<PAGE>
As filed with the Securities and Exchange Commission on June 6, 1997.
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
____________________
BIG FLOWER PRESS HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-376-8322
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3 EAST 54TH STREET
NEW YORK, NEW YORK 10022
(Address, including zip code, of principal executive offices)
____________________
TREASURE CHEST ADVERTISING COMPANY, INC.
SAVINGS PLUS 401(K) PLAN
(Full title of the plan)
____________________
MARK A. ANGELSON, ESQUIRE
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
OF THE BOARD OF DIRECTORS
BIG FLOWER PRESS HOLDINGS, INC.
3 EAST 54TH STREET
NEW YORK, NEW YORK 10022
(212) 521-1600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
THOMAS J. ST. VILLE, ESQUIRE
MILES & STOCKBRIDGE
A PROFESSIONAL CORPORATION
10 LIGHT STREET
BALTIMORE, MARYLAND 21202
(410) 385-3735
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR
VALUE $0.01 PER SHARE............ 500,000 SHS. $21.3125 $10,656,250.00 $3,230.00
- ------------------------------------------------------------------------------------------------------------------
RIGHTS TO PURCHASE SERIES A JUNIOR
PREFERRED STOCK, PAR VALUE $.01 PER SHARE (3) (3) (3) (3)
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) IN ADDITION, PURSUANT TO RULE 416(C) UNDER THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ALSO COVERS AN INDETERMINATE AMOUNT OF PLAN
INTERESTS TO BE OFFERED OR SOLD PURSUANT TO THE PLAN TO WHICH THIS
REGISTRATION STATEMENT RELATES.
(2) THE FEE HAS BEEN COMPUTED, PURSUANT TO RULE 457(H)(1), BASED ON THE AVERAGE
OF THE HIGH AND LOW PRICES REPORTED ON THE NEW YORK STOCK EXCHANGE FOR THE
REGISTRANT'S COMMON STOCK ON JUNE 2, 1997.
(3) THE RIGHTS TO PURCHASE SERIES A JUNIOR PREFERRED STOCK OF THE REGISTRANT
INITIALLY ARE ATTACHED TO AND TRADE WITH THE SHARES OF THE REGISTRANT'S
COMMON STOCK BEING REGISTERED HEREBY. VALUE ATTRIBUTED TO SUCH RIGHTS, IF
ANY, IS REFLECTED IN THE MARKET PRICE OF THE REGISTRANT'S COMMON STOCK.
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference and made a
part hereof, except as superseded or modified herein:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996 filed with the Commission on March 26, 1997;
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
pursuant to Section 12 of the Securities Exchange Act of 1934 (the "Exchange
Act") on November 14, 1995 (as amended on Form 8-A/A filed on November 29, 1995,
describing the Registrant's Preferred Stock Purchase Rights), and any amendment
or report filed for the purpose of updating such description; and
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997 filed with the Commission on May 12, 1997.
All documents filed by the Registrant or the Plan pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all 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 the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("Delaware GCL")
empowers a corporation, subject to certain limitations, to indemnify its
directors and officers against expenses (including attorneys' fees, judgments,
fines and certain settlements) actually and reasonably incurred by them in
connection with any suit or proceeding to which they are a party so long as they
acted in good faith and in a manner reasonably believed to be in or not opposed
-1-
<PAGE>
to the best interests of the corporation, and, with respect to a criminal action
or proceeding, so long as they had no reasonable cause to believe their conduct
to have been unlawful. The Registrant's Restated Certificate of Incorporation
and Amended and Restated Bylaws (the "Bylaws") provide that the Registrant shall
indemnify its directors and such of its officers, employees and agents as the
Board of Directors may determine from time to time, to the fullest extent
permitted by Section 145 of the Delaware GCL.
Section 102 of the Delaware GCL permits a Delaware corporation to include
in its certificate of incorporation a provision eliminating or limiting a
director's liability to a corporation or its stockholders for monetary damages
for breaches of fiduciary duty. The enabling statute provides, however, that
liability for breaches of the duty of loyalty, acts or omissions not in good
faith or involving intentional misconduct, or knowing violation of the law, and
the unlawful purchase or redemption of stock or payment of unlawful dividends or
the receipt of improper personal benefits cannot be eliminated or limited in
this manner. The Registrant's Restated Certificate of Incorporation and Bylaws
include a provision which eliminates, to the fullest extent permitted by law,
director liability for monetary damages for breaches of fiduciary duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
Exhibit
Number Description
------- -----------
4.1 Restated Certificate of Incorporation of the Registrant.(1)
4.2 Certificate of Designation, Preferences and Rights of Series A Junior
Preferred Stock of the Registrant.(1)
4.3 Rights Agreement, dated November 28, 1995, between the Registrant and
The Bank of New York, as rights agent.(1)
4.4 Amended and Restated Bylaws of the Registrant.(1)
4.5 Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
4.6 Amendment 1996-1 to the Treasure Chest Advertising Company, Inc.
Savings Plus 401(k) Plan.
- ---------------------
(1) Incorporated by reference to Big Flower Press Holdings, Inc., Form 10-Q,
for the quarter ended December 31, 1995 (file #1-14084)
-2-
<PAGE>
4.7 Amendment 1997-1 to the Treasure Chest Advertising Company, Inc.
Savings Plus 401(k) Plan.
5.1 Opinion of Miles & Stockbridge, a Professional Corporation.
23.1 Consent of Deloitte & Touche, LLP.
23.2 Consent of Miles & Stockbridge, a Professional Corporation (contained
in Exhibit 5.1 hereof).
24.1 Powers of Attorney.
The Registrant hereby undertakes that the Registrant will submit or has
submitted the Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan
and any amendments thereto ("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 under the Internal Revenue Code of 1986, as amended.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that subparagraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic
-3-
<PAGE>
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on this 6th day of June,
1997.
BIG FLOWER PRESS HOLDINGS, INC.
By: /s/ R. Theodore Ammon
--------------------------
R. Theodore Ammon
Chairman
-5-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
Signature Title Date
/s/ R. Theodore Ammon Chairman of the Board June 6, 1997
----------------- and Director
R. Theodore Ammon
/s/ Edward T. Reilly President, Chief June 6, 1997
---------------- Executive Officer
Edward T. Reilly and Director
/s/ Richard L. Ritchie Executive Vice President June 6, 1997
------------------ and Chief Financial
Richard L. Ritchie* Officer (Principal
Financial and Accounting
Officer)
/s/ Leon D. Black Director June 6, 1997
-------------
Leon D. Black*
/s/ Peter G. Diamandis Director June 6, 1997
------------------
Peter G. Diamandis*
/s/ Robert M. Kimmitt Director June 6, 1997
-----------------
Robert M. Kimmitt*
/s/ Joan D. Manley Director June 6, 1997
--------------
Joan D. Manley*
/s/ Newton N. Minow Director June 6, 1997
---------------
Newton N. Minow*
/s/ Edward M. Yorke Director June 6, 1997
---------------
Edward M. Yorke*
*By:/s/ Edward T. Reilly June 6, 1997
--------------------
(Edward T. Reilly, Attorney-in-fact**)
____________________
**By authority of Powers of Attorney filed with this Registration
Statement on Form S-8
-6-
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the trustees
(or other persons who administer the Plan) have duly caused this registration
statement to be signed on their behalf by the undersigned, thereunto duly
authorized, in the City of Baltimore, State of Maryland, on this 6th day of
June, 1997.
TREASURE CHEST ADVERTISING COMPANY, INC.
SAVINGS PLUS 401(K) PLAN
By: /s/ Michael E. Houser
-------------------------------
Michael E. Houser, Chairman
Treasure Chest Advertising
Company, Inc. Retirement Board
-7-
<PAGE>
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NO.
- ------- ----------- ----
4.1 Restated Certificate of Incorporation of the
Registrant.(1)
4.2 Certificate of Designation, Preferences and
Rights of Series A Junior Preferred Stock
of the Registrant.(1)
4.3 Rights Agreement, dated November 28, 1995,
between the Registrant and The Bank of
New York, as rights agent.(1)
4.4 Amended and Restated Bylaws of the Registrant.(1)
4.5 Treasure Chest Advertising Company, Inc.
Savings Plus 401(k) Plan.
4.6 Amendment 1996-1 to the Treasure Chest
Advertising Company, Inc. Savings Plus
401(k) Plan.
4.7 Amendment 1997-1 to the Treasure Chest
Advertising Company, Inc. Savings Plus
401(k) Plan.
5.1 Opinion of Miles & Stockbridge,
a Professional Corporation.
23.1 Consent of Deloitte & Touche, LLP.
23.2 Consent of Miles & Stockbridge, a
Professional Corporation (contained
in Exhibit 5.1 hereof).
24.1 Powers of Attorney.
____________________
(1) Incorporated by reference to Big Flower Press Holdings, Inc., Form 10-Q,
for the quarter ended December 31, 1995 (file #1-14084)
-8-
<PAGE>
Exhibit 4.5
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(AN AMENDMENT AND RESTATEMENT EFFECTIVE JANUARY 1, 1994 OF THE TREASURE CHEST
SAVINGS PLUS PREVIOUSLY ADOPTED ON THE DUN & BRADSTREET RETIREMENT PLAN SERVICES
STANDARDIZED 401(K) PROFIT SHARING PLAN AND TRUST ORIGINALLY EFFECTIVE JULY 1,
1990.)
<PAGE>
TABLE OF CONTENTS
SECTION 1. NATURE OF THE PLAN..............................................1
(a) Nature and Purpose..............................................1
SECTION 2. DEFINITIONS.....................................................1
(a) Account.........................................................1
(b) Affiliated Company..............................................1
(c) Allocation Date.................................................2
(d) Anniversary Date................................................2
(e) Approved Absence................................................2
(f) Beneficiary.....................................................2
(g) Break in Service................................................2
(h) Capital Accumulation............................................2
(i) Code............................................................2
(j) Committee.......................................................2
(k) Company.........................................................3
(l) Compensation....................................................3
(m) Credited Service................................................3
(n) Election Period.................................................3
(o) Elective Contributions..........................................3
(p) Eligible Employee...............................................4
(q) Employee........................................................4
(r) Employer........................................................4
(s) Employer Matching Contributions.................................4
(t) Employer Profit Sharing Contributions...........................4
(u) Entry Date......................................................4
(v) ERISA...........................................................4
(w) Excess Contributions and Excess Aggregate Contributions.........4
(x) Forfeiture......................................................5
(y) Highly Compensated Employee.....................................5
(z) Hour of Service.................................................7
(aa) Limitation Year.................................................7
(bb) Participant.....................................................7
(cc) Plan............................................................7
(dd) Plan Year.......................................................7
(ee) Service.........................................................7
(ff) Trust...........................................................7
(gg) Trust Agreement.................................................8
(hh) Trust Assets....................................................8
(ii) Trustee.........................................................8
(jj) Year of Service.................................................8
<PAGE>
SECTION 3. ELIGIBILITY AND PARTICIPATION...................................8
(a) Eligibility and Entry...........................................8
(b) Duration and Participation......................................9
SECTION 4. CONTRIBUTIONS..................................................10
(a) Elective Contributions.........................................10
(b) Employer Matching Contributions................................11
(c) Employer Profit Sharing Contributions..........................12
(d) Timing of Contributions........................................12
(e) Conditions.....................................................12
SECTION 5. INVESTMENT OF TRUST ASSETS.....................................13
(a) Participation Directed Investments.............................13
(b) Managed Fund...................................................13
SECTION 6. PARTICIPANTS' ACCOUNTS, ALLOCATIONS AND LIMITATIONS............13
(a) Participants' Accounts.........................................13
(b) Accounting for the Plan........................................14
(c) Allocation of Contributions....................................14
(d) Allocation of Earnings.........................................15
(e) 401(k) Limitations.............................................15
(f) Correction of Excess Contributions.............................17
(g) Overall Limitations............................................19
SECTION 7. EXPENSES OF THE PLAN AND TRUST.................................21
(a) Administrative Expenses........................................21
SECTION 8. DISCLOSURE TO PARTICIPANTS.....................................21
(a) Summary Plan Description.......................................21
(b) Summary Annual Report..........................................21
(c) Participant Statements.........................................21
(d) Tax Notice.....................................................22
(e) Additional Disclosure..........................................22
SECTION 9. RETIREMENT.....................................................22
(a) Normal Retirement..............................................22
(b) Disability Retirement..........................................22
SECTION 10. VESTING AND FORFEITURE.........................................23
(a) Vesting Upon Retirement, Disability or Death...................23
(b) Vesting Upon Other Termination of Service......................23
(c) Forfeiture.....................................................23
SECTION 11. CREDITED SERVICE AND HOURS OF SERVICE..........................24
(a) Credited Service...............................................24
(b) Reemployment After Break(s) in Service.........................24
(c) Hours of Service Credited......................................25
SECTION 12. INCIDENTS OF DISTRIBUTION, HARDSHIP WITHDRAWALS, AND PARTICIPANT
LOANS..........................................................26
(a) Normal Distributions...........................................26
(b) Age 59-1/2 Distributions.......................................26
(c) Hardship Withdrawals...........................................26
(d) Loans to Participants..........................................27
<PAGE>
SECTION 13. NORMAL DISTRIBUTION TIMING AND MANNER..........................28
(a) Timing of Distributions........................................28
(b) Manner of Distributions........................................29
(c) Special Transfer Elections Related to Distributions Made on or
After January 1, 1993..........................................30
SECTION 14. BENEFICIARIES AND UNLOCATABLE PARTICIPANTS.....................31
(a) Beneficiaries..................................................31
(b) Failure to Locate..............................................31
SECTION 15. NO ASSIGNMENT OF BENEFITS......................................32
(a) Benefits Inalienable...........................................32
SECTION 16. ADMINISTRATION.................................................32
(a) Plan Administrator.............................................32
(b) Trustee........................................................33
(c) Employment of Advisors.........................................33
(d) Fidelity Bonding...............................................33
(e) Indemnification................................................34
SECTION 17. CLAIMS PROCEDURE...............................................34
(a) No Claim Required..............................................34
(b) Claims Procedures..............................................34
SECTION 18. TOP HEAVY PROVISIONS...........................................35
(a) Special Definitions............................................35
(b) Determination of Top-Heaviness.................................38
(c) Determination of Super Top-Heaviness...........................38
(d) Calculation of Accounts to be Compared.........................38
(e) Results of Being Top-Heavy.....................................39
SECTION 19. OTHER PROVISIONS-GOVERNING LAW.................................41
(a) Limits on Liability............................................41
(b) No Contract of Employment......................................41
(c) Rights to Amend................................................41
(d) Termination or Partial Termination.............................41
(e) Merger, Consolidation, or Transfer of Assets...................42
(f) Titles No Part of Agreement....................................42
(g) Governing Law..................................................42
SECTION 20. EXECUTION......................................................43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
SECTION 1. NATURE OF THE PLAN.
(A) NATURE AND PURPOSE
The purpose of this Plan, originally effective July 1, 1990, is to enable
participating Employees to share in the growth and prosperity of the Company and
to provide Participants with an opportunity to accumulate capital for their
future economic security. The Plan is intended to do this through a combination
of elective salary deferrals on the part of Employees and profit sharing and/or
matching contributions on the part of the Company. This Amendment, effective
January 1, 1994, is intended to continue to be a profit sharing plan under
Section 401(a) of the Code and to qualify as a "cash or deferred arrangement"
under Section 401(k) of the Code.
All Trust Assets held under the Plan will be administered, distributed,
forfeited and otherwise governed by the provisions of this Plan and its related
Trust Agreement. The Plan is administered by the Company for the exclusive
benefit of Participants (and their beneficiaries).
SECTION 2. DEFINITIONS.
In the text of this document hereafter, the term "Plan" is used to refer
to the Treasure Chest Advertising Co. Inc. Savings Plus 401 (k) Plan as here
amended unless indicated in the context to the contrary.
In this Plan, whenever the context so indicates, the singular or plural
number and the masculine, feminine or neuter gender will be deemed to include
the other. The terms "he", "his" and "him" will refer to a Participant, and the
capitalized terms will have the following meanings:
(a) ACCOUNT
One of the several accounts maintained to record the various interests
of a Participant under the Plan. See Section 6.
(b) AFFILIATED COMPANY
Any business under common control with the Company, under the
provisions of Section 414(b), (c) or (m) of the Code.
Page 1 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(c) ALLOCATION DATE
A date no less frequent than annually as of the Anniversary Date of
each year (nor more frequent than daily, subject to the
administrator's capability) as of which valuations of assets and
allocations to Accounts are performed. The frequency of Allocation
Dates will be determined by the Committee.
(d) ANNIVERSARY DATE
December 31st, the last day of each Plan Year.
(e) APPROVED ABSENCE
A leave of absence granted to an Employee by an Employer under its
established leave policy.
(f) BENEFICIARY
The person (or persons) entitled to receive any benefit under the Plan
in the event of a Participant's death. See Section 14.
(g) BREAK IN SERVICE
A Plan Year during which a Participant is not credited with more than
500 Hours of Service and in which he is not an Employee on the
Anniversary Date.
(h) CAPITAL ACCUMULATION
A Participant's vested (nonforfeitable) interest in his Accounts under
the Plan.
(i) CODE
The Internal Revenue Code of 1986, as amended.
(j) COMMITTEE
The Committee appointed by the Board of Directors of the Company to
assist in administration of the Plan. See Section 16.
Page 2 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(k) COMPANY
Treasure Chest Advertising Company, Inc., a California Corporation and
its Subsidiaries and Affiliates whose Employees participate in this
Plan.
(1) COMPENSATION
(1) IN GENERAL - The gross amount of salary and wages of an Employee
for a Plan Year as reportable on Form W-2, including overtime,
commissions, and bonuses in cash or in kind paid by the Company, but
excluding relocation pay. For Plan Years beginning after 1989 but
before 1994, any amount in excess of $200,000 (as adjusted for cost of
living pursuant to Section 401(a)(17) of the Code) will be excluded.
For Plan Years beginning after 1993, the $200,000 limit in the
preceding sentence will be reduced to $150,000.
(2) FOR TESTING - For purposes of the anti-discrimination tests and
the determination of Excess and Excess Aggregate Contributions in
Section 6 of this Plan, Compensation will also include all Elective
Contributions which are made by the Company on behalf of Employees to
a Cafeteria Plan, cash or deferred arrangement or tax-sheltered
annuity and which amounts are not includible in the gross income of
such Employees.
(m) CREDITED SERVICE
The number of Years of Service for vesting purposes earned by an
Employee as further described in Section 11.
(n) ELECTION PERIOD
In general, Election Periods will include any period prior to an
Election Date declared by the Committee during which a Participant may
make or change a Deferral Election or investment direction. Election
Periods may include such periods as the Committee may determine to be
necessary in order to provide Employees an adequate,
non-discriminatory opportunity to participate.
(o) ELECTIVE CONTRIBUTIONS
Payments made to the Trust by the Company pursuant to Participant
elections under Section 4(a).
Page 3 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(p) ELIGIBLE EMPLOYEE
An employee who has met the eligibility requirements of Section 3(a).
(q) EMPLOYEE
Any common-law employee of the Company or any individual deemed to be
an Employee by virtue of Section 414(m) or (n) of the Code.
(r) EMPLOYER
The Company, and each Affiliated Company which has been designated by
the Company as an Employer under the Plan and which has adopted the
Plan for the benefit of its Employees.
(s) EMPLOYER MATCHING CONTRIBUTIONS
Payments made to the Trust by an Employer as matching on Participants'
Elective Contributions pursuant to Section 4(b) hereof.
(t) EMPLOYER PROFIT SHARING CONTRIBUTIONS
Payments made to the Trust by an Employer as discretionary Profit
Sharing Contributions pursuant to Section 4(c) hereof.
(u) ENTRY DATE
For purposes of initial entry into the Plan, an Employee's Entry Date
will be the January 1st or July 1st following his completion of the
eligibility requirements of Section 3 below.
(v) ERISA
The Employee Retirement Income Security Act of 1974, as amended.
(w) EXCESS CONTRIBUTIONS AND EXCESS AGGREGATE CONTRIBUTIONS
Amounts allocated for a Plan Year on behalf of Highly Compensated
Employees which are in excess of the limitations described in Section
6 of this Plan.
Page 4 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(x) FORFEITURE
Any portion of a Participant's Accounts which does not become a part
of his Capital Accumulation when participation ceases pursuant to
Section 3(b) hereof and which will no longer be subject to
reinstatement upon the occurrence of five (5) consecutive Breaks in
Service.
(y) HIGHLY COMPENSATED EMPLOYEE
GENERAL DEFINITION - An Employee who performs service during a
determination year and who is described in one or more of the
following groups:
(1) An Employee who is a 5% owner, as defined in Code Section
416(i)(1)(B)(i), at any time during the determination year or the
look-back year.
(2) An Employee who receives compensation in excess of $75,000
during the look-back year.
(3) An Employee who receives compensation in excess of $50,000
during the look-back year and is a member of the top-paid group for
the look-back year.
(4) An Employee who is an officer, within the meaning of Code Section
416(i) during the look-back year and who receives compensation in the
look-back year greater than 50% of the dollar limitation in effect
under Code Section 415(b)(1)(A) for the calendar year in which the
look-back year begins.
(5) An Employee who is described in paragraphs (2), (3), or (4) above
when these paragraphs are modified to substitute the determination
year for the look-back year AND is one of the 100 Employees who
receive the most compensation from the Employer during the
determination year.
(6) For purposes of this definition, the following information will
apply:
(i) The determination year is the Plan Year for which the
determination of who is a Highly Compensated Employee is being
made.
(ii) The look-back year is the 12 month period immediately
preceding the determination year.
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SAVINGS PLUS 401(K) PLAN
(iii) The top-paid group consists of the top 20% of Employees
ranked on the basis of compensation received during the year.
For purposes of determining the number of Employees in the
top-paid group, Employees described in Code Section 414(q)(8) and
Q & A 9(b) of Section 1.414(q)-IT of the regulations are
excluded.
(iv) The number of officers is limited to 50 (or, if less, the
greater of 3 Employees or 10% of Employees).
(v) When no officer has compensation in excess of 150% of the
Code Section 415(c) limit, the highest paid officer is treated as
a Highly Compensated Employee.
(vi) Compensation is compensation within the meaning of Code
Section 415(c)(3) including elective or salary reduction
contributions to a Section 125 Cafeteria Plan, cash or deferred
arrangement or tax-sheltered annuity.
(vii) Employers aggregated under Code Section 414(b), (c), (m)
or (o) are treated as a single employer.
(viii) For purposes of the requirements of Code Sections 401(m)
and 401(k), a Highly Compensated Employee who is either a 5%
owner or one of the ten most Highly Compensated Employees is
subject to the family aggregation rules of Code Section
414(q)(6). For this purpose, family member is defined as the
spouse and the lineal ascendants and descendants (and spouses of
such ascendants and descendants) of any Employee or former
Employee.
(ix) The term Highly Compensated Employee will also include a
former Employee who had a separation year prior to the
determination year and who was an active Highly Compensated
Employee for either his separation year or any determination year
ending on or after his 55th birthday.
(x) Generally, a separation year is a determination year
during which an Employee separates from Service.
(xi) An Employee who separated from Service before January 1,
1987 will be included as a Highly Compensated Employee only if
the Employee was a 5% owner or received compensation in excess of
$50,000 during either the Employee's separation year (or the year
preceding such separation year) or
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any year ending on or after his 55th birthday (or the last year
ending before such Employee's 55th birthday).
(xii) For purposes of this definition the $50,000 and $75,000
amounts shall be adjusted as provided under Code Section
414(q)(1).
(z) HOUR OF SERVICE
Each hour of Service for which an Employee is credited under the Plan,
as further provided in Section 11 (c).
(aa) LIMITATION YEAR
The Plan Year (ending each December 31st) shall be the limitation year
for purposes of the limitations on contributions and benefits imposed
by Section 415 of the Code.
(bb) PARTICIPANT
An Eligible Employee who has elected to make Elective Contributions
to this Plan or has received an allocation of Employer Profit Sharing
Contributions or Forfeitures.
(cc) PLAN
The Treasure Chest Advertising Co., Inc. Savings Plus 401(k) Plan as
herein amended and restated.
(dd) PLAN YEAR
The twelve-month period ending on each Anniversary Date.
(ee) SERVICE
Employment with the Company or with an Affiliated Company.
(ff) TRUST
The Treasure Chest Advertising Co., Inc. Savings Plus 401(k) Trust as
amended and restated in the amended Trust Agreement entered into by
and between the Company and the Trustee.
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(gg) TRUST AGREEMENT
The Agreement between the Company and the Trustee (or any successor
Trustee) establishing the Trust and specifying the duties of the
Trustee.
(hh) TRUST ASSETS
The assets held in the Trust for the benefit of Participants.
(ii) TRUSTEE
The Trustee appointed by the Company's Board of Directors to hold and
invest the Trust Assets.
(jj) YEAR OF SERVICE
Year of Service refers to a twelve month period during which an
Employee is credited with 1000 or more Hours of Service. The
computation period during which a Year of Service is calculated for
different purposes will be as indicated in the appropriate sections
hereof.
SECTION 3. ELIGIBILITY AND PARTICIPATION.
(A) ELIGIBILITY AND ENTRY
(a)(1) Any Employee who is a Participant in the Plan on the Effective Date of
this Amendment (January 1, 1994) shall continue to be a Participant without
curtailment.
(a)(2) Thereafter, an Employee will first become eligible to participate in the
Plan on the Entry Date following his completion of a period of three (3) months
of service for eligibility provided he is at least 21 years of age and an
Eligible Employee on his Entry Date. For this purpose, a month of service shall
be considered completed on each monthly anniversary of an Employee's date of
hire if he is then an Employee and credited with an Hour of Service.
(a)(3) In no event may any Employee be required to complete a Service period
which would cause him to become a Participant later than the earlier of the
first day of the Plan Year following his completion of a Year of Service for
eligibility and attainment of age 21 or the six (6) month anniversary of such
completion or, if later, the day he becomes an Eligible Employee.
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(a)(4) For purposes of eligibility, a Year of Service will initially be computed
within the twelve (12) consecutive month period measured from the date an
Employee is first credited with an Hour of Service as an Employee. The
eligibility computation period will thereafter be computed based on the Plan
Year (or years if necessary) commencing coincident with or following the date
the Employee is first credited with an Hour of Service as an Employee (and
anniversaries thereof).
(a)(5) Any Employee whose terms of Service are covered by a collective
bargaining agreement in which retirement benefits were the subject of good faith
bargaining, whether or not such Employees are covered by a comparable plan, will
not participate in this Plan unless the collective bargaining agreement
specifically provides for his participation in the Plan.
(a)(6) A former Employee who has previously satisfied the eligibility
requirements of sub-section (a)(1) of this Section 3 and is reemployed by an
Employer will become an Eligible Employee as of the date of his reemployment
provided he is then in the class of Employees eligible to participate in the
Plan.
(a)(7) A former Employee who has not previously satisfied the eligibility
requirements of sub-section (a)(1) of this Section 3 and is reemployed by an
Employer will be treated as a new Employee for all purposes under the Plan.
(B) DURATION OF PARTICIPATION
(b)(1) An Eligible Employee will begin participation with respect to Employer
Profit Sharing Contributions for the Plan Year in which occurs his initial Entry
Date. Participation with respect to Elective and Employer Matching
Contributions will begin on the Entry Date coincident with or next following the
date he meets the eligibility criteria in Section 3(a) above.
(b)(2) Participation in the Plan will continue thereafter until the later of:
(i) the occurrence of a Break in Service, or
(ii) the distribution of a Participant's Capital Accumulation.
(b)(3) A Participant who transfers Service from an Employer to an Affiliated
Company which has adopted this Plan for its Employees will continue as a
Participant, based upon his Compensation received from each Employer. A
Participant who transfers from an Employer to an Affiliated Company which has
not adopted this Plan for its Employees will continue as a Participant based
solely upon his Compensation received from an Employer. In addition, an
Employee who transfers from eligible to ineligible status according to the
provisions of this Plan will have his participation for all purposes determined
with reference to his employment as an Eligible Employee only. In either
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case, the Participant's Accounts will be maintained without curtailment until
such time as participation ceases pursuant to Section 3(b)(2).
(b)(4) An Employee who is on Approved Absence will not become a Participant
until the end of his Approved Absence, but a Participant who is on Approved
Absence will continue as a Participant during the period of his Approved
Absence. Any Employee who fails to return to Service with the Company within 90
days of the last day of an Approved Absence will be deemed to have terminated
Service as of the date his Approved Absence should have ended, and his
participation in the Plan will cease according to the provisions of Section
3(b)(2).
SECTION 4. CONTRIBUTIONS.
This plan may receive any of several types of contributions on behalf of
Participants provided that all contributions of whatever type will be subject to
limitations as provided in the Code and described in Section 6 hereof.
(A) ELECTIVE CONTRIBUTIONS
(a)(1) Each eligible Employee may elect as of each Election Period to have a
portion of his regular salary or wages withheld by the Company and contributed
to the Trust on his behalf (as Elective Contributions) in lieu of his being paid
such amount currently by the Company.
(a)(2) Such elections shall be effective as of the next following Entry Date,
and may be made only in whole percentages ranging from one percent (1%) to
fifteen percent (15%) of gross compensation before salary reduction.
(a)(3) Such elections (and any changes thereof) will normally only be allowed
during an Election Period and will be made on the form provided by the Committee
for this purpose and in accordance with administrative rules and procedures
established by the Committee.
(a)(4) A Participant may terminate his salary deferral election at any time
during the Plan Year by filing a cease deferral form with the Committee.
Deferrals will then cease as of the next pay period for which cessation can be
implemented.
(a)(5) Elective Contributions under the provisions of this Section 4 will be
considered for purposes of the limitations of Section 6 for a Plan Year only if
they relate to Compensation that either would have been received by the Employee
in the Plan Year (but for the deferral election) or if they are attributable to
services performed by the Employee in the Plan Year and would have been received
by the Employee within 2 1/2 months after the close of the Plan Year (but for
the deferral election).
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(a)(6) Elective Contributions will be allocated to the respective Accounts of
Participants as of a date within the Plan Year during which the Compensation
would otherwise have been received.
(a)(7) For this purpose, an Elective Contribution is considered allocated as of
a date within a Plan Year if the allocation is not contingent on participation
or performance of services after such date and the Elective Contribution is
actually paid to the Trust no later than 12 months after the Plan Year to which
the contribution relates.
(a)(8) The provisions of this Section 4(a) with respect to salary deferral
elections and Election Periods may be adjusted by the Committee for each Plan
Year as and to the extent necessary to satisfy the nondiscrimination standards
of Section 401(a)(4) or Section 401(k)(3) of the Code and the allocation limits
of Section 415(c) of the Code.
(a)(9) The Board of Directors may determine in its sole discretion to make
special contributions on behalf of all or some non-Highly Compensated Employees
(provided such determination is made in a uniform and nondiscriminatory manner)
as necessary to satisfy the discrimination tests of actual deferral percentage
as provided by Section 401(k)(3) of the Code and do not violate the requirements
of Section 401(a)(4) of the Code and related regulations. Such special
contributions, if any, will be deemed to be Elective Contributions for all
purposes under this Plan.
(B) EMPLOYER MATCHING CONTRIBUTIONS
(b)(1) For each Plan Year, Participant Accounts will be credited with Employer
Matching Contributions equal to one-half (1/2) of their Elective Contributions
provided that Employer Matching Contributions on behalf of a Participant will in
no event exceed three percent (3%) of a Participant's Compensation except as may
be required in order to satisfy the tests of average contribution percentage
posed in Section 401 (m) of the Code.
(b)(2) The Board of Directors may determine, in its sole discretion, to make
additional Employer Matching Contributions only to non-Highly Compensated
Employees if necessary to assure compliance with tests of actual contribution
percentage as described in Section 6(f).
(b)(3) Employer Matching Contributions under the provisions of this Section 4(b)
will be considered for purposes of the limitations of Section 6 with regard to
the Plan Year of the Participants' Elective Contributions upon which the match
is based. In addition, such Matching Contributions will be allocated to the
respective Accounts of Participants for the same Plan Year and paid to the Trust
no later than the end of the twelfth month following the close of such Plan
Year.
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(C) EMPLOYER PROFIT SHARING CONTRIBUTIONS
(c)(1) For each Plan Year, the Board may determine to make Employer Profit
Sharing Contributions to the Trust in such amounts (or under such formula), as
may be determined by the Company's Board of Directors, provided that
contributions may not be made such that the limitations described in Section 6
will be violated.
(D) TIMING OF CONTRIBUTIONS
(d)(1) Elective Contributions will be paid to the Trustee by the Company in cash
within thirty (30) days after amounts are withheld under Section 4(a). In the
event that any Elective Contributions are paid to the Trust by reason of a
mistake of fact, such Elective Contributions may be returned to the Company by
the Trustee (upon direction of the Committee) within one year after the payment
to the Trust.
(d)(2) Employer Profit Sharing and Matching Contributions, if any, will be paid
to the Trust not later than the due date for filing the Company's Federal income
tax return for the applicable Plan Year, including any extensions of such due
date. Such contributions may be paid to the Trust in cash or such other
property as the Company's Board of Directors determines. In the event Employer
Profit Sharing or Matching Contributions are paid to the Trust by reason of a
mistake of fact, such contributions may be returned to the Employer by the
Trustee (upon direction of the Committee) within one year after the payment to
the Trust.
(E) CONDITIONS
(e)(1) Contributions to this Plan are conditioned upon the initial qualification
of this Plan under Section 401 of the Internal Revenue Code. If the Plan fails
to qualify, all contributions will be returned within one year of the date of
denial of qualification, as permitted by ERISA Section 403(c)(2)(B).
(e)(2) Company contributions are conditioned upon the deductibility of
contributions to all Company qualified plans under Section 404 of the Internal
Revenue Code. To the extent a deduction taken in good faith is disallowed, the
disallowed portion of the contribution will be returned to the Company within
one year of the date of the disallowance of the deduction, as permitted by ERISA
Section 403(c)(2)(C).
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TREASURE CHEST ADVERTISING CO., INC.
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SECTION 5. INVESTMENT OF TRUST ASSETS.
(A) PARTICIPANT DIRECTED INVESTMENTS
(a)(1) At the discretion of the Board of Directors, each Participant may be
given the right to elect to have any or all of his Elective Contributions,
Employer Matching Contributions and Employer Profit Sharing Contributions for
each Plan Year invested among such investment funds (and in such proportions) as
the Committee will from time to time make available.
(a)(2) Such investment elections by Participants, if permitted, will be made in
writing in accordance with administrative rules and procedures established by
the Committee, and each Participant may change his investment election only in
accordance with said rules and procedures.
(a)(3) Investment elections, if any, will be permitted only during an Election
Period.
(B) MANAGED FUND
(b)(1) In the event the Company determines not to provide investment discretion
to Participants with respect to all or any part of the Trust Assets, the Trustee
may then invest Trust Assets in savings accounts, certificates of deposit,
high-grade short-term securities, equity stocks, bonds, or other investments
which the Trustee deems to be desirable for the Trust. Trust Assets may also be
held temporarily in cash. In all matters, the Trustee will invest the Trust
Assets in a manner determined by the Committee and will at all times make
investment decisions in a prudent manner in the best interests of the Plan and
Participants. With the approval of the Company's Board of Directors, the
Trustee or the Committee may appoint an investment manager to manage investment
funds under the Plan.
SECTION 6. PARTICIPANTS' ACCOUNTS, ALLOCATIONS AND LIMITATIONS.
(A) PARTICIPANTS' ACCOUNTS
Separate Accounts will be maintained to reflect Participants' interests under
the Plan.
(a)(1) An Elective Contribution Account will be established for each
Participant. It will be credited with the amount of Elective Contributions made
on his behalf under Section 4 and with his share of the net income of the Trust
attributable to such Accounts.
(a)(2) Employer Matching and Profit Sharing Contributions Accounts will also be
established to reflect Participants' interests in contributions, Forfeitures and
earnings from those sources.
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(a)(3) All such Accounts will generally be vested according to the schedule in
Section 10 hereof.
(a)(4) The Committee will also cause to be established special roll-over
accounts to record the Participants' assets attributable to participation in a
previous qualified retirement plan or to receive other qualified roll-over
distribution provided only that such accounts may not be established to receive
assets which would cause this Plan to become subject to distribution or form of
benefit requirements not otherwise authorized by this Plan.
(B) ACCOUNTING FOR THE PLAN
(b)(1) The Committee will adopt accounting procedures for the purpose of making
the allocations to Participants' Accounts provided for in this Section. From
time to time, the Committee may modify the accounting procedures for the purpose
of achieving equitable and nondiscriminatory allocations among the Accounts of
Participants in accordance with the general concepts of the Plan, the provisions
of this Section and the requirements of the Code and ERISA.
(C) ALLOCATION OF CONTRIBUTIONS
(c)(1) Allocation of Elective Contributions will be made to the Participant's
Elective Contribution Account in the amounts withheld from their otherwise
payable Compensation pursuant to their salary deferral elections.
(c)(2) Allocation of Employer Matching Contributions will be made to
Participants' Employer Matching Contributions Accounts based on their Elective
Contributions and the matching formula, if any, as determined by the Board of
Directors pursuant to Section 4 of the Plan.
(c)(3) Allocation of Employer Profit Sharing Contributions, if any, will be made
to the Accounts of Eligible Employees who meet the requirement in Section
6(c)(4) in the ratio that each such Eligible Employee's individual Compensation
bears to the total of all Compensation for all such Eligible Employees.
(c)(4) In order to share in the allocation of Employer Matching Contributions
under Section 6(c)(2) or Employer Profit Sharing Contributions under Section
6(c)(3) above, a Participant must have credit for a Year of Service in the Plan
Year (or the pro rata equivalent in the case of more frequent than annual
Allocation Dates) and be an Eligible Employee on the Allocation Date. If a
Participant has retired, become disabled or died during the period prior to the
Allocation Date, he will share in allocations regardless of hours or employment
status.
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(D) ALLOCATION OF EARNINGS
(d)(1) The net income (or loss) of the Trust for each Plan Year will be
determined as of each Allocation Date. Each Participant's share of the net
income (or loss) will be allocated to his Accounts in the ratio which each of
his Account balances as of the Allocation Date bears to the sum of like Account
balances for all Participants as of that date.
(d)(2) To the extent that Participant directed investment options are made
available, income (or loss) will be allocated separately among the various
options with respect to Participants electing each option.
(d)(3) The net income (or loss) of the Trust includes the increase (or decrease)
in the fair market value of Trust Assets, interest income, dividends and other
income and gains (or losses) attributable to Trust Assets since the preceding
Allocation Date, reduced by any expenses charged to such Trust Assets since that
Allocation Date.
(E) 401(K) LIMITATIONS
(e)(1) The total of Elective Contributions from any Participant for a given
calendar year will in no event exceed $7,000.00 (or such other amount as the
Secretary of the Treasury may from time to time prescribe pursuant to section
402(g) of the Code).
(e)(2) For any Plan Year, the actual deferral percentage of the group of
Eligible Employees who are Highly Compensated Employees (within the meaning of
Section 414(q) of the Code) will not exceed the greater of:
(i) 125% of the percentage determined with respect to all other
Eligible Employees, or
(ii) 200% of the percentage determined with respect to all other
Eligible Employees provided that the result is no more than the
percentage for all other Eligible Employees plus two (2) percentage
points.
(e)(3) For purposes of the test in paragraph (e)(2) above, actual deferral
percentage means the percentage for a group of Employees which is the average of
the ratios (calculated separately for each Eligible Employee) of:
(i) the amount of Elective Contributions actually paid to the Trust
on behalf of an Employee pursuant to a deferral election (plus amounts
designated by the Board
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of Directors as fully vested and described under section
401(k)(3)(D)(ii) of the Code and authorized by Section 4(a)(9) of the
Plan; to
(ii) such Employee's Compensation for that period.
(e)(4) In satisfying the standards of paragraph (e)(3) above, the determination
of the actual deferral percentage for the group of Highly Compensated Employees
may be made without regard to amounts distributed pursuant to section 401(k)(8)
of the Code and Sections 6(g) and (h) of this Plan.
(e)(5) For any Plan Year, the contribution percentage for the group of Eligible
Employees who are Highly Compensated Employees will not exceed the greater of:
(i) 125% of such percentage determined with respect to all other
Eligible Employees, or
(ii) the lesser of 200% of such percentage determined with respect to
all other Eligible Employees and such percentage for all other
Eligible Employees plus two (2) percentage points.
(e)(6) For purposes of the test in paragraph (e)(5) above, "contribution
percentage" means such percentage for a group of Employees which is the average
of the ratios (calculated separately for each Eligible Employee) of:
(i) the amount of Employer Matching Contributions actually paid to
the Trust on behalf of an Employee, to
(ii) such Employee's Compensation for such period (within the meaning
of section 414(s) of the Code).
(e)(7) In satisfying the standard of paragraph (e)(6) above, the determination
of the contribution percentage for the group of Highly Compensated Employees may
be made without regard to amounts forfeited or distributed pursuant to Code
Section 401 (m)(6) and subsection (g) of this Section.
(e)(8) Furthermore, in determining the contribution percentage for all other
Eligible Employees, amounts paid to the Trust under Section 4(a)(9) of the Plan
(i.e. special, fully vested contributions on behalf of non-Highly Compensated
Employees) may be deemed Employer Matching Contributions to the extent that
their application was not required to satisfy the non-discrimination standards
applicable to Elective Contributions.
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(e)(9) In the case of a Highly Compensated Employee who is either a 5% owner or
one of the ten most Highly Compensated Employees and who is thereby subject to
the family aggregation rules of Code Section 414(q)(6), the actual deferral
percentage and contribution percentage for the family group (which is treated as
one Highly Compensated Employee) will be used for purposes of the tests in
paragraphs (e)(2) and (e)(5) above. Such percentage will be the greater of:
(i) the percentage determined by combining the contributions and
Compensation of all eligible family members who are highly compensated
without regard to family aggregation, and
(ii) the percentage determined by combining the contributions and
Compensation of all eligible family members.
(e)(10) Except to the extent taken into account in the preceding sentence, the
contributions and Compensation of all family members are disregarded in
determining the percentages for the groups of Highly Compensated Employees and
non-Highly Compensated Employees.
(e)(11) For purposes of calculating the actual deferral and contribution
percentages, the ratio for a Highly Compensated Employee will be determined by
treating all plans subject to Code Sections 401 (k)(3) and 401(m)(2) under which
such Highly Compensated Employee is eligible as a single plan.
(F) CORRECTION OF EXCESS CONTRIBUTIONS
(f)(1) If the limitations described in subsection (e) above would otherwise be
exceeded, the Committee may determine to correct (or avoid) the creation of an
excess in any or a combination of the following manners:
(i) The Committee may limit the participation of Highly Compensated
Employees such that the tests are met.
(ii) The Committee may make special qualifying non-elective Employee
contributions which shall be fully vested and otherwise treated as
Elective Contributions for this purpose in such manner as determined
by the Committee including making such contributions on behalf of all
or any non-highly compensated Employees until the test is met.
(iii) The Committee may direct the distribution of Excess
Contributions to Highly Compensated Employees and, in the case of
Excess Aggregate Contributions, the distribution or forfeiture (to the
extent non-vested) of such excess.
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(f)(2) In the event a distribution or Forfeiture is elected as the correction
method, any income attributable to such Excess Contributions and Excess
Aggregate Contributions will be included in the distribution (or forfeiture, if
applicable) thereof.
(f)(3) The income includes both income for the Plan Year for which the Excess
and Excess Aggregate Contributions were made and income for the period between
the end of the Plan Year and the date of distribution (or forfeiture) which will
be calculated in accordance with the applicable provisions of the I. T.
Regulations.
(f)(4) Any distributions or forfeitures of Excess or Excess Aggregate
Contributions which are required pursuant to this Section will be applied with
respect to a Highly Compensated Employee in the same proportion as the overall
excess may be attributed to his participation. Accordingly, adjustment will be
made by leveling the highest actual deferral or contribution percentages of
Highly Compensated Employees until the tests in Section 6(e) of this Plan are
satisfied.
(f)(5) For the purpose of the adjustment described above, first, the percentage
of the Highly Compensated Employee with the highest percentage is reduced to the
extent necessary to satisfy the tests or cause his percentage to equal the
percentage of the Highly Compensated Employee with the next highest percentage.
This process is repeated until the tests are satisfied.
(f)(6) In the case of a Highly Compensated Employee whose ratio is determined
under the family aggregation rules, the correction of any Excess or Excess
Aggregate Contributions will be made as follows:
(i) If the Highly Compensated Employee's percentage is determined by
combining the contributions and Compensation of all family members,
then the percentage is reduced in accordance with the "leveling"
method above (in accordance with the applicable provisions of the I.
T. Regulations) and the excess amounts for the family unit are
allocated among the family members in proportion to the contributions
of each of the family members that have been combined to determine the
ratio.
(ii) If the Highly Compensated Employee's ratio is determined by
combining the contributions and Compensation of only those family
members who are Highly Compensated Employees without regard to family
aggregation, then the ratio is reduced in accordance with the leveling
method but not below the highest percentage of eligible non-highly
compensated family members.
(iii) Excess amounts are determined by taking into account the
contributions of the eligible family members who are highly
compensated without regard to family
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aggregation and are allocated among such family members in proportion
to each such family member's contributions.
(iv) If further reduction of the percentage is required, excess
amounts resulting from this reduction are determined by taking into
account the contributions of all eligible family members and are
allocated among such family members in proportion to the contributions
of each such family member.
(f)(7) The distribution (or forfeiture, if applicable) of excess amounts will be
made on the basis of the respective portions of such amounts attributable to
each Highly Compensated Employee.
(f)(8) In no event will Excess Contributions be corrected by forfeiture if such
Contributions are not otherwise forfeitable under the terms of the Plan.
(f)(9) Any amount which cannot be allocated as Employer Matching Contributions
by virtue of this Section 6(g) may be deemed to be Employer Profit Sharing
Contributions for the Plan Year and allocated accordingly.
(G) OVERALL LIMITATIONS
(g)(1) In no event may a Participant's annual additions (i.e. the sum of
contributions from all sources and Forfeitures) to all defined contribution
plans maintained by the Employer and allocated to a Participant's Accounts in a
given Plan Year exceed the lesser of:
(i) Twenty-five percent (25%) of his Compensation; or
(ii) $30,000, (or, if larger, an amount equal to one-fourth of the
defined benefit dollar limitation as adjusted for cost of living
increases pursuant to Sections 415(b)(1)(A), 415(d)(1) and 415(d)(3)
of the Code).
(g)(2) For purposes of those limits, Compensation will mean a Participant's
earned income, wages, salaries, and fees for professional services, and other
amounts received for personal services actually rendered in the course of
employment with the employer maintaining the Plan (including, but not limited
to, commissions paid salesmen, compensation for services on a basis of a
percentage of profits, commissions on insurance premiums, tips and bonuses) paid
to or includable in the income of a Participant for a Limitation Year.
Compensation for this purpose will exclude:
(i) Employer contributions to a plan of deferred compensation which
are not included in the employee's gross income for the taxable year
in which contributed or any distributions from a plan of deferred
compensation;
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(ii) Amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by the employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(iii) Amounts realized from the sale, exchange or other disposition of
stock acquired under a qualified stock option; and
(iv) Other amounts which received special tax benefits, or
contributions made by the employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
Section 403(b) of the Code (whether or not the amounts are actually
excludible from the gross income of the employee).
(g)(3) If the limitation would be exceeded as to any Participant for any Plan
Year, the allocation to his Accounts for the Limitation Year will be reduced to
an amount which would limit the total "annual additions" to the maximum
permitted. Such reduction, if necessary, will be applied in the following
order:
(i) Employer Profit Sharing Contributions and Forfeitures will be
reduced first until the limit is met.
(ii) If Employer Profit Sharing Contributions and Forfeitures are
reduced to zero and the limit would still be exceeded, then Employer
Matching Contributions and Forfeitures will be reduced second until
the limit is met.
(iii) If the limit would still be exceeded, then Elective
Contributions will be refunded to the Participant no later than March
15th of the year following to the extent necessary for the limit to be
met.
(g)(4) Any amount by which Employer contributions for a Participant must be
reduced under Section (h)(3)(i) or (ii) above will be reallocated to the
Accounts of the remaining Participants (under sub-sections (c) and (d) of this
Section 6) to the extent possible without exceeding the limitation with respect
to any other Participant.
(g)(5) In no event may Employer contributions (of whatever nature) be made such
that they cannot be allocated to any Participant pursuant to these limitations.
(g)(6) Any Forfeitures which cannot be allocated to any Participant's Accounts
by reason of this limitation will be treated (for allocation purposes) as
Forfeitures and allocated first for the next succeeding Plan Year (or Years, if
necessary,) until exhausted provided that any such amounts will be held in a
suspense account which does not share in gains and losses of the Trust.
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SECTION 7. EXPENSES OF THE PLAN AND TRUST.
(A) ADMINISTRATIVE EXPENSES
(a)(1) All expenses of administering the Plan and Trust will be charged to and
paid out of the general Trust Assets. The Company may, however, elect to pay
such expenses, and payment of expenses by the Company (or other Employers) will
not be deemed to be Employer contributions.
(a)(2) In the event the Board of Directors determines to provide Participants
the right to direct the investment of all or part of their Accounts, any
expenses related to a particular investment choice may be charged only to the
Accounts of Participants choosing that investment.
SECTION 8. DISCLOSURE TO PARTICIPANTS.
(A) SUMMARY PLAN DESCRIPTION
(a)(1) The Committee will furnish each Participant with a summary plan
description of the Plan, as required by Sections 102(a)(1) and 104(b)(1) of
ERISA. The summary plan description will be updated from time to time as
required under ERISA and Department of Labor regulations thereunder.
(B) SUMMARY ANNUAL REPORT
(b)(1) Within a reasonable time after each Anniversary Date, the Committee will
furnish each Participant with the summary annual report of the Plan required by
Section 104(b)(3) of ERISA, in the form required by Department of Labor
regulations.
(C) PARTICIPANT STATEMENTS
(c)(1) No less frequently than following each Anniversary Date, the Committee
will furnish to each Participant a summary Account statement including but not
limited to the following information:
(i) His Account balance (if any) as of the preceding report date.
(ii) The amount of Elective, Employer Matching and/or Profit Sharing
Contributions (and Forfeitures) allocated to his Accounts for that
Plan Year.
(iii) The adjustments to his Accounts to reflect his share of the net
income (or loss) of the Trust for that Plan Year.
(iv) The new balance in his Account as of the applicable report date.
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(v) His number of years of Credited Service and his vested
percentage in his Account balances as of the report date.
(c)(2) The Committee may furnish such intervening statements of Account as it
deems appropriate considering the types of investments offered and the schedule
of elections
(D) TAX NOTICE
(d)(1) Within two (2) weeks of the date a distribution occurs, the Committee
will furnish each Participant receiving a distribution from the Plan with a
notice of the tax consequences of his distribution. The notice will be in
accordance with language provided by the Internal Revenue Service and Code
Section 402(f).
(E) ADDITIONAL DISCLOSURE
(e)(1) The Committee will make available for examination by any Participant
copies of the Plan, the Trust Agreement and the latest annual report of the Plan
filed (on Form 5500) with the Internal Revenue Service. Upon written request of
any Participant, the Committee will furnish copies of such documents, and may
make a reasonable charge to cover the cost of furnishing such copies, as
provided in Department of Labor regulations.
SECTION 9. RETIREMENT.
A Participant will be treated as having retired under the Plan if his Service
terminates by reason of any of the following:
(A) NORMAL RETIREMENT
(a)(1) A Participant's normal retirement date is the first day of the month
during which his sixty- fifth (65th) birthday occurs. Termination of Service on
or after a Participant's normal retirement date constitutes retirement under the
terms of this Plan.
(B) DISABILITY RETIREMENT
(b)(1) If the Committee determines (on the basis of a physician's certificate
satisfactory to the Committee) that a Participant has become totally and
permanently disabled (while an Employee), he will be granted disability
retirement under the Plan without regard to his age or Credited Service.
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SECTION 10. VESTING AND FORFEITURE.
(A) VESTING UPON RETIREMENT, DISABILITY OR DEATH
(a)(1) When a Participant reaches his normal retirement date while an Employee
or terminates Service due to retirement, disability or death, his Capital
Accumulation will be the total of his Account balances (100% vested).
(B) VESTING UPON OTHER TERMINATION OF SERVICE
(b)(1) All amounts in this Plan attributable to Elective Contributions shall at
all times be fully 100% vested and non-forfeitable.
(b)(2) Employer Profit Sharing and Matching Contributions shall be vested upon a
Participant's termination of Service according to the following Schedule:
Years of Credited Service Vested Percent
less than 5 0%
5 or more 100%
(C) FORFEITURE
(c)(1) Any amount which is not vested at the time of a Participant's termination
of Service will become a Forfeiture and be reallocated to the Accounts of other
Participants as of the Allocation Date coinciding with or next following the
earlier of:
(i) the complete distribution of the Participant's Capital
Accumulation, or
(ii) the Participant's fifth consecutive Break in Service.
(c)(2) Any amount which becomes a Forfeiture under this provision shall be
treated in the same manner as the Contribution type to which they are
attributable and reallocated to the Accounts of Participants otherwise entitled
to an allocation of that Contribution type in the same manner as that
Contribution type.
(c)(3) Unless the Committee specifically resolves otherwise, Forfeitures of
Company Matching Contributions will be used to offset the Company's Matching
Contribution obligation.
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SECTION 11. CREDITED SERVICE AND HOURS OF SERVICE.
(A) CREDITED SERVICE
(a)(1) For purposes of vesting in Accounts, a Participant's Credited Service
will include the number of Plan Years during which he has credit for 1000 or
more Hours of Service (or, in the case of a Plan Year of less than 12 months,
the pro rata equivalent.)
(a)(2) Credited Service will include all Service with the Company and any
Affiliated Company, and Plan Years will include, for this purpose, all such
twelve (12) month periods measured from the Employee's date of hire even prior
to the effective date of this Plan.
(B) REEMPLOYMENT AFTER BREAK(S) IN SERVICE
(b)(1) If reemployed after the occurrence of a Break(s) in Service, a former
Participant will again become an Eligible Employee in the Plan as of the date of
his reemployment, and the following rules will apply in determining his Credited
Service:
(i) New Accounts will be established to reflect his interest in the
Plan attributable to his Service after the Break(s) in Service.
(ii) Credited Service after the Break(s) in Service will not increase
his vested interest in his Accounts attributable to Service prior to
the Break(s) in Service, except as provided in Section 10 for a
Participant who is reemployed prior to the occurrence of five (5)
consecutive Breaks in Service and who has a non-vested Account balance
that is reinstated.
(iii) After he completes one Plan Year of Credited Service following
his reemployment, his Credited Service with respect to his new
Accounts will include his Credited Service, if any, prior to the
Break(s) in Service with the following exception:
(A) In the case of a Participant who incurs five or more
consecutive Break(s) in Service prior to attaining a vested
interest under Section 10, his Service prior to the Breaks in
Service will not be included in determining his Credited Service
with respect to his new Accounts if the consecutive number of
Break in Service years equals or exceeds his Credited Service
accumulated prior to the Break(s) in Service.
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(C) HOURS OF SERVICE CREDITED
(c)(1) For purposes of determining Hours of Service to be credited to an
Employee under the Plan, the following rules will be applied:
(i) Hours of Service will generally include:
(A) each Hour of Service for which an Employee is paid (or
entitled to payment) for the performances of duties;
(B) each Hour of Service for which an Employee is paid (or
entitled to payment) for a period during which no duties are
performed due to vacation, holiday, illness, incapacity
(including disability), lay-off, jury duty, military duty, or
paid leave of absence; and
(C) each additional Hour of Service for which back pay is
either awarded or agreed to, irrespective of mitigation of
damages, provided such Hours have not already been credited
under (A) or (B) above.
(c)(2) The crediting of Hours of Service will comply with DOL Reg. Section
2530.200b-2, and no more than 501 Hours of Service are to be credited for one
continuous period during which an Employee does not perform duties.
(c)(3) An Employee compensated on an hourly basis will be credited for each Hour
of Service, as described above.
(c)(4) Unless the Committee maintains records of actual Hours of Service, or if
such records are unavailable, a salaried Employee who completes at least one
Hour of Service during his applicable payroll period will be credited for each
such period with:
(i) 10 Hours of Service per day, if paid on a daily basis;
(ii) 45 Hours of Service per week, if paid on a weekly basis;
(iii) 95 Hours of Service per semimonthly period, if paid on a
semimonthly basis; or
(iv) 190 Hours of Service per month, if paid on a monthly basis.
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(c)(5) In the case of a leave of absence or termination of Service due to
maternity, paternity or adoption (including: (i) pregnancy of the individual,
(ii) birth of a child of the individual, (iii) placement of a child with the
individual in connection with an adoption, or (iv) caring for a child described
in (ii) or (iii) immediately following such birth or placement), solely for the
purposes of determining if a Break in Service has occurred, 501 Hours of Service
will automatically be granted to the Participant in the first Plan Year in which
a Break in Service would otherwise occur.
SECTION 12. INCIDENTS OF DISTRIBUTION, HARDSHIP WITHDRAWALS, AND PARTICIPANT
LOANS.
(A) NORMAL DISTRIBUTIONS
(a)(1) Distribution of a terminated Participant's Capital Accumulation will
normally be made in a lump sum of cash as soon as may be administratively
feasible in accordance with Section 13 of the Plan.
(B) AGE 59-1/2 DISTRIBUTIONS
(b)(1) A Participant who has not yet terminated Service will be entitled to
request a distribution of the entire vested balance of his Accounts under the
Plan after he has attained age 59-1/2.
(b)(2) Such a distribution will be permitted only once (while a Participant
remains an Employee).
(b)(3) A Participant receiving such a distribution may continue to participate
under the Plan subject to rules established by the Committee.
(C) HARDSHIP WITHDRAWALS
(c)(1) Upon specific resolution of the Committee, Participants may be entitled
to request a hardship withdrawal of a portion of their Elective Contribution
Accounts. Such withdrawal will be available only if necessary in light of
immediate and heavy financial needs of the Participant, as determined by the
Committee in accordance with I. T. Reg. Section 1.401(k)-l which provides that a
distribution will be deemed to be made on account of an immediate and heavy
financial need of the Employee if the distribution is on account of:
(i) Medical expenses described in Code Section 213(d) incurred by
the Employee, the Employee's spouse, or any dependents of the Employee
(as defined in Code Section 152);
(ii) Purchase (excluding mortgage payments) of a principal residence
for the Employee;
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(iii) Payment of tuition for the next semester or quarter of
post-secondary education for the Employee, his or her spouse,
children, or dependents;
(iv) Need to prevent the eviction of the Employee from his principal
residence or foreclosure on the mortgage of the Employee's principal
residence.
(v) Any additional circumstances announced by the Commissioner of
the Internal Revenue Service through the publication of revenue
rulings, notices, and other documents of general applicability, rather
than on an individual basis.
(c)(2) The determination of whether an Employee has an immediate and heavy
financial need is to be made on the basis of all relevant facts and
circumstances. A financial need will not fail to qualify as immediate and heavy
merely because such need was reasonably foreseeable or voluntarily incurred by
the Employee.
(c)(3) A hardship distribution is not permitted to the extent it exceeds the
amount necessary to relieve the need or to the extent the need may be satisfied
from other resources reasonably available to the Employee.
(c)(4) The determination of financial hardship and the amount to be withdrawn
will be made by the Committee in accordance with the foregoing policy in a
uniform and nondiscriminatory manner.
(D) LOANS TO PARTICIPANTS
(d)(1) In its sole discretion, the Committee may grant loans to Participants
from all Accounts which are maintained under this Plan, provided that all such
loans for a given Participant will not in aggregate exceed the lesser of fifty
percent (50%) of the aggregate vested balance of the Participant's Accounts or
$50,000.
(d)(2) The limitation of $50,000 will be reduced by the excess (if any) of the
highest outstanding loan balance during the prior twelve month period ending on
the day before the loan is made, over the outstanding loan balance on the date
the new loan is made.
(d)(3) Loans of up to $10,000 in aggregate may be granted regardless of these
limitations.
(d)(4) All Participant loans will be granted in a uniform and nondiscriminatory
manner, evidenced by a promissory note with level amortization and repayable on
a regular schedule with at least quarterly payments at reasonable interest.
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(d)(5) All loans, except those for which the purpose is the purchase of a
primary residence of the Participant, will be repayable within five (5) years
including any refinancing or renegotiation thereof.
(d)(6) To the extent that a Participant's loan is secured by all or part of his
Accounts, no loan under this subsection may be granted to a married Participant
unless the Participant's spouse consents in writing to such use (such consent
properly witnessed before a Plan representative or Notary Public) within the
ninety (90) day period ending upon the date of the loan's collateralization.
(d)(7) In the event of the death of a Participant, such Participant's Accounts
will be reduced by any security interest held by the Plan by reason of any loan
outstanding on the date of death.
SECTION 13. NORMAL DISTRIBUTION TIMING AND MANNER.
(A) TIMING OF DISTRIBUTIONS
(a)(1) The Trustee will make distributions from the Trust only upon the
direction of the Committee.
(a)(2) In the event a Participant terminates service as a result of Normal
Retirement, Disability (as defined herein) or death, distribution of his Capital
Accumulation will be made as soon as practicable following the event.
(a)(3) n the event of a Participant's termination of Service for other reasons,
his Capital Accumulation will normally be distributed within 60 days following
the next succeeding Allocation Date.
(a)(4) At the request of the Participant, the distribution of his Capital
Accumulation may be deferred until after the occurrence of one or more Breaks in
Service but in no event greater than five.
(a)(5) Notwithstanding the foregoing, where a Participant's Capital Accumulation
exceeds $3,500.00, a distribution will be made only if the Participant (and, if
applicable, the Participant's spouse) consents to such distribution.
(a)(6) In no event will distribution of the account balance of an employee
commence later than the April 1st following the end of the calendar year in
which the Employee attains age 70 1/2.
(a)(7) In the event a Participant dies before benefits commence, the
Participant's benefit may be paid in the form of a single distribution to the
Participant's surviving spouse or in immediate installments payable for the
spouse's life or over a period not exceeding the spouse's life expectancy. If a
Participant dies before benefits commence and the surviving spouse is not the
Beneficiary, the entire remaining interest must be distributed to the
Participant's Beneficiary or Beneficiaries within five
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years. However, if distributions have commenced to the Participant before the
Participant's death, distributions to the Participant's surviving spouse,
Beneficiaries or estate will continue to be distributed at least as rapidly as
the period selected by the Participant. Such distribution will be made in
cash or in kind on a nondiscriminatory basis, provided that said distribution
was for term certain. In the event of distribution due to the death of a
Participant, the amount to which a Beneficiary is entitled will be 100% of the
Participant's Capital Accumulation.
(a)(8) A Participant whose Service terminates at a time when his vested interest
in the Plan equals $0 will be deemed to have had a distribution of his vested
benefits as of the Anniversary Date upon which he first incurs a Break in
Service.
(a)(9) If the amount of a Participant's Capital Accumulation cannot be
ascertained by the Committee by the date on which such distribution is to
commence, distribution of his Capital Accumulation will commence within sixty
(60) days after the date on which his Capital Accumulation is able to be
ascertained.
(B) MANNER OF DISTRIBUTIONS
(b)(1) Distribution of Participants' Capital Accumulations will normally be made
in a single payment of cash for the full amount.
(b)(2) The following alternative modes of distribution may be requested by the
Participant subject to approval of the Committee:
(i) Distribution of his Capital Accumulation in a single
distribution;
(ii) Distribution of his Capital Accumulation in substantially equal
annual, semiannual or quarterly installments, over a period not
exceeding ten (1 0) years; or
(iii) Any combination of the foregoing.
(b)(3) Notwithstanding any other provision of the Plan, a Participant will not
be permitted to elect to defer receipt of his Capital Accumulation to the extent
that he is creating death benefits in favor of his Beneficiary which may be more
than incidental. Accordingly, a Participant's distribution will be made in a
mode which provides for the payment of more than fifty percent (50%) of the
Participant's Capital Accumulation during his life expectancy.
(b)(4) In regard to all distributions from the Trust, the Trustee will comply
with the withholding requirements of Code Sections 3405 and 402(f).
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(C) SPECIAL TRANSFER ELECTIONS RELATED TO DISTRIBUTIONS MADE ON OR AFTER
JANUARY 1, 1993.
(c)(1) Notwithstanding any provision of the plan to the contrary that would
otherwise limit a distributee's election under this Section, a distributee may
elect, at the time and in the manner prescribed by the plan administrator, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributes in a direct rollover.
(c)(2) For purposes of this Subsection, the following special definitions shall
apply:
(i) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover
distribution does not include any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy of the distributee or
the joint lives (or joint life expectancies) of the distributee and
the distributee's designated beneficiary, or for a specified period of
ten years or more; any distribution to the extent such distribution is
required under section 401(a)(9) of the Code; and the portion of any
distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with
respect to employer securities).
(ii) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of the Code,
an individual retirement annuity described in section 408(b) of the
Code, an annuity plan described in section 403(a) of the Code, or a
qualified trust described in section 401(a) of the Code, that accepts
the distributee's eligible rollover distribution. However, in the
case of an eligible rollover distribution to the surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
(iii) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in section 414(p) of the Code, are distributees with regard
to the interest of the spouse or former spouse.
(iv) Direct rollover: A direct rollover is a payment by the plan to
the eligible retirement plan specified by the distributee.
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SECTION 14. BENEFICIARIES AND UNLOCATABLE PARTICIPANTS.
(A) BENEFICIARIES
(a)(1) A Participant may designate and/or change a Beneficiary (and contingent
Beneficiaries) to receive his benefits under the Plan in the event of his death
by filing a written designation with the Committee.
(a)(2) A married Participant must have the written consent of his spouse to
designate a Beneficiary other than his spouse, and any subsequent changes in the
named Beneficiary or form of benefit payable to such Beneficiary which are made
by a married Participant will be deemed void absent the written consent of the
Participant's spouse. Such spousal consent will:
(i) be executed in the presence of a representative of the Plan or
a duly-authorized Notary Public, and
(ii) acknowledge the effect of such designation.
(a)(3) Upon the death of a Participant, if there is no designated Beneficiary
then living, the Participant's Beneficiary will be his surviving spouse, or if
none, his surviving issue per stirpes, or if none, his estate.
(B) FAILURE TO LOCATE
(b)(1) In the event a Participant eligible for a distribution of benefits from
the Plan is not locatable after a reasonable effort to locate (including mailing
to the last known address, questioning of fellow workers, notification of Social
Security Administration, and such other measures, if any, as the Committee may
formally adopt as included in the procedure), then the amount otherwise due will
be reallocated to other participants in the same manner as Employer Matching
Contributions for that period.
(b)(2) In the event a Participant whose balance has been so reallocated returns
and claims his distribution, the amount so due (without regard to intervening
interest) shall be reinstated from similar amounts to be reallocated for the
Plan Year in which he returns.
(b)(3) In the event such amounts are insufficient to reinstate the Accounts,
then the Employer shall make such additional special contributions as are
necessary, and amounts so contributed shall not be considered annual additions
for the year in which the reinstatement occurs.
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SECTION 15. NO ASSIGNMENT OF BENEFITS.
(A) BENEFITS INALIENABLE
(a)(1) Except as provided in Sections 12 and 13(a)(6) hereof and Section
15(a)(2) below, a Participant is not entitled to any payment, withdrawal or
distribution under the Plan during his Service; nor may his interest in the Plan
as a Participant, or after his participation has ended, or that of his
Beneficiary, be assigned or alienated by voluntary or involuntary assignment.
Any attempt by a Participant to assign or alienate his interest in the Plan, or
any attempt to make his interest in the Plan subject to attachment, execution,
garnishment or other legal or equitable process will be void.
(a)(2) The Trustee, when directed by the Committee, may, however, make such
assignments or distributions of benefits as may be required by a Qualified
Domestic Relations Order as defined in Section 414(p) of the Code.
SECTION 16. ADMINISTRATION.
(A) PLAN ADMINISTRATOR
(a)(1) The Company is the Plan Administrator under Section 414(g) of the Code
and under Section 3(16)(A) of ERISA.
(a)(2) The Board of Directors may appoint a Committee composed of individuals to
serve at its pleasure and without compensation. The Committee members will be
named fiduciaries with authority to control and manage all aspects of the
operation and administration of the Plan and to direct the Trustee as to all
matters. Any Committee member may also serve as a Trustee of the Plan, if so
designated by the Company's Board of Directors.
(a)(3) All acts and decisions of the Committee will be by vote of a majority of
the members at a meeting or in writing without a meeting. Minutes of each
meeting of the Committee will be kept.
(a)(4) The Committee will make such rules, regulations, computations,
interpretations, and decisions, and will maintain such records and accounts as
may be necessary to administer the Plan in a nondiscriminatory manner for the
exclusive benefit of the Participants and their Beneficiaries.
(a)(5) The decision of the Committee on all individual matters will be final.
(a)(6) The Committee will give instructions to the Trustee with respect to
matters which require instructions, as provided in the Plan and the Trust
Agreement. The Committee members may allocate
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their fiduciary responsibilities among themselves and may designate other
persons (including the Trustee) to carry out fiduciary responsibilities under
the Plan.
(a)(7) In the event that the Committee specifically designates the Trustee to
perform any of the Committee's fiduciary responsibilities, then any specific
instructions otherwise required by the Plan or Trust Agreement from the
Committee to the Trustee with respect to such designated fiduciary
responsibilities will not be required.
(B) TRUSTEE
(b)(1) Subject only to acceptance, the Board of Directors will appoint a Trustee
to serve at its pleasure. Such Trustee may be an institutional Trustee, or an
individual or group of individuals including if the Board so determines,
individuals who are Employees of the Company and/or Participants in the Plan.
(b)(2) The specific duties of the Trustee will be as described in the Plan and
the Trust Agreement including but not limited to the following:
(i) The Trustee will be responsible for holding and investing all
Trust Assets under the Plan.
(ii) If so directed by the Committee (or if no direction is received
from the Committee), the Trustee will establish a funding policy and
method for acquiring assets for the Trust in a manner that is
consistent with the provisions of the Plan and Trust Agreement and the
requirements of ERISA.
(b)(3) In any case, the Trustee will be a named fiduciary with responsibility
for the management and investment of Trust Assets at the direction of the
Committee or the Participants pursuant to Section 5 above.
(C) EMPLOYMENT OF ADVISERS
(c)(1) The Trustee and Committee are specifically empowered, on behalf of the
Plan, to employ investment advisers, accountants, legal counsel and other agents
to assist them in the performance of their duties under the Plan.
(D) FIDELITY BONDING
(d)(1) The Committee will secure fidelity bonding for fiduciaries of the Plan,
as required by Section 412 of ERISA.
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(E) INDEMNIFICATION
(e)(1) The Company will indemnify the Trustee and each member of the Committee
against any personal liability or expense arising out of or in connection with
their performance of duties under the Plan except such liability as may result
from his own negligence or willful misconduct.
SECTION 17. CLAIMS PROCEDURE.
(A) NO CLAIM REQUIRED
(a)(1) Distributions of Capital Accumulations under the Plan will normally be
made without a Participant (or Beneficiary) having to file a claim for benefits.
(a)(2) A Participant (or Beneficiary) who does not receive a distribution to
which he believes he is entitled may present a claim to the Committee for any
unpaid benefits. All questions and claims regarding benefits under the Plan
will be acted upon by the Committee.
(B) CLAIMS PROCEDURES
(b)(1) Each Participant (or Beneficiary) who wishes to file a claim for benefits
with the Committee will do so in writing, addressed to the Committee or the
Company.
(b)(2) If the claim for benefits is wholly or partially denied, the Committee
will notify the Participant (or Beneficiary) in writing of such denial of
benefits within ninety (90) days after the Committee initially received the
benefit claim.
(b)(3) Any notice of a denial of benefits will advise the Participant (or
Beneficiary) of:
(i) the specific reason or reasons for the denial;
(ii) the specific provisions of the Plan on which the denial is
based;
(iii) any additional material information necessary for the
Participant (or Beneficiary) to perfect his claim and an explanation
of why such material or information is necessary; and
(iv) the steps which the Participant (or Beneficiary) must take to
have his claim for benefits reviewed.
Page 34 of 43
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(b)(4) Each Participant (or Beneficiary) whose claim for benefits has been
denied will have the opportunity to file a written request for a full and fair
review of his claim by the Committee, to review all documents pertinent to his
claim and to submit a written statement regarding issues relative to his claim.
(b)(5) Such written request for review of his claim must be filed by the
Participant (or Beneficiary) within sixty (60) days after receipt of written
notification of the denial of his claim.
(b)(6) The Committee will schedule an opportunity for a full and fair hearing of
the issue within the next thirty (30) days.
(b)(7) The decision of the Committee will be made within thirty (30) days
thereafter and will be communicated in writing to the claimant. Such written
notice will set forth the specific reasons and specific Plan provisions on which
the Committee based its decision.
(b)(8) All notices by the Committee denying a claim for benefits, and all
decisions on requests for a review of the denial of a claim for benefits, will
be written in a manner calculated to be understood by the Participant (or
Beneficiary) filing the claim or requesting the review.
SECTION 18. TOP HEAVY PROVISIONS.
(A) SPECIAL DEFINITIONS
For purposes of this Section 18, the following definitions will apply, to be
interpreted in accordance with the provisions of section 416 of the Code and the
regulations thereunder:
(a)(1) AGGREGATION GROUP means a plan or group of plans which includes all plans
maintained by the Employers in which a Key Employee is a participant or which
enables any plan in which a Key Employee is a participant to meet the
requirements of Code section 401(a)(4) or Code section 410, as well as all other
plans selected by the Company for permissive aggregation inclusion of which
would not prevent the group of plans from continuing to meet the requirements of
such Code sections.
(a)(2) COMPENSATION will have the meaning set forth in Section 6(h), and as
defined in Section 415 of the Code.
(a)(3) CUMULATIVE ACCOUNT means the sum of the amount of an Employee's accounts
under a defined contribution plan (for an unaggregated plan) or under all
defined contribution plans included in an Aggregation Group (for aggregated
plans) determined as of the most recent plan valuation date within a 12-month
period ending on the Determination Date, and for plans subject to Section 412 of
Page 35 of 43
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
the Code, increased by any contributions due after such valuation date and
before the Determination Date.
(a)(4) CUMULATIVE ACCRUED BENEFIT means the sum of the present value of an
Employee's accrued benefits under a defined benefit plan (for an unaggregated
plan) or under all defined benefit plans included in an Aggregation Group (for
aggregated plans), determined under the actuarial assumptions set forth in such
plan or plans, as of the most recent plan valuation date within a 12-month
period ending on the Determination Date as if the Employee voluntarily
terminated service as of such valuation date.
(a)(5) DETERMINATION DATE means, with respect to any plan year:
(i) the last day of the preceding plan year, or
(ii) in the case of the first plan year of any plan, the last day of
such plan year.
(a)(6) EMPLOYEE means, for purposes of this Section, any person employed by an
Employer and will also include any beneficiary of such person.
(a)(7) EMPLOYER means any corporation which is a member of a controlled group of
corporations (as defined in Code section 414(b) which includes the Company or
any trades or businesses (whether or not incorporated) which are under common
control (as defined in Code section 414(c)) with the Company or a member of an
affiliated service group (as defined in Code section 414(m)) which includes the
Company.
(a)(8) KEY EMPLOYEE means any Employee, former Employee, or Beneficiary of an
Employee who is, at any time during the plan year, or was, during any one of the
four preceding plan years any one or more of the following:
(i) An officer of an Employer with annual Compensation greater than
50% of the dollar amount in Code Section 415(b)(1)(A). (For this
purpose no more than 50 Employees (or, if less, the greater of three
(3) or 10% of all Employees) will be treated as officers.)
(ii) One of the ten (10) persons employed by an Employer having
annual Compensation greater than the limitation in effect under code
section 415(c)(1)(A), and owning (or considered as owning within the
meaning of Code section 318) the largest interests in the Employers.
For this purpose, if two Employees have the same
Page 36 of 43
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
interest, the one with the greater Compensation will be treated as
owning the larger interest.)
(iii) Any person owning (or considered as owning within the meaning of
Code section 318) more than five percent (5%) of the outstanding stock
of an Employer or stock possessing more than five percent (5%) of the
total combined voting power of such stock.
(iv) A person who would be described in paragraph (iii) above if "one
percent" were substituted for "five percent" each place it appears in
paragraph (iii) above, and who has annual Compensation of more than
$150,000. (For purposes of determining ownership under this subsection
(iv), Code section 318(a)(2)(C) will be applied by substituting five
percent (5%) for 50 percent.)
(v) For purposes of the foregoing definition of Key Employee,
Compensation will include all Elective Contributions which are made by
the Company on behalf of Employees to a cafeteria plan, cash or
deferred arrangement or tax-sheltered annuity and which amounts are
not includible in the gross income of such Employees as reportable on
Form W-2.
(vi) The rules of subsections (b), (c) and (m) of section 414 of the
Code will not apply for purposes of determining ownership under this
subsection (a)(8).
(a)(9) MEMBER refers to all Participants who have not separated from service at
the end of the Plan Year including, without limitation, individuals who declined
to elect to make contributions to the Plan. For purposes of the Code Section
416(c) minimum benefits and the minimum contributions described in subsection
(e)(3) of this Section, Member also includes any Employee who is not a
Participant solely because he has:
(i) failed to complete 1,000 Hours of Service (or the equivalent),
(ii) declined to make mandatory contributions to the plan, or
(iii) been excluded from the plan because his Compensation is less
than a stated amount.
(a)(10) NON-KEY EMPLOYEE will mean any Employee not described in subparagraph
(8) above.
Page 37 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(B) DETERMINATION OF TOP-HEAVINESS
The determination of whether a plan is Top Heavy will be made as follows:
(b)(1) A plan will be Top Heavy and an Aggregation Group will be a Top Heavy
Group with respect to any plan year as of the Determination Date if the sum as
of the Determination Date of the Cumulative Accrued Benefits and the Cumulative
Accounts of Employees who are Key Employees for the plan year exceeds 60 percent
of a similar sum determined for all Employees, excluding former Key Employees.
(b)(2) If the Plan is not required to be included in an Aggregation Group with
other plans, then it will be Top Heavy only if, when considered by itself, it is
a Top Heavy Plan and it is not included in a permissive Aggregation Group that
is not a Top Heavy Group.
(b)(3) If the Plan is required to be included in an Aggregation Group with other
plans, it will be Top Heavy only if the Aggregation Group, including any
permissively aggregated plans, is Top-Heavy.
(b)(4) If a plan is not a Top Heavy Plan and is not required to be included in
an Aggregation Group, then it will not be Top Heavy even if it is permissively
aggregated in an Aggregation Group which is a Top Heavy Group.
(C) DETERMINATION OF SUPER TOP-HEAVINESS
(c)(1) A plan will be a Super Top Heavy Plan if it would be a Top Heavy Plan
under the provisions of subsection (b) if "90 percent" were substituted for "60
percent" in the ratio tests in subsection (b) above.
(D) CALCULATION OF ACCOUNTS TO BE COMPARED
(d)(1) Accounts and benefits will be calculated to include all amounts
attributable to both Employer and Employee contributions but excluding amounts
attributable to voluntary deductible Employee contributions.
(d)(2) Accounts and benefits will be increased by the aggregate distributions
during the five-year period ending on the Determination Date made with respect
to an Employee under the plan or plans as the case may be or under a terminated
plan which, if it had not been terminated, would have been required to be
included in the Aggregation Group.
Page 38 of 43
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(d)(3) In accordance with Section 416(g)(4)(E) of the Code, if any individual
has not performed services for the Employer at any time during the five year
period ending on the Determination Date, then the Accounts of such individual
will not be taken into account.
(d)(4) Rollovers and direct plan-to-plan transfers will be handled as follows:
(i) If the transfer is initiated by the Employee and made from a
plan maintained by the Employer to a plan maintained by an unrelated
employer, the transferring plan continues to count the amount
transferred under the rules for counting distributions. The receiving
plan does not count the amount if accepted after December 31, 1983,
but does count it if accepted prior to December 31, 1983.
(ii) If the transfer is made between plans maintained by the
Employers, the transferring plan will no longer count the amount
transferred and the receiving plan will count the amount transferred.
(iii) For purposes of this subsection (d), all Employers aggregated
under the rules of sections 414(b), (c) and (m) of the Code will be
considered a single employer.
(E) RESULTS OF BEING TOP-HEAVY
For any Plan Year in which the Plan is a Top Heavy Plan, the requirements of
this Section must be met in accordance with section 416 of the Code and the
regulations thereunder and the following rules will apply:
(e)(1) COMPENSATION LIMIT. Annual Compensation of any Employee will not be
taken into account under the Plan in excess of $200,000, such amount to be
adjusted annually for increases in the cost of living in accordance with section
401 (a)(17) of the Code.
(e)(2) SPECIAL VESTING. A Member who is credited with an Hour of Service while
the Plan is Top Heavy will be subject to special accelerated vesting as follows:
Credited Service at Termination Vested Percent
less than 3 0%
3 or more 100%
Any amount which is accrued and vested while a Plan is Top Heavy may not be
forfeited even if the Plan later ceases to be Top Heavy nor may such amount be
forfeited under the provisions of Code sections 411 (a)(3)(B) (relating to
suspension of benefits upon reemployment) or 411(a)(3)(D)
Page 39 of 43
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TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
(relating to forfeitures upon withdrawal of mandatory contributions). Such
accrued benefit will include benefits accrued before the Plan becomes Top Heavy.
Notwithstanding any other provision of this Plan to the contrary, once the
vesting requirements of this subsection (e)(2) become applicable, they will
remain applicable even if the Plan later ceases to be Top Heavy.
(e)(3) MINIMUM CONTRIBUTIONS. Minimum Employer contributions for a Member who
is not a Key Employee will be required under the Plan for the Plan Year as
follows:
(i) The amount of the minimum contribution will be an amount which
added to Forfeitures equals the lesser of three (3) percent or the
highest percentage at which such contributions and forfeitures are made
under the Plan for the Plan Year on behalf of a Key Employee (including,
if applicable, salary deferral contributions).
(ii) For purposes of this subsection, all defined contribution plans
required to be included in an Aggregation Group will be treated as one
plan.
(iii) The minimum amount in subparagraph (i) of this subsection will
be a full three (3) percent if the Plan is required to be included in an
Aggregation Group and the Plan enables a defined benefit plan required to
be included in the Aggregation Group to meet the requirements of sections
401(a)(4) or 410 of the Code.
(iv) Members who have not separated from Service at the end of the
Plan Year must receive the defined contribution plan minimum.
(v) If this Plan is aggregated with another defined contribution
plan which provides the minimum contributions, this subsection (e)(3)
will not apply with respect to Members who are Participants in both
plans.
(e)(4) SPECIAL TREATMENT WHERE A MEMBER IS ALSO A PARTICIPANT IN A DEFINED
BENEFIT PLAN. If any Plan Member other than a Key Employee is also a
participant under a defined benefit plan of the Employer which is a Top Heavy
Plan, but not a Super Top Heavy Plan, and if the defined benefit plan has not
provided the Code section 416 minimum benefits for each Non-Key Employee
participating in both plans, then subsection (e)(3)(i) will not apply and the
required minimum annual contribution for such Member under this Plan will be
seven and one-half percent (7 1/2%) of such Member's Compensation. Such
contribution will be made without regard to the amount of contributions, if any,
to the Plan on behalf of Key Employees.
(e)(5) SPECIAL COMBINED PLAN LIMIT WHERE THE PLAN IS SUPER TOP-HEAVY. If in any
Plan Year the Plan is a Super Top Heavy Plan, then for purposes of the
limitations on contributions and benefits under section 415 of the Code, the
dollar limitations in the defined benefit plan fraction and the
Page 40 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
defined contribution plan fractions will be multiplied by 1.0 rather than 1.25
subject to the following transitional rule provided in Code Section 416(h)(3):
(i) If the application of the provisions of this subsection would
cause any individual to exceed the combined Code section 415 limitations
on contributions and benefits, then the application of the provisions of
this subsection (e)(5) will be suspended as to such individual until such
time as he no longer exceeds the combined Code section 415 limitations as
modified by this subsection.
(ii) During the period of any suspension under sub-section (e)(5)(i)
above, there will be no Employer contributions, forfeitures or voluntary
nondeductible contributions allocated to such individual under this or
any other defined contribution plan of the Employers and there will be no
accruals for such individual under any defined benefit plan of the
Employers.
SECTION 19. OTHER PROVISIONS-GOVERNING LAW.
(A) LIMITS ON LIABILITY
All Capital Accumulations will be paid only from the Trust Assets and neither
the Company nor the Committee nor the Trustee nor any Employer will have any
duty or liability to furnish the Trust with any funds, securities or other
assets, except as expressly provided in the Plan.
(B) NO CONTRACT OF EMPLOYMENT
The adoption and maintenance of the Plan will not be deemed to constitute a
contract of employment or otherwise between an Employer and any Employee, or to
be a consideration for, or an inducement or condition of, any employment.
Nothing contained in this Plan will be deemed to give an Employee the right to
be retained in the Service of an Employer nor to limit an Employer's right to
discharge, with or without cause, any Employee at any time.
(C) RIGHT TO AMEND
(c)(1) The Company specifically reserves the right to amend the Plan and Trust
Agreement at any time (including but not limited to retroactively) in order to
satisfy the requirements of ERISA and Section 401(a) of the Code.
(D) TERMINATION OR PARTIAL TERMINATION
(d)(1) As future conditions cannot be foreseen, the Company reserves the right
to amend or terminate the Plan and the Trust Agreement at any time, by action of
its Board of Directors. Each
Page 41 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
Employer reserves the right to terminate its participation as an Employer under
this Plan. Neither amendment nor termination will retroactively reduce the
vested rights of Participants nor permit any part of the Trust Assets to be
diverted or used for any purpose other than for the exclusive benefit of the
Participants (and their Beneficiaries).
(d)(2) If the Plan is terminated (or partially terminated), the Accounts of all
Participants whose rights or benefits are affected by the termination (or
partial termination) will be fully vested and non-forfeitable as of the date of
termination (or partial termination) without regard to their Years of Service.
(d)(3) A complete discontinuance of Employer contributions will be deemed a
termination of the Plan for this purpose.
(d)(4) If the Plan is terminated, the Trust will be maintained until the Capital
Accumulations of all Participants have been distributed.
(d)(5) If the Plan is terminated, Capital Accumulations may be distributed as
soon as practicable following termination or distributions may be deferred as
provided in Section 14, as the Company may determine.
(E) MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS
(a)(1) In the event of a merger or consolidation of this Plan with another plan
or the transfer of Trust Assets or liabilities to another plan, the Account
balances of each Participant immediately after such merger, consolidation or
transfer must be at least as great as immediately before such merger,
consolidation or transfer (as if the Plan had then terminated).
(F) TITLES NO PART OF AGREEMENT
(f)(1) Titles used herein are for convenience only and are not to be construed
as stating, changing, nor interpreting any provision of the Plan as described in
the text of this document.
(G) GOVERNING LAW
(g)(1) The provisions of this Plan will be construed, administered and enforced
in accordance with the laws of the State of California, to the extent such laws
are not superseded by ERISA.
(g)(2) All Employer contributions to the Trust will be deemed to take place in
the State of California.
Page 42 of 43
<PAGE>
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
SECTION 20. EXECUTION.
To record the adoption of this Amendment, the Company has caused it to be
executed this________ day of __________________19___, effective January 1, 1994.
COMPANY
Treasure Chest Advertising Co., Inc.
a California Corporation
/s/ Sanford S. Scheller
_________________________________________
President
/s/ Donald E. Roland
_________________________________________
Secretary
Page 43 of 43
<PAGE>
Exhibit 4.6
AMENDMENT 1996-1
TO
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
This amendment is made and entered into the date below written by Treasure Chest
Advertising Company, Inc., a Delaware Corporation (the "Company"). Unless
otherwise indicated, this amendment is effective as of January 1, 1996.
WITNESSETH
WHEREAS, the Company adopted the Treasure Chest Advertising Co., Inc.
Savings Plus 401(k) Plan for the benefit of eligible employees of the Company
and its Affiliated Companies, and
WHEREAS, the Company reserved the right to amend the Plan from time to
time.
NOW, THEREFORE, the Plan is hereby amended as follows:
1) Section 1 of the Plan is amended by the addition of the following new
definitions and by relabeling the definitions currently labeled (n) through (jj)
as (p) through (ll):
"(n) Deferral Election.
A Participant's election to have a portion of his regular salary
or wages contributed to the Plan as an Elective Contribution, pursuant
to Section 4, below.
(o) Election Date.
A date declared by the Committee during a Plan Year as of which a
Participant's Deferral Election or investment direction may be made or
changed."
2) Section 3 of the Plan is amended by the addition of the following new
subsections thereunder:
"(a)(8) Any individuals actively employed by Retail Graphics
Printing Corporation or by KTB Associates, Inc. on the date such
corporations became Affiliated Companies shall become Participants in
this Plan on the Entry Date next following the date such corporations
became Affiliated Companies; provided that such individuals have
completed a Year of Service as of such Entry Date, taking into account
such individuals' periods of employment with Retail Graphics Printing
Corporation and KTB Associates, Inc.
(a)(9) Any individual actively employed by Laser Tech Color,
Inc. on the date such corporation became an Affiliated Company shall
become a Participant in this Plan on the Entry Date next following the
date such corporation became an
<PAGE>
Affiliated Company, provided that such individual has been credited with a
Year of Service as of such Entry Date, taking into account such
individual's period of service with Laser Tech Color, Inc.
(a)(10) Any individual actively employed by Printco, Inc. on the
date such corporation became an Affiliated Company shall become a
Participant in this Plan on the Entry Date next following the date
such corporation became an Affiliated Company, provided that such
individual has completed a Year of Service as of such date, taking
into account such individual's period of employment with Printco,
Inc."
3) Section 4(a)(1) of the Plan is amended by substituting the term "Election
Date" for the term "Election Period" contained therein.
4) Section 4(a)(2) of the Plan is amended in its entirety to read as follows:
"(a)(2) Such elections shall be effective as of the next
following Election Date, and may be made either in whole percentages
of a Participant's gross salary or wages before salary reduction, or a
fixed dollar amount; provided, however, that in no event may a
Participant's Elective Contributions for a Plan Year exceed fifteen
percent (15%) of the Participant's Compensation for that Plan Year."
5) Section 11(a) of the Plan is amended by the addition of the following new
section 11(a)(3) thereunder:
"(a)(3) Notwithstanding the foregoing, any individual actively
employed by Retail Graphics Printing Corporation, KTB Associates,
Inc., Laser Tech Color, Inc. and Printco, Inc. on the date such
corporations became Affiliated Companies shall receive credit for all
periods of employment with such corporations for purposes of
determining such individuals' Credited Service under this Plan."
6) Section 12(d)(3) of the Plan is hereby deleted in its entirety and the
following Sections 12(d)(4), (5), (6) and (7) are renumbered (3), (4), (5) and
(6).
IN WITNESS WHEREOF, the Parties have caused this amendment to be executed this
30th day of December, 1996 at Baltimore, Maryland.
TREASURE CHEST ADVERTISING COMPANY, INC.
a Delaware Corporation
Witness/Attest:
/s/ Mark A. Angelson /s/ Donald E. Roland
_________________________________ __________________________________________
Secretary President
-2-
<PAGE>
Exhibit 4.7
AMENDMENT 1997-1
TO
TREASURE CHEST ADVERTISING CO., INC.
SAVINGS PLUS 401(K) PLAN
This amendment is made and entered into the date below written by Treasure Chest
Advertising Company, Inc., a Delaware Corporation (the "Company"). Unless
otherwise indicated, this amendment is effective as of July 1, 1997.
WITNESSETH
WHEREAS, the Company adopted the Treasure Chest Advertising Co., Inc.
Savings Plus 401(k) Plan for the benefit of eligible employees of the Company
and its Affiliated Companies, and
WHEREAS, the Company reserved the right to amend the Plan from time to
time.
NOW, THEREFORE, the Plan is hereby amended as follows:
1) Section 3 of the Plan is amended by the addition of the following new
section 3(a)(11) thereunder:
"(a)(11) Any individuals actively employed by Pacific Color
Connection, Inc. or Digital Dimensions, Inc. on June 30, 1997 shall
become Participants in this Plan on the next Entry Date; provided that
such individuals have completed a Year of Service as of such Entry
Date, taking into account such individuals' periods of employment with
Pacific Color Connection, Inc. and Digital Dimensions, Inc.
2) Section 11(a) of the Plan is amended by the addition of the following new
section 11(a)(4) thereunder:
"(a)(4) Notwithstanding the foregoing, any individual actively
employed by Pacific Color Connection, Inc. or Digital Dimensions, Inc.
on the date such corporations became Affiliated Companies shall
receive credit for all periods of employment with such corporations
for purposes of determining such individuals' Credited Service under
this Plan."
IN WITNESS WHEREOF, the Parties have caused this amendment to be executed this
15th day of May, 1997 at Baltimore, Maryland.
TREASURE CHEST ADVERTISING COMPANY, INC.
a Delaware Corporation
Witness/Attest:
/s/ Lorna Russell /s/ Donald E. Ronald
_________________________________ __________________________________________
President
<PAGE>
Exhibit 5.1
[LETTERHEAD OF MILES & STOCKBRIDGE,
A PROFESSIONAL CORPORATION]
June 6, 1997
Big Flower Press Holdings, Inc.
3 East 54th Street
New York, New York 10022
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the
"Act") of 500,000 shares of common stock, par value $.01 per share (the "Common
Stock"), of Big Flower Press Holdings, Inc., a Delaware corporation (the
"Company"), pursuant to the Treasure Chest Advertising Company, Inc. Savings
Plus 401(k) Plan (the "Plan"), we have examined such corporate records,
certificates and documents as we deemed necessary for the purpose of rendering
this opinion.
Based on the foregoing, we are of the opinion that the 500,000 shares of
Common Stock to be issued by the Company under the Plan has been duly and
validly authorized and, when issued upon the terms set forth in the Plan and the
registration statement, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement covering the Common Stock. In giving our consent, we do
not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the rules and
regulations promulgated by the Securities and Exchange Commission thereunder.
Very truly yours,
Miles & Stockbridge,
a Professional Corporation
/s/ Thomas J. St. Ville
By:__________________________________
Thomas J. St. Ville, Principal
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Big Flower Press Holdings, Inc. on Form S-8 of our reports dated February
14, 1997, appearing in the Annual Report on Form 10-K of Big Flower Press
Holdings, Inc. for the year ended December 31, 1996.
/s/ Deloitte & Touche LLP
Baltimore, Maryland
June 6, 1997
<PAGE>
EXHIBIT 24.1
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Richard L. Ritchie June 6, 1997
-----------------------------------
Richard L. Ritchie
Executive Vice President
and Chief Financial Officer
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Leon D. Black June 2, 1997
-----------------------------------
Leon D. Black
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Peter G. Diamandis June 6, 1997
-----------------------------------
Peter G. Diamandis
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Robert M. Kimmitt June 6, 1997
-----------------------------------
Robert M. Kimmitt
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Joan D. Manley June 6, 1997
-----------------------------------
Joan D. Manley
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Newton N. Minow June 6, 1997
-----------------------------------
Newton N. Minow
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Edward M. Yorke June 6, 1997
-----------------------------------
Edward M. Yorke
Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ Edward T. Reilly June 6, 1997
-----------------------------------
Edward T. Reilly
President, Cief Executive Officer
and Director
<PAGE>
BIG FLOWER PRESS HOLDINGS, INC.
The undersigned hereby constitutes R. Theodore Ammon and Edward T. Reilly,
and each of them, jointly and severally, his or her lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, including, but not
limited to, that listed below, to execute and file, or cause to be filed, with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission (hereinafter referred to as the "Commission")
one or more registration statements on Form S-8 for the purpose of registering
(or removing from registration) under the Securities Act of 1933, as amended
(the "Securities Act"), common stock of Big Flower Press Holdings, Inc. for use
in connection with the employee benefit plan listed below to be maintained by
Big Flower Press Holdings, Inc. or its subsidiaries (together with associated
interests in the plan, if any) and amendments thereto (including post-effective
amendments), and all matters required by the Commission in connection with such
registration statements under the Securities Act (collectively "Filings"),
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done as fully to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each of them or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. The foregoing Power of
Attorney relates to Filings with respect to the following employee benefit plan:
Treasure Chest Advertising Company, Inc. Savings Plus 401(k) Plan.
/s/ R. Theodore Ammon June 6, 1997
-----------------------------------
R. Theodore Ammon
Chairman of the Board and Director
