP and ACP Tests, provided
that the plans may only be aggregated if
they have the same Plan Year.
(2) If an HCE, who is one of the top 10 paid
Employees or a more than 5% Owner, has any
Family Members, the Deferrals,
Contributions and Compensation of such HCE
and his or her Family Members shall be
combined and treated as a single HCE. Such
amounts for all other Family Members shall
be removed from the NHCE Group percentage
calculation and be combined with the HCE's.
(3) If an HCE is covered by more than one cash
or deferred arrangement, or more than one
arrangement permitting employee or matching
contributions, maintained by the Related
Companies, all such plans shall be
aggregated and treated as one plan (other
than those plans that may not be
permissively aggregated) for purposes of
calculating the separate percentage for the
HCE which is used in the determination of
the Average Percentage. For purposes of the
preceding sentence, if such plans have
different plan years, all such plans ending
with or within the same calendar year shall
be aggregated.
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<PAGE> 46
(k) "Lookback Year". Pursuant to Code section 414(q),
the Company elects as the Lookback Year the current
calendar year (ending with the Plan Year).
(l) "Multiple Use Test". The test described in Section
12.4 which a Plan must meet where the Alternative
Limitation (described in Section 12.2(b)) is used to
meet both the ADP and ACP Tests.
(m) "NHCE" or "Non-Highly Compensated Employee". An
Employee who is not an HCE.
12.2 ADP and ACP Tests
For each Plan Year, the ADP and ACP for the HCE Group must
meet either the Basic or Alternative Limitation when compared
to the respective ADP and ACP for the NHCE Group, defined as
follows:
(a) Basic Limitation. The HCE Group Average Percentage
may not exceed 1.25 times the NHCE Group Average
Percentage.
(b) Alternative Limitation. The HCE Group Average
Percentage is limited by reference to the NHCE Group
Average Percentage as follows:
IF THE NHCE GROUP THEN THE MAXIMUM HCE
AVERAGE PERCENTAGE IS: GROUP AVERAGE PERCENTAGE IS:
Less than 2% 2 times NHCE Group Average %
2% to 8% NHCE Group Average % plus 2%
More than 8% NA - Basic Limitation applies
12.3 Correction of ADP and ACP Tests
If the ADP or ACP Tests are not met, the Administrator shall
determine, no later than the end of the next Plan Year, a
maximum percentage to be used in place of the calculated
percentage for all HCEs that would reduce the ADP and/or ACP
for the HCE group by a sufficient amount to meet the ADP and
ACP Tests. ADP and/or ACP corrections shall be made in
accordance with the leveling method as described below.
(a) ADP Correction. The HCE with the highest Deferral
percentage shall have his or her Deferral percentage
reduced to the lesser of the extent required to meet
the ADP Test or to cause his or her Deferral
percentage to equal that of the HCE with the next
highest Deferral percentage. The process shall be
repeated until the ADP Test is met.
To the extent an HCE's Deferrals were determined to
be reduced as described in the paragraph above,
401(k) Contributions shall, by the end
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<PAGE> 47
of the next Plan Year, be refunded to the HCE in an
amount equal to the actual Deferrals minus the
product of the maximum percentage and the HCE's
Compensation, except that such amount to be refunded
shall be reduced by 401(k) Contributions previously
refunded because they exceeded the Contribution
Dollar Limit. The excess amounts shall first be
taken from unmatched 401(k) Contributions and then
from matched 401(k) Contributions. Any Spieker Match
Contributions attributable to refunded excess 401(k)
Contributions as described in this Section shall be
forfeited and used as described in Section 8.5.
(b) ACP Correction. The HCE with the highest
Contribution percentage shall have his or her
Contribution percentage reduced to the lesser of the
extent required to meet the ACP Test or to cause his
or her Contribution percentage to equal that of the
HCE with the next highest Contribution percentage.
The process shall be repeated until the ACP Test is
met.
To the extent an HCE's Contributions were determined
to be reduced as described in the paragraph above,
Spieker Match Contributions shall, by the end of the
next Plan Year, be refunded to the HCE to the extent
vested, and forfeited and used as described in
Section 8.5 to the extent such amounts were not
vested, as of the end of the Plan Year being tested,
in an amount equal to the actual Contributions minus
the product of the maximum percentage and the HCE's
Compensation.
(c) Investment Fund Sources. Once the amount of excess
Deferrals and/or Contributions is determined amounts
shall first be taken from the Sweep Account and then
taken by Investment Fund in direct proportion to the
market value of the Participant's interest in each
Investment Fund (which excludes his or her Loan
Account balance) as of the Trade Date on which the
correction is processed.
(d) Family Member Correction. To the extent any
reduction is necessary with respect to an HCE and
his or her Family Members that have been combined
and treated for testing purposes as a single
Employee, the excess Deferrals and Contributions
from the ADP and/or ACP Test shall be prorated among
each such Participant in direct proportion to his or
her Deferrals or Contributions included in each
Test.
12.4 Multiple Use Test
If the Alternative Limitation (defined in Section 12.2) is
used to meet both the ADP and ACP Tests, the ADP and ACP for
the HCE Group must also comply with the requirements of Code
section 401(m)(9). Such Code section requires that the sum of
the ADP and ACP for the HCE Group (as determined after any
corrections needed to meet the ADP and ACP Tests have been
made) not exceed the sum (which produces the most favorable
result) of:
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<PAGE> 48
(a) the Basic Limitation (defined in Section 12.2)
applied to either the ADP or ACP for the NHCE Group,
and
(b) the Alternative Limitation applied to the other NHCE
Group percentage.
12.5 Correction of Multiple Use Test
If the multiple use limit is exceeded, the Administrator
shall determine a maximum percentage to be used in place of
the calculated percentage for all HCEs that would reduce
either or both the ADP or ACP for the HCE Group by a
sufficient amount to meet the multiple use limit. Any excess
shall be handled in the same manner that the distribution of
excess Deferrals or Contributions are handled.
12.6 Adjustment for Investment Gain or Loss
Any excess Deferrals or Contributions to be refunded to a
Participant or forfeited in accordance with Section 12.3 or
12.5 shall be adjusted for investment gain or loss. Refunds
or forfeitures shall not include investment gain or loss for
the period between the end of the applicable Plan Year and
the date of distribution.
12.7 Testing Responsibilities and Required Records
The Administrator shall be responsible for ensuring that the
Plan meets the ADP Test, the ACP Test and the Multiple Use
Test, and that the Contribution Dollar Limit is not exceeded.
The Administrator shall maintain records which are sufficient
to demonstrate that the ADP Test, the ACP Test and the
Multiple Use Test, have been met for each Plan Year for at
least as long as the Employer's corresponding tax year is
open to audit.
12.8 Separate Testing
(a) Multiple Employers: The determination of HCEs,
NHCEs, and the performance of the ADP Test, the ACP
Test and the Multiple Use Test, and any corrective
action resulting therefrom, shall be conducted
separately with regard to the Employees of each
Employer (and its Related Companies) that is not a
Related Company with the other Employer(s).
(b) Collective Bargaining Units: The performance of the
ADP Test, and if applicable, the ACP Test and the
Multiple Use Test, and any corrective action
resulting therefrom, shall be conducted separately
with regard to Employees who are eligible to
participate in the Plan as a result of a collective
bargaining agreement.
In addition, testing may be conducted separately, at the
discretion of the Administrator and to the extent permitted
under Treasury regulations, to any group of Employees for
whom separate testing is permissible.
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<PAGE> 49
13 MAXIMUM CONTRIBUTION AND BENEFIT LIMITATIONS
13.1 "Annual Addition" Defined
The sum of all amounts allocated to the Participant's Account
for a Plan Year. Amounts include contributions (except for
rollovers or transfers from another qualified plan),
forfeitures and, if the Participant is a Key Employee
(pursuant to Section 14) for the applicable or any prior Plan
Year, medical benefits provided pursuant to Code section
419A(d)(1). For purposes of this Section 13.1, "Account" also
includes a Participant's account in all other defined
contribution plans currently or previously maintained by any
Related Company. The Plan Year refers to the year to which
the allocation pertains, regardless of when it was allocated.
The Plan Year shall be the Code section 415 limitation year.
13.2 Maximum Annual Addition
The Annual Addition to a Participant's accounts under the
Plan and any other defined contribution plan maintained by
any Related Company for any Plan Year shall not exceed the
lesser of (1) 25% of his or her Taxable Income or (2) the
greater of $30,000 or one-quarter of the dollar limitation in
effect under Code section 415(b)(1)(A), except that effective
January 1, 1995, "(2) $30,000 (as adjusted for the cost of
living pursuant to Code section 415(d)" shall be substituted
for the preceding reference to "(2) the greater of $30,000 or
one-quarter of the dollar limitation in effect under Code
section 415(b)(1)(A)".
13.3 Avoiding an Excess Annual Addition
If, at any time during a Plan Year, the allocation of any
additional Contributions would produce an excess Annual
Addition for such year, Contributions to be made for the
remainder of the Plan Year shall be limited to the amount
needed for each affected Participant to receive the maximum
Annual Addition.
13.4 Correcting an Excess Annual Addition
Upon the discovery of an excess Annual Addition to a
Participant's Account (resulting from forfeitures,
allocations, reasonable error in determining Participant
compensation or the amount of elective contributions, or
other facts and circumstances acceptable to the Internal
Revenue Service) the excess amount (adjusted to reflect
investment gains) shall first be returned to the Participant
to the extent of his or her 401(k) Contributions (however to
the extent 401(k) Contributions were matched, the applicable
Spieker Match Contributions shall be forfeited in proportion
to the returned matched 401(k) Contributions) and the
remaining excess, if any, shall be forfeited by the
Participant and together used as described in Section 8.5.
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<PAGE> 50
13.5 Correcting a Multiple Plan Excess
If a Participant, whose Account is credited with an excess
Annual Addition, received allocations to more than one defined
contribution plan, the excess shall be corrected by reducing
the Annual Addition to the Plan only after all possible
reductions have been made to the other defined contribution
plans.
13.6 "Defined Benefit Fraction" Defined
The fraction, for any Plan Year, where the numerator is the
"projected annual benefit" and the denominator is the greater
of 125% of the "protected current accrued benefit" or the
normal limit which is the lesser of (1) 125% of the maximum
dollar limitation provided under Code section 415(b)(1)(A) for
the Plan Year or (2) 140% of the amount which may be taken
into account under Code section 415(b)(1)(B) for the Plan
Year, where a Participant's:
(a) "projected annual benefit" is the annual benefit
provided by the Plan determined pursuant to Code
section 415(e)(2)(A), and
(b) "protected current accrued benefit" in a defined
benefit plan in existence (1) on July 1, 1982, shall
be the accrued annual benefit provided for under
Public Law 97-248, section 235(g)(4), as amended, or
(2) on May 6, 1986, shall be the accrued annual
benefit provided for under Public Law 99-514, section
1106(i)(3).
13.7 "Defined Contribution Fraction" Defined
The fraction where the numerator is the sum of the
Participant's Annual Addition for each Plan Year to date and
the denominator is the sum of the "annual amounts" for each
year in which the Participant has performed service with a
Related Company. The "annual amount" for any Plan Year is the
lesser of (1) 125% of the Code section 415(c)(1)(A) dollar
limitation (determined without regard to subsection (c)(6))
in effect for the Plan Year and (2) 140% of the Code section
415(c)(1)(B) amount in effect for the Plan Year, where:
(a) each Annual Addition is determined pursuant to the
Code section 415(c) rules in effect for such Plan
Year, and
(b) the numerator is adjusted pursuant to Public Law
97-248, section 235(g)(3), as amended, or Public Law
99-514, section 1106(i)(4).
13.8 Combined Plan Limits and Correction
If a Participant has also participated in a defined benefit
plan maintained by a Related Company, the sum of the Defined
Benefit Fraction and the Defined Contribution Fraction for
any Plan Year may not exceed 1.0. If the combined fraction
exceeds 1.0 for any Plan Year, the Participant's benefit
under any defined benefit plan (to the extent it has not been
distributed or used to purchase an annuity contract) shall be
limited so that the combined fraction does not exceed 1.0
before any defined contribution limits shall be enforced.
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<PAGE> 51
14 TOP HEAVY RULES
14.1 Top Heavy Definitions
When capitalized, the following words and phrases have the
following meanings when used in this Section:
(a) "Aggregation Group". The group consisting of each
qualified plan of an Employer (and its Related
Companies) (1) in which a Key Employee is a
participant or was a participant during the
determination period (regardless of whether such plan
has terminated), or (2) which enables another plan in
the group to meet the requirements of Code sections
401(a)(4) or 410(b). The Employer may also treat any
other qualified plan as part of the group if the
group would continue to meet the requirements of Code
sections 401(a)(4) and 410(b) with such plan being
taken into account.
(b) "Determination Date". The last Trade Date of the
preceding Plan Year or, in the case of the Plan's
first year, the last Trade Date of the first Plan
Year.
(c) "Key Employee". A current or former Employee (or his
or her Beneficiary) who at any time during the five
year period ending on the Determination Date was:
(1) an officer of a Related Company whose
Compensation (i) exceeds 50% of the amount
in effect under Code section 415(b)(1)(A)
and (ii) places him within the following
highest paid group of officers:
NUMBER OF EMPLOYEES NUMBER OF
NOT EXCLUDED UNDER CODE HIGHEST PAID
SECTION 414(Q)(8) OFFICERS INCLUDED
Less than 30 3
30 to 500 10% of the number of
Employees not excluded
under Code section
414(q)(8)
More than 500 50
(2) a more than 5% Owner,
(3) a more than 1% Owner whose Compensation
exceeds $150,000, or
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<PAGE> 52
(4) a more than 0.5% Owner who is among the 10
Employees owning the largest interest in a
Related Company and whose Compensation
exceeds the amount in effect under Code
section 415(c)(1)(A).
(d) "Plan Benefit". The sum as of the Determination Date
of (1) an Employee's Account, (2) the present value
of his or her other accrued benefits provided by all
qualified plans within the Aggregation Group, and (3)
the aggregate distributions made within the five year
period ending on such date. Plan Benefits shall
exclude rollover contributions and plan to plan
transfers made after December 31, 1983 which are both
employee initiated and from a plan maintained by a
non-related employer.
(e) "Top Heavy". The Plan's status when the Plan Benefits
of Key Employees account for more than 60% of the
Plan Benefits of all Employees who have performed
services at any time during the five year period
ending on the Determination Date. The Plan Benefits
of Employees who were, but are no longer, Key
Employees (because they have not been an officer or
Owner during the five year period), are excluded in
the determination.
14.2 Special Contributions
(a) Minimum Contribution Requirement. For each Plan Year
in which the Plan is Top Heavy, the Employer shall
not allow any contributions (other than a Rollover
Contribution from a plan maintained by a non-related
employer) to be made by or on behalf of any Key
Employee unless the Employer makes a contribution
(other than contributions made by an Employer in
accordance with a Participant's salary deferral
election or contributions made by an Employer based
upon the amount contributed by a Participant) on
behalf of all Participants who were Eligible
Employees as of the last day of the Plan Year in an
amount equal to at least 3% of each such
Participant's Taxable Income. The Administrator shall
remove any such contributions (including applicable
investment gain or loss) credited to a Key Employee's
Account in violation of the foregoing rule and return
them to the Employer or Employee to the extent
permitted by the Limited Return of Contributions
paragraph of Section 18.
(b) Overriding Minimum Benefit. Notwithstanding,
contributions shall be permitted on behalf of Key
Employees if the Employer also maintains a defined
benefit plan which automatically provides a benefit
which satisfies the Code section 416(c)(1) minimum
benefit requirements, including the adjustment
provided in Code section 416(h)(2)(A), if applicable.
If the Plan is part of an aggregation group in which
a Key Employee is receiving a benefit and no minimum
is provided in any other
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<PAGE> 53
plan, a minimum contribution of at least 3% of
Taxable Income shall be provided to the Participants
specified in the preceding paragraph. In addition,
the Employer may offset a defined benefit minimum by
contributions (other than contributions made by an
Employer in accordance with a Participant's salary
deferral election or contributions made by an
Employer based upon the amount contributed by a
Participant) made to the Plan.
14.3 Adjustment to Combined Limits for Different Plans
For each Plan Year in which the Plan is Top Heavy, 100% shall
be substituted for 125% in determining the Defined Benefit
Fraction and the Defined Contribution Fraction.
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<PAGE> 54
15 PLAN ADMINISTRATION
15.1 Plan Delineates Authority and Responsibility
Plan fiduciaries include the Company, the Administrator, the
Committee and/or the Trustee, as applicable, whose specific
duties are delineated in the Plan and Trust. In addition,
Plan fiduciaries also include any other person to whom
fiduciary duties or responsibility is delegated with respect
to the Plan. Any person or group may serve in more than one
fiduciary capacity with respect to the Plan. To the extent
permitted under ERISA section 405, no fiduciary shall be
liable for a breach by another fiduciary.
15.2 Fiduciary Standards
Each fiduciary shall:
(a) discharge his or her duties in accordance with the
Plan and Trust to the extent they are consistent with
ERISA;
(b) use that degree of care, skill, prudence and
diligence 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;
(c) act with the exclusive purpose of providing benefits
to Participants and their Beneficiaries, and
defraying reasonable expenses of administering the
Plan;
(d) diversify Plan investments, to the extent such
fiduciary is responsible for directing the
investment of Plan assets, so as to minimize the
risk of large losses, unless under the circumstances
it is clearly prudent not to do so; and
(e) treat similarly situated Participants and
Beneficiaries in a uniform and nondiscriminatory
manner.
15.3 Company is ERISA Plan Administrator
The Company is the plan administrator, within the meaning of
ERISA section 3(16), which is responsible for compliance with
all reporting and disclosure requirements, except those that
are explicitly the responsibility of the Trustee under
applicable law. The Administrator and/or Committee shall have
any necessary authority to carry out such functions through
the actions of the Administrator, duly appointed officers of
the Company, and/or the Committee.
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<PAGE> 55
15.4 Administrator Duties
The Administrator shall have the discretionary authority to
construe the Plan and Trust, other than the provisions which
relate to the Trustee, and to do all things necessary or
convenient to effect the intent and purposes thereof, whether
or not such powers are specifically set forth in the Plan and
Trust. Actions taken in good faith by the Administrator shall
be conclusive and binding on all interested parties, and shall
be given the maximum possible deference allowed by law. In
addition to the duties listed elsewhere in the Plan and Trust,
the Administrator's authority shall include, but not be
limited to, the discretionary authority to:
(a) determine who is eligible to participate, if a
contribution qualifies as a rollover contribution,
the allocation of Contributions, and the eligibility
for loans, in-service withdrawals and distributions;
(b) provide each Participant with a summary plan
description no later than 90 days after he or she has
become a Participant (or such other period permitted
under ERISA section 104(b)(1)), as well as informing
each Participant of any material modification to the
Plan in a timely manner;
(c) make a copy of the following documents available to
Participants during normal work hours: the Plan and
Trust (including subsequent amendments), all annual
and interim reports of the Trustee related to the
entire Plan, the latest annual report and the summary
plan description;
(d) determine the fact of a Participant's death and of
any Beneficiary's right to receive the deceased
Participant's interest based upon such proof and
evidence as it deems necessary;
(e) establish and review at least annually a funding
policy bearing in mind both the short-run and
long-run needs and goals of the Plan and to the
extent Participants may direct their own investments,
the funding policy shall focus on which Investment
Funds are available for Participants to use; and
(f) adjudicate claims pursuant to the claims procedure
described in Section 18.
15.5 Advisors May be Retained
The Administrator may retain such agents and advisors
(including attorneys, accountants, actuaries, consultants,
record keepers, investment counsel and administrative
assistants) as it considers necessary to assist it in the
performance of its duties. The Administrator shall also comply
with the bonding requirements of ERISA section 412.
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<PAGE> 56
15.6 Delegation of Administrator Duties
The Company, as Administrator of the Plan, has appointed a
Committee to administer the Plan on its behalf. The Company
shall provide the Trustee with the names and specimen
signatures of any persons authorized to serve as Committee
members and act as or on its behalf. Any Committee member
appointed by the Company shall serve at the pleasure of the
Company, but may resign by written notice to the Company.
Committee members shall serve without compensation from the
Plan for such services. Except to the extent that the Company
otherwise provides, any delegation of duties to a Committee
shall carry with it the full discretionary authority of the
Administrator to complete such duties.
15.7 Committee Operating Rules
(a) Actions of Majority. Any act delegated by the Company
to the Committee may be done by a majority of its
members. The majority may be expressed by a vote at a
meeting or in writing without a meeting, and a
majority action shall be equivalent to an action of
all Committee members.
(b) Meetings. The Committee shall hold meetings upon such
notice, place and times as it determines necessary to
conduct its functions properly.
(c) Reliance by Trustee. The Committee may authorize one
or more of its members to execute documents on its
behalf and may authorize one or more of its members
or other individuals who are not members to give
written direction to the Trustee in the performance
of its duties. The Committee shall provide such
authorization in writing to the Trustee with the name
and specimen signatures of any person authorized to
act on its behalf. The Trustee shall accept such
direction and rely upon it until notified in writing
that the Committee has revoked the authorization to
give such direction. The Trustee shall not be deemed
to be on notice of any change in the membership of
the Committee, parties authorized to direct the
Trustee in the performance of its duties, or the
duties delegated to and by the Committee until
notified in writing.
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<PAGE> 57
16 MANAGEMENT OF INVESTMENTS
16.1 Trust Agreement
All Plan assets shall be held by the Trustee in trust, in
accordance with those provisions of the Plan and Trust which
relate to the Trustee, for use in providing Plan benefits and
paying Plan fees and expenses not paid directly by the
Employer. Plan benefits shall be drawn solely from the Trust
and paid by the Trustee as directed by the Administrator.
Notwithstanding, the Company may appoint, with the approval of
the Trustee, another trustee to hold and administer Plan
assets which do not meet the requirements of Section 16.2.
16.2 Investment Funds
The Administrator is hereby granted authority to direct the
Trustee to invest Trust assets in one or more Investment
Funds. The number and composition of Investment Funds may be
changed from time to time, without the necessity of amending
the Plan and Trust. The Trustee may establish reasonable
limits on the number of Investment Funds as well as the
acceptable assets for any such Investment Fund. Each of the
Investment Funds may be comprised of any of the following:
(a) shares of a registered investment company, whether or
not the Trustee or any of its affiliates is an
advisor to, or other service provider to, such
company;
(b) collective investment funds maintained by the
Trustee, or any other fiduciary to the Plan, which
are available for investment by trusts which are
qualified under Code sections 401(a) and 501(a);
(c) individual equity and fixed income securities which
are readily tradeable on the open market;
(d) guaranteed investment contracts issued by a bank or
insurance company;
(e) interest bearing deposits of the Trustee; and
(f) Company Stock.
Any Investment Fund assets invested in a collective investment
fund, shall be subject to all the provisions of the
instruments establishing and governing such fund. These
instruments, including any subsequent amendments, are
incorporated herein by reference.
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<PAGE> 58
16.3 Authority to Hold Cash
The Trustee shall have the authority to cause the investment
manager of each Investment Fund to maintain sufficient deposit
or money market type assets in each Investment Fund to handle
the Fund's liquidity and disbursement needs. Each
Participant's and Beneficiary's Sweep Account, which is used
to hold assets pending investment or disbursement, shall
consist of interest bearing deposits of the Trustee.
16.4 Trustee to Act Upon Instructions
The Trustee shall carry out instructions to invest assets in
the Investment Funds as soon as practicable after such
instructions are received from the Administrator,
Participants, or Beneficiaries. Such instructions shall remain
in effect until changed by the Administrator, Participants or
Beneficiaries.
16.5 Administrator Has Right to Vote Registered Investment Company
Shares
The Administrator shall be entitled to vote proxies or
exercise any shareholder rights relating to shares held on
behalf of the Plan in a registered investment company.
Notwithstanding, the authority to vote proxies and exercise
shareholder rights related to such shares held in a Custom
Fund is vested as provided otherwise in Section 16.
16.6 Custom Fund Investment Management
The Administrator may designate, with the consent of the
Trustee, an investment manager for any Investment Fund
established by the Trustee solely for Participants of the Plan
(a "Custom Fund"). The investment manager may be the
Administrator, Trustee or an investment manager pursuant to
ERISA section 3(38). The Administrator shall advise the
Trustee in writing of the appointment of an investment manager
and shall cause the investment manager to acknowledge to the
Trustee in writing that the investment manager is a fiduciary
to the Plan.
A Custom Fund shall be subject to the following:
(a) Guidelines. Written guidelines, acceptable to the
Trustee, shall be established for a Custom Fund. If a
Custom Fund consists solely of collective investment
funds or shares of a registered investment company
(and sufficient deposit or money market type assets
to handle the Fund's liquidity and disbursement
needs), its underlying instruments shall constitute
the guidelines.
(b) Authority of Investment Manager. The investment
manager of a Custom Fund shall have the authority to
vote or execute proxies, exercise shareholder rights,
manage, acquire, and dispose of Trust
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<PAGE> 59
assets. Notwithstanding, the authority to vote
proxies and exercise shareholder rights related to
shares of Company Stock held in a Custom Fund is
vested as provided otherwise in Section 16.
(c) Custody and Trade Settlement. Unless otherwise agreed
to by the Trustee, the Trustee shall maintain custody
of all Custom Fund assets and be responsible for the
settlement of all Custom Fund trades. For purposes of
this section, shares of a collective investment fund,
shares of a registered investment company and
guaranteed investment contracts issued by a bank or
insurance company, shall be regarded as the Custom
Fund assets instead of the underlying assets of such
instruments.
(d) Limited Liability of Co-Fiduciaries. Neither the
Administrator nor the Trustee shall be obligated to
invest or otherwise manage any Custom Fund assets for
which the Trustee or Administrator is not the
investment manager nor shall the Administrator or
Trustee be liable for acts or omissions with regard
to the investment of such assets except to the extent
required by ERISA.
16.7 Authority to Segregate Assets
The Company may direct the Trustee to split an Investment Fund
into two or more funds in the event any assets in the Fund are
illiquid or the value is not readily determinable. In the
event of such segregation, the Company shall give instructions
to the Trustee on what value to use for the split-off assets,
and the Trustee shall not be responsible for confirming such
value.
16.8 Investment in Company Stock
If the Company provides for a Company Stock Fund, the Fund
shall be comprised of Company Stock and sufficient deposit or
money market type assets to handle the Fund's liquidity and
disbursement needs. The Fund may be as large as necessary to
comply with Participants' and Beneficiaries' investment
elections as well the total investment of Participants' and
Beneficiaries' Profit Sharing Post-09/30/96 Accounts.
16.9 Participants Have Right to Vote and Tender Company Stock
Each Participant or Beneficiary shall be entitled to instruct
the Trustee as to the voting or tendering of any full or
partial shares of Company Stock held on his or her behalf in
the Company Stock Fund. Prior to such voting or tendering of
Company Stock, each Participant or Beneficiary shall receive a
copy of the proxy solicitation or other material relating to
such vote or tender decision and a form for the Participant or
Beneficiary to complete which confidentially instructs the
Trustee to vote or tender such shares in the manner indicated
by the Participant or Beneficiary. Upon receipt of such
instructions, the Trustee shall act with respect to such
shares as instructed.
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<PAGE> 60
With regard to shares for which the Trustee receives no voting
or tendering instructions from Participants or Beneficiaries,
the Administrator shall instruct the Trustee with respect to
how to vote or tender such shares and the Trustee shall act
with respect to such shares as instructed.
16.10 Registration and Disclosure for Company Stock
The Administrator shall be responsible for determining the
applicability (and, if applicable, complying with) the
requirements of the Securities Act of 1933, as amended, the
California Corporate Securities Law of 1968, as amended, and
any other applicable blue sky law. The Administrator shall
also specify what restrictive legend or transfer restriction,
if any, is required to be set forth on the certificates for
the securities and the procedure to be followed by the Trustee
to effectuate a resale of such securities.
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17 TRUST ADMINISTRATION
17.1 Trustee to Construe Trust
The Trustee shall have the discretionary authority to
construe those provisions of the Plan and Trust which relate
to the Trustee and to do all things necessary or convenient
to the administration of the Trust, whether or not such
powers are specifically set forth in the Plan and Trust.
Actions taken in good faith by the Trustee shall be
conclusive and binding on all interested parties, and shall
be given the maximum possible deference allowed by law.
17.2 Trustee To Act As Owner of Trust Assets
Subject to the specific conditions and limitations set forth
in the Plan and Trust, the Trustee shall have all the power,
authority, rights and privileges of an absolute owner of the
Trust assets and, not in limitation but in amplification of
the foregoing, may:
(a) receive, hold, manage, invest and reinvest, sell,
tender, exchange, dispose of, encumber, hypothecate,
pledge, mortgage, lease, grant options respecting,
repair, alter, insure, or distribute any and all
property in the Trust;
(b) borrow money, participate in reorganizations, pay
calls and assessments, vote or execute proxies,
exercise subscription or conversion privileges,
exercise options and register any securities in the
Trust in the name of the nominee, in federal book
entry form or in any other form as shall permit
title thereto to pass by delivery;
(c) renew, extend the due date, compromise, arbitrate,
adjust, settle, enforce or foreclose, by judicial
proceedings or otherwise, or defend against the
same, any obligations or claims in favor of or
against the Trust; and
(d) lend, through a collective investment fund, any
securities held in such collective investment fund
to brokers, dealers or other borrowers and to permit
such securities to be transferred into the name and
custody and be voted by the borrower or others.
17.3 United States Indicia of Ownership
The Trustee shall not maintain the indicia of ownership of
any Trust assets outside the jurisdiction of the United
States, except as authorized by ERISA section 404(b).
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17.4 Tax Withholding and Payment
(a) Withholding. The Trustee shall calculate and withhold
federal (and, if applicable, state) income taxes with
regard to any Eligible Rollover Distribution that is
not paid as a Direct Rollover in accordance with the
Participant's withholding election or as required by
law if no election is made or the election is less
than the amount required by law. With regard to any
taxable distribution that is not an Eligible Rollover
Distribution, the Trustee shall calculate and
withhold federal (and, if applicable, state) income
taxes in accordance with the Participant's
withholding election or as required by law if no
election is made.
(b) Taxes Due From Investment Funds. The Trustee shall
pay from the Investment Fund any taxes or assessments
imposed by any taxing or governmental authority on
such Fund or its income, including related interest
and penalties.
17.5 Trust Accounting
(a) Annual Report. Within 60 days (or other reasonable
period) following the close of the Plan Year, the
Trustee shall provide the Administrator with an
annual accounting of Trust assets and information to
assist the Administrator in meeting ERISA's annual
reporting and audit requirements.
(b) Periodic Reports. The Trustee shall maintain records
and provide sufficient reporting to allow the
Administrator to properly monitor the Trust's assets
and activity.
(c) Administrator Approval. Approval of any Trustee
accounting shall automatically occur 90 days after
such accounting has been received by the
Administrator, unless the Administrator files a
written objection with the Trustee within such time
period. Such approval shall be final as to all
matters and transactions stated or shown therein and
binding upon the Administrator.
17.6 Valuation of Certain Assets
If the Trustee determines the Trust holds any asset which is
not readily tradeable and listed on a national securities
exchange registered under the Securities Exchange Act of 1934,
as amended, the Trustee may engage a qualified independent
appraiser to determine the fair market value of such property,
and the appraisal fees shall be paid from the Investment Fund
containing the asset.
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17.7 Legal Counsel
The Trustee may consult with legal counsel of its choice,
including counsel for the Employer or counsel of the Trustee,
upon any question or matter arising under the Plan and Trust.
When relied upon by the Trustee, the opinion of such counsel
shall be evidence that the Trustee has acted in good faith.
17.8 Fees and Expenses
The Trustee's fees for its services as Trustee shall be such
as may be mutually agreed upon by the Company and the
Trustee. Trustee fees and all reasonable expenses of counsel
and advisors retained by the Trustee shall be paid in
accordance with Section 6.
17.9 Trustee Duties and Limitations
The Trustee's duties, unless otherwise agreed to by the
Trustee, shall be confined to construing the terms of the
Plan and Trust as they relate to the Trustee, receiving funds
on behalf of and making payments from the Trust, safeguarding
and valuing Trust assets, investing and reinvesting Trust
assets in the Investment Funds as directed by the
Administrator, Participants or Beneficiaries and those duties
as described in this Section 17.
The Trustee shall have no duty or authority to ascertain
whether Contributions are in compliance with the Plan, to
enforce collection or to compute or verify the accuracy or
adequacy of any amount to be paid to it by the Employer. The
Trustee shall not be liable for the proper application of any
part of the Trust with respect to any disbursement made at
the direction of the Administrator.
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<PAGE> 64
18 RIGHTS, PROTECTION, CONSTRUCTION AND JURISDICTION
18.1 Plan Does Not Affect Employment Rights
The Plan does not provide any employment rights to any
Employee. The Employer expressly reserves the right to
discharge an Employee at any time, with or without cause,
without regard to the effect such discharge would have upon
the Employee's interest in the Plan.
18.2 Limited Return of Contributions
Except as provided in this paragraph, (1) Plan assets shall
not revert to the Employer nor be diverted for any purpose
other than the exclusive benefit of Participants or their
Beneficiaries; and (2) a Participant's vested interest shall
not be subject to divestment. As provided in ERISA section
403(c)(2), the actual amount of a Contribution made by the
Employer (or the current value of the Contribution if a net
loss has occurred) may revert to the Employer if:
(a) such Contribution is made by reason of a mistake of
fact;
(b) initial qualification of the Plan under Code section
401(a) is not received and a request for such
qualification is made within the time prescribed
under Code section 401(b) (the existence of and
Contributions under the Plan are hereby conditioned
upon such qualification); or
(c) such Contribution is not deductible under Code
section 404 (such Contributions are hereby
conditioned upon such deductibility) in the taxable
year of the Employer for which the Contribution is
made.
The reversion to the Employer must be made (if at all) within
one year of the mistaken payment of the Contribution, the
date of denial of qualification, or the date of disallowance
of deduction, as the case may be. A Participant shall have no
rights under the Plan with respect to any such reversion.
18.3 Assignment and Alienation
As provided by Code section 401(a)(13) and to the extent not
otherwise required by law, no benefit provided by the Plan may
be anticipated, assigned or alienated, except:
(a) to create, assign or recognize a right to any benefit
with respect to a Participant pursuant to a QDRO, or
(b) to use a Participant's vested Account balance as
security for a loan from the Plan which is permitted
pursuant to Code section 4975.
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18.4 Facility of Payment
If a Plan benefit is due to be paid to a minor or if the
Administrator reasonably believes that any payee is legally
incapable of giving a valid receipt and discharge for any
payment due him or her, the Administrator shall have the
payment of the benefit, or any part thereof, made to the
person (or persons or institution) whom it reasonably
believes is caring for or supporting the payee, unless it has
received due notice of claim therefor from a duly appointed
guardian or conservator of the payee. Any payment shall to
the extent thereof, be a complete discharge of any liability
under the Plan to the payee.
18.5 Reallocation of Lost Participant's Accounts
If the Administrator cannot locate a person entitled to
payment of a Plan benefit after a reasonable search, the
Administrator may at any time thereafter treat such person's
Account as forfeited and use such amount as described in
Section 8.5. If such person subsequently presents the
Administrator with a valid claim for the benefit, such person
shall be paid the amount treated as forfeited, plus the
interest that would have been earned in the Sweep Account to
the date of determination. The Administrator shall pay the
amount through an additional amount contributed by the
Employer or direct the Trustee to pay the amount from the
Forfeiture Account.
18.6 Claims Procedure
(a) Right to Make Claim. An interested party who
disagrees with the Administrator's determination of
his or her right to Plan benefits must submit a
written claim and exhaust this claim procedure
before legal recourse of any type is sought. The
claim must include the important issues the
interested party believes support the claim. The
Administrator, pursuant to the authority provided in
the Plan, shall either approve or deny the claim.
(b) Process for Denying a Claim. The Administrator's
partial or complete denial of an initial claim must
include an understandable, written response covering
(1) the specific reasons why the claim is being
denied (with reference to the pertinent Plan
provisions) and (2) the steps necessary to perfect
the claim and obtain a final review.
(c) Appeal of Denial and Final Review. The interested
party may make a written appeal of the
Administrator's initial decision, and the
Administrator shall respond in the same manner and
form as prescribed for denying a claim initially.
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<PAGE> 66
(d) Time Frame. The initial claim, its review, appeal and
final review shall be made in a timely fashion,
subject to the following time table:
<TABLE>
<CAPTION>
Days to Respond
Action From Last Action
<S> <C>
Administrator determines benefit NA
Interested party files initial request 60 days
Administrator's initial decision 90 days
Interested party requests final review 60 days
Administrator's final decision 60 days
</TABLE>
However, the Administrator may take up to twice the
maximum response time for its initial and final
review if it provides an explanation within the
normal period of why an extension is needed and when
its decision shall be forthcoming.
18.7 Construction
Headings are included for reading convenience. The text shall
control if any ambiguity or inconsistency exists between the
headings and the text. The singular and plural shall be
interchanged wherever appropriate. References to Participant
shall include Alternate Payee and/or Beneficiary when
appropriate and even if not otherwise already expressly
stated.
18.8 Jurisdiction and Severability
The Plan and Trust shall be construed, regulated and
administered under ERISA and other applicable federal laws
and, where not otherwise preempted, by the laws of the State
of California. If any provision of the Plan and Trust shall
become invalid or unenforceable, that fact shall not affect
the validity or enforceability of any other provision of the
Plan and Trust. All provisions of the Plan and Trust shall be
so construed as to render them valid and enforceable in
accordance with their intent.
18.9 Indemnification by Employer
The Employers hereby agree to indemnify all Plan fiduciaries
against any and all liabilities resulting from any action or
inaction, (including a Plan termination in which the Company
fails to apply for a favorable determination from the
Internal Revenue Service with respect to the qualification of
the Plan upon its termination), in relation to the Plan or
Trust (1) including (without limitation) expenses reasonably
incurred in the defense of any claim relating to the Plan or
its assets, and amounts paid in any settlement relating to
the Plan or its assets, but (2) excluding liability resulting
from actions or inactions made in bad faith, or resulting
from the negligence or willful misconduct of the Trustee. The
Company shall have the right, but not the obligation, to
conduct the defense of any action to which this Section
applies. The Plan fiduciaries are not entitled to indemnity
from the Plan assets relating to any such action.
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<PAGE> 67
19 AMENDMENT, MERGER, DIVESTITURES AND TERMINATION
19.1 Amendment
The Company reserves the right to amend the Plan and Trust at
any time, to any extent and in any manner it may deem
necessary or appropriate. The Company (and not the Trustee)
shall be responsible for adopting any amendments necessary to
maintain the qualified status of the Plan and Trust under Code
sections 401(a) and 501(a). If the Committee is acting as the
Administrator in accordance with Section 15.6, it shall have
the authority to adopt Plan and Trust amendments which have no
substantial adverse financial impact upon any Employer or the
Plan. All interested parties shall be bound by any amendment,
provided that no amendment shall:
(a) become effective unless it has been adopted in
accordance with the procedures set forth in Section
19.5;
(b) except to the extent permissible under ERISA and the
Code, make it possible for any portion of the Trust
assets to revert to an Employer or to be used for, or
diverted to, any purpose other than for the exclusive
benefit of Participants and Beneficiaries entitled to
Plan benefits and to defray reasonable expenses of
administering the Plan;
(c) decrease the rights of any Employee to benefits
accrued (including the elimination of optional forms
of benefits) to the date on which the amendment is
adopted, or if later, the date upon which the
amendment becomes effective, except to the extent
permitted under ERISA and the Code; nor
(d) permit an Employee to be paid the balance of his or
her 401(k) Account unless the payment would otherwise
be permitted under Code section 401(k).
19.2 Merger
The Plan and Trust may not be merged or consolidated with, nor
may its assets or liabilities be transferred to, another plan
unless each Participant and Beneficiary would, if the
resulting plan were then terminated, receive a benefit just
after the merger, consolidation or transfer which is at least
equal to the benefit which would be received if either plan
had terminated just before such event.
19.3 Divestitures
In the event of a sale by an Employer which is a corporation
of: (1) substantially all of the Employer's assets used in a
trade or business to an unrelated corporation, or (2) a sale
of such Employer's interest in a subsidiary
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to an unrelated entity or individual, lump sum distributions
shall be permitted from the Plan, except as provided below,
to Participants with respect to Employees who continue
employment with the corporation acquiring such assets or who
continue employment with such subsidiary, as applicable.
Notwithstanding, distributions shall not be permitted if the
purchaser agrees, in connection with the sale, to be
substituted as the Company as the sponsor of the Plan or to
accept a transfer of the assets and liabilities representing
the Participants' benefits into a plan of the purchaser or a
plan to be established by the purchaser.
19.4 Plan Termination
The Company may, at any time and for any reason, terminate the
Plan in accordance with the procedures set forth in Section
19.5, or completely discontinue contributions. Upon either of
these events, or in the event of a partial termination of the
Plan within the meaning of Code section 411(d)(3), the
Accounts of each affected Employee who has not yet incurred a
Break in Service shall be fully vested. If no successor plan
is established or maintained, lump sum distributions shall be
made in accordance with the terms of the Plan as in effect at
the time of the Plan's termination or as thereafter amended
provided that a post-termination amendment shall not be
effective to the extent that it violates Section 19.1 unless
it is required in order to maintain the qualified status of
the Plan upon its termination. The Trustee's and Employer's
authority shall continue beyond the Plan's termination date
until all Trust assets have been liquidated and distributed.
19.5 Amendment and Termination Procedures
The following procedural requirements shall govern the
adoption of any amendment or termination (a "Change") of the
Plan and Trust:
(a) The Company may adopt any Change by action of its
board of directors in accordance with its normal
procedures.
(b) The Committee, if acting as Administrator in
accordance with Section 15.6, may adopt any amendment
within the scope of its authority provided under
Section 19.1 and in the manner specified in Section
15.7(a).
(c) Any Change must be (1) set forth in writing, and (2)
signed and dated by an executive officer of the
Company or, in the case of an amendment adopted by
the Committee, at least one of its members.
(d) If the effective date of any Change is not specified
in the document setting forth the Change, it shall be
effective as of the date it is signed by the last
person whose signature is required under clause (2)
above,
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<PAGE> 69
except to the extent that another effective date is
necessary to maintain the qualified status of the
Plan and Trust under Code sections 401(a) and
501(a).
(e) No Change shall become effective until it is
accepted and signed by the Trustee (which acceptance
shall not unreasonably be withheld).
19.6 Termination of Employer's Participation
Any Employer may, at any time and for any reason, terminate
its Plan participation by action of its board of directors in
accordance with its normal procedures. Written notice of such
action shall be signed and dated by an executive officer of
the Employer and delivered to the Company. If the effective
date of such action is not specified, it shall be effective
on, or as soon as reasonably practicable after, the date of
delivery. Upon the Employer's request, the Company may
instruct the Trustee and Administrator to spin off all
affected Accounts and underlying assets into a separate
qualified plan under which the Employer shall assume the
powers and duties of the Company. Alternatively, the Company
may treat the event as a partial termination described above
or continue to maintain the Accounts under the Plan.
19.7 Replacement of the Trustee
The Trustee may resign as Trustee under the Plan and Trust or
may be removed by the Company at any time upon at least 90
days written notice (or less if agreed to by both parties).
In such event, the Company shall appoint a successor trustee
by the end of the notice period. The successor trustee shall
then succeed to all the powers and duties of the Trustee
under the Plan and Trust. If no successor trustee has been
named by the end of the notice period, the Company's chief
executive officer shall become the trustee, or if he or she
declines, the Trustee may petition the court for the
appointment of a successor trustee.
19.8 Final Settlement and Accounting of Trustee
(a) Final Settlement. As soon as administratively
feasible after its resignation or removal as Trustee,
the Trustee shall transfer to the successor trustee
all property currently held by the Trust. However,
the Trustee is authorized to reserve such sum of
money as it may deem advisable for payment of its
accounts and expenses in connection with the
settlement of its accounts or other fees or expenses
payable by the Trust. Any balance remaining after
payment of such fees and expenses shall be paid to
the successor trustee.
(b) Final Accounting. The Trustee shall provide a final
accounting to the Administrator within 90 days of the
date Trust assets are transferred to the successor
trustee.
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(c) Administrator Approval. Approval of the final
accounting shall automatically occur 90 days after
such accounting has been received by the
Administrator, unless the Administrator files a
written objection with the Trustee within such time
period. Such approval shall be final as to all
matters and transactions stated or shown therein and
binding upon the Administrator.
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APPENDIX A - INVESTMENT FUNDS
I. Investment Funds Available
The Investment Funds offered under the Plan as of the Effective Date
include this set of daily valued funds:
CATEGORY FUNDS
MONEY MARKET Money Market
INCOME U.S. Treasury Allocation
Bond Index
BALANCED Asset Allocation
EQUITY Company Stock
Growth Stock
International Equity
S&P 500 Stock
COMBINATION LifePath
II. Default Investment Fund
The default Investment Fund as of the Effective Date is the Money
Market Fund.
III. Contribution Accounts For Which Investment is Restricted
A Participant or Beneficiary may direct the investment of his or her
entire Account except for his or her Profit Sharing Post-09/30/96
Account, and except as otherwise provided in Section 7, which shall be
invested as of the Effective Date in the Company Stock Fund.
IV. Maximum Percentage Restrictions Applicable to Certain Investment Funds
As of the Effective Date, there are no maximum percentage restrictions
applicable to any Investment Funds.
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APPENDIX B - PAYMENT OF PLAN FEES AND EXPENSES
As of the Effective Date, payment of Plan fees and expenses shall be as follows:
1) Investment Management Fees: These are paid by Participants in that
management fees reduce the investment return reported and credited to
Participants, except that the Employer shall pay the fees related to
the Company Stock Fund. These are paid by the Employer on a quarterly
basis.
2) Recordkeeping Fees: These are paid by the Employer on a quarterly
basis, except that with regard to a Participant who is no longer an
Employee or a Beneficiary, these are paid by the Participant and are
assessed monthly and billed/collected from Accounts quarterly.
3) Loan Fees: A $3.50 per month fee is assessed and billed/collected
quarterly from the Account of each Participant who has an outstanding
loan balance.
4) Investment Fund Election Changes: For each Investment Fund election
change by a Participant, in excess of 4 changes per year, a $10 fee
shall be assessed and billed/collected quarterly from the Participant's
Account.
5) Periodic Installment Payment Fees: A $3.00 per check fee shall be
assessed and billed/collected quarterly from the Participant's Account.
6) Additional Fees Paid by Employer: All other Plan related fees and
expenses shall be paid by the Employer. To the extent that the
Administrator later elects that any such fees shall be borne by
Participants, estimates of the fees shall be determined and reconciled,
at least annually, and the fees shall be assessed monthly and
billed/collected from Accounts quarterly.
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APPENDIX C - LOAN INTEREST RATE
As of the Effective Date, the interest rate charged on Participant loans shall
be equal to the prime rate published in the Wall Street Journal at the time the
loan is processed, plus 2%. If multiple prime rates are published in the Wall
Street Journal, the prime rate selected shall be the rate closest to the last
prime rate used for this purpose.
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference, in the Registration Statement
on Form S-8 pertaining to the Spieker Properties, L.P. Retirement Savings Plan
(the "Plan") for the registration of interests to be offered or sold pursuant to
the Plan and 100,000 shares of $.0001 par value Common Stock of Spieker
Properties, Inc. which may be acquired by the Plan for its participants, of our
report dated January 25, 1996, with respect to the financial statements and
schedules of Spieker Properties, Inc. included in its Annual Reports on Forms
10-K and 10-K/A for the year ended December 31, 1995, filed with the Securities
and Exchange Commission.
/s/ Arthur Andersen LLP
San Francisco, California
September 30, 1996
