<PAGE>
The Registrant requests that the registration
statement become effective immediately
upon filing pursuant to Securities Act Rule 462.
As filed with the Securities and Exchange Commission on March 17, 1995
File No. 33-_____
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SOUTHWEST GAS CORPORATION
(Exact name of Registrant as specified in its charter)
California 88-0085720
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
5241 Spring Mountain Road
P.O. Box 98510
Las Vegas, Nevada 89193-8510
(Address of principal executive offices) (Zip Code)
SOUTHWEST GAS CORPORATION EMPLOYEES' INVESTMENT PLAN
(Full title of the plan)
GEORGE C. BIEHL
Senior Vice President/Chief Financial Officer
Southwest Gas Corporation
5241 Spring Mountain Road
P.O. Box 98510
Las Vegas, Nevada 89193-8510
(Name and address of agent for service)
(702) 876-7237
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-------------------------------
Amount Proposed maximum Proposed maximum Amount of
to be offering price per aggregate Registration
Title of securities being registered registered (1)(2) share(3) offering price(3) fee
- ------------------------------------ ----------------- ------------------ ----------------- ------------
<S> <C> <C> <C> <C>
Common Stock ($1 par value) 800,000 shares $14 15/16 $11,950,000 $4,120.72
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) The shares of common stock being registered consist of shares to be
acquired by the Trustee pursuant to the plan for the account of
participants.
(3) Calculated pursuant to Rule 457(c), based on the average of the high and
low prices for the Common Stock on the New York Stock Exchange Composite
Tape for March 16, 1995.
AS PERMITTED BY RULE 429, THE PROSPECTUS WITH RESPECT TO THIS REGISTRATION
STATEMENT ALSO RELATES TO REGISTRANT'S REGISTRATION STATEMENT ON FORM S-8
(33-35637).
==============================================================================<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from the Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and
the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) Registrant's Annual Report on Form 10-K for the year ended
December 31, 1994 and the Southwest Gas Corporation Employees'
Investment Plan Annual Report on Form 11-K for the year ended
December 31, 1993.
(b) Description of Registrant's Common Stock contained in Form 8-A
filed pursuant to Section 12 of the Securities Exchange Act of
1934.
In addition, all documents subsequently filed by Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a posteffective 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 in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Robert M. Johnson, Esq., as Associate General Counsel for
Registrant, has given an opinion to the Securities and Exchange Commission
upon the validity of the shares of Common Stock registered.
The financial statements incorporated by reference in this
Registration Statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports included in the Annual Report
on Form 10-K for the year ended December 31, 1994, and the Southwest Gas
Corporation Employees' Investment Plan Annual Report on Form 11-K for the year
ended December 31, 1993, and are included herein in reliance upon the authority
of said firm as experts in accounting and auditing in giving said reports.
S-1<PAGE>
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the California Corporations Code and Registrant's
Articles of Incorporation and Bylaws, directors and officers of Registrant are
generally indemnified against judgments, expenses and other amounts actually
and reasonable incurred by or imposed upon them in connection with or arising
out of any action in which they were or are parties or are threatened to be
made parties by reason of their being or having been a director or officer of
Registrant. In addition, Registrant has entered into indemnity agreements
with certain officers and directors pursuant to which such officers and
directors are indemnified to the full extent permitted by California law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated Southwest Gas Corporation Employees' Investment
Plan
4.2 Trust Agreement between the Plan and Bank of America-Nevada
5.1 Opinion of Counsel of Southwest regarding legality of the securities
to be registered
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Counsel of Southwest (included in opinion filed as
Exhibit 5.1 to this Registration Statement)
24.1 Powers of Attorney (included on pages S-4 and S-5 of this
Registration Statement)
__________
In lieu of the opinion of counsel or determination letter
contemplated by Item 601(b)(5) of Regulation S-K, Registrant hereby confirms
that it has submitted the Plan and undertakes that it will submit all
amendments thereto to the Internal Revenue Service (IRS) in a timely manner,
and that it has made or will make all changes required by the IRS in order to
qualify the Plan under Section 401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a posteffective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, unless the information required to be
included in such posteffective amendment is contained in a periodic
report filed by Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 and incorporated herein by
reference;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent posteffective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in this Registration Statement, unless the information
required to be included in such posteffective amendment is contained
in a periodic report filed by Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 and
incorporated herein by reference;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such posteffective 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.
S-2<PAGE>
<PAGE>
(3) To remove from registration by means of a posteffective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby further 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 each filing of the annual
report of the Plan 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.
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.
S-3<PAGE>
<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 Las Vegas, State of Nevada, on the
6th day of March, 1995.
SOUTHWEST GAS CORPORATION
By /s/ MICHAEL O. MAFFIE
-------------------------------------
Michael O. Maffie
President and Chief Executive Officer
SIGNATURES
Each person whose signature appears below constitutes and appoints
Michael O. Maffie and Thomas J. Trimble his true and lawful attorneys-in-fact
and agents, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to
do and perform each and every act and thing necessary and requisite to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated.
Signature Title Date
--------- ----- ----
/s/ MICHAEL O. MAFFIE Director, President and March 6, 1995
- ----------------------------- Chief Executive Officer
(Michael O. Maffie) (Principal Executive Officer)
/s/ GEORGE C. BIEHL Senior Vice President and March 6, 1995
- ----------------------------- Chief Financial Officer
(George C. Biehl) (Principal Financial Officer)
/s/ EDWARD A. JANOV Controller and Chief March 6, 1995
- ----------------------------- Accounting Officer
(Edward A. Janov) (Principal Accounting Officer)
/s/ RALPH C. BATASTINI Director March 6, 1995
- -----------------------------
(Ralph C. Batastini)
/s/ MANUEL J. CORTEZ Director March 6, 1995
- -----------------------------
(Manuel J. Cortez)
/s/ LLOYD T. DYER Director March 6, 1995
- -----------------------------
(Lloyd T. Dyer)
/s/ KENNY C. GUINN Chairman of the Board March 6, 1995
- ----------------------------- of Directors
(Kenny C. Guinn)
/s/ THOMAS Y. HARTLEY Director March 6, 1995
- -----------------------------
(Thomas Y. Hartley)
S-4<PAGE>
Signature Title Date
--------- ----- ----
/s/ MICHAEL B. JAGER Director March 6, 1995
- -----------------------------
(Michael B. Jager)
Director
- -----------------------------
(Leonard R. Judd)
/s/ JAMES R. LINCICOME Director March 6, 1995
- -----------------------------
(James R. Lincicome)
/s/ CAROLYN M. SPARKS Director March 6, 1995
- -----------------------------
(Carolyn M. Sparks)
/s/ ROBERT S. SUNDT Director March 6, 1995
- -----------------------------
(Robert S. Sundt)
THE PLAN
Each person whose signature appears below constitutes and appoints
Michael O. Maffie and Thomas J. Trimble his true and lawful attorneys-in-fact
and agents, each acting alone, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, each acting alone, full power and authority to
do and perform each and every act and thing necessary and requisite to be done
in and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, each acting alone, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Southwest Gas Corporation Employees' Investment Plan Committee has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Las Vegas, State of Nevada, on the
6th day of March, 1995.
SOUTHWEST GAS CORPORATION
EMPLOYEES' INVESTMENT PLAN
COMMITTEE
/s/ MICHAEL O. MAFFIE
-------------------------------
Michael O. Maffie
/s/ GEORGE C. BIEHL
-------------------------------
George C. Biehl
/s/ MARTHA A. MCDONALD
-------------------------------
Martha A. McDonald
/s/ THOMAS J. TRIMBLE
-------------------------------
Thomas J. Trimble
S-5
<PAGE>
EXHIBIT 4.1
SOUTHWEST GAS CORPORATION
EMPLOYEES' INVESTMENT PLAN
Amended and Restated -- Effective January 1, 1989
Amended -- Effective January 1, 1989
Amended -- Effective April 1, 1992
Amended and Restated -- Effective December 1, 1994<PAGE>
<PAGE>
INTRODUCTION
The Southwest Gas Corporation Employees' Investment Plan, as amended and
restated here, constitutes a continuation of the Plan as originally effective
April 1, 1965. The Plan is a profit sharing plan with a cash or deferred
arrangement.
Effective January 1, 1989, the Plan was amended and restated. The
purpose of the amendment was to change Plan provisions in light of tax law
changes and to comply with the provisions of the Tax Reform Act of 1986,
Omnibus Reconciliation Act and various Regulations requiring changes to
documentation. This document makes additional changes to the Plan which
include changes necessary for the Plan to comply with subsequent tax law
changes. This restatement of the Plan shall be effective December 1, 1994;
provided, however, that if a provision of this restatement of the Plan has a
specific effective date other than December 1, 1994, the date so specified
shall be the effective date of such provision.<PAGE>
<PAGE>
TABLE OF CONTENTS
-----------------
ARTICLE Page
------- ----
1. DEFINITIONS
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Affiliated Company . . . . . . . . . . . . . . . . . . . . . . . .1
Alternate Payee. . . . . . . . . . . . . . . . . . . . . . . . . .1
Beneficiary. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Board. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Company Matching Contributions . . . . . . . . . . . . . . . . . .2
Company Matching Contributions Account . . . . . . . . . . . . . .2
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Deferral Account . . . . . . . . . . . . . . . . . . . . . . . . .3
Deferrals. . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . .3
Eligible Employee. . . . . . . . . . . . . . . . . . . . . . . . .3
Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Entry Date . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Five Percent Owner . . . . . . . . . . . . . . . . . . . . . . . .4
Frozen After-Tax Account . . . . . . . . . . . . . . . . . . . . .4
Hour of Service. . . . . . . . . . . . . . . . . . . . . . . . . .4
Leased Employee. . . . . . . . . . . . . . . . . . . . . . . . . .4
Normal Retirement Age. . . . . . . . . . . . . . . . . . . . . . .4
Normal Retirement Date . . . . . . . . . . . . . . . . . . . . . .4
Participant. . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Period of Severance. . . . . . . . . . . . . . . . . . . . . . . .4
Permanently and Totally Disabled . . . . . . . . . . . . . . . . .5
Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Plan Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Qualified Consent. . . . . . . . . . . . . . . . . . . . . . . . .5
Qualified Domestic Relations Order . . . . . . . . . . . . . . . .5
Rollover Account . . . . . . . . . . . . . . . . . . . . . . . . .6
Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Spouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Total Vested Account Balance . . . . . . . . . . . . . . . . . . .7
Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Trust Agreement. . . . . . . . . . . . . . . . . . . . . . . . . .7
Trust Fund or Funds. . . . . . . . . . . . . . . . . . . . . . . .7
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . . .7
Valuation Period . . . . . . . . . . . . . . . . . . . . . . . . .7
Vested . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Voice Response . . . . . . . . . . . . . . . . . . . . . . . . . .7
i<PAGE>
<PAGE>
2. PARTICIPATION
2.01 Eligibility to Become a Participant . . . . . . . . . . . . .7
2.02 Participation in the Plan . . . . . . . . . . . . . . . . . .8
2.03 Reemployment. . . . . . . . . . . . . . . . . . . . . . . . .8
2.04 Employment After Normal Retirement Age. . . . . . . . . . . .8
3. CONTRIBUTIONS
3.01 Contribution of Participants' Deferrals . . . . . . . . . . .8
3.02 Company Matching Contributions. . . . . . . . . . . . . . . .9
3.03 Maximum Amount of Participant Deferrals . . . . . . . . . . 10
3.04 Limitation on Deferrals . . . . . . . . . . . . . . . . . . 11
3.05 Limitation on Company Matching Contributions. . . . . . . . 16
3.06 Limitation on Annual Additions. . . . . . . . . . . . . . . 21
3.07 Allocation of Forfeitures . . . . . . . . . . . . . . . . . 23
3.08 Rollover Contributions. . . . . . . . . . . . . . . . . . . 23
3.09 Employer Error. . . . . . . . . . . . . . . . . . . . . . . 23
3.10 Inclusion of Ineligible Employee. . . . . . . . . . . . . . 24
4. INVESTMENT OF CONTRIBUTIONS AND VALUATION OF ACCOUNTS
4.01 Participants' Accounts. . . . . . . . . . . . . . . . . . . 24
4.02 Investment Funds. . . . . . . . . . . . . . . . . . . . . . 24
4.03 Investment of Company Matching Contributions. . . . . . . . 25
4.04 Allocation of Investment Income on a Valuation Date . . . . 25
4.05 Limitation on Participant Investment Instructions . . . . . 26
5. WITHDRAWALS, LOANS AND QUALIFIED DOMESTIC RELATIONS ORDERS
5.01 Withdrawal of Frozen After Tax Contributions. . . . . . . . 26
5.02 Withdrawal of Company Matching Contributions. . . . . . . . 26
5.03 Loans to Participants . . . . . . . . . . . . . . . . . . . 27
5.04 Hardship Withdrawals. . . . . . . . . . . . . . . . . . . . 28
5.05 Qualified Domestic Relations Orders . . . . . . . . . . . . 31
6. VESTING OF RETIREMENT, DISABILITY, DEATH AND TERMINATION OF
EMPLOYMENT BENEFITS
6.01 Vesting Due to Attainment of Normal Retirement Age
and Normal Retirement Benefits. . . . . . . . . . . . . . . 32
6.02 Vesting Due to Disability and Disability Benefits . . . . . 32
6.03 Vesting Due to Death and Death Benefits . . . . . . . . . . 32
6.04 Vesting Upon Termination of Employment and
Termination of Employment Benefits. . . . . . . . . . . . . 32
6.05 Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . 33
6.06 Reinstatement of Forfeited Accounts . . . . . . . . . . . . 33
ii<PAGE>
<PAGE>
7. DISTRIBUTION OF BENEFITS
7.01 Form of Distribution. . . . . . . . . . . . . . . . . . . . 34
7.02 Timing of Distributions . . . . . . . . . . . . . . . . . . 34
7.03 Eligible Rollover Distributions . . . . . . . . . . . . . . 35
8. PLAN ADMINISTRATION
8.01 Appointment of Committee. . . . . . . . . . . . . . . . . . 36
8.02 Powers and Duties . . . . . . . . . . . . . . . . . . . . . 36
8.03 Actions by the Committee. . . . . . . . . . . . . . . . . . 38
8.04 Interested Committee Members. . . . . . . . . . . . . . . . 38
8.05 Investment Manager. . . . . . . . . . . . . . . . . . . . . 38
8.06 Indemnification . . . . . . . . . . . . . . . . . . . . . . 38
8.07 Conclusiveness of Action. . . . . . . . . . . . . . . . . . 38
8.08 Payment of Expenses . . . . . . . . . . . . . . . . . . . . 38
8.09 Claims for Benefits . . . . . . . . . . . . . . . . . . . . 39
8.10 Request for Review of Denial. . . . . . . . . . . . . . . . 39
8.11 Decision on Review of Denial. . . . . . . . . . . . . . . . 39
8.12 Notice of Time Limits . . . . . . . . . . . . . . . . . . . 40
9. AMENDMENT, TERMINATION, AND MERGER OF THE PLAN
9.01 Right to Amend the Plan . . . . . . . . . . . . . . . . . . 40
9.02 Right to Terminate the Plan . . . . . . . . . . . . . . . . 40
9.03 Plan Merger and Consolidation . . . . . . . . . . . . . . . 40
10. TRUST FUND AND THE TRUSTEE
10.01 Selection of Trustee . . . . . . . . . . . . . . . . . 40
11. TOP-HEAVY PLAN REQUIREMENTS
11.01 General Rule . . . . . . . . . . . . . . . . . . . . . 41
11.02 Vesting Provisions . . . . . . . . . . . . . . . . . . 41
11.03 Minimum Contribution Provision . . . . . . . . . . . . 41
11.04 Limitation on Compensation . . . . . . . . . . . . . . 42
11.05 Limitation on Contributions. . . . . . . . . . . . . . 42
11.06 Coordination with Other Plans. . . . . . . . . . . . . 42
11.07 Determination of Top-Heavy Status. . . . . . . . . . . 43
11.08 Definition of Key Employee . . . . . . . . . . . . . . 45
11.09 Definition of Non-Key Employee . . . . . . . . . . . . 45
12. MISCELLANEOUS
12.01 Limitation on Distributions. . . . . . . . . . . . . . 46
12.02 Limitation on Reversion of Contributions . . . . . . . 46
12.03 Voluntary Plan . . . . . . . . . . . . . . . . . . . . 46
12.04 Nonalienation of Benefits. . . . . . . . . . . . . . . 47
12.05 Inability to Receive Benefits. . . . . . . . . . . . . 47
iii<PAGE>
<PAGE>
12.06 Unclaimed Benefits . . . . . . . . . . . . . . . . . . 47
12.07 Limitation of Rights . . . . . . . . . . . . . . . . . 48
12.08 Invalid Provisions . . . . . . . . . . . . . . . . . . 48
12.09 One Plan . . . . . . . . . . . . . . . . . . . . . . . 48
12.10 Use and Form of Words. . . . . . . . . . . . . . . . . 48
12.11 Headings . . . . . . . . . . . . . . . . . . . . . . . 48
12.12 Governing Law. . . . . . . . . . . . . . . . . . . . . 48
SCHEDULE A - INVESTMENT FUNDS
Description of Investment Funds . . . . . . . . . . . . . . . . . . . 50
Designation of Investment Funds . . . . . . . . . . . . . . . . . . . 51
Transfer Between and Among Investment Funds . . . . . . . . . . . . . 51
iv<PAGE>
<PAGE>
ARTICLE 1
---------
DEFINITIONS
-----------
When used in this document the following words and phrases have the meaning
specified below. Additional words and phrases may be defined in the text of
the Plan.
ACCOUNTS means a Participant's Company Matching Contributions Account,
Deferral Account, Frozen After Tax Account, and Rollover Account.
AFFILIATED COMPANY means the Company, any corporation that is included
in a controlled group of corporations within the meaning of Code Section
414(b) of which group the Company is also a member, any trade or business
that is under common control with the Company within the, meaning of Code
Section 414(c), any member of an affiliated service group within which the
Company is also included within the meaning of Code Section 414(m), and any
other entity required to be aggregated with the Company pursuant to
regulations under Code Section 414(o).
ALTERNATE PAYEE means any Spouse, former Spouse, child or other
dependent of a Participant having rights to receive all, or a portion of, a
Participant's benefits payable under this Plan pursuant to a Qualified
Domestic Relations Order.
BENEFICIARY means the person, persons, or entity designated by the
Participant to receive any death benefit that may become payable under the
Plan. The Beneficiary of a married Participant will be his Spouse unless the
Participant designates a Beneficiary other than his Spouse and the Spouse
executes a Qualified Consent. The Spouse may revoke such consent at any time
prior to the payment of any benefits to the designated Beneficiary. The
Committee may dispense with the Spouse's consent if the Spouse cannot be
located, or for such other reasons as provided in Treasury Regulations. A
Participant may designate primary and contingent Beneficiaries. If more than
one Beneficiary is named, the Participant may specify the sequence and/or
proportion in which payments will be made to each Beneficiary. In the absence
of a specification of sequence or proportions, payments will be made in equal
shares to all named Beneficiaries. If no Beneficiary has been designated or
if the Committee is unable to locate a designated Beneficiary or if no
designated Beneficiary is living at the time of the Participant's death,
payment of such death benefit, if any, to the extent permitted by law, will
be made to the Participant's surviving Spouse or, if none, the Participant's
estate. Any minor's share may be paid to such adult or adults as have, in the
opinion of the committee, assumed custody and support of such minor. However,
the Committee reserves the right to delay the payment of any minor's share
until the receipt of a court order designating the adult or adults to whom
such payment shall be made. Any death benefit that becomes payable to
executors or administrators will be paid in one lump sum. The Committee may
require proof of death before payment of any death benefit under the Plan.
The Committee shall have the rights set forth in Article 12.05 with respect
to incompetent Beneficiary(ies).
BOARD means the Board of Directors of the Southwest Gas Corporation.
CODE means the Internal Revenue Code of 1986, as periodically amended.
COMMITTEE means the Employees' Investment Plan Committee as described in
Article 8.
1<PAGE>
<PAGE>
COMPANY means Southwest Gas Corporation and any other Affiliated
Company, unit or division of the Company which adopts the Plan by resolution
of its board of directors, provided such resolution is accepted by the Board.
Except as otherwise provided in the terms and conditions prescribed by
Southwest Gas Corporation, all provisions of the Plan will apply to such
Affiliated company and its Employees.
COMPANY MATCHING CONTRIBUTIONS means contributions made by the Company
pursuant to Article 3.02.
COMPANY MATCHING CONTRIBUTIONS ACCOUNT means the account maintained for
a Participant which is (a) credited with Company Matching Contributions and
forfeitures, (b) adjusted for investment results, and (c) charged with
distributions and withdrawals.
COMPENSATION means
(a) For purposes of determining an Eligible Employee's benefits under
the Plan, the actual wages paid to an Eligible Employee during the
applicable period, including sales incentive payments, but
excluding pay for overtime hours, flexible benefit dollars,
bonuses, or other special payments, and the Company's contributions
toward insurance, retirement, and other fringe benefit or employee
welfare plans or programs other than severance pay arrangements.
(b) For purposes of Section 3.06 and Article 11 only, an Eligible
Employee's earned income, wages, salaries, fees for professional
services, and other amounts received for personal services actually
rendered in the course of employment with the Company (including,
but not limited to, overtime, other special payments, bonuses,
incentive compensation, commissions on insurance premiums, or
tips), whether actually paid in cash or in kind during the Plan
Year by the Company, excluding
(i) Company contributions to a plan of deferred compensation;
(ii) Any group insurance or other health and welfare plan
maintained by the Company;
(iii) Distributions from a plan of deferred compensation;
(iv) Any amounts realized from the exercise of a nonqualified
stock option;
(v) The sale, exchange, or other disposition of stock acquired
under a qualified stock option;
(vi) Other amounts that receive special tax benefits; or
(vii) Any contributions made toward the purchase of an annuity
described in Code Section 403(b) whether or not such
amounts are actually excludable from the gross income of
the Eligible Employee.
Compensation will mean only Compensation actually paid or
includable in gross income in the Plan Year. In no case will amounts deferred
pursuant to Code Sections 125 be included as Compensation under this
subsection (b).
2<PAGE>
<PAGE>
(c) The annual Compensation taken into account under the Plan for any
Plan Year beginning on or after January 1, 1989, shall not exceed
the maximum dollar amount ($200,000 for the year beginning in 1989
and any other amount that applies for a later year, including the
limit of $150,000 that applies for the year beginning in 1994) that
is permitted as of the beginning of the year under Code Section
401(a)(17) (determined after giving effect to any statutory changes
affecting Code Section 401(a)(17) and any indexing or other
adjustments pursuant to Code Section 401(a)(17) that are applicable
for the year of the determination). In the case of a short Plan
Year or other period of less than 12 months requiring a reduction
of the Code Section 401(a)(17) annual limit, the otherwise
applicable limit shall be prorated by multiplying it by a fraction,
the numerator of which is the number of months in the short period
and the denominator of which is 12. Moreover, in determining an
Employee's Compensation for purposes of the Code Section 401(a)(17)
limit, the rules of Code Section 414(q)(6) (requiring the
aggregation of Compensation paid to family members of certain five-
percent owners and the ten most highly compensated Employees) shall
apply, except that in applying such rules, the term "family" shall
include only the Spouse of the Employee and any lineal descendants
of the Employee who have not attained age 19 before the close of
the year. If, as a result of the application of such rules, the
adjusted annual Code Section 401(a)(17) Compensation limit is
exceeded, then such limit shall be prorated among the affected
individuals in proportion to each such individual's Compensation as
determined prior to the application of the Code Section 401(a)(17)
limit.
DEFERRAL ACCOUNT means the account maintained for a Participant that is:
(a) Credited with Company contributions into the Plan attributable to
the Participant's Deferrals under Section 3.01,
(b) Adjusted for investment results, and
(c) Adjusted for distributions and withdrawals.
DEFERRALS means an amount contributed to this Plan by the Company in
lieu of being paid to a Participant as salary or wages. Deferrals will be
made under salary reduction arrangements between each Eligible Employee and
the Company. Section 3.01 contains the provisions under which Deferrals may
be made. Deferrals consist of Matched Deferrals as described in Section
3.01(a) and Unmatched Deferrals, if any, as described in Section 3.01(b).
EFFECTIVE DATE means April 1, 1965. Notwithstanding the foregoing, the
effective date of this restatement of the Plan shall be December 1, 1994,
provided, however, that if a provision of this restatement of the Plan has a
specific effective date other than December 1, 1994, the date so specified
shall be the effective date of such provision.
ELIGABLE EMPLOYEE means any Employee, who is employed by the Company
(excluding any person included in a unit of employees covered by an agreement
that the United States Secretary of Labor finds to be a collective bargaining
agreement between employee representatives and the Company; if such agreement
does not call for inclusion in the Plan and there is evidence that retirement
benefits were the subject of good faith bargaining between the Company and
3<PAGE>
<PAGE>
employee representatives) and who has met the eligibility requirements of
Section 2.01 of the Plan.
EMPLOYEE means any person who is employed by the Affiliated Company.
ENTRY DATE means the first day of any calendar month.
ERISA means the Employee Retirement Income Security Act of 1974.
FIVE PERCENT OWNER means any person who owns (or is considered as owning
within the meaning of Code Section 318) more than five percent (5%) of the
outstanding stock of the Company or stock possessing more than five percent
(5%) of the total combined voting power of all stock of the Company.
FROZEN AFTER-TAX ACCOUNT means the account maintained for a Participant
which is: (a) credited with contributions attributable to the Participant's
after-tax contributions under the terms of the Plan as it was constituted on
December 31, 1984; (b) adjusted for distributions and withdrawals; and (c)
adjusted for investment results. Effective January 1, 1985, Participant
after-tax contributions shall not be allowed.
HOUR OF SERVICE means an hour for which an Employee is directly or
indirectly paid, or entitled to payment, by the Company for the performance
of duties. These hours shall be credited to the Employee for the Plan Year
in which the duties are performed. The computation of nonwork hours
described in this subsection will be computed in accordance with the
provisions of Department of Labor Regulation Section 2530.200b-2.
LEASED EMPLOYEE means a leased employee within the meaning of Code
Section 414(a)(2).
NORMAL RETIREMENT AGE means age sixty-five.
NORMAL RETIREMENT DATE means the first day of the month following
attainment of Normal Retirement Age.
PARTICIPANT means any former or current Eligible Employee whose Accounts
have not been subsequently distributed and forfeited in full.
PERIOD OF SEVERANCE
(a) "Period of Severance" means, for any Employee, the period beginning
on the Employee's severance from Service date and ending on the
date the Employee next completes an Hour of Service. An Employee's
severance from Service will occur on the earlier of:
(i) The date on which the Employee quits, retires, is
discharged, or dies, or
(ii) The first anniversary of the first date of a period in
which an Employee remains absent from Service (with or
without pay) with the Company for any reason other than
resignation, retirement, discharge, or death, such as
vacation, holiday, sickness, disability, leave of absence,
or layoff.
4<PAGE>
<PAGE>
A one (1) year Period of Severance is a twelve (12) consecutive-month
period beginning on the Employee's severance from Service date in
which the Employee does not perform an Hour of Service. A Period of
Severance shall be calculated in a manner that complies with the
Family and Medical leave Act of 1994.
(b) Subject to verification by the Committee, an Employee will be
deemed not to have incurred a Period of Severance during the twenty
four (24) consecutive-month period that the Employee is first
absent from employment by reason of:
(i) The Employee's pregnancy;
(ii) Birth of a child of the Employee;
(iii) Placement of a child with the Employee in connection with
the adoption of the child by the Employee;
(iv) Caring for such child for a period beginning immediately
following the birth or placement for adoption.
PERMANENTLY AND TOTALLY DISABLED means a disability due to sickness or
injury which renders a Participant incapable of performing any Service for
the Company for which he is qualified by education, training or experience.
Evidence of disability satisfactory to the Committee will be required.
PLAN means the Plan designated as the Southwest Gas Corporation
Employees' Investment Plan as described in this document and as it may be
periodically amended.
PLAN YEAR means the period beginning on January 1 and ending on December
31. The Plan Year will be the limitation year for purposes of Code Section
415 and Section 3.06 of the Plan.
QUALIFIED CONSENT means a written consent executed by a Participant's
Spouse in the presence of an authorized Plan representative or notary public
which by its terms acknowledges the effect of the consent. Such consent must
designate any non-Spouse Beneficiary(s), any class of non-Spouse
Beneficiaries, or any contingent Beneficiaries which may not be changed
without a second Qualified Consent unless the first Qualified Consent permits
the Participant to: (a) designate a different Beneficiary without the
Spouse's consent; and (b) acknowledges that the Spouse has the right to limit
consent to a specific Beneficiary. A Qualified Consent shall be valid only
with respect to the Spouse who signs it.
QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) means any judgment, decree or
order (including approval of a property settlement agreement), which relates
to the provision of child support, alimony or marital property rights made
pursuant to State domestic relations law (including community property law),
which recognizes an Alternate Payee's right to, or assigns to an Alternate
Payee the right to, all or a portion of the benefits otherwise receivable
under this Plan and which specifies: (a) the name and last known address of
the Participant and each Alternate Payee covered by the QDRO; (b) the amount
or percentage of the Participant's benefits to be paid to each Alternate
Payee, or the manner in which the amount or percentage is to be determined;
and (c) the number of payments or period to which the QDRO applies. The QDRO
may not require this Plan to provide increased benefits or any type or form
5<PAGE>
<PAGE>
of benefit or option not provided for in Article 7 or require payment of
benefits required to be paid to another Alternate Payee by a previous QDRO.
ROLLOVER ACCOUNT means the account maintained for a Participant which is
(a) credited with any Article 3.08 rollover tendered to and accepted by the
Trust, (b) adjusted for investment results, and (c) charged with
distributions and (if allowed) withdrawals.
SERVICE means, with respect to any Employee, his period or periods of
employment with an Affiliated Company that are counted as "Service" in
accordance with the following rules:
(a) Each Employee shall be credited with Service under the Plan for the
period or periods during which such Employee maintains an
employment relationship with the Affiliated Company. An Employee's
employment relationship will commence on the date the Employee
first renders one Hour of Service and ends on his severance from
Service date. Service will also include the following periods:
(i) periods of leave of absence with or without pay granted to
the Employee by the Affiliated Company in a like and
nondiscriminatory manner for any purpose including, but not
limited to, sickness, accident, or military leave. Such
Employee shall not be considered to have terminated
employment during such leave of absence unless he fails to
return to the employ of the Company at or prior to the
expiration date of such leave, in which case he shall be
deemed to have terminated as of the date of commencement of
such leave.
(ii) Periods during which a person is Permanently and Totally
Disabled. Such person shall not be considered to have
terminated employment during such period of disability
unless he fails to return to the employ of the Company at
the expiration of such period, in which case he shall be
deemed to have terminated as of his date of recovery.
(iii) The period of time between an Employee's severance from
Service date by reason of a resignation, discharge, or
retirement and his reemployment date, if the Employee
returns to Service on or before such first anniversary
date.
(b) In the case of a person who incurs five (5) consecutive one (1)
year Periods of Severance, whose whole years of Service prior to
his severance is less than five (5) years, who is not Vested
pursuant to section 6.04 at the time he incurs such five (5)
consecutive one (1) year Periods of Severance, but is then
reemployed by the Company; his Service prior to such five (5)
consecutive one (1) year Periods of Severance shall be forfeited
and shall not be included in determining his Service under
paragraph (a) above. Such person's Service at the time of a one (1)
year Period of Severance shall not include any Service disregarded
by virtue of the application of this subparagraph to any prior one
(1) year Period of Severance.
(c) Subject to (b) above, all periods of an Employee's Service, whether
or not consecutive, will be aggregated. Service will be measured in
elapsed years and fractions of years whereby each twelve (12)
6<PAGE>
<PAGE>
complete calendar months will constitute one year, each completed
calendar month will constitute one-twelfth of a year, and partial
calendar months which when aggregated equal thirty (30) days will
constitute one-twelfth of a year.
SPOUSE means the person to whom the Participant has been legally married
throughout the one year period ending on the earlier of the date the
Participant receives or begins to receive his benefit payment from the Plan,
or the date of the Participant's death.
TOTAL VESTED ACCOUNT BALANCE means the value of the Participant's
Deferral Account and Frozen After Tax Account, and Rollover Account, as well
as the Vested portion of his Company Matching Contributions Account.
TRUST means one or more Trusts established pursuant to the Trust
Agreement for purposes of funding the benefits of this Plan.
TRUST AGREEMENT means one or more Trust Agreements executed by the
Company and provided for the administration of the Trust.
TRUST FUND OR FUNDS means the total amount of contributions made by the
Participants and the Company together with the net earnings on them, that
will be used to provide the benefits to Participants and their Beneficiaries
under the Plan.
TRUSTEE means the Trustee of the Trust and any successor Trustee as
appointed in the Trust Agreement.
VALUATION DATE means the close of business on the last day of each
calendar month.
VALUATION PERIOD means a calendar month.
VESTED means nonforfeitable. The Vested portion of a Participant's
Account is determined in accordance with the provisions of Article 6.
VOICE RESPONSE means a system of telephonic or other verbal or
electronic communication with the Plan Trustee or recordkeeper that has been
approved by the Committee for the purpose of making certain elections under
the Plan.
ARTICLE 2
---------
PARTICIPATION
-------------
2.01 Eligibility to Become a Participant
-----------------------------------
(a) All Participants
----------------
Effective April 1, 1992, any Eligible Employee shall be eligible to
participate in the Plan. Notwithstanding the foregoing, an
individual who is a Leased Employee shall not be eligible to
participate in the Plan and neither shall an individual who is a
nonresident alien who has received no earned income within the
7<PAGE>
<PAGE>
meaning of Code Section 911(d)(2) from the Company which
constitutes Code Section 861(a)(3) income from sources within the
United States.
(b) Affiliated Company Employees
----------------------------
If a company other than Southwest Gas Corporation becomes an
Affiliated Company after December 31, 1988, any employee of such
company may elect to become an Eligible Employee as of the later of
the employee's date of hire by such company or the date such
company adopts the Plan.
2.02 Participation in the Plan
-------------------------
An Eligible Employee shall become a Participant on the Entry Date
coincident with or first following the date he completes and properly
files, at the location and in the manner specified from time to time by
the Committee, an enrollment form agreeing to make contributions to the
Plan, authorizing the Company to withhold such contributions from his
Compensation and to pay the same amount to the Trustee, designating the
allocation of these contributions between the Investment Funds, and
designating a Beneficiary. The Committee may require the form to be
filed with it at least 15 days before the date the Eligible Employee
elects to become a Participant.
2.03 Reemployment
------------
If an Eligible Employee who met the eligibility-requirements of section
2.01 and whose employment has terminated is subsequently rehired as an
Eligible Employee, he may elect to participate pursuant to section 2.02
and enter the Plan on the following Entry Date. A rehired Employee who
had not met the eligibility requirements of section 2.01 before his
employment terminated will be eligible to enter the Plan on the first
Entry Date after he satisfies the requirements of section 2.01. If an
Eligible Employee terminates employment and is rehired in the same Plan
Year, he may elect to participate pursuant to Section 2.02 on the date
he is rehired and enter the Plan on the following Entry Date.
2.04 Employment After Normal Retirement Age
--------------------------------------
A Participant who continues in the employ of the Company after Normal
Retirement Age will continue to be eligible to be a Participant.
ARTICLE 3
---------
CONTRIBUTIONS
-------------
3.01 Contribution of Participants' Deferrals
---------------------------------------
(a) Matched Deferrals
-----------------
Upon enrollment or reenrollment in the Plan, each Participant must
elect to reduce his Compensation in a fixed whole percentage of not
less than 2 percent and not more than 6 percent. The Company will
8<PAGE>
<PAGE>
make monthly payments to the Plan of the amount of the reduction,
to be credited to the Participant's Deferral Account. Amounts
deferred under this subsection will be contributed as Matched
Deferrals.
(b) Unmatched Deferrals
-------------------
A Participant making Matched Deferrals at the maximum percentage
rate may elect to further reduce his Compensation in a fixed whole
percentage of not less than 1 percent and not more than 10 percent.
The Company will make monthly payments to the Plan of the amount of
the reduction to be credited to the Participant's Deferral Account.
Amounts deferred under this subsection will be contributed as
Unmatched Deferrals.
(c) Change in Percentage or Suspension of Deferrals
-----------------------------------------------
A Participant's Deferral percentage will remain in effect until the
Participant elects to change the percentage. A Participant may
elect to change or suspend his Deferral percentage or resume all
suspended Deferrals, provided he files the election with the
Committee no later than 15 days before the last day of a calendar
month, or makes the election by Voice Response on or before the
last business day of such month.
Changes under this paragraph will become effective as of the first
full pay period of the following calendar month.
(d) Status of Deferrals
-------------------
Participant Deferrals under this section will be made by payroll
deductions authorized by the Participant and will be paid to the
Plan by the Company. Participant Deferrals constitute Company
contributions under the Plan and are intended to qualify as
elective contributions under Code Section 401(k).
3.02 Company Matching Contributions
------------------------------
(a) The Company will, on behalf of eligible Participants, contribute
for a Valuation Period an amount which, when added to the aggregate
of available forfeitures under Section 6.04, equals the sum of the
amounts to be allocated during such Valuation Period to the Company
Matching Contributions Account of each eligible Participant. The
amount allocated to the Company Matching Contributions Account for
each eligible Participant will equal fifty percent (50%) of the
eligible Participant's Matched Deferrals for such Valuation Period.
The maximum Company Matching Contribution under this Plan equals
three percent (3%) of a Participant's Compensation for such
Valuation Period. For purposes of this Section 3.02(a), the term
"eligible Participant" means any Participant other than a
Participant who is both a Highly Compensated Employee described in
Section 3.04(a) and an officer who is rated under the Company's
Executive Evaluation Scale.
(b) Payment of Company Matching Contributions for a Valuation Period
ending in or with the Company's taxable year will be made at any
9<PAGE>
<PAGE>
time during such taxable year or after its close, but not later
than the date, including extensions, on which the Company's federal
income tax return is due with respect to such taxable year.
(c) Each Company Matching Contribution will be a complete discharge of
the financial obligations of the Company under the Plan with
respect to the period for which it is made.
3.03 Maximum Amount of Participant Deferrals
---------------------------------------
(a) AMOUNT. No Eligible Employee who is a Participant will be
permitted to make Deferrals under this Plan during any calendar
year in excess of the sum of: (i) seven thousand dollars ($7,000);
and (ii) the accumulated increments, if any, as of the last day of
such calendar year, which have been added to the seven thousand
dollars ($7,000) for cost-of-living increases under Code Section
402(g). The foregoing limit shall not apply to Deferrals of
amounts attributable to service performed in 1986 and described in
Section 1105(c)(5) of the Tax Reform Act of 1986.
(b) DEFINITIONS. "Excess Deferrals" mean the amount by which:
(i) The sum of: (A) a Participant's Deferrals under the Plan
for a given calendar year; and (B) his or her Deferrals
under any other Code Section 401(k) qualified plan, to a
simplified employee pension plan, a Code Section 501(c)(18)
plan or a Code Section 403(b) annuity for such calendar
year exceeds
(ii) The sum of: (A) seven thousand dollars ($7,000); and (B)
the accumulated increments, if any, as of the last day of
such calendar year, which have been added to the seven
thousand dollars ($7,000) for cost-of-living increases
under Code Section 402(g).
(c) TREATMENT OF EXCESS DEFERRALS. If a Participant has made Excess
Deferrals, the following provisions shall apply:
(i) In the event that a Participant (or the Company under the
circumstances described in Treas. Reg. Sec. 1.402(g)-1(e)(2))
notifies the Committee in writing on or prior to March 1 of
a given calendar year that: (A) he or she has Excess
Deferrals included with his or her Deferrals under this
Plan for the immediately preceding calendar year; and (B)
the amount of such Excess Deferrals which are to be
allocated to this Plan for such immediately preceding
calendar year, the Committee shall direct the Trustee to
make a single payment from the Trust Fund, adjusted for any
applicable Trust Fund investment income or loss thereon, to
the Participant by April 15 immediately following the
calendar year in which the Excess Deferrals occurred.
(ii) Excess Deferrals to be distributed under this Section 3.03
shall be adjusted to include any applicable Trust Fund
investment income or loss thereon for the immediately
preceding calendar year. The investment income or loss
attributable to the Excess Deferrals for the immediately
preceding calendar year, shall be the sum of the income or
loss allocable to the Participant's Deferral Account for
the immediately preceding calendar year multiplied by a
10<PAGE>
<PAGE>
fraction: (A) the numerator of which is the Participant's
Excess Deferrals; and (B) the denominator of which is the
balance in the Participant's Deferral Account on the last
day of the immediately preceding calendar year reduced by
the income and increased by the loss allocable to said
Deferral Account for the calendar year. The distribution
shall reduce the Participant's Deferral Account as of the
date it is distributed. The portion of a Participant's
Excess Deferrals to be distributed in accordance with this
Section 3.03 shall be reduced by any Excess Contributions
previously distributed to the Participant with respect to
the same Plan Year under Section 3.04. The lump-sum
distribution amount shall be debited from the Participant's
Deferral Account as of the date it is distributed. The
Committee shall establish such rules and give such timely
directions to the Trustee as the Committee, in its sole
discretion, deems appropriate to carry out the provisions
of this paragraph.
(iii) Any Excess Deferrals which are distributed to the
Participant as provided above shall not be included in the
Participant's taxable income for purposes of federal income
taxes for the calendar year in which the deferrals are
distributed but shall be included in his or her taxable
income for the calendar year in which the Excess Deferrals
were made. Earnings and losses attributable to the
distributed Excess Deferrals shall be included in the
Participant's taxable income in the calendar year in which
the deferrals are distributed.
3.04 Limitation on Deferrals
-----------------------
(a) DEFINITIONS. For purposes of this Section 3.04, the following
terms shall have the following meanings:
(i) "Actual Deferral Percentage" means, with respect to Higher
Compensated Employees and Lower Compensated Employees for a
Plan Year, the average of the ratios (expressed as
percentages), calculated separately for each Employee in
the group applying to him or her and hereafter referred to
as the "Actual Deferral Ratio," of the Employees's
Deferrals for the Plan Year to the Employees's Compensation
for the Plan Year. Notwithstanding the foregoing, if a
Higher Compensated Employee is eligible to participate in
two (2) or more plans of the Employer which are subject to
Code Section 401(k), the Actual Deferral Ratio for the
Higher Compensated Employee will be determined by treating
all such plans as a single plan. If a Higher Compensated
Employee or a Lower Compensated Employee makes no Pre-Tax
Deposits during a Plan Year, the Employee's Actual Deferral
Ratio will be zero for such Plan Year.
If, during the Determination Year or Look-Back Year, an
individual employed by the Employer is a Employee and is a
Family Member of either a Five Percent Owner, or a Higher
Compensated Employee who is one of the ten (10) most highly
compensated Employees of the Company (ranked on the basis
of Compensation paid by the Company during such year), the
11<PAGE>
<PAGE>
Actual Deferral Ratio for the Five Percent Owner or Higher
Compensated Employee and such Family Member (who together
shall be treated as one Higher Compensated Employee) shall
be the ratio determined by combining the Deferrals and
Compensation of all eligible Family Members.
Deferrals will be taken into account in determining a
Participant's Actual Deferral Ratio for a Plan Year only if
such contributions are allocated to the contributing
Participant's applicable Plan account, as of a date within
such year, i.e.: (A) are not contingent on the
Participant's Plan participation or performance of future
services subsequent to such date; (B) are actually paid to
the Trust by the end of the twelfth (12th) month following
the close of the Plan Year; and (C) relate to Compensation
that either would have been received by the Participant in
the Plan Year (but for being contributed as a Deferrals to
the Plan) or is attributable to services performed by the
Participant in the Plan Year and would have been received
by the Participant within two and one-half months after the
close of the Plan Year (but for being contributed to the
Plan as a Deferral).
(ii) "Determination Year" means the Plan Year for which the
determination of who are Higher Compensated Employees is
being made.
(iii) "Company" means, for purposes of this Section 3.04, the
Company and other employers aggregated under Code Section
414(b), (c), (m) or (o).
(iv) "Excess Contributions" mean the amount of Deferrals of
Higher Compensated Employees made during the Plan Year that
cause the Actual Deferral Percentage for the group to
exceed the level of Deferrals allowed by Section 3.04(b).
(v) "Excess Deferrals" mean the deferrals defined in Section 3.03.
(vi) "Family Member" means, with respect to any Higher
Compensated Employee, the Higher Compensated Employee's
Spouse and lineal ascendants or descendants and the spouses
of such lineal ascendants or descendants. Legal adoption
shall be taken into account in determining whether an
individual is a Family Member.
(vii) "Higher Compensated Employees" mean Employees who in the
Determination Year are eligible to participate in this Plan
(including individuals who are eligible to participate in
this Plan and who would be Higher Compensated Employees but
elect not to participate) and who in the Determination
Year or Look-Back Year:
(A) Were a Five Percent Owner;
(B) Received Compensation from the Company exceeding
seventy five thousand dollars ($75,000) (or such
higher amount adjusted in accordance with regulations
prescribed by the Secretary of Treasury or his or her
delegate under Code Section 414(q));
12<PAGE>
<PAGE>
(C) Received Compensation from the Company exceeding fifty
thousand dollars ($50,000) (or such higher amount
adjusted in accordance with regulations prescribed by
the Secretary of Treasury or his or her delegate under
Code Section 414(q)) and were in the Top Paid Group;
or
(D) Were at any time an officer of the Company who
received Compensation during such year exceeding fifty
percent (50%) of the dollar limitation in effect for
such year under Code Section 415(b)(1)(A). For
purposes of this subparagraph (D), the number of
officers shall be limited to fifty (50) Employees (or
if lesser, the greater of three (3) Employees or ten
percent (10%) of the combined total of Employees); and
if for any year no officer of the Employer earns
Compensation greater than the amount referred to in
this subparagraph (D), the highest paid officer of the
Company, if an Employee, shall be treated as a Higher
Compensated Employee.
As an alternative to the above, if: (A) at all times
during any Plan Year, the Company maintained significant
business activities and employed employees in at least two
(2) significantly separate geographic areas; and (B) the
Company satisfies such other conditions as the Secretary of
Treasury or his or her delegate may prescribe, then the
Company may make the following election in determining
whether an Employee is a Higher Compensated Employee for
such Plan Year: (A) item (vii)(B) above shall be applied
by substituting fifty thousand dollars "($50,000)" (or such
higher amount adjusted in accordance with regulations
prescribed by the Secretary of Treasury or his or her
delegate under Code Section 414(q)) for seventy five
thousand dollars "($75,000)"; and (B) item (vii)(C) above
shall not apply.
Notwithstanding the above, an Employee who fits in item
(vii)(B), (vii)(C), or (vii)(D) above in the Determination
Year, but not in the Look-Back Year, will not be a Higher
Compensated Employee unless: (A) he or she is a Five
Percent Owner in the Determination Year or the Look-Back
Year; or (B) he or she is one of the one hundred (100)
highest paid Employees of the Employer during the
Determination Year.
"Higher Compensated Employees" also means any individuals
who were Employees, separated from service with the Company
before the Determination Year, and were Higher Compensated
Employees in the Plan Year they separated from service with
the Company or any Plan Year ending on or after they
attained age fifty-five (55).
If an Employee is, during a Determination Year or Look-Back
Year, a Family Member of either a Five Percent Owner who is
an active or former Employee or a Higher Compensated
Employee who is one of the ten (10) most highly compensated
Higher Compensated Employees ranked on the basis of
Compensation paid by the Company during such year, then the
Family Member and the Five Percent Owner or top-ten Higher
13<PAGE>
<PAGE>
Compensated Employee shall be aggregated. In such case,
the Family Member and Five Percent Owner or top-ten Higher
Compensated Employee shall be treated as a single Employee
receiving Compensation and Plan contributions or benefits
equal to the sum of such Compensation and contributions or
benefits of the Family Member and Five Percent Owner or
top-ten Higher Compensated Employee.
The determination of who is a Higher Compensated Employee,
including determinations of the number and identity of
Employees in the Top-Paid Group, the top one hundred (100)
Employees, the number of Employees treated as officers, and
the Compensation that is considered, will be made in
accordance with Code Section 414(q) and the regulations
thereunder.
(viii) "Look-Back Year" means the twelve-month period immediately
preceding the Determination Year.
(ix) "Lower Compensated Employees" mean Employees who in the
Determination Year are eligible to participate in the Plan
(including individuals who are eligible to participate in
this Plan and who would be Lower Compensated Employees but
elect not to participate) and who are not Higher
Compensated Employees.
(x) "Top Paid Group" means the top twenty percent (20%) of the
Employees ranked on the basis of Compensation during the
year; provided, however that Employees described in Code
Section 414(q)(8) and Q&A 9(b) of Temporary Treasury
Regulation Section 1.414 (q)-1T are excluded in the manner
provided therein.
(b) 401(K) NONDISCRIMINATION TEST. Each Plan Year the annual
allocation derived from a Participant's Deferrals shall satisfy one
of the following tests or any other test which might be prescribed
under Code Section 401(k):
(i) The Actual Deferral Percentage for Higher Compensated
Employees shall not exceed the Actual Deferral Percentage
for Lower Compensated Employees multiplied by 1.25; or
(ii) The Actual Deferral Percentage for Higher Compensated
Employees shall not exceed 2 multiplied by the Actual
Deferral Percentage for Lower Compensated Employees; and
the excess of the Actual Deferral Percentage for Higher
Compensated Employees over the Actual Deferral Percentage
for Lower Compensated Employees shall not exceed 2
percentage points.
(c) TREATMENT OF EXCESS CONTRIBUTIONS. If the limits in Section
3.04(b) are exceeded in any Plan Year, the following provisions
shall apply:
(i) Notwithstanding any provisions of this Plan to the
contrary, if the Committee determines that a Higher
Compensated Employee's Deferrals for any Plan Year will
cause this Plan to fail to meet the nondiscrimination test
of Section 3.04(b), the Committee, in its sole discretion,
14<PAGE>
<PAGE>
may reduce (or suspend, if necessary) the rate of future
Deferrals of the Higher Compensated Employee.
The Committee shall make the reduction on a uniform basis.
It shall first apply to Higher Compensated Employees then
contributing the highest rate of Section 3.01 unmatched
Deferrals and then to Higher Compensated Employees then
contributing the next highest rate of Section 3.01
unmatched Deferrals and so on, in descending order, from
the highest rate. If the reduction of Section 3.01
unmatched Deferrals is not sufficient, then the reduction
shall apply to Higher Compensated Employees then
contributing the highest rate of Section 3.01 matched
Deferrals and then to Higher Compensated Employees then
contributing the next highest rate of Section 3.01 matched
Deferrals and so on, in descending order from the highest
rate. The Committee shall establish such rules as the
Committee, in its sole discretion, deems appropriate to
carry out the provisions of this paragraph.
(ii) In the event that the Deferrals allocated to Higher
Compensated Employees for any Plan Year result in Excess
Contributions, the Committee shall direct the Trustee to
distribute the Excess Contributions, adjusted for any
applicable Trust Fund investment income or loss thereon, to
the affected Higher Compensated Employees by March 15
following the Plan Year in which the Excess Contributions
occurred but in no event later than the close of the Plan
Year following the Plan Year in which the Excess
Contributions occurred. To determine the portion of the
Excess Contributions to be distributed to each Higher
Compensated Employee, the Committee shall direct the
Trustee to distribute the Deferrals allocated to Higher
Compensated Employees for the Plan Year in which the Excess
Contributions occurred to the extent necessary to prevent
the Actual Deferral Percentage for the group of Higher
Compensated Employees from exceeding the permissible Actual
Deferral Percentage for the group.
The Committee shall direct the Trustee to make the
distribution on a uniform basis. It shall first be made
with respect to Higher Compensated Employees with the
highest Actual Deferral Ratio for the Plan Year and then
with respect to Higher Compensated Employees with the next
highest Actual Deferral Ratio for the Plan Year and so on,
in descending order from the highest rate until the test in
Section 3.04(b) is satisfied.
The portion of the Excess Contributions applicable to each
Higher Compensated Employee shall be distributed to the
Higher Compensated Employee in a single payment. The
portion of each Higher Compensated Employee's Excess
Contributions that is to be distributed in accordance with
this Section 3.04 shall be reduced by any Excess Deferrals
previously distributed to the Higher Compensated Employee
with respect to the same Plan Year under Section 3.03.
(iii) Excess Contributions to be distributed under this Section
3.04 with respect to a Higher Compensated Employee shall be
adjusted to include any applicable Trust Fund investment
income or loss on such contributions in the immediately
15<PAGE>
<PAGE>
preceding calendar year. The investment income or loss
attributable to the Higher Compensated Employee's Excess
Contributions for the immediately preceding Plan Year,
shall be determined by multiplying the income or loss
attributable to the Higher Compensated Employee's Deferrals
in such year by a fraction having as its numerator the
Employee's Excess Contributions for such year and having as
its denominator the sum of: (A) the balance in the Higher
Compensated Employee's Deferral Account at the beginning of
the Plan Year, plus (B) the Higher Compensated Employee's
Deferrals for the Plan Year. The distribution shall reduce
the Participant's Deferral Account as of the date it is
distributed. The Committee shall establish such rules and
give such timely directions to the Trustee as the
Committee, in its sole discretion, deems appropriate to
carry out the provisions of this paragraph.
(iv) In the case of a Higher Compensated Employee whose Actual
Deferral Ratio is determined under the family aggregation
rules, the determination of the amount of Excess
Contributions shall be made by combining the Deferrals and
Compensation of all Family Members, the Excess
Contributions shall be reduced in accordance with the
method described in subparagraphs (c)(i-iii) above and the
Excess Contributions for the family unit shall be allocated
among the Family Members in proportion to the Deferrals of
each Family Member that have been combined to determine the
Actual Deferral Ratio.
3.05 Limitation on Company Matching Contributions
--------------------------------------------
(a) DEFINITIONS. For purposes of this Section 3.05, the following
terms shall have the following meanings:
(i) "Aggregate Limit" means the greater of:
(A) the sum of:
(1) one hundred twenty five percent (125%) of the
greater of: (a) the Actual Deferral Percentage
of Lower Compensated Employees for such Plan
Year; or (b) the Contribution Percentage of Lower
Compensated Employees for such Plan Year; and
(2) two (2) percentage points plus the lesser of
(A)(1)(a) or (A)(1)(b); provided, however, that
this amount shall not exceed two hundred percent
(200%) of the lesser of (A)(1)(a) or (A)(1)(b);
or
(B) the sum of:
(1) one hundred twenty five percent (125%) of the
lesser of: (a) the Actual Deferral Percentage of
16<PAGE>
<PAGE>
the Lower Compensated Employees for such Plan
Year; or (b) the Contribution Percentage of the
Lower Compensated Employees for the Plan Year;
and
(2) two (2) percentage points plus the greater of
(B)(1)(a) or (B)(1)(b); provided, however, in no
event shall this amount exceed two hundred
percent (200%) of the greater of (B)(1)(a) or
(B)(1)(b).
(ii) "Contribution Percentage" means, with respect to Higher
Compensated Employees and Lower Compensated Employees for a
Plan Year, the average of the ratios (expressed as
percentages), calculated separately for each Employee in
the group applying to him or her and hereinafter referred
to as "Contribution Percentage Ratio," of the Company
Section 3.02 matching contributions on behalf of the
Employee (and Deferrals, if the Company makes a Section
3.05(d) election) for the Plan Year to the Employee's
Compensation for the Plan Year. Notwithstanding the
foregoing, if a Higher Compensated Employee is eligible to
participate in two (2) or more plans of the Company which
are subject to Code Section 401(m), the Contribution
Percentage Ratio for the Higher Compensated Employee will
be determined by treating all such plans as a single plan.
If, during the Determination Year or Look-Back Year, an
individual employed by the Company is an Employee and is a
Family Member of either a Five Percent Owner, or a Higher
Compensated Employee who is one of the ten (10) most highly
compensated Employees of the Company (ranked on the basis
of Compensation paid by the Company during such year), the
Contribution Percentage Ratio for the Five Percent Owner or
Higher Compensated Employee and such Family Member (who
together shall be treated as one Higher Compensated
Employee) must be determined by combining the Company
Section 3.02 matching contributions, (and Deferrals, if the
Company makes a Section 3.05(d) election) and Compensation
of all Family Members. Except to the extent taken into
account in the immediately preceding sentence, the Company
Section 3.02 matching contributions, (and Deferrals, if the
Company makes a Section 3.05(d) election) and Compensation
of all Family Members are disregarded in determining the
Contribution Percentage for the groups of Higher
Compensated Employees and Lower Compensated Employees.
The Company's Section 3.02 matching contribution will be
taken into account in determining a Participant's
Contribution Percentage Ratio for a Plan Year only if such
contribution is made on account of the Participant's
Deferrals for the Plan Year, is (under the terms of the
Plan) allocated to the Participant's applicable account as
of a date within that year, and is actually paid to the
Trust by no later than the twelfth (12th) month following
the close of that year. Qualified matching contributions
which are used to meet the requirements of Code Section
401(k)(3)(A) are not to be taken into account for purposes
of Section 3.05(a).
17<PAGE>
<PAGE>
(iii) "Determination Year" means the Determination Year defined
in Section 3.04.
(iv) "Company" means, for purposes of this Section 3.05, the
Company defined in Section 3.04.
(v) "Excess Aggregate Contributions" mean the amount of the
Company Section 3.02 matching contributions on behalf of
Higher Compensated Employees (and Deferrals of Higher
Compensated Employees, if the Company makes Section 3.05(d)
election) for a Plan Year that cause the Contribution
Percentage for the group to exceed the limits allowed by
Sections 3.05(b) and (if applicable) 3.05(c).
(vi) "Excess Contributions" mean the contributions defined in
Section 3.04.
(vii) "Excess Deferrals" mean the deferrals defined in Section
3.03.
(viii) "Family Member" means the Family Member defined in Section
3.04.
(ix) "Higher Compensated Employees" mean the Higher Compensated
Employees defined in Section 3.04.
(x) "Look-Back Year" means the Look-Back Year defined in
Section 3.04.
(xi) "Lower Compensated Employees" mean the Lower Compensated
Employees defined in Section 3.04.
(b) 401(M) NONDISCRIMINATION TEST. Each Plan Year the Company Section
3.02 matching contributions on behalf of Participants (and
Deferrals, if the Company makes a Section 3.05(d) election) shall
satisfy one of the following tests or any other test which might be
prescribed under Code Section 401(m):
(i) The Contribution Percentage for Higher Compensated
Employees shall not exceed the Contribution Percentage for
Lower Compensated Employees multiplied by 1.25; or
(ii) The Contribution Percentage for Higher Compensated
Employees shall not exceed 2 multiplied by the Contribution
Percentage for Lower Compensated Employees; and the excess
of the Contribution Percentage for Higher Compensated
Employees over the Contribution Percentage for Lower
Compensated Employees shall not exceed 2 percentage points.
(c) MULTIPLE USE. For Plan Years beginning after December 31, 1988, if
the sum of all Higher Compensated Employees' Actual Deferral
Percentage and Contribution Percentage exceeds the Aggregate Limit,
then the Contribution Percentage of Higher Compensated Employees
shall be reduced in the manner set forth in Section 3.05(e) so that
the Aggregate Limit is not exceeded. The Actual Deferral
Percentage and the Contribution Percentage of Higher Compensated
Employees are determined after any corrections required to meet the
tests set forth in Sections 3.04(b), 3.05(b) and (if applicable)
3.05(c). Multiple use does not occur if both the Actual Deferral
18<PAGE>
<PAGE>
Percentage and the Contribution Percentage of Higher Compensated
Employees do not exceed 1.25 multiplied by the Actual Deferral
Percentage and the Contribution Percentage of Lower Compensated
Employees.
(d) COMPANY ELECTION. In computing the Contribution Percentage, the
Company, in accordance with Treasury Regulation Section
1.401(m)-1(b)(5), may, to the extent allowed by such regulation,
elect to use Deferrals in determining the Contribution Percentage.
The Committee shall establish such rules and give such directions to
the Trustee as shall be appropriate to carry out Section 3.05(c).
(e) TREATMENT OF EXCESS AGGREGATE CONTRIBUTIONS. If the limits in
Sections 3.05(b) and (if applicable) 3.05(c) are exceeded in any
Plan Year, the following provisions shall apply:
(i) In the event that the Company Section 3.02 matching
contributions (and Deferrals, if the Company makes a
Section 3.05(d) election) allocated to Higher Compensated
Employees for any Plan Year result in Excess Aggregate
Contributions, the Committee shall direct the Trustee to
distribute the Excess Aggregate Contributions, adjusted for
any applicable Trust Fund investment income or loss
thereon, to the affected Higher Compensated Employees, if
they are Vested in the amounts, by March 15 following the
Plan Year in which the Excess Aggregate Contributions
occurred but in no event later than the close of the Plan
Year following the Plan Year in which the Excess Aggregate
Contributions occurred. If the affected Higher Compensated
Employees are not Vested in such amounts, the Committee
shall direct the Trustee to treat the nonvested portion of
the Excess Aggregate Contributions as a forfeiture
(allocable to the Plan Year in which the Excess Aggregate
Contributions occurred) and allocate them according to the
rules in Section 6; provided, however, that no amount of
the forfeited Excess Aggregate Contributions shall be
allocated to a Higher Compensated Employee whose share of
Company Section 3.02 matching contributions (and Deferrals,
if the Company makes a Section 3.05(d) election) is
adjusted under this Section 3.05.
To determine the portion of the Excess Aggregate
Contributions to be distributed to, or forfeited by, each
Higher Compensated Employee, the Committee shall direct the
Trustee to distribute, or cause to be forfeited, the
Company Section 3.02 matching contributions (and Deferrals,
if the Company makes a Section 3.05(d) election) allocated
to the Higher Compensated Employee for the Plan Year in
which the Excess Aggregate Contributions occurred to the
extent necessary to prevent the Contribution Percentage for
the group of Higher Compensated Employees from exceeding
the permissible Contribution Percentage for the group.
The Committee shall direct the Trustee to make the
distribution, or cause the forfeiture to be made, on a
uniform basis. It shall first be made with respect to
Higher Compensated Employee with the highest Contribution
19<PAGE>
<PAGE>
Percentage for the Plan Year and then with respect to the
Higher Compensated Employee with the next highest
Contribution Percentage for the Plan Year and so on, in
descending order from the highest rate until the tests in
Section 3.05(b) and (if applicable) 3.05(c) are satisfied.
The portion of the Vested Excess Aggregate Contributions
applicable to each Higher Compensated Employee shall be
distributed to the Higher Compensated Employee in a single
payment. If the Company has elected under Section 3.05(d)
to count Deferrals in the determination of Excess Aggregate
Contributions, the portion of the Excess Aggregate
Contributions applicable to each Higher Compensated
Employee that is to be distributed or forfeited in
accordance with this Section 3.05 shall be reduced by any
Excess Deferrals and Excess Contributions previously
distributed to the Higher Compensated Employee with respect
to the same Plan Year under Sections 3.03 and 3.04.
(ii) Excess Aggregate Contributions to be distributed or
forfeited under this Section 3.05 with respect to a Higher
Compensated Employees shall be adjusted to include any
applicable Trust Fund investment income or loss thereon.
The investment income or loss attributable to the Higher
Compensated Employee's Excess Aggregate Contributions for
the immediately preceding Plan Year, shall be the income or
loss allocable to the Higher Compensated Employee's Company
Matching Contributions Account, (and Deferral Account, if
the Company makes a Section 3.05(d) election) to the extent
there is a distribution or forfeiture attributable to said
Accounts multiplied by a fraction: (A) the numerator of
which is the Higher Compensated Employee's Excess Aggregate
Contributions for the preceding Plan Year; and (B) the
denominator of which is the sum of: (i) the balance in
such accounts at the beginning of the preceding Plan Year;
plus (ii) the Company Section 3.02 Matching Contributions
and, if applicable, the Participant's Deferrals if the
Company makes a Section 3.05(d) election, for such Plan
Year. The distribution or forfeiture shall reduce the
Participant's Company Matching Contribution Account, (and
Deferral Account, if the Company makes a Section 3.05(d)
election) as of the date it is distributed or forfeited, to
the extent there is a distribution or forfeiture
attributable to said Accounts. The Committee shall
establish such rules and give such timely directions to the
Trustee as the Committee, in its sole discretion, deems
appropriate to carry out the provisions of this paragraph.
(iii) If the Higher Compensated Employee's Compensation
Percentage Ratio is determined by combining the Company
Section 3.02 matching contributions, (and Deferrals, if the
Company makes a Section 3.05(d) election) and Compensation
of all Family Members, the Excess Aggregate Contributions
shall be reduced in accordance with the method described in
subparagraphs (e)(i) through (e)(ii) above and the Excess
Aggregate Contributions for the family unit shall be
allocated among the Family Members in proportion to the
Company Section 3.02 matching contributions (and Deferrals,
if the Company makes a Section 3.05(d) election) of each
Family Member that are combined to determine the
Contribution Percentage Ratio.
20<PAGE>
<PAGE>
3.06 Limitation on Annual Additions
------------------------------
(a) Basic Limitation
----------------
Notwithstanding any provisions of this Plan to the contrary, the
Annual Additions allocated to any Participant's Accounts for a Plan
Year will not exceed the lesser of (i) twenty-five percent (25%) of
the Participant's Compensation paid in such year, or (ii) $30,000,
or, if greater, twenty-five percent (25%) of the dollar limitation
in effect under Code Section 415(b)(1)(A).
For purposes of this Section, "Annual Additions" means the total
amount of Company Matching Contributions, Participant Deferrals,
Participant after-tax contributions, if any, and forfeitures, if
any, allocated to the Participant's Accounts during the Plan Year.
(b) Participation in Other Defined Contribution Plans
-------------------------------------------------
The limitation of this section 3.06 with respect to any Participant
who at any time has participated in any other qualified defined
contribution plan (as defined in ERISA Section 3(34) and Code
Section 414(i)) maintained by an Affiliated Company will apply as
if the total contributions allocated under all such defined
contribution plans in which the Participant has participated were
allocated under one Plan.
(c) Participation in this Plan and Defined Benefit Plan
---------------------------------------------------
If a Participant has been a Participant in a qualified defined
benefit plan (as defined in ERISA Section 3(35) and Code Section
414(j)) maintained by an Affiliated Company, the sum of the
Participant's Defined Benefit Plan Fraction and Defined
Contribution Plan Fraction for any year will not exceed 1. For
purposes of this subsection (c) only, the following words and
phrases have the meanings specified below:
(i) "Defined Benefit Plan Fraction" for any Plan Year means a
fraction where the numerator is the Participant's Projected
Annual Benefit, as defined below, as of the end of the year
and the denominator is the lesser of one and twenty-five
hundredths multiplied by the dollar limitation in effect
under Code Section 415(b)(1)(A) for such Plan Year or one
and four-tenths multiplied by 100 percent of the Partici-
pant's average annual Compensation for the highest 3
consecutive calendar Years of Participation.
(ii) "Defined Contribution Plan Fraction" for any Plan Year
means a fraction, not to exceed one, where the numerator is
the sum of all Annual Additions made on behalf of the
Participant to his Accounts in such Plan Year and for all
previous Plan Years, and the denominator is the sum of the
lesser of (A) or (B) determined for such Plan Year and for
each previous Plan Year during which the Participant was
employed by the Affiliated Company:
21<PAGE>
<PAGE>
(A) One and twenty-five hundredths multiplied by the
dollar limitation in effect under Code Section
415(c)(1)(A) for such Plan Year.
(B) One and four-tenths multiplied by twenty-five percent
of the Participant's Compensation in such Plan Year.
(iii) "Participant's Projected Annual Benefit" means the annual
benefit to which the Participant would be entitled under
all Affiliated Company-sponsored defined benefit plans,
assuming the Participant continues employment until Normal
Retirement Date; the Participant's Compensation continues
until Normal Retirement Date at the rate in effect during
the current calendar year; and all other factors relevant
for determining benefits under the Plan remain constant at
the level in effect during the current calendar year.
In the event that the Participant's Defined Benefit Plan Fraction
and Defined Contribution Plan Fraction for any Plan Year exceed
one, adjustments will be made by first reducing the amount in the
numerator of the Defined Benefit Plan Fraction, to the extent
possible, and then by reducing the amount in the numerator of the
Defined Contribution Plan Fraction.
(d) Treatment of Excess Annual Additions.
------------------------------------
If as a result of an allocation of forfeitures, a reasonable error
in estimating a Participant's Compensation, a reasonable error in
determining a Participant's Deferrals, or other facts and
circumstances that the Internal Revenue Service finds justifies the
availability of this Section 3.06(d), the Annual Additions
allocated to a Participant's Accounts for any Plan Year exceed the
limitation in Section 3.06(a), the following provisions shall
apply:
(i) First, amounts attributable to the Participant's Unmatched
Deferrals, and if necessary, his Matched Deferrals, will be
reduced. Such amounts will be returned to the Company
employing the Participant, solely for the purpose of
enabling the Company to withhold any federal, state, or
local taxes due on such amounts. The Company will pay all
remaining amounts to the Participant.
(ii) Second, the Company Matching Contribution allocated to the
Participant's Company Matching Contributions Account will
be reduced. The amount of the reduction will be allocated
and reallocated to other Participants who have made
deferrals in such year.
(iii) If, however, the reallocation to other Participants in the
Plan pursuant to subparagraph (ii) above of the excess
amounts (and net earnings attributable to the excess
amounts) causes the limitation contained in Section 3.06(a)
to be exceeded with respect to every Participant for the
Plan Year, the Committee shall direct the Trustee to hold
the excess amounts unallocated in a suspense account for
the Plan Year and to allocate and reallocate the excess
amounts during the next Plan Year (subject to the
limitation set forth in Section 3.06(a)) to all the
Participants in the Plan in such Plan Year, before any
Company Section 3.02 matching contributions or Section 6
22<PAGE>
<PAGE>
forfeitures may be made to the Plan for that Plan Year. If
a suspense account is in existence at any time during a
Plan Year, investment gains or losses of the Trust Fund
will not be allocated to the suspense account.
(iv) The excess amounts that are to be distributed to, or
forfeited by, each Participant in accordance with this
Section 3.06 shall be reduced by any Excess Deferrals,
Excess Contributions and Excess Aggregate Contributions
previously distributed to the Participant with respect to
the same Plan Year under Sections 3.03, 3.04, and 3.05.
(e) The determination of the limitation on Annual Additions described
in this section 3.06 will be made considering the Employees of all
Affiliated Companies as employed by a single employer. Such
determination will be made assuming the phrase, "more than fifty
percent" is substituted for the phrase "at least eighty percent"
each place it appears in Code Section 1563 (a)(1).
3.07 Allocation of Forfeitures
-------------------------
Amounts forfeited pursuant to Section 6.04 will, except as otherwise
provided in the Plan, be allocated, as of the Valuation Date following
the calendar month in which the forfeiture occurred, to the Company
Matching Contributions Account of each Participant employed by the
Company on such date who made Deferrals pursuant to Section 3.01 during
such calendar month. The amount to be allocated will bear the same ratio
to the total forfeitures for such calendar month as the Participant's
Company Matching Contributions for the calendar month bear to the
Company Matching Contributions of all Participants for the calendar
month.
3.08 Rollover Contributions
----------------------
Effective January 1, 1993, the Committee shall decide whether to accept
a transfer of assets from a Code Section 401(a)(31) eligible retirement
plan with respect to a person who is or is about to become a Participant
in this Plan, provided the transfer of such assets to this Plan
qualifies as a direct or sixty (60) day rollover of a Code Section
401(a)(31) eligible rollover distribution.
The Committee shall require the Participant to provide reasonable
evidence that any such amount meets the above requirements. Failure of
the Participant to provided such evidence will preclude the Plan's
acceptance of any such amount. Furthermore the Plan shall not be
required to accept any transfer from another qualified plan.
The Committee may establish other uniform rules and procedures,
consistent with the requirements of the Code and this Section 3.08,
concerning the acceptance of rollover contributions, including rules
that limit or prohibit wire transfers and other payments that are made
directly to this Plan from another Plan in lieu of having the
Participant receive a check payable to this Plan's Trustee for delivery
to a Plan representative who is authorized to receive rollover
contributions.
3.09 EMPLOYER ERROR. If the Company makes an incorrect Section 3.02 matching
contribution on behalf of a Participant as a result of an error by the
23<PAGE>
<PAGE>
Company, then, notwithstanding Section 3.02, the Company shall increase
or decrease Section 3.02 matching contributions to the Participant's
Company Matching Contributions Account within a reasonable time after
discovery of the error to the extent necessary, and allowed by law, to
correct the error as long as the Section 3.02 matching contributions
when averaged over the Plan Year equal the amount of contributions
required under Section 3.02. The Section 3.02 matching contributions
shall be adjusted for earnings or losses which would have accrued to the
Participant's Company Matching Contribution Account if the correct
Section 3.02 matching contribution had been made. Alternatively, the
Company may recover from the Trust Fund a Section 3.02 matching
contribution made as a result of a mistake of fact if the requirements
of the Trust are satisfied.
If the Company makes an incorrect Deferral on behalf of Participant as a
result of an error by the Company, then, notwithstanding the percentage
limitations set forth in Section 3.01, the Participant may elect to
increase or decrease his or her Deferrals to the extent necessary to
correct the error as long as his or her Deferrals when averaged over the
Plan Year do not exceed the percentage limitations set forth in Sections
3.01. The Deferrals made pursuant to this Section 3.09 shall not be
adjusted for earnings or losses which would have accrued to the
Participant's Accounts if the correct deposit had been made.
Notwithstanding the foregoing, any Deferrals and Company Section 3.02
matching contribution made pursuant to this Section 3.09 shall be
subject to the limitations set forth in Sections 3.03, 3.04, 3.05 and
3.06.
3.10 INCLUSION OF INELIGIBLE EMPLOYEE. If, in any Plan Year, a non Eligible
Employee is erroneously included as a Participant in the Plan and
discovery of such erroneous inclusion is not made until after a Deferral
for the Plan Year has been made, the Company may, if allowed by law,
recover the Deferral, and any earnings thereon, from the Trust Fund and
refund it to such Employee, when a distributable event under Code
Section 401(k) occurs. The Company may recover a Section 3.02 matching
contribution from the Trust Fund if and only if the requirements of the
Trust are satisfied.
ARTICLE 4
---------
INVESTMENT OF CONTRIBUTIONS AND
-------------------------------
VALUATION OF ACCOUNTS
---------------------
4.01 Participants' Accounts
----------------------
The Committee will establish and maintain in the name of each Partici-
pant a Company Matching Contributions Account, a Deferral Account, a
Frozen After Tax Account, and a Rollover Account. A Participant's
Accounts will be credited with contributions and forfeitures, charged
with withdrawals and distributions, and adjusted for investment results
as determined under the Plan and otherwise as set forth in the Plan.
4.02 Investment Funds
----------------
Upon enrollment or reenrollment, each Participant will have his Accounts
invested in the Trust Fund. The Trust Fund will consist of those
Investment Funds described in Schedule A attached to this Plan and
24<PAGE>
<PAGE>
incorporated as part of the Plan. Each Participant will have the right
upon enrollment and reenrollment to elect the Investment Fund(s) under
which future contributions to his Deferral Account, Rollover Account and
Frozen After Tax Account will be invested by delivering an investment
election form to the Committee, or its designee, at least fifteen (15)
days before an Entry Date. The election form will include the
percentage, subject to the restrictions in Schedule A, of future
contributions to be invested in each Investment Fund, with the total of
the percentages equal to one hundred percent. In addition, upon
providing appropriate notice in the manner described below, each
Participant will have the right as of any Entry Date to have all or any
part of his Deferral Account, Rollover Account or Frozen After Tax
Account transferred among and between the Investment Fund(s), subject to
the restrictions set forth in Schedule A.
A Participant may provide any notice required under the preceding
sentence by completing a written form approved by the Committee and
delivering it to the Committee or its delegate at least 15 days before
the last day of a calendar month. In addition, after a Participant has
satisfied the requirements for enrollment or reenrollment by such
delivery of a written form, the participant may make changes in the
investment of future contributions to his Deferral Account, Rollover
Account, and Frozen After Tax Account, as well as changes in the
investment of such accounts, by making an election by Voice Response on
or before the last business day of a calendar month. Except as provided
in Section 4.03 below, the Committee will exercise voting, tender, and
other rights with respect to the Investment Funds.
4.03 Investment of Company Matching Contributions
--------------------------------------------
The Committee will have the right to elect the Investment Funds under
which Contributions made to the Company Matching Contributions Account
of each Participant will be invested. This Plan may acquire and hold
qualifying securities of the Company. If all or part of a Participant's
Company Matching Contribution Account is invested in Company stock, such
Participant shall be entitled to the voting rights based on the value of
the stock in his Account. The Trustee will vote the Company stock that
is not voted by Participants in the same ratio that the stock is voted
by the Participants who exercised their voting rights. The Committee, in
a nondiscriminatory manner, will make any other necessary decisions
arising out of the acquisition or holding of Company securities.
4.04 Allocation of Investment Income on a Valuation Date
---------------------------------------------------
As of each Valuation Date, the Committee will determine the net
investment gain or loss, after adjustment for applicable expenses, if
any, of each Investment Fund since the preceding Valuation Date. The
net investment gain or loss of each such Fund will be allocated to each
Participant's Deferral Account, Rollover Account, and Frozen After Tax
Account in an amount bearing the same ratio to the net investment gain
or loss of that Fund as the portion of such Participant's accounts
invested in such Fund as of the preceding Valuation Date bears to the
total of all Participants' accounts invested in such Fund as of the
preceding Valuation Date.
25<PAGE>
<PAGE>
4.05 Limitation on Participant Investment Instructions
-------------------------------------------------
Notwithstanding anything else in this Plan to the contrary, the
Committee will, unless in its discretion it determines otherwise,
decline to carry out a Participant's investment instructions if such
instructions:
* Would result in a prohibited transaction described in ERISA
Section 406 or Code Section 4975;
* Would generate income that would be taxable to the Plan;
* Would not be in accordance with the Plan;
* Would cause a fiduciary to maintain the indicia of
ownership of any Plan assets outside the jurisdiction of
the district courts of the United States other than as
permitted by ERISA Section 404(b) and 29 CFR 2550.404b-1;
* Would jeopardize the Plan's tax qualified status under the
Code; or
* Could result in a loss in excess of a Participant's or
Beneficiary's account balance.
ARTICLE 5
---------
WITHDRAWALS, LOANS AND QUALIFIED
--------------------------------
DOMESTIC RELATIONS ORDERS
-------------------------
5.01 Withdrawal of Frozen After Tax Contributions
--------------------------------------------
Upon written notice to the Committee at least fifteen (15) days before a
Valuation Date and subject to Committee approval, a Participant may
withdraw, in cash, from his Frozen After Tax Account a minimum of five
hundred dollars ($500) or one hundred percent (100%) of the value of his
Frozen After Tax Account, if less, as of the next following Valuation
Date. A Participant will be permitted to make such a withdrawal once in
any twelve (12) month period.
5.02 Withdrawal of Company Matching Contributions
--------------------------------------------
Upon written notice to the Committee at least fifteen (15) days before a
Valuation Date and subject to Committee approval, a Participant may
withdraw, in a cash lump sum distribution, or Section 7.03 eligible
rollover distribution, from his Company Matching Contributions Account a
minimum of five hundred dollars ($500) or one hundred percent (100%) of
the value of his Company Matching Contributions Account, if less, as of
the next following Valuation Date. A Participant will be permitted to
make such a withdrawal only if he has made Deferrals pursuant to Section
3.01 for five (5) consecutive years and has previously withdrawn all
amounts available to him in accordance with Section 5.01. A Participant
will be permitted to make such a withdrawal only once in any twelve (12)
month period.
26<PAGE>
<PAGE>
5.03 Loans to Participants
---------------------
(a) The persons authorized to administer Plan loans shall be the
members of the Committee. Only Participants who are ERISA Section
3(14) parties in interest can request and receive a Plan loan. A
Participant's request for a Plan loan must be made to the Committee
or its designee.
(b) Upon written application to the Committee at least 15 days before a
Valuation Date and according to a uniform nondiscriminatory policy
for approval of loan applications (which nondiscriminatory policy
may be changed from time to time as the Committee may deem
appropriate), the Committee may direct the Trustee to make a loan
or loans, in cash, to a Participant from the Participant's Deferral
Account. The loan request must be for an amount at least equal to
one thousand dollars ($1,000) and when added to the outstanding
balance of all other loans from the Plan shall not exceed the
lesser of:
(i) $50,000, reduced by the excess (if any) of (1) the highest
outstanding balance of loans from the Plan (and any
qualified plan of the Company or an Affiliated Company)
during the 12 months ending on the day before the date on
which the loan was made over (2) the outstanding balance of
loans from the Plan (and any qualified plan of the Company
or an Affiliated Company) on the date on which the loan was
made, or
(ii) one-half the value of the vested portion of the
Participant's Accounts.
(c) The Participant shall pledge no more than one-half of the value of
the then Vested portion of his Plan Accounts as security for the
repayment of the loan.
(d) The Participant shall execute a promissory note (to be provided by
the Committee or its designee) evidencing his obligation to repay
his loan from the Plan.
(e) With respect to any loan, the Participant shall execute a consent
to the repayment of his loan by withholding payroll and the Company
shall pay to Trustee the withheld amount.
(f) Installment payments on a Plan loan shall be made not less
frequently than as payroll is paid to the borrowing Participant,
and in all circumstances not less frequently than quarterly, in
installments of principal and interest.
(g) No Plan loan shall extend over a period greater than five (5)
years.
(h) Interest shall be charged on any Plan loan at a rate equaling two
percent (2%) plus the prime rate of interest. The prime rate of
interest shall be the prime rate most recently published in the
Wall Street Journal prior to the making of the loan.
(i) In the event the Participant fails to repay all or any portion of
Plan loan or loans when the same become due and payable, the loan
shall be in default and the Trustee may (in addition to any other
legal remedies the Trustee may have) when a distribution event
occurs, deduct the unpaid amount of such loan, plus accrued
interest thereon, from the Vested portion of the Participant's Plan
Accounts.
27<PAGE>
<PAGE>
(j) If the Committee authorizes a Plan loan to a Participant requesting
a Plan loan, the Participant shall receive a Plan loan only if
he/she satisfies all the requirements applicable to him under this
Section 5.03.
(k) If twenty-five (25) or more Plan loans (or five (5) loans secured
by a dwelling) were made in the prior calendar year or have been
made in the current calendar year, the Trustee shall make any
applicable federal truth-in-lending disclosures.
(l) If a Participant requests and is granted a loan, a "Loan Fund" will
be established for such Participant. The loan amount will be
transferred to a Participant's Loan Fund from one or more of the
Participant's Investment Funds and will be disbursed from the Loan
Fund. Subject to such ordering rules as the Committee may
adopt,the Participant may specify in the loan request from which
Investment Fund(s) the loan amount is to be transferred. The
promissory note executed by the Participant will be deposited with
a custodian of Loan Funds from time to time appointed by the
Committee.
(m) Principal and interest payments on a Participant's loan will be
credited initially to the Participant's Loan Fund and will be
transferred afterward as soon as reasonably practicable to the
Participant's other Investment Funds in the ratio selected by such
Participant under Article 4. Any loss caused by nonpayment or other
default on a Participant's loan obligations will be borne solely by
the Participant's Loan Fund.
(n) A Participant may only have one loan of the type described in
subparagraph (b) above outstanding at any one time.
(o) A Participant may prepay the entire outstanding loan balance in
respect of any loan at any time without penalty.
(p) If the Trustee determines that a financing statement, or any other
document, should be filed under the Uniform Commercial Code the
Trustee shall make such filing.
5.04 Hardship Withdrawals
--------------------
(a) Hardship Withdrawal Administrative Rules
----------------------------------------
Subject to the approval of the Committee, a Participant may be
permitted to withdraw from the Participant's Deferral Account to
meet a financial hardship provided he files a written request for
such withdrawal with the Committee no later than 15 days before the
date for which such withdrawal is requested and the Committee will
make the distribution as soon as practicable. The withdrawal will
be divided among the Investment Funds in the same proportion as the
Participant's Deferral Account is invested in the Investment Funds.
A Participant may not withdraw any interest earned on his Deferral
Account. The Committee shall establish rules for determining the
value of the Participant's Deferral Account when a hardship
withdrawal is requested.
28<PAGE>
<PAGE>
(b) Hardship Withdrawal Conditions to be Met
----------------------------------------
The Committee will determine, in a nondiscriminatory manner, and in
accordance with applicable Treasury Regulations, whether a
Participant has a financial hardship. A distribution may be made on
account of financial hardship if the distribution is necessary in
light of immediate and heavy financial need of the Participant and
if such distribution is necessary to satisfy the need.
(i) A distribution will be deemed to be on account of
"immediate and heavy financial need" if it is required for:
(A) Code Section 213(d) medical expenses previously
incurred by the Participant, the Participant's Spouse,
or the Participant's Code Section 152 dependents or
necessary for these persons to obtain Code Section
213(d) medical care;
(B) The purchase (excluding mortgage payments), but not
the construction, repair, remodeling, refinancing, or
leasing of the Participant's principal residence;
(C) The payment of tuition and related educational fees
for the next twelve (12) months of post-secondary
education for the Participant, the Participant's
Spouse, or the Participant's children or other Code
Section 152 dependents;
(D) The need to prevent the eviction of the Participant
from his or her principal residence or the foreclosure
of the mortgage on the Participant's principal
residence; or
(E) Such other events that the Commissioner of the
Internal Revenue Service specifies, through the
publication of revenue rulings, notices, and other
documents of general availability, as giving rise to a
deemed immediate and heavy financial need.
(ii) The withdrawal described in subparagraph (i) must:
(A) Be in an amount not exceeding the amount of the need
arising under subparagraph (i); the amount of an
immediate and heavy financial need may include any
amounts necessary to pay any federal, state, or local
income taxes or penalties reasonably anticipated to
result from the distribution;
(B) Not be made until the Participant has obtained all
withdrawals, other than hardship withdrawals, and all
nontaxable loans (determined at the time of the loan)
that are currently available under all qualified and
nonqualified plans of the Company;
(C) Result in the Participant being suspended from making
Deferrals to this Plan, and all other qualified and
nonqualified plans of deferred compensation maintained
by the Company, for one year beginning on the date the
29<PAGE>
<PAGE>
Participant receives a hardship withdrawal pursuant to
this Section 5.04; and
(D) Result in the reduction of the Participant's maximum
Deferrals to this Plan (and all other plans maintained
by Company), for the Participant's tax year
immediately following the tax year in which the
Participant receives a withdrawal under this Section
5.04, to an amount not in excess of the Code Section
402(g) limit for such following tax year less the
amount of the Participant's Deferrals for the tax year
in which the Participant receives the hardship
withdrawal.
(iii) TIME OF DISTRIBUTION. A distribution under this Section
5.04 normally will be made within ninety (90) calendar days
of the Valuation Date occurring on or immediately following
the date on which the Committee receives the withdrawal
request. If a Participant successfully appeals a decision
of the Committee regarding a hardship withdrawal,
distribution normally will be made within ninety (90)
calendar days of the Valuation Date occurring on or
immediately following the decision on appeal. Distribution
will be in a single cash payment; provided, however, if all
or part of the distribution is a Section 7.03 Eligible
Rollover Distribution, the distribution shall be made in
one of the three following forms that the Participant must
elect among:
(A) A single cash payment;
(B) If allowed by Section 7.03, a direct rollover of the
Eligible Rollover Distribution; or
(C) If allowed by Section 7.03, a partial cash payment and
a direct rollover of the remainder of the eligible
rollover distribution.
Effective January 1, 1994, if a distribution is one to
which Code Sections 401(a)(11) and 417 do not apply, such
distribution may commence less than thirty (30) days after
the notice required under Treasury Regulation Section
1.411(a)-11(c) is given, provided that:
(A) The Committee clearly informs the Participant that the
Participant has a right to a period of at least thirty
(30) days after receiving the notice to consider the
decision of whether or not to elect a distribution
(and, if applicable, a particular distribution
option); and
(B) The Participant, after receiving the notice,
affirmatively elects a distribution.
(iv) ADMINISTRATIVE BURDEN. A withdrawal by a Participant shall
not impose undue administrative burden upon the Company,
the Trustee or the Committee, or in any way adverse the
rights or interests of other Participants. Undue
administrative burden will be subject to review and
30<PAGE>
<PAGE>
determination by the Committee. A Participant shall not be
permitted to make up any amounts withdrawn.
5.05 Qualified Domestic Relations Orders
-----------------------------------
(a) PERIOD OF DETERMINATION. Pending its determination of whether a
domestic relations order is a Qualified Domestic Relations Order,
the Committee shall direct the Trustee to segregate in a separate
account or escrow account, any amount that would have been payable
to the Alternate Payee during the determination period if the order
had been determined to be a Qualified Domestic Relations Order.
The separate account or escrow account will be adjusted for
earnings and losses thereon and will be paid to the Alternate Payee
if the determination that the order is a Qualified Domestic
Relations Order is made within an eighteen-month period beginning
with the date on which the first payment would be required to be
made under the domestic relations order. If the Committee
determines that the order is not a Qualified Domestic Relations
Order or if the issue is not resolved within the eighteen-month
period, the Committee shall direct the Trustee to pay the account,
adjusted for earnings and losses thereon, to the person who would
have been entitled to the amounts if there were no order. Any
determination that an order is a Qualified Domestic Relations Order
made after the close of the eighteen-month period shall be applied
prospectively only.
(b) PAYMENT. An Alternate Payee's interest in the Vested amount in a
Participant's Accounts, to the extent possible, shall be segregated
into a separate subaccount. If consented to in writing by the
Alternate Payee, the separate subaccount shall be distributed in a
lump sum or, if all or part of the distribution is a Section 7.03
Eligible Rollover Distribution and a direct rollover is allowed by
Section 7.03, a direct rollover at the time specified in the
Qualified Domestic Relations Order even when the order requires
payment to be made to the Alternate Payee before the Participant's
earliest retirement age as defined in Code Section 414(p)(4).
Other matters, including the allocation of future Deferrals,
Company Matching Contributions, forfeitures and Trust Fund earnings
or losses to the segregated subaccount, shall be governed by the
procedures adopted by the Committee hereunder and by the terms of
the Qualified Domestic Relations Order; provided, however, that the
Participant's Accounts, including any segregated subaccount, shall
not receive a greater or lesser aggregate allocation than if the
segregated subaccount had not been established. If the Committee
makes a decision under this Section 5.05 which affects a
Participant's or Alternate Payee's Accounts, the Committee shall
notify the Trustee, the affected Participant and the Alternate
Payee.
31<PAGE>
<PAGE>
ARTICLE 6
---------
VESTING OF RETIREMENT, DISABILITY, DEATH,
-----------------------------------------
AND TERMINATION OF EMPLOYMENT BENEFITS
--------------------------------------
6.01 Vesting Due to Attainment of Normal Retirement Age and Normal Retirement
------------------------------------------------------------------------
Benefits
--------
The Company Matching Contributions Account of a Participant will become,
if it has not already done so, one hundred percent (100%) Vested on the
date the Participant attains his Normal Retirement Age. A Participant
is always fully Vested in his Deferral Amount, Frozen After-Tax Account,
Rollover Account. A Participant's retirement benefit shall be the
amount credited to his Accounts as of the Valuation Date preceding
distribution of such benefit plus Section 3 contributions to such
Accounts on behalf of the Participant after such Valuation Date.
6.02 Vesting Due to Disability and Disability Benefits
-------------------------------------------------
The Company Matching Contributions Account of a Participant whose
employment with the Company is terminated because he is Permanently and
Totally Disabled will become, if it has not already done so, one hundred
percent (100%) Vested on the date the Participant's employment
terminates due to the Participant becoming Permanently and Totally
Disabled. A Participant is always fully Vested in his Deferral Account,
Frozen After-Tax Account, and Rollover Account. A Participant's
disability benefit shall be the amount credited to his Accounts as of
the Valuation Date preceding distribution of such benefit plus Section 3
contributions to such Accounts on behalf of the Participant after such
Valuation Date.
6.03 Vesting Due to Death and Death Benefits
---------------------------------------
The Company Matching Contributions Account of a Participant whose
employment with the Company is terminated due to death will become, if
it has not already done so, one hundred percent (100%) Vested on the
Participant's date of death. A Participant is always fully Vested in
his Deferral Account, Frozen After-Tax Account, and Rollover Account. A
Participant's death benefit shall be the amount credited to his Accounts
as of the Valuation Date preceding distribution of such benefit plus
Section 3 contributions to such Accounts on behalf of the Participant
after such Valuation Date.
6.04 Vesting upon Termination of Employment and Termination of Employment
--------------------------------------------------------------------
Benefits
(a) The benefit payable under the Plan in the case of a Participant
whose employment with the Company is terminated for any reason
other than described in sections 6.01, 6.02, or 6.03 will be equal
to the sum of (i) the Vested value of his Accounts on the Valuation
Date immediately preceding payment of such benefits, and (ii)
Article 3 subsequent contributions to the Accounts on behalf of the
Participant. The Vested value of a Participant's Accounts will be
equal to:
(i) The Participant's Deferral Account value; plus
(ii) The Participant's Frozen After Tax Account value; plus
32<PAGE>
<PAGE>
(iii) The Participant's Rollover Account value; plus
(iv) The Vested portion of Participant's Company Matching
Contributions Account determined as follows:
Years of Service Vested Percentage
---------------- -----------------
Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 and over 100%
For purposes of Section 6.04, the term "Year of Service" is a whole year
of service which is twelve (12) months of Service (thirty (30) days is
deemed to be a month in the case of the aggregation of fractional
amounts).
6.05 Forfeitures
-----------
The non-Vested portion of a Participant's Company Matching Contributions
Account, if any, will be forfeited upon the earlier to occur of (a) the
date the Participant incurs his fifth consecutive one (1) year Period of
Severance or (b) the date that the Vested portion of the Participant's
Company Matching Contributions Account is paid out according to the
following paragraph. Any such forfeitures will be applied first to
reinstate the forfeited portions of Company Matching Contributions
Accounts of rehired Participants and lost and missing Participants and
Beneficiaries as described in subsections 6.06(a) and 12.06. If the
amount of forfeitures available is insufficient to reinstate the
accounts required to be reinstated for certain rehired Participants, the
Company will make an additional contribution in an amount required to
reinstate such accounts fully.
If, upon Participant's termination of employment, the vested amount in
his Participant"s Accounts does not exceed $3,500 (or any other amount
as may, by regulations of the Secretary of the Treasury, be established
as the maximum amount that may be paid out in such event without the
Participant's consent), the Committee shall direct the Trustee to
distribute, before the close of the second Plan Year following the Plan
Year in which the Participant's termination of employment occurred, the
then vested amount in such accounts to the Participant. If the then
vested amount in a Participant's Accounts exceeds $3,500, the
Participant may file with the Committee a written request and consent to
the payment of the entire vested amount of such Accounts. If such a
filing is made, the Committee shall direct the Trustee to pay out such
amount in a distribution before the close of the second Plan Year
following the Plan Year in which the Participant's termination of
employment occurred.
6.06 Reinstatement of Forfeited Accounts
-----------------------------------
(a) With respect to a Participant who receives a distribution pursuant
to Article 6.05 and whose Termination Date occurs before he is one
hundred percent Vested in his Company Matching Contributions
Account, the Participant may repay to the Plan the full amount
distributed to him from such account; provided, however, that the
33<PAGE>
<PAGE>
repayment must occur before the earlier of: (a) the date five (5)
years after the date he is subsequently re-employed by the Company,
or (b) the day the Participant incurs his fifth consecutive one (1)
year Period of Severance commencing after the date of the
distribution. After such repayment, the balance in the
Participant's Company Matching Contribution Account shall be
adjusted to the value of the balance in his Company Matching
Contribution Account on the date the repaid distribution was
originally made to the Participant. The difference between the
amount repaid by the Participant and the balance in his Company
Matching Contribution Account on the date the repaid distribution
was originally made shall be funded by all unallocated forfeitures
incurred in the Plan Year of repayment to the extent necessary to
reinstate the Participant's Company Matching Contribution Account
in full, and to the extent such forfeitures are inadequate, by
additional Company contributions.
(b) With respect to a Participant who terminates employment without
being one hundred percent Vested in his Company Matching
Contributions Account and who is reemployed after incurring five
(5) consecutive one (1) year Periods of Severance, Years of Service
subsequent to his reemployment will not increase the Vested
percentage of the amount in his Company Matching Contributions
Account as of such prior termination of employment.
ARTICLE 7
---------
DISTRIBUTION OF BENEFITS
------------------------
7.01 Form of Distribution
--------------------
Amounts distributable pursuant to Article 6 will be distributed as
follows:
(a) If any Investment Fund is invested in whole or in part in Common
stock of the Company, distributions from such Investment Fund will
be made in full shares of common stock of the Company plus cash in
lieu of any fractional share. Upon written application to the
Committee a Participant or, if applicable, his Beneficiary may
request a single sum payment entirely in cash.
(b) Distribution from other Investment Funds will be made in a single
sum payment in cash.
7.02 Timing of Distributions
-----------------------
(a) Distributions under the Plan pursuant to Article 6 will begin as
soon as practicable, but not later than sixty days following the
end of the Plan Year in which the Participant attains age sixty-five
(65) or terminates employment, if later. If a Participant is
rehired by the Company before his benefit is distributed by the
Trustee, such Participant will not be entitled to receive the
distribution until he again terminates his employment with the
Company.
(b) If the Vested value of the Participant's Accounts exceeds $3,500
dollars or any other amount as may, by regulations of the Secretary
34<PAGE>
<<PAGE>
of the Treasury, be established as the maximum amount that may be
paid out in such event without the Participant's consent), the
Participant's written consent is required for a distribution
commencing before he attains age sixty five (65). If a Participant
postpones his distribution to age sixty five (65), he will continue
to share in the allocation of investment income pursuant to section
4.04 up to the earlier of his Normal Retirement Age or the
Valuation Date preceding the date he makes a written election to
receive his nonforfeitable Accounts.
(c) Upon written application to the Committee an Eligible Employee who
is a Participant and who has attained his Normal Retirement Age may
elect to defer receipt of his distribution to a date not later than
April 1 following the Plan Year in which the Participant attains
age 70-1/2. However, a Participant who elects to defer receipt of
benefits may not do so to the extent that he is creating a death
benefit that is more than incidental.
(d) The benefit payable to a Beneficiary will be paid no later than 5
years after the Participant's death.
(e) Notwithstanding anything in this Plan to the contrary, all Plan
distributions shall be determined and made in accordance with Code
Section 401(a)(9) and the Treasury Regulations thereunder including
the minimum distribution incidental benefit requirement of Treasury
Regulation Section 1.401(a)(9)-2.
7.03 Eligible Rollover Distributions.
-------------------------------
Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Article 7, effective
for distributions made on or after January 1, 1993, a distributee may
elect, at the time and in the manner prescribed by the Committee, to
have any portion of an eligible rollover distribution paid directly to
an eligible retirement plan specified by the distributee in a direct
rollover. For purposes of this Section, the following definitions shall
apply.
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 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 Code Section 401(a)(9) of the Code;
and the portion of any distribution that is not includable in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); and provided further
that the determination of what constitutes an "eligible rollover
distribution" shall at all times be made in accordance with the current
rules of Code Section 402(c), which shall be controlling for this
purpose.
An "eligible retirement plan" is an individual retirement account
described in Section 408(a), an individual retirement annuity described
in Code Section 408(b), an annuity Plan described in Code Section
403(a), or a qualified Trust described in Code Section 401(a) that
accepts the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution to the surviving Spouse,
an "eligible retirement plan" is an individual retirement account or
individual retirement annuity.
35<PAGE>
<PAGE>
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 are distributees with regard
to the interest of the Spouse or former Spouse.
A "direct rollover" is a payment by the Plan to the eligible retirement
plan specified by the distributee.
In prescribing the manner of making elections with respect to eligible
rollover distributions, as described above, the Committee may provide
for the uniform, nondiscriminatory application of any restrictions
permitted under applicable Sections of the Code and related rules and
regulations, including a requirement that a distributee may not elect a
partial direct rollover in an amount less than $500 and a requirement
that a distributee may not elect to make a direct rollover from a single
eligible rollover distribution to more than one eligible retirement
plan. Moreover, if a distribution is one to which Sections 401(a)(11)
and 417 of the Code do not apply, such distribution may commence less
than 30 days after the notice required under Section 1.411(a)-11(c) of
the Income Tax Regulations is given, provided that:
(1) The Plan Administrator clearly informs the Participant that the
Participant has a right to a period of at least 30 days after
receiving the notice to consider the decision of whether or not to
elect a distribution (and, if applicable, a particular distribution
option), and
(2) The Participant, after receiving the notice, affirmatively elects a
distribution.
ARTICLE 8
---------
PLAN ADMINISTRATION
-------------------
8.01 Appointment of Committee
------------------------
The Plan shall be administered by a Committee appointed by the President
of the Company, subject to the approval of the Bord. The Committee
shall be composed of no more than five and no fewer than three members
who shall hold office at the pleasure of the Board. Such members may,
but need not, be Employees. Any person appointed a member of the
Committee shall signify acceptance by filing a written acceptance with
the Secretary of the Committee. Any member of the Committee may resign
by delivering a written resignation to the President of the Company and
the Secretary of the Committee. Such resignation shall be effective no
earlier than the date of the written notice.
8.02 Powers and Duties
-----------------
The Committee will have full power to administer the Plan and shall
determine questions of interpretation or policy. The Committee's
construction or determination shall be final and binding on all parties.
The Committee may correct any defect, supply any omission, or reconcile
any inconsistency in the manner and to the extent deemed necessary or
advisable to carry out the purpose of this Plan. The Committee shall
have all powers necessary or appropriate to accomplish the Committee's
duties under this Plan. The Committee is the named fiduciary within the
meaning of Section 402(a) of ERISA for purposes of Plan administration.
36<PAGE>
<PAGE>
The Committee's powers and duties, unless properly delegated, will
include, but will not be limited to:
(a) Allocating fiduciary responsibilities, other than Trustee
responsibilities as defined in ERISA Section 405(c), among the
named fiduciaries and to designate one or more other persons to
carry out fiduciary responsibilities.
(b) Designating agents to carry out responsibilities relating to the
Plan, other than fiduciary responsibilities.
(c) Deciding factual and nonfactual questions relating to eligibility,
Service, and amounts of benefits.
(d) Deciding disputes that may arise with regard to the rights of
Employees, Participants and their legal representatives, or
Beneficiaries under the terms of the Plan. Decisions by the
Committee will be deemed final in each case.
(e) Obtaining information from the Company with respect to its
Employees as necessary to determine the rights and benefits of
Participants under the Plan. The Committee may rely conclusively
on such information furnished by the Company.
(f) Compiling and maintaining all records necessary for the Plan.
(g) Authorizing the Trustee to make payment of all benefits as they
become payable under the Plan.
(h) Engaging such legal, administrative, consulting, actuarial,
investment, accounting, and other professional services as the
Committee deems proper.
(i) Adopting rules and regulations for the administration of the Plan
that are not inconsistent with the Plan. The Committee may, in a
nondiscriminatory manner, waive the timing requirements of any
notice or other requirements described in the Plan. Any such
waiver will not obligate the Committee to waive any subsequent
timing or other requirements for other Participants.
(j) Performing other actions provided for in other parts of this Plan.
(k) Upon receipt of a domestic relations order, notifying the
Participant and the Alternate Payee (which notice shall include
this Plan's procedure for determining whether the order is a
Qualified Domestic Relations Order) of the receipt of the order;
and within a reasonable time, determining whether the order
constitutes a Qualified Domestic Relations Order by: (a) personal
review of the order; (b) receipt of an opinion of counsel; (c)
seeking judicial interpretation and determination; or (d) any
combination or all of the foregoing; and, upon said determination,
communicating its decision in writing to the Participant, the
Alternate Payee, and if the decision affects a Participant's or
Alternate Payee's Accounts, the Trustee, as soon as practicable.
37<PAGE>
<PAGE>
8.03 Actions by the Committee
------------------------
A majority of the members composing the Committee at any time will
constitute a quorum. The Committee may act at a meeting, or in writing
without a meeting, by the vote or assent of a majority of its members.
The Committee will elect one of its members as Chairperson and may elect
a Secretary who may, but need not, be a member of the Committee. The
Secretary will record all action taken by the Committee. The Committee
will have authority to designate in writing one of its members or any
other person as the person authorized to execute papers and perform
other ministerial duties on behalf of the Committee.
8.04 Interested Committee Members
----------------------------
No member of the Committee will participate in an action of the
Committee on a matter which applies solely to that member. Such matters
will be determined by a majority of the remainder of the Committee.
8.05 Investment Manager
------------------
The Committee, by action reflected in its minutes, may appoint one or
more investment managers, as defined in Section 3(38) of ERISA, to
manage all or a portion of the assets of the Plan or to select
Investment Funds. An investment manager will discharge its duties in
accordance with applicable law and in particular in accordance with
Section 404(a)(1) of ERISA. An investment manager, when appointed, will
have full power to either manage the assets of the Plan for which it has
responsibility or to select Investment Funds, and neither the Company
nor the Committee will thereafter have responsibility for the management
of such assets or, if applicable, selecting Investment Funds.
8.06 Indemnification
---------------
The Company, by this adoption, indemnifies and holds the members of the
Committee, jointly and severally, harmless from the effects and
consequences of their acts, omissions, and conduct in their official
capacities, except to the extent that the effects and consequences
result from their own willful misconduct, breach of good faith, or gross
negligence in the performance of their duties. The foregoing right of
indemnification will not be exclusive of other rights to which each such
member may be entitled by any contract or other instrument or as a
matter of law.
8.07 Conclusiveness of Action
------------------------
Any action on matters within the discretion of the Committee will be
conclusive, final, and binding upon all Participants in the Plan and
upon all persons claiming any rights, including Beneficiaries.
8.08 Payment of Expenses
-------------------
The members of the Committee will serve without compensation for their
services. The compensation or fees of accountants and other specialists
and any other costs of administering the Plan or Trust Fund will be paid
by the Trust Fund unless paid by the Company in its discretion.
38<PAGE>
<PAGE>
8.09 Claims for Benefits
-------------------
Any claim for benefits under this Plan shall be made in writing by a
Participant or a Beneficiary, or his or her authorized representative,
to the Committee on forms provided by the Committee. If the claim for
benefits is wholly or partially denied, the Committee, within ninety
(90) calendar days after receipt of the claim, shall notify the
Participant or the Beneficiary of the denial of the claim. The notice
of denial: (a) shall be in writing; (b) shall be written in a manner
calculated to be understood by the Participant or the Beneficiary; and
(c) shall contain: (1) the specific reason or reasons for denial of the
claim; (2) a specific reference to the Plan provisions upon which the
denial is based; (3) a description of any additional material or
information necessary to perfect the claim, along with an explanation of
why the material or information is necessary; and (4) an explanation of
the claim review procedure.
The ninety (90) calendar day period, under special circumstances, may be
extended up to an additional ninety (90) calendar days upon written
notice of the extension to the Participant or the Beneficiary which
notice shall specify the special circumstances and the extended date of
the decision. Notice of the extension must be given prior to expiration
of the initial ninety (90) calendar day period. If no notice of
decision is given within the periods specified above, the claim shall be
deemed to have been denied on the last day of the applicable ninety (90)
or one hundred eighty (180) day period and the Participant or the
Beneficiary, or his or her authorized representative, may file a request
for review as provided in Section 8.10.
8.10 Request for Review of Denial
----------------------------
Within sixty (60) days after the receipt by the Participant or
Beneficiary of a claim denial (or after the date a claim is deemed
denied), the Participant or the Beneficiary has a maximum of sixty (60)
calendar days to file a written request that the Committee conduct a
full and fair review of the denied claim. The claimant, or his
authorized representative, may review pertinent documents and submit
issues and comments in writing to the Committee in connection with the
review.
8.11 Decision on Review of Denial
----------------------------
The Committee shall provide the Participant or the Beneficiary with a
final written decision on the review of the denial within sixty (60)
days after the receipt of the aforesaid request for review, except that
if there are special circumstances (such as the need to hold a hearing,
if necessary) which require an extension of time for processing, the
aforesaid sixty (60) day period shall, upon written notice to the
Participant or Beneficiary, be extended an additional sixty (60) days.
The decision on review of the denial shall: (a) be written in a manner
calculated to be understood by the Participant or the Beneficiary; (b)
include the specific reason or reasons for the decision; and (c) contain
a specific reference to the Plan provisions upon which the decision is
based. If the decision on review is not delivered to the Participant or
the Beneficiary within the periods specified, the claim shall be
considered denied on review on the last day of the applicable sixty (60)
or one hundred twenty (120) day review period.
39<PAGE>
<PAGE>
8.12 Notice of Time Limits
---------------------
When a Participant or a Beneficiary files a claim, the Committee shall
notify him or her of the claim and review procedure including the time
periods involved.
ARTICLE 9
---------
AMENDMENT, TERMINATION, AND MERGER OF THE PLAN
----------------------------------------------
9.01 Right to Amend the Plan
-----------------------
The Board will have the right at any time and from time to time to adopt
a written amendment, amending in whole or in part, any provision of the
Plan. The Committee shall also have the power to adopt written
amendments to the Plan that (i) are necessary or appropriate to satisfy
the Code or ERISA, and all regulations thereto, or (ii) do not increase
the rate of Section 3.02 Company Matching Contribution or costs to the
Plan. No such amendment shall increase the duties or responsibilities
of the Trustee without the Trustee's written consent. No amendment will
be made to this Plan that attempts to transfer any part of the corpus or
income of the Trust Fund to purposes other than the exclusive benefit of
Participants and their Beneficiaries, nor may any amendment disturb the
Vested rights of any Participant.
9.02 Right to Terminate the Plan
---------------------------
The Board will have the right to adopt a written amendment to terminate
the Plan in whole or in part at any time. To the extent required under
the Code, upon termination, partial termination, or complete
discontinuance of contributions to the Plan, all Accounts of affected
Participants will become one hundred percent (100%) Vested.
9.03 Plan Merger and Consolidation
-----------------------------
If the Plan is merged or consolidated with any other Plan, or if the
assets or liabilities of the Plan are transferred to any other Plan,
each Participant will be entitled to a benefit immediately after the
merger, consolidation, or transfer, determined as if the Plan had then
terminated, at least equal to the benefit to which the Participant would
have been entitled had the Plan terminated immediately before such
merger, consolidation, or transfer.
ARTICLE 10
----------
TRUST FUND AND THE TRUSTEE
--------------------------
10.01 Selection of Trustee
--------------------
The Board will select a Trustee to hold the Trust Fund in accordance
with the terms of an agreement. Except to the extent otherwise provided
in this Plan, responsibility for the management, investment, and
disposition of Plan assets will belong to the Trustee except to the
extent the Committee reserves such responsibility for itself or appoints
40<PAGE>
<PAGE>
an Investment Manager pursuant to Section 8.05. To the extent the
Committee or Investment Manager is given this responsibility, the
Trustee will not be liable by reason of its taking or refraining from
taking any action at the direction of the Committee or Investment
Manager. If the Trustee manages and invests the Trust Fund, the
agreement with the Trustee may include a provision authorizing the Trust
Fund or a portion thereof to be invested in a joint or associated Trust
Fund or Common Trust Fund.
The Board may, from time to time, adopt a resolution causing a change in
Trustees or the termination of the Trust and invest Plan assets in any
other method acceptable under ERISA.
ARTICLE 11
----------
TOP-HEAVY PLAN REQUIREMENTS
---------------------------
11.01 General Rule
------------
For any Plan Year for which this Plan is a Top-Heavy Plan, as defined in
Section 11.07, and despite any other provisions of this Plan to the
contrary, this Plan will be subject to the provisions of this Article
11.
11.02 Vesting Provisions
------------------
Each Eligible Employee who has completed an Hour of Service during the
Plan Year in which the Plan is Top-Heavy will have the Vested portion of
his Company Matching Contributions Account determined according to
Section 6.04.
11.03 Minimum Contribution Provision
------------------------------
Each Eligible Employee who is a Non-Key Employee, as defined in Section
11.09 and is employed on the last day of the Plan Year even if such
Eligible Employee has failed to complete one thousand (1,000) Hours of
Service during such Plan Year or was excluded from the Plan for failing
to make Deferrals to the Plan, will be entitled to have the aggregate of
Contributions and forfeitures allocated to his Company Matching
Contributions Account and Deferral Account equal not less than three
percent (3%) (the "Minimum Contribution Percentage") of his
Compensation. This Minimum Contribution Percentage will be reduced for
any Plan Year to the percentage at which such contributions (including
forfeitures) are made or are required to be made under the Plan for the
Plan Year for the Key Employee for whom such percentage is the highest
for such Plan Year. For this purpose, the percentage with respect to a
Key Employee, as defined in Section 11.08, will be determined by
dividing such contributions (including forfeitures) made for such Key
Employee by the amount of his total Compensation for the Plan Year.
Contributions considered under the first paragraph of this Section 11.03
will include the contributions described above under this Plan and
contributions under all other defined contribution Plans required to be
included in an Aggregation Group (as defined in Section 11.07), but will
not include any Plan required in such aggregation group if the Plan
enables a defined contribution Plan required to be included in such
group to meet the requirements of the Code prohibiting discrimination as
41<PAGE>
<PAGE>
to contributions or benefits in favor of Employees who are officers,
shareholders, or the highly compensated or prescribing the minimum
participation standards.
Contributions considered under this Section will not include any
contributions under the Social Security Act or any other federal or
state law.
11.04 Limitation on Compensation
--------------------------
A Participant's annual Compensation taken into account under this
Article 11, for purposes of computing benefits under this Plan will be
as indicated in Article I.
11.05 Limitation on Contributions
---------------------------
In the event that the Company also maintains a defined benefit Plan
providing benefits on behalf of Participants in this Plan, one of the
two following provisions will apply:
(a) If for the Plan Year this Plan would not be a "top-heavy" Plan as
defined in section 11.07 below if "ninety percent (90%)" were
substituted for "sixty percent (60%)," then section 11.03 will
apply for such Plan Year as if amended so that the "four percent
(4%)" were substituted for "three percent (3%)."
(b) If for the Plan Year this Plan either
(i) is subject to Section 11.05(a) but does not provide the
additional minimum contribution as required therein or
(ii) would continue to be a "Top-Heavy Plan" as defined in
section 11.07 if "ninety percent (90%)" were substituted
for "sixty percent (60%)," then the denominator of both the
Defined Contribution Plan Fraction and the Defined Benefit
Plan Fraction will be calculated as set forth in section
3.04(c) for Plan Year by substituting "one" for "one and
twenty-five hundredths" in each place such figure appears,
except with respect to any individual for whom there are no
Company Matching Contributions or forfeitures allocated or
any accruals for such individual under the Defined Benefit
Plan.
11.06 Coordination with Other Plans
-----------------------------
In the event that the Company maintains a Top-Heavy Defined Benefit Plan
under which contributions or benefits are provided on behalf of a
Participant in this Plan, such other Plan will be treated as a part of
this Plan pursuant to applicable principles set forth in Revenue Ruling
81-202 in determining whether the Plans are providing benefits at least
equal to the minimum benefit required under the Defined Benefit Plan.
If the Plan is subject to section 11.05(b) but the Company does not
substitute "one" for "one and twenty-five hundredths" as required by
section 11.05(b), the applicable percentage under the Defined Benefit
Plan will be increased by one percentage point (up to a maximum of ten
percentage points).
If the Company maintains more than one Plan, non-key Employees covered
under only a Defined Benefit Plan will receive the defined benefit
42<PAGE>
<PAGE>
minimum. Non-key Employees covered only by a Defined Contribution Plan
will receive the defined contribution minimum. Where all Plans involved
are Defined Contribution Plans, only this Plan need provide the minimum
contribution for all Participants of the required aggregation group.
11.07 Determination of Top-Heavy Status
---------------------------------
The Plan will be a Top-Heavy Plan for any Plan Year if, as of the
Determination Date (as defined in subsection (b) below, the aggregate
value of Accounts (as defined in subsection (d) below) under the Plan
for all Key Employees (as defined in Section 11.08 below) exceeds 60
percent of the value of the aggregate of the Accounts for all Employees,
or if this Plan is required to be in an Aggregation Group (as defined in
subsection (a) below) which for such Plan Year is a Top-Heavy Group (as
defined in subsection (c) below).
For purposes of this Article, the capitalized words have the following
meanings:
(a) "Aggregation Group" means the group of Plans, if any, that includes
both the group of Plans required to be aggregated and the group of
Plans permitted to be aggregated.
(i) The group of Plans required to be aggregated (the "required
aggregation group") includes:
(A) Each Plan of the Affiliated Company in which a Key
Employee is a Participant, (in the Plan year
containing the determination date or any of the four
preceding years) including Collectively Bargained
Plans, and
(B) Each other Plan, including Collectively Bargained
Plans, of the Affiliated Company that enables a Plan
in which a Key Employee is a Participant to meet the
requirements of the Code prohibiting discrimination as
to contributions or benefits in favor of Employees who
are officers, shareholders, or highly compensated or
prescribing the minimum participation standards.
(ii) The group of Plans that are permitted to be aggregated (the
"permissive aggregation group") includes the required
aggregation group plus one or more Plans of the Affiliated
Company that is not part of the required aggregation group
and that the Committee certifies as a Plan within the
permissive aggregation group. Such Plan or Plans may be
added to the permissive aggregation group only if, after
the addition, the aggregation group as a whole continues
not to discriminate as to contributions or benefits in
favor of officers, shareholders, or the highly compensated
and to meet the minimum participation standards under the
Code.
(b) "Determination Date" means for any Plan Year the last day of the
immediately preceding Plan Year. However, for the first Plan Year
of this Plan, Determination Date means the last day of that Plan
Year.
43<PAGE>
<PAGE>
(c) "Top-Heavy Group" means the Aggregation Group, if as of the appli-
cable Determination Date, the sum of the present value of the
cumulative accrued benefits for Key Employees under all Defined
Benefit Plans included in the Aggregation Group plus the aggregate
of the Accounts of Key Employees under all Defined Contribution
Plans included in the Aggregation Group exceeds sixty percent of
the sum of the present value of the cumulative accrued benefits for
all Employees, excluding former Key Employees, under all such
Defined Benefit Plans plus the aggregate Accounts for all
Employees, excluding former Key Employees, under all such Defined
Contribution Plans. If the Aggregation Group that is a Top-Heavy
Group is a required aggregation group, each Plan in the group will
be a Top-Heavy Plan. If the aggregation group that is a Top-Heavy
Group is a permissive aggregation group, only those Plans that are
part of the required aggregation group will be treated as Top-Heavy
Plans. If the Aggregation Group is not a Top-Heavy Group, no plan
within such group will be a Top-Heavy Plan.
(d) "Value of Accounts" means the sum of (i) the value, as of the most
recent Valuation Date occurring within the twelve months ending on
the Determination Date, of the Participant's Accounts and (ii)
contributions due to such Accounts as of the Determination Date,
minus (iii) withdrawals from such Accounts since such Valuation
Date.
(e) In determining whether this Plan constitutes a Top-Heavy Plan, the
Committee will make the following adjustments:
(i) When more than one Plan is aggregated, the Committee will
determine separately for each Plan as of each Plan's
Determination Date the present value of the accrued
benefits or account balance. The results will then be
aggregated by adding the results of each Plan as of the
Determination Dates for such Plans that fall within the
same calendar year.
(ii) In determining the present value of the cumulative accrued
benefit or the amount of the account of any Employee, such
present value or account will include the amount in dollar
value of the aggregate distributions made to such Employee
under the applicable Plan during the 5-year period ending
on the Determination Date unless reflected in the value of
the accrued benefit or account balance as of the most
recent Valuation Date. The amounts will include
distributions to Employees representing the entire amount
credited to their Accounts under the applicable Plan.
(iii) Further, in making such determination, such present value
or such account will not include any rollover contribution
(or similar transfer) initiated by the Employee.
(f) In any case where an individual is a Non-Key Employee with respect
to an applicable Plan but was a Key Employee with respect to such
Plan for any previous Plan Year, any-accrued benefit and any
account of such Employee will be altogether disregarded. For this
purpose, to the extent that a Key Employee is deemed to be a Key
Employee if he or she met the definition of Key Employee within any
of the four preceding Plan Years, this provision will apply
following the end of such period of time.
44<PAGE>
<PAGE>
(g) Further, in making such determination, if any Participant has not
performed any Service for the Company at any time during the five-year
period ending on the Determination Date, any accrued benefit or the
account for such Participant will not be included.
11.08 Definition of Key Employee
--------------------------
"Key Employee" means any Employee (including a former or deceased
Employee) under this Plan who, at any time during the Plan Year in
question or during any of the four preceding Plan Years, is or was one
of the following:
(a) An officer of the Company having Annual Compensation of fifty
percent or more of the amount in effect under code Section
415(b)(1)(A) for any such Plan Year. Whether an individual is an
officer will be determined by the Company on the basis of all the
facts and circumstances, such as an individual's authority, duties,
and term of office, not on the mere fact that the individual has
the title of an officer. For any such Plan Year, officers will be
no more than the fewer of:
(i) 50 Employees; or
(ii) The greater of 3 Employees or 10 percent of the Employees.
For this purpose, the highest-paid officers will be selected.
(b) One of the ten Employees having annual Compensation from the
Company of more than the limitation in effect under Code Section
415(c)(1)(A), and owning (or considered as owning, within the
meaning of the constructive ownership rules of the Code) both more
than one-half percent interest and the largest interests in the
Company. If two Employees have the same interest in the Company,
the Employee having greater annual Compensation from the Company
will be treated as having a larger interest.
(c) Any person who owns (or is considered as owning, within the meaning
of the constructive ownership rules of the Code) more than five
percent of the outstanding stock of the Company or stock possessing
more than five percent of the combined voting power of all stock of
the Company.
(d) A one percent owner of the Company having Annual Compensation from
the Company of more than $150,000 and possessing more than 1
percent of the combined total voting power of all stock of the
Company. For purposes of this Section 11.08, a Beneficiary of a Key
Employee will be treated as a Key Employee. For purposes of
subsections (c) and (d), each Company and/or Affiliated Company is
treated separately in determining ownership percentages; but, in
determining the amount of Compensation, an Employee's total
Compensation is taken into account.
11.09 Definition of Non-Key Employee
------------------------------
The term "Non-Key Employee" means any Employee (and any Beneficiary of
an Employee) who is not a Key Employee.
45<PAGE>
<PAGE>
ARTICLE 12
----------
MISCELLANEOUS
-------------
12.01 Limitation on Distributions
---------------------------
Notwithstanding any provision of this Plan regarding payment to
Beneficiaries, Participants, or any other person, the Committee may
withhold payment to any person if the Committee determines that such
payment may expose the Plan to conflicting claims for payment.As a
condition for any payments, the Committee may require such consent,
representations, releases, waivers, or other information as it deems
appropriate. The Committee may, in its discretion, comply with the
terms of any judgment or other judicial decree, order, settlement, or
agreement including, but not limited to, a Qualified Domestic Relations
Order as defined in Code Section 414(p).
12.02 Limitation on Reversion of Contributions
----------------------------------------
Except as provided in subsections (a) through (c) below, Company
Matching Contributions made under the Plan will be held for the
exclusive benefit of Participants and their Beneficiaries and may not
revert to the Company.
(a) In the case of contributions conditioned on the Plan's initial
qualification under Sections 401(a) and 401(k) of the Internal
Revenue Code, if the Plan does not qualify, such contributions may
be returned to the Company within one year after the date the
Plan's qualification is denied. The maximum Company Matching
Contribution that may be returned to the Company will not exceed
the amount actually contributed to the Plan, or the value of such
contribution on the date it is returned to the Company, if less.
(b) Unless the Board in a resolution authorizing a Plan contribution
states that the contribution is made unconditionally and without
regard to its deductibility under the appropriate section of the
Code, any contribution by the Employer to the Trust (except a top
heavy contribution) is conditioned upon the deductibility of the
contribution by the Employer under the applicable section of the
Code. To the extent any such deduction is disallowed or made as a
result of a mistake of fact, the Employer may demand repayment of
such disallowed contribution and the Trustee shall return such
contribution within one (1) year following (i) a final
determination of the disallowance, whether by agreement with the
Internal Revenue Service or by final decision of a court of
competent jurisdiction, or, (ii) the date of the mistaken
contribution, whichever applies. Earnings of the Plan attributable
to the excess or mistaken contribution may not be returned to the
Employer, but any losses attributable thereto must reduce the
amount so returned.
12.03 Voluntary Plan
--------------
The Plan is purely voluntary on the part of the Company and neither the
establishment of the Plan nor any Plan amendment nor the creation of any
fund or account, nor the payment of any benefits will be construed as
giving any Employee or any person legal or equitable right against the
Company, the Trustee, or the Committee unless specifically provided for
46<PAGE>
<PAGE>
in this Plan or conferred by affirmative action of the Committee or the
Company according to the terms and provisions of this Plan. Such
actions will not be construed as giving any Employee or Participant the
right to be retained in the service of the Company. All Employees
and/or Participants will remain subject to discharge to the same extent
as though this Plan had not been established.
12.04 Nonalienation of Benefits
-------------------------
Participants and their Beneficiaries are entitled to all the benefits
specifically set out under the terms of the Plan, but said benefits or
any of the property rights in the Plan will not be assignable or
distributable to any creditor or other claimant of such Participant. A
Participant will not have the right to anticipate, assign, pledge,
accelerate, or in any way dispose of or encumber any of the monies or
benefits or other property that may be payable or become payable to such
Participant or his Beneficiary provided, however, the Company, Trustee,
or Committee shall recognize and comply with a properly executed
Qualified Domestic Relations Order.
12.05 Inability to Receive Benefits
-----------------------------
If the Committee receives evidence that a person entitled to receive any
payment under the Plan is physically or mentally incompetent to receive
payment and to give a valid release, and another person or an
institution is maintaining or has custody of such person, and no
Guardian, Committee, or other representative of the estate of such
person has been duly appointed by a court of competent jurisdiction,
then any distribution made under the Plan may be made to such other
person or institution. The release of such other person or institution
will be a valid and complete discharge for the payment of such
distribution.
12.06 Unclaimed Benefits
------------------
If the Committee is unable, after reasonable and diligent effort, to
locate a Participant or Beneficiary who is entitled to a distribution
under the Plan, the distribution due such person will be forfeited after
two years. If, however, the Participant or Beneficiary later files a
claim for such benefit, it will be reinstated without any interest
earned thereon. Notification by certified or registered mail to the
last known address of the Participant or Beneficiary will be deemed a
reasonable and diligent effort to locate such person. The reinstatement
of benefits shall be funded by forfeitures incurred in the Plan Year of
reinstatement to the extent necessary to reinstate the benefits in full,
and to the extent such forfeitures are inadequate, by additional Company
contributions.
Notwithstanding anything in this Plan to the contrary, if after the
adoption of a resolution to terminate the Plan a Participant's or
Beneficiary's benefit under the Plan remains payable due to the
inability of the Committee or Trustee to locate such Participant or
Beneficiary, the Committee or the Trustee shall attempt to locate the
Participant or Beneficiary by either (a) mailing a notice (describing
the Plan benefits due such person) to such Participant or Beneficiary's
last known address as supplied by the Social Security Administration, or
(b) request, pursuant to Revenue Procedure 94-22 and Internal Revenue
Service Policy Statement P-1-187, that the Internal Revenue Service
forward a notice similar to that described in clause (a) to such person.
47<PAGE>
<PAGE>
If the Participant or Beneficiary cannot be located after the Committee
or the Trustee has taken the notification step described in clause
(a) or (b) of the preceding paragraph, the Trustee shall deposit all
Plan benefits payable to the lost or missing Participant or Beneficiary
in an interest bearing savings account at a federally insured bank; the
lost or missing Participant or Beneficiary shall be listed as the sole
owner of such account and have the unconditional right to withdraw all
funds therein.
12.07 Limitation of Rights
--------------------
Nothing expressed or implied in the Plan is intended or will be
construed to confer upon or give to any person, firm, or association
other than the Company, the Participants, the Beneficiaries, and their
successors in interest any right, remedy, or claim under or by reason of
this Plan.
12.08 Invalid Provisions
------------------
In case any provision of this Plan is held illegal or invalid for any
reason, the illegality or invalidity will not affect the remaining parts
of the Plan. The Plan will be construed and enforced as if the illegal
and invalid provisions had never been included.
12.09 One Plan
--------
This Plan may be executed in any number of counterparts, each of which
will be deemed an original and the counterparts will constitute one and
the same instrument and may be sufficiently evidenced by any one
counterpart.
12.10 Use and Form of Words
---------------------
Whenever any words are used herein in the masculine gender, they will be
construed as though they were also used in the feminine gender in all
cases where they would apply, and vice versa. Whenever any words are
used herein in the singular form, they will be construed as though they
were also used in the plural form in all cases where they would apply,
and vice versa.
12.11 Headings
--------
Headings of Articles and Sections are inserted solely for convenience
and reference, and constitute no part of the Plan.
12.12 Governing Law
-------------
The Plan will be governed by and construed according to the federal laws
governing Employee benefit plans qualified under the Code and according
to the laws of the State of Nevada where such laws are not in conflict
with the aforementioned federal laws.
48<PAGE>
<PAGE>
IN WITNESS WHEREOF, Southwest Gas Corporation has adopted this Plan this
______ day of __________________, 1994.
SOUTHWEST GAS CORPORATION
-------------------------
Date: By:
-------------------- -----------------------------------
Title:
--------------------------------
By:
----------------------------------
Title:
--------------------------------
49<PAGE>
<PAGE>
SOUTHWEST GAS CORPORATION
EMPLOYEES' INVESTMENT PLAN
--------------------------
Schedule A -- Investment Funds
------------------------------
Description of Investment Funds
- -------------------------------
Fund A - Company Stock Fund
---------------------------
A Company Stock Fund consisting of Southwest Gas Corporation stock and
cash as necessary to permit an orderly investment of assets.
Fund B - Equity Fund
---------------------
A fund consisting of a diversified portfolio of stocks.
Fund C - Money Market Fund
--------------------------
A fund consisting of short-term, fixed-income securities.
Fund D - Fixed Income Fund
--------------------------
A fund consisting of a broad range of fixed-income securities.
Fund E - Guaranteed Income Account
----------------------------------
A fund consisting of contracts with insurance companies that guarantee a
fixed rate of interest for a specified period of time. As of July 1,
1994, no new investments may be made in Fund E, and existing investments
will be held in this fund only until the individual insurance contracts
in which they are invested mature, at which time they will be
transferred to other Investment Funds in accordance with the rules below
relating to the designation of Investment Funds.
Fund F - Aggressive Balanced Fund
----------------------------------
A diversified mix of equity, income, and money market funds with an
emphasis on equity funds to promote growth.
Fund G - Moderate Balanced Fund
-------------------------------
A diversified mix of equity, income, and money market funds with a more
balanced mix of these elements than is provided by either the Aggressive
Balanced Fund or the Conservative Balanced Fund.
Fund H - Conservative Balanced Fund
-----------------------------------
A diversified mix of equity, income, and money market funds with an
emphasis on money market funds to promote capital preservation.
50<PAGE>
<PAGE>
Fund I - Loan Fund
------------------
A fund consisting of an individual accounting of each loan established
in accordance with Section 5.03.
Designation of Investment Funds
- -------------------------------
A Participant's Deferrals and Excess Contributions may be invested
entirely at his discretion, in increments of 10 percent, among the
Investment Funds . In the complete absence of any designation, the
Participant's Deferrals and/or Excess Deferrals will be invested in
Fund A.
A Participant's Company Matching Contribution Account will be invested
in Fund A, except as otherwise determined under the rules in (b) below
relating to transfers between Investment Funds.
Transfer Between and Among Investment Funds
- -------------------------------------------
(a) A Participant may transfer amounts representing his Deferrals and
Excess Deferrals from one Investment Fund to another. Transfer of
amounts from Fund A to another Investment Fund will be subject to
ability to convert shares of stock to cash.
(b) Upon attaining age 50, a Participant may transfer amounts
representing his Company Matching Contribution Account invested in
Fund A to Fund C, in accordance with Section 4.02. Upon making
such election 100% of the amount in Fund A will be transferred to
Fund C as rapidly as the Committee deems advisable to preserve the
liquidity of Fund A and all subsequent Company Matching
Contributions made on behalf of such Participant shall be invested
in Fund C.
(c) The investment of a Participant's entire Account Balance is subject
to the rules of Section 7.02 once the Participant becomes entitled
to a distribution pursuant to Section 7.02.
51
<PAGE> EXHIBIT 4.2
SOUTHWEST GAS CORPORATION
EMPLOYEES' INVESTMENT PLAN
TRUST AGREEMENT
AMENDED AND RESTATED JULY 1, 1994<PAGE>
<PAGE>
TABLE OF CONTENTS
Title Page
Recital of Introductory Facts 1
Sections
1 - Creation of Trust 1
2 - Inclusion of Other Parties 2
3 - Resignation or Removal of the Trustee 3
4 - Duties of the Trustee 4
5 - Investment of Funds 4
6 - Distributions 7
7 - Administration 8
8 - Powers of Trustee 11
9 - Authority of Trustee 13
10 - Immunity 13
11 - Amendment 14
12 - Termination 15
13 - Spendthrift Provision 15
14 - Enforcement of Trust 15
15 - Miscellaneous 16
Appendix A
(i)<PAGE>
<PAGE>
SOUTHWEST GAS CORPORATION
EMPLOYEES' INVESTMENT PLAN
TRUST AGREEMENT
--------------------------
Agreement and Declaration of Trust dated as of July 1, 1994 between
Southwest Gas Corporation, a California corporation (hereinafter, and on
behalf of such subsidiaries as may become parties hereto, called "Company"),
and Bank of America Nevada, a Nevada corporation (hereinafter, together with
any successor trustee or trustees, called "Trustee").
Recital of Introductory Facts
-----------------------------
A. The Company adopted an Employees' Investment Plan ("Plan"), effective on
April 1, 1965 for the exclusive benefit of eligible employees of the
Company and of subsidiary corporations or their beneficiaries who
participate ("Participants") pursuant to its provisions.
B. For purposes of the Plan, the Company created a trust for the exclusive
benefit of the employees who were entitled to receive distributions under
the Plan, to which trust all contributions under the Plan were paid in
accordance with its terms.
C. The trust, established by the Original Declaration, is a continuing trust
and its continuity is unbroken by previous amendments, by previous
substitution of the trustee or by the instant agreement.
D. The instant agreement is a restated and amended agreement made necessary
by certain changes in facts on which the original agreement and
amendments were based and is intended to avoid the confusion or
uncertainty which might result from multitudinous amendments.
Now, therefore, this Amended and Restated Agreement and Declaration of
Trust Agreement is made in consideration of the premises and the undertakings
set forth below, and the parties agree as follows:
Section 1
CREATION OF TRUST
-----------------
1.1 The Company, on its own behalf and on behalf of each subsidiary
corporation which pursuant to Section 2.1 becomes a party hereto (hereinafter
called a "Subsidiary"), hereby establishes with the Trustee, pursuant to the<PAGE>
<PAGE>
Plan, a trust which consists of money and property now held by Trustee
pursuant to all previous agreements regarding the trust and shall further
consist of such sums of money and such property acceptable to the Trustee as
shall from time to time be paid or delivered to the Trustee pursuant to the
Plan as contributions of other payments thereunder, and the earnings,
dividends, profits, interest, increment and accruals attributable thereto or
derived therefrom, all of which, less payments which at the time of reference
shall have been made by the Trustee in accordance with this Agreement, being
hereinafter referred to as the Trust Fund.
1.2 The Trust Fund shall be held by the Trustee and dealt with by it
solely in accordance with the express provisions of this Agreement, for the
exclusive benefit of the Participants and their beneficiaries. No part of the
Trust Fund shall at any time revert to or be recoverable by the Company or a
Subsidiary.
1.3 The trust created hereby is hereinafter called the "Trust."
Section 2
INCLUSION OF OTHER PARTIES
--------------------------
2.1 In the event any employees of a Subsidiary become Participants under
the Plan in accordance with its provisions by vote of the Board of Directors
of the Company (hereinafter called the Board of Directors), such Subsidiary
shall, upon making payment to the Trustee of its first contribution
thereunder, automatically become a party to the Trust to the same extent and
as fully as if it had originally executed this Agreement, and then and
thereafter all contributions made by it will constitute a part of the Trust
Fund in the manner provided in Section 1.1
2.2 As evidence of such inclusion in the plan of a Subsidiary there
shall be delivered to the Trustee by the Company a written notice to such
effect, together with the resolutions of the Board of Directors authorizing
such action, certified by the Secretary or an Assistant Secretary of the
Company, and the resolutions of the board of directors of the Subsidiary
adopting the Plan for its eligible employees and giving authority to become a
party to this Agreement, certified by the Secretary or an Assistant Secretary
of the Subsidiary.
2.3 No provision of this Agreement or of the Plan shall be construed as
requiring the maintenance of separate accounts for a Subsidiary or the
2<PAGE>
<PAGE>
segregation or separate treatment of any part of the Trust Fund on behalf of a
Subsidiary.
Section 3
RESIGNATION OR REMOVAL OF THE TRUSTEE
-------------------------------------
3.1 There shall be at all times, subject only to such reasonable period
of time as may be needed to fill any vacancy, either a single corporate
trustee of the Trust or one or more individual trustees of the Trust, as may
be determined by the Board of Directors.
3.2 Any Trustee may resign at any time by delivering or mailing to the
Board of Directors, at the principal office of the Company, a written
resignation, and by delivering or mailing to the Committee (as hereinafter
defined) a copy thereof. Such resignation shall take effect sixty (60) days
from the date of its receipt or at such earlier time acceptable to the
resigning Trustee as a successor appointed by the Board of Directors shall be
ready and willing to act.
3.3 Any Trustee may be removed at any time by the Board of Directors by
delivering or mailing to the Trustee, at its principal office, a written
notice of removal, and by delivering or mailing to the Committee a copy
thereof. Such removal shall take effect sixty (60) days from the date of its
receipt or at such earlier time acceptable to the Trustee being removed as a
successor appointed by the Board of Directors shall be ready and willing to
act.
3.4 Upon the death or incapacity or any individual Trustees or the
resignation or removal of any Trustee, the Board of Directors shall appoint a
successor. Written notice of such appointment shall be given forthwith by the
Company to the resigning or removed Trustee and to the Committee appointed
pursuant to the Plan (hereinafter called the "Committee").
3.5 If within sixty (60) days after receipt of notice of resignation or
removal of the Trustee under the provisions of this Section 3 a successor to
the Trustee shall not have been appointed, the resigning or removed Trustee or
the Committee or any member of the Committee, at the expense of the Trust, may
apply to any court of competent jurisdiction for the appointment of such
successor.
3<PAGE>
<PAGE>
3.6 Any successor Trustee shall have the same powers and duties as those
conferred upon the Trustee hereunder and subject to receipt by the resigning
or removed Trustee of written acceptance of such appointment by the successor
Trustee, the resigning or removed Trustee shall assign, transfer and pay over
to such successor Trustee the funds and properties then constituting the Trust
Fund. The resigning or removed Trustee is authorized however, to reserve such
reasonable sum of money as it may deem advisable for payment of its fees and
expenses in connection with the settlement of its account or otherwise and any
balance of such reserve remaining after the payment of such fees and expenses
shall be paid over to the successor Trustee.
Section 4
DUTIES OF THE TRUSTEE
---------------------
4.1 It shall be the duty of the Trustee to (a) receive, hold, invest
and reinvest the Trust Fund pursuant to section 5, (b) to make payments and
distributions from the Trust Fund at the direction of the Committee pursuant
to Section 6, and to furnish administrative services in connection with the
Trust pursuant to Section 7.
4.2 The duties and obligations of the Trustee shall be only those
expressly stated in this Agreement, without reference to the Plan. Without
limitation of the preceding sentence, the Trustee (a) shall have no
responsibility for the adequacy of the Trust Fund (or of any particular
Investment Fund provided for in Section 5) to meet and discharge any
liabilities under the Plan, and (b) shall have no right, duty or authority
(i) to determine any amount to be paid over to it from time to time under the
plan, (ii) to bring any action or proceeding to enforce the collection or
contribution of amounts to be paid over to it from time to time under the
Plan, nor (iii) to determine the persons entitled to, or the nature, amounts
or time of, any payments or distributions to be made from the Trust Fund to
Participants or their beneficiaries.
Section 5
INVESTMENT OF FUNDS
-------------------
5.1 The Trustee shall manage the investment of the Trust Fund, subject
to (if applicable) the direction of the Committee or any Investment Manager,
if one has been properly appointed and written notice of such appointment has
4<PAGE>
<PAGE>
been delivered by the Committee to the Trustee. To the extent the Committee
retains investment authority or any Investment Manager is given such
responsibility, the Trustee will not be liable by reason of its taking or
refraining from taking any action at the direction of the Committee or any
Investment Manager.
5.2 The Trust Fund shall be invested by the Trustee in Investment Fund
A, Company Stock, and in one or more additional Investment Funds established,
from time to time, by the Committee.
a. Investment Fund A - (Company Stock)
-----------------
(1) The Trustee shall establish and maintain an Investment Fund A,
which shall consist of (i) such portion of the amounts paid over to
the Trustee from time to time under the Plan as shall at the time of
such payment be specified by the Committee for investment therein,
and (ii) any dividends, earnings, accruals or other increment
derived from or attributable to the securities or other assets held
in Investment Fund A.
(2) The assets of Investment Fund A shall be invested solely in
Common Stock of the Company (hereinafter called "Common Stock").
Such Common Stock shall be purchased by the Trustee from the Company
at times when the Company is providing original issue Common Stock
for any of its stock purchase plans, and at all other times, the
Trustee shall purchase Common Stock on the open market. The Company
will notify the Trustee within 25 days of the end of each calendar
quarter whether the Company is making original issue Common Stock
available for Investment Fund A.
(3) The Trustee may time the execution of purchase orders from the
Company or in the open market or sales orders in the open market for
the purpose of limiting or spreading the daily volume as the Trustee
shall deem in the best interest of the Participants and their
beneficiaries.
(4) The price for original issue Common Stock shall equal the
closing price of the Company's Common Stock on the New York Stock
Exchange (hereinafter called the "Exchange") on the day the Trustee
makes the purchase of such stock from the Company. If the Exchange
5<PAGE>
<PAGE>
is closed on that date, the price for such stock shall equal the
closing price of the Company's Common Stock on the first business day
of the Exchange after the purchase. Payment for original issue
Common Stock shall be made by the Trustee to the Company, by wire
transfer, upon receipt by the Trustee of the certificate for such
stock.
(5) Voting or proxy or other rights with respect to any portion of
the Trust Fund consisting of Common Stock shall be passed through to
Participants as provided for in this paragraph. Each Participant
shall be entitled to direct the Trustee as to the manner in which
the Common Stock then allocated to his or her account(s) will be
voted. Such direction may be achieved through the use of proxy or
similar statements delivered to the Participants with respect to the
Common Stock allocated to their accounts. The Committee shall
provide any information requested by the Trustee that is necessary
or convenient in connection with obtaining and preserving the
confidentiality of the Participants' directions. Any Common Stock
with respect to which the Participants are entitled to issue
directions pursuant to the foregoing and for which such directions
are not received by the Trustee and all unallocated Stock shall be
voted in the same proportion as the shares of Common Stock for which
voting directions have been received, unless the Trustee is required
by law to exercise its discretion in voting such Common Stock.
5.3 Upon instructions from the Committee to transfer assets attributable
to an account of a Participant from one Investment Fund to another Investment
Fund, as permitted under the Plan, the Trustee shall sell at such time or times
such number, quantity, or amount of securities in a particular Investment Fund
as shall be designated by the Committee for transfer, and the Trustee shall
thereafter at such time or times reinvest the proceeds thereof, or such portion
as shall be specified by the Committee, in such other Investment Fund as the
Committee shall direct. The Trustee shall have no responsibility for the
propriety of any such transfer made in accordance with the directions of the
Committee.
6<PAGE>
<PAGE)
5.4 All funds not invested as provided for in this Section and all funds
held in cash for administration of the Trust shall be invested from day to day
by the Trustee in interest bearing obligations of the United States of
America, in mutual funds trading in interest bearing obligations of the United
States of America (including its agencies) or federally insured accounts of
any bank, including the commercial department of the Trustee, as selected by
the Committee, which shall either mature or be convertible into cash without
loss of principal or interest not later than the next business day after the
investment is made.
Section 6
DISTRIBUTIONS
-------------
6.1 The Trustee shall make such payments in cash and distributions in
kind from the Trust Fund to Participants or their beneficiaries as may be
directed by the Committee as to the nature and amount of the payments or
distributions to be made, the persons entitled thereto, the particular
Investment Funds from which such payments and distributions are to be made,
the time and method of payment or distribution and such other matters as may
be material. Whenever payment in cash from a particular Investment Fund is
directed by the Committee, the Trustee shall, in order to make such payment,
sell at such time or times such number, quantity or amount of securities held
in the particular Investment Fund as shall have been specified by the
Committee with respect to such payment. The Committee need not specify the
purpose of any payment or distribution which it shall direct, and the Trustee
shall have no responsibility for the purpose or propriety of any such payment
or distribution.
6.2 If a dispute arises as to who is entitled to or should receive any
payment or distribution, the Trustee may withhold such payment or distribution
until the dispute has been resolved.
6.3 In the event that any payment or distribution directed by the
Committee shall be mailed by the Trustee by registered mail directed to the
person specified in such direction at the latest address of such person filed
with the Committee, and shall be returned to the Trustee because such persons
cannot be located at such address, the Trustee shall promptly notify the
Committee of such return. Upon the expiration of sixty (60) days after such
notification to the Committee such direction shall become void, and unless and
until a further direction of the Committee is received by the Trustee with
respect to such payment, the Trustee shall deposit the cash distribution into
the money market fund established by the Committee and hold the shares. The
7<PAGE>
<PAGE>
Trustee shall not be obligated to search for or ascertain the whereabouts of
of any such person (or his duly appointed representative) nor shall the Trustee
be under any obligation to determine the identity of persons entitled to
benefits or their mailing addresses.
6.4 If and when the Trust is terminated, in whole or in part, pursuant
to Section 12, the Trustee shall distribute as soon as practicable to the
Participants affected by such termination their interests in the Trust Fund in
accordance with the directions of the Committee. The Trust and the power and
duties of the Trustee shall continue as long as any part of the Trust Fund
shall remain undistributed.
Section 7
ADMINISTRATION
--------------
7.1 Title to the assets and properties comprising the Trust Fund shall
be in the Trustee as it may from time to time be constituted and shall
automatically vest in any successor Trustee without the need of any instrument
of transfer. However, for purposes of convenience and avoidance of delay, any
shares of Common Stock, any securities and any other property at any time
included in the Trust Fund may be held, designated, registered or handled in
the name of the Trust or in the name of any nominee or nominees.
7.2 The Trustee shall keep account for all contributions and other
payments received by it pursuant to the Plan and for all other receipts of
money, shares of Common Stock, securities or other property, and for
disbursements, expenses and distributions of the Trust Fund. Such accounts,
books and records shall be open to inspection and audit at any reasonable time
by the Committee or by any person designated by it or by the Company.
7.3 Within thirty (30) days after the end of each calendar year (and
after the end of any intervening calendar quarter if directed by the
Committee), and within sixty (60) days after the effective date of the removal
of resignation of the Trustee pursuant to Section 3, the Trustee shall prepare
and deliver to the Company an accounting of all investments and of its
receipts, disbursements, distributions and other transactions during the
preceding calendar year or since the last previous accounting. Upon the
expiration of ninety (90) days from the date of delivery of any such
accounting, the Trustee shall, to the extent allowed by law, be forever
8<PAGE>
<PAGE>
released and discharged from all liability and accountability to any one with
respect to the propriety and correctness of its acts and transactions and the
carrying out of its duties and obligations and responsibilities as shown or
reflected in such accounting, except with respect to any such acts,
transactions, duties, obligations with responsibilities as to which the
Company or the Committee shall within such period file written objections with
the Trustee.
7.4 Nothing herein contained shall impair the right of the Trustee to a
judicial settlement of any account of proceedings rendered by it. In any
proceeding for such judicial settlement the only necessary parties shall be
the Trustee, the Committee and the Company, and any judgement, decree or final
order entered therein shall be conclusive on all persons having or claiming an
interest in the Trust Fund or under the Plan.
7.5 The Company shall act as agent with full authority on behalf of any
Subsidiary, and the Trustee shall not be required to deal with any Subsidiary
except by dealing with the Company as agent of such Subsidiary.
7.6 The Trustee shall not be responsible for the determination of any
questions or disputes as to the existence, non-existence, nature and amount of
the rights and interests of any persons in or to the Trust Fund or under the
Plan but with respect to all such matters may rely entirely on the
instructions and advice of the Committee, which shall have sole authority and
power to make any such determinations. In this connection the Trustee shall
have no duty to examine into or to question any decisions made by the
Committee.
7.7 All orders, requests, instructions and advice of the Committee to
the Trustee shall be in writing signed by two members of the Committee, and
the Trustee shall be fully protected in acting in accordance with such orders,
requests, instructions and advice. However, the ordinary day-to-day
administrative directions to the Trustee from the Committee which may be
necessary to accomplish routine functions, including, but not limited to, the
transfer of funds to Trustee, directions for distribution of funds and
withdrawal of funds for loans authorized pursuant to provisions of this
Agreement, may be performed by persons authorized by the Committee without
resolution or formal written instructions of the Committee. The Committee
shall provide the Trustee with written confirmation of the persons who are
authorized to perform such administrative duties and specimens of their
signatures.
9<PAGE>
<PAGE>
7.8 Any action by the Company specifically requiring Board of Directors
action or not covered by this Agreement shall be evidenced by a resolution of
its Board of Directors certified to the Trustee over the signature of the
Secretary or of any Assistant Secretary of the Company, and the Trustee shall
be fully protected in acting in accordance with such resolution so certified
to it.
7.9 The Company shall furnish the Trustee from time to time with
certified copies of resolutions of its Board of Directors evidencing the
appointment and termination of office of any members of the Committee and the
appointment and termination of successors thereto. The Trustee shall have the
right to rely on and shall be fully protected in acting in accordance with any
resolution, order, request, instruction or advice which it believes to be
genuine and which purports to have been signed in accordance with this
Section.
7.10 Any and all commissions, brokerage fees, sales loads, transfer taxes
and other costs incurred by the Trustee in the investment and reinvestment of
the Trust Fund and all other expenses of the administration of the Trust,
including fees for legal services rendered to the Trustee on account of the
Trust and such compensation to the Trustee as may be agreed upon from time to
time between the Company and the Trustee and evidenced in writing by an
officer of the Company, shall be borne by the Trust Fund, unless paid by the
Company in its sole and absolute discretion, and shall be reimbursed to the
Trustee from time to time on request. The Trustee is authorized to withdraw
any undisputed amounts for its expenses and compensation from the Trust Fund
if the Company fails to pay them within 60 days of presentation of a statement
of the amounts due.
7.11 The assets of the Trust Fund shall be valued at their fair market
values on the date of valuation, as determined by the Trustee based upon such
sources of information as it may deem reliable. The Committee shall instruct
the Trustee as to the value of assets for which market value is not readily
obtainable by the Trustee. If the Committee fails to provide such values, the
Trustee may take whatever action its deems reasonable, including employment of
attorneys, appraisers or other professionals, the expense of which will be an
expense of the administration of the Trust Fund.
10<PAGE>
<PAGE>
Section 8
POWERS OF TRUSTEE
-----------------
8.1 Except as otherwise provided in Section 5 and subject to the other
provisions of this Agreement, the Trustee, in connection with the handling of
the Trust Fund, is expressly authorized and empowered, in its sole discretion:
(a) to sell, exchange, convey, transfer, lease or otherwise dispose
of, and also to grant options with respect to, all or any part of
the property at any time included in the Trust Fund, for such
consideration, in cash or on credit, and upon such terms and
conditions as it may deem advisable;
(b) to consent to, participate in, dissent from or oppose any plan
or reorganization, consolidation, merger, combination or other
similar plan, to consent to any contract, lease, mortgage, purchase,
sale or other action by any corporation pursuant to such plan, and
to accept any property or securities issue under any such plan;
(c) to exercise any conversion or subscription rights appurtenant
to any securities or other property at any time held in the Trust
Fund, and to sell or dispose of such rights; and
(d) to cause any shares of stock or securities to be registered and
held in the name of a nominee or nominees or to hold such shares or
securities in bearer form.
(e) to collect and receive any and all money and other property of
whatsoever kind due or owing or belonging to the Trust and to give
full discharge and acquittance therefor, and to extend the time of
payment of any obligation at any time owing to the Trust;
11<PAGE>
<PAGE>
(f) to settle, compromise, compound or submit to arbitration any
debts, claims, obligations or damages due or owing to or from Trust;
to commence or defend suits or legal proceedings whenever, in its
judgement, any interest of the Trust requires such action; and to
act for and represent the Trust in all suits and legal proceedings
in any court of law or equity or before any other body or tribunal;
(g) to borrow money in such amounts and upon such terms and
conditions as it may deem advisable to carry out the purposes of
this Agreement, including borrowing from itself at prevailing
interest rates, and to mortgage or pledge any part of the Trust Fund
to secure any such borrowing;
(h) to vote, in person or by general or limited proxy, with respect
to any or all shares of Common Stock or other securities at any time
held in the Trust Fund, at any meeting of stockholders or security
holders, and to execute such instruments as may be necessary or
deemed by it advisable to consent to any corporate act, proceeding
or transaction;
(i) to do all acts and things necessary or proper and to exercise
any and all the powers of the Trustee under this Agreement upon such
terms and conditions and in such manner as to it may seem for the
best interests of the Trust and the Participants, and in general to
take all such action and proceedings and to exercise such rights and
privileges with relation to any part of the Trust Fund as if the
Trustee were the absolute owner thereof;
(j) to deposit or invest all or any part of the assets of the Trust
Fund in savings accounts or certificates of deposit or other
deposits which bear a reasonable interest rate in a bank, including
the commercial department of the Trustee, if such bank is supervised
by the United States or any State; and
(k) to hold in cash, without liability for interest, such portion
of the Trust Fund which, in its sole discretion, shall be reasonable
under the circumstances for the distribution of benefits.
12<PAGE>
<PAGE>
8.2 Notwithstanding any provision herein to the contrary, the Trustee is
hereby expressly authorized to invest in any common, collective or pooled fund
maintained by the Trustee or other bank or trust company exclusively for the
commingling and collective investment of assets of qualified retirement plans
and tax-exempt trusts, and the documents establishing or amending these trust
funds are hereby incorporated by reference into this Trust Agreement.
Section 9
AUTHORITY OF TRUSTEE
--------------------
9.1 No person dealing with the Trustee shall be required to make any
inquiry as to the authority of the Trustee to take or omit any action or as to
the existence of instructions in such regard to the Trustee from the Company
or from the Committee or from any Participants. Any person shall be fully
protected in relying on the certificate of the Trustee to the effect that the
Trustee has authority to so take or omit any action.
9.2 The execution by the Trustee of any agreement, contract, assignment,
commitment, undertaking, conveyance, deed, lease, mortgage, pledge, guaranty,
waiver, release, discharge or other instrument or document shall be
conclusively regarded as evidence of its authority to act on behalf of the
Trust.
9.3 No person in dealing with the Trustee shall be required to follow
the application of or use by the Trustee of any money, property or proceeds of
any kind which may be paid, delivered or transferred to it or concern himself
with the validity, expediency of propriety of such application or use.
Section 10
IMMUNITY
--------
10.1 The Trustee shall use ordinary care and reasonable diligence in the
exercise of its powers and duties under this Agreement but shall not be liable
for any mistake in judgment or other action taken in good faith.
10.2 The Trustee shall not be liable in any way for any loss, prejudice
or damage sustained by the Trust by reason of the purchase, retention, sale,
exchange, distribution or handling of the Trust Fund or any portion thereof,
or for any action taken with respect thereto, or for any error, mistake or
omission with respect to any instructions or directions given or received by
it, except on account of willful and intentional malfeasance or misfeasance.
13<PAGE>
<PAGE>
10.3 No director, officer, stockholder, employee or agent of the Company
or any of its subsidiaries and no member of the Committee shall be liable for
acts or omission or commission arising in connection with the carrying out of
this Agreement except on account of his own individual willful and intentional
malfeasance or misfeasance.
10.4 All releases and indemnities provided herein shall survive
termination of this Agreement. The Company shall indemnify and hold the
Trustee and Trust Fund harmless from and against any loss or liability,
including reasonable attorneys' fees, that arise in connection with (i) any
acts taken in accordance with written directions (or failure to act, in the
absence of such directions) from the Company, Committee, Investment Managers,
or any other person designated to act on their behalf, or (ii) the Trustee's
good faith execution of its duties under this Trust Agreement, except in the
event of the Trustee's own illegal act, willful misconduct or gross
negligence.
Section 11
AMENDMENT
---------
11.1 The Board of Directors may at any time adopt a written amendment
that modifies or amends, in whole or in part, any or all of the provisions of
this Agreement, provided that no such modification or amendment which affects
the rights, duties or responsibilities of the Trustee may be made without its
consent.
11.2 No such modification or amendment shall become effective until there
is executed by the Company and the Trustee an instrument of modification or
amendment, as the case may be, and until all approvals, rulings and others
with respect thereto from the Internal Revenue Service and from all Federal,
State and other governmental authorities (to the extent deemed necessary by
the Company) have been received.
11.3 Notwithstanding the foregoing provisions of this Section 11, no such
modification or amendment may be made if it permits the return of any part of
the Trust Fund to the Company or diverts any part thereof to purposes other
than the exclusive benefit of Participants in the Plan or their beneficiaries
or if it results in the disqualification of the Plan under Section 401(a) of
the Internal Revenue Code of 1986 ("Code"), as amended, or the loss of
exemption of the Trust from Federal income taxes under Section 501(a) of the
Code.
14<PAGE>
<PAGE>
Section 12
TERMINATION
-----------
12.1 The Trust hereby created may be terminated at any time by action of
the Board of Directors, either in its entirety with respect to the Company and
all Subsidiaries or in part with respect to one or more of its Subsidiaries.
Written notice of such termination, together with a certified copy of the
pertinent resolutions of the Board of Directors, shall be given to the Trustee
by the Company.
12.2 In the event of the termination of the Trust in its entirely, it
will continue in effect and operation until distribution of all the Trust Fund
has been completed by the Trustee in accordance with the directions of the
Committee.
Section 13
SPENDTHRIFT PROVISION
---------------------
13.1 Except in the case of a Qualified Domestic Relations Order within
the meaning of Section 414(p) of the Code and Section 206(d)(3) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), any benefit or
distribution payable from or out of the Trust Fund to any Participant or
beneficiary under the Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge and any
attempt or arrangement on the part of any person to anticipate, alienate,
sell, transfer, assign, pledge, encumber or charge the same shall be void.
13.2 Any benefit or distribution payable from or out of the Trust Fund
shall not in any manner be subject to or liable for the debts, contracts,
commitments, obligations, liabilities or torts of any Participant or
beneficiary under the Plan nor subject to attachment or legal process for or
against such person.
Section 14
ENFORCEMENT OF TRUST
--------------------
14.1 Except as permitted by Section 502 of ERISA, the Company shall have
the sole authority and right to enforce this Agreement on behalf of the
Participants or any other persons having or claiming any interest in the Trust
Fund or under this Agreement or the Plan. To protect the Trust Fund and the
Company from expense that might otherwise be incurred, it is hereby made a
15<PAGE>
<PAGE>
condition of the obtaining of any interest in the Trust Fund, and it is hereby
agreed, that no other person may institute or maintain any action or
proceeding against the Trustee or the Trust Fund in the absence of written
authority from the Company or a judgement of a court of competent jurisdiction
that in refusing such authority the Company has acted fraudulently or in bad
faith.
14.2 In any action or proceeding affecting the Trust Fund or any property
constituting a part of all thereof, or with respect to the administration of
the Trust or for the purpose of seeking instructions to the Trustee, the only
necessary parties shall be the Company and the Trustee. No employees or
former employees of the Company or any Subsidiary, and no beneficiary of any
such employee, and no other person having or claiming an interest in the Trust
Fund or under the Plan shall be entitled to any notice or process with respect
to any such action or proceeding or to participate therein. Any judgment that
may be entered in any such action or proceeding shall be binding and
conclusive on all such employees, former employees, beneficiaries and other
persons.
Section 15
MISCELLANEOUS
-------------
15.1 This Agreement shall be construed and enforced in accordance with
the laws of the State of Nevada and all its provisions shall be administered
pursuant thereto.
15.2 Any notice to the Trustee hereunder shall be given by delivering or
mailing the same to the Trustee then in office; any notice to the Company, to
its Chief Financial officer; and any notice to the Committee, to Employees'
Investment Plan Committee, c/o Southwest Gas Corporation, 5241 West Spring
Mountain Road, Post Office Box 98510, Las Vegas, Nevada 89193-8510.
15.3 The Trustee hereby accepts the Trust hereby created upon the terms
and conditions herein provided and hereby declares itself to be Trustee of
and, subject to the terms and conditions of this Agreement, agrees to hold all
the property now or hereafter constituting the Trust Fund.
16<PAGE>
<PAGE>
15.4 This Agreement shall be binding upon the respective successors of
the Trustee and the Company and other parties hereto.
15.5 This Agreement has been executed in two (2) counterparts, each of
which shall be deemed to be an original.
IN WITNESS WHEREOF, this instrument has been executed and shall be
effective, as of the day and year first above written.
SOUTHWEST GAS CORPORATION
By_______________________
Title:___________________
BANK OF AMERICA NEVADA
By_______________________
Title:___________________
17<PAGE>
<PAGE>
APPENDIX A
TO AMENDED AND RESTATED TRUST AGREEMENT
Dated August 1, 1994
--------------------------------------
Investment Fund B - (Equity Fund Shares)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund B, which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for Investment therein, and (ii) any
dividends, earnings, accruals or other increment derived from or
attributable to the securities or other assets held in Investment Fund B.
(b) The assets of Investment Fund B shall be invested solely in the
shares of such open-end investment company (equity fund - consisting of a
diversified portfolio of stocks) registered under the Investment Company
Act of 1940 as shall be selected by the Committee and written notice
thereof given to the Trustee. The designation of the equity fund in
which the assets of Investment Fund B are to be invested may, in the
discretion of the Committee, be changed from time to time.
Investment Fund C - (Money Market Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund C which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for investment therein, and (ii) any interest,
earnings, accruals or other increment derived from or attributable to the
securities or other assets held in Investment Fund C.
(b) The assets of Investment Fund C shall be invested solely in the
shares of such open-end investment company (money market fund -
consisting of short-term, fixed-income securities) registered under the
Investment Company Act of 1940 as shall be selected by the Committee and
written notice thereof given to the Trustee. The designation of the
money market fund in which the assets of Investment Fund C are to be
1<PAGE>
<PAGE>
invested may, in the discretion of the Committee, be changed from time to
time.
Investment Fund D - (Fixed Income Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund D, which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for investment therein, and (ii) any
dividends, earnings,
accruals or other increment derived from or attributable to the
securities or other assets held in Investment Fund D.
(b) The assets of Investment Fund D shall be invested solely in the
shares of such fixed income fund (consisting of a broad range of fixed-
income securities) registered under the Investment Company Act of 1940 as
shall be selected by the Committee and written notice thereof given to
the Trustee. The designation of the fixed income fund in which the
assets of Investment Fund D are to be invested may, in the discretion of
the Committee, be changed from time to time.
Investment Fund E - (Guaranteed Income Account)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund E which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for investment therein, and (ii) any interest,
earnings, accruals or other increment derived from or attributable to the
securities or other assets held in Investment Fund E.
(b) The assets of Investment Fund E shall be invested solely in fixed
rate interest contracts with such open-end investment company (Guaranteed
Income Account - consisting of contracts with insurance companies that
guarantee a fixed rate of interest for a specified period of time) as
shall be selected by the Committee and written notice thereof given to
the Trustee. The designation of the guaranteed income account in which
2<PAGE>
<PAGE>
the assets of Investment Fund E are to be invested may, in the discretion
of the Committee, be changed from time to time.
(c) No new contributions in Investment Fund E will permitted after July
1, 1994, and existing investments will be held in this fund only until
the individual insurance contracts in which they are invested mature, at
which time they will be transferred to other Investment Funds in
accordance with the provisions of the Plan.
Investment Fund F - (Aggressive Balanced Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund F, which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for Investment therein, and (ii) any
dividends, earnings, accruals or other increment derived from or
attributable to the securities or other assets held in Investment Fund F.
(b) The assets of Investment Fund F shall be invested solely in the
shares of such open-end investment company (aggressive balanced fund -
consisting of a diversified mix of equity, income, and money market funds
with an emphasis on equity funds to promote growth) registered under the
Investment Company Act of 1940 as shall be selected by the Committee and
written notice thereof given to the Trustee. The designation of the
aggressive balanced fund in which the assets of Investment Fund F are to
be invested may, in the discretion of the Committee, be changed from time
to time.
Investment Fund G - (Moderate Balanced Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund G which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for investment therein, and (ii) any interest,
3<PAGE>
<PAGE>
earnings, accruals or other increment derived from or attributable to the
securities or other assets held in Investment Fund G.
(b) The assets of Investment Fund G shall be invested solely in the
shares of such open-end investment company (moderate balanced fund -
consisting of a diversified mix of equity, income, and money market funds
with a more balanced mix of these elements than is provided by either the
Aggressive Balanced Fund or the Conservative Balanced Fund) registered
under the Investment Company Act of 1940 as shall be selected by the
Committee and written notice thereof given to the Trustee. The
designation of the moderate balanced fund in which the assets of
Investment Fund G are to be invested may, in the discretion of the
Committee, be changed from time to time.
Investment Fund H - (Conservative Balanced Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund H, which
shall consist of (i) such portion of the amounts paid over to the Trustee
from time to time under the Plan as shall at the time of such payment be
specified by the Committee for investment therein, and (ii) any
dividends, earnings, accruals or other increment derived from or
attributable to the securities or other assets held in Investment Fund H.
(b) The assets of Investment Fund H shall be invested solely in the
shares of such conservative balanced fund (consisting of a diversified
mix of equity, income, and money market funds with an emphasis on money
market funds to promote capital preservation) registered under the
Investment Company Act of 1940 as shall be selected by the Committee and
written notice thereof given to the Trustee. The designation of the
conservative balanced fund in which the assets of Investment Fund H are
to be invested may, in the discretion of the Committee, be changed from
time to time.
4<PAGE>
<PAGE>
Investment Fund I - (Loan Fund)
- -----------------
(a) The Trustee shall establish and maintain an Investment Fund I which
shall consist of such amounts received from the sale of assets in
Investment Funds A through H resulting from withdrawal by a Participant
for the purpose of obtaining a loan, as may be approved by the
Committee, and such amounts received from a Participant in repayment of
such loan.
(b) The assets of Investment Fund I shall be cash or in an interest
bearing account until invested in any of the Investment Funds, other than
Investment Fund E, as directed by the Committee.
5
EXHIBIT 5.1
March 14, 1995
Southwest Gas Corporation
5241 Spring Mountain Road
P. O. Box 98510
Las Vegas, NV 89193-8510
Ladies and Gentlemen:
As Associate General Counsel of Southwest Gas Corporation (the "Company"), I
have served as counsel for the Company in connection with the Registration
Statement on Form S-8 (the "Registration Statement") to be filed under the
Securities Act of 1933 in connection with the registration of 800,000
additional shares of Company Common Stock, $1.00 par value (collectively, the
"Shares") to be issued pursuant to the Southwest Gas Corporation Employees'
Investment Plan (the "Plan"). I am familiar with the proceedings heretofore
taken and proposed to be taken by the Company in connection with the adoption
of amendments to the Plan and the authorization, issuance and sale of the
Shares.
It is my opinion that, subject to said proceedings being duly taken and
completed by the Company as now contemplated prior to the deposit of amounts
under the Plan for the purchase of additional interests under the Plan or the
issuance of the Shares, the additional interests to be registered under the
Plan and the Shares will be, upon the issuance and sale thereof in the manner
referred to in the Registration Statement and the exhibits thereto, legally
and validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and I further consent to the use of my name under the
caption "Interests of Named Experts and Counsel" in the Registration Statement
and the Prospectus which forms a part thereof.
Respectfully submitted,
Robert M. Johnson
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports relating to the
Company's financial statements dated February 8, 1995, included in Southwest Gas
Corporation and subsidiaries' annual report on Form 10-K, and the Plan's
financial statements dated April 5, 1994, included in the Company's Form 11-K,
for the year ended December 31, 1993 and to all references to our Firm included
in this registration statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
March 14, 1995
