As filed with the Securities and Exchange Commission on February 28, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
SOUTHWESTERN PUBLIC SERVICE COMPANY
(Exact name of registrant as specified in charter)
__________________
New Mexico 75-0575400
(State of Incorporation) (IRS Employer Identification No.)
SPS Tower
Tyler at Sixth
Amarillo, Texas 79101
(806) 378-2121
(Address, including zip code of registrant's
principal executive offices)
SOUTHWESTERN SOUTHWESTERN
PUBLIC SERVICE COMPANY PUBLIC SERVICE COMPANY
Employee Investment Plan Non-Qualified Salary Deferral Plan
(Full title of the plan) (Full title of the plan)
Bill D. Helton, Chairman of the Board
and Chief Executive Officer
SPS Tower
Tyler at Sixth
Amarillo, Texas 79101
(806) 378-2121
(Name, address and telephone number, including area code,
of agent for service)
__________________
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to to be Price Per Offering Registration
be Registered Registered(1) Share (2)(3) Price (2) Fee (3)
<S> <C> <C> <C> <C>
Common Stock (4)
($1 par value).. 500,000 $28.1875 $14,093,750 $4859.91
<FN>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this regis-
tration statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plans described herein.
(2) Estimated solely for the purposes of computing the registration fee.
(3) Pursuant to Rule 457(c), the registration fee has been calculated based on the
average of the high and low sales prices reported on February 24, 1995.
(4) Including the related Common Stock Purchase Rights.
</TABLE>
__________________
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Commission by the
Company are incorporated herein by reference as of their respective
filing dates:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended August 31, 1994 (File No. 1-3789), which contains a
description of the Company's Common Stock and the related Common
Stock Purchase Rights.
(b) The Company's Quarterly Report on Form 10-Q for the
quarter ended November 30, 1994.
(c) The Company's Annual Reports on Form 11-K for the fiscal
year ended August 31, 1994 for the Tax Benefit Plan and Trust and the
Employee Stock Ownership Plan and Trust, which plans are to be merged
effective March 1, 1995 and renamed the Employee Investment Plan.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d), of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the date of this Prospectus and prior to the
termination of the offering of the securities offered hereby shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Officers and Directors.
Section 53-11-4.1 of the New Mexico Business Corporation Act
(the "NMBCA") empowers a corporation to indemnify any officer or director
against judgments, penalties, fines, settlements, and reasonable expenses
actually incurred by the
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person in connection with any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or
investigative, if the person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the corporation,
and with respect to a criminal proceeding, had no reasonable cause to
believe the person's conduct was unlawful. This section empowers a corpo-
ration to maintain insurance or furnish similar protection, including, but
not limited to, providing a trust fund, a letter of credit, or
self-insurance, on behalf of any officer or director against any liability
asserted against the person in such capacity whether or not the corporation
would have the power to indemnify the person against such liability under
the provisions of this section.
The indemnification authorized by Section 53-11-4.1 is not
exclusive of any other rights to which an officer or director may be
entitled under the articles of incorporation, the bylaws, an agreement, a
resolution of shareholders or directors or otherwise.
Article Sixth of the Restated Articles of Incorporation of the
Company provides that a director of the Company shall not be personally
liable to the Company or to the shareholders for monetary damages for a
breach of fiduciary duty as a director unless such director has breached or
failed to perform the duties of his or her office in accordance with the
NMBCA, and the breach or failure to perform constitutes negligence, willful
misconduct, or recklessness.
Article IV of the Bylaws of the Company requires the Company,
to the fullest extent permitted by the NMBCA, to pay or reimburse expenses,
liabilities, and losses incurred by an officer or director involved in any
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative by reason of the fact that such person is or was serving as
an officer or director of the Company.
The Bylaws also require the Company to pay or reimburse all
covered expenses to an officer or director promptly upon receipt of a
written claim and, where the claimant seeks an advancement of expenses, an
undertaking by or on behalf of the person to repay such amounts if it
should ultimately be determined by a court of final jurisdiction that such
person is not entitled to indemnification.
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The Company has entered into indemnity agreements with each
officer and director of the Company. These contracts provide for the
advancement of expenses (including attorneys' fees) incurred or to be
incurred by an officer or director in connection with a proceeding. The
contracts also provide for indemnification of such persons against
expenses, liabilities, and losses.
Pursuant to each director's indemnity agreement, the Company
keeps in effect a letter of credit in the face amount of $5,000,000
obtained from a commercial bank for the benefit of all directors who are a
party to an indemnity agreement. A director who has incurred or may incur
expenses in connection with a proceeding prior to the final disposition of
such a proceeding for any reason may request an independent trustee to draw
upon the letter of credit for the payment or advancement of such expenses.
Upon such request, the trustee will draw upon the letter of credit and
deliver such funds to such director.
The Company is insured up to $25,000,000 against loss in excess
of $200,000 because of any claim made against the Company or its officers
or directors and alleged to have been caused by any negligent act, error,
omission, or breach of duty by its officers or directors. The insurance is
subject to certain exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Reference is made to the Exhibit Index filed as a part of
this Registration Statement.
(b) The Registrant will submit or has submitted the Plans and
any amendments thereto to the Internal Revenue Service ("IRS") in a timely
manner and has made or will make all changes required by the IRS in order
to qualify the Plans.
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Item 9. Undertakings.
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
2. That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
4. That, for purposes of determining 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 that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the
<PAGE>
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securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
5. 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, the Company will, unless, in the opinion of its counsel, the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether or not such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
The Registrant
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 Amarillo, State of Texas, on
February 27, 1995.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By /s/ Bill D. Helton
Bill D. Helton
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
Principal Executive and Chairman of the Board February 27, 1995
Financial Officer and and Chief Executive
Director: Officer
/s/ Bill D. Helton
Bill D. Helton
Principal Accounting Executive Vice February 27, 1995
Officer: President,
Accounting and
Corporate
Development
/s/ Doyle R. Bunch II
Doyle R. Bunch II
<PAGE>
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Directors: )
Gene H. Bishop* )
C. Coney Burgess* )
J.C. Chambers* )
Danny H. Conklin* ) Directors February 27, 1995
Giles M. Forbess* )
R.R. Hemminghaus* )
Don Maddox* )
J. Howard Mock* )
Shirley Bird Perry* )
Coyt Webb* )
Gary W. Wolf* )
*By: /s/ Robert D. Dickerson
Robert D. Dickerson
Attorney-in-Fact
<PAGE>
The Plans
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Amarillo, State of
Texas, on February 27, 1995.
SOUTHWESTERN PUBLIC SERVICE COMPANY
EMPLOYEE INVESTMENT PLAN
By: /s/ Bill D. Helton
Name: Bill D. Helton
Title: Chairman, Management
Retirement Committee
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Amarillo, State of
Texas, on February 27, 1995.
SOUTHWESTERN PUBLIC SERVICE COMPANY
NON-QUALIFIED SALARY DEFERRAL PLAN
By: /s/ Bill D. Helton
Name: Bill D. Helton
Title: Chairman, Management
Retirement Committee
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Exhibit
4(a) - Restated Articles of Incorporation as amended through April 27,
1990 (exhibit 3 Form 10-Q for the quarter ended May 31, 1990).*
4(b) - Employee Investment Plan.
4(c) - Non-Qualified Salary Deferral Plan.
4(d) - Rights Agreement (exhibit 4(a) Form 8-K dated July 23, 1991).*
5 - Opinion of Hinkle, Cox, Eaton, Coffield & Hensley, counsel for
the Company.
15 - Letter re Unaudited Interim Financial Information.
23(a) - Consent of Hinkle, Cox, Eaton, Coffield & Hensley (included in
Exhibit 5).
23(b) - Consent of Deloitte & Touche, LLP, independent certified public
accountants.
23(c) - Consent of KPMG Peat Marwick LLP, independent certified public
accountants.
24 - Powers of Attorney.
__________________
* Incorporated herein by reference.
2/17/95
SOUTHWESTERN PUBLIC SERVICE COMPANY
EMPLOYEE INVESTMENT PLAN
EFFECTIVE AS OF MARCH 1, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I PURPOSE AND ESTABLISHMENT OF THE PLAN . . . . . . . . . . 1
1.01 Establishment of the Plan . . . . . . . . . . . . . . 1
1.02 Purpose . . . . . . . . . . . . . . . . . . . . . . . 2
1.03 Trust Agreement . . . . . . . . . . . . . . . . . . . 2
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III REQUIREMENTS FOR ELIGIBILITY AND
PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 15
3.01 Service . . . . . . . . . . . . . . . . . . . . . . . 15
3.02 Employment with a Predecessor Employer . . . . . . . 15
3.03 Eligibility Year of Service . . . . . . . . . . . . . 16
3.04 Reemployment of Participants . . . . . . . . . . . . 16
3.05 Change in Status of Eligible Employee . . . . . . . . 16
3.06 Participation in the Plan . . . . . . . . . . . . . . 16
ARTICLE IV CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . 17
4.01 Company Contributions . . . . . . . . . . . . . . . . 17
4.02 Elective Contributions . . . . . . . . . . . . . . . 17
4.03 Limitations on Elective Contributions . . . . . 18
4.04 Company Matching Contributions . . . . . . . . . 25
4.05 Date of Payment and Allocation of Company
Contributions, Company Matching Contributions
and Elective Contributions . . . . . . . . . . . . . 26
4.06 Limitation on Company Matching Contributions . . . . 26
4.07 Rollovers . . . . . . . . . . . . . . . . . . . . . . 30
4.08 In-Service Withdrawals . . . . . . . . . . . . . . . 32
ARTICLE V ALLOCATION TO PARTICIPANTS' ACCOUNTS . . . . . . . . . . . . . 34
5.01 Method of Allocating Company Matching
Contributions . . . . . . . . . . . . . . . . . . . . 34
5.02 Allocation to a Participant Transferred to an
Affiliated Company Which Has Not Adopted
the Plan . . . . . . . . . . . . . . . . . . . . . . 35
5.03 Method of Allocating Company Contributions . . . . . 35
5.04 Limitation on Annual Additions . . . . . . . . . . . 36
5.05 Limitations on Annual Additions for Employers
or Affiliated Companies Maintaining Other
Defined Contribution Plans . . . . . . . . . . . . . 38
i
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5.06 Limitations on Annual Additions for Employers
or Affiliated Companies Maintaining Defined
Benefit Plans . . . . . . . . . . . . . . . . . . . . 38
5.07 Definitions for Purposes of Determining the Annual
Addition Limitations . . . . . . . . . . . . . . . . 39
5.08 Cessation of Eligible Employee Status . . . . . . . . 40
ARTICLE VI ACCOUNTS AND VALUATION OF TRUST FUND . . . . . . . . . . . 40
6.01 Participant's Accounts . . . . . . . . . . . . . . . 40
6.02 Accounts of Participants Transferred to an
Affiliated Company Which Has Not Adopted
the Plan . . . . . . . . . . . . . . . . . . . . . . 41
6.03 Valuation of the Trust Fund and
Account Statements . . . . . . . . . . . . . . . . . 41
6.04 Periodic Determination of Participant's Accounts . . 42
6.05 Correction of Participants' Accounts . . . . . . . . 45
ARTICLE VII RETIREMENT BENEFITS . . . . . . . . . . . . . . . . . . . 45
ARTICLE VIII DISABILITY BENEFITS . . . . . . . . . . . . . . . . . . . 45
8.01 Disability Retirement Benefits . . . . . . . . . . . 45
8.02 Determination of Disability . . . . . . . . . . . . . 46
ARTICLE IX DEATH BENEFITS . . . . . . . . . . . . . . . . . . . . . . 46
9.01 Death Benefits . . . . . . . . . . . . . . . . . . . 46
9.02 Designation of Beneficiaries . . . . . . . . . . . . 47
ARTICLE X EMPLOYMENT TERMINATION BENEFITS . . . . . . . . . . . . . 48
ARTICLE XI PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . 49
11.01 Time and Method for Distribution of Benefits . . 49
11.02 Limitations on Timing . . . . . . . . . . . . . 50
11.03 Payments on Personal Receipt Except in Case
of Minors or Persons Under a Legal Disability . . . . 51
11.04 Distribution Limitations Applicable to
Elective Contributions . . . . . . . . . . . . . . . 51
11.05 Distribution Limitations Applicable to ESOP
Accounts . . . . . . . . . . . . . . . . . . . . . . 52
11.06 Direct Rollovers to Eligible Retirement Plans . 52
ARTICLE XII MISCELLANEOUS PROVISIONS RESPECTING
PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . . 53
12.01 Participants to Furnish Required Information . . 53
12.02 Participants' Rights in Trust Fund . . . . . . . 54
ii
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12.03 Inalienability of Benefits . . . . . . . . . . . 54
12.04 Conditions of Employment Not Affected by Plan . 56
12.05 Address for Mailing of Benefits . . . . . . . . 56
12.06 Unclaimed Account Procedure . . . . . . . . . . 56
ARTICLE XIII ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . 58
13.01 Appointment of Committee . . . . . . . . . . . . 58
13.02 Compensated Expenses of the Committee . . . . . 58
13.03 Secretary and Agents of the Committee . . . . . 58
13.04 Actions of Committee . . . . . . . . . . . . . . 58
13.05 Authority of Committee . . . . . . . . . . . . . 59
13.06 General Administrative Powers . . . . . . . . . 60
13.07 Plan Administrator . . . . . . . . . . . . . . . 60
13.08 Duties of Administrative Personnel . . . . . . . 60
13.09 Designation of Named Fiduciaries and Allocation
of Responsibility . . . . . . . . . . . . . . . . . . 61
13.10 Action by Fiduciaries . . . . . . . . . . . . . 61
13.11 Appointment of Professional Assistants and the
Investment Manager . . . . . . . . . . . . . . . . . 62
13.12 Bond . . . . . . . . . . . . . . . . . . . . . . 62
13.13 Indemnity . . . . . . . . . . . . . . . . . . . 62
13.14 Payment of Expenses . . . . . . . . . . . . . . 63
ARTICLE XIV INVESTMENT IN TRUST FUND . . . . . . . . . . . . . . . . . 64
14.01 Investment in Company Stock Fund . . . . . . . . 64
14.02 Participant Investment Direction . . . . . . . . 65
14.03 Diversification of Participant's Accounts . . . 66
14.04 Funding Policy . . . . . . . . . . . . . . . . . 67
14.05 Reservation of Cash . . . . . . . . . . . . . . 67
14.06 Voting of Company Stock; Tender Offers . . . . . 67
ARTICLE XV PARTICIPATION BY EMPLOYERS . . . . . . . . . . . . . . . . 70
15.01 Adoption of Plan by Affiliated Company . . . . . 70
15.02 Rights and Obligations of the Sponsoring
Company and the Employers . . . . . . . . . . . . . . 70
15.03 Withdrawal from Plan . . . . . . . . . . . . . . 70
ARTICLE XVI AMENDMENT OF THE PLAN . . . . . . . . . . . . . . . . . . 71
16.01 Authority to Amend . . . . . . . . . . . . . . . 71
16.02 Trustee's Consent . . . . . . . . . . . . . . . 71
16.03 Limitations of Vesting Changes . . . . . . . . . 71
16.04 Limitations on Other Changes . . . . . . . . . . 72
16.05 Statutorily Required Amendments . . . . . . . . 72
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ARTICLE XVII PERMANENCY OF THE PLAN . . . . . . . . . . . . . . . . . . 72
17.01 Right to Terminate Plan . . . . . . . . . . . . 72
17.02 Merger or Consolidation of Plan and Trust . . . 73
17.03 Continuance by Successor Company . . . . . . . . 73
ARTICLE XVIII DISCONTINUANCE OF CONTRIBUTIONS AND
TERMINATION . . . . . . . . . . . . . . . . . . . . . . . 73
18.01 Suspension of Contributions . . . . . . . . . . 73
18.02 Discontinuance of Contributions . . . . . . . . 73
18.03 Termination of Plan and Trust . . . . . . . . . 74
18.04 Participant's Rights to Benefits upon
Termination or Partial Termination of Plan or
Complete Discontinuance of Contributions . . . . 74
ARTICLE XIX EXCLUSIVE BENEFIT OF THE PLAN . . . . . . . . . . . . . . 74
19.01 Limitation on Reversions . . . . . . . . . . . . 74
19.02 Unallocated Amounts upon Termination of Plan
and Trust . . . . . . . . . . . . . . . . . . . 75
19.03 Mistake of Fact or Disallowance of Deduction . . 75
19.04 Failure of Qualification of Plan and Trust . . . 75
ARTICLE XX TOP HEAVY PLAN RULES . . . . . . . . . . . . . . . . . . . 76
20.01 Definitions . . . . . . . . . . . . . . . . . . 76
20.02 Determination of Top Heaviness . . . . . . . . . 78
20.03 Minimum Requirements . . . . . . . . . . . . . . 81
20.04 Minimum Benefits for Employers or Affiliated
Companies Maintaining Defined Benefit Plans . . 81
20.05 Super Top Heavy Plans . . . . . . . . . . . . . 82
ARTICLE XXI ESOP EXEMPT LOAN PROVISIONS . . . . . . . . . . . . . . . 82
21.01 Effect of Article . . . . . . . . . . . . . . . 82
21.02 Definitions . . . . . . . . . . . . . . . . . . 82
21.03 Company Contributions . . . . . . . . . . . . . 83
21.04 Release of Shares from Suspense Accounts . . . . 83
21.05 Limitations on Annual Additions . . . . . . . . 84
21.06 Determination of Net Earnings and Adjustments
in Value . . . . . . . . . . . . . . . . . . . . 85
21.07 Voting of Company Stock . . . . . . . . . . . . 85
21.08 Tender Offer on Company Stock . . . . . . . . . 85
21.09 Forfeiture of Accounts . . . . . . . . . . . . . 85
21.10 Distribution of Benefits . . . . . . . . . . . . 86
21.11 Further Conditions . . . . . . . . . . . . . . . 86
iv
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ARTICLE XXII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 86
22.01 Effect of Bankruptcy and Other Contingencies
Affecting an Employer . . . . . . . . . . . . . 86
22.02 Benefits Payable by Trust . . . . . . . . . . . 87
22.03 Withholding . . . . . . . . . . . . . . . . . . 87
22.04 Interpretation of the Plan and Trust . . . . . . 87
22.05 Provisions Hereof for Sole Benefit of Parties
Hereto and Participants . . . . . . . . . . . . 87
22.06 Article and Section Headings . . . . . . . . . . 87
22.07 Formal Action by Employer . . . . . . . . . . . 87
22.08 Right to Require Repurchase of Shares of
Company Stock . . . . . . . . . . . . . . . . . 88
22.09 Restrictions on Transfer of Company Stock . . . 90
22.10 APPLICABLE LAW . . . . . . . . . . . . . . . . . 91
v
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SOUTHWESTERN PUBLIC SERVICE COMPANY
EMPLOYEE INVESTMENT PLAN
ARTICLE I
PURPOSE AND ESTABLISHMENT OF THE PLAN
1.01 Establishment of the Plan. Southwestern Public Service Company
(the "Sponsoring Company") previously adopted and established a tax benefit,
investment savings stock bonus plan (the "Tax Benefit Plan") for the
exclusive benefit of its eligible employees and their beneficiaries,
effective as of March 1, 1985. Subsequent thereto, the Tax Benefit Plan was
amended from time to time and was adopted by certain Affiliated Companies.
Effective as of September 1, 1989, the Sponsoring Company and certain
Affiliated Companies amended and restated the Tax Benefit Plan in its
entirety, and effective December 1, 1994, the Tax Benefit Plan was amended to
satisfy the requirements of an employee stock ownership plan and to permit
the distribution of cash dividends to participants.
Effective as of September 1, 1974, the Sponsoring Company adopted
and established a tax credit employee stock ownership plan and trust (the
"ESOP") for the benefit of its eligible employees. Subsequent thereto, the
ESOP was amended from time to time, and was adopted by certain Affiliated
Companies. Effective as of September 1, 1989, the Sponsoring Company and
certain Affiliated Companies amended and restated the ESOP in its entirety.
Effective as of March 1, 1995 (the "Effective Date"), the
Sponsoring Company and certain Affiliated Companies, by execution of this
document, are merging the ESOP into the Tax Benefit Plan, thereby creating a
new stock bonus/employee stock ownership plan as a continuation of the Tax
Benefit Plan in accordance with the terms and conditions hereinafter set
forth. The plan as set forth herein shall hereafter be known as the
"Southwestern Public Service Company Employee Investment Plan."
Except as otherwise provided herein, and subject to the following
sentence, the provisions of the Plan as contained herein are applicable to
Employees and Participants who die, retire, suffer Total and Permanent
Disability or Termination of Employment on or after March 1, 1995, or who are
reemployed by an Employer or Affiliated Company on or after March 1, 1995.
Except as otherwise provided herein, any employee or participant in either
the ESOP or the Tax Benefit Plan who died, retired, became disabled or
terminated employment prior to March 1, 1995 shall receive any benefits to
which he or she is entitled based upon the appropriate provisions of the ESOP
or Tax Benefit Plan, as the case may be, as in effect prior to March 1, 1995.
1.02 Purpose. The purposes of the Plan are to encourage employee thrift
and savings by allowing eligible employees to enter into a cooperative
<PAGE>
savings program with their employer, to provide an additional opportunity for
eligible employees to share in the growth and prosperity of the Sponsoring
Company and to provide eligible employees with an opportunity to accumulate
additional capital for their future economic security. The primary purpose
of the Plan is to enable Participants to acquire stock ownership interests in
the Sponsoring Company, and therefore, the Plan is designed to invest
primarily in Company Stock. To provide all of the intended benefits
described herein, a Participant must elect to defer a portion of his
Compensation through salary reduction, and the Employer will contribute an
amount which, in part, will be allocated on the basis of the salary reduction
deferred amounts and, in part, allocated on the basis of Compensation, as
well as an amount equal to the salary reduction deferred amounts. Such
contributions and any income derived therefrom shall be for the exclusive
benefit of the Employers' employees and their beneficiaries and shall not be
used for, or diverted to, any other purpose except as otherwise provided in
Article XIX of the Plan.
It is the intention of the Employers that the Plan shall continue
to meet all of the requirements necessary or appropriate to qualify it as an
employee stock ownership plan with a cash or deferred arrangement feature,
under Code Sections 401(a), 401(k), 409 (where applicable) and 4975(e)(7)
and, if and where appropriate, with respect to the tax credit employee stock
ownership plan features, Section 301(d) of the Tax Reduction Act of 1975, and
Sections 41, 44G and 409(A) (or 409, where applicable) of the Internal
Revenue Code of 1954, as amended, and that the Trust made a part hereof shall
continue to be exempt from tax under Code Section 501(a) and all provisions
hereof shall be interpreted accordingly.
1.03 Trust Agreement. In furtherance of this Plan, the trust agreements
under the ESOP and the Tax Benefit Plan are being amended and restated to
create the Trust Agreement, effective as of March 1, 1995, which is made a
part hereof, for the purpose of maintaining the Trust to fund the benefits of
this Plan as hereinafter set forth.
ARTICLE II
DEFINITIONS
As used in the Plan:
2.01 "Account" or "Accounts" shall mean all or any of the Company
Contribution Account, the ESOP Employer Contribution Account, the ESOP
Employee Contribution Account, the Company Matching Contribution Account, the
Employee Elective Contribution Account, the Rollover Account and the QDRO
Account to the extent any one or more of such accounts have been created for
a Participant, Beneficiary or Alternate Payee. Any of the Accounts may have
such subaccounts as are from time to time administratively necessary, as
determined by the Committee.
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2.02 "Affiliated Company" shall mean any of the following which itself
is not an Employer: (i) a member of a controlled group of corporations of
which an Employer is a member as defined in Code Section 414(b), (ii) any
trade or business (whether or not incorporated) which is under common control
with an Employer as determined in accordance with Code Section 414(c) and
regulations issued thereunder, (iii) a member of an "affiliated service
group" (whether or not incorporated) as determined in accordance with Code
Section 414(m) and regulations issued thereunder, of which an Employer is a
member, or (iv) any other entity which is required to be aggregated with an
Employer in accordance with Code Section 414(o) and the regulations issued
thereunder. "Affiliated Company" as defined in clauses (i) and (ii) shall be
modified as required by Code Section 415(h) when used in Sections 5.03, 5.04
and 5.05 hereof with respect to limitations on Annual Additions.
2.03 "Alternate Payee" shall mean an individual or trust entitled to
benefits under the Plan pursuant to a Qualified Domestic Relations Order.
2.04 "Beneficiary" shall mean any person or entity entitled to receive
benefits which are payable upon or after a Participant's death pursuant to
Article IX hereof.
2.05 "Board" shall mean the Board of Directors of the Sponsoring
Company, as from time to time constituted.
2.06 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time. References to any section of the Internal Revenue Code
shall include any successor provision thereto.
2.07 "Committee" shall mean the Committee provided for in Section 13.01
hereof. "Committee" shall have the same meaning as Committee as defined in
the Tax Benefit Plan.
2.08 "Company Contribution Account" shall mean the separate account
maintained for each Participant reflecting Company Contributions and
Forfeitures allocated to such Participant in accordance with Sections 4.01
and 5.03 hereof, as adjusted in accordance with the provisions of Article VI
hereof.
2.09 "Company Matching Contribution Account" shall mean the separate
account maintained for each Participant reflecting Company Matching
Contributions allocated to such Participant as provided in Sections 4.04 and
5.01 hereof, as adjusted in accordance with the provisions of Article VI
hereof and shall include the amounts held in the Company Contribution Account
under the Tax Benefit Plan.
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2.10 "Company Stock" shall mean the common stock, par value One Dollar
($1.00), of Southwestern Public Service Company.
2.11 "Compensation" shall mean base compensation as reflected on the
Employer's payroll records actually paid by an Employer to an Employee during
the Plan Year, including an Employee's Elective Contributions under this Plan
and an Employee's elective salary deferrals pursuant to Code Section 125, but
excluding overtime, bonuses, commissions, moving expense allowances and other
extraordinary compensation, and excluding Company Contributions or any other
Employer contributions to this Plan or employer contributions under any other
employee benefit plan and all other deferred compensation; provided, however,
in the event that an employee is disabled and is receiving payments under any
workers' compensation laws but is simultaneously receiving compensation from
the Employer, such Participant's Compensation for the period while receiving
such workers' compensation payments shall be based upon his rate of pay from
the Employer as in effect from time to time during such period determined
without regard to the fact that such Participant is receiving payments under
any workers' compensation laws.
Compensation shall not include any Compensation in excess of One Hundred
Fifty Thousand Dollars ($150,000) or such larger amount as results from the
adjustment provided for in Code Section 401(a)(17)(B). In applying this
limitation, the family group of a Highly Compensated Employee who is subject
to the family member aggregation rules of Code Section 414(q)(6) because such
Employee is either a five percent owner of the Employer or one of the ten
(10) Highly Compensated Employees paid the greatest Limitation Year
Compensation during the year, shall be treated as a single Participant,
except that for this purpose, Family Members shall include only the affected
Participant's spouse and any lineal descendants who have not attained age
nineteen (19) before the close of the year. In the event the Highly
Compensated Employee's and one or more Family Member's Compensation for a
Plan Year from an Employer are limited pursuant to the provisions of this
Section, then the Compensation of each such person for such Plan Year shall
be reduced proportionately based on the ratio of their respective
Compensation to the aggregate Compensation of both (or all) of such persons
for such Plan Year.
2.12 "Date of Employment" or "Date of Reemployment" shall mean the day
on which an Employee first commences employment or reemployment following
Termination of Employment, retirement after attaining his Retirement Date or
recovery from Total and Permanent Disability, as the case may be, with an
Employer or an Affiliated Company by performing an Hour of Service.
2.13 "Elective Contributions" shall mean the amount each Participant has
elected to have the Employer contribute on his behalf, in lieu of cash
compensation, pursuant to the provisions of Section 4.02 hereof. Such
amounts are intended to qualify as elective contributions under Code Section
401(k) and the regulations thereunder. "Elective Contributions" shall also
mean Elective Contributions as defined in and made to the Tax Benefit Plan.
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2.14 "Eligible Employee" shall mean any Employee except the following
individuals: (i) any Employee whose rate of Compensation is not expressed by
an Employer as being on a monthly or annual basis, irrespective of whether or
not such person is entitled to receive overtime pay under the provisions of
the Fair Labor Standards Act, (ii) any Employee who is included in a unit of
employees covered by an agreement that the Secretary of Labor finds to be a
collective bargaining agreement between employee representatives (within the
meaning of Code Section 7701(a)(46)) and one (1) or more Employers if
retirement benefits were the subject of good faith bargaining between such
parties, unless the collective bargaining agreement expressly provided for
the inclusion of such employees as Eligible Employees under this Plan, (iii)
a nonresident alien who receives no earned income within the meaning of Code
Section 911(b), and (iv) any Employee who is a "leased employee" as defined
in Section 2.15 hereof.
2.15 "Employee" shall mean any person who is employed by one or more
Employers, is on an Employer's payroll, and whose wages are subject to FICA
withholding. Employee also includes any person who is not employed by an
Employer but is performing services for an Employer pursuant to an agreement
between such Employer or an Affiliated Company and a leasing organization and
who is a "leased employee" as that term is defined in Code Section 414(n). A
"leased employee" shall not be an Employee, however, if (1) such person is
covered by a money purchase pension plan qualified under Code Section 401(a)
providing (i) a nonintegrated employer contribution rate of at least ten (10)
percent of Limitation Year Compensation as defined in Subsection 5.07(7)
hereof, but including amounts contributed pursuant to a salary reduction
agreement which are excludable from such person's gross income under Code
Sections 125, 402(a)(8), 402(h) or 403(b), (ii) immediate participation, and
(iii) full and immediate vesting, and (2) "leased employees" do not
constitute more than twenty percent (20%) of the Employer's or Affiliated
Company's work force who are Non-Highly Compensated Employees. However,
except to the extent otherwise provided in regulations under Code Section
414(n), in the event a "leased employee" subsequently becomes an Employee as
defined herein, the period from and after January 1, 1984 during which said
leased employee performed services for an Employer or an Affiliated Company
as a leased employee shall be taken into account in determining such person's
Eligibility Years of Service under the Plan in accordance with and subject to
the remainder of the provisions of the Plan, as if such employee were
employed by an Employer or an Affiliated Company during such period.
2.16 "Employee Elective Contribution Account" shall mean the separate
account maintained for each Participant reflecting the Elective Contributions
made on behalf of such Participant pursuant to Section 4.02 hereof, if any,
as adjusted in accordance with the provisions of Article VI of the Plan, and
shall include amounts held in the Elective Contribution Account under the Tax
Benefit Plan.
2.17 "Employer" shall mean the Sponsoring Company, Utility Engineering
Corporation, Quixx Corporation, or any other Affiliated Company which adopts
the Plan pursuant to Article XV hereof.
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2.18 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. References to any Section of ERISA shall
include any successor provision thereto.
2.19 "ESOP" shall mean the Southwestern Public Service Company Employee
Stock Ownership Plan and Trust as in effect at any time and from time to time
on and prior to February 28, 1995, as the context so requires.
2.20 "ESOP Employee Contribution Account" shall mean the separate
account maintained for each Participant who was a participant in the ESOP
consisting of the contributions made by the participant as described in
Section 5(a) of the ESOP as in effect on and prior to February 28, 1995, plus
earnings and/or losses (including appreciation and depreciation) credited to
such contributions under the ESOP and credited to such Account hereunder.
Any amounts credited to a Participant's ESOP Employee Contribution Account
shall at all times, be fully vested and nonforfeitable.
2.21 "ESOP Employer Contribution Account" shall mean the separate
account maintained for each Participant who was a participant in the ESOP
consisting of the contributions made by the Employers as described in
Sections 2.02(a), 2.02(b), 2.02(c) and 5(b)(i)(A) of the ESOP as in effect on
and prior to February 28, 1995, plus earnings and/or losses (including
appreciation and depreciation) credited to such contributions under the ESOP
and credited to such Account hereunder. Any amounts credited to a
Participant's ESOP Employer Contribution Account shall at all times, for all
purposes and in all respects be fully vested and nonforfeitable.
2.22 "Fiscal Year" shall mean the fiscal year of an Employer. The
Fiscal Year of the Sponsoring Company ends on August 31.
2.23 "Hour of Service" shall mean each hour for which an Employee is
paid or entitled to payment for the performance of duties for an Employer or
an Affiliated Company.
2.24 "Investment Manager" shall mean any fiduciary other than the
trustee or a Named Fiduciary that: (i) is either (a) registered as an
investment adviser under the Investment Advisers Act of 1940 and registered
under the laws of Texas, or (b) a bank (as defined in the Investment Advisers
Act of 1940), or (c) an insurance company qualified to manage, acquire or
dispose of Plan assets under the laws of more than one state, (ii)
acknowledges in writing that it is a fiduciary with respect to the Plan, and
(iii) is granted the power to manage, acquire or dispose of any asset of the
Plan pursuant to Section 13.11 hereof.
2.25 "Leave of Absence" shall mean an absence from the active employment
of an Employer by reason of an approved absence granted by such Employer on
the basis of a uniform policy applied by such Employer without
discrimination.
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2.26 "One-Year Period of Severance" shall mean a twelve (12)-consecutive
month Period of Severance.
Notwithstanding any other provision of this Section 2.26 to the
contrary, solely for purposes of determining whether an Employee has a
One-Year Period of Severance, in the case of an Employee who is first absent
from work for any period: (i) by reason of (a) the Employee's pregnancy, (b)
the birth of the Employee's child, (c) the placement of a child with the
Employee in connection with adoption of such child by the Employee, or (ii)
for the purpose of caring for such child for a period beginning immediately
following such birth or placement, the (12)-consecutive month period
beginning on the first anniversary of the first date of such absence shall
not constitute a One-Year Period of Severance. The period between the first
and second anniversaries of the first date of such absence is neither a
Period of Service nor a Period of Severance. Notwithstanding the provisions
of this Section, no credit shall be given pursuant to this Section unless the
Employee furnishes the Committee with such information as the Committee shall
require to establish: (i) that the absence from work was for the reasons
referred to herein, and (ii) the number of days for which there was such an
absence.
2.27 "Participant" shall mean an Eligible Employee who participates in
the Plan as provided in Article III hereof or a former Employee who has a
vested interest in the Plan.
2.28 "Period of Service" shall mean the period of time commencing on an
Employee's Date of Employment or Date of Reemployment, as the case may be,
and ending on such Employee's Severance from Service Date. For the period
prior to the Effective Date, a Participant's or Employee's Period of Service
shall equal his Period of Service under the ESOP, if greater than his Period
of Service as defined herein. A Period of Service shall also include a
Period of Severance of twelve (12) consecutive months or less.
Notwithstanding the preceding sentence:
2.28(1) If an Employee who is on Leave of Absence or is
temporarily laid off, retires or terminates employment during the first
twelve (12) months of such Leave of Absence or temporary layoff, as the case
may be, such Employee's Period of Service shall not include any Period of
Severance beginning on the date such Employee retired after attaining his
Retirement Date or the date he terminated employment and ending on such
Employee's Date of Reemployment, if any, so long as such Date of Reemployment
does not occur within the twelve (12) month period commencing on the date
such Leave of Absence or temporary layoff began.
2.28(2) If an Employee works simultaneously for more than one
Employer and/or Affiliated Company, the total Period of Service for such
Employee shall not be increased by reason of such simultaneous employment.
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2.28(3) In the case of any Employee (i) who became an employee of
the Sponsoring Company on November 1, 1982 as a result of the merger of
Cochran Power & Light Company ("CP&L") into the Sponsoring Company and who
immediately prior to such merger was an employee of CP&L (a "Former CP&L
Employee"), (ii) who became an employee of the Sponsoring Company on May 5,
1983 as a result of the acquisition of the business and assets of New Mexico
Electric Service Company ("NME") by the Sponsoring Company and who
immediately prior to such acquisition was an employee of NME (a "Former NME
Employee"), or (iii) who is a Former CP&L Employee and who immediately prior
to commencing employment with CP&L was employed by NME, so that his
employment with said two companies prior to becoming an employee of the
Sponsoring Company was continuous and uninterrupted (a "Former CP&L/NME
Employee"), "Period of Service" shall include such employee's period of
employment with NME and/or CP&L, as the case may be, beginning with such
employee's last date of hire by CP&L, in the case of a Former CP&L Employee,
or by NME, in the case of a Former NME Employee or a Former CP&L/NME
Employee.
2.29 "Period of Severance" shall mean the period of time commencing on
an Employee's Severance from Service Date and ending on such Employee's Date
of Reemployment, if any.
2.30 "Plan" shall mean the Southwestern Public Service Company Employee
Investment Plan as set forth in this document, and as hereafter amended.
2.31 "Plan Quarter" shall mean the quarter-annual portion of a Plan Year
beginning on each September 1, December 1, March 1 and June 1, as the case
may be.
2.32 "Plan Year" shall mean the twelve (12) consecutive month period
ending on August 31.
2.33 "QDRO Account" shall mean that part of any other Account which has
been isolated from such Account for the benefit of an Alternate Payee
pursuant to a Qualified Domestic Relations Order.
2.34 "Qualified Domestic Relations Order" shall mean a judgment, order
or decree which:
2.34(1) Relates to the provision of child support, alimony
payments, or marital property rights to a spouse, former spouse, child, or
other dependent of a Participant; and
2.34(2) Is made pursuant to a state domestic relations law
(including a community property law); and
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2.34(3) Creates or recognizes the existence of an Alternate
Payee's right to, or assigns to an Alternate Payee the right to, receive all
or a portion of the benefits payable with respect to a Participant under the
Plan; and
2.34(4) Is determined by the Plan Administrator to meet all
applicable requirements pursuant to the procedure established by the
Committee for determining whether an order is a Qualified Domestic Relations
Order pursuant to Code Section 414(p).
2.35 "Required Beginning Date" shall mean April 1 of the calendar year
following the calendar year in which the Participant attains age seventy and
one-half (70-1/2).
2.36 "Retirement Date" shall mean the date on which occurs the
Participant's sixty-fifth (65th) birthday.
2.37 "Severance from Service Date" shall mean the earlier of:
2.37(1) The date on which an Employee suffers a Termination of
Employment, retires after attaining his Retirement Date or after sustaining
Total and Permanent Disability or dies; or
2.37(2) In the case of an Employee on Leave of Absence who does
not return to the active employment of the Employer or an Affiliated Company
at or prior to the expiration of such Leave of Absence, the earlier of (i)
the expiration date of such Leave of Absence, or (ii) the date which is
twelve (12) months after the date on which such Leave of Absence began, or,
in the case of an Employee who becomes absent (whether the absence is with or
without pay) from the active employment of an Employer or an Affiliated
Company by reason of a temporary layoff, the date which is twelve (12) months
after the date on which such Employee first becomes absent.
2.38 "Sponsoring Company" shall mean Southwestern Public Service
Company.
2.39 "Tax Benefit Plan" shall mean the Southwestern Public Service
Company Tax Benefit Plan as in effect at any time and from time to time on
and prior to February 28, 1995, as the context so requires.
2.40 "Termination of Employment" shall mean the earlier of (i) the
termination of employment with all Employers and all Affiliated Companies,
whether voluntarily or involuntarily, other than by reason of a Participant's
retirement after attaining his Retirement Date or as otherwise provided in
Article VII hereof, or after sustaining Total and Permanent Disability, or
death, or (ii) in the case of an Employee on Leave or Absence who does not
return to the active employment of the Employer or an Affiliated Company at
or prior to the expiration of such Leave of Absence, the earlier of (i) the
expiration date of such Leave of Absence, or (ii) the date which is twelve
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(12) months after the date on which such Leave of Absence began, or, in the
case of an Employee who becomes absent (whether the absence is with or
without pay) from the active employment of an Employer or an Affiliated
Company by reason of layoff, the date which is twelve (12) months after the
date on which such Employee first becomes absent. A Leave of Absence will
not constitute a Termination of Employment provided the Employee returns to
the active employment of the Employer at or prior to the expiration of his
leave, or if not specified therein, within the period of time which accords
with such Employer's policy with respect to permitted absences.
Notwithstanding the foregoing provisions of this Section, absence from the
active service of the Employer because of military service will be considered
a Leave of Absence granted by an Employer and will not terminate the
employment of an Employee if he returns to the active employment of an
Employer within the period of time during which he has reemployment rights
under any applicable federal law or within sixty (60) days from and after
discharge or separation from such military service if no federal law is
applicable. However, no provision of this Section or of the remainder of the
Plan shall require reemployment of any Employee whose active service with an
Employer was terminated by reason of military service.
2.41 "Total and Permanent Disability" shall mean the determination under
the Employer's Long-Term Disability Plan that the Participant is eligible to
receive a disability benefit.
2.42 "Trust" shall mean the legal entity resulting from the Trust
Agreement between the Sponsoring Company and the Trustee who receives the
contributions under the Plan, as well as the amounts held under the trusts
funding the ESOP and the Tax Benefit Plan, and holds, invests, and disburses
funds to or for the benefit of Participants and their Beneficiaries.
2.43 "Trust Agreement" shall mean the instrument establishing the Trust,
as amended from time to time.
2.44 "Trust Fund" shall mean all assets of whatsoever kind or nature
from time to time held by the Trustee pursuant to the Trust Agreement without
distinction as to income and principal.
2.45 "Trustee" shall mean the party or parties, individual or corporate,
named in the Trust Agreement and any duly appointed additional or successor
Trustee or Trustees acting thereunder.
2.46 "Valuation Date" shall mean the last day of each Plan Quarter.
2.47 "Valuation Period" shall mean each Plan Quarter.
2.48 Whenever a noun, or a pronoun in lieu thereof, is used in this Plan
in plural form and there be only one person, thing or institution within the
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scope of the word so used, or in singular form and there be more than one
person, thing or institution within the scope of the word so used, such word,
or the pronoun used in lieu thereof, shall have a plural or singular meaning,
as the case may be. Pronouns of the masculine gender may mean the feminine
and vice versa.
2.49 The words "herein," "hereof," and "hereunder" shall refer to the
Plan.
2.50 The expressions listed below shall have the meanings stated in the
Sections or Subsections hereof respectively indicated:
"Actual Contribution
Percentage" or "ACP" Subsection 4.05(1);
Subsection 4.05(6)(a)
"Actual Deferral Percentage" Subsection 4.03(1);
or "ADP" Subsection 4.03(8)(a)
"Aggregated Family Group" Subsection 4.03(8)(f);
Subsection 4.05(6)(b)
"Annual Additions" Section 5.04
"Cash Dividend Account" Subsection 6.04(4)(a)
"Company Contribution" Section 4.01
"Company Matching Contribution" Section 4.04
"Company Stock Fund" Subsection 14.01(1)
"Compensation" Section 2.11
"Current Value" Subsection 6.03(1)
"Defined Benefit Plan" Subsection 5.07(2);
Subsection 20.01(1)
"Defined Benefit Plan Fraction" Subsection 5.07(3)
"Defined Contribution Plan" Subsection 5.07(4);
Subsection 20.01(2)
"Defined Contribution
Plan Fraction" Subsection 5.07(5)
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"Determination Date" Subsection 20.01(3)
"Direct Rollover" Subsection 11.05(2)(iv)
"Distributee" Subsection 11.05(2)(iii)
"Effective Date" Section 1.01
"Eligibility Year of Service" Section 3.03
"Eligible Participant" Section 14.03
"Eligible Retirement Plan" Subsection 11.05(2)(ii)
"Eligible Rollover Distribution" Subsection 11.05(2)(i)
"Eligible Shares" Section 14.03
"Employee Participant" Subsection 4.03(8)(d);
Subsection 4.05(6)(b)
"Entry Date" Section 3.01
"Excess Aggregate Contributions" Subsection 4.05(2)
"Excess Contributions" Subsection 4.03(3)
"Excess Deferrals" Subsection 4.03(7)
"Family Member" Subsection 4.03(8)(f);
Subsection 4.05(6)(b)
"Forfeiture" Subsection 12.06(2)
"Former Employees" Subsection 4.03(8)(b)
"Hardship" Subsection 4.06(1)
"Highly Compensated Employee" Subsection 4.03(8)(b);
Subsection 4.05(6)(b)
"Investment Funds" Subsection 14.02(3)
"Key Employee" Subsection 20.01(4)
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"Key Employee Participant" Subsection 20.01(5)
"Limitation Year" Subsection 5.07(6)
"Limitation Year Compensation" Subsection 4.03(8)(b);
Subsection 5.07(7);
Subsection 20.01(6)
"Named Fiduciaries" Section 13.09
"Net Earnings and Adjustments
in Value of the Trust Fund" Subsection 6.04(2)
"Non-Highly Compensated
Employee" Subsection 4.03(8)(c);
Subsection 4.05(6)(b)
"Non-Key Employee" Subsection 20.01(7)
"Offer" Subsection 14.06(3)
"Option Period" Subsection 22.08(3)
"Option Price" Subsection 22.08(4)
"Permissive Aggregation Group" Subsection 20.01(8)
"Plan Administrator" Section 13.07
"Promissory Note" Subsection 21.02(1)
"Put" Subsection 22.08(1)
"Qualified Consent" Subsection 9.02(2)
"Required Aggregation Group" Subsection 20.01(9)
"Retirement Plan" Subsection 5.07(1)
"Rollover Account" Subsection 4.07(1)
"Rollover Contribution" Subsection 4.07(1);
Subsection 4.07(5)
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"Salary Reduction Agreement" Subsection 4.02(1)
"Super Top Heavy Plan" Subsection 20.02(2)
"Suspense Account" Subsection 21.02(2)
"Tender" Subsection 14.06(3)
"Top Heavy Plan" Subsection 20.02(1)
"Top Heavy Ratio" Subsection 20.02(3)
"Total Compensation" Subsection 4.03(8)(e);
Subsection 4.05(6)(b)
"Valuation Date" Section 2.46;
Subsection 20.01(10)
"Yearly Election Period" Section 14.03
ARTICLE III
REQUIREMENTS FOR ELIGIBILITY AND PARTICIPATION
3.01 Service. Any Eligible Employee who met the eligibility
requirements under the ESOP and/or the Tax Benefit Plan as it existed prior
to the Effective Date shall continue to be a Participant in the Plan on the
Effective Date. Each other Eligible Employee shall become a Participant as
of the June 1, September 1, December 1 or March 1 (the "Entry Date")
coinciding with or next following the date upon which such Eligible Employee
completes an Eligibility Year of Service, provided such Eligible Employee is
so employed on such Entry Date. In the event an Eligible Employee suffers a
Termination of Employment before or after the completion of his Eligibility
Year of Service but prior to the Entry Date upon which such Eligible Employee
would have begun participating in the Plan, and such Eligible Employee is
reemployed by an Employer prior to a twelve (12) consecutive month Period of
Severance, such Eligible Employee shall, upon his reemployment, participate
in the Plan as of the Entry Date that the Participant would have begun
participation had the Employee not incurred a Termination of Employment, and
shall be eligible to elect to have made on his behalf Elective Contributions
from and after the later of his Entry Date or his Reemployment Commencement
Date, provided he complies with the provisions of Section 4.02 hereof. In
the event an Eligible Employee suffers a Termination of Employment prior to
or after completing an Eligibility Year of Service but prior to the Entry
Date upon which such Eligible Employee would have become a Participant, and
such Eligible Employee is reemployed by the Employer after incurring a twelve
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(12)-month Period of Severance, such Employee shall be treated as a new
Employee with no prior service for purposes of participation in the Plan. In
the event an Eligible Employee transfers to an Affiliated Company prior to or
after completing an Eligibility Year of Service but prior to the Entry Date
upon which such Eligible Employee would have become a Participant, and is
employed continuously with an Affiliated Company until his transfer back to
an Employer, such Eligible Employee shall become a Participant as of the
later of (i) the date of his transfer back to an Employer, or (ii) the Entry
Date coinciding with or next following the date upon which such Employee
completes an Eligibility Year of Service, provided such Eligible Employee is
so employed on such Entry Date.
3.02 Employment with a Predecessor Employer. If the Plan had previously
been maintained by a predecessor of an Employer, whether a corporation,
partnership, sole proprietorship or other business entity, any period of
employment with such predecessor shall be treated as a period of employment
with an Employer. If the Plan had not been previously maintained by a
predecessor of an Employer, employment with such predecessor shall not be
taken into account, except to the extent required pursuant to regulations
prescribed by the Secretary of the Treasury or his delegate.
3.03 Eligibility Year of Service. An "Eligibility Year of Service"
shall mean a Period of Service of three hundred sixty-five (365) days,
commencing with an Employee's Date of Employment, or, if applicable, an
Employee's Date of Reemployment, subject to the provisions of Section 3.02
hereof.
3.04 Reemployment of Participants. In the event that a Participant
incurs a Period of Severance and is subsequently reemployed by an Employer,
he shall resume participation in the Plan for all purposes effective as of
his Date of Reemployment.
3.05 Change in Status of Eligible Employee.
3.05(1) In the event an Employee, including an Employee who
previously was not defined as an Eligible Employee under Section 2.14 hereof,
becomes defined as an Eligible Employee, such individual shall become a
Participant in the Plan as of the date he becomes defined as an Eligible
Employee, provided he has met the other requirements for eligibility set
forth in Section 3.01 hereof and previously would have begun to participate
in the Plan had he been defined as an Eligible Employee, or, if he has not
met the other requirements for eligibility set forth in Section 3.01 hereof,
as of the Entry Date after he meets such other eligibility requirements.
3.05(2) In the event a Participant who ceased to be defined as an
Eligible Employee under Section 2.14 hereof but who did not incur a
Termination of Employment with an Employer or an Affiliated Company
subsequently becomes defined as an Eligible Employee again, such Eligible
Employee shall recommence participation in the Plan for all purposes without
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regard to the limitations imposed by Section 5.08 hereof, as of the date he
again becomes defined as an Eligible Employee.
3.06 Participation in the Plan. Each Eligible Employee who was a
Participant in the ESOP and/or the Tax Benefit Plan immediately prior to the
Effective Date shall be eligible to make Elective Contributions on and after
the Effective Date, provided he is still an Eligible Employee. In addition,
any Designation of Beneficiary on file for such Eligible Employee under the
Tax Benefit Plan shall be a valid Designation under this Plan, unless and
until changed in accordance with the provisions of this Plan. Each other
Eligible Employee who becomes a Participant shall be notified when he is
eligible to make Elective Contributions and shall be provided with such
information as is required by the Plan and by ERISA, within the time
prescribed for providing such information. Each such Participant also shall
be provided with a Designation of Beneficiary Form which shall provide for a
designation of one or more Beneficiaries to receive benefits in the event of
the Employee's death, and shall be provided with such forms as may be
necessary to cause Elective Contributions to be made on his behalf to the
Trust.
ARTICLE IV
CONTRIBUTIONS
4.01 Company Contributions. As of the last day of each Plan Quarter,
each Employer shall make a contribution (the "Company Contribution") in cash,
or if appropriate, in shares of Company Stock, to the Trust in such amount as
may be determined by the Committee, to be allocated among the Company
Contribution Accounts of Participants in accordance with Section 5.03 hereof.
In no event, however, shall any Company Contribution for any Plan Quarter by
any Employer be required. In addition, in no event, however, shall any
Company Contribution, when added to any Elective Contributions and Company
Matching Contributions, exceed the maximum deductible contribution under Code
Section 404(a) including any amount which may be deductible by the Employer
under the carryover provisions of the Code. Notwithstanding the foregoing,
to the extent necessary to provide the required top heavy minimum allocation
described in Article XX, an Employer shall make a contribution even if it
exceeds the amount which is deductible under Code Section 404.
4.02 Elective Contributions. In addition to any Company Contribution
permitted hereunder, each Employer shall contribute to the Trust Fund an
amount determined under the provisions of this Section, as an Elective
Contribution, on behalf of each Participant who has in effect an agreement
electing to reduce his or her Compensation ("Salary Reduction Agreement").
The rate to be contributed as an Elective Contribution on behalf of each such
Participant, for each payroll period, as such Participant shall elect, shall
be equal to (i) for Participants who are Non-Highly Compensated Employees (as
defined in Subsection 4.03(8) hereof) from one to fifteen percent (1% - 15%)
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of such Participant's Compensation for the payroll period, and (ii) for
Participants who are Highly Compensated Employees (as defined in Subsection
4.03(8) hereof) from one to fifteen percent (1% - 15%) of such Participant's
Compensation for the payroll period, as determined from time to time and set
by the Committee and communicated to such Participants, based in part on the
anticipated Limitations on Elective Contributions under Section 4.03 hereof
for such Participants. The percentage rate of Elective Contributions, if
any, which each Participant elects must be in whole percentage points and
shall be made on a Salary Reduction Agreement provided by and filed with the
Committee. An election of a rate shall initially be effective as of the date
as specified by the Committee, provided the Salary Reduction Agreement is
filed at the time and in the manner prescribed by the Committee. An election
shall not have retroactive effect and shall remain in force until revoked or
changed. The Committee shall establish and communicate to Participants
uniform and nondiscriminatory procedures for the election of salary reduction
amounts, including procedures regarding the effective dates of any such
elections and for changes in elections and discontinuances of such elections,
and may change said procedures at such times and in such manner as the
Committee may determine to be necessary or desirable. Elective Contributions
made on behalf of a Participant shall be credited to his Employee Elective
Contribution Account under the Plan. Any amounts credited to a Participant's
Employee Elective Contribution Account shall, for all purposes and in all
respects, be fully vested and nonforfeitable.
4.03 Limitations on Elective Contributions. The limitations
described in this Section 4.03 shall be determined in accordance with the
applicable sections of the Code and regulations thereunder.
4.03(1) Notwithstanding any other provision of this Plan, in no
event shall the Employer make an Elective Contribution in any Plan Year if
such contribution would cause the "Actual Deferral Percentage" (or "ADP") of
Highly Compensated Employees to exceed the greater of the limitations
indicated below:
(a) One hundred twenty-five percent (125%) of the ADP
for all Non-Highly Compensated Employees; or
(b) The lesser of (A) the sum of the ADP for all
Non-Highly Compensated Employees plus two percent (2%), or (B) two hundred
percent (200%) of the ADP for all Non-Highly Compensated Employees.
4.03(2) The Committee may, at any time prior to or during a Plan
Year, to the extent necessary to conform the Elective Contributions to the
above limitations or, if applicable, the limitations of Subsection 4.06(8)
hereof, reduce or eliminate prospectively the percentage rates of Elective
Contributions to be made on behalf of Highly Compensated Employees. Such
prospective elimination or reduction shall be applied among the Highly
Compensated Employees who have elected Elective Contributions in such manner
as the Committee, in its sole discretion, shall deem appropriate, taking into
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consideration the ability of any Highly Compensated Employee to defer
compensation under any non-qualified plan maintained by an Employer.
4.03(3) In the event that following the end of a Plan Year, it is
determined by the Committee that the Elective Contributions for Highly
Compensated Employees exceed the limitations of Subsection 4.03(1), then the
amount in excess of such limitation ("Excess Contributions") (and the income
thereon) shall be distributed to the Highly Compensated Employees,
notwithstanding any Plan provision to the contrary, within two and one-half
(2-1/2) months after the close of the Plan Year in which such Excess
Contributions occurred. In distributing Excess Contributions, the following
rules shall apply: The Excess Contributions shall first be applied to reduce
the amount elected by all those Highly Compensated Employees who have elected
the highest percentage rate of Elective Contributions to the percentage rate
elected by all those Highly Compensated Employees (including those Employees
whose percentage rate was previously reduced) whose elected percentage rate
is at the next highest percentage rate of Elective Contributions and shall
thereafter continue to be applied to the extent necessary in like manner in
descending order on the basis of elected percentage rates until the
reductions equal the Excess Contributions and enable the Elective
Contributions to conform to the limitations of Subsection 4.03(1). The
amount of Excess Contributions to be distributed to each affected Highly
Compensated Employee is equal to the Elective Contributions on behalf of such
Employee (prior to reduction of the Excess Contributions) less the product of
such Employee's ADP (after reduction for such Excess Contributions) times
such Employee's Total Compensation, rounded to the nearest one cent ($.01),
and likewise is equal to the amount of reduction provided for hereinabove.
The amount of Excess Contributions that may be
distributed under this Subsection with respect to a Highly Compensated
Employee for a Plan Year shall be reduced by any Excess Deferrals (as defined
in Subsection 4.03(7)) attributable to such Plan Year previously distributed
to such Employee. In the event a distribution of Elective Contributions
constitutes a distribution of Excess Contributions and a distribution of
Excess Deferrals pursuant to Subsection 4.03(7), the amounts distributed
shall be treated as a simultaneous distribution of both Excess Contributions
and Excess Deferrals.
4.03(4) In determining the amount of income allocable to Excess
Contributions which are being distributed, the following rules shall apply:
(a) The income allocable to Excess Contributions for the
Plan Year in which the contributions are made is the income for the Plan Year
allocable to Elective Contributions and amounts treated as Elective
Contributions with respect to the Highly Compensated Employee, multiplied by
a fraction, the numerator of which is the amount of Excess Contributions made
on behalf of the Highly Compensated Employee for the Plan Year and the
denominator of which is the balance of such Employee's Employee Elective
Contribution Account as of the end of the Plan Year before adjustment of such
Account as provided for in Subsection 6.04(3).
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(b) No income shall be allocable to the Excess
Contributions for the period between the end of the Plan Year and the date of
the distribution.
(c) For purposes of this Subsection, the income of the
Plan shall mean all earnings, gains and losses, computed in accordance with
the provisions of Article VI.
4.03(5) Notwithstanding anything to the contrary contained
herein, in the case of a Highly Compensated Employee who is, pursuant to the
requirements of Code Section 414(q)(6), to be treated as part of an
Aggregated Family Group, as defined in Subsection 4.03(8)(f), the following
rules shall apply:
(a) The ADP for the Aggregated Family Group shall be
determined by aggregating the Elective Contributions and Total Compensation
of all Family Members, as defined in Subsection 4.03(8)(f), who are Employee
Participants.
(b) If the limitations of Subsection 4.03(1) are
exceeded, the ADP of the Aggregated Family Group shall be reduced as provided
in Subsection 4.03(2) or (3) in order to comply with the limitations of
Subsection 4.03(1), and if the provisions of Subsection 4.03(3) are
applicable, Excess Contributions shall be allocated among and distributed to
all of the Family Members in proportion to each such Family Member's Elective
Contributions.
4.03(6) In addition to or in lieu of the above procedures to
conform Elective Contributions to the limitations of Subsection 4.03(1), the
Employer may, in its sole discretion, contribute on behalf of any Participant
who is a Non-Highly Compensated Employee additional contributions (which
shall meet the requirements of Treasury Regulation Section 1.401(k)-1(b)(5)
(or any successor thereto), shall be treated as Elective Contributions and
shall be allocated to such Participant's Employee Elective Contribution
Account) to the extent necessary to insure that the limitations of Subsection
4.03(1) are met. Any such additional contributions shall be allocated in a
manner proportionate to the Total Compensation of the affected Participants.
Such additional contributions shall be immediately fully vested and subject
to the distribution restrictions of Sections 4.08 and 11.04 hereof,
applicable to Elective Contributions. In addition, the Committee may
designate that all or part of the Company Contributions or Company Matching
Contributions, or both, allocated to a Participant's Accounts shall be
included in the calculations under Subsection 4.03(1) to the extent necessary
to insure that the limitations of Subsection 4.03(1) are met, provided such
use complies with the requirements of Treasury Regulation Section
1.401(k)-1(b)(5) (or any successor thereto). Any Company Contributions or
Company Matching Contributions, or both, so designated shall not be included
in the calculations under Subsection 4.06(1), shall be treated as Elective
Contributions, shall be allocated to such Participant's Employee Elective
Contribution Account, shall be immediately fully vested and, to the extent
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applicable, shall be subject to the distribution restrictions of Sections
4.08 and 11.04 hereof applicable to Elective Contributions.
4.03(7) Notwithstanding anything herein to the contrary, in no
event shall the Employer make an Elective Contribution in any Plan Year on
behalf of any Participant if such contribution would cause the Elective
Contributions for such Participant for the Participant's taxable year to
exceed Seven Thousand Dollars ($7,000), or such higher amount to which such
amount has been adjusted by the Secretary of the Treasury or his delegate at
the same time and in the same manner as under Code Section 415(d), as of the
beginning of such taxable year. Should any Elective Contribution made to the
Plan by the Employer on behalf of a Participant exceed Seven Thousand Dollars
($7,000), as so adjusted ("Excess Deferrals") on account of the Participant's
Elective Contributions to another plan, contract or arrangement, the
Participant may, not later than March 15 following the close of his taxable
year, notify the Committee in writing of the amount of the Excess Deferral
and the Committee thereafter shall cause such Excess Deferral (and income
allocable thereto) to be distributed to such Participant, notwithstanding any
Plan provision to the contrary, no later than the April 15 next following the
close of the Participant's taxable year in which such Excess Deferral is
made. In the event the Participant's Elective Contributions to the Plan and
other plans, contracts or arrangements of an Employer or an Affiliated
Company constitute Excess Deferrals, such Participant shall be deemed to have
timely notified the Committee of the amount of such Excess Deferral as
provided for in the preceding sentence and the appropriate Employers or
Affiliated Companies shall notify the Committee on behalf of the Participant
under these circumstances. The amount of Excess Deferrals which may be
distributed to the Participant shall not exceed the Participant's Elective
Contributions under the Plan during the Participant's taxable year.
In determining the amount of income allocable to Excess
Deferrals, the following rules shall apply:
(a) The income allocable to Excess Deferrals for the
taxable year in which the deferrals are made is the income for the Plan Year
ending with or within said taxable year allocable to Elective Contributions
for the Participant multiplied by a fraction, the numerator of which is the
amount of Excess Deferrals made on behalf of the Participant for the Plan
Year ending with or within said taxable year and the denominator of which is
the balance of the Participant's Employee Elective Contribution Account as of
the end of the Plan Year ending with or within said taxable year before
adjustment of such Account as provided for in Subsection 6.04(3).
(b) No income shall be allocable to the Excess Deferrals
for the period between the end of the Plan Year and the date of the
distribution.
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(c) For purposes of this Subsection, the income of the
Plan shall mean all earnings, gains and losses computed in accordance with
the provisions of Article VI.
The amount of Excess Deferrals that may be distributed under this
Subsection with respect to a Highly Compensated Employee for any taxable year
of said Employee shall be reduced by any Excess Contributions previously
distributed to the Employee attributable to such taxable year. In the event
a distribution of Elective Contributions constitutes a distribution of Excess
Contributions pursuant to Subsection 4.03(3) and a distribution of Excess
Deferrals pursuant to this Subsection, the amounts distributed shall be
treated as a simultaneous distribution of both Excess Contributions and
Excess Deferrals.
4.03(8) For purposes of this Section 4.03, the following terms
shall have the following meanings:
(a) "Actual Deferral Percentage" (or "ADP") shall mean
for the Highly Compensated Employees, as a group, and for the Non-Highly
Compensated Employees, as a group, the average of the ratios (calculated
separately for each such Employee Participant in such group) of the Elective
Contributions, if any, made on behalf of each such Employee Participant for
each Plan Year, to the Employee Participant's Total Compensation, as defined
in Subsection 4.03(8)(e), for such Plan Year. For purposes of computing ADP,
an Employee Participant who makes no Elective Contributions for a Plan Year
shall be treated as making a zero percent contribution for the Plan Year.
In calculating ADP, an Elective Contribution shall be
taken into account for a Plan Year only if such Elective Contribution: (i)
relates to Total Compensation that would have been received by the Employee
Participant during such Plan Year (but for the salary reduction election) or
is attributable to services performed by the Employee Participant during such
Plan Year and would have been received by the Employee Participant within two
and one-half (2-1/2) months after the close of such Plan Year (but for the
salary reduction agreement); and (ii) is allocated to the Employee
Participant during such Plan Year. An Elective Contribution is treated as
allocated as of a particular date during a Plan Year if allocation of such
contribution is not contingent on participation in the Plan or the
performance of services after such date and such contribution is paid to the
Trust not later than twelve (12) months after the close of such Plan Year.
In calculating the ADP of a Highly Compensated Employee
who participates in more than one plan maintained by an Employer or an
Affiliated Company, all elective deferrals (as defined in Code Section
401(m)(4)) of such Highly Compensated Employee shall be aggregated for
purposes of determining such percentage.
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In calculating the ADP of a Highly Compensated Employee
who has Excess Deferrals, such Excess Deferrals shall be treated as Elective
Contributions for purposes of determining such percentage.
In calculating ADP, all elective deferrals (as defined in
Code Section 401(m)(4)) to any plan required to be aggregated with the Plan
for purposes of Code Section 401(a)(4) or 410(b) shall be treated as if made
under the Plan. If the Plan is permissively aggregated with another plan in
order to comply with the limitations of Subsection 4.03(1), such aggregated
plans must also meet the requirements of Code Sections 401(a)(4) and 410(b)
as a single plan.
(b) "Highly Compensated Employee" shall mean any
employee, including any employees who are, pursuant to the requirements of
Code Section 414(q)(6), to be treated as part of an Aggregated Family Group,
as defined in Subsection 4.03(8)(f) hereof, of an Employer or Affiliated
Company who is a highly compensated employee as defined in Code Section
414(q) and the regulations thereunder. Generally, any such employee is
considered a Highly Compensated Employee if such employee:
(i) was at any time during the current Plan Year or
the prior Plan Year, a "five percent owner", as defined in Code Section
416(i)(1), with respect to an Employer;
(ii) received Limitation Year Compensation from the
Employer in excess of Seventy-Five Thousand Dollars ($75,000) as adjusted by
the Secretary of Treasury pursuant to Code Section 414(q)(1) during the prior
Plan Year or, during the current Plan Year if the employee is one of the one
hundred (100) employees who receive the most Limitation Year Compensation
from the Employer during the current Plan Year;
(iii) received Limitation Year Compensation from
the Employer in excess of Fifty Thousand Dollars ($50,000) as adjusted by the
Secretary of Treasury pursuant to Code Section 414(q)(1), and was in the
top-paid group of employees during the prior Plan Year, or during the current
Plan Year if the employee is one of the one hundred (100) employees who
receive the most Limitation Year Compensation from the Employer during the
current Plan Year. An employee is in the top-paid group of employees for any
Plan Year if such employee is in the group consisting of the top twenty
percent (20%) of the employees when ranked on the basis of Limitation Year
Compensation paid during the Plan Year. For purposes of determining the
number of employees in the top-paid group, there shall not be included
employees who have not completed six (6) months of service, normally work
less than seventeen and one-half (17-1/2) hours per week, normally work
during six (6) or less months per year, have not attained the age of
twenty-one (21), are nonresident aliens with no earned income (within the
meaning of Code Section 911(d)(2)) from the Employer constituting United
States source income (within the meaning of Code Section 861(a)(3)), or are *
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included in a unit of employees covered by a collective bargaining agreement
(except to the extent provided in regulations);
(iv) was at any time during the prior Plan Year, or
during the current Plan Year if the employee is one of the one hundred (100)
employees who receive the most Limitation Year Compensation from the Employer
during the current Plan Year, an officer of an Employer who received
Limitation Year Compensation for a Plan Year in excess of fifty percent (50%)
of the amount in effect under Code Section 415(b)(1)(A) for such Plan Year
(if no officer of an Employer has Limitation Year Compensation in excess of
such amount, the officer having the highest Limitation Year Compensation for
such Plan Year shall be treated as an officer). For purposes of this
Subsection, not more than fifty (50) employees (or, if less, the greater of
three (3) employees or ten percent (10%) of employees) shall be treated as
officers.
For purposes of this Section 4.03, "Limitation Year
Compensation" shall have the same meaning as set forth in Subsection 5.07(7)
hereof, subject to the following: (i) the determination of "Limitation Year
Compensation" shall include amounts deferred pursuant to Code Sections 125,
401(k), 408(k)(6) and 403(b), and (ii) Limitation Year Compensation shall
include compensation paid by any employer required to be aggregated with an
Employer under Code Section 414(b), (c), (m) or (o).
A Former Employee who is an Employee Participant
shall be treated as a Highly Compensated Employee if such Former Employee was
a Highly Compensated Employee when he separated from service with the
Employer or was a Highly Compensated Employee at any time after attaining age
fifty-five (55). "Former Employee" shall mean a person who has been an
employee, but who ceased to be an employee for any reason and later returned
to employment with an Employer.
(c) "Non-Highly Compensated Employee" shall mean each
Employee Participant who is not a Highly Compensated Employee.
(d) "Employee Participant" shall mean each Eligible
Employee who is a Participant.
(e) "Total Compensation" shall mean an Employee
Participant's total compensation for services rendered to an Employer during
the Plan Year, as reported in Box 10 on Form W-2 or other similar location on
any successor federal wage statement as taxable for federal income tax
purposes but determined without regard to any rules that limit the amount
taken into account based on the nature or location of the employment or the
services performed (such as the exception for agricultural labor in Code
Section 3401(a)(2)). Total Compensation shall not include amounts paid or
reimbursed by an Employer or Affiliated Company for moving expenses incurred
by an Employee Participant, but only to the extent that at the time of the
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payment it is reasonable to believe that these amounts are deductible by the
Employee Participant under Code Section 217.
In the event an employee begins, resumes or ceases to be an Employee
Participant during a Plan Year, the amount of such Employee Participant's
Total Compensation for the entire Plan Year that shall be taken into account
for purposes of Section 4.03 shall not include that portion of the Employee's
Total Compensation paid for any period prior to the Entry Date on which an
Employee first becomes a Participant or the date on which a Participant
resumes active participation hereunder or after the date that a Participant
ceases to be an active Participant hereunder.
Total Compensation shall be limited to One Hundred Fifty Thousand
Dollars ($150,000) or such higher amount to which such amount shall be
adjusted by the Secretary of the Treasury or his delegate pursuant to Code
Section 401(a)(17)(B).
Notwithstanding the foregoing, Total Compensation may be modified as
follows:
If elected by the Committee in accordance with Treasury Regulations,
Total Compensation shall include any amount that is not currently includable
in the Employee Participant's gross income by reason of an elective salary
deferral pursuant to an Employer's cafeteria plan established pursuant to
Code Section 125 or any other Employer plan established pursuant to Code
Section 401(k), including this Plan.
If elected by the Committee in accordance with Treasury Regulations,
Total Compensation shall not include reimbursements or other expense
allowances, fringe benefits (cash and non-cash), moving expenses, deferred
compensation and welfare benefits, even if includable in gross income;
provided, however, that if the Committee elects to exclude such amounts, a
Self-Employed Individual's total Earned Income for the Plan Year shall be
multiplied by a fraction, the numerator of which is the Total Compensation of
all Non-Highly Compensated Employees (who are not Self-Employed Individuals)
excluding the foregoing exclusions, and the denominator of which is the Total
Compensation of all Non-Highly Compensated Employees (who are not
Self-Employed Individuals) including the foregoing exclusions.
(f) "Aggregated Family Group" shall mean a family group
of employees employed by an Employer required to be aggregated under Code
Section 414(q)(6) and regulations thereunder and shall include any member of
the family, as defined in Code Section 414(q)(6) and regulations thereunder,
of either (i) a five percent (5%) owner, or (ii) one of the ten (10) Highly
Compensated Employees paid the greatest Limitation Year Compensation for the
current Plan Year. Any spouse, lineal ascendant, lineal descendant, spouse
of a lineal ascendant, or spouse of a lineal descendant of such a Highly
Compensated Employee (a "Family Member") shall be included in the "Aggregated
Family Group."
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4.04 Company Matching Contributions. As of the last day of each Plan
Quarter, each Employer shall make a contribution (the "Company Matching
Contribution") in cash or, if appropriate, in shares of Company Stock, to the
Trust in such amount as may be determined by the Committee, to be allocated
among the Company Matching Contribution Accounts of Participants in
accordance with Section 5.01 hereof. In no event, however, shall any Company
Matching Contribution for any Plan Quarter by any Employer be required. In
addition, in no event, however, shall any Company Matching Contributions,
when added to any Company Contributions and Elective Contributions, exceed
the maximum deductible contribution under Code Section 404(a) including any
amount which may be deductible by the Employer under the carryover provisions
of the Code.
4.05 Date of Payment and Allocation of Company Contributions, Company
Matching Contributions and Elective Contributions. An Employer shall make
its Company Contributions and Company Matching Contributions to the Trust
Fund for a Plan Quarter as soon as administratively possible on or after the
last day of such Plan Quarter. Company Contributions and Company Matching
Contributions shall be deemed to have been made and shall be allocated to the
Company Matching Contribution Accounts and Company Contribution Accounts of
Eligible Participants in accordance with Sections 5.01 and 5.03 hereof as of
the last day of the Plan Quarter for which they are made. An Employer shall
make all Elective Contributions as provided for in Section 4.02 hereof to the
Trust Fund as soon as such amounts reasonably can be segregated from the
general assets of the Employer but in all events within ninety (90) days from
the date on which such amounts would otherwise have been payable to the
Participant in cash. Elective Contributions shall be deemed to have been
made and shall be allocated to the Employee Elective Contribution Accounts of
the Participants for whom they are made in accordance with Section 4.02 as of
the last day of the Plan Quarter for which they are made.
4.06 Limitation on Company Matching Contributions. The limitations
described in this Section shall be determined in accordance with the
applicable Sections of the Code and regulations thereunder.
4.06(1) Notwithstanding any other provision of this Plan, the
"Actual Contribution Percentage" (or "ACP") of Company Matching Contributions
made to this Plan for Highly Compensated Employees during any Plan Year shall
not exceed the greater of the limitations indicated below:
(a) One hundred twenty-five percent (125%) of the ACP
for all Non-Highly Compensated Employees; or
(b) The lesser of (A) the sum of the ACP for all
Non-Highly Compensated Employees plus two percent (2%), or (B) two hundred
percent (200%) of the ACP for all Non-Highly Compensated Employees.
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4.06(2) The Committee may, at any time prior to or during a Plan
Year, to the extent necessary to conform the Company Matching Contributions
to the above limitations or, if applicable, the limitations of Subsection
4.06(8) hereof, reduce or eliminate prospectively the allocation of Company
Matching Contributions for the benefit of Highly Compensated Employees. Such
prospective elimination or reduction shall be applied among the Highly
Compensated Employees who have elected Elective Contributions in such manner
as the Committee, in its sole discretion, shall deem appropriate, taking into
consideration the ability of any Highly-Compensated Employee to defer
compensation under any non-qualified plan maintained by an Employer.
4.06(3) In the event that following the end of the Plan Year, it
is determined by the Committee that the Company Matching Contributions for
Highly Compensated Employees exceed the limitations of Subsection 4.06(1),
then the amount in excess of such limitation ("Excess Aggregate
Contributions") (and income thereon) either shall be distributed to the
Highly Compensated Employees, notwithstanding any Plan provision to the
contrary, within two and one-half (2-1/2) months after the close of the Plan
Year in which such Excess Aggregate Contributions occurred, or forfeited in
accordance with the following rules: The Excess Aggregate Contributions
shall first be applied to reduce the amount allocated to all those Highly
Compensated Employees who have received an allocation of the highest
percentage rate of Company Matching Contributions (that is, those Employees
with the highest contribution ratio (expressed as a percentage of Total
Compensation for such Plan Year) attributable to Company Matching
Contributions) to the percentage rate allocated to all those Highly
Compensated Employees (including those Employees whose percentage rate was
previously reduced) whose contribution ratio is at the next highest
percentage rate of Company Matching Contributions, and shall thereafter
continue to be applied to the extent necessary in like manner in descending
order on the basis of contribution ratios until the reductions equal the
Excess Aggregate Contributions and enable the Company Matching Contributions
to conform to the limitations of Subsection 4.06(1). In applying the
reduction, distribution and forfeiture rules of this Subsection 4.06(3), a
Highly Compensated Employee's Excess Aggregate Contributions shall be
distributed, if vested, or forfeited, if nonvested, in proportion to the
Participant's vested and nonvested interests in all Company Matching
Contributions. For purposes of the foregoing sentence, the Employee's Excess
Aggregate Contributions attributable to the vested portion of the Highly
Compensated Employee's Company Matching Contributions for any Plan Year shall
be the product of (i) the amount of the Employee's Excess Aggregate
Contributions (as adjusted for allocable income) multiplied by (ii) his
vested percentage, determined as of the last day of said Plan Year. The
amount of Excess Aggregate Contributions to be distributed to each affected
Highly Compensated Employee or forfeited, as appropriate, is equal to the
Company Matching Contributions on behalf of such Employee (prior to reduction
of the Excess Aggregate Contributions), less the product of such Employee's
ACP (after reduction for such Excess Aggregate Contributions) times such
Participant's Total Compensation, rounded to the nearest one cent ($.01), and
likewise is equal to the amount of reduction provided for hereinabove.
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4.06(4) In determining the amount of income allocable to Excess
Aggregate Contributions which are being distributed or forfeited, the
following rules shall apply:
(a) The income allocable to Excess Aggregate
Contributions for the Plan Year in which the contributions are made is the
income for the Plan Year allocable to Company Matching Contributions with
respect to the Highly Compensated Employee multiplied by a fraction, the
numerator of which is the amount of Excess Aggregate Contributions made on
behalf of the Highly Compensated Employee for the Plan Year and the
denominator of which is the combined balance of the Participant's Company
Matching Contributions Account as of the end of the Plan Year before
adjustment of such Account as provided for in Subsection 6.04(3) hereof.
(b) No income shall be allocable to the Excess Aggregate
Contributions for the period between the end of the Plan Year and the date of
the distribution.
(c) For purposes of this Subsection, the income of the
Plan shall mean all earnings, gains and losses computed in accordance with
the provisions of Article VI.
4.06(5) Notwithstanding anything to the contrary contained
herein, in the case of a Highly Compensated Employee who is, pursuant to the
requirements of Code Section 414(q)(6), to be treated as part of an
Aggregated Family Group, the following rules shall apply:
(a) The ACP for the Aggregated Family Group shall be
determined by aggregating the Company Matching Contributions and Total
Compensation of all Family Members who are Employee Participants.
(b) If the limitations of Subsection 4.06(1) are
exceeded, the ACP of the Aggregated Family Group shall be reduced as provided
in Subsection 4.06(3) in order to comply with the limitations of Subsection
4.06(1), and if the provisions of Subsection 4.06(3) are applicable, Excess
Aggregate Contributions shall be allocated among and forfeited or distributed
to all of the Family Members in proportion to each such Family Member's
Company Matching Contributions.
4.06(6) In addition to or in lieu of the above procedures to
conform Company Matching Contributions to the limitations of Subsection
4.06(1), the Employer may, in its sole discretion, contribute on behalf of
any Participant who is a Non-Highly Compensated Employee additional
contributions (which shall meet the requirements of Treasury Regulation
Section 1.401(m)-1(b)(5) (or any successor thereto), shall be treated as
Elective Contributions and shall be allocated to such Participant's Employee
Elective Contribution Account) to the extent necessary to insure that the
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limitations of Subsection 4.06(1) are met. Any such additional contributions
shall be allocated in a manner proportionate to the Total Compensation of the
affected Participants. Such additional contributions shall be immediately
fully vested and subject to the distribution restrictions of Section 4.08 and
11.04 hereof, applicable to Elective Contributions. In addition, the
Committee may designate that all or part of the Elective Contributions or
Company Contributions, or both, allocated to a Participant's Accounts shall
be included in the calculations under Subsection 4.06(1) to the extent
necessary to insure that the limitations of Subsection 4.06(1) are met,
provided such use complies with the requirements of Treasury Regulation
Section 1.401(m)-1(b)(5) (or any successor thereto). Any Elective
Contributions or Company Contributions so designated shall not be included in
the calculations under Subsection 4.03(1), shall be treated as Elective
Contributions, shall be allocated to such Participant's Employee Elective
Contribution Account, shall be immediately fully vested and, to the extent
applicable, shall be subject to the distribution restrictions of Sections
4.08 and 11.04 hereof applicable to Elective Contributions.
4.06(7) For purposes of this Section 4.06, the following terms
shall have the following meanings:
(a) "Actual Contribution Percentage" (or "ACP") shall
mean for the Highly Compensated Employees, as a group, and for the Non-Highly
Compensated Employees, as a group, the average of the ratios (calculated
separately for each Employee Participant in such group) of the amount of
Company Matching Contributions paid to the Trust on behalf of each such
Employee Participant for each Plan Year to the Employee Participant's Total
Compensation for such Plan Year. For purposes of computing ACP, an Employee
Participant who makes no Elective Contributions for a Plan Year and who
receives no Company Matching Contributions for a Plan Year shall be treated
as having an ACP of zero for the Plan Year.
In calculating ACP, a Company Matching Contribution shall
be taken into account for a Plan Year only if such Company Matching
Contribution: (i) is made on account of the Employee Participant's Elective
Contributions for the Plan Year, (ii) is allocated to the Employee
Participant during such Plan Year, and (iii) is paid to the Trust not later
than the last day of the twelfth (12th) month following the close of such
Plan Year.
In calculating ACP, all employee contributions and
employer matching contributions (as defined in Code Section 401(m)(4)) of any
Highly Compensated Employee who participates in more than one plan maintained
by an Employer or an Affiliated Company shall be aggregated for purposes of
determining such percentage.
In calculating ACP, all employee contributions and
employer matching contributions (as defined in Code Section 401(m)(4)) to any
plan required to be aggregated with the Plan for purposes of Code Section
401(a)(4) or 410(b) shall be treated as if made under the Plan. If the Plan
is permissively aggregated with another plan in order to comply with the
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limitations of Subsection 4.06(1), such aggregated plans must also meet the
requirements of Code Sections 401(a)(4) and 410(b) as a single plan.
(b) "Highly Compensated Employee," "Employee
Participant," "Non-Highly Compensated Employee," "Total Compensation,"
"Aggregated Family Group," and "Family Member" shall all have the meanings
set forth in Subsection 4.03(8).
(c) "Aggregate Limit" shall mean the greater of:
(a) the sum of (i) 125% of the greater of the ADP
of the Non-Highly Compensated Employees (as a group) for the Plan Year or the
ACP of the Non-Highly Compensated Employees (as a group) for the Plan Year
and (ii) two percentage points plus the lesser of such ADP or ACP; or
(b) the sum of (i) 125% of the lesser of the ADP of
the Non-Highly Compensated Employees for the Plan Year or the ACP of the
Non-Highly Compensated Employees for the Plan Year and (ii) two percentage
points plus the greater of such ADP or ACP.
4.06(8) If one or more Highly Compensated Employees participates
in this Plan and the sum of the ADP and ACP of those Highly Compensated
Employees exceeds the Aggregate Limit, then the ACP of those Highly
Compensated Employees will be reduced in accordance with Subsection 4.06(3)
so that the Aggregate Limit is not exceeded. The amount by which each Highly
Compensated Employee's Company Matching Contributions are reduced shall be
treated as an Excess Aggregate Contribution. The ADP and ACP of the Highly
Compensated Employees are determined after any corrections required to meet
the ADP and ACP tests or to correct Excess Deferrals under Subsection 4.03(7)
hereof. No reduction will be required under this Subsection if both the ADP
and ACP of the Highly Compensated Employees does not exceed 1.25 multiplied
by the ADP and ACP of the Non-Highly Compensated Employees.
4.07 Rollovers.
4.07(1) With the consent of the Committee, "Rollover
Contributions" in cash or such other form as may be permitted by the
Committee may be received by the Trustee on behalf of any Eligible Employee
or Participant. Such amounts shall be allocated and credited to a separate
Account herein referred to as a "Rollover Account" as of the date on which
such amounts were received by the Trustee. However, the transfer of such an
amount to the Trustee will not cause such Eligible Employee to be eligible to
participate in the Plan prior to the time specified in Section 3.01. Prior
to the time such Eligible Employee becomes eligible to participate in the
Plan, the Eligible Employee shall be treated as a Participant solely with
respect to the amount in his Rollover Account.
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4.07(2) An amount credited to a Rollover Account (i) shall be
held by the Trustee pursuant to the provisions of this Plan, (ii) shall be
fully vested at all times and shall not be subject to forfeiture for any
reason, and (iii) shall be distributed to the Eligible Employee, Participant
or Beneficiary at such time and in the same manner as provided in this
Article IV or Article XI hereof for the distribution of a Participant's
Accounts under the Plan.
4.07(3) During the Plan Quarter in which the Rollover
Contribution is initially received by the Plan, all of the balance of the
Eligible Employee's or Participant's Rollover Account shall be segregated for
investment purposes and any earnings thereon shall inure to the benefit of
the Eligible Employee or Participant. Such segregated amounts may be
temporarily held in cash, and as soon as practical, shall be deposited in a
federally insured savings account, certificate of deposit or money market
fund in a bank or savings and loan association, or invested and reinvested in
direct obligations of the United States or other short term debt security
acceptable to the Trustee, and the income thereon may be accumulated and
invested and reinvested in such investments until the first day of the
following Plan Quarter, at which time they shall be invested as directed by
the Participant or Eligible Employee in accordance with the provisions of
Section 14.02 hereof.
4.07(4) For purposes of this Section, the term "Rollover
Contributions" shall include:
(a) Amounts which are properly characterized as a
qualifying rollover distribution (including a lump sum distribution) received
by a person who is now an Eligible Employee or a Participant from another
qualified plan, which amounts are eligible for tax free rollover treatment
and which are transferred by the Eligible Employee or Participant to the
Trustee of this Plan within sixty (60) days following receipt thereof;
(b) Amounts transferred to this Plan from an individual
retirement account as defined in Code Section 7701(a)(37), provided that the
individual retirement account contains no assets other than (1) assets which
were previously distributed to the person who is now an Eligible Employee or
a Participant by another qualified corporate (and, after December 31, 1983,
qualified non-corporate) employer's plan as a qualifying rollover
distribution (including a lump sum distribution) with respect to such
person's service for such employer, which amounts were eligible for tax-free
rollover treatment, and which amounts were deposited in such individual
retirement account within sixty (60) days of receipt thereof, and (2)
earnings on said assets; and
(c) Amounts distributed to a person who is now an
Eligible Employee or a Participant from an individual retirement account
meeting the requirements of Subsection 4.07(4)(b) above, and transferred by
the Eligible Employee or Participant to this Plan within sixty (60) days of
receipt thereof from such individual retirement account.
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Prior to accepting any transfers to which this Section 4.07 applies, the
Committee may require the Eligible Employee or Participant to establish that
the amounts to be transferred to this Plan meet the requirements of this
Section and may also require that the Eligible Employee or Participant
provide an opinion of counsel satisfactory to the Committee that the amounts
to be transferred meet the requirements of this Section and will not
jeopardize the tax exempt status of this Plan or the Trust Fund for any
reason (including, but not limited to, the failure of the amount to be
excluded from the definition of annual addition in Code Section 415(c)(2),
thereby causing the annual addition to the Account to exceed the permissible
limits of Code Section 415, or to create adverse tax consequences to an
Employer).
4.08 In-Service Withdrawals.
4.08(1) Hardship Withdrawals of Elective and Company Matching
Contributions. Subject to the provisions of Subsection 4.08(2), upon
application by a Participant, the Committee may, in accordance with the
provisions of this Subsection, permit such Participant to withdraw all or a
portion of such Participant's Elective Contributions (and earnings on such
contributions prior to September 1, 1988, if any) or Company Matching
Contributions (including Company Contributions made under the Tax Benefit
Plan), or both, if the Committee determines that the Participant has suffered
a Hardship. For purposes hereof, "Hardship" shall mean an immediate and
heavy financial need of the Participant on account of (i) medical expenses
described in Code Section 213(d) previously incurred by the Participant, the
Participant's spouse or dependents (as defined in Code Section 152) or
necessary for these persons to obtain medical care as described in Code
Section 213(d), (ii) purchase (excluding mortgage payments) of a principal
residence of the Participant, (iii) payment of tuition, related educational
fees and room and board expenses for the next twelve (12) months of
post-secondary education for the Participant or such Participant's spouse,
children or dependents (as defined in Code Section 152), or (iv) the need to
prevent eviction of the Participant from his principal residence or
foreclosure on the mortgage of the Participant's principal residence.
Notwithstanding the foregoing, in no event shall a Hardship withdrawal of any
amount allocated to a Participant's Account pursuant to Subsection 4.03(6) or
4.06(6) be permitted.
The following provisions shall apply with respect to
Hardship withdrawals:
(a) Application for withdrawal must be made in writing
on a form approved by the Committee, and must set out in detail the
circumstances establishing that the proposed withdrawal is for a Hardship.
(b) The Committee's determination of whether the
application meets the requirements of this Section shall be final and
conclusive, and in making such determination, the Committee shall follow
uniform and nondiscriminatory rules.
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(c) If the Committee is satisfied that the application
meets the requirements of this section and the Code and regulations
thereunder, the application shall be granted.
(d) A withdrawal shall not be permitted unless the
Committee determines the Participant has obtained all distributions (other
than hardship distributions) and all nontaxable loans (determined at the time
of the loan) currently available under all plans maintained by the Employer
or any Affiliated Company, and in no event will such payment exceed the
amount required to meet such financial need plus an amounts necessary to pay
any federal, state or local taxes or penalties reasonably anticipated to
result from such payment.
(e) Any withdrawal shall terminate the Participant's
right to make Elective Contributions and employee contributions to this Plan
or "Any Other Plans Maintained by the Employer" until the first day of the
first payroll period of the Plan Quarter which commences at least twelve (12)
months following such withdrawal. For purposes hereof, "Any Other Plans
Maintained by the Employer" shall mean all qualified and nonqualified plans
of deferred compensation maintained by the Employer, including a stock
option, stock purchase, or similar plan, or a cash or deferred arrangement
that is part of a cafeteria plan within the meaning of Code Section 125.
However, it does not include the mandatory employee contribution portion of a
defined benefit plan. It also does not include a health or welfare benefit
plan, including one that is part of a cafeteria plan within the meaning of
Code Section 125.
(f) Any Participant receiving a withdrawal under this
Subsection 4.08(1) shall be prohibited from making Elective Contributions
during the Plan Year following the Plan Year in which such withdrawal was
received in excess of the limitation set forth in Subsection 4.03(7) minus
the amount of the Participant's Elective Contributions for the Plan Year in
which the withdrawal was received.
4.08(2) Procedure for Withdrawals. All withdrawals under
Subsection 4.08(1) shall be subject to Committee approval. All withdrawals
under this Section 4.08 shall require a written request for withdrawal on
such forms as the Committee shall prescribe. If any withdrawal under this
Section 4.08 is less than the entire amount which is available for withdrawal
at such time from the Employee Elective Contribution and Company Matching
Contribution Accounts, then such Participant must withdraw a minimum amount
equal to Five Hundred Dollars ($500.00). Any withdrawal shall be made from a
Participant's Accounts in the following order of priority, provided at the
time of such withdrawal such Participant either (i) has an amount credited to
such Account, or (ii) is entitled to withdraw from such Account: Such
Participant's Company Matching Contribution Account; and such Participant's
Employee Elective Contribution Account. When an application for withdrawal
is granted under the provisions of this Subsection, the Committee shall give
such directions to the Trustee as shall be appropriate to effectuate the
distribution in accordance with the terms hereof of the amount withdrawn.
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The date of withdrawal payment shall be specified by the Committee.
Withdrawals shall be paid in the form of a single lump sum. A Participant's
Account shall, for purposes of determining its current value at the time of
withdrawal, be based on the value as of the Valuation Date preceding the
effective date of the withdrawal. For purposes of allocating appreciation or
depreciation of the Trust Fund and income of the Trust Fund, where
appropriate, any withdrawal pursuant to this Article IV shall be subtracted
from the Participant's Account balance at the beginning of the Valuation
Period in which the withdrawal occurs.
4.08(3) Spousal Consent to Withdrawals. Notwithstanding anything
to the contrary contained in this Section 4.08, if, at the time a withdrawal
is to be paid to a married Participant, the value of his Accounts (including
amounts in his Accounts that are not being withdrawn) is equal to or exceeds
$3,500, the Participant's spouse must, within the 90-day period before
withdrawal amounts are to be paid, consent to the payment of the withdrawal
amount. The spouse's consent to any such withdrawal (i) must be in writing,
(ii) must consent to the lump sum form of payment, (ii) must acknowledge the
effect of the consent and be witnessed by a Plan representative or notary
public, and (iv) shall be irrevocable.
ARTICLE V
ALLOCATION TO PARTICIPANTS' ACCOUNTS
5.01 Method of Allocating Company Matching Contributions.
5.01(1) Subject to Sections 4.06, 5.04, 5.05 and 5.06 and
Subsection 20.03(2) hereof, the Company Matching Contribution made for each
Plan Quarter shall be allocated as of the last day of such Plan Quarter among
the Company Matching Contribution Accounts of all Participants who were
Eligible Employees for all or any part of such Plan Quarter and who elected
to have made on their behalf Elective Contributions during such Plan Quarter.
Each Participant's allocable share of Company Matching Contributions shall be
in the proportion that the Elective Contributions made on his behalf for such
Plan Quarter that were not otherwise distributed or withdrawn pursuant to the
provisions of Section 4.03 or 4.08 hereof bears to the total Elective
Contributions made on behalf of all Participants for such Plan Quarter that
were not otherwise distributed or withdrawn pursuant to the provisions of
Section 4.03 or 4.08 hereof. Notwithstanding the foregoing, if Company
Matching Contributions have been allocated to a Participant's Company
Matching Contribution Account and it is later determined that such Company
Matching Contributions are attributable to Excess Contributions or Excess
Deferrals, such Company Matching Contributions shall be forfeited and such
Forfeitures shall be allocated as provided in Section 5.03 hereof.
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5.01(2) Any amounts of Company Matching Contributions credited to
a Participant's Company Matching Contribution Account shall, for all purposes
and in all respects, be fully vested and nonforfeitable.
5.01(3) If, during a Plan Quarter, a Participant is transferred
from one Employer to another Employer, such Participant's share of each
Employer's Company Matching Contributions shall be determined on the basis of
the Elective Contributions made on behalf of such Participant for the portion
of the Plan Quarter that such Participant was employed by such Employer.
5.02 Allocation to a Participant Transferred to an Affiliated Company
Which Has Not Adopted the Plan. Notwithstanding any other provisions of the
Plan to the contrary, if a Participant who is an Eligible Employee ceases to
be an Eligible Employee or is transferred from an Employer to an Affiliated
Company, he shall continue to participate in the Plan as provided in Section
5.08 hereof as a Participant who has elected a voluntary suspension of
Elective Contributions. If such Participant is subsequently reemployed by an
Employer or returns to Eligible Employee status, he shall be eligible to
elect to have made on his behalf Elective Contributions from and after the
day on which occurs such transfer back to an Employer or return to Eligible
Employee status, provided he complies with the provisions of Section 4.02 of
the Plan.
5.03 Method of Allocating Company Contributions.
5.03(1) Subject to Sections 5.04, 5.05 and 5.06 and Subsection
20.03(2) hereof, the total Company Contribution made for each Plan Quarter
and any Forfeitures pursuant to Subsection 5.01(1) or Section 12.06 hereof
shall be allocated as of the last day of such Plan Quarter among the Company
Contribution Accounts of all Participants who were Eligible Employees for all
or any part of such Plan Quarter. Each such Participant's allocable share of
Company Contributions and any Forfeitures shall be in the proportion that his
Compensation while an Eligible Employee for such Plan Quarter bears to the
total Compensation of all such Participants while Eligible Employees for such
Plan Quarter.
5.03(2) Any amounts credited to a Participant's Company
Contribution Account shall, for all purposes and in all respects, be fully
vested and nonforfeitable.
5.03(3) If, during a Plan Quarter, a Participant is transferred
from one Employer to another Employer, such Participant's share of each
Employer's Company Contributions shall be determined on the basis of the
Compensation received by such Participant from each such Employer.
5.04 Limitation on Annual Additions.
5.04(1) Notwithstanding any other provision of the Plan, the sum
of the Annual Additions to a Participant's Account for any Limitation Year
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shall not exceed the lesser of: (i) Thirty Thousand Dollars ($30,000) or, if
greater, one-fourth (1/4) of the defined benefit dollar limitation set forth
in Code Section 415(b)(1)(A) as in effect for the Limitation Year, or (ii)
twenty-five percent (25%) of such Participant's Limitation Year Compensation
for the entire Limitation Year (even though such Participant may not have
been a Participant for the entire Limitation Year). If a Limitation Year is
less than a 12-consecutive month period, the above dollar limitations for the
short Limitation Year shall not exceed the amount determined in the preceding
sentence multiplied by a fraction, the numerator of which is the number of
whole months in the short Limitation Year and the denominator of which is
twelve (12). The term "Annual Additions" to a Participant's Account for any
Limitation Year shall mean the sum of:
(a) such Participant's allocable share of the Company
Contributions and Company Matching Contributions credited to such Participant
within such Limitation Year; and
(b) the amount of such Participant's Elective
Contributions (including any amounts characterized as Excess Contributions
and amounts characterized as Excess Deferrals, if such Excess Deferrals are
not distributed as provided for in Subsection 4.03(7) hereof), and Excess
Aggregate Contributions under the Plan, if any, for such Limitation Year; and
(c) such Participant's allocable share of Forfeitures,
if any, credited to such Participant within such Limitation Year; and
(d) any amount allocated to an "individual medical
account," as defined in Code Section 415(l)(2), which is part of a Defined
Benefit Plan maintained by an Employer; and
(e) any amounts derived from contributions paid or
accrued after December 31, 1985, in taxable years ending after such date,
which are attributable to post-retirement medical benefits allocated to the
separate account of a key employee (as defined in Code Section 419A(d)(3))
under a welfare benefit fund (as defined in Code Section 419(e)) maintained
by an Employer.
Solely for purposes of this Section 5.04, the determination of a
Participant's Elective Contributions and after-tax employee contributions, if
any, for a Limitation Year shall exclude the items set forth in Sections
1.415-6(b)(3)(i)-(iv) of the Income Tax Regulations, and the determination of
a Participant's allocable share of Company Matching Contributions, Company
Contributions and Forfeitures, if any, for a Limitation Year shall exclude
any Company Matching Contributions, Company Contributions, Elective
Contributions, if any, and Forfeitures, if any, allocated to such Participant
for any of the reasons set forth in Sections 1.415-6(b)(2)(ii)-(vi) of the
Income Tax Regulations (except as otherwise provided in such Sections).
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<PAGE>
5.04(2) In the event that as a result of: (i) a reasonable error
in estimating Participant's Limitation Year Compensation, or (ii) other facts
and circumstances which the Internal Revenue Service finds justify the
availability of the provisions of this Subsection 5.04(2) and Subsections
5.04(3) and 5.04(4), it is determined that, but for the limitations contained
in Subsection 5.04(1), the Annual Additions to a Participant's Account for
any Limitation Year would be in excess of the limitations contained herein,
such Annual Additions shall be reduced to the extent necessary to bring such
Annual Additions within the limitations contained in Subsection 5.04(l) by
reducing such Participant's allocable share of Forfeitures, if any, and
Company Contributions for the Plan Year ending within such Limitation Year,
then by reducing such Participant's allocable share of Company Matching
Contributions for the Plan Year ending within such Limitation Year, and then
by reducing Elective Contributions made on such Participant's behalf for the
Plan Year ending within such Limitation Year and distributing such Elective
Contributions (and income attributable to such Contributions) to the
Participant.
5.04(3) If, and to the extent that the amount of any
Participant's allocable share of Forfeitures, if any, or Company
Contributions or Company Matching Contributions, if any, pursuant to Sections
4.01 and 4.04 hereof or such Participant's Elective Contributions are reduced
in accordance with the provisions of Subsection 5.04(2) above, the amount of
such reduction shall be used to reduce the applicable contributions made for
such Participant for the next Limitation Year (and succeeding Limitation
Years, as necessary), if that Participant is covered by the Plan as of the
end of the Limitation Year. However, if that Participant is not covered by
the Plan as of the end of the Limitation Year, then such amounts shall be
maintained in a separate suspense account under the Trust for the Limitation
Year and allocated and reallocated in the next Limitation Year among all of
the remaining Participants in the Plan in the manner prescribed in Section
5.03 for the allocation of any Company Contributions. If in said next
Limitation Year, after the allocations as provided for herein, there are any
amounts remaining which cannot be allocated to any Participant as a result of
the limitations contained herein, such amount shall be maintained in a
separate suspense account under the Trust to be used to reduce Company
Contributions in the next Limitation Year (and succeeding Limitation Years,
as necessary) for all of the remaining Participants in the Plan.
5.04(4) Any suspense account established pursuant to this Section
5.04 shall not be adjusted to reflect net income, loss, appreciation or
depreciation in the value of the Trust Fund as provided for an Employee's
regular Accounts pursuant to Section 6.04 of the Plan. Notwithstanding any
other provision of the Plan to the contrary, in the event amounts are
credited to a suspense account, no Company Contributions, Company Matching
Contributions or Elective Contributions shall be made to the Plan for a Plan
Year while there are any amounts in such separate suspense accounts
attributable to prior Plan Years which cannot be allocated to Participants in
accordance with the terms of this Subsection.
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5.05 Limitations on Annual Additions for Employers or Affiliated
Companies Maintaining Other Defined Contribution Plans. In the event that
any Participant in this Plan is also a participant under any other Defined
Contribution Plan maintained by an Employer or an Affiliated Company (whether
or not terminated), the total amount of Annual Additions to such
Participant's accounts under all such Defined Contribution Plans shall not
exceed the limitations set forth in Subsection 5.04(1) hereof. If such total
amount of Annual Additions to a Participant's accounts under all such Defined
Contribution Plans does exceed the limitations set forth in Subsection
5.04(1) hereof, then the Annual Additions to such Participant's Accounts in
this Plan shall be reduced, and such reduction shall be accomplished in
accordance with the provisions of Section 5.04 hereof.
5.06 Limitations on Annual Additions for Employers or Affiliated
Companies Maintaining Defined Benefit Plans. In the event that any
Participant under this Plan is a participant under one or more Defined
Benefit Plans maintained by an Employer or an Affiliated Company (whether or
not terminated), then the sum of the Defined Benefit Plan Fraction for such
Limitation Year and the Defined Contribution Plan Fraction for such
Limitation Year shall not exceed one (1.0). If the sum of the Defined
Benefit Plan Fraction for any Limitation Year and the Defined Contribution
Plan Fraction for such Limitation Year does exceed one (1.0), then such
Participant's benefits under the Defined Benefit Plan shall be reduced in
accordance with the requirements of Code Section 415 and the applicable
regulations thereunder to the extent necessary to comply with the limitations
set forth in this Section.
5.07 Definitions for Purposes of Determining the Annual Addition
Limitations. For purposes of Sections 5.04, 5.05 and 5.06 hereof and this
Section 5.07, the following definitions shall apply:
5.07(1) "Retirement Plan" shall mean (a) any profit-sharing,
pension or stock bonus plan described in Code Sections 401(a) and 501(a), (b)
any annuity plan or annuity contract described in Code Section 403(a) or
403(b), and (c) any simplified employee pension plan described in Code
Section 408(k).
5.07(2) "Defined Benefit Plan" shall mean any Retirement Plan
which does not meet the definition of a Defined Contribution Plan.
5.07(3) "Defined Benefit Plan Fraction" shall mean a fraction
calculated in accordance with Code Section 415(e)(2). Notwithstanding the
preceding sentence, if the Participant was a Participant as of the first day
of the first Limitation Year beginning after December 31, 1986, in one or
more Defined Benefit Plans maintained by an Employer or an Affiliated Company
which were in existence on May 6, 1986, the denominator of the Defined
Benefit Plan Fraction will not be less than 125 percent of the sum of the
projected annual benefits under such plans which the Participant had accrued
as of the close of the last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the plan after May 5,
1986. The preceding sentence applies only if the Defined Benefit Plans
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individually and in the aggregate satisfied the requirements of Code Section
415 for all Limitation Years beginning before January 1, 1987.
5.07(4) "Defined Contribution Plan" shall mean a Retirement Plan
which provides for an individual account for each participant and for
benefits based solely on the amount contributed to the participant's account,
and any income, expenses, gains or losses, and any forfeitures of accounts of
other participants which may be allocated to such participant's account. For
purposes of Sections 5.04, 5.05 and 5.06, a Participant's voluntary
nondeductible contributions to a Defined Benefit Plan shall be treated as
being part of a separate Defined Contribution Plan.
5.07(5) "Defined Contribution Plan Fraction" shall mean a
fraction calculated in accordance with Code Sections 415(e)(3), (4) and (6).
If the Employee was a Participant as of the end of the first day of the first
Limitation Year beginning after December 31, 1986, in one or more Defined
Contribution Plans maintained by an Employer or an Affiliated Company which
were in existence on May 6, 1986, the numerator of the Defined Contribution
Plan Fraction will be adjusted if the sum of this fraction and the Defined
Benefit Fraction would otherwise exceed 1.0 under the terms of this Plan.
Under the adjustment, an amount equal to the product of (1) the excess of the
sum of the fractions over 1.0 times (2) the denominator of the Defined
Contribution Plan Fraction, will be permanently subtracted from the numerator
of the Defined Contribution Plan Fraction. The adjustment is calculated
using the fractions as they would be computed as of the end of the last
Limitation Year beginning before January 1, 1987, and disregarding any
changes in the terms and conditions of the plan made after May 5, 1986, but
using the Code Section 415 limitation applicable to the first Limitation Year
beginning on or after January 1, 1987.
The Annual Addition for any Limitation Year beginning
before January 1, 1987, shall not be recomputed to treat all employee
contributions as Annual Additions.
5.07(6) "Limitation Year" shall mean the Plan Year.
5.07(7) "Limitation Year Compensation" shall mean an Employee
Participant's total compensation for services rendered to an Employer during
a Limitation Year, as reported in Box 10 on Form W-2 or other similar
location on any successor federal wage statement as taxable for federal
income tax purposes but determined without regard to any rules that limit the
amount taken into account based on the nature or location of the employment
or the services performed (such as the exception for agricultural labor in
Code Section 3401(a)(2)). Compensation shall not include amounts paid or
reimbursed by the Employer or Affiliated Company for moving expenses incurred
by an Employee Participant, but only to the extent that at the time of the
payment it is reasonable to believe that these amounts are deductible by the
Employee Participant under Code Section 217.
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5.08 Cessation of Eligible Employee Status. Subject to the exception at
Section 5.02, if any Participant does not incur a Termination of Employment
but ceases to be an Eligible Employee as defined in Section 2.14 hereof,
then, during the period that such Participant is not an Eligible Employee as
defined in such Section 2.14 hereof: (i) such Participant shall not have any
Elective Contributions made on his behalf, (ii) except for any Company
Contributions pursuant to Section 4.01 or Company Matching Contributions
pursuant to Section 4.04 hereof owing for the Plan Quarter in which such
Participant ceases to be an Eligible Employee, such Participant shall not
receive any further allocation of any Company Contributions and Forfeitures,
if any, or Company Matching Contributions, if any, under the Plan pursuant to
Sections 5.01 and 5.03, and (iii) such Participant's Accounts shall continue
to share in the earnings or losses of the Trust Fund.
ARTICLE VI
ACCOUNTS AND VALUATION OF TRUST FUND
6.01 Participant's Accounts. The assets of the Trust Fund shall
constitute a single fund in which each Participant, Beneficiary or Alternate
Payee shall have his proportionate interest as provided in this Plan. The
Committee shall maintain, or cause to be maintained, with respect to each
Employer, individual Accounts for each Participant, Beneficiary or Alternate
Payee. A Participant shall have a Company Contribution Account, a Company
Matching Contribution Account, and an Employee Elective Contribution Account,
and, if applicable, an ESOP Employer Contribution Account and/or an ESOP
Employee Contribution Account and/or a Rollover Account, and, where
appropriate, an Alternate Payee shall have a QDRO Account. Each Account
shall reflect the credits and charges allocable thereto in accordance with
the Plan. The Committee shall maintain, or cause to be maintained, records
which will adequately disclose at all times the state of the Trust Fund and
of each separate interest therein. The books, forms and methods of
accounting shall be entirely in the hands of and subject to the supervision
of the Committee.
6.02 Accounts of Participants Transferred to an Affiliated Company Which
Has Not Adopted the Plan. If a Participant is transferred to an Affiliated
Company, the amount in the Trust which is credited to his Accounts shall
continue to share in the earnings or losses of the Trust Fund, and such
Participant's rights and obligations with respect to such Accounts shall be
governed by the provisions of the Plan and Trust.
6.03 Valuation of the Trust Fund and Account Statements.
6.03(1) Within a reasonable time after each Valuation Date, the
Committee shall have the Trustee prepare a statement of the condition of the
Trust Fund as of the close of business of such Valuation Date setting forth:
(i) the assets of the Trust Fund as of such Valuation Date, and the cost and
current value thereof as defined in ERISA Section 3(26) (the "Current
Value"), and (ii) all investments, receipts, disbursements and other
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transactions effected by it during the Valuation Period. The Current Value
of any shares of Company Stock that are not readily tradeable on an
established securities market shall be determined by an independent appraiser
meeting requirements similar to the requirements of the Treasury Regulations
under Section 170(a)(1) of the Code. This statement shall be delivered to
the Committee. As soon as practicable after each Valuation Date, the
Committee shall cause to be prepared, and shall deliver to each Participant,
Beneficiary or Alternate Payee, a report disclosing the status of each such
individual's Accounts in the Trust Fund.
6.03(2) The Trustee's determination of the Current Value of the
assets in the Trust Fund and the Committee's charges or credits to the
individual Accounts with respect to Participants, Beneficiaries or Alternate
Payees, as provided in Section 6.04, shall be final and conclusive on all
persons ever interested hereunder.
6.04 Periodic Determination of Participant's Accounts.
6.04(1) Allocations in General. For the purpose of making
allocations as of any Valuation Date, except as otherwise provided herein,
the Net Earnings and Adjustments in Value of the Trust Fund shall be
allocated pursuant to Subsection 6.04(3) below, the Net Earnings and
Adjustments in Value of the Cash Dividend Account shall be allocated pursuant
to Subsection 6.04(4)(c) hereof, Rollover Contributions received during such
Valuation Period shall be allocated pursuant to Subsection 4.07(1) hereof,
and Elective Contributions, Company Contributions and Company Matching
Contributions made for such Valuation Period shall be allocated pursuant to
Section 4.05 hereof. Whenever an allocation or credit is required to be made
hereunder, it shall be made by the Committee, or at the Committee's direction
and subject to its supervision.
6.04(2) Determination of Net Earnings and Adjustments In Value.
(a) "Net Earnings and Adjustments in Value of the Trust
Fund" for a particular Valuation Period means the Current Value of the Trust
Fund as of the Valuation Date (determined pursuant to Section 6.03 hereof)
less the sum of:
(i) The total of all Account balances respectively
as of the first (1st) day of such Valuation Period of all Participants,
Beneficiaries and Alternate Payees as of such time whose Accounts had not
been segregated under Subsection 4.07(3) hereof; and
(ii) Company Contributions, Company Matching
Contributions, Elective Contributions and Rollover Contributions for the
Valuation Period under consideration, to the extent that such Company
Contributions, Company Matching Contributions, Elective Contributions and
Rollover Contributions were actually paid over to the Trustee and not
otherwise distributed to Participants, Beneficiaries or Alternate Payees
prior to the close of such Valuation Period; and
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(iii) The amount credited to the Cash Dividend
Account as of such Valuation Date.
(b) "Net Earnings and Adjustments in Value of the Cash
Dividend Account" means the Current Value of the Cash Dividend Account as of
the Valuation Date (determined pursuant to Section 6.03 hereof) less the sum
of:
(i) The Cash Dividend Account balance as of the
first (1st) day of such Valuation Period; and
(ii) All cash dividends credited to such Cash
Dividend Account which were actually paid over to the Trustee during such
Valuation Period and not otherwise distributed prior to the close of such
Valuation Period.
6.04(3) Allocation of Net Earnings and Adjustments in Value of
the Trust Fund. Subject to the provisions of Subsections 6.04(2) and 6.04(4)
hereof, the Net Earnings and Adjustments in Value of the Trust Fund for a
particular Valuation Period shall be allocated as of the Valuation Date to
those Accounts that had not, for such Valuation Period been segregated under
Subsection 4.07(3) hereof, and the total value of which had not been
distributed prior to the Valuation Date, as follows: Such Net Earnings and
Adjustments in Value of the Trust Fund shall be credited to or charged
against such Accounts in proportion to the average funds credited to each
such Account during such Valuation Period.
6.04(4) Payment of Cash Dividends.
(a) Notwithstanding the foregoing provisions of this
Article VI, any cash dividends received by the Trustee with respect to shares
of Company Stock held under the Plan on the record date for such dividends
and allocated under the Plan to one or more of the Accounts of the
Participants (whether or not so allocated on such record date), shall be
credited, as of the effective date of receipt by the Trustee of such cash
dividends, to a Cash Dividend Account maintained under the Trust.
(b) (i) Any such cash dividends credited to the Cash
Dividend Account shall, notwithstanding any other provisions of the Plan to
the contrary, be held by the Trustee in cash or cash equivalents, including
money market investments, as selected by the Trustee until distributed as
hereinafter provided. The cash dividends credited to the Cash Dividend
Account (but no earnings attributable to such cash dividends) shall be
allocated among the Participants on the basis of the cash dividends received
by the Trustee with respect to the Company Stock which was, on the record
date for such dividends, allocated (or scheduled to be allocated as of the
last day of such Plan Quarter) to each such Participant's Accounts.
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(ii) As of the date of receipt of such dividends by
the Trustee, so long as such Participant is an Employee of an Employer, the
"allowable amount" of the cash dividends allocable to a Participant shall be
distributed in cash to such Participant in six (6) equal installments
corresponding to the Sponsoring Company's six (6) payroll periods which begin
no later than the third (3rd) payroll period following the payroll period in
which the Trustee receives such dividends.
(iii) For purposes of this Subsection
6.04(4)(b), except as provided in the next succeeding sentence, the
"allowable amount" of cash dividends shall equal an amount not to exceed the
lesser of (1) fifteen percent (15%) of such Participant's Compensation
scheduled to be paid for the six (6) payroll periods referred to herein on
the basis of his Compensation as of the last day of the Plan Quarter
immediately preceding the date on which said dividend is received by the
Trustee, or (2) one-fourth (1/4) of the annual limitation on Elective
Contributions pursuant to Subsection 4.03(7) hereof as in effect on the date
on which payment of such dividend commences as provided herein. However, a
Participant may, if he so elects, receive a distribution of the entire amount
of cash dividends allocable to such Participant in lieu of the "allowable
amount" described in the preceding sentence. Said election shall be made by
April 1, 1995, effective as of the Effective Date, for dividends payable
between March 1, 1995 and December 31, 1995, and thereafter on or prior to
each December 31, for dividends payable during the next calendar year.
(iv) If a Participant terminates employment for any
reason while there are cash dividends allocable and distributable to him
remaining undistributed, the remaining balance of said cash dividends shall
be paid to the Participant (or his Beneficiary) in a lump sum payment as soon
as administratively possible following such Participant's employment
termination. If a Participant has terminated employment, the entire amount
of any cash dividends received by the Trustee for the benefit of that
Participant after employment termination shall be paid to such Participant
(or his Beneficiary) in a lump sum as soon as administratively possible
following the Trustee's receipt of said dividend.
(c) The Net Earnings and Adjustments in Value of the
Cash Dividend Account for a particular Valuation Period shall be used to
purchase Company Stock as soon as possible following the last day of such
Valuation Period for the benefit of any Participant who will not receive a
distribution of his Accounts as of the last day of such Valuation Period.
The Company Stock purchased under this paragraph (c) shall, as of the last
day of the Valuation Period in which said Company Stock was purchased, be
allocated among and credited to the Accounts of the Participants for whose
benefit said shares were purchased, in the proportion that the number of
shares of Company Stock credited to each Account of each such Participant as
of the last day of the Valuation Period to which said Net Earnings and
Adjustments in Value apply bears to the total number of shares of Company
Stock credited to all Accounts of all such Participants as of the last day of
the Valuation Period to which said Net Earnings and Adjustments in Value
apply.
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(d) Payment of cash dividends to Participants pursuant
to this Subsection 6.04(4) shall be made by the Sponsoring Company, on behalf
of the Trustee, through the issuance of checks on an account of the
Sponsoring Company. As soon as possible following the receipt by the Trustee
of evidence of clearance of the checks issued by the Sponsoring Company to
Participants, the Trustee shall pay to the Sponsoring Company the dividend
amounts represented by those checks. In no event shall the Trustee pay
dividend amounts to the Sponsoring Company prior to receipt of proof that the
Participant had already received said dividend amount from the Sponsoring
Company.
6.04(5) Computations. All of the computations required to be
made under the provisions of this Article VI, when made, shall be conclusive
with respect thereto and shall be binding upon all the Participants,
Beneficiaries, Alternate Payees, and all other persons ever having an
interest in the Trust Fund.
6.05 Correction of Participants' Accounts. If an error or omission is
discovered in the Accounts of a Participant, or in the amount distributed to
a Participant, the Committee, as authorized by Section 13.05 hereof, shall
make such equitable adjustments in the records of the Plan as may be
necessary or appropriate to correct such error or omission as of the Plan
Year in which such error or omission is discovered. Further, an Employer
may, in its discretion, make a special contribution to the Plan which shall
be allocated by the Committee only to the Accounts of a Participant as is
necessary to correct such error or omission.
ARTICLE VII
RETIREMENT BENEFITS
A Participant who continues in the Employer's employment after his
Retirement Date shall continue to be a Participant in the Plan until his
actual retirement. In addition, any Participant who has retired under the
Retirement Plan for Employees of Southwestern Public Service Company and has
immediately commenced the receipt of monthly retirement income from said
Retirement Plan shall be deemed to have retired under this Article VII. Upon
actual retirement on or after his Retirement Date or as otherwise provided
herein, a Participant shall be entitled to the benefits provided for in this
Article VII. Subject to the provisions of Subsections 11.01(2), 11.02(1) and
12.03(2) hereof, any Participant who becomes entitled to benefits under this
Article VII shall receive benefits equal to the total amounts in his Accounts
valued as of the Valuation Date coinciding with or immediately following the
date on which such Participant becomes entitled to such benefits. Payment
upon retirement shall be made by the Trustee at the direction of the
Committee at the time and manner provided in Article XI hereof.
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ARTICLE VIII
DISABILITY BENEFITS
8.01 Disability Retirement Benefits. If a Participant retires by reason
of Total and Permanent Disability while in the employ of an Employer or an
Affiliated Company or on Leave of Absence, subject to the provisions of
Subsections 11.01(2), 11.02(1) and 12.03(2) hereof, he shall be entitled to
receive benefits equal to the total amounts in his Accounts valued as of the
Valuation Date coinciding with or immediately following the date on which
such Participant retires on account of Total and Permanent Disability.
However, if distribution is delayed because the Participant's Account
balances exceed $3,500, such distribution shall be based upon the balance in
such Participant's Accounts as of the Valuation Date coinciding with or
immediately preceding the earlier of (i) the date of the Participant's
election to receive such distribution, or (ii) the date on which such
Participant attains age sixty-five (65) or dies. Payments resulting from a
Participant's retirement on account of Total and Permanent Disability shall
be made by the Trustee at the direction of the Committee at the time and in
the manner provided in Article XI hereof.
8.02 Determination of Disability. The Committee shall determine whether
a Participant has suffered Total and Permanent Disability, and its
determination in that respect is binding upon the Participant, provided that
the Committee may rely upon professional medical advice in making such
determination. In making its determination, the Committee may require the
Participant to submit to medical examinations by doctors selected by the
Committee. The provisions of this Article VIII shall be uniformly and
consistently applied to all Participants.
ARTICLE IX
DEATH BENEFITS
9.01 Death Benefits. Upon the death of a Participant while in the
employ of an Employer or an Affiliated Company or on Leave of Absence,
subject to the provisions of Subsections 11.01(2), 11.02(1) and 12.03(2)
hereof, his Beneficiary, determined in accordance with Section 9.02 hereof,
shall receive, provided proper proof of death has been filed with the
Committee, the full amount of his Accounts as of the Valuation Date
coinciding with or immediately following the date on which the Participant
dies.
Upon the death of a Participant who is no longer employed by an
Employer or an Affiliated Company, his Beneficiary, determined in accordance
with Section 9.02, shall receive the balance of such Participant's Accounts
as of the Valuation Date coinciding with or immediately following the date on
which the Participant died.
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Payments resulting from the death of a Participant shall be made by
the Trustee at the direction of the Committee at the time and in the manner
provided in Article XI hereof.
9.02 Designation of Beneficiaries.
9.02(1) Subject to the provisions of Section 3.06 and Subsections
9.02(2) and 12.03(2) hereof, each Participant may designate a Beneficiary or
Beneficiaries, and contingent Beneficiary or Beneficiaries, if desired,
including the executor or administrator of his estate, to receive his
interest in the Trust Fund in the event of his death, but the designation of
a Beneficiary shall not be effective for any purpose unless and until it has
been filed with the Committee on the form provided therefor. If the
Participant has a surviving spouse and the surviving spouse consented to the
naming of another Beneficiary in accordance with Subsection 9.02(2) hereof,
but the deceased Participant failed to name a Beneficiary in the manner
herein prescribed, or the Beneficiary or Beneficiaries so named predecease
the Participant, the amount, if any, which is payable hereunder in respect of
such deceased Participant shall be paid to the surviving spouse. If the
Participant does not have a surviving spouse and the deceased Participant
failed to name a Beneficiary in the manner herein prescribed, or the
Beneficiary or Beneficiaries so named predecease the Participant, the amount,
if any, which is payable hereunder in respect of such deceased Participant
shall be paid to either (i) the spouse of the deceased Participant, (ii) the
surviving children of the deceased Participant or on their behalf as provided
in Section 11.03 below, (iii) any one or more or all of the next-of-kin of
the deceased Participant in such proportions as the Committee may determine,
or (iv) the legal representative or representatives of the estate of the
deceased Participant. Notwithstanding the foregoing, the Committee may elect
to have a court of applicable jurisdiction determine to whom a payment or
payments should be made. Any payment made to any person pursuant to the
power and discretion conferred upon the Committee by the preceding sentence
shall operate as a complete discharge of all obligations under the Plan in
respect of such deceased Participant and shall not be subject to review by
anyone, but shall be final, binding and conclusive on all persons ever
interested hereunder.
Subject to the provisions of Subsection 9.02(2) below, a
Participant may from time to time change any Beneficiary designated by him
without notice to such Beneficiary, under such rules and regulations as the
Committee may from time to time promulgate, but the last Beneficiary
designation filed with the Committee shall control.
9.02(2) With respect to a Participant who has been credited with
an Hour of Service on or after August 23, 1984, notwithstanding any other
provision herein to the contrary, but subject to the provisions of Subsection
12.03(2) hereof, if, as of such Participant's death, such Participant is
married, such Participant's Accounts shall, on his death, be paid to the
surviving spouse to whom he was married at the date of his death unless the
surviving spouse has made a Qualified Consent to the payment of any or all of
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said Accounts to a designated Beneficiary other than the surviving spouse.
"Qualified Consent" means an irrevocable written consent executed by the
Participant's spouse which acknowledges the effect of the consent and is
witnessed by a Plan representative or a notary public. A Participant may,
after obtaining a Qualified Consent, change his Beneficiary designation as
permitted by Subsection 9.02(1) above, but any such change is subject to the
requirements of this Subsection 9.02(2) and will require another Qualified
Consent should the spouse, if surviving, not be the sole Beneficiary of all
amounts in the Account. A Qualified Consent is effective only with respect
to the spouse who executes it. If the Plan Administrator is satisfied that
there is no spouse, or that the spouse cannot reasonably be located, or in
such other circumstances as permitted by governmental regulations, no
Qualified Consent shall be required as a condition to payment, under Section
9.01 hereof, to a Beneficiary who is not the surviving spouse.
9.02(3) Where a Participant's spouse fails to survive the
Participant and has a community interest in a portion of the Participant's
vested interest at the spouse's death, and where the Participant may not
lawfully retain and dispose of the whole interest including the community
interest of the non-participating spouse, the non-participating spouse shall
be deemed a Participant entitled to make a Beneficiary designation of his or
her community share; however, the funds shall not be available out of the
Trust until the Participant becomes entitled and the method of payment shall
not be controlled by the method of payment provided for in the Plan. In the
absence of a designation of Beneficiary by the non-participating spouse or if
no designee survives, the Participant's spouse shall be deemed to have named
the Participant as his or her Beneficiary, if he or she survives, and if not,
then the Beneficiaries (other than the Participant's spouse) named by the
Participant who survives the Participant. Otherwise, the Committee shall
have the power described in Subsection 9.02(1) hereof to determine the
recipients as in the case of the Participant's death.
ARTICLE X
EMPLOYMENT TERMINATION BENEFITS
Subject to the provisions of Subsections 11.01(2), 11.02(1) and 12.03(2)
hereof, in the event of the Termination of Employment of a Participant, such
Participant shall be entitled to receive the entire balance in his Accounts,
all valued as of the Valuation Date coinciding with or immediately following
the date on which such Participant suffered a Termination of Employment. If
distribution is delayed because the Participant's Account balances exceed
$3,500, such distribution shall be based upon the entire balance in such
Participant's Accounts as of the Valuation Date coinciding with or
immediately preceding the earlier of (i) the date of the Participant's
election to receive such distribution, or (ii) the date on which such
Participant attains age sixty-five (65) or dies.
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Payment pursuant to this Article X shall be made by the Trustee, at the
direction of the Committee, at the time and manner provided in Article XI
hereof.
ARTICLE XI
PAYMENT OF BENEFITS
11.01 Time and Method for Distribution of Benefits.
11.01(1) Upon a Participant's: (i) retirement on or after his
Retirement Date or as otherwise provided in Article VII hereof, (ii)
retirement due to Total and Permanent Disability, (iii) death, or (iv)
Termination of Employment, subject to the provisions of this Section 11.01
and Section 11.02, the Participant or his Beneficiary shall be entitled to a
distribution pursuant to and in an amount computed in accordance with Article
VII, VIII, IX or X, as the case may be. Except as otherwise provided in this
Article XI, the entire amount payable to a Participant or Beneficiary shall
be distributed in a single taxable year of such Participant or Beneficiary in
whole shares of Company Stock, or cash in the case of any fractional shares
of Company Stock, as soon as administratively practicable after the Valuation
Date on which such amounts were valued as provided in Article VII, Section
8.01, Section 9.01 or Article X, as applicable. In no event will such
amounts be paid later than the sixtieth (60th) day after the close of the
Plan Year in which occurs the latest of:
(a) The date on which the Participant attains or would
have attained sixty-five (65) years of age or if earlier, his Retirement
Date;
(b) The tenth (10th) anniversary of the year in which
the Participant commenced participation in the Plan; or
(c) The date the Participant terminates his employment
with the Employer for any reason.
Shares of Company Stock and the certificates representing such shares which
are distributed by the Trustee may contain such restrictions on
transferability and legends regarding restrictions on transfer as the
Sponsoring Company may reasonably require to ensure compliance with
applicable federal or state securities laws.
11.01(2) Notwithstanding any other provision of this Plan to the
contrary, if actual distribution pursuant to Subsection 11.01(1) above is
delayed for any reason beyond the Valuation Date upon which the amount of
such distribution was to be based, the distribution shall be based on the
value of the Participant's Accounts as of the Valuation Date coinciding with
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or immediately preceding the date on which such distribution is actually
made.
11.01(3) Notwithstanding the provisions of Subsection 11.01(1),
and subject to Section 11.02 below, if a Participant has a Termination of
Employment or retires due to Total and Permanent Disability and the vested
portion of the Participant's Accounts at such time exceed Three Thousand Five
Hundred Dollars ($3,500), the amounts owing to such Participant shall be
distributed in a single lump sum as soon as administratively practicable
after such Participant attains age sixty-five (65) or dies, unless such
Participant delivers to the Committee his written consent to an earlier
distribution.
11.01(4) Notwithstanding the provisions of Subsection 11.01(1), if
a Participant has elected to direct the investment of a portion of certain
Account balances into investments other than Company Stock pursuant to
Article XIV hereof or if a Participant has cash amounts credited to any of
his Accounts which are earmarked for the purchase of Company Stock but have
not been used to purchase Company Stock on or prior to the Valuation Date
upon which the amount of such Participant's distribution is to be based, or
if the Participant has a Rollover Account which is invested in whole or in
part in investments other than Company Stock, distribution of such portion or
portions of such Account balances (or such portion or all of his Rollover
Account) under Subsection 11.01(1) shall be in cash rather in shares of
Company Stock, unless such Participant elects in writing, within the time
prescribed and on a form provided by the Committee to receive his entire
distribution (less the value of his Rollover Account, if he so elects) in
shares of Company Stock pursuant to Subsection 11.01(1).
11.01(5) If, upon termination of service for any reason, or, when
distributions are required to commence to a Participant pursuant to
Subsection 11.02(1), the value of the vested portion of a Participant's
Accounts is Three Thousand Five Hundred Dollars ($3,500) or less, then his
total Account shall be paid to or for the benefit of the Participant, or in
the case of his death, to or for the benefit of his Beneficiary or
Beneficiaries, only as a non-deferred lump sum payment as provided in
Subsection 11.01(1).
11.02 Limitations on Timing. Notwithstanding any other provision of
the Plan to the contrary, distributions must occur at least as rapidly as
required under this Section 11.02.
11.02(1) A Participant's entire interest in the Plan shall be
distributed to him no later than the Required Beginning Date based on the
balance in his Accounts as of the Valuation Date coinciding with or
immediately preceding the Required Beginning Date.
11.02(2) In the event of the death of a Participant prior to
distribution of his benefits under the Plan, distribution of such deceased
Participant's entire interest under the Plan shall be made within five (5)
years after the death of such Participant.
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11.03 Payments on Personal Receipt Except in Case of Minors or
Persons Under a Legal Disability. All payments to any Participant,
Beneficiary or Alternate Payee from the Trust Fund shall be made to the
recipient entitled thereto in person or upon his personal receipt, in a form
satisfactory to the Committee, except when the recipient entitled thereto
shall be a minor or under a legal disability, or, in the sole judgment of the
Committee, shall otherwise be unable to apply such payments in furtherance of
his own interests and advantage. The Committee may, in such event, in its
sole discretion, direct all or any portion of such payments to be made in any
one or more of the following ways: (i) directly to such person, (ii) to the
guardian of his person or of his estate, even if appointed by a court other
than a Texas state court, (iii) to a custodian under any applicable Uniform
Gifts to Minors Act or Uniform Transfers to Minors Act, or (iv) to a person
appointed as his personal representative through a Power of Attorney.
Notwithstanding the foregoing, the Committee may elect to have a court of
applicable jurisdiction determine to whom a payment or payments should be
made. The decision of the Committee, in each case, will be final, binding
and conclusive upon all persons ever interested hereunder, and the Committee
shall not be obliged to see to the proper application or expenditure of any
payments so made. Any payment made pursuant to the power herein conferred
upon the Committee shall operate as a complete discharge of all obligations
of the Trustee and the Committee, to the extent of the amounts so paid.
11.04 Distribution Limitations Applicable to Elective Contributions.
Notwithstanding any provisions to the contrary herein, except as
otherwise provided in Sections 4.03 and 4.08 and Subsection 6.04(4) hereof,
no distribution shall be made of any Elective Contributions or the earnings
thereon prior to the earliest of:
(a) Separation from service, retirement, death, or Total and
Permanent Disability.
(b) Termination of the Plan without establishment of or
maintenance of another successor defined contribution plan as defined in Code
Section 414(i) (other than an employee stock ownership plan as defined in
Code Section 4975(e)(7) or Code Section 409 or a simplified employee pension
as defined in Code Section 408(k)) by an Employer or an Affiliated Company at
the time of termination of the Plan or within the period ending twelve months
after distribution of all assets from the Plan; provided, however, that if
fewer than two percent (2%) of the Participants in this Plan at the time of
the Plan's termination are or were eligible under another defined
contribution plan (as defined in this Subsection) at any time during the
twenty-four (24) month period beginning twelve (12) months before the time of
this Plan's termination, such other plan is not a successor defined
contribution plan.
(c) The disposition by the Employer to an entity that is not an
Affiliated Company of substantially all of the assets (within the meaning of
Code Section 409(d)(2)) if such acquiring entity continues to maintain this
Plan after the disposition, but only with respect to a Participant who
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continues employment with the entity acquiring such assets used by such
Employer in a trade or business of such Employer.
(d) The disposition by the Employer or an Affiliated Company of
it's interest in a subsidiary (within the meaning of Code Section 409(d)(3))
which is an Employer to an entity which is not an Affiliated Company if such
subsidiary continues to maintain this Plan, but only with respect to a
Participant who continues employment with such subsidiary.
(e) The attainment of age fifty-nine and one-half (59-1/2).
11.05 Distribution Limitations Applicable to ESOP Accounts.
Notwithstanding any other provisions to the contrary in this Plan, except as
otherwise provided in Sections 11.01, 11.02 and 14.03 hereof, and except as
otherwise provided in Code Section 409(d)(2) and (3), no distribution of any
Company Stock attributable to contributions made by the Employers under the
provisions of the ESOP and allocated to the ESOP Employer Contribution
Accounts and contributions made by participants in the ESOP and allocated to
the ESOP Employee Contribution Accounts shall be made before the end of the
eighty-four (84)-month period which begins the month immediately following
the month in which such Company Stock was allocated to the appropriate
account under the ESOP.
11.06 Direct Rollovers to Eligible Retirement Plans.
11.06(1) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary
that would otherwise limit a Distributee's election under this Section, a
Distributee may elect, at the time and in the manner prescribed by the
Committee, to have any portion of an Eligible Rollover Distribution paid
directly to an Eligible Retirement Plan specified by the Distributee in a
Direct Rollover.
11.06(2) For purposes of this Section 11.06, the following terms
shall have the following meanings:
(i) "Eligible Rollover Distribution" means any
distribution of all or any portion of the balance to the credit of the
Distributee, except that an Eligible Rollover Distribution does not include:
any distribution that is one of a series of substantially equal periodic
payments (not less frequently than annually) made for the life (or life
expectancy) of the Distributee or the joint lives (or joint life
expectancies) of the Distributee and the Distributee's designated
Beneficiary, or for a specified period of ten years or more; any distribution
to the extent such distribution is required under Code Section 401(a)(9); 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).
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(ii) "Eligible Retirement Plan" means an individual
retirement account described in Code Section 408(a), an individual retirement
annuity described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a), that
accepts the Distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the surviving spouse, an
Eligible Retirement Plan is an individual retirement account or individual
retirement annuity.
(iii) "Distributee" means 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.
(iv) "Direct Rollover" means a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
ARTICLE XII
MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS
12.01 Participants to Furnish Required Information.
12.01(1) Each Participant shall furnish to the Committee such
information as the Committee considers necessary or desirable for purposes of
administering the Plan, and the provisions of the Plan respecting any
payments hereunder are conditional upon the Participant's furnishing promptly
such true, full and complete information as the Committee may reasonably
request.
12.01(2) Each Participant shall submit proof of such Participant's
age to the Committee. The Committee shall, if such proof of age is not
submitted as required, use as conclusive evidence thereof, such information
as is deemed by it to be reliable, regardless of the source of such
information. Any adjustment required by reason of lack of proof or the
misstatement of the age of persons entitled to benefits hereunder, by the
Participant or otherwise, shall be in such manner as the Committee deems
equitable.
12.01(3) Any notice or information which according to the terms of
the Plan or the rules of the Committee must be filed with the Committee,
shall be deemed so filed if addressed and either delivered in person or
mailed, postage fully prepaid, to the Committee. Whenever a provision herein
requires that a Participant (or the Participant's Beneficiary) give notice to
the Committee within a specified number of days or by a certain date, and the
last day of such period, or such date, falls on a Saturday, Sunday, or
Employer holiday, the Participant (or the Participant's Beneficiary) will be
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deemed in compliance with such provision if notice is delivered in person to
the Committee or is mailed, properly addressed, postage prepaid, and
postmarked on or before the business day next following such Saturday, Sunday
or Employer holiday. The Committee may, in its sole discretion, modify or
waive any specified notice requirement; provided, however, that such
modification or waiver must be administratively feasible, must be in the best
interest of the Participant, and must be made on the basis of rules of the
Committee which are applied uniformly to all Participants.
12.02 Participants' Rights in Trust Fund. No Participant or other
person shall have any right, title or interest in, to or under the Trust
Fund, or any part of the assets thereof, except and to the extent expressly
provided in the Plan.
12.03 Inalienability of Benefits.
12.03(1) Restrictions on Assignment. The benefits provided
hereunder are intended for the personal security of persons entitled to
payment under the Plan, and are not subject in any manner to the debts or
other obligations of the persons to whom they are payable. The interest of a
Participant or such Participant's Beneficiary or Beneficiaries may not be
sold, transferred, assigned or encumbered in any manner, either voluntarily
or involuntarily, and any attempt so to anticipate, alienate, sell, transfer,
assign, pledge, encumber, or charge the same shall be null and void; neither
shall the Trust Fund nor any benefits thereunder or hereunder be liable for
or subject to the debts, contracts, liabilities, engagements or torts of any
person to whom such benefits or funds are payable, nor shall they be subject
to garnishment, attachment, or other legal or equitable process nor shall
they be an asset in bankruptcy. All of the provisions of this Section 12.03,
however, are subject to Section 11.03, to withholding of any applicable taxes
and to assignments permitted by Code Section 401(a)(13).
12.03(2) Exception for Benefit Payable Pursuant to a Qualified
Domestic Relations Order.
(a) The prohibitions contained in Subsection 12.03(1)
hereof shall not apply to the creation, assignment or recognition of a right
to any benefit payable with respect to a Participant pursuant to a Qualified
Domestic Relations Order.
(b) The Plan Administrator shall establish written
procedures for the determination of the qualified status of a domestic
relations order.
(c) Upon receiving a domestic relations order, the Plan
Administrator shall notify the Participant and Alternate Payee named in the
order, in writing, of the receipt of the order and the Plan's procedures for
determining the qualified status of the order. Within a reasonable period of
time after receiving the domestic relations order, the Plan Administrator
shall determine the qualified status of the order and shall notify the
Participant and the Alternate Payee, in writing, of its determination. The
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Plan Administrator shall provide notice under this paragraph by mailing such
notice to the individual's address specified in the domestic relations order,
or in a manner consistent with Department of Labor regulations.
(d) During any period in which the issue of whether a
domestic relations order is a Qualified Domestic Relations Order is being
determined, notwithstanding any other provision of the Plan to the contrary,
the Committee shall separately account for the amounts which would have been
payable during such period to an Alternate Payee pursuant to a Qualified
Domestic Relations Order, if such order had been determined to be a Qualified
Domestic Relations Order. During the period such amounts are separately
accounted for under the Plan, such amounts shall remain subject to the
general investment provisions of the Plan. If within the eighteen (18) month
period beginning with the date on which the first payment would be required
to be made under such domestic relations order, the domestic relations order
is determined to be a Qualified Domestic Relations Order, the Committee shall
direct the Trustee to distribute to the Alternate Payee the separately
accounted for amounts including any earnings (or losses) thereon in
accordance with Section 11.05 and the order. However, if within such
eighteen (18) month period, it is determined that such order is not
qualified, or if by the end of such eighteen (18) month period the issue of
qualification is not resolved, then the Committee shall pay the separately
accounted for amounts including any earnings (or losses) thereon to the
person or persons who would have been entitled to such amounts if there had
been no such order.
(e) Notwithstanding any other provision of the Plan to
the contrary, all rights and benefits, including rights to make elections or
to give directions, provided to a Participant under this Plan shall be
subject to the rights, benefits and elections or directions afforded to an
Alternate Payee, pursuant to a Qualified Domestic Relations Order, and this
Plan shall be interpreted and administered by the Committee in such manner as
to effectuate the provisions of any such Qualified Domestic Relations Order
as they relate to the rights, benefits and elections or directions afforded
to such Alternate Payee under such Qualified Domestic Relations Order.
Furthermore, to the extent provided in any such Qualified Domestic Relations
Order, a former spouse of a Participant shall be treated as a spouse or
surviving spouse for all applicable purposes under the Plan.
(f) The Trustee shall make any payments or distributions
required under this Subsection 12.03(2) by separate benefit checks or other
separate distribution to the Alternate Payee(s).
12.04 Conditions of Employment Not Affected by Plan. Neither the
Plan nor the Trust nor the Trust Agreement shall confer on any employee,
including any Participant, any right to be retained in the service of any
Employer or any Affiliated Company, and nothing contained herein or in the
Trust Agreement shall be construed in any way to limit or restrict the right
of any Employer or any Affiliated Company to discharge any employee,
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regardless of whether such employee is a Participant, or to change such
employee's position or the basis or amount of such employee's compensation.
12.05 Address for Mailing of Benefits.
12.05(l) Each Participant and each other person entitled to
benefits hereunder shall file with the Committee from time to time in writing
such Participant's post office address and each change of address. Any
payment hereunder and any communication addressed to a Participant, an
Employee or Beneficiary, at such person's last address filed with the
Committee, or if no such address has been filed, then at such person's last
address as indicated on the records of an Employer, shall be deemed to have
been delivered to such person on the date on which such payment or
communication is deposited, postage prepaid, in the United States mail.
12.05(2) If the Committee is in doubt as to whether payments are
being received by the person entitled thereto, it shall, by registered mail
addressed to the person concerned, at his address last known to the
Committee, notify such person that all unmailed and future payments shall be
withheld until he provides the Committee with a sworn statement, properly
notarized, evidencing his continued life and his proper mailing address.
12.06 Unclaimed Account Procedure.
12.06(1) Neither the Trustee nor the Committee shall be obliged to
search for, or ascertain the whereabouts of any Participant, Beneficiary or
Alternate Payee. The Committee, by certified or registered mail addressed to
such Participant's, Beneficiary's or Alternate Payee's last known address,
shall notify the Participant, Beneficiary or Alternate Payee that such
Participant, Beneficiary or Alternate Payee is entitled to a distribution
under this Plan, and the notice shall quote the provisions of Subsections
12.06(1) and (2). The Committee shall utilize the services of the Internal
Revenue Service (pursuant to its Policy Statement P-1-187 or any successor
thereto) in attempting to ascertain the current mailing address of a
Participant, Beneficiary or Alternate Payee.
12.06(2) If any distribution or payment is not claimed by the
person entitled thereto within one (1) year from the date of the mailing of
the notice referred to in subsection (1) above, the Participant's,
Beneficiary's or Alternate Payee's Accounts, valued as of the Valuation Date
coinciding with or immediately preceding the date such one (1) year period
ends, shall be forfeited ("Forfeitures") and if not used to restore previous
Forfeitures as provided herein, reallocated pursuant to Section 5.03 hereof.
If a Participant, Beneficiary or Alternate Payee makes a claim, at any time,
such Forfeitures shall be restored and the Committee shall direct the Trustee
to distribute such amount to the individual entitled to the distribution.
Such restorations shall be made from Forfeitures which occurred during the
Plan Year pursuant to this Subsection. Should such Forfeitures, if any, be
insufficient to restore the claimed amount owing to any Participant or
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Beneficiary, the additional amount necessary for restoration shall be
contributed by the Employer as a special contribution to be specially
allocated to the Account of such Participant or Beneficiary.
12.06(3) Notwithstanding Subsection 12.06(1) or 12.06(2) above, if
upon termination of the Plan and the liquidation of the Trust, all or any
distribution payable to a Participant or his Beneficiary has not been claimed
after sending the notice described in Subsection 12.06(1) above, the
Committee shall establish an Individual Retirement Account or an
interest-bearing, federally insured account in a bank or savings and loan
association in the name of the Participant or Beneficiary, shall purchase a
deferred annuity providing the form(s) of benefit prescribed in Article XI
or, if the Committee is unable to accomplish any of the foregoing, shall
dispose of the Participant's Account in any other method permitted by the
Code and ERISA. If a Participant's Account has been forfeited pursuant to
Subsection 12.06(2) above, it shall be restored upon Plan termination and
distributed as provided in the preceding sentence. The Committee shall
direct the Trustee to distribute the Participant's Account valued as of the
last Valuation Date, or special valuation date as provided in Section 18.03
hereof, preceding distribution.
ARTICLE XIII
ADMINISTRATION OF THE PLAN
13.01 Appointment of Committee. The administration of the Plan will
be the responsibility of the Committee which shall be appointed by the Board
and shall consist of at least one (1) but no more than eight (8) members.
The President or Vice President of the Sponsoring Company shall certify to
the Trustee the names of the members of the Committee. The Board shall be
authorized to remove any member of the Committee with or without cause by
notifying such member and the Chairman, in writing, and may fill vacancies in
the Committee, however caused. A member of the Committee may resign upon ten
(10) days' prior notice by delivery of his written resignation to the
President of the Sponsoring Company. The Committee shall have the sole
power, duty and responsibility for directing the administration of the Plan
in accordance with its provisions. Until such time as the Board so
determines otherwise, the Committee of this Plan shall be the Retirement
Committee under the Retirement Plan for Employees of Southwestern Public
Service Company.
13.02 Compensated Expenses of the Committee. The members of the
Committee shall serve without compensation for their services as such, but
the reasonable and necessary expenses of the Committee shall be paid as
provided in Section 13.14. When, in its discretion, the Committee, or any
Employer, deems it advisable, the Committee shall be authorized to have the
records of the Committee and the Trustee audited by an independent auditor,
and reasonable and necessary expenses thereby incurred shall be paid as
provided in Section 13.14 hereof.
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13.03 Secretary and Agents of the Committee. The Committee or the
Trustee may employ such agents and such clerical and other administrative
personnel as reasonably may be required for the purpose of administering the
Plan. Such administrative personnel shall carry out the duties and
responsibilities assigned to them by the Committee or Trustee, as applicable.
Expenses necessarily incurred for such purpose shall be paid by the Trust
Fund unless paid by the Employers, as provided in Section 13.14.
13.04 Actions of Committee.
13.04(l) A majority of the members of the Committee shall
constitute a quorum for the transaction of business, and shall have full
power to act hereunder. Action by the Committee shall be official if
approved by a vote of a majority of the members present at any official
meeting. The Committee may, without a meeting, authorize or approve any
action by written instrument signed by a majority of all of the members. Any
written memorandum signed by the Chairman, or any other member of the
Committee, or by any other person duly authorized by the Committee to act, in
respect of the subject matter of the memorandum, shall have the same force
and effect as a formal resolution adopted in open meeting. The Committee
shall give to the Trustee any order, direction, consent, certificate or
advice required or permitted under the terms of the Trust Agreement, and the
Trustee shall be entitled to rely on, as evidencing the action of the
Committee, any instrument delivered to the Trustee when: (i) if a
resolution, it is certified by the Chairman and Secretary, or (ii) if a
memorandum, it is signed by a majority of all of the members of the
Committee, or by a person who shall have been authorized to act for the
Committee in respect of the subject matter thereof.
13.04(2) A member of the Committee may not vote or decide upon any
matter relating solely to him or vote in any case in which his individual
right or claim to any benefit under the Plan is specifically involved. If,
in any case in which a Committee member is so disqualified to act, the
remaining members then present cannot, by majority vote, act or decide, the
Board will appoint a temporary substitute member to exercise all of the
powers of the disqualified member concerning the matter in which he is
disqualified.
13.04(3) The Committee shall maintain minutes of its meetings and
written records of its actions, and as long as such minutes and written
records are maintained, members may participate and hold a meeting of the
Committee by means of conference telephone or similar communications
equipment which permits all persons participating in the meeting to hear each
other. Participation in such a meeting constitutes presence in person at
such meeting.
13.05 Authority of Committee. The Committee is authorized to take
such actions as may be necessary to carry out the provisions and purposes of
the Plan and shall have the authority to control and manage the operation and
administration of the Plan, including complying with all reporting and
disclosure requirements under applicable laws and regulations. In order to
effectuate the purposes of the Plan, the Committee shall have the fiduciary
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power and discretion to construe and interpret the Plan, to supply any
omissions therein, to reconcile and correct any errors or inconsistencies, to
decide any questions in the administration and application of the Plan, and
to make equitable adjustments for any mistakes or errors made in the
administration of the Plan. The Committee shall also have the power to
direct the purchase by the Trustee of or the investment by the Trustee in any
insurance company investment or annuity contracts acquired for the purpose of
funding benefits under the Plan. All such actions or determinations made by
the Committee, and the application of rules and regulations to a particular
case or issue by the Committee, in good faith, shall not be subject to review
by anyone, but shall be final, binding and conclusive on all persons ever
interested hereunder. In construing the Plan and in exercising its fiduciary
power under provisions requiring Committee approval, the Committee shall
attempt to ascertain the purpose of the provisions in question and when such
purpose is known or reasonably ascertainable, such purpose shall be given
effect to the extent feasible. Likewise, the Committee is, in the exercise
of its fiduciary powers, authorized to determine all questions with respect
to the individual rights of all Participants and their Beneficiaries and
Alternate Payees under this Plan, including, but not limited to, all issues
with respect to eligibility, Compensation, service, valuation of Accounts,
allocation of consolidated contributions and Trust Fund earnings, and
retirement or Termination of Employment, and shall direct the Trustee
concerning the allocation, payment and distribution of all funds held in
trust for purposes of the Plan. The Committee, in the exercise of any
discretionary powers hereunder, shall not exercise that discretion so as to
discriminate in favor of Employees who are officers, shareholders, or highly
compensated Employees. The Committee shall establish investment objectives
and monitor, or cause to be monitored, the investment performance of the
Trustee or any Investment Manager which may be appointed with respect to any
assets of the Plan, and shall make such reports and give such recommendations
to the Board as determined to be appropriate with respect thereto.
13.06 General Administrative Powers. The Committee shall have
authority to make, and from time to time, revise, rules and regulations for
the administration of the Plan.
13.07 Plan Administrator. "Plan Administrator" (as defined in
Section 3(16)(A) of ERISA) shall mean the Sponsoring Company. Except as
otherwise delegated herein, the Plan Administrator shall exercise such
authority and responsibility as it deems appropriate to comply with the
provisions of federal law and governmental regulations issued thereunder and
to carry out any duties imposed hereby, including, but not limited to,
records of Participants' service, accrued benefits and the percentage of such
benefits which are nonforfeitable under the Plan, notification to
Participants, annual registration with the Internal Revenue Service, annual
reports to the Department of Labor, and furnishing the Trustee with any
directions or information regarding income tax withholding required by law.
The Plan Administrator is hereby designated as the agent for service of
process unless the Committee designates another person or entity.
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13.08 Duties of Administrative Personnel. Administrative personnel
appointed pursuant to Section 13.03 hereof, shall be responsible for such
matters as the Committee shall delegate to them by written instrument,
including, but not limited to communications to Employees at the direction of
the Committee, reports to the Committee involving questions of eligibility
and the amount of Compensation of Participants, assisting Participants,
Beneficiaries and Alternate Payees in the completion of forms prescribed by
the Committee, maintenance of records concerning terminated vested
Participants, Participants who have retired and Beneficiaries.
Administrative personnel may not make any decision as to Plan policy,
interpretations, practices or procedures unless the authority to make such
decisions has been delegated to them in writing by the Committee and they
accept fiduciary responsibilities in accordance with the provisions of
Section 13.09 hereof. All administrative personnel shall perform their
allocated function within the policies, interpretations, rules, practices and
procedures established by the Committee, except that administrative personnel
shall coordinate matters related to the Plan with the appropriate departments
of each Employer as the Committee directs.
13.09 Designation of Named Fiduciaries and Allocation of
Responsibility. ERISA requires that certain persons, who are deemed to be
"fiduciaries," as defined in ERISA Section 3(21)(A), be designated as "Named
Fiduciaries" in the Plan. The Board, the Committee and the Plan
Administrator are hereby designated Named Fiduciaries. Each Named Fiduciary
shall have only the powers, duties and responsibilities specifically
allocated to such fiduciary pursuant to the terms of this Plan. The Board
shall not have power or fiduciary responsibility hereunder other than the
power to name and to remove the persons who shall comprise the Committee and
to continue to those persons such allocation of fiduciary responsibilities.
In addition to all of the other rights, powers and responsibilities delegated
to it hereunder, the Committee shall have the fiduciary responsibility and
the power to appoint (and remove) one or more Investment Managers, and the
Committee shall have the power to appoint (and remove) the Trustee. Each
Named Fiduciary may, by written instrument, allocate some or all of its
responsibilities to another fiduciary or designate another person to carry
out some or all of its fiduciary responsibilities. The Committee, Plan
Administrator and each other fiduciary under the Plan (including fiduciaries
to whom responsibilities are allocated by a Named Fiduciary) will be
furnished a copy of the Plan, and their acceptance of such responsibility
will be made by agreeing in writing to act in the capacity designated. No
Named Fiduciary shall be liable for an act or omission of any person who is
allocated a fiduciary responsibility or who is designated to carry out such
responsibility by a Named Fiduciary, except to the extent that the Named
Fiduciary did not act in accordance with the standards contained in
Subsection 13.10(2) hereof with respect to the allocation or designation of a
fiduciary duty. Any person or group of persons may serve in more than one
(1) fiduciary capacity with respect to the Plan.
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13.10 Action by Fiduciaries.
13.10(1) Any action herein permitted or required to be taken by an
Employer shall, subject to the provisions of Section 21.07 hereof, be by
resolution of its board of directors or by written instrument signed by a
person or group of persons who has been authorized by resolution of such
board of directors as having authority to take such action. Any action
herein permitted or required to be taken by the Committee shall be in the
manner specified in Section 13.04 hereof.
13.10(2) Each fiduciary with respect to the Plan shall perform all
of his duties and responsibilities and exercise his powers hereunder with the
care, skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in like capacity and familiar with such matters
would use in the conduct of an enterprise of like character and with like
aims, and no fiduciary shall be liable for any act or failure to act on his
part (including reliance on the advice of counsel) which conforms to that
standard, unless: (i) he knowingly participates in or knowingly undertakes
to conceal an act or omission of another fiduciary of the Plan, with the
knowledge that such act or omission is a breach of fiduciary responsibility,
or (ii) knowing of a breach of fiduciary responsibility, he fails to make
reasonable efforts under the circumstances to remedy the breach, or (iii) by
failing to carry out his specific responsibilities, in accordance with such
standard, he has enabled another fiduciary of the Plan to commit a breach.
13.10(3) Each fiduciary shall furnish or cause to be furnished to
each other fiduciary all information needed for the proper performance of its
duties. Each fiduciary warrants that any directions given, information
furnished or action taken by it shall be in accordance with the provisions of
the Plan or the Trust Agreement, as the case may be, authorizing or providing
for such direction, information or action.
13.11 Appointment of Professional Assistants and the Investment
Manager. The Committee may appoint such accountants, counsel, and actuaries
and other advisers as it deems necessary or desirable in connection with the
administration of the Plan. The Committee, in its sole discretion, may
appoint one or more Investment Managers to manage (including the power to
acquire or dispose of) all or any of the assets of the Trust Fund. The
Committee shall be entitled to rely upon and shall not be liable for any act
or failure to act in reliance, on any opinion or reports, which shall be
furnished to the Committee by any such accountant with respect to accounting
matters, counsel in respect to legal matters, or actuary in respect of
actuarial matters as long as the Committee's reliance is in accordance with
the standard set forth in Subsection 13.10(2) hereof. The fees and costs of
such services are an administrative expense to the Plan to be paid out of the
Trust Fund except to the extent that such fees and costs are paid by any of
the Employers.
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13.12 Bond. The Committee shall see that the appropriate
fiduciaries are bonded as required by federal law or regulation. Except as
required by state or federal statute, irrespective of this provision, no bond
or other security shall be required of any fiduciary.
13.13 Indemnity. In the event and to the extent not insured against
under any contract of insurance with an insurance company, the Employers
shall indemnify and hold harmless each "Indemnified Person", as defined
below, against any and all claims, demands, suits, proceedings, losses,
damages, interest, penalties, expenses (specifically including, but not
limited to counsel fees to the extent approved by the Sponsoring Company or
otherwise provided by law, court costs and other reasonable expenses of
litigation), and liability of every kind, including amounts paid in
settlement, with the approval of the Sponsoring Company, arising from any
action or cause of action related to the Indemnified Person's act or acts or
failure to act. Such indemnity shall apply regardless of whether such
claims, demands, suits, proceedings, losses, damages, interest, penalties,
expenses, and liability arise in whole or in part from (i) the negligence or
other fault of the Indemnified Person, except when the same is judicially
determined to be due to gross negligence, fraud, recklessness, willful or
intentional misconduct of such Indemnified Person or (ii) from the imposition
on such Indemnified Person of any penalties imposed by the Secretary of
Labor, pursuant to Section 502(1) of ERISA, relating to any breaches of
fiduciary responsibility under Part 4 of Title I of ERISA. "Indemnified
Person" shall mean each member of the Board of Directors of the Company, the
Committee, the Trustee (other than a corporate Trustee), each other
individual (but not any independent business entity) who is allocated
fiduciary responsibility hereunder, and each individual (but not any
independent business entity) otherwise acting in an administrative capacity
with respect to the Plan.
13.14 Payment of Expenses.
13.14(1) The expenses of agents or advisers, the expenses of the
Trustee and any other reasonable expenses of the Committee approved by the
Sponsoring Company or as otherwise provided for in Section 13.02, shall,
subject to Subsection 13.14(2) hereof, be paid by the Plan out of the Trust
Fund unless paid by the Employers. If such expenses are to be paid by the
Employers, the portion thereof payable by each may be determined by the ratio
that the number of Participants who are Employees of each Employer bears to
the total of all such Participants; provided, that if any expense is incurred
solely on account of a single Employer or group of Employers, such expense
shall be paid by such Employer or Employers to the extent and in such
proportion as the Sponsoring Company may determine.
13.14(2) Notwithstanding any provisions of Subsection 13.14(1) to
the contrary, as reimbursement for the expenses of administering the Plan,
the Plan may pay so much of the amounts paid or incurred during the taxable
year as expenses of administering the Plan as does not exceed the lesser of:
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(a) The sum of ten percent (10%) of the first One
Hundred Thousand Dollars ($100,000.00), and five percent (5%) of any amount
in excess of One Hundred Thousand Dollars ($100,000.00) of the dividends paid
to the Plan during the Plan Year ending with or within the Employer's taxable
year, with respect to the aggregate Company Stock held in the ESOP Employer
Contribution Accounts and ESOP Employee Contribution Accounts, or
(b) One Hundred Thousand Dollars ($100,000.00).
ARTICLE XIV
INVESTMENT IN TRUST FUND
14.01 Investment in Company Stock Fund.
14.01(1) Except as otherwise provided in Sections 14.02 or 14.03
hereof, the Trustee shall invest all Accounts solely in shares of Company
Stock which shall be held by the Trustee in a separate investment fund under
the Trust (the "Company Stock Fund"). The Trustee may acquire those shares
in the open market or may acquire those shares from the Sponsoring Company,
either from treasury stock or from previously authorized but unissued stock,
at a price equal to the average of the high and low, as reported on the
composite tape for the New York Stock Exchange, on the last day on which
Company Stock is traded preceding the date of purchase by the Trustee of the
Company Stock. Monies in amounts estimated by the Trustee to be needed for
cash withdrawals or in amounts too small to be reasonably invested may be
retained by the Trustee in cash in a separate subaccount under the Company
Stock Fund. Likewise, monies may be retained in cash or invested temporarily
in short-term (less than one year) U. S. Treasury obligations, high grade
commercial paper, certificates of deposit and other money market investments
as selected by the Trustee (or in interest-bearing securities similar to such
investments) until such time as stock is normally purchased by the Trustee in
accordance with its administrative procedures, or during periods when Company
Stock is not reasonably available for purchase, or if, in the opinion of the
Trustee, the purchase of Company Stock might involve a possible violation of
any Federal or state law, including any Federal or state securities law or
any regulation or rule thereunder, or as the Trustee deems to be in the best
interest of the Participants. To the extent not otherwise provided in the
Plan, dividends and other distributions received and gains realized on
Company Stock shall, to the extent permissible, be invested in Company Stock
and held in the Company Stock Fund. Rights to purchase Company Stock issued
to the Trustee as stockholder shall be exercised to the fullest extent
practicable through the application of cash, and if that be insufficient to
exercise the rights in full, then through the application of cash derived
from the sale of a part of the rights under a procedure that will permit the
purchase of the maximum number of shares from the cash thus made available.
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14.01(2) The Committee shall establish and maintain, or cause the
Trustee to establish and maintain procedures and records which will
adequately reflect (i) the number of shares (including fractional shares) of
Company Stock in the Company Stock Fund and/or the cash available for the
purchase of Company Stock attributable to each Account of a Participant, (ii)
the dividends accrued in the form of Company Stock, stock splits and similar
changes with respect to shares of Company Stock attributable to a
Participant's Accounts, (iii) the net unrealized gain or loss attributable to
such shares of Company Stock, and (iv) the cost basis of all shares of
Company Stock attributable to a Participant's Accounts.
14.02 Participant Investment Direction.
14.02(1) Notwithstanding the provisions of Subsection 14.01(1)
hereof, each Participant may elect to have twenty-five percent (25%) of such
Participant's Elective Contributions made on and after the Effective Date and
the Company Matching Contributions which are allocated for the benefit of the
Participant on the basis of such twenty-five percent (25%) of the
Participant's Elective Contributions, and may elect to have any amount
credited to a Rollover Account, to the extent provided for in Section 4.07
hereof, invested in any Investment Fund established hereunder, including the
Company Stock Fund, in accordance with the rules and procedures established
from time to time by the Committee and communicated in writing to the
Participants. To the extent a Participant fails to direct the investment of
all or a portion of such amounts (other than amounts credited to a Rollover
Account), they shall be invested in the Company Stock Fund. If a Participant
fails to direct the investment of all or any portion of a Rollover Account,
the Trustee shall direct and redirect such investment among the Investment
Funds other than the Company Stock Fund as the Trustee, in its sole
discretion, may determine. Any amounts invested in the Company Stock Fund
under this Section 14.02 shall thereafter no longer be eligible for
investment direction pursuant to this Section 14.02. Upon a Participant's
Termination of Employment or cessation of participation for any reason,
including death, Total and Permanent Disability or retirement, if payment of
such Participant's Accounts is to be deferred pursuant to Section 11.01
hereof, such Participant (or Beneficiary) shall continue to have the right to
direct the investment of the portion of his Accounts as provided herein.
14.02(2) On the last day of each Plan Quarter, a Participant may
change such Participant's designation of the manner for investment of the
amounts the Participant previously directed into Investment Funds other than
the Company Stock Fund and future contributions described in Subsection
14.02(1) made on behalf of or by the Participant to any other manner of
investment permitted under Subsection 14.02(1) hereof, provided that (i)
application for the change is made in the form and in accordance with the
rules prescribed by the Committee, (ii) any such change shall not become
effective unless made within the time the Committee designates, and (iii) the
change shall be applicable to contributions made after the application for
change shall have become effective, or to the interest of the Participant in
each Investment Fund as of the date the application for change shall have
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become effective, as the case may be. In order to comply with applicable
federal or state securities laws, the Committee may establish such rules with
respect to the change of investment designation by Participants as it shall
deem necessary or advisable to prevent possible violations of such laws.
14.02(3) The Trustee shall maintain such investment funds
(including the Company Stock Fund) as the Committee may direct from time to
time, for the investment of the Trust Fund ("Investment Funds"). Such
Investment Funds shall be communicated to Participants in writing. Except as
provided hereinafter in this Section, the assets of each such Investment Fund
other than the Company Stock Fund shall be invested exclusively in shares of
the registered investment company or mutual fund designated by the Committee,
provided that such shares constitute securities described in ERISA Section
401(b)(1). Assets in any such Investment Fund in amounts estimated by the
Trustee to be needed for cash withdrawals, or in amounts too small to be
reasonably invested, or in amounts designated for the purchase of Company
Stock but which have not yet been so used due to the Trustee's normal
procedures regarding the purchase of Company Stock, or in amounts which the
Trustee deems to be in the best interest of the Participants, may be retained
by the Trustee in cash or invested temporarily.
14.02(4) Any part or all of an Investment Fund other than the
Company Stock Fund may be invested and reinvested by the Trustee in one or
more collective investment funds or commingled trust funds maintained by the
Trustee, as the same may have heretofore been or may hereafter be established
or amended, so long as the Trustee is a bank or other applicable financial
institution or another fiduciary with respect to the Plan. Any such fund
must be invested principally in assets of the kind specified for the
respective Investment Fund and must be authorized to accept investments by
retirement plans qualified under the provisions of Section 401(a) and exempt
under the provisions of Code Section 501(a). During such period of time as
an investment in or through any such fund shall exist, the declaration of
trust of such collective investment fund or commingled trust fund shall be
incorporated by reference in, and shall constitute a part of, the Trust
instrument.
14.02(5) The Trustee may, in Trustee's sole discretion, invest
cash balances held by the Trustee, as permitted in Subsection 14.02(3)
hereof, from time to time, in short-term cash equivalents having ready
marketability, including, but not limited to, U.S. Treasury bills, commercial
paper (including such forms thereof, other than Trustee's own paper, as may
be available through Trustee's own trust department), certificates of
deposit, and similar type securities.
14.03 Diversification of Participant's Accounts. This Section 14.03
shall apply to (i) the shares of Company Stock, if any, credited to a
Participant's ESOP Employer Contribution Account and/or his ESOP Employee
Contribution Account, to the extent such shares were acquired by the Plan
after December 31, 1986, and (ii) all of the shares of Company Stock credited
to a Participant's other Accounts in the Plan, regardless of when such shares
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were acquired (hereinafter individually or collectively referred to as
"Eligible Shares"). A Participant who has attained age fifty-five (55) and
who has completed ten (10) or more years of participation in the Plan
(including participation in the ESOP and/or the Tax Benefit Plan) shall be,
for purposes of this Section, an "Eligible Participant." An Eligible
Participant may elect either to direct the investment of, or to receive a
single lump sum distribution of twenty-five percent (25%) of the Eligible
Shares in his Accounts, after taking into account all shares as to which a
prior election under this Section (or the comparable section under the ESOP
and/or Tax Benefit Plan) has been made. The total number of Eligible Shares
subject to election at any time shall be determined by rounding such Shares
to the nearest whole share. During each year of the period of six (6)
consecutive Plan Years beginning with the Plan Year in which the Participant
first becomes an Eligible Participant, an election hereunder shall be
permitted. Each such yearly election shall be permitted during the period of
ninety (90) days after the close of the applicable Plan Year (the "Yearly
Election Period"). During the last such Yearly Election Period, an Eligible
Participant may either elect to direct the investment of, or to receive a
single lump sum distribution of fifty percent (50%) of the Eligible Shares in
his Accounts, taking into account all Shares as to which he has previously
made an election. To the extent an Eligible Participant makes an election
under this Section 14.03, the Eligible Shares in the Eligible Participant's
Accounts that are subject to the election shall, no later than ninety (90)
days after the end of the Yearly Election Period, be liquidated, if
necessary, and either be invested among the investment options available for
participant direction in accordance with the instructions of the Eligible
Participant pursuant to the provisions of Section 14.02 of the Plan, or be
distributed to said Participant in a single lump sum. Any amounts
diversified as provided for in this Section 14.03 through investment among
the investment options shall thereafter be subject to the rules and other
provisions of Sections 14.01 and 14.02 regarding the reinvestment or change
in investment of those amounts.
14.04 Funding Policy. The Committee shall establish a funding
policy and method consistent with the objectives of the Plan, the investments
authorized under the Trust Agreement and the requirements of Title I of
ERISA. The Committee shall periodically review such funding policy and
method. In establishing and reviewing such funding policy and method, the
Committee shall endeavor to determine the Plan's short-term and long-term
objectives and financial needs, taking into account the need for liquidity to
pay benefits and the need for investment growth. All actions of the
Committee taken pursuant to this Section 14.04 shall be communicated to the
Trustee.
14.05 Reservation of Cash. In the implementation of its duties
under Section 14.04, the Committee may communicate to the Trustee the need to
reserve from permanent investment from time to time such amounts of cash as
it deems necessary or advisable in the administration of the Plan.
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14.06 Voting of Company Stock; Tender Offers.
14.06(1) Voting of Stock - Registered Stock. All Shares of
Company Stock, including fractional shares, held in the Company Stock Fund
for a Participant's various Accounts shall be voted by the Trustee in
accordance with the directions of the Participant acting in his right as a
shareholder. The Trustee shall combine fractional shares to the extent
possible to reflect the direction of the Participants holding fractional
shares. The Trustee shall establish such uniform and nondiscriminatory
procedures as it deems necessary or appropriate in order to effectuate the
voting rights granted to Participants hereunder. The Trustee shall be bound
to follow the instructions of Participants, acting as named fiduciaries under
Section 403(a)(1) of ERISA, with respect to voting of shares of Company Stock
which have been allocated to Accounts; provided, however, that if a
Participant does not respond in a timely fashion to the solicitation of
voting instructions, the shares of Company Stock allocated (or treated as
having been allocated) to such Participant's Accounts shall, to the extent
consistent with ERISA, be voted by the Trustee in its sole discretion.
14.06(2) Voting of Company Stock - Non-Registered Stock.
(a) Notwithstanding the provisions of Subsection
14.06(1), if any Company Stock allocated to a Participant's Accounts is not a
"registration type class of securities," the Participant shall be entitled to
instruct the Trustee with respect to voting such Company Stock (in accordance
with the provisions of Subsection 14.06(1)) only with respect to any
corporate matter which involves the approval or disapproval of any corporate
merger or consolidation, recapitalization, reclassification, liquidation,
dissolution, sale of substantially all assets of a trade or business, or such
similar transaction as the Secretary of the Treasury may prescribe in
regulations pursuant to the provisions of Section 409(e) of the Code.
(b) If a matter is to be submitted to the holders of
Company Stock which is not a "registration type class of securities" and it
is not necessary that the Participant be entitled to instruct the Trustee
with respect to voting in accordance with this Section, the Trustee, in its
discretion, shall vote all shares of such Company Stock held by it (or
exercise dissenter's rights, if applicable), after consultation with the
Committee. "Registration type class of securities" shall mean any class of
securities required to be registered under Section 12 of the Securities
Exchange Act of 1934, or exempt from such registration solely by reason of
Section 12(g)(2)(h) (concerning interests in pooled investment vehicles
issued to annuity plans or qualified pension, profit sharing, or stock bonus
plans).
14.06(3) Tender or Exchange Offers.
(a) In the event of a tender offer, exchange offer, or
other offer for 10% or more of the shares of Company Stock held in the
Company Stock Fund in the Trust (such offer hereinafter referred to as an
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"Offer"), the Trustee shall cause each Participant to whose Account any
shares are credited to be advised in writing of the terms of the Offer as
soon as practicable after the commencement of the Offer and shall furnish
each Participant with a form by which the Participant may instruct the
Trustee confidentially whether or not to tender shares credited to his
Account. For purposes of this Section, "Tender" shall mean tender, exchange,
sale or any other form of disposition in connection with an Offer. The
Trustee shall immediately notify the Committee of any Offer made to the
Trustee including all terms and conditions of any such Offer. The Trustee
shall tender those shares which a Participant, acting as a named fiduciary
under Section 403(a)(1) of ERISA, has so instructed it to tender, and the
Trustee shall not tender shares which it is instructed not to tender. If a
Participant does not respond in a timely fashion to the solicitation for
instructions regarding a Tender, the decision on whether or not to tender the
shares allocated to such Participant's Accounts shall, to the extent
consistent with ERISA, be made by the Trustee in its sole discretion. The
provisions of this Section 14.06(3) are intended to establish each
Participant as a named fiduciary as defined in Section 403(a)(1) of ERISA in
connection with any such Tender; however, to the extent the Trustee retains
any fiduciary responsibility with respect to any such Tender, the Trustee
shall not be required to take any action, or omit to take any action, which
would cause the Trustee to commit a breach of fiduciary duty under ERISA.
(b) In advising Participants of the terms of the Offer,
the Trustee shall advise the Participant that if the Trustee receives no
instructions, the decision on whether or not to Tender the shares allocated
to the Participant's Accounts will be made by the Trustee in its sole
discretion, and shall provide Participants with such documents relating to
the Offer as are prepared by any person and provided to shareholders. In
addition, the Trustee may provide Participants with such other material
concerning the Offer as the Trustee in its sole discretion determines to be
appropriate. Reasonable means shall be employed by the Trustee to provide
confidentiality with respect to the tendering directions by each Participant,
and the Trustee shall hold such directions in confidence and shall not
divulge or release such directions to any person, including all Employers or
any director, officer, employee or agent of an Employer, it being the intent
of this provision to ensure that the Employers (and their directors,
officers, employees and agents) cannot determine the tendering directions
given by any Participant. A Participant's instructions to the Trustee to
tender shares shall not be deemed a withdrawal or suspension from the Plan or
a forfeiture of any portion of the Participant's interest in the Plan. The
Committee shall advise the Trustee of the commencement date of any Offer and,
until receipt of such advice, the Trustee shall not be obligated to take any
action under this Section.
(c) Funds or property received in exchange for tendered
stock shall be credited to the Accounts of the Participants whose stock was
tendered. If Company Stock is available on a national securities exchange,
such funds or property may be used by the Trustee to purchase Company Stock.
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Pending investment in Company Stock pursuant to the preceding sentence, the
Trustee shall invest such funds in Authorized Investments permitted under the
Trust Agreement.
ARTICLE XV
PARTICIPATION BY EMPLOYERS
15.01 Adoption of Plan by Affiliated Company. Any Affiliated
Company, whether or not presently existing, may adopt this Plan, effective as
of the date indicated in the instrument of adoption, if (i) its application
is made in writing to the Board, (ii) such application is accepted in writing
by the Board, and (iii) such Affiliated Company executes an instrument in
writing duly authorized by it adopting this Plan and the Trust forming a part
hereof and delivers a copy thereof to the Committee, the Trustee and to the
Board. The provisions of this Plan shall apply only to each Employer
severally, except as otherwise specifically provided herein or in such
Employer's instrument of adoption.
15.02 Rights and Obligations of the Sponsoring Company and the
Employers. Throughout this instrument, a distinction is purposely drawn
between rights and obligations of the Sponsoring Company and rights and
obligations of each other Employer. The rights and obligations specified as
belonging to the Sponsoring Company shall belong only to the Sponsoring
Company. Each Employer shall have the obligation, as hereinafter provided,
to make Company Contributions, Company Matching Contributions and Elective
Contributions for its own Participants, and no Employer shall have the
obligation to make Company Contributions, Company Matching Contributions or
Elective Contributions for the Participants of any other Employer. Any
failure by an Employer to fulfill its own obligations under this Plan shall
have no effect upon any other Employer. An Employer may withdraw from this
Plan without affecting any other Employer.
15.03 Withdrawal from Plan.
15.03(1) Notice of Withdrawal. Any Employer may, with the
approval of the Board, as of any Valuation Date withdraw from the Plan upon
giving the Committee and the Trustee at least thirty (30) days' notice in
writing of its intention to withdraw.
15.03(2) Trustee Segregation of Trust Assets upon Withdrawal.
Upon the withdrawal by an Employer pursuant to this Article, the Trustee
shall segregate the share of the assets in the Trust Fund, the value of which
shall equal the total credited to the Accounts of Participants of the
withdrawing Employer. The determination as to which assets are to be so
segregated shall be made by the Trustee in its sole discretion.
15.03(3) Exclusive Benefit of Participants. Neither the
segregation and transfer of any Trust assets upon the withdrawal of an
Employer nor the execution of a new agreement and declaration of trust by
such withdrawing Employer shall operate to permit any part of the Trust Fund
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to be used for or diverted to purposes other than for the exclusive benefit
of the Participants.
15.03(4) Applicability of Withdrawal Provisions. The withdrawal
provisions contained in this Article XV shall be applicable only if the
withdrawing Employer continues to cover its Participants and eligible
Employees in another stock bonus/employee stock ownership plan and trust
qualified under Code Sections 401, 409, 4975(e)(7) and 501. Otherwise, the
termination provisions of the Plan and Trust shall apply.
ARTICLE XVI
AMENDMENT OF THE PLAN
16.01 Authority to Amend. The Sponsoring Company reserves the right
to amend the Plan with respect to all Employers at any time and from time to
time provided that a copy of any such amendment is delivered to all other
Employers within thirty (30) days of the adoption of the amendment. Each
Employer may amend the Plan with respect to such Employer at any time, and
from time to time, provided the Sponsoring Company approves such amendment.
No amendment shall permit any part of the Trust Fund to revert to or be
recoverable by an Employer or be used for or diverted to purposes other than
the exclusive benefit of the Participants or their Beneficiaries, or deprive
any Participant of any interest he might have in the Trust Fund at the time
of the amendment to the extent that such interest would be available to the
Participant under Article X hereof were he to voluntarily resign as of the
effective date of the amendment.
16.02 Trustee's Consent. Under no condition, shall such amendment,
amendments, or restatements increase the duties or responsibilities, or
decrease the compensation, privileges, and immunities of the Trustee without
the Trustee's written consent.
16.03 Limitations of Vesting Changes. Under no condition, shall
such amendment change the vesting schedule to one which would result in the
nonforfeitable percentage of the accrued benefit derived from Company
Contributions and Company Matching Contributions (determined as of the later
of the date of the adoption of the amendment or of the effective date of the
amendment) of any Participant being less than such nonforfeitable percentage
computed under the Plan without regard to such amendment; no amendment shall
change the vesting schedule unless each Participant with three (3) or more
Eligibility Years of Service as of the expiration date of the election period
described below, is permitted to elect, within the election period described
below, to have his nonforfeitable percentage computed under the Plan without
regard to the amendment. The election period described herein shall begin no
later than the date upon which the amendment is adopted and shall end no
later than the latest of the following dates: (i) the date which is sixty
(60) days after the day the amendment is adopted, (ii) the date which is
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sixty (60) days after the day the amendment becomes effective, or (iii) the
date which is sixty (60) days after the day the Participant is issued a
written notice of the amendment by the Sponsoring Company.
16.04 Limitations on Other Changes. Subject to the above stated
limitations and the requirement that no amendment shall eliminate, except
with respect to any future contributions or future accrual of benefits, any
nondiscretionary optional form of payment (as provided in Treasury Regulation
Section 1.411(d)-4, and Treasury Regulation Section 1.401(a)(4)-4(d) and Code
Section 411(d)(6)) with respect to any Participant who is a Participant
immediately prior to the amendment, the Sponsoring Company shall have the
power to amend the Plan and Trust Agreement, retroactively or otherwise, in
any manner in which it deems desirable, including, but not by way of
limitation, the power to change any provisions relating to the administration
of the Plan and Trust Fund, and to change any provisions relating to the
benefits or payment of any of the assets of the Trust Fund. Each such
amendment shall become effective when executed by the Sponsoring Company
unless a different effective date is specified in the amendment.
16.05 Statutorily Required Amendments. Notwithstanding anything
herein to the contrary, this Plan may be amended at any time by the
Sponsoring Company if necessary or desirable in order to have it conform to
the provisions and requirements of the Code or any federal statute with
respect to qualified employees' plans and trusts, and no such amendment shall
be considered prejudicial to the rights of any Participant hereunder or of
any Beneficiary, Alternate Payee or Employee. Further, it is understood that
any provisions of this Plan as herein contained which are contrary to the
requirements of the Code for a qualified tax exempt employees' plan and trust
shall be deemed void and of no effect, without affecting the validity of
other provisions hereof.
ARTICLE XVII
PERMANENCY OF THE PLAN
17.01 Right to Terminate Plan. Each Employer contemplates that the
Plan shall be permanent and that it shall be able to make contributions to
the Plan. Nevertheless, in recognition of the fact that future conditions
and circumstances cannot now be entirely foreseen, the Sponsoring Company
reserves the right to terminate the Plan and each Employer reserves the right
to terminate the Plan as to such Employer.
17.02 Merger or Consolidation of Plan and Trust. Neither the Plan
nor the Trust may be merged or consolidated with, nor may its assets or
liabilities be transferred to, any other plan or trust, unless each
Participant would (if the Plan then terminated) receive a benefit immediately
after the merger, consolidation, or transfer which is equal to or greater
than the benefit he would have been entitled to receive immediately before
the merger, consolidation, or transfer (if the Plan had then terminated).
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17.03 Continuance by Successor Company. In the event of the
liquidation, dissolution, merger, consolidation or reorganization of an
Employer, the successor company may adopt the Plan and Trust for the benefit
of the Employees of such Employer. If such successor company does adopt the
Plan and Trust, it shall, in all respects, be substituted for such Employer
under the Plan and Trust. Any such substitution of such successor company
shall constitute an assumption of Plan liabilities by such successor company,
and such successor company shall have all of the powers, duties and
responsibilities of such Employer under the Plan and Trust. If such
successor company does not adopt the Plan and Trust, the Plan and Trust shall
be terminated with respect to such Employer in accordance with the provisions
of the Plan and Trust Agreement.
ARTICLE XVIII
DISCONTINUANCE OF CONTRIBUTIONS AND TERMINATION
18.01 Suspension of Contributions. Should an Employer fail for any
reason to make Company Contributions and/or Company Matching Contributions in
any one (1) or more years, such failure shall not, of itself, terminate or
discontinue this Plan and Trust as to the Employer and its Participants, nor
shall the Employer incur any obligation to make up such Company Contributions
and/or Company Matching Contributions in whole or in part.
18.02 Discontinuance of Contributions. Whenever an Employer
determines that it is impossible or inadvisable for it to make further
Company Contributions and/or Company Matching Contributions, such Employer
may, without terminating the Trust, permanently discontinue all further
Company Contributions and/or Company Matching Contributions by such Employer.
A certified copy of such Employer's resolution or other formal written
instrument pursuant to Section 21.07 hereof, shall be delivered to the
Committee and the Trustee. Thereafter, the Committee and the Trustee shall
continue to administer all the provisions of the Plan which are necessary and
remain in force, other than the provisions relating to Company Contributions
and/or Company Matching Contributions by such Employer. Unless otherwise
provided by such resolutions, the Trust shall remain in existence with
respect to such Employer and all of the provisions of the Trust Agreement
shall remain in force.
18.03 Termination of Plan and Trust. If an Employer determines to
terminate (as to such Employer) the Plan and Trust completely, they shall be
terminated insofar as they are applicable to such Employer as of the date
specified in certified copies of resolutions or other formal written
instrument pursuant to Section 21.07 hereof, delivered to the Committee and
the Trustee. Upon such termination of the Plan and Trust and before
liquidation of the Trust, the Committee shall require a special valuation of
the Trust, if the liquidation is not to occur as of a Valuation Date. After
payment of all expenses and proportional adjustment of Accounts of
Participants with respect to such Employer to reflect such expenses, Trust
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Fund profits or losses, and subject to the limitations contained in Section
5.04 hereof, allocations of any previously unallocated funds to the date of
termination, such Employer's Participants shall be entitled to receive the
amount then credited to their respective Accounts in the Trust Fund in a
lump-sum payment. If, in the opinion of the Committee, assets in the Trust
Fund or certain of them may possibly not be readily salable (i) because of
federal or state securities laws, or the rules and regulations thereunder, or
(ii) at their fair market value, the Committee may direct and the Trustee
shall effect, a distribution of such assets in kind. If the entire Plan is
terminating, upon completion of liquidation and distribution of the assets of
the Trust to the Participants as provided for herein, the Trustee shall
thereby complete the Trustee's duties, and the Trust shall terminate.
18.04 Participant's Rights to Benefits upon Termination or Partial
Termination of Plan or Complete Discontinuance of Contributions. Upon the
termination or partial termination (as determined by the Internal Revenue
Service) of the Plan or the complete discontinuance of Company Contributions
and Company Matching Contributions by an Employer, the rights of each such
Employer's Employees who are then Participants (or, in the case of a partial
termination, who are then Participants affected by the partial termination)
and the rights of each other person to the amounts credited to his Accounts
at such time shall be nonforfeitable without reference to any formal action
on the part of such Employer, the Committee or the Trustee.
ARTICLE XIX
EXCLUSIVE BENEFIT OF THE PLAN
19.01 Limitation on Reversions. Except as otherwise provided in
this Article XIX, it shall be impossible, at any time, for any part of the
Trust Fund, other than such part as is required to pay taxes and
administration expenses or such part as may otherwise be permitted by law to
be returned to the Employer, to be recoverable by an Employer, or to be used
for, or diverted to, purposes other than for the exclusive benefit of the
Participants, Beneficiaries and Alternate Payees.
19.02 Unallocated Amounts upon Termination of Plan and Trust. In
the event the Plan and Trust are terminated, any previously unallocated
amounts maintained in the suspense account in accordance with the provisions
of Section 5.04 hereof which cannot be allocated to Participants upon the
termination of the Plan and Trust pursuant to Section 18.03 hereof because of
the limitations contained in Sections 5.04 through 5.07 hereof, shall revert
to the Employer or Employers employing the Participant at the time of such
termination.
19.03 Mistake of Fact or Disallowance of Deduction. If the
Committee in good faith determines that (a) a Company Contribution or Company
Matching Contribution or Elective Contribution, or all of them was made by
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reason of a mistake of fact, or (b) a Company Contribution or Company
Matching Contribution or Elective Contribution, or all of them is conditioned
on its being deductible under Code Section 404, but the Internal Revenue
Service disallows such deduction, the Trustee shall, upon direction of the
Committee, return the amount of the excess Company Contribution or Company
Matching Contribution or Elective Contribution, or all of them to the
contributing Employer. All payments of returned Company Contributions or
Company Matching Contributions or Elective Contribution, or all of them under
this Section shall be made within one (1) year from the date of the payment
of such mistaken Company Contribution or Company Matching Contribution or
Elective Contribution, or all of them or the disallowance by the Internal
Revenue Service of the deduction, whichever is applicable. The amount of the
excess Company Contribution or Company Matching Contribution or Elective
Contribution, or all of them shall be the excess of (1) the amount
contributed over (2) the amount that would have been contributed had there
not occurred a mistake of fact or had the deduction not been disallowed.
Earnings attributable to the excess Company Contribution or Company Matching
Contribution or Elective Contribution, or all of them shall not be returned
to the contributing Employer, but losses attributable thereto shall reduce
the amount of such Company Contribution or Company Matching Contribution or
Elective Contribution, or all of them to be so returned. Furthermore, if the
withdrawal of the amount attributable to the mistaken Company Contribution or
Company Matching Contribution or Elective Contribution, or all of them would
cause the balance of a Participant's Account to be reduced to an amount which
is less than the balance which would have been in said Account had the
mistaken amount not been contributed, then the amount to be returned to the
Employer under this Section will be reduced so as to avoid any such
reduction.
19.04 Failure of Qualification of Plan and Trust. The initial
establishment of the Plan and Trust by any Employer is contingent upon
obtaining the approval of the Internal Revenue Service. In the event that
the Internal Revenue Service fails initially to approve the Plan and Trust as
to any Employer and the application for determination of the initial
qualification of the Plan was made within the time prescribed by law for
filing the Employer's Federal income tax return for the taxable year in which
the Plan was adopted, or such later date as the Secretary of the Treasury may
prescribe, the Trustee shall, after paying any expenses attributable to such
initial establishment, return to such Employer any remaining Company
Contribution or Company Matching Contribution made by such Employer. Such
remaining Company Contribution or Company Matching Contribution shall be
returned as promptly as practicable, but in no event later than one (1) year
after the date of the final denial of qualification of the Plan as to such
Employer, including the final resolution of any appeals before the Internal
Revenue Service or the courts.
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ARTICLE XX
TOP HEAVY PLAN RULES
20.01 Definitions. As used in this Article XX:
20.01(1) "Defined Benefit Plan" shall have the meaning set forth
in Subsection 5.06(2) hereof.
20.01(2) "Defined Contribution Plan" shall have the meaning set
forth in Subsection 5.06(4) hereof.
20.01(3) "Determination Date" shall mean with respect to any Plan
Year, the last day of the preceding Plan Year, except that in the case of the
first Plan Year of any plan, the last day of such first Plan Year.
20.01(4) "Key Employee" shall mean any person employed or formerly
employed by any Employer or Affiliated Company (and the beneficiaries of any
such person) who is, at any time during the Plan Year, or who was, during any
one or more of the four (4) preceding Plan Years, any one or more of the
following:
(a) An officer of an Employer or an Affiliated Company
having Limitation Year Compensation for the applicable Plan Year greater than
fifty percent (50%) of the maximum dollar limitation under Code Section
415(b)(l)(A) (as in effect for the calendar year in which the Determination
Date for such Plan Year falls).
(b) One of the ten (10) persons employed by an Employer
or an Affiliated Company having Limitation Year Compensation for the
applicable Plan Year greater than the maximum dollar limitation under Code
Section 415(c)(1)(A) as in effect for the calendar year in which the
Determination Date for such Plan Year falls, and owning (or considered as
owning within the meaning of Code Section 318) both more than one-half of one
percent (1/2 of 1%) interest and the largest interests in the Employer or an
Affiliated Company. For purposes of this Subsection (b): (i) a person who
has some ownership interest is considered to be one of the top ten (10)
owners unless at least ten (10) other persons own a larger interest than that
person, and (ii) if two (2) or more persons have the same ownership interest
in the Employer or an Affiliated Company, the person having greater annual
Limitation Year Compensation from all Employers and Affiliated Companies
shall be treated as having the larger interest.
(c) Any person owning (or considered as owning within
the meaning of Code Section 318) more than five percent (5%) of the
outstanding stock of an Employer or an Affiliated Company or stock possessing
more than five percent (5%) of the total combined voting power of such stock
or more than five percent (5%) of the capital or profits interest of an
Employer or an Affiliated Company which is not a corporation.
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(d) A person who would be described in Subsection (c)
above if "one percent (1%)" were substituted for "five percent (5%)" each
place it appears in said Subsection (c), and whose aggregate annual
Limitation Year Compensation from all Employers and Affiliated Companies is
more than One Hundred Fifty Thousand Dollars ($150,000).
(e) Notwithstanding any other provision in this Plan to
the contrary, for purposes of determining ownership under this Subsection
20.01(4), the rules of Code Sections 414(b), (c) and (m) shall not apply in
defining who is an Employer.
The determination of who is a Key Employee hereunder shall be made in
accordance with the provisions of Code Section 416(i)(1) and the regulations
thereunder.
20.01(5) "Key Employee Participant" shall mean a Participant in
this Plan who is a Key Employee.
20.01(6) "Limitation Year Compensation" shall have the meaning set
forth in Subsection 5.06(7) hereof but including amounts contributed by an
Employer or Affiliated Company pursuant to a salary reduction agreement which
are excludable from the Employee's gross income under Code Sections 125,
402(a)(8), 402(h) or 403(b), except that if the Limitation Year and the Plan
Year under the applicable plan are not the same, then for purposes of this
Article XX, "Plan Year" shall be substituted for "Limitation Year" every
place it occurs in said Subsection 5.06(7).
20.01(7) "Non-Key Employee" shall mean any person employed or
formerly employed by any Employer or Affiliated Company, including the
Beneficiaries of any such person, who is not a Key Employee.
20.01(8) "Permissive Aggregation Group" shall mean the Required
Aggregation Group, plus any other plan or plans of any Employer or Affiliated
Company selected by the Sponsoring Company, provided that such selected
plans, when considered as a group with the Required Aggregation Group, would
continue to satisfy the requirements of Code Sections 401(a)(4) and 410.
20.01(9) "Required Aggregation Group" shall mean the group of
plans consisting of: (i) all tax qualified plans maintained by the Employers
or Affiliated Companies in which at least one Key Employee participates, and
(ii) any other tax qualified plan maintained by the Employers or Affiliated
Companies which enables a plan described in clause (i) above to meet the
requirements of Code Sections 401(a)(4) or 410.
20.01(10) "Valuation Date" shall mean: (i) in the case of a
Defined Contribution Plan, the last day of the Plan Year for the appropriate
plan, and (ii) in the case of a Defined Benefit Plan, the date used for
computing plan costs for minimum funding, regardless of whether a valuation
is performed that year.
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20.01(11) All of the definitions set forth in Article II hereof and
not set forth herein shall have the same meaning in this Article.
20.02 Determination of Top Heaviness.
20.02(1) This Plan shall be a "Top Heavy Plan" with respect to any
Plan Year if, as of the Determination Date for said Plan Year, any of the
following conditions exists:
(a) The Top Heavy Ratio for this Plan exceeds sixty
percent (60%), and this Plan is not part of a Required Aggregation Group or a
Permissive Aggregation Group.
(b) This Plan is part of a Required Aggregation Group,
but not part of a Permissive Aggregation Group, and the Top Heavy Ratio for
the Required Aggregation Group exceeds sixty percent (60%).
(c) This Plan is part of a Required Aggregation Group
and part of a Permissive Aggregation Group, and the Top Heavy Ratio for the
Permissive Aggregation Group exceeds sixty percent (60%).
20.02(2) This Plan shall be a "Super Top Heavy Plan" if it would
be a Top Heavy Plan under the provisions of Subsection 20.02(1) above if
"ninety percent (90%)" were substituted for "sixty percent (60%)" everywhere
sixty percent (60%) appears in said Subsection 20.02(1).
20.02(3) The "Top Heavy Ratio" referred to in Subsection 20.02(1)
above shall be determined as follows:
(a) If the Employers or Affiliated Companies maintain or
have maintained one or more Defined Contribution Plans but have never
maintained a Defined Benefit Plan which during the five (5) year period
ending on the Determination Date(s) has covered or could cover a Participant
in this Plan, the Top Heavy Ratio for this Plan alone or for the Required
Aggregation Group or the Permissive Aggregation Group, as appropriate, is a
fraction, the numerator of which is the sum of the account balances under the
Defined Contribution Plans for all Key Employees as of the Determination Date
(including any part of any such account balance distributed in the five (5)
year period ending on the Determination Date), and the denominator of which
is the sum of all account balances under the Defined Contribution Plans for
all participants as of the Determination Date (including any part of any such
account balance distributed in the five (5) year period ending on the
Determination Date), both computed in accordance with Code Section 416 and
the regulations thereunder. Both the numerator and the denominator of the
Top Heavy Ratio shall be increased to reflect any contribution not actually
made as of the appropriate Determination Date but which is required to be
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taken into account on that date under Code Section 416 and the regulations
thereunder. In determining the account balances which have been distributed
in the five (5) year period ending on the Determination Date, distributions
under a terminated plan shall be included, provided such terminated plan, if
it had not been terminated, would have been included in a Required
Aggregation Group.
(b) If the Employers or Affiliated Companies maintain
one or more Defined Contribution Plans and maintain or have maintained one or
more Defined Benefit Plans which during the five (5) year period ending on
the Determination Date(s) have covered or could cover a Participant in this
Plan, the Top Heavy Ratio for any Required Aggregation Group or Permissive
Aggregation Group is a fraction, the numerator of which is the sum of account
balances under the aggregated Defined Contribution Plans for all Key
Employees determined in accordance with Subsection 20.02(3)(a) above, and the
present value of accrued benefits under the aggregated Defined Benefit Plans
for all Key Employees, both calculated as of the Determination Date, and the
denominator of which is the sum of the account balances under the aggregated
Defined Contribution Plans for all participants determined under Subsection
20.02(3)(a) above, and the present value of accrued benefits under the
Defined Benefit Plans for all participants, both calculated as of the
Determination Date, all determined in accordance with Code Section 416 and
the regulations thereunder. The accrued benefits under a Defined Benefit
Plan in both the numerator and denominator of the Top Heavy Ratio are
increased for any distribution of an accrued benefit made in the five (5)-
year period ending on the appropriate Determination Date. In determining the
account balances or accrued benefits which have been distributed in the five
(5) year period ending on the Determination Date, distributions under a
terminated plan shall be included, provided such terminated plan, if it had
not been terminated would have been included in a Required Aggregation Group.
(c) For purposes of Subsections (a) and (b) above, the
value of account balances and the present value of accrued benefits shall be
determined as of the most recent Valuation Date that falls within or ends
with the twelve (12) month period ending on the Determination Date except as
provided in Code Section 416 and the regulations thereunder for the first and
second plan years of a Defined Benefit Plan. The present value of accrued
benefits under Defined Benefit Plans shall be determined using the single
accrual method used for all plans of the Employers and Affiliated Companies,
or if no such single method exists, using a method which results in benefits
accruing not more rapidly than the slowest accrual rate permitted under Code
Section 411(b)(1)(C) as of said Valuation Date as if the person voluntarily
terminated employment as of such Valuation Date. If any Participant was a
Key Employee as set forth in Subsection 20.01(4) above for any prior Plan
Year, but such Participant ceases to be a Key Employee for any Plan Year,
such Participant's account balances and accrued benefits shall not be taken
into account for purposes of determining whether or not this Plan is a Top
Heavy Plan or a Super Top Heavy Plan as of the Determination Date of said
Plan Year. Accounts and accrued benefits shall be calculated to include all
amounts attributable to both contributions by an Employer or an Affiliated
Company and contributions by persons employed by the Employer or Affiliated
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Company, but shall exclude amounts attributable to voluntary deductible
contributions by said persons. The calculation of the Top Heavy Ratios, and
the extent to which distributions, rollovers and transfers are taken into
account shall be made in accordance with Code Section 416 and the regulations
thereunder. When aggregating plans for purposes of a Permissive Aggregation
Group or a Required Aggregation Group, the value of account balances and
accrued benefits will be calculated with reference to the Determination Dates
that fall within the same calendar year. Notwithstanding the provisions of
Subsections (a) and (b) above, in determining the fractions referred to
therein, there shall not be taken into account the accrued benefits or
account balances of any person who has not performed services for any
Employer or Affiliated Company maintaining any Defined Contribution Plan or
Defined Benefit Plan referred to in such Subsections at any time during the
five (5) year period ending on the Determination Date.
20.03 Minimum Requirements. Notwithstanding any other provision of
this Plan to the contrary, if the Plan is a Top Heavy Plan for any Plan Year,
then the following provisions shall apply:
20.03(1) Vesting. Any Participant who is credited with an Hour of
Service in the first Plan Year in which the Plan is a Top Heavy Plan, or in
any subsequent Plan Year after such first Plan Year (whether or not the Plan
is a Top Heavy Plan in such subsequent Plan Year) shall have his percentage
of vested benefits owing upon a Termination of Employment determined in
accordance with the foregoing terms of the Plan.
20.03(2) Required Minimum Allocation of Company Contributions.
Except as otherwise provided in this Article XX and notwithstanding any other
provision of this Plan to the contrary, for any Plan Year in which the Plan
is a Top Heavy Plan, the Company Contributions allocated on behalf of each
Participant who is a Non-Key Employee shall not be less than the lesser of:
(i) three percent (3%) of such Participant's Limitation Year Compensation, or
(ii) the largest percentage of Company Matching Contributions, Company
Contributions, Forfeitures and Elective Contributions, if any, as a
percentage of the Key Employee Participant's Compensation, allocated on
behalf of any Key Employee Participant for that Plan Year; provided, however,
that the provisions of clause (ii) hereof shall not apply to any plan
included in a Required Aggregation Group if such plan enables a Defined
Benefit Plan included in such Required Aggregation Group to meet the
requirements of Code Section 401(a)(4) or 410. The minimum allocation
provided for herein shall be determined without taking into account any
Social Security contributions and shall be made without regard to any
contrary provisions of the Plan regarding the allocation of Company
Contributions and Forfeitures to affected Participants which might otherwise
result in such Participant being entitled to no allocation or a lesser
allocation due to the Participant's failure to complete one thousand (1,000)
Hours of Service (or the equivalent) during the Plan Year, the Participant's
failure to make mandatory employee contributions, or, in the case of a cash
or deferred arrangement, elective contributions, or the Participant's failure
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to earn a stated amount of Compensation; provided, however, that such minimum
allocation shall not be required to be made on behalf of any Participant who
is not actively employed by an Employer on the last day of the applicable
Plan Year. For purposes of this Section 20.03, all Defined Contribution
Plans required to be included in a Required Aggregation Group shall be
treated as one plan.
20.04 Minimum Benefits for Employers or Affiliated Companies
Maintaining Defined Benefit Plans. If any Participant who is a Non-Key
Employee is also a participant under a Defined Benefit Plan maintained by an
Employer or Affiliated Company which is also a Top Heavy Plan, then
Subsection 20.03(2) shall not apply, and such Participant shall receive an
allocation of Company Contributions and Forfeitures in an amount no less than
five percent (5%) of such Participant's Compensation under the Plan for the
applicable Plan Year. Such allocation shall be made without regard to the
amount allocated under the Plan on behalf of any Key Employee Participant for
such Plan Year. For purposes of this Section 20.04, all Defined Contribution
Plans required to be included in a Required Aggregation Group shall be
treated as one plan.
20.05 Super Top Heavy Plans. If in any Plan Year in which the Plan
is a Top Heavy Plan: (i) it is also a Super Top Heavy Plan, or (ii) it does
not provide minimum benefits under Subsection 20.03(2) after substituting
"four percent (4%)" for "three percent (3%)" contained in clause (i) of the
first sentence of said Subsection, or (iii) if Section 20.04 hereof applies,
it does not provide minimum benefits under said Section 20.04 after
substituting "seven and one-half percent (7-1/2%)" for "five percent (5%)"
contained in the first sentence of said Section, then, in any such event, for
purposes of the definitions set forth in Subsections 5.07(3) and 5.07(5)
hereof, the dollar limitations contained in Code Sections 415(e)(2)(B) and
415(e)(3)(B) shall be multiplied by 1.0 rather than 1.25. Notwithstanding
the foregoing provisions of this Section 20.05, if the application of said
provisions would cause any individual to exceed the combined limits of
Section 5.06 hereof, if applicable, then the requirements of this Section
20.05 shall be suspended as to such individual until such time as he no
longer exceeds the limitations of said Section 5.06 as modified by this
Section 20.05, and during the period of such suspension, said individual
shall receive no allocation of Company Contributions or Forfeitures, if any,
and shall be entitled to make no voluntary employee contributions, if any,
under this Plan or any other Defined Contribution Plan, maintained by an
Employer or an Affiliated Company, and there shall be no accruals of benefits
for such individual under any Defined Benefit Plan maintained by an Employer
or an Affiliated Company.
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ARTICLE XXI
ESOP EXEMPT LOAN PROVISIONS
21.01 Effect of Article. The following provisions of this Article
XXI shall apply notwithstanding any other provisions of the Plan to the
contrary, in the event the Trustee executes a Promissory Note for an exempt
loan to the Trust as defined in the regulations under Section 4975(e)(7) of
the Code.
21.02 Definitions. For purposes of this Article XXI, the following
terms shall have the following meanings:
21.02(1) "Promissory Note" shall mean each purchase money
obligation executed by the Trustee for the purpose of acquiring shares of
Company Stock (i) from a "disqualified person" within the meaning of Code
Section 4975 or a "party in interest" within the meaning of Section 3(14) of
ERISA or (ii) from any other person if the purchase money obligation payable
to such other person is guaranteed by a "disqualified person" or a "party in
interest." Shares of Company Stock acquired with each Promissory Note shall
be held in separate Suspense Accounts. The terms of each Promissory Note and
any security agreements executed by the Trustee in connection therewith shall
be subject to the provisions set forth in the Trust Agreement.
21.02(2) "Suspense Account" shall mean the record maintained by
the Committee pursuant to Section 21.04 of shares of Company Stock which have
been acquired by the Trustee with a Promissory Note and which have not been
allocated to the Accounts of Participants.
21.03 Company Contributions. Notwithstanding the provisions of
Section 4.01 hereof, subject to the limitations contained in Section 404(a)
of the Code including the carryover provisions thereof, each Employer shall
make a Company Contribution for each Plan Year in which a Promissory Note is
outstanding in an amount which shall not be less than the amount required to
be paid under each Promissory Note for such Plan Year.
21.04 Release of Shares from Suspense Accounts.
21.04(1) General.
(a) The Committee shall establish a separate Suspense
Account for shares of Company Stock acquired with each Promissory Note. The
earnings, including cash dividends paid on the allocated and unallocated
shares of Company Stock acquired with indebtedness represented by a
Promissory Note shall be accounted for separately from other assets of the
Trust Fund and shall be used to pay interest and/or principal on the
Promissory Note until the Promissory Note has been retired. For purposes of
allocating to Participants' Company Contribution Accounts shares released
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from a Suspense Account by reason of the payment of principal and/or interest
with earnings on such Company Stock, such earnings shall be deemed to have
been allocated first to Participants' Company Contribution Accounts pursuant
to Section 6.04 and then charged to such Accounts in the manner provided in
Section 21.04(2).
(b) As of each Valuation Date there shall be released
from the applicable Suspense Account for allocation to Participants' Company
Contribution Accounts in the manner specified in Section 21.04(2) below a
number of shares of Company Stock equal to the number of shares of Company
Stock in such Suspense Account on such Valuation Date multiplied by a
fraction, the numerator of which shall be the amount of principal and
interest payments under the terms of the applicable Promissory Note made
since the previous Valuation Date, and the denominator of which shall be the
sum of (1) the numerator and (2) the remaining principal and interest to be
paid under such Promissory Note for the current Plan Year and all future Plan
Years, without regard to any possible extension or renewal periods of such
Promissory Note. If the interest rate under a Promissory Note is variable,
the calculation of the remaining interest to be paid in future Plan Years for
the denominator of the fraction described above shall be based on the
interest rate in effect under such Promissory Note on the Valuation Date with
respect to which the fraction is applied. The interest of each Participant
in Company Stock released from a Suspense Account shall be allocated to his
Company Contribution Account in shares of such Company Stock.
21.04(2) Charges and Credits to Company Contribution Accounts.
Each Participant's Company Contribution Account shall be charged with the
Participant's share of any cash or property allocated to his Company
Contribution Account which is used by the Trustee to release shares of
Company Stock from the Suspense Account in the manner described in Section
21.04(1) above, and the shares of Company Stock so purchased or released
shall be allocated to the Participant's Company Contribution Account to the
extent that such Account has been so charged.
21.04(3) Prohibited Allocations. No portion of the assets of the
Plan attributable to Company Stock acquired by the Plan in a sale to which
Code Section 1042 applies may accrue to or be allocated, directly or
indirectly, under any plan of the Sponsoring Company (or any Affiliated
Company) meeting the requirements of Code Section 401(a), during the
"non-allocation period," for the benefit of: (i) any Participant who makes
an election under Code Section 1042(a) with respect to Company Stock; or (ii)
any individual who is related to such a Participant within the meaning of
Code Section 267(b); or (iii) for the benefit of any other person who owns
(after application of Code Section 318(a)) more than (x) 25% of any class of
outstanding stock of the corporation which issued the Company Stock or of any
corporation which is a member of the same controlled group of corporations
(within the meaning of Code Section 409(l)(4)) as such corporation, or (y)
25% of the total value of outstanding stock of any such corporation. The
"non-allocation period" shall be the period beginning on the date of the sale
of the Company Stock and ending on the later of (i) the date which is 10
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(ten) years after the sale of Company Stock; or (ii) the date of allocation
attributable to the final payment under the Promissory Note incurred in
connection with such sale. The Trustee may establish subaccounts that it
deems necessary in order to comply with the provisions of this Section
21.04(3).
21.05 Limitations on Annual Additions. Notwithstanding the
provisions of Section 5.04, if no more than one-third (1/3) of the Company
Contributions to the Plan for a Plan Year are allocated to accounts of Highly
Compensated Employees, the following amounts shall be excluded in determining
the Annual Addition of each Participant for such Plan Year: (i) Forfeitures
of Company Stock acquired with the proceeds of a Promissory Note, (ii)
Company Contributions to the Plan which are used to pay the interest on a
Promissory Note and which are deductible under Code Section 404(a)(9)(B) and
which are charged against the Participant's Company Contribution Account.
21.06 Determination of Net Earnings and Adjustments in Value. For
purposes of Section 6.04, the share of net income or net loss of the Trust
Fund allocable to the Company Contribution Accounts of Participants shall not
include any unrealized increase or decrease in the fair market value of
Company Stock held in a Suspense Account.
21.07 Voting of Company Stock. For all purposes of Section 14.06,
the shares of Company Stock allocated to an active Participant's Company
Contribution Account (not including inactive Participants) shall be treated
as including a portion of the unallocated shares of Company Stock held in a
Suspense Account; for this purpose the unallocated shares shall be considered
allocated to active Participants' Company Contribution Accounts by assuming
that all such unallocated shares of Company Stock had been allocated to
active Participants in the Plan as of a date selected by the Committee, based
upon such active Participants' comparative Company Stock account balances
(i.e., Company Stock in an active Participant's Company Contribution Account
as a percentage of all Company Stock in the Company Contribution Accounts of
all active Participants).
21.08 Tender Offer on Company Stock. With respect to unallocated
shares of Company Stock, for purposes of Section 14.06, rights to tender in
connection with an Offer shall be exercised at the discretion of the
Participants by assuming that all such shares of Company Stock had been
allocated to active Participants (not including former Participants) in the
Plan as of a date selected by the Committee, based upon such Participants'
comparative Company Stock account balances (i.e., Company Stock in an active
Participant's Company Contribution Account as a percentage of all Company
Stock in the Company Contribution Accounts of all active Participants), and
by permitting the respective Participants to exercise tender rights as if
such shares had been finally and completely allocated to such Participants'
Accounts. Funds or property received in exchange for tendered stock
constituting unallocated shares of Company Stock shall be credited to the
Suspense Account.
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21.09 Forfeiture of Accounts. If a portion of a Participant's
Company Contribution Account is forfeited, Company Stock allocated to such
Account shall be forfeited only after all other assets in such Account. If
interests in more than one class of Company Stock have been allocated to the
Participant's Company Contribution Account, the Participant shall be treated
as forfeiting the same proportion of each such class.
21.10 Distribution of Benefits.
21.10(1) Notwithstanding the provisions of Section 11.01 to the
contrary, a distribution of a Participant's Accounts shall not include
Company Stock allocated to an Account which was acquired with the proceeds of
a Promissory Note until the end of the Plan Year in which any acquisition
indebtedness related to such Company Stock is repaid in full, including any
refinancings which are permitted to be treated as acquisition indebtedness in
accordance with rules prescribed by the Secretary of the Treasury.
21.10(2) If interests in more than one class of Company Stock have
been allocated to the Participant's Company Contribution Account, each
distribution to the Participant shall be made in substantially the same
proportion of each such class.
21.11 Further Conditions. Except as otherwise provided in Section
12.03 and Section 22.08, shares of Company Stock acquired with a Promissory
Note shall not be subject to any other put, call, or other option, or
buy-sell or similar arrangement while held under the Plan or when distributed
from the Plan to a Participant or Beneficiary, whether or not the Plan then
constitutes an "employee stock ownership plan" within the meaning of Section
4975(e)(7) of the Code. In addition, the provisions of the preceding
sentence and of Section 22.08 shall continue to apply to shares of Company
Stock acquired with a Promissory Note after the Promissory Note has been
satisfied and after the Plan ceases to constitute an "employee stock
ownership plan" as described above.
ARTICLE XXII
MISCELLANEOUS
22.01 Effect of Bankruptcy and Other Contingencies Affecting an
Employer. Neither the bankruptcy, receivership, insolvency, liquidation,
dissolution, merger, consolidation or reorganization of an Employer, or any
other eventuality affecting the Employer, shall terminate the Trust or render
ineffectual this Plan or discharge any Employer from any liabilities to the
Trust for which it shall already have become obligated, but the same shall
continue in full force and effect as though such eventuality had not
occurred; however, the Committee shall in such event be authorized hereby to
make any and all rules and regulations not inconsistent with the purposes of
the Plan as shall be necessary to deal with such change in the situation of
the Plan and Trust.
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22.02 Benefits Payable by Trust. All benefits payable under the
Plan shall be paid or provided for solely from the Trust Fund. No Employer
assumes any liability or responsibility therefor.
22.03 Withholding. The Committee shall determine whether or not
federal income tax withholding is required with respect to any distribution
or withdrawal hereunder, shall direct the Trustee to withhold any amounts
required by law to be withheld, and shall furnish the Trustee with any
information required by Treasury regulations regarding withholding.
Notwithstanding any other provision of this Plan to the contrary, all rights
and benefits of a Participant, Beneficiary or Alternate Payee are subject to
withholding of any tax required by law to be withheld.
22.04 Interpretation of the Plan and Trust. It is the intention of
the Employers that the Plan, and the Trust established by the Employers to
implement the Plan, shall be an employee stock ownership plan and trust, with
a cash or deferred arrangement feature and shall comply with the provisions
of Code Sections 401, 409, 4975(e)(7) and 501 and the requirements of ERISA,
and the corresponding provisions of any subsequent laws, and the provisions
of the Plan and Trust Agreement shall be construed to effectuate such
intention.
22.05 Provisions Hereof for Sole Benefit of Parties Hereto and
Participants. All of the covenants, stipulations and agreements contained in
this Plan are and shall be for the sole and exclusive benefit of and binding
upon the parties hereto, their successors and assigns, and the Participants
and their Beneficiaries.
22.06 Article and Section Headings. The titles or headings of the
respective Articles and Sections in this Plan are inserted merely for
convenience and shall be given no legal effect.
22.07 Formal Action by Employer. Any formal action herein permitted
or required to be taken by an Employer shall be:
(a) if and when a partnership, by written instrument executed by
one or more of its general partners or by written instrument executed by
a person or group of persons who has been authorized by written
instrument executed by one or more general partners as having authority
to take such action;
(b) if and when a proprietorship, by written instrument executed
by the proprietor or by written instrument executed by a person or group
of persons who has been authorized by written instrument executed by the
proprietor as having authority to take such action;
(c) if and when a corporation, by resolution of its board of
directors or other governing board, or by written instrument executed by
a person or group of persons who has been authorized by resolution
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<PAGE>
of its board of directors or other governing board as having authority
to take such action; or
(d) if and when a joint venture, by written instrument executed by
one of the joint venturers or by written instrument executed by a person
or group of persons who has been authorized by written instrument
executed by one of the joint venturers as having authority to take such
action.
22.08 Right to Require Repurchase of Shares of Company Stock.
22.08(1) Subject to the following provisions of this Section
22.08, if at the time of distribution hereunder the shares of Company Stock
distributed from the Trust Fund to a Participant or his Beneficiary with
respect to a Plan Year are not publicly traded or are subject to a trading
limitation (as hereafter defined), the former Participant or Beneficiary
shall have an option (the "Put") to require the Sponsoring Company to
purchase all shares of Company Stock distributed from the Trust Fund to the
former Participant or Beneficiary for such Plan Year. For purposes of the
preceding sentence, a "trading limitation" is a restriction under any federal
or state securities law, or any regulation thereunder, or an agreement, which
would make the shares of Company Stock not as freely tradable as shares of
Company Stock not subject to such restriction.
22.08(2) The Put may be exercised at any time during the Option
Period (as hereinafter defined) by giving the Sponsoring Company written
notice of the election to exercise the Put. The Option Price (as hereinafter
defined) shall be payable in cash and/or in installments (as provided below)
beginning not later than 30 days after the Sponsoring Company receives
written notice of the election by the former Participant or Beneficiary to
exercise the Put. The Put may be exercised by a former Participant or the
Beneficiary only during the Option Period relating to a distribution of
shares of Company Stock under Section 11.01 to the former Participant or
Beneficiary.
22.08(3) The "Option Period" shall be the sixty (60) day period
following the day on which a Participant or his Beneficiary receives a
distribution of shares of Common Stock under Section 11.01; if the Put is not
exercised within this first sixty (60) day period, it may be exercised during
a second "Option Period" which shall be a sixty (60) day period beginning on
the first day of the third month of the Plan Year which follows the Plan Year
of distribution of such shares of Common Stock. Notwithstanding the
foregoing, the Option Period shall be extended by the amount of time during
which the Sponsoring Company is unable to honor the Put by reason of
applicable federal or state law.
22.08(4) The "Option Price" shall be the fair market value as
determined pursuant to Treasury Regulations Section 54.4975-11(d)(5) of each
share of Company Stock as determined by the Sponsoring Company as of the
Valuation Date immediately preceding the date the Put is exercised,
multiplied by the number of shares to be sold under the Put. Notwithstanding
he provisions of this paragraph, the Option Price shall be determined on the
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date the Put is exercised if the transaction involves a "disqualified person"
within the meaning of Code Section 4975.
22.08(5) Payment of the Option Price for shares of Company Stock
subject to the Put shall be made either in a lump sum or in installments as
determined by the Sponsoring Company. In the event payments are made in
installments, the installment obligation shall (1) be adequately secured as
determined by the Sponsoring Company, (2) bear interest equal to the
Sponsoring Company's long-term debt borrowing rate from its senior lenders or
such other reasonable rate of interest as determined by the Sponsoring
Company to be determined on a uniform and nondiscriminatory basis, but in no
event shall such rate of interest be greater than the maximum non-usurious
rate of interest permitted to be charged on such indebtedness under Texas
law, (3) require that the payments be made in annual installments, (4) have a
payment period of five (5) years from the date the Put is exercised, (5)
require that any payments pursuant to the installment obligation must begin
to be made no later than thirty (30) days after the date the Put is
exercised, and (6) permit the Sponsoring Company to prepay the amount of any
remaining installments without penalty.
22.08(6) The Put granted to a former Participant or Beneficiary
hereunder shall not be assignable, except that the former Participant's
donees or, in the event of a Participant's death, his personal representative
shall be entitled to exercise the Put during the Option Period for which it
is applicable.
22.08(7) The Committee shall notify each former Participant or
Beneficiary who is eligible to exercise the Put of the fair market value of
each share of Company Stock for the Valuation Date next following the date
the Participant receives a distribution as soon as practicable following such
determination.
22.08(8) The Committee and the Sponsoring Company shall send all
notices required under this Section to the last known address of a former
Participant or Beneficiary, and it shall be the duty of such persons to
inform the Committee of any changes in address.
22.08(9) The Trustee in its discretion may, with the Sponsoring
Company's consent, assume the Sponsoring Company's obligation under this
Section at the time a former Participant or Beneficiary exercises the Put.
If the Trustee does assume the Sponsoring Company's obligations, the
foregoing provisions of this Section that apply to the Sponsoring Company
shall also apply to the Trustee.
22.08(10) The Put provided for in this Section shall also apply to
shares of Company Stock that are publicly traded without restriction when
distributed but which cease to be publicly traded or which become subject to
a trading limitation during the Option Period. In such event, the Committee
shall notify in writing each former Participant or Beneficiary to whom the
Put becomes applicable that the shares of Company Stock held by the former
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Participant or Beneficiary are subject to the Put for the remainder of such
Option Period and shall inform the Participant or Beneficiary of the terms of
the Put. If written notice is given pursuant to this Section later than ten
days after the shares of Company Stock cease to be publicly traded or become
subject to a trading limitation, the period during which the Put may be
exercised shall be extended by the number of days between such tenth day and
the date such notice is actually given.
22.09 Restrictions on Transfer of Company Stock.
22.09(1) Federal Securities Laws. If the Sponsoring Company does
not register under the Securities Act of 1933 (the "1933 Act") any shares of
Company Stock to be distributed to Participants or their Beneficiaries, such
shares of Company Stock distributed under the Plan may be "restricted
securities." Restricted securities may not be sold unless they are
registered under the 1933 Act by the Sponsoring Company, or unless an
exemption from registration is available. If the Sponsoring Company does not
register shares of Company Stock for resale by Participants or their
Beneficiaries, and if such persons desire to sell the shares of Company Stock
distributed to them, they will be required to sell the shares of Company
Stock in transactions exempt from registration under the 1933 Act. The
Sponsoring Company will not permit shares of Company Stock to be transferred
unless it is satisfied that any proposed transfer of Company Stock is exempt
from the registration requirements of the 1933 Act.
22.09(2) Other Restrictions. All transactions involving shares of
Company Stock, including distributions, purchases and sales, shall be made
only in compliance with applicable federal and state laws, regulations and
rules. All such transactions shall also be subject to all restrictions and
limitations imposed on all shares of Company Stock provided for in the
Sponsoring Company's Articles of Incorporation and Bylaws as amended from
time to time.
22.09(3) Legends. The Sponsoring Company reserves the right to
cause appropriate legends to be imprinted on the certificates representing
shares of Company Stock distributed under this Plan to reflect all
restrictions and limitations referred to in this Section 22.09.
22.09(4) Notices. The Committee and the Sponsoring Company shall
send all notices required with respect to shares of Company Stock to the last
known address of each Participant or Beneficiary who is required to receive
notices regarding such stock, and it shall be the duty of the Participant and
Beneficiary to inform the Committee of any changes in address.
22.10 APPLICABLE LAW. THIS PLAN SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF TEXAS TO THE EXTENT NOT PREEMPTED BY APPLICABLE FEDERAL LAW.
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IN WITNESS WHEREOF, the Employers have caused this Plan to be executed
by their duly authorized officers this ___________ day of ________, 1995.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By:___________________________________________
Title:________________________________________
UTILITY ENGINEERING CORPORATION
By:___________________________________________
Title:________________________________________
QUIXX CORPORATION
By:___________________________________________
Title:________________________________________
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DRAFT 2/10/95
SOUTHWESTERN PUBLIC SERVICE COMPANY
NON-QUALIFIED SALARY DEFERRAL PLAN
EFFECTIVE AS OF APRIL 1, 1995
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I ESTABLISHMENT AND PURPOSE OF THE PLAN . . . . . . . . . . 1
1.01 Establishment of the Plan . . . . . . . . . . . . . 1
1.02 Purpose . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE III REQUIREMENTS FOR ELIGIBILITY AND
PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . 5
3.01 Eligibility . . . . . . . . . . . . . . . . . . . . 5
3.02 Change in Status of Eligible Employee . . . . . . . 5
3.03 Cessation of Eligible Employee Status . . . . . . . 5
3.04 Participation in the Plan . . . . . . . . . . . . . 6
ARTICLE IV CREDITED AMOUNTS . . . . . . . . . . . . . . . . . . . . . . . 6
4.01 Deferred Salary or Bonus; Change of Election . . . 6
4.02 Matching Amounts . . . . . . . . . . . . . . . . . 7
4.03 In-Service Withdrawals . . . . . . . . . . . . . . 7
ARTICLE V SOURCE OF PAYMENTS OF BENEFITS . . . . . . . . . . . . . . . . 9
ARTICLE VI VALUATION OF ACCOUNTS . . . . . . . . . . . . . . . . . . . . . 10
6.01 Participant's Accounts . . . . . . . . . . . . . . 10
6.02 Periodic Determination of Participant's Accounts . 10
ARTICLE VII RETIREMENT BENEFITS . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VIII DISABILITY BENEFITS . . . . . . . . . . . . . . . . . . . 11
8.01 Disability Retirement Benefits . . . . . . . . . . 11
8.02 Determination of Disability . . . . . . . . . . . . 11
ARTICLE IX DEATH BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . 11
9.01 Death Benefits . . . . . . . . . . . . . . . . . . 11
9.02 Designation of Beneficiaries . . . . . . . . . . . 12
ARTICLE X EMPLOYMENT TERMINATION BENEFITS . . . . . . . . . . . . . 13
ARTICLE XI PAYMENT OF BENEFITS . . . . . . . . . . . . . . . . . . . . . . 13
11.01 Time and Method for Distribution of Benefits . . . 13
11.02 Payments on Personal Receipt Except in Case of
Legal Disability . . . . . . . . . . . . . . . . . 13
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<PAGE>
ARTICLE XII MISCELLANEOUS PROVISIONS RESPECTING
PARTICIPANTS . . . . . . . . . . . . . . . . . . . . . . 14
12.01 Participants to Furnish Required Information . . . 14
12.02 Restrictions on Assignment . . . . . . . . . . . . 15
12.03 Participant's Rights . . . . . . . . . . . . . . . 15
12.04 Address for Mailing of Benefits . . . . . . . . . . 15
12.05 Unclaimed Account Procedure . . . . . . . . . . . . 16
ARTICLE XIII ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . 16
13.01 Appointment of Committee . . . . . . . . . . . . . 16
13.02 Compensated Expenses of the Committee . . . . . . . 16
13.03 Secretary and Agents of the Committee . . . . . . . 17
13.04 Actions of Committee . . . . . . . . . . . . . . . 17
13.05 Authority of Committee . . . . . . . . . . . . . . 17
13.06 General Administrative Powers . . . . . . . . . . . 18
13.07 Plan Administrator . . . . . . . . . . . . . . . . 18
13.08 Duties of Administrative Personnel . . . . . . . . 18
13.09 Indemnity . . . . . . . . . . . . . . . . . . . . . 18
13.10 Payment of Expenses . . . . . . . . . . . . . . . . 19
ARTICLE XIV PARTICIPATION BY EMPLOYERS . . . . . . . . . . . . . . . . . . 19
14.01 Adoption of Plan by Affiliated Company . . . . . . 19
14.02 Rights and Obligations of the Sponsoring Company
and the Employers . . . . . . . . . . . . . . . . 19
14.03 Withdrawal from Plan . . . . . . . . . . . . . . . 20
14.04 Continuance by Successor Company . . . . . . . . . 20
ARTICLE XV AMENDMENT OF THE PLAN . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE XVI TERMINATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . 21
16.01 Right to Terminate Plan . . . . . . . . . . . . . . 21
16.02 Termination of Plan . . . . . . . . . . . . . . . . 21
ARTICLE XVII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 21
17.01 Withholding . . . . . . . . . . . . . . . . . . . . 21
17.02 Article and Section Headings . . . . . . . . . . . 21
17.03 Formal Action by Employer . . . . . . . . . . . . . 21
17.04 Unfunded Status of the Plan . . . . . . . . . . . . 22
17.05 APPLICABLE LAW . . . . . . . . . . . . . . . . . . 22
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<PAGE>
SOUTHWESTERN PUBLIC SERVICE COMPANY
NON-QUALIFIED SALARY DEFERRAL PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE OF THE PLAN
1.01 Establishment of the Plan. Southwestern Public Service Company
(the "Sponsoring Company") desires to adopt and establish an unfunded deferred
compensation plan for a select group of its key management and highly
compensated employees and their beneficiaries. Effective as of April 1, 1995
(the "Effective Date"), the Sponsoring Company has by execution of this
document, created a plan which shall be known as the "Southwestern Public
Service Company Non-Qualified Salary Deferral Plan."
1.02 Purpose. The purpose of the Plan is to provide certain unfunded
benefits for a select group of the Employers' key management personnel and
their beneficiaries.
It is the intention of the Employers that the Plan meet all of the
requirements necessary or appropriate to qualify it as a non-qualified,
unfunded, unsecured plan of deferred compensation under the Code for a select
group of management or highly compensated employees within the meaning of ERISA
Sections 201(2), 301(a)(3) and 401(a)(1), and all provisions hereof shall be
interpreted accordingly.
ARTICLE II
DEFINITIONS
As used in the Plan:
2.01 "Account" or "Accounts" shall mean all or any of the Matching
Account, the Deferred Salary Account, the Deferred Bonus Account and any other
account maintained by the Committee under Article IV or any other Section of
the Plan to reflect a Participant's interest (or the undistributed interest of
a Beneficiary) under the Plan to the extent any one or more of such accounts
have been created for a Participant or Beneficiary.
2.02 "Beneficiary" shall mean any person or entity entitled to receive
benefits which are payable upon or after a Participant's death pursuant to
Article IX hereof.
2.03 "Board" shall mean the Board of Directors of the Sponsoring
Company, as from time to time constituted, or such other person or group of
persons referred to in Section 17.03 hereof in case of a Sponsoring Company
which is not a corporation.
2.04 "Calendar Year" shall mean January 1 through December 31.
<PAGE>
2.05 "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time. References to any section of the Internal Revenue Code
shall include any successor provision thereto.
2.06 "Committee" shall mean the Committee provided for in Section 13.01
hereof.
2.07 "Date of Employment" or "Date of Reemployment" shall mean the day
on which an Employee first commences employment or reemployment following
Termination of Employment, retirement after attaining his Retirement Date or
recovery from Total and Permanent Disability, as the case may be, with an
Employer.
2.08 "Deferred Bonus" shall mean the amount each Participant has elected
to have the Employer defer on his behalf, in lieu of any cash that would
otherwise be payable, pursuant to the provisions of Section 4.01 hereof.
2.09 "Deferred Bonus Account" shall mean the separate account maintained
for each Participant to record the amounts of Deferred Bonus irrevocably
elected by the Participant to be deferred pursuant to Section 4.01 hereof, as
adjusted in accordance with the provisions of Article VI of the Plan.
2.10 "Deferred Salary" shall mean the amounts each Participant has
elected to have the Employer defer on his behalf, in lieu of cash compensation
that would otherwise be payable, pursuant to the provisions of Section 4.01
hereof.
2.11 "Deferred Salary Account" shall mean the separate account
maintained for each Participant to record the amounts of Deferred Salary
irrevocably elected by such Participant to be deferred pursuant to Section 4.01
hereof, as adjusted in accordance with the provisions of Article VI of the
Plan.
2.12 "Eligible Employee" shall mean those Employees who are members of
the Committee or are selected for participation in the Plan by the Committee,
who are eligible to participate in the Qualified Plan and who are officers
and/or key salaried management personnel who, because of their positions and
responsibilities, are charged with the overall management of the daily
operating activities of the Employer. In no event, however, shall any Employee
be an Eligible Employee unless he is among the top 7% of employees determined
on the basis of total annual compensation from the Employer.
2.13 "Employee" shall mean any person who is employed by one or more
Employers, is on an Employer's payroll, and whose wages are subject to FICA
withholding.
2.14 "Employer" shall mean the Sponsoring Company, Utility Engineering
Corporation, Quixx Corporation, or any affiliated company which adopts the Plan
pursuant to Article XIV hereof.
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<PAGE>
2.15 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time. References to any Section of ERISA shall
include any successor provision thereto.
2.16 "Fiscal Year" shall mean the fiscal year of an Employer. The
Fiscal Year of the Sponsoring Company ends on August 31.
2.17 "Leave of Absence" shall mean an absence from the active employment
of an Employer by reason of an approved absence granted by such Employer on the
basis of a uniform policy applied by such Employer without discrimination. A
Leave of Absence will not constitute a Termination of Employment provided the
Employee returns to the active employment of the Employer at or prior to the
expiration of his leave, or if not specified therein, within the period of time
which accords with such Employer's policy with respect to permitted absences.
If the Employee does not return to the active employment of such Employer at or
prior to the expiration of his Leave of Absence, his employment will be
considered terminated as of the earlier of (i) the expiration date of such
Leave of Absence, or (ii) the date which is twelve (12) months after the date
on which such Leave of Absence began, or, in the case of an Employee who
becomes absent, with or without pay, from the active employment of an Employer
by reason of layoff, the date which is twelve (12) months after the date on
which such Employee first becomes absent. Notwithstanding the foregoing
provisions of this Section, absence from the active service of the Employer
because of military service will be considered a Leave of Absence granted by an
Employer and will not terminate the employment of an Employee if he returns to
the active employment of an Employer within the period of time during which he
has reemployment rights under any applicable federal law or within sixty (60)
days from and after discharge or separation from such military service if no
federal law is applicable. However, no provision of this Section or of the
remainder of the Plan shall require reemployment of any Employee whose active
service with an Employer was terminated by reason of military service.
2.18 "Matching Account" shall mean the separate account maintained for
each Participant to record amounts credited for such Participant pursuant to
Section 4.02 hereof, as adjusted in accordance with the provisions of Article
VI hereof.
2.19 "Participant" shall mean an Eligible Employee who participates in
the Plan as provided in Article III hereof.
2.20 "Plan" shall mean the Southwestern Public Service Company
Non-Qualified Salary Deferral Plan as set forth in this document, and as
hereafter amended.
2.21 "Plan Quarter" shall mean the quarter-annual portion of a Plan Year
beginning on each September 1, December 1, March 1 and June 1, as the case may
be. The first Plan Quarter shall be the two-month period from April 1, 1995
through May 31, 1995.
3
<PAGE>
2.22 "Plan Year" shall mean the twelve (12) consecutive month period
ending on August 31.
2.23 "Qualified Plan" shall mean the Southwestern Public Service Company
Employee Investment Plan as in effect from time to time.
2.24 "Retirement Date" shall mean the date on which occurs the
sixty-fifth (65th) birthday of a Participant.
2.25 "Sponsoring Company" shall mean Southwestern Public Service
Company.
2.26 "Termination of Employment" shall mean the termination of
employment with all Employers and affiliated companies, whether voluntarily or
involuntarily, other than by reason of a Participant's retirement on or after
attaining his Retirement Date or as otherwise provided in Article VII hereof,
or after sustaining Total and Permanent Disability, or death.
2.27 "Total and Permanent Disability" shall mean the determination under
the Employer's Long-Term Disability Plan that the Participant is eligible to
receive a disability benefit.
2.28 "Valuation Date" shall mean the last day of the Plan Quarter.
2.29 "Valuation Period" shall mean each Plan Quarter.
2.30 Whenever a noun, or a pronoun in lieu thereof, is used in this Plan
in plural form and there be only one person, thing or institution within the
scope of the word so used, or in singular form and there be more than one
person, thing or institution within the scope of the word so used, such word,
or the pronoun used in lieu thereof, shall have a plural or singular meaning,
as the case may be. Pronouns of the masculine gender may mean the feminine and
vice versa.
2.31 The words "herein," "hereof," and "hereunder" shall refer to the
Plan.
ARTICLE III
REQUIREMENTS FOR ELIGIBILITY AND PARTICIPATION
3.01 Eligibility. Each Eligible Employee in the employ of an Employer
on the Effective Date shall become a Participant on the Effective Date.
Thereafter, an Eligible Employee shall become a Participant as of the June 1,
September 1, December 1 or March 1 (the "Entry Date") on which such Eligible
Employee becomes a participant in the Qualified Plan. Notwithstanding the
foregoing, if the Board determines to establish a trust for the payment of
4
<PAGE>
benefits under the Plan as provided for in Article V, before the establishment
of the Trust and as a condition to its establishment, each Eligible Employee
must execute a written waiver of any priority the employee may have under state
or federal law as to any claims the employee may have against the Employer
under the Plan or under any trust, beyond the rights the employee would have as
a general creditor of the Employer. After the establishment of any such trust,
any Eligible Employee who qualifies for Plan coverage shall not be eligible to
have amounts credited on his behalf to Accounts under the Plan or be eligible
to defer amounts pursuant to Section 4.01 hereof unless and until the employee
executes the written waiver described herein.
3.02 Change in Status of Eligible Employee.
3.02(1) In the event an Employee, including an Employee who
previously was not defined as an Eligible Employee under Section 2.12 hereof,
becomes defined as an Eligible Employee, such individual shall become a
Participant in the Plan as of the Entry Date coinciding with or next following
the date he becomes defined as an Eligible Employee.
3.02(2) In the event a Participant who ceased to be defined as
an Eligible Employee under Section 2.12 hereof but who did not incur a
Termination of Employment with an Employer subsequently becomes defined as an
Eligible Employee again, such Eligible Employee shall recommence participation
in the Plan for all purposes without regard to the limitations imposed by
Section 3.03 hereof, as of the Entry Date after he again becomes defined as an
Eligible Employee.
3.03 Cessation of Eligible Employee Status. If any Participant does not
incur a Termination of Employment but ceases to be an Eligible Employee as
defined in Section 2.12 hereof, then, during the period that such Participant
is not an Eligible Employee as defined in such Section 2.12 hereof: (i) such
Participant's Deferred Salary and Deferred Bonus elections under Section 4.01
hereof shall cease and such Participant shall not receive any further
allocation of any Matching Contributions, if any, under the Plan, and (ii) such
Participant's Accounts shall continue to be adjusted as provided in Article VI
hereof.
3.04 Participation in the Plan. Each Eligible Employee shall be
provided with a designation of Beneficiary form which shall provide for a
designation of one or more Beneficiaries to receive benefits in the event of
the Participant's death. Each Participant shall also be provided with such
forms as may be necessary to elect to Deferred Salary and/or Deferred Bonus
under the Plan.
5
<PAGE>
ARTICLE IV
CREDITED AMOUNTS
4.01 Deferred Salary or Bonus; Change of Election.
4.01(1) Each Employer shall credit the Deferred Salary amount
determined under the provisions of this Section to the Deferred Salary Account
of each Participant who has in effect an agreement ("Salary Deferral
Agreement") irrevocably electing to reduce and defer his or her compensation as
provided for in this Section 4.01. Each Employer also shall credit the
Deferred Bonus amount determined under the provisions of this Section to the
Deferred Bonus Account of each Participant who has in effect an agreement (the
"Deferred Bonus Agreement") irrevocably electing to defer all or any portion of
any cash bonus due such Participant as provided for in this Section 4.01. The
amount to be credited as Deferred Salary on behalf of each such Participant
under this Section, for each payroll period, shall be the portion of such
Participant's salary reduction contributions (the so-called "Elective
Contributions") which the Participant has elected under the Qualified Plan
which cannot be credited to him under the terms of the Qualified Plan because
of a limitation contained in the Plan, including the limitations set forth in
Code Sections 402(g), 401(k)(3) and 401(a)(17). The amount to be credited as
Deferred Bonus on behalf of any Participant under this Section for any year
shall be the portion of any bonus payable to a Participant for such year which
the Participant elects to defer as provided herein. The Deferred Salary
election made under this Section 4.01 shall be made in writing on a Salary
Deferral Agreement prescribed by and filed with the Committee. The Deferred
Bonus election made under this Section 4.01 shall be made in writing on a
Deferred Bonus Agreement prescribed by and filed with the Committee. Initial
elections shall be made prior to or within 30 days immediately following the
Effective Date or, if later, prior to or within 30 days immediately following
the Participant's Entry Date, shall be effective beginning with the pay period
beginning on or after the Effective Date or Entry Date, provided the executed
Salary Deferral Agreement and/or Deferred Bonus Agreement is delivered to the
Committee as provided herein, shall not have retroactive effect except as
provided herein and shall be irrevocable and remain in force through the last
day of February of the calendar year immediately following the calendar year in
which occurs the Effective Date or the Participant's Entry Date, unless revoked
as provided in Subsection 4.01(2), and thereafter unless changed as provided in
Subsection 4.01(2) hereof. The Committee shall establish and communicate to
Participants uniform and nondiscriminatory procedures for the election of
Deferred Salary and/or Deferred Bonuses and may change said procedures at such
times and in such manner as the Committee may determine to be necessary or
desirable.
4.01(2) Prior to the December 31 immediately following the
Effective Date or the Participant's Entry Date, a Participant may change his
Deferred Salary and/or Deferred Bonus election or may make a Deferred Salary
and/or Deferred Bonus election for the period beginning on March 1 of the
following calendar year and ending on the last day of February of the next
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following calendar year (the "Deferral Period") by executing and delivering to
the Committee a new Salary Deferral Agreement and/or Deferred Bonus Agreement
prior to said December 31. For example, in the case of a Participant who
becomes a Participant on the Effective Date, on or prior to December 31, 1995,
said Participant shall execute a new Salary Deferral Agreement and/or Deferred
Bonus Agreement which shall be effective for the Deferral Period from March 1,
1996 through February 28, 1997; on or prior to December 31, 1996, said
Participant shall execute a new Salary Deferral Agreement and/or Deferred Bonus
Agreement which shall be effective for the Deferral Period beginning March 1,
1997; and so on. A Participant may not change a Deferred Salary and/or
Deferred Bonus election for a Deferral Period after the prior December 31. If
a Participant who has a Deferred Salary and/or Deferred Bonus election in
effect for a Deferral Period does not notify the Committee prior to the
December 31 preceding the Deferral Period of the discontinuance of such
election for such next Deferral Period, such current year's election shall
remain in force for the next Deferral Period. A Participant may discontinue a
Deferred Salary and/or Deferred Bonus election at any time during a Deferral
Period, provided that any such discontinuance shall be effective on the first
day of the payroll period (or such other time as the Committee shall permit in
accordance with uniform and nondiscriminatory rules) beginning after the notice
of the discontinuance is received by the Committee. A Participant who desires
to discontinue a Deferred Salary and/or Deferred Bonus election must notify the
Committee thereof in writing on forms specified by the Committee. A
Participant who has discontinued a Deferred Salary and/or Deferred Bonus
election may not resume a Deferred Salary and/or Deferred Bonus election until
the Deferral Period following the Deferral Period in which the discontinuance
occurred. Termination of Employment by a Participant or the cessation of
participation for any reason, including death, Total and Permanent Disability
or retirement, shall be deemed to revoke any election then in effect, effective
immediately following the close of the pay period in which such termination or
cessation occurs.
4.02 Matching Amounts. Each Plan Quarter the Employers shall credit to
the "Matching Account" of each Participant who has made a Deferred Salary
election pursuant to Section 4.01 hereof (regardless of whether such
Participant has made a Deferred Bonus election pursuant to Section 4.01) an
amount (the "Matching Amount"), if any, equal to the excess of (i) the Company
Matching Contribution (as defined in the Qualified Plan) that would have been
made on that Participant's behalf under the Qualified Plan for that Plan
Quarter if the Company Matching Contribution had not been limited under the
terms of the Qualified Plan for any reason (including a limitation arising from
a limit on such Participant's Elective Contributions under the Qualified Plan),
over (ii) the Company Matching Contribution actually made on said Participant's
behalf under the Qualified Plan for said Plan Quarter. The amounts credited to
the Matching Accounts shall be adjusted in accordance with Article VI hereof.
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4.03 In-Service Withdrawals.
4.03(1) Emergency Withdrawals of Deferred Salary and/or Bonus
and Matching Amounts. Subject to the provisions of Subsection 4.03(2), upon
application by a Participant, the Committee may, in accordance with the
provisions of this Subsection, permit such Participant to withdraw all or a
portion of such Participant's Deferred Salary, Deferred Bonus, or Matching
Amounts, or all of them (but not earnings credited on such Deferred Salary,
Deferred Bonus or Matching Amounts); provided however, that any withdrawal of
Deferred Salary or Deferred Bonus shall terminate such Participant's right to
make a Deferred Salary or Deferred Bonus election until the first day of the
first payroll period of the Plan Quarter which commences at least twelve (12)
months following such withdrawal.
The following provisions shall apply with respect to
emergency withdrawals:
(a) Application for withdrawal must be made in writing on a
form approved by the Committee, and must set out in detail the circumstances
establishing that the proposed withdrawal is for an Unforeseeable Emergency.
(b) The Committee's determination of whether the
application meets the requirements of this Section shall be final and
conclusive, and in making such determination, the Committee shall follow
uniform and nondiscriminatory rules.
(c) If the Committee is satisfied that the application
meets the requirements of this Section, the application shall be granted.
However, no more than two applications per Participant may be granted per Plan
Year.
(d) The expression "Unforeseeable Emergency," as used in
this Subsection means a severe financial hardship to the Participant resulting
from a sudden and unexpected illness or accident of a Participant or of a
dependent (as defined in Code Section 152(a)) of the Participant, loss of the
Participant's property due to casualty or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the control of
the Participant (but specifically not including the need to send a child of the
Participant to college or the desire to purchase a home). For purposes hereof,
an Unforeseeable Emergency shall not exist if the hardship is or may be
relieved as follows:
(i) Through reimbursement or compensation by
insurance or otherwise;
(ii) By liquidation of the Participant's assets, to
the extent the liquidation of such assets would not itself cause
severe financial hardship; or
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(iii) By cessation of Deferred Salary and/or Deferred
Bonus elections hereunder.
(e) In no event will any payment on account of an
Unforeseeable Emergency exceed the amount required to meet such emergency plus
any amounts necessary to pay any federal, state or local taxes reasonably
anticipated to result from such payment.
(f) If any withdrawal under this Subsection 4.03(1) is for
less than the entire amount then available for withdrawal, then withdrawals
under this Subsection 4.03(1) must be for a minimum of Five Hundred Dollars
($500.00).
4.03(2) Procedure for Withdrawals. All withdrawals under
Subsection 4.03(1) shall be subject to Committee approval and shall require a
written request for withdrawal on such forms as the Committee shall prescribe.
When an application for withdrawal is granted under the provisions of this
Subsection, the Committee shall give such written directions to the Trustee as
shall be appropriate to effectuate the distribution of the amount withdrawn in
accordance with the terms hereof. The date of withdrawal payment shall be
specified by the Committee. Withdrawals shall be paid in the form of a single
cash lump sum; provided, however, that withdrawals shall be paid pro rata from
any investment funds in which the amounts credited to the Participant's Account
may then be invested under a trust, unless the Committee determines, in its
sole discretion, that a different allocation is appropriate. For purposes of
allocating appreciation or depreciation of any trust fund and any income of any
trust fund, where appropriate, any withdrawal pursuant to this Article IV shall
be subtracted from the Participant's Account balance at the beginning of the
Plan Quarter in which the withdrawal occurs.
ARTICLE V
SOURCE OF PAYMENTS OF BENEFITS
The Plan is a non-qualified, unfunded, deferred compensation plan.
Therefore, all benefits owing under the Plan shall be paid out of the
Employers' general corporate funds, which are subject to the claims of
creditors, or out of any trust the Committee shall establish or authorize,
provided that all assets paid into any such trust shall at all times before
actual payment to a Participant or Beneficiary remain subject to the claims of
general creditors of the Employers. In the absence of action by the Committee,
nothing herein shall be construed to create or require the creation of a trust
for the purpose of paying benefits owing under the Plan. Neither the
Participant nor any Beneficiary shall have any right, title, or interest
whatever in or to, or any claim, preferred or otherwise, in or to, any
particular assets of the Employers as a result of participation in the Plan, or
any trust that the Committee may establish to aid in providing the payments
described in the Plan. Nothing contained in the Plan, and no action taken
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pursuant to its provisions, shall create or be construed to create a trust or a
fiduciary relationship of any kind between the Employers and a Participant or
any other person. Neither a Participant nor a Beneficiary of a Participant
shall acquire any interest greater than that of an unsecured creditor in any
assets of the Employers or in any trust that the Committee may establish to pay
benefits hereunder.
ARTICLE VI
VALUATION OF ACCOUNTS
6.01 Participant's Accounts. The Committee shall establish and
maintain, or cause to be maintained, with respect to each Employer, individual
Accounts for each Participant or Beneficiary. A Participant shall have a
Deferred Salary Account, a Deferred Bonus Account, and a Matching Account.
Each Account shall reflect the credits and charges allocable thereto in
accordance with the Plan. The Committee shall maintain, or cause to be
maintained, records which will adequately disclose at all times the state of
each separate Account hereunder and the state of any trust created pursuant to
Article V hereof. The books, forms and methods of accounting shall be entirely
subject to the supervision of the Committee.
6.02 Periodic Determination of Participant's Accounts.
6.02(1) Allocations in General. For the purpose of making
allocations as of any Valuation Date, any net earnings and adjustments in value
to the Accounts shall be allocated pursuant to Subsection 6.02(3) below,
Matching Amounts credited during such Valuation Period shall be allocated
pursuant to Section 4.02 hereof, and Deferred Salary and/or Deferred Bonus
elected for such Valuation Period shall be credited pursuant to Section 4.01
hereof. Whenever an allocation or credit is required to be made hereunder, it
shall be made by the Committee, or at the Committee's direction and subject to
its supervision.
6.02(2) Allocation of Net Earnings and Adjustments in Value of
the Accounts. The net earnings or losses of the Accounts under the Plan for a
particular Valuation Period shall be determined on the basis of any earnings or
losses of any trust assets under any trust established pursuant to Article V
hereof for such Valuation Period, or if no trust is established, then such
Accounts shall be credited with earnings or losses for the Valuation Period
equal to the earnings or losses of the Company Stock Fund maintained under the
Qualified Plan. The net earnings or losses as of the Valuation Date to be
credited to or charged against such Accounts shall be based on the average
funds credited to each such Account during such Valuation Period.
6.02(3) Computations. All of the computations required to be
made under the provisions of this Article VI, when made, shall be conclusive
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with respect thereto and shall be binding upon all the Participants,
Beneficiaries, and all other persons ever having an interest in the Trust Fund.
ARTICLE VII
RETIREMENT BENEFITS
A Participant who terminates his employment with an Employer for a reason
other than death on or after his Retirement Date shall have retired under this
Article VII. In addition, any Participant who is deemed to have retired under
the Qualified Plan shall be deemed to have retired under this Article VII. A
Participant who continues in the Employer's employment after his Retirement
Date shall continue to be a Participant in the Plan until his actual
retirement. Upon actual retirement on or after his Retirement Date, a
Participant shall be entitled to receive benefits equal to the total amounts
credited to his Accounts valued as of the Valuation Date coinciding with or
immediately following the date on which such Participant becomes entitled to
such benefits. Payment upon retirement shall be made at the time and manner
provided in Article XI hereof.
ARTICLE VIII
DISABILITY BENEFITS
8.01 Disability Retirement Benefits. If a Participant retires by reason
of Total and Permanent Disability while in the employ of an Employer or on
Leave of Absence, he shall be entitled to receive benefits equal to the total
amounts credited to his Accounts valued as of the Valuation Date coinciding
with or immediately following the date on which such Participant retires on
account of Total and Permanent Disability. Payments resulting from a
Participant's retirement on account of Total and Permanent Disability shall be
made at the time and in the manner provided in Article XI hereof.
8.02 Determination of Disability. The Committee shall determine whether
a Participant has suffered Total and Permanent Disability based upon proof
thereof which the Participant must provide to the Committee, and its
determination in that respect is binding upon the Participant.
ARTICLE IX
DEATH BENEFITS
9.01 Death Benefits. Upon the death of a Participant while in the
employ of an Employer or on Leave of Absence, his Beneficiary, determined in
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accordance with Section 9.02 hereof, shall receive, provided proper proof of
death has been filed with the Committee, the full amount credited to his
Accounts valued as of the Valuation Date coinciding with or immediately
following the date on which the Participant dies.
Upon the death of a Participant who is no longer employed by an
Employer, his Beneficiary, determined in accordance with Section 9.02, shall
receive the balance, if any, of such Participant's Accounts which have not been
distributed previously to the Participant, valued as of the Valuation Date
coinciding with or immediately following the Participant's date of death.
Payments resulting from the death of a Participant shall be made at
the time and in the manner provided in Article XI hereof.
9.02 Designation of Beneficiaries. Each Participant may designate a
Beneficiary or Beneficiaries, and contingent Beneficiary or Beneficiaries, if
desired, including the executor or administrator of his estate, to receive his
interest hereunder in the event of his death, but the designation of a
Beneficiary shall not be effective for any purpose unless and until it has been
filed with the Committee on the form provided therefor. If the deceased
Participant failed to name a Beneficiary in the manner herein prescribed, or
the Beneficiary or Beneficiaries so named predecease the Participant, the
amount, if any, which is payable hereunder in respect of such deceased
Participant shall be paid to (i) the spouse of the deceased Participant, (ii)
the surviving children of the deceased Participant or on their behalf as
provided for in Section 11.02 below, (iii) anyone or more of the next-of-kin of
the deceased Participant in such proportions as the Committee may determine, or
(iv) the legal representative or representatives of the estate of the deceased
Participant, by payment in a lump sum. Notwithstanding the foregoing, the
Committee may elect to have a court of applicable jurisdiction determine to
whom a payment or payments should be made. Any payment made to any person
pursuant to the power and discretion conferred upon the Committee by the
preceding sentence shall operate as a complete discharge of all obligations
under the Plan in respect of such deceased Participant and shall not be subject
to review by anyone, but shall be final, binding and conclusive on all persons
ever interested hereunder.
A Participant may from time to time change any Beneficiary
designated by him without notice to such Beneficiary, under such rules and
regulations as the Committee may from time to time promulgate, but the last
Beneficiary designation filed with the Committee shall control.
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ARTICLE X
EMPLOYMENT TERMINATION BENEFITS
Subject to the provisions of Subsection 11.01(2) hereof, in the event of
the Termination of Employment of a Participant, such Participant shall be
entitled to receive the full amount credited to his Accounts valued as of the
Valuation Date coinciding with or immediately following the date on which such
Participant has suffered a Termination of Employment. Payment pursuant to this
Article X shall be made at the time and manner provided in Article XI hereof.
ARTICLE XI
PAYMENT OF BENEFITS
11.01 Time and Method for Distribution of Benefits.
11.01(1) Upon a Participant's: (i) retirement on or after his
Retirement Date or as otherwise provided in Article VII hereof, (ii) retirement
due to Total and Permanent Disability, (iii) death, or (iv) Termination of
Employment, the Participant or his Beneficiary shall be entitled to a
distribution pursuant to and in an amount computed in accordance with Article
VII, VIII, IX or X, as the case may be. Such amounts shall be distributed in a
single lump sum, in cash or in kind, as soon as administratively practicable
after the Valuation Date coinciding with or immediately following the date of
such Participant's retirement on or after his Retirement Date or as otherwise
provided in Article VII hereof, retirement due to Total and Permanent
Disability, death or Termination of Employment.
11.01(2) Notwithstanding any other provision of this Plan to the
contrary, if actual distribution pursuant to Subsection 11.01(1) above is
delayed for any reason beyond the Valuation Date upon which the amount of such
distribution was to be based, the distribution shall be based on the value of
the Participant's Accounts as of the Valuation Date coinciding with or
immediately preceding the date on which such distribution is actually made.
11.02 Payments on Personal Receipt Except in Case of Legal Disability.
All payments to any Participant or Beneficiary shall be made to the recipient
entitled thereto in person or upon his personal receipt, in a form satisfactory
to the Committee, except when the recipient entitled thereto shall be under a
legal disability, or, in the sole judgment of the Committee, shall otherwise be
unable to apply such payments in furtherance of his own interests and
advantage. The Committee may, in such event, in its sole discretion, direct
all or any portion of such payments to be made in any one or more of the
following ways: (i) directly to such person, (ii) to the guardian of his
person or of his estate, even if appointed by a court other than a Texas state
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court, (iii) to a custodian under any applicable Uniform Gifts to Minors Act or
Uniform Transfers to Minors Act, or (iv) to a person appointed by the guardian
of his person or of his estate through a Power of Attorney. Notwithstanding
the foregoing, the Committee may elect to have a court of applicable
jurisdiction determine to whom a payment or payments should be made. The
decision of the Committee, in each case, will be final, binding and conclusive
upon all persons ever interested hereunder, and the Committee shall not be
obliged to see to the proper application or expenditure of any payments so
made. Any payment made pursuant to the power herein conferred upon the
Committee shall operate as a complete discharge of all obligations of the
Committee, to the extent of the amounts so paid.
ARTICLE XII
MISCELLANEOUS PROVISIONS RESPECTING PARTICIPANTS
12.01 Participants to Furnish Required Information.
12.01(1) Each Participant shall furnish to the Committee such
information as the Committee considers necessary or desirable for purposes of
administering the Plan, and the provisions of the Plan respecting any payments
hereunder are conditional upon the Participant's furnishing promptly such true,
full and complete information as the Committee may reasonably request.
12.01(2) Each Participant shall submit proof of such
Participant's age to the Committee. The Committee shall, if such proof of age
is not submitted as required, use as conclusive evidence thereof, such
information as is deemed by it to be reliable, regardless of the source of such
information. Any adjustment required by reason of lack of proof or the
misstatement of the age of persons entitled to benefits hereunder, by the
Participant or otherwise, shall be in such manner as the Committee deems
equitable.
12.01(3) Any notice or information which according to the terms
of the Plan or the rules of the Committee must be filed with the Committee,
shall be deemed so filed if addressed and either delivered in person or mailed,
postage fully prepaid, to the Committee. Whenever a provision herein requires
that a Participant (or the Participant's Beneficiary) give notice to the
Committee within a specified number of days or by a certain date, and the last
day of such period, or such date, falls on a Saturday, Sunday, or Employer
holiday, the Participant (or the Participant's Beneficiary) will be deemed in
compliance with such provision if notice is delivered in person to the
Committee or is mailed, properly addressed, postage prepaid, and postmarked on
or before the business day next following such Saturday, Sunday or Employer
holiday. The Committee may, in its sole discretion, modify or waive any
specified notice requirement; provided, however, that such modification or
waiver must be administratively feasible, must be in the best interest of the
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Participant, and must be made on the basis of rules of the Committee which are
applied uniformly to all Participants.
12.02 Restrictions on Assignment. The benefits provided hereunder are
intended for the personal security of persons entitled to payment under the
Plan, and are not subject in any manner to the debts or other obligations of
the persons to whom they are payable. The interest of a Participant or such
Participant's Beneficiary or Beneficiaries may not be sold, transferred,
assigned or encumbered in any manner, either voluntarily or involuntarily, and
any attempt so to anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be null and void; neither shall any benefits
hereunder be liable for or subject to the debts, contracts, liabilities,
engagements or torts of any person to whom such benefits or funds are payable,
nor shall they be subject to garnishment, attachment, or other legal or
equitable process nor shall they be an asset in bankruptcy. All of the
provisions of this Section 12.02, however, are subject to Section 11.02, and to
withholding of any applicable taxes.
12.03 Participant's Rights. Establishment of the Plan shall not be
construed as giving any Participant the right to be retained in the Employers'
service or employ, and nothing contained herein shall be construed in any way
to limit or restrict the right of any Employer to discharge any employee
regardless of whether such employee is a Participant or to change such
employee's position or the basis or amount of such employee's compensation.
Establishment of the Plan shall not give any Participant the right to receive
any benefits not specifically provided by the Plan. A Participant shall not
have any interest in the Deferred Salary, Deferred Bonus or other amounts
credited to his Accounts until such Accounts are distributed in accordance with
the Plan. All amounts credited to Accounts for a Participant under the Plan
shall remain the sole property of the Employers, subject to the claims of its
general creditors and available for its use, notwithstanding that a trust may
be established under Article V hereof. With respect to amounts deferred or
otherwise credited to an Account of a Participant, the Participant is merely a
general creditor of the Employers; and the obligation of the Employers
hereunder is purely contractual and shall not be funded or secured in any way.
12.04 Address for Mailing of Benefits.
12.04(1) Each Participant and each other person entitled to
benefits hereunder shall file with the Committee from time to time in writing
such Participant's post office address and each change of address. Any check
representing payment hereunder and any communication addressed to a
Participant, an Employee or Beneficiary, at such person's last address filed
with the Committee, or if no such address has been filed, then at such person's
last address as indicated on the records of an Employer, shall be deemed to
have been delivered to such person on the date on which such check or
communication is deposited, postage prepaid, in the United States mail.
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12.04(2) If the Committee is in doubt as to whether payments are
being received by the person entitled thereto, it shall, by registered mail
addressed to the person concerned, at his address last known to the Committee,
notify such person that all unmailed and future payments shall be withheld
until he provides the Committee with a sworn statement, properly notarized,
evidencing his continued life and his proper mailing address.
12.05 Unclaimed Account Procedure. The Committee shall not be obliged to
search for, or ascertain the whereabouts of any Participant or Beneficiary.
The Committee, by certified or registered mail addressed to such Participant's
or Beneficiary's last known address, shall notify the Participant or
Beneficiary that such Participant or Beneficiary is entitled to a distribution
under this Plan. The Committee shall utilize the services of the Internal
Revenue Service (pursuant to its Policy Statement P-1-187 or any successor
thereto) in attempting to ascertain the current mailing address of a
Participant or Beneficiary.
ARTICLE XIII
ADMINISTRATION OF THE PLAN
13.01 Appointment of Committee. The administration of the Plan will be
the responsibility of the Committee which shall be appointed by the Board and
shall consist of one (1) or more members. Each member of the Committee shall
serve for a term of one (1) year and until his successor shall be appointed. A
member may serve for more than one (1) term. If the Committee consists of more
than one member, the Board shall appoint one (1) of the members as Chairman.
The Board shall be authorized to remove any member of the Committee with or
without cause by notifying such member and the Chairman, in writing, and may
fill vacancies in the Committee, however caused. A member of the Committee may
resign upon ten (10) days' prior notice by delivery of his written resignation
to the Board and other members of the Committee. The Committee shall have the
sole power, duty and responsibility for directing the administration of the
Plan in accordance with its provisions. Until such time as the Board so
determines otherwise, the Committee of this Plan shall be the Retirement
Committee under the Retirement Plan For Employees of Southwestern Public
Service Company.
13.02 Compensated Expenses of the Committee. The members of the
Committee shall serve without compensation for their services as such, but the
reasonable and necessary expenses of the Committee shall be paid as provided in
Section 13.10. When, in its discretion, any Employer, deems it advisable, the
Committee shall be authorized to have the records of the Committee audited by
an independent auditor, and reasonable and necessary expenses thereby incurred
shall be paid as provided in Section 13.10 hereof.
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13.03 Secretary and Agents of the Committee. The Committee may appoint a
Secretary who may, but need not, be a member of the Committee, and may employ
such agents and such clerical and other administrative personnel as reasonably
may be required for the purpose of administering the Plan. Such administrative
personnel shall carry out the duties and responsibilities assigned to them by
the Committee. Expenses necessarily incurred for such purpose shall be paid as
provided in Section 13.10 hereof.
13.04 Actions of Committee.
13.04(l) A majority of the members of the Committee shall
constitute a quorum for the transaction of business, and shall have full power
to act hereunder. Action by the Committee shall be official if approved by a
vote of a majority of the members present at any official meeting. The
Committee may, without a meeting, authorize or approve any action by written
instrument signed by a majority of all of the members. Any written memorandum
signed by the Chairman, or any other member of the Committee, or by any other
person duly authorized by the Committee to act, in respect of the subject
matter of the memorandum, shall have the same force and effect as a formal
resolution adopted in open meeting.
13.04(2) A member of the Committee may not vote or decide upon
any matter relating solely to him or vote in any case in which his individual
right or claim to any benefit under the Plan is specifically involved. If, in
any case in which a Committee member is so disqualified to act, the remaining
members then present cannot, by majority vote, act or decide, the Board will
appoint a temporary substitute member to exercise all of the powers of the
disqualified member concerning the matter in which he is disqualified.
13.04(3) The Committee shall maintain minutes of its meetings
and written records of its actions, and as long as such minutes and written
records are maintained, members may participate and hold a meeting of the
Committee by means of conference telephone or similar communications equipment
which permits all persons participating in the meeting to hear each other.
Participation in such a meeting constitutes presence in person at such meeting.
13.05 Authority of Committee. The Committee is authorized to take such
actions as may be necessary to carry out the provisions and purposes of the
Plan and shall have the authority to control and manage the operation and
administration of the Plan. In order to effectuate the purposes of the Plan,
the Committee shall have the fiduciary power and discretion to construe and
interpret the Plan, to supply any omissions therein, to reconcile and correct
any errors or inconsistencies, to decide any questions in the administration
and application of the Plan, and to make equitable adjustments for any mistakes
or errors made in the administration of the Plan. All such actions or
determinations made by the Committee, and the application of rules and
regulations to a particular case or issue by the Committee, in good faith,
shall not be subject to review by anyone, but shall be final, binding and
conclusive on all persons ever interested hereunder. In construing the Plan
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and in exercising its power under provisions requiring Committee approval, the
Committee shall attempt to ascertain the purpose of the provisions in question
and when such purpose is known or reasonably ascertainable, such purpose shall
be given effect to the extent feasible. Likewise, the Committee is authorized
to determine all questions with respect to the individual rights of all
Participants and their Beneficiaries under this Plan, including, but not
limited to, all issues with respect to eligibility, valuation of Accounts, and
retirement or Termination of Employment, and shall direct any trustee
concerning the allocation, payment and distribution of any funds held in trust
for purposes of the Plan.
13.06 General Administrative Powers. The Committee shall have authority
to make, and from time to time, revise rules and regulations for the
administration of the Plan.
13.07 Plan Administrator. "Plan Administrator" shall mean the Committee.
The Plan Administrator shall exercise such authority and responsibility as it
deems appropriate to comply with the provisions of federal law and governmental
regulations issued thereunder and to carry out any duties imposed hereby.
13.08 Duties of Administrative Personnel. Administrative personnel
appointed pursuant to Section 13.03 hereof, shall be responsible for such
matters as the Committee shall delegate to them by written instrument,
including, but not limited to communications to Employees at the direction of
the Committee, reports to the Committee involving questions of eligibility and
the amount of Deferred Salary and/or Deferred Bonus, and assisting Participants
and Beneficiaries in the completion of forms prescribed by the Committee.
Administrative personnel may not make any decision as to Plan policy,
interpretations, practices or procedures unless the authority to make such
decisions has been delegated to them in writing by the Committee. All
administrative personnel shall perform their allocated function within the
policies, interpretations, rules, practices and procedures established by the
Committee, except that administrative personnel shall coordinate matters
related to the Plan with the appropriate departments of each Employer as the
Committee directs.
13.09 Indemnity. The Company shall indemnify and hold harmless each
"Indemnified Person", as defined below, against any and all claims, demands,
suits, proceedings, losses, damages, interest, penalties, expenses
(specifically including, but not limited to counsel fees to the extent approved
by the Sponsoring Company or otherwise provided by law, court costs and other
reasonable expenses of litigation), and liability of every kind, including
amounts paid in settlement, with the approval of the Sponsoring Company,
arising from any action or cause of action related to the Indemnified Person's
act or acts or failure to act. Such indemnity shall apply regardless of
whether such claims, demands, suits, proceedings, losses, damages, interest,
penalties, expenses, and liability arise in whole or in part from the
negligence or other fault of the Indemnified Person, except when the same is
judicially determined to be due to gross negligence, fraud, recklessness,
willful or intentional misconduct of such Indemnified Person. "Indemnified
Person" shall mean each member of the Board and the Committee, and each
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individual otherwise acting in an administrative capacity with respect to the
Plan.
13.10 Payment of Expenses. The expenses of agents or advisers, and any
other reasonable expenses of the Committee approved by the Sponsoring Company
or as otherwise provided for in Sections 13.02 and 13.03, shall be paid by the
Employers. The portion thereof payable by each shall be determined by the
ratio that the number of Participants who are Employees of each Employer bears
to the total of all such Participants; provided, that if any expense is
incurred solely on account of a single Employer or group of Employers, such
expense shall be paid by such Employer or Employers to the extent and in such
proportion as the Sponsoring Company may determine.
ARTICLE XIV
PARTICIPATION BY EMPLOYERS
14.01 Adoption of Plan by Affiliated Company. Any affiliated company,
whether or not presently existing, may adopt this Plan, effective as of the
date indicated in the instrument of adoption, if (i) its application is made in
writing to the Board, (ii) such application is accepted in writing by the
Board, and (iii) such affiliated company executes an instrument in writing duly
authorized by it adopting this Plan and delivers a copy thereof to the
Committee and to the Board. The provisions of this Plan shall apply only to
each Employer severally, except as otherwise specifically provided herein or in
such Employer's instrument of adoption.
14.02 Rights and Obligations of the Sponsoring Company and the Employers.
Throughout this instrument, a distinction is purposely drawn between rights and
obligations of the Sponsoring Company and rights and obligations of each other
Employer. The rights and obligations specified as belonging to the Sponsoring
Company shall belong only to the Sponsoring Company. Each Employer shall have
the obligation to pay the benefits owing to its own Participants, and no
Employer shall have the obligation to pay benefits to the Participants of any
other Employer. Any failure by an Employer to fulfill its own obligations
under this Plan shall have no effect upon any other Employer. An Employer may
withdraw from this Plan without affecting any other Employer.
14.03 Withdrawal from Plan.
14.03(1) Notice of Withdrawal. Any Employer may, as of any
Valuation Date, withdraw from the Plan upon giving the Committee, the
Sponsoring Company and the trustee of any trust established under Article V
with respect to such Employer at least sixty (60) days' notice in writing of
its intention to withdraw.
19
<PAGE>
14.03(2) Trustee Segregation of Trust Assets upon Withdrawal.
Upon the withdrawal by an Employer pursuant to this Article, the trustee of any
trust established pursuant to Article V with respect to such Employer shall
segregate the share of the assets in the trust, the value of which shall equal
the total credited to the Accounts of Participants of the withdrawing Employer.
14.04 Continuance by Successor Company. In the event of the liquidation,
dissolution, merger, consolidation or reorganization of an Employer, the
successor company may adopt the Plan for the benefit of the Employees of such
Employer. If such successor company does adopt the Plan, it shall, in all
respects, be substituted for such Employer under the Plan. Any such
substitution of such successor company shall constitute an assumption of Plan
liabilities by such successor company, and such successor company shall have
all of the powers, duties and responsibilities of such Employer under the Plan.
If such successor company does not adopt the Plan, the Plan shall be terminated
with respect to such Employer in accordance with the provisions of the Plan.
ARTICLE XV
AMENDMENT OF THE PLAN
The Sponsoring Company reserves the right to amend the Plan with respect
to all Employers at any time and from time to time provided that a copy of any
such amendment is delivered to all other Employers within thirty (30) days of
the adoption of the amendment. Each Employer may amend the Plan with respect
to such Employer at any time, and from time to time, provided the Sponsoring
Company approves such amendment. However, no amendment or modification shall,
without the consent of a Participant or Beneficiary adversely affect such
Participant's or Beneficiary's rights with respect to amounts credited to his
Accounts under the Plan at the time of such amendment.
ARTICLE XVI
TERMINATION OF THE PLAN
16.01 Right to Terminate Plan. The Sponsoring Company reserves the right
to terminate the Plan and each Employer reserves the right to terminate the
Plan as to such Employer. However, no termination shall without the consent of
a Participant or Beneficiary adversely affect such Participant's or
Beneficiary's rights with respect to amounts credited to his Accounts under the
Plan at the time of termination.
16.02 Termination of Plan. If an Employer determines to terminate (as to
such Employer) the Plan, it shall be terminated insofar as it is applicable to
such Employer as of the date specified in certified copies of resolutions or
other formal written instrument pursuant to Section 17.03 hereof, delivered to
20
<PAGE>
the Committee. Upon such termination of the Plan, such Employer's Participants
shall be entitled to receive the amount then credited to their respective
Accounts in a lump-sum payment.
ARTICLE XVII
MISCELLANEOUS
17.01 Withholding. The Plan Administrator shall determine whether or not
federal income tax withholding is required with respect to any distribution or
withdrawal hereunder. Notwithstanding any other provision of this Plan to the
contrary, all rights and benefits of a Participant or Beneficiary are subject
to withholding of any tax required by law to be withheld.
17.02 Article and Section Headings. The titles or headings of the
respective Articles and Sections in this Plan are inserted merely for
convenience and shall be given no legal effect.
17.03 Formal Action by Employer. Any formal action herein permitted or
required to be taken by an Employer shall be:
(a) if and when a partnership, by written instrument executed by
one or more of its general partners or by written instrument executed by a
person or group of persons who has been authorized by written instrument
executed by one or more general partners as having authority to take such
action;
(b) if and when a proprietorship, by written instrument executed
by the proprietor or by written instrument executed by a person or group of
persons who has been authorized by written instrument executed by the
proprietor as having authority to take such action;
(c) if and when a corporation, by resolution of its board of
directors or other governing board, or by written instrument executed by a
person or group of persons who has been authorized by resolution of its board
of directors or other governing board as having authority to take such action;
or
(d) if and when a joint venture, by written instrument executed
by one of the joint venturers or by written instrument executed by a person or
group of persons who has been authorized by written instrument executed by one
of the joint venturers as having authority to take such action.
17.04 Unfunded Status of the Plan. Any and all payments made to the
Participant pursuant to the Plan shall be made only from the general assets of
21
<PAGE>
the Company. All Accounts under the Plan shall be for bookkeeping purposes
only and shall not represent a claim against specific assets of the Company.
17.05 APPLICABLE LAW. THIS PLAN SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS TO THE EXTENT NOT PREEMPTED BY APPLICABLE FEDERAL LAW.
IN WITNESS WHEREOF, the Employers have caused this Plan to be executed by
their duly authorized officers this ________ day of ___________________, 1995.
SOUTHWESTERN PUBLIC SERVICE COMPANY
By:________________________________________
Title:_____________________________________
UTILITY ENGINEERING CORPORATION
By:________________________________________
Title:_____________________________________
QUIXX CORPORATION
By:________________________________________
Title:_____________________________________
EXHIBIT 5
HINCKLE, COX, EATON, COFFIELD & HENSLEY
ATTORNEYS AT LAW
1700 BANK ONE CENTER
POST OFFICE BOX 9238
AMARILLO, TEXAS 79105-9238
(806) 372-5569 FAX (806) 372-9761
February 27, 1995
Securities and Exchange Commission
450 5th Street, N.W.
Washington, D.C. 20549
Dear Sirs:
We refer to the proposed issuance and sale of shares of Common Stock,
$1 par value (the "Shares"), of Southwestern Public Service Company (the
"Company") for which the Company is filing a registration statement on Form
S-8 (the "Registration Statement") with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, in connection with
the Company's Employee Investment Plan and the Non-Qualified Salary
Deferral Plan (collectively, the "Plans").
We have examined and are familiar with originals, or copies certified
or otherwise identified to our satisfaction, of such documents, corporate
records, and other instruments as we have deemed necessary or advisable to
render this opinion.
On the basis of the foregoing, we advise you that, in our opinion the
Shares have been duly authorized, and when certificates therefor have been
duly executed and delivered pursuant to the Plans, the Shares will be
legally issued, fully paid, and nonassessable by the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HINCKLE, COX EATON, COFFIELD
& HENSLEY
EXHIBIT 15
February 24, 1995
Southwestern Public Service Company:
We have reviewed, in accordance with standards established by the American
Institute of Certified Public Accountants, the unaudited condensed
consolidated interim financial information of Southwestern Public Service
Company for the periods ended November 30, 1994 and 1993 as indicated in
our report dated January 10, 1995; because we did not perform an audit, we
expressed no opinion on that information.
We are aware that our report referred to above, which was included in your
Quarterly Report on Form 10-Q for the quarter ended November 30, 1994 is
being used in this Registrationn Statement.
We also are aware that the aforementioned report, pursuant to Rule 436(c)
under the Securities Act of 1933, is not considered a part of the
Registration Statement prepared or certified by an accountant or report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
DELOITTE & TOUCHE LLP
Dallas, Texas
February 24, 1995
EXHIBIT 23(b)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Southwestern Public Service Company on Form S-8 of our reports dated
October 7, 1994, and October 28, 1994, appearing in the Annual Report on
Form 10-K of Southwestern Public Service Company for the year ended
August 31, 1994, and in the Annual Reports on Form 11-K of the Tax Benefit
Plan and Trust and the Employee Stock Ownership Plan of Southwestern Public
Service Company for the year ended August 31, 1994, respectively.
DELOITTE & TOUCHE LLP
Dallas, Texas
February 24, 1995
Exhibit 23(c)
Independent Auditors' Consent
The Board of Directors
Southwestern Public Service Company
We consent to incoproration by reference in the registration statement on
Form S-8 of Southwestern Public Service Company of 1) our report dated
October 8, 1993, relating to the consolidated balance sheet and statement
of capitalization of Southwestern Public Service Company and subsidiaries
as of August 31, 1993, and the related consolidated statements of earnings,
common shareholders' equity and cash flows for each of the years in the
two-year period ended August 31, 1993, and all related schedules, which
report appears in the August 31, 1994 annual report on Form 10-K of
Southwestern Public Service Company; 2) our report dated November 12, 1993,
relating to the statement of net assets available for benefits of the
Southwestern Public Service Company Tax Banefit Plan and Trust as of August
31, 1993, and the related statement of changes in net assets available for
benefits for the year then ended, which report appears in the August 31,
1994 annual report on Form 11-K of the Southwestern Public Service Company
Tax Benefit Plan and Trust; and 3) our report dated November 12, 1993,
relating to the statement of net assets available for benefits of the
Southwestern Public Service Company Employee Stock Ownership Plan as of
August 31, 1993, and the related statement of changes in net assets
available for benefits for the year then ended, which report appears in the
August 31, 1994 annual report on Form 11-K of the Southwestern Public
Service Company Employee Stock Ownership Plan.
/s/ KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
Amarillo, Texas
February 27, 1995
EXHIBIT 24
The undersigned, Gene H. Bishop, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Gene H. Bishop
Gene H. Bishop
<PAGE>
The undersigned, C. Coney Burgess, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ C. Coney Burgess
C. Coney Burgess
<PAGE>
The undersigned, J.C. Chambers, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ J.C. Chambers
J.C. Chambers
<PAGE>
The undersigned, Danny H. Conklin, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and files such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Danny H. Conklin
Danny H. Conklin
<PAGE>
The undersigned, Giles M. Forbess, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Giles M. Forbess
Giles M. Forbess
<PAGE>
The undersigned, R.R. Hemminghaus, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ R.R. Hemminghaus
R.R. Hemminghaus
<PAGE>
The undersigned, Don Maddox, a Director of SOUTHWESTERN PUBLIC
SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to
file with the Securities and Exchange Commission, under the provisions of
the Securities Act of 1933, as amended, registration statements (a) for the
registration of Southwestern's First Mortgage Bonds to be issued pursuant
to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as
supplemented and amended, between Southwestern and Chemical Bank, as
Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Don Maddox
Don Maddox
<PAGE>
The undersigned, J. Howard Mock, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ J. Howard Mock
J. Howard Mock
<PAGE>
The undersigned, Shirley Bird Perry, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any annd all amendements other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Shirley Bird Perry
Shirley Bird Perry
<PAGE>
The undersigned, Coyt Webb, a Director of SOUTHWESTERN PUBLIC
SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is to
file with the Securities and Exchange Commission, under the provisions of
the Securities Act of 1933, as amended, registration statements (a) for the
registration of Southwestern's First Mortgage Bonds to be issued pursuant
to the Indenture of Mortgage and Deed of Trust dated August 1, 1946, as
supplemented and amended, between Southwestern and Chemical Bank, as
Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any and all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Coyt Webb
Coyt Webb
<PAGE>
The undersigned, Gary W. Wolf, a Director of SOUTHWESTERN
PUBLIC SERVICE COMPANY ("Southwestern"), a New Mexico corporation, which is
to file with the Securities and Exchange Commission, under the provisions
of the Securities Act of 1933, as amended, registration statements (a) for
the registration of Southwestern's First Mortgage Bonds to be issued
pursuant to the Indenture of Mortgage and Deed of Trust dated August 1,
1946, as supplemented and amended, between Southwestern and Chemical Bank,
as Trustee, (b) for the registration of Southwestern's Common Stock, $1 par
value, (c) for the registration of Southwestern's Cumulative Preferred
Stock, $25 par value or $100 par value, and (d) for any other equity or
long-term debt, hereby constitutes and appoints Bill D. Helton, Coyt Webb,
Doyle R. Bunch II, and Robert D. Dickerson of SPS Tower, Tyler at Sixth,
Amarillo, Texas, and each of them his attorney-in-fact, with full power of
substitution and resubstitution in the premises, for him and in his name,
place and stead to sign with or without the other in any and all capacities
and file such registration statements and any all amendments and other
documents related thereto, granting unto said attorneys-in-fact full power
and authority to do and perform each and every act and thing requisite or
necessary 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 approving
the acts of said attorneys-in-fact.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand
this 30th day of September, 1994.
/s/ Gary W. Wolf
Gary W. Wolf
