<PAGE>
As filed with the Securities and Exchange Commission on ____________, 1995
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________
TELE-COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 84-1260157
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4841
(Primary Standard Industrial Classification Code Number)
TERRACE TOWER II
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(303) 267-5500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
EMPLOYEE STOCK PURCHASE PLAN FOR BARGAINING UNIT EMPLOYEES
OF UNITED CABLE TELEVISION OF BALTIMORE LIMITED PARTNERSHIP
(FULL TITLE OF THE PLAN)
__________________
STEPHEN M. BRETT, ESQ.
TELE-COMMUNICATIONS, INC.
TERRACE TOWER II
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(303) 267-5500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
_____________
COPY TO:
LESLIE A. NICHOLS, ESQ.
SHERMAN & HOWARD L.L.C.
3000 FIRST INTERSTATE TOWER NORTH
633 SEVENTEENTH STREET
DENVER, COLORADO 80202
(303) 297-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Amount to be Price Per Offering Registration
Registered Registered Share Price Fee (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock par 10,000 $22.9375 $229,375 $79.10
value $1.00 per share(2) Shares
- --------------------------------------------------------------------------------
</TABLE>
(1) Determined pursuant to Rule 457(h)(1) of the Securities Act of 1933, based
upon the average high and low prices reported on June 27, 1995.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of this Form and the statement of availability of registrant
information and other information required by Item 2 of this Form will be sent
or given to participants as specified by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with Rule 428(a) and
the requirements of Part I of Form S-8, such documents are not being filed with
the Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as a prospectuses or prospectus supplements pursuant
to Rule 424 under the Securities Act. The Registrant shall maintain a file of
such documents in accordance with the provisions of Rule 428(a)(2) under the
Securities Act. Upon request, the Registrant shall furnish to the Commission or
its staff a copy or copies of all the documents included in such file.
The Registrant was incorporated in 1994 under the name "TCI/Liberty Holding
Company" for the purpose of combining the Registrant's predecessor Tele-
Communications, Inc. (renamed "TCI Communications, Inc." and referred to herein
as "TCIC"), and Liberty Media Corporation ("Liberty"). On August 4, 1994, the
mergers (the "TCI/Liberty Combination") of TCIC and Liberty with separate
wholly-owned subsidiaries of the Registrant were consummated and each of TCIC
and Liberty became wholly-owned subsidiaries of the Registrant. In connection
with the TCI/Liberty Combination, the Registrant changed its name to Tele-
Communications, Inc. and TCIC changed its name to TCI Communications, Inc.
Unless the context indicates otherwise, as used in this Prospectus the terms
"Registrant" or "Company" mean, on and after August 4, 1994, Tele-
Communications, Inc. (formerly named "TCI/Liberty Holding Company") and, before
August 4, 1994, TCIC (formerly named "Tele-Communications, Inc."), and their
respective consolidated subsidiaries.
1
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Tele-Communications, Inc. (the
"Registrant") with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), are incorporated herein by reference:
(a) (1) The latest annual report filed pursuant to Section 13(a) or 15(d)
of the Exchange Act by the Tele-Communications, Inc. Employee Stock
Purchase Plan (the "Plan"); and
(2) The Company's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act; or
(3) The latest prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements for the
Company's latest fiscal year for which such statements have been
filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the common stock, no par value, of the Company
contained in a registration statement filed under Section 12 of the
Exchange Act, including any amendments or reports filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, as amended, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities remaining unsold, shall be deemed to be incorporated by reference
in this Registration Statement and to be a part thereof from the date of the
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
All of the securities being registered are either registered under Section
12 of the Exchange Act or are plan interests.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides, generally,
that a corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any action, suit or proceeding
(except actions by or in the right of the corporation) by reason of the fact
that such person is or was a director or officer of the corporation against all
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. A corporation may similarly indemnify such person for expenses
actually and reasonably incurred by him in connection with the defense or
settlement of any action or suit by or in the right of the corporation, provided
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in the case of
claims, issues and matters as to which such person shall have been adjudged
liable to the corporation, provided that a court shall have determined, upon
application, that, despite the adjudication of liability but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which such court shall deem proper.
Section 102(b)(7) of the Delaware General Corporation Law provides,
generally, that the certificate of incorporation may contain a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
section 174 of Title 8, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision may eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Article V, Section E of the Company's Amended and Restated Certification of
Incorporation provides as follows:
1. Limitation on Liability.
-----------------------
To the fullest extent permitted by the Delaware General Corporation
Law as the same exists or may hereafter be amended, a director of the
Corporation shall not be liable to the Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director. Any repeal or modification of this paragraph 1 shall be
prospective only and shall not adversely affect any limitation, right
or protection of a director of the Corporation existing at the time of
such repeal or modification.
3
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2. Indemnification.
---------------
(a) RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold
harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is
made or is threatened to be made a party or is otherwise involved in
any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the fact
that he, or a person for whom he is the legal representative, is or
was a director or officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust, enterprise or nonprofit entity, including service with respect
to employee benefit plans, against all liability and loss suffered and
expenses (including attorneys' fees) reasonably incurred by such
person. Such right of indemnification shall inure whether or not the
claim asserted is based on matters which antedate the adoption of this
Section E. The Corporation shall be required to indemnify a person in
connection with a proceeding (or part thereof) initiated by such
person only if the proceeding (or part thereof) was authorized by the
Board of Directors of the Corporation.
(b) PREPAYMENT OF EXPENSES. The Corporation shall pay the expenses
(including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment
of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking by the director or officer to repay all amounts advanced
if it should be ultimately determined that the director or officer is
not entitled to be indemnified under this paragraph or otherwise.
(c) CLAIMS. If a claim for indemnification or payment of expenses
under this paragraph is not paid in full within 60 days after a
written claim therefor has been received by the Corporation, the
claimant may file suit to recover the unpaid amount of such claim and,
if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the Corporation
shall have the burden of proving that the claimant was not entitled to
the requested indemnification or payment of expenses under applicable
law.
(d) NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by
this paragraph shall not be exclusive of any other rights which such
person may [have] or hereafter acquire under any statute, provision of
this Certificate, the Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) OTHER INDEMNIFICATION. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit
4
<PAGE>
entity shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.
Article II, Section 2.9 of the Company's Bylaws also contains an indemnity
provision, requiring the Company to indemnify members of the Board of Directors
and officers of the Company and their respective heirs, personal representatives
and successors in interest for or on account of any action performed on behalf
of the Company, to the extent provided by the Delaware corporation laws and the
Company's Certificate of Incorporation, as then or thereafter in effect.
The Company has also entered into indemnification agreements with each of
its directors (each director, an "indemnitee"). The indemnification agreements
provide (i) for the prompt indemnification to the fullest extent permitted by
law against any and all expenses, including attorneys' fees and all other costs,
expenses and obligations paid or incurred in connection with investigating,
defending, being a witness or participating in (including on appeal), or in
preparing for ("Expenses"), any threatened, pending or completed action, suit or
proceeding, or any inquiry or investigation ("Claim"), related to the fact that
such indemnitee is or was a director, officer, employee, agent or fiduciary of
the Company or is or was serving at the Company's request as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by a director or officer in any such
capacity, and against any and all judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other charges paid or
payable in connection therewith) of any Claim, unless the Reviewing Party (one
or more members of the Board of Directors or other person appointed by the Board
of Directors, who is not a party to the particular claim, or independent legal
counsel) determines that such indemnification is not permitted under applicable
law and (ii) for the prompt advancement of Expenses, and for reimbursement to
the Company if the Reviewing Party determines that such indemnitee is not
entitled to such indemnification under applicable law. In addition, the
indemnification agreements provide (i) a mechanism through which an indemnitee
may seek court relief in the event the Reviewing Party determines that the
indemnitee would not be permitted to be indemnified under applicable law (and
therefore is not entitled to indemnification or expense advancement under the
indemnification agreement) and (ii) indemnification against all expenses
(including attorneys' fees), and advancement thereof if requested, incurred by
the indemnitee in seeking to collect an indemnity claim or advancement of
expenses from the Company or incurred in seeking to recover under a directors'
and officers' liability insurance policy, regardless of whether successful or
not. Furthermore, the indemnification agreements provide that after there has
been a "change in control" in the Company (as defined in the indemnification
agreements), other than a change in control approved by a majority of directors
who were directors prior to such change, then, with respect to all
determinations regarding a right to indemnity and the right to advancement of
Expenses, the Company will seek legal advice only from independent legal counsel
selected by the indemnitee and approved by the Company.
5
<PAGE>
The indemnification agreements impose upon the Company the burden of
proving that an indemnitee is not entitled to indemnification in any particular
case and negate certain presumptions that may otherwise be drawn against an
indemnitee seeking indemnification in connection with the termination of actions
in certain circumstances. Indemnitees' rights under the indemnification
agreements are not exclusive of any other rights they may have under Delaware
law, the Company's Bylaws or otherwise. Although not requiring the maintenance
of directors' and officers' liability insurance, the indemnification agreements
require that indemnitees be provided with the maximum coverage available for any
Company director or officer if there is such a policy.
The Company may purchase liability insurance policies covering its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index and Exhibits at the end of this Registration
Statement.
The Registrant hereby undertakes that it will submit or has
submitted the Plan and any amendment 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 plan under Section
401 of the Internal Revenue Code.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
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;
6
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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 any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) and each filing of the annual report of the Plan pursuant
to Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
7
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenwood Village, State of Colorado, on June
30, 1995.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
--------------------
Stephen M. Brett,
Executive Vice President
and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Brendan R. Clouston and Stephen M. Brett, and
each of them, his true and lawful attorneys-in-fact and agents, each with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including pre-
effective and post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 confirming all that said attorneys-in-
fact and agents, or either of them, or their or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, this registration statement has been
signed by the following persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------- --------------------------------- -------------
<S> <C> <C>
/s/ Bob Magness Chairman of the Board June 30, 1995
- ----------------------------- and Director
(Bob Magness)
/s/ John C. Malone President and Director June 30, 1995
- ----------------------------- (Principal Executive Officer)
(John C. Malone)
</TABLE>
8
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<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Donne F. Fisher Executive Vice President and June 30, 1995
- ----------------------------- Director (Principal Financial and
(Donne F. Fisher) Accounting Officer)
/s/ John W. Gallivan Director June 30, 1995
- -----------------------------
(John W. Gallivan)
/s/ Kim Magness Director June 30, 1995
- -----------------------------
(Kim Magness)
/s/ Robert A. Naify Director June 5, 1995
- -----------------------------
(Robert A. Naify)
/s/ Jerome H. Kern Director June 30, 1995
- -----------------------------
(Jerome H. Kern)
/s/ Anthony L. Coelho Director June 30, 1995
- -----------------------------
(Anthony L. Coelho)
/s/ R.E. Turner Director June 30, 1995
- -----------------------------
(R.E. Turner)
</TABLE>
THE PLAN. Pursuant to the requirements of the Securities Act of 1933, the
persons who administer the Plan have duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Greenwood Village, State of Colorado, on June 30, 1995.
By: /s/ Gary Bracken
---------------------------------
Gary Bracken, Plan Administrator
9
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EXHIBIT INDEX
SEQUENTIAL
EXHIBITS PAGE NO.
-------- --------
4.6 Employee Stock Purchase Plan for Bargaining Unit Employees
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of KPMG
23.4 Consent of KPMG Peat Marwick LLP
23.5 Consent of KPMG Finsterbusch Pickenhayn Sibille
23.6 Consent of Price Waterhouse LLP
<PAGE>
EXHIBIT 4.6
EMPLOYEE STOCK PURCHASE PLAN
FOR BARGAINING UNIT EMPLOYEES
OF
UNITED CABLE TELEVISION OF BALTIMORE LIMITED PARTNERSHIP
d/b/a
UNITED ARTISTS CABLE OF BALTIMORE
June 30, 1995
<PAGE>
I N D E X
---------
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I NAME AND PURPOSE OF PLAN AND TRUST.......... 1
ARTICLE II DEFINITIONS................................. 2
ARTICLE III PARTICIPATION............................... 9
ARTICLE IV CONTRIBUTIONS............................... 10
ARTICLE V DETERMINATION AND VESTING OF PARTICIPANTS'
ACCOUNTS.................................... 18
ARTICLE VI RETIREMENT DATE--DESIGNATION OF BENEFICIARY. 23
ARTICLE VII DISTRIBUTION FROM TRUST FUND................ 25
ARTICLE VIII FIDUCIARY OBLIGATIONS....................... 33
ARTICLE IX PLAN ADMINISTRATOR AND PLAN COMMITTEE....... 36
ARTICLE X POWERS AND DUTIES OF THE TRUSTEE............ 42
ARTICLE XI CONTINUANCE, TERMINATION, AND AMENDMENT
OF PLAN AND TRUST........................... 45
ARTICLE XII MISCELLANEOUS............................... 47
</TABLE>
<PAGE>
ARTICLE I
NAME AND PURPOSE OF PLAN AND TRUST
----------------------------------
The Company, by execution of this agreement, establishes a qualified
stock purchase plan, to be known as the Employee Stock Purchase Plan for
Bargaining Unit Employees of United Cable Television of Baltimore Limited
Partnership, to afford employees who are covered by a collective bargaining
agreement which provides for participation in this Plan a convenient means for
regular and systematic purchases of common stock of Tele-Communications, Inc.
The Plan and Trust Fund are created for the exclusive benefit of such Employee-
Participants and their Beneficiaries. The Plan is intended to qualify under
Section 401(a) of the Code, and the Trust created under the Plan is intended to
be exempt under Section 501(a) of the Code.
<PAGE>
ARTICLE II
DEFINITIONS
-----------
When used herein, the following words shall have the following
meanings, unless the context clearly indicates otherwise:
2.1 "ACCOUNT," unless otherwise indicated, means a Participant's entire
interest in Qualifying Employer Securities and any other assets in the Trust
Fund created by his Company's contributions, if any, and his contributions, and
the income, expenses, gains, and losses attributable to such assets.
2.2 "ANNIVERSARY DATE" means the first day of each Plan Year.
2.3 "BENEFICIARY" means the person who, under this Plan, becomes entitled to
receive a Participant's Account upon his death.
2.4 "BOARD OF DIRECTORS" means the Board of Directors of the Company.
2.5 "BREAK IN SERVICE" for purposes of eligibility to participate means any 12-
month period, measured from the Employee's employment or reemployment
commencement date in which the Employee has completed no more than 500 Hours of
Service. "One-year Break in Service" for vesting and all other purposes means
any Plan Year in which the Employee has completed no more than 500 Hours of
Service.
2.6 "CODE" means the Internal Revenue Code of 1986, as amended, as it presently
is constituted, as it may be amended, or any successor statute of similar
purposes.
2.7 "COLLECTIVE BARGAINING AGREEMENT" means the collective bargaining agreement
entered into by the Company and the Communication Workers of America.
2.8 "COMPANY" means United Cable Television of Baltimore Limited Partnership,
d/b/a United Cable Artists of Baltimore, which is a party to the Collective
Bargaining Agreement.
2.9 "COMPENSATION" means a Participant's wages, salaries, fees for professional
services, and other amounts received for personal services actually rendered in
the course of employment with the Company including, but not limited to,
commissions paid salesmen, compensation for services on the basis of a
percentage of profits, commissions on insurance premiums, tips, and bonuses.
Compensation also shall include [a] amounts paid or reimbursed by the Company
for moving expenses incurred by the Employee, but only to the extent that these
amounts are not deductible by the Employee under Code Section 217, [b] amounts
described in Code Sections 104(a)(3), 105(a) and 105(h), but only to the extent
that these amounts are includable in the Employee's gross income and only to the
extent such amounts are not covered by the application of Code Section 125,
-2-
<PAGE>
[c] amounts described in Code Section 105(d), whether or not includable in the
Employee's gross income, [d] amounts contributed to a cafeteria plan that are
not includable in gross income because of the application of Code Section 125,
[e] amounts includable in the gross income of the Employee as a result of the
grant of a non-qualified stock option to the Employee or as a result of the
Employee making an election described in Code Section 83(b), and [f] amounts
deferred upon the Employee's election pursuant to a plan or arrangement
qualified under Code Section 401(k) and maintained by the Company. Compensation
shall not include [i] Company contributions to a deferred compensation plan that
are not includable in the Employee's gross income in the year in which
contributed, [ii] Company contributions to a simplified employee pension plan
described under Code Section 408(k) to the extent such contributions are
deductible by the Employee, [iii] any distributions from a deferred compensation
plan, other than amounts received from an unfunded non-qualified plan, [iv]
amounts realized from the exercise of a non-qualified stock option or when
restricted stock (or property) held by the Employee either becomes freely
transferable or is no longer subject to substantial risk of forfeiture, [v]
amounts realized from the sale, exchange, or other disposition of stock acquired
under a qualified stock option, or [vi] other amounts which receive special tax
benefits, or Company contributions to purchase an annuity contract described in
Code Section 403(b), whether or not under a salary reduction agreement and
whether or not the amounts actually are excludable from the gross income of the
Employee.
Pursuant to Code Section 401(a)(17), Compensation taken into account for all
purposes under this Plan shall not exceed $150,000 (as adjusted by the Secretary
of the Treasury for cost of living increases each year) for any Plan Year. In
determining the Compensation of a Participant for purposes of the Code Section
401(a)(17) limitation, the rules of Code Section 414(q)(6) will apply, except
that the term "family" will include only the spouse of the Participant and any
lineal descendants of the Participant who have not attained age 19 before the
close of the year. If as a result of the application of the rules of Code
Section 414(q)(6), the Code Section 401(a)(17) limitation is exceeded, then the
limitation shall be prorated among the affected individuals in proportion to
each such individual's Compensation, as determined above prior to the
application of the Code Section 401(a)(17) limitation.
2.10 "EFFECTIVE DATE" of this Plan means July 1, 1995.
2.11 "EMPLOYEE" means any person, whether male or female, now or hereafter
employed to provide services to the Company and who is included in the unit of
employees covered by the Collective Bargaining Agreement, which agreement
expressly provides for participation in the Plan. A person who is an Employee
under this section 2.11 will remain eligible to participate in this Plan after
the expiration of the Collective Bargaining Agreement during any period of
negotiation between employee representatives and the Company until the earlier
of [a] the date the Plan is terminated pursuant to the lawful implementation of
a proposal to terminate the Plan following a bona fide impasse in good faith
negotiations, or [b] the date on which a replacement collective bargaining
agreement which does not provide for participation in this Plan is effective.
-3-
<PAGE>
2.12 "EMPLOYMENT COMMENCEMENT DATE" means the date on which an Employee first
performs an Hour of Service for the Company.
2.13 "FIDUCIARY" means a person who [a] exercises any discretionary authority
or discretionary control respecting management of the Plan or exercises any
authority or control respecting management or disposition of its assets, [b]
renders investment advice for a fee or other compensation, direct or indirect,
with respect to any moneys or other property of the Plan, or has any authority
or responsibility to do so, or [c] has any discretionary authority or
discretionary responsibility in the administration of the Plan. Such term
includes any person designated under section 8.2. If any money or other
property of the Plan is invested in securities issued by an investment company
registered under the Investment Company Act of 1940, such investment by itself
shall not cause such investment company or such investment company's investment
adviser or principal underwriter to be deemed to be a Fiduciary or a party in
interest.
2.14 "HIGHLY COMPENSATED EMPLOYEE" means any Employee or former Employee who,
during the Plan Year or the preceding Plan Year was:
[a] at any time a five percent owner;
[b] received annual Compensation from the Company in excess of $75,000, as
adjusted for increases in the cost of living;
[c] received annual Compensation from the Company in excess of $50,000, as
adjusted for increases in the cost of living, and was in the top-paid
group of employees for the 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 Compensation paid during the Plan Year; or
[d] was at any time an officer and received Compensation greater than 150% of
the $30,000 annual additional limitation, as adjusted for increases in
the cost of living.
In determining which employees are Highly Compensated Employees, an employee not
described in paragraphs [b], [c] or [d] above for the preceding year will not be
treated as falling under the categories described in paragraphs [b], [c] or [d]
for the current year unless such employee is in the group consisting of the 100
employees with the highest Compensation from the Company in the current year.
In determining an individual's Compensation under this section, Compensation
from each employer required to be aggregated under Code Sections 414(b), (c),
and (m) shall be taken into account. For purposes of this section, the
determination of Compensation shall be made without regard to Code Sections 125,
402(e)(3), 402(h)(1)(B) and, in the case of Company contributions made pursuant
to a salary reduction agreement, without regard to Code Section 403(b).
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<PAGE>
2.15 "HOUR OF SERVICE" MEANS:
[a] Each hour for which an Employee is paid or is entitled to payment, for the
performance of duties for the Company during the applicable computation
period; and
[b] Each hour for which an Employee is paid or is entitled to payment, by the
Company on account of a period of time during which no duties are performed
(irrespective of whether the employment relationship is terminated) due to
vacation, holiday, illness, incapacity (including disability), layoff, jury
duty, military duty, or leave of absence; and
[c] Each hour for which back pay, irrespective of mitigation of damages, either
was awarded or agreed to by the Company.
For purposes of this section, the following rules shall apply:
[1] No more than 501 hours will be credited to any Employee on account of
a single continuous period during which the Employee performs no
duties;
[2] An hour shall not be credited on account of a period during which no
duties are performed if the payment for such hour is made or due under
a plan maintained solely for the purpose of complying with applicable
workmen's compensation, or unemployment compensation or disability
insurance laws;
[3] Hours shall not be credited for payments which reimburse an Employee
solely for medical or medically related expenses incurred by the
Employee; and
[4] A payment shall be deemed to be made by or due from the Company
regardless of whether such payment is made by or due from the Company
directly, or indirectly through, among others, a trust fund, or
insurer, to which the Company contributes or pays premiums.
These rules also shall apply to the extent that any back pay is agreed to or
awarded for a period of time during which an Employee did not or would not have
performed duties.
For purposes of this section, the same Hours of Service shall not be credited
under both section 2.16[a] or [b] and also under 2.16[c]. Each Hour of Service
shall be credited under this section in accordance with 29 C.F.R. (S) 2530.200b-
2(b) and (c). Each Employee shall receive credit for Hours of Service with any
affiliated corporation within the meaning of Code Section 1563(a), determined
without regard to Sections 1563(a)(4) or 1563(e)(3)(c) of the Code, but each
such Employee must be employed by the Company to participate in this Plan. An
affiliated company within the meaning of Code Section 1563(a) generally means
any member of a controlled group of corporations.
-5-
<PAGE>
For purposes of determining whether an Employee has experienced a Break in
Service, Hours of Service shall include each hour for which an Employee is
absent from work for any period:
[A] by reason of the pregnancy of the Employee;
[B] by reason of the birth of a child of the Employee;
[C] by reason of the placement of a child with the Employee in connection
with the adoption of such child by such Employee; or
[D] for purposes of caring for such child for a period beginning immediately
following such birth or placement.
The hours described in the preceding sentence shall be treated as Hours of
Service in the year in which the absence from work begins if the Participant
would be prevented from incurring a one-year Break in Service as a result of
such treatment or, in any other case, the hours shall be treated as Hours of
Service in the immediately following year. The hours described in the two
preceding sentences shall be the Hours of Service which otherwise would normally
have been credited to such Participant but for such absence, or in any case in
which the Plan is unable to determine such hours, eight Hours of Service per
work day of such absence. No credit will be given pursuant to this paragraph
unless the Participant furnishes to the Plan Administrator such timely
information as the Plan may require to establish that the absence from work is
for reasons described above and to establish the number of days for which there
was such an absence.
2.16 "NAMED FIDUCIARY" means any Fiduciary who is named in this Plan, or who,
pursuant to a procedure specified in the Plan, is identified as a Fiduciary to
the Plan by the Company. Such Named Fiduciaries include, but are not limited
to, the Trustee, the Plan Committee, and the Plan Administrator.
2.17 "NORMAL RETIREMENT AGE" means the date a Participant attains age 65.
2.18 "PARTICIPANT" means any Employee who has become a Participant under
Article III of this Plan. Participation shall cease upon the later of [a]
distribution of a Participant's entire vested Account and forfeiture of a
Participant's entire nonvested Account or [b] termination of employment.
2.19 "PLAN" and "PLAN AND TRUST" mean the employee stock purchase plan and
trust set forth in and by this document and all subsequent amendments to it.
2.20 "PLAN ADMINISTRATOR" means the person appointed by the Board of
Directors whose duties are provided in this Plan and Trust.
2.21 "PLAN COMMITTEE" means the committee appointed by the Board of Directors
whose duties are provided in this Plan and Trust.
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<PAGE>
2.22 "PLAN YEAR" means the fiscal (taxable) year of the Plan, and this shall
be the fiscal (taxable) year of the Trust established under this Plan. If there
is a change in the Company's fiscal year, then "Plan Year" shall mean the
Company's new fiscal year, and any short fiscal year resulting from such change
shall be considered a full year for all purposes of this Plan.
2.23 "QUALIFYING EMPLOYER SECURITY" means the common stock of Tele-
Communications, Inc.
2.24 "QUARTERLY ANNIVERSARY DATE" means January 1, April 1, July 1, or
October 1 of each Plan Year.
2.25 "REEMPLOYMENT COMMENCEMENT DATE" means the first date after a Break in
Service on which an Employee performs an Hour of Service for the Company.
2.26 "TERMINATION OF EMPLOYMENT" means the termination of a person's status
as an Employee and his termination of employment with the Company in all other
capacities.
2.27 "TOTAL DISABILITY" means a disability that permanently renders a
Participant unable to perform satisfactorily the usual duties of his employment
with the Company, as determined by a physician selected by the Plan Committee or
its delegatee, and which results in his termination of active employment with
the Company.
2.28 "TRUSTEE" means the person or persons appointed as Trustee of the Trust
Fund established by this Plan and Trust and any duly appointed and qualified
successor Trustee.
2.29 "TRUSTEE RESPONSIBILITY" means any responsibility provided in the Plan
to manage or control the assets of this Plan.
2.30 "TRUST FUND" means the assets of the trust established by this Plan and
Trust from which the benefits under this Plan shall be paid and shall include
all income of any nature earned by the Trust Fund and all changes in fair
market value.
2.31 "YEAR OF SERVICE" for purposes of eligibility to participate means any
12-month period, measured from the Employee's Employment Commencement Date or
Reemployment Commencement Date, in which the Employee completes 1,000 or more
Hours of Service. "Year of Service" for vesting and all other purposes means any
Plan Year in which the Employee completes 1,000 or more Hours of Service. For
purposes of this definition, Hours of Service shall include service as an
employee in any capacity and shall include service as an employee of any entity
under common control with the Company, as defined in Code Section 1563(a) and
the regulations thereunder, or any other company designated by the Plan
Committee from time to time. Year of Service also shall include service with any
company that is acquired directly or indirectly by any Company participating in
this Plan whether by acquisition of stock or assets if such company becomes part
of the controlled group of corporations as defined in Code Section 1563(a) and
the regulations thereunder, of which the Company is a part.
2.32 The masculine gender shall include the feminine, and the singular shall
include the plural.
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<PAGE>
ARTICLE III
PARTICIPATION
-------------
3.1 WHO MAY BECOME A PARTICIPANT: Any Employee who has attained age 18 and who
----------------------------
has completed one Year of Service may become a Participant on any Quarterly
Anniversary Date of the Plan following his attainment of age 18 and completion
of one Year of Service, provided such Employee must be an Employee when he or
she becomes a Participant.
3.2 AGREEMENT TO PARTICIPATE: An Employee who has become eligible to
------------------------
participate in the Plan will commence participation in the Plan under procedures
promulgated by the Plan Committee from time to time. By electing to participate
in the Plan, an Employee agrees to the following:
[a] His or her acceptance of participation in the Plan;
[b] His or her consent to make contributions to the Trust Fund under section
4.1;
[c] His or her consent that such contributions be withheld from the Employee's
Compensation; and
[d] His or her consent to be bound by the terms and conditions of the Plan and
all its amendments.
The failure to enroll as a Participant in the Plan under the enrollment
procedures promulgated by the Plan Committee will be deemed to be an election
not to become a Participant. An Employee may revoke this election and become a
Participant by enrolling as a Participant in the Plan under the enrollment
procedures promulgated by the Plan Committee before a subsequent Quarterly
Anniversary Date of the Plan, if such Employee otherwise is eligible.
3.3 PARTICIPATION UPON REEMPLOYMENT: An Employee who has satisfied the age and
-------------------------------
service requirements under section 3.1 by reason of Years of Service prior to a
Break in Service of one year or longer may become a Participant immediately upon
his or her reemployment as an Employee. However, an Employee who becomes a
Participant under this section may not commence contributions until the first
Quarterly Anniversary Date occurring after reemployment pursuant to section 4.1.
-8-
<PAGE>
ARTICLE IV
CONTRIBUTIONS
-------------
4.1 CONTRIBUTIONS BY PARTICIPANTS: Each Participant shall make contributions
-----------------------------
to the Trust Fund only by means of regular payroll deductions or by salary
reductions. Participant after-tax contributions by payroll deduction shall be
referred to as voluntary contributions or after-tax contributions and
Participant pre-tax contributions shall be known as salary reductions or pre-tax
contributions. Subject to the limitations of section 4.11, each Participant
shall designate as a voluntary contribution or salary reduction an amount in
percentages or even dollars up to 10% of his or her Compensation in each payroll
period, until changed by the Participant. A Participant may change his or her
contribution designation prospectively but not retroactively effective for any
payroll period by providing notice to the Plan Committee prior to the last two
weeks of the calendar quarter immediately preceding the quarter for which such
change is to be effective. A Participant may suspend his or her contributions
to the Plan for any quarter by providing notice of suspension with the Plan
Committee at any time prior to the last two weeks of the calendar quarter
immediately preceding the calendar quarter in which it is to be effective. Such
notice shall remain effective until the Participant elects to make further
Participant contributions, and no Company contributions shall be made on behalf
of the Participant with respect to such suspension period. A Participant may
authorize resumption of Participant contributions by providing a new
contribution designation to the Plan Committee at any time prior to the last two
weeks of the calendar quarter immediately preceding the calendar quarter in
which it is to be effective. Notwithstanding the above, no election to resume
Participant contributions by a Participant who is subject to the provisions of
Section 16 of the Securities Exchange Act of 1934 will be effective until the
first calendar quarter commencing six months after the end of the last calendar
quarter for which the Participant elected to suspend his or her contributions to
the Plan. The Plan Committee will promulgate procedures from time to time for
the designation, change, suspension, or resumption of Participant contributions.
4.2 CONTRIBUTION BY THE COMPANY: As of the Effective Date of this Plan, the
---------------------------
Collective Bargaining Agreement provides that the Company will not make any
contributions to this Plan. In the event the Collective Bargaining Agreement is
amended while this Plan is in effect, the Plan Committee on behalf of the
Company shall pay into the Trust Fund at least annually the amount required to
be contributed, if any, under the Collective Bargaining Agreement. The Company's
contribution on behalf of its Employee-Participants, if any, shall be a stated
and nondiscriminatory percentage of each Participant's contributions (both
voluntary contributions and salary reductions) under section 4.1 during the Plan
Year. Any amounts forfeited under section 7.3 shall be used first to pay Plan
expenses under section 8.6 and any remaining forfeitures after the payment of
Plan expenses will be used to reduce the Company's contribution under this
section.
4.3 TIME AND METHOD OF PAYMENT OF CONTRIBUTION BY THE COMPANY: The Plan
---------------------------------------------------------
Committee on behalf of the Company may make payment of its contribution for any
Plan Year, if any, in installments on any date or dates it elects, provided that
the amount of its contribution for any year shall be paid in full within the
time prescribed in order to qualify such payment as an income tax deduction for
such year under the Code or any other provisions of law. Such contribution may
be
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<PAGE>
made in cash, in Qualifying Employer Securities (as determined by the Company),
or in property of the character in which the Trustee is authorized to invest the
Trust Fund. Contributions of property other than cash or Qualifying Employer
Securities shall be subject to the approval of the Trustee and the Plan
Committee.
4.4 TO WHOM CONTRIBUTIONS ARE TO BE PAID: The Company's contributions for any
------------------------------------
Plan Year shall be paid to the Trustee and shall become a part of the Trust
Fund. The Company shall pay the salary reductions and voluntary contributions
elected by the Participants to the Trustee at the earliest reasonable time but
no later than 90 days after the date on which the Participants would have
received the funds but for the Participants' salary reduction or payroll
deduction election.
4.5 RETURN OF COMPANY CONTRIBUTIONS: A contribution by the Company to the Plan
-------------------------------
shall be returned to the Company, at the Company's discretion, under any of the
following circumstances:
[a] if a contribution is made by the Company by a mistake of fact, including a
mistaken excess contribution, within one year of its payment to the Plan;
[b] if initial qualification of the Plan is denied, within one year after the
date of denial of initial qualification of the Plan; or
[c] if all or any part of the deduction of the contribution is disallowed, to
the extent of the disallowance, within one year after the disallowance of
the deduction.
The Company shall state by written request to the Trustee the amount of the
contribution to be returned and the reason for such return. Such amount shall
not include any earnings attributable to the contribution and shall be reduced
by any losses attributable to the contribution. Upon sending such request to
the Trustee, the Company simultaneously shall send to the Plan Committee a copy
of the request. The Trustee shall return such contribution to the Company
immediately upon receipt of the written request by the Company. All
contributions by the Company to the Plan are declared to be conditioned upon
both the qualification of the Plan under Code Section 401 and the deductibility
of such contributions under Code Section 404.
4.6 COMPANY'S OBLIGATIONS: The adoption and continuance of the Plan shall not
---------------------
be deemed to constitute a contract between the Company and any Employee or
Participant, nor to be consideration for, or an inducement or condition of, the
employment of any person. Nothing in this Plan shall be deemed to give any
Employee or Participant the right to be retained in the employ of the Company,
or to interfere with the right of the Company to discharge any Employee or
Participant at any time, nor shall it be deemed to give the Company the right to
require the Employee or Participant to remain in its employ, nor shall it
interfere with the right of any Employee or Participant to terminate his
employment at any time.
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<PAGE>
4.7 ROLLOVER CONTRIBUTIONS AND TRANSFERS: Notwithstanding the limits imposed
------------------------------------
upon Participant contributions, an Employee may contribute any amount of funds
(in the form of cash or check) to the Plan in any year if such contribution
satisfies the requirements under law for rollover contributions. Subject to the
direction of the Plan Committee, the Trustee is authorized to receive and add to
the Trust Fund as a direct transfer assets attributable to the vested interest
of any Participant in a retirement plan qualified under Code Section 401(a) if
such individual is a Participant in this Plan except that a direct transfer from
a qualified plan subject to Code Section 417 shall not be permitted. The
Company shall not be required to make any matching contributions under section
4.2 for such rollover contributions or transfers. Rollover contributions and
transfers shall be added to a separate Account for such Participant, shall be
nonforfeitable, and shall be distributable under Article VII.
4.8 LIMITATION ON ANNUAL ADDITION: For purposes of this section, annual
-----------------------------
addition includes Company contributions, forfeitures, and Participant
contributions. Annual addition shall not include any direct transfer or any
contribution made by a Participant which qualifies under law as a rollover
contribution. The annual limitation year shall be the Plan Year. If the annual
addition to the Account of any Participant, attributable to all defined
contribution plans (including money purchase pension plans and profit-sharing
plans of the Company), would exceed either [a] the greater of $30,000 (as
adjusted for cost of living increases by the Secretary of the Treasury as of
each January 1 for any limitation year ending during such calendar year) or 25%
of the dollar limitation in effect under Code Section 415(b)(1)(A), or [b] 25%
of such Participant's Compensation, the excess amount shall be disposed of as
follows:
[1] Any Participant contributions (including salary reduction contributions
under Code Section 401(k)) to the extent that the return would reduce the
excess amount, shall be returned to the Participant.
[2] The amount of such excess attributable to Company contributions and any
forfeitures shall be allocated and reallocated to other Participants'
Accounts in accordance with Article V to the extent that such allocations
do not cause the additions to any such Participant's Account to exceed the
lesser of the maximum permissible amount or any other limitation provided
in the Plan.
[3] To the extent that the excess amounts described in paragraph [b] above
cannot be allocated to other Participants' Accounts, such excess amounts
shall be allocated to the suspense account in accordance with Article V and
allocated to Participants under the provisions of Article V.
4.9 LIMITATION ON COMBINED BENEFITS AND CONTRIBUTIONS OF ALL DEFINED BENEFIT
------------------------------------------------------------------------
AND DEFINED CONTRIBUTION PLANS OF THE COMPANY: In any year if the Company makes
- ---------------------------------------------
contributions to a defined benefit plan on behalf of an Employee who also is a
Participant in this Plan, then the sum of the defined benefit plan fraction and
the defined contribution plan fraction (both as prescribed by law and as defined
below) for such Employee for such year shall
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<PAGE>
not exceed 1.0. In any year if the sum of the defined benefit plan fraction and
the defined contribution plan fraction on behalf of an Employee does exceed 1.0,
then the Company's contribution on behalf of such Participant to this defined
contribution plan of the Company shall be reduced to the extent necessary to
prevent the sum of the defined contribution plan fraction and the defined
benefit plan fraction from exceeding 1.0. The Company's contribution on behalf
of such Participant to this Plan may be reallocated to other Participants under
Article V to the extent necessary to prevent the sum of the defined contribution
plan fraction and the defined benefit plan fraction from exceeding 1.0. If any
amount cannot be allocated or reallocated without exceeding the limits provided
in this Article, such amount may be allocated to the suspense account
established under Article V and allocated to the Participants in accordance with
the provisions of Article V. For purposes of this section the limitation year
shall be the Plan Year.
[a] Defined Benefit Plan Fraction: The defined benefit plan fraction is a
-----------------------------
fraction the numerator of which is the projected annual benefit of the
Participant under the plan (determined as of the close of the year) and the
denominator of which is the lesser of the following amounts determined for
such year and for each prior Year of Service with the Company:
[1] the product of 1.25 times the maximum benefit dollar limitation in
effect for the limitation year; or
[2] the product of 1.4 times 100% of the Participant's average
Compensation for his high three consecutive calendar years.
[b] Defined Contribution Plan Fraction: The defined contribution plan
----------------------------------
fraction is a fraction the numerator of which is the sum of the annual
additions to the Participant's Account under all defined contribution plans
of the Company as of the close of the limitation year and the denominator
of which is the sum of the lesser of the following amounts determined for
such year and for each prior Year of Service with the Company:
[1] the product of 1.25 times the dollar limitations in effect under Code
Section 415(c)(1)(A) for the limitation year (without regard to Code
Section 415(c)(6)); or
[2] the product of 1.4 times an amount equal to 25% of the Participant's
Compensation for the limitation year.
[c] Transition Rules: The Plan Committee, in its discretion, may elect to
----------------
use the transition rules for calculating the defined contribution plan
fraction as provided in Code Sections 415(e)(4) and 415(e)(6).
4.10 SALARY REDUCTION RULES:
----------------------
[a] Election To Reduce Salary: Subject to the rules of section 4.1, an
-------------------------
Employee eligible to participate in this Plan may elect to reduce his or
her Compensation by an amount
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<PAGE>
determined at his discretion but which amount may not exceed $9,240 (which
is the adjusted 1994 limitation under Code Section 402(g) and which will be
adjusted for increases in the cost of living for 1995 and subsequent years)
in each calendar year. A Participant must make this election according to
the procedure prescribed by the Plan Committee.
[b] Nondiscriminatory Benefits: Subject to the limitations of paragraph [a],
--------------------------
all Participants in this Plan are eligible to defer identical percentages
of their Compensation, regardless of the amount of such Compensation.
[c] Nonforfeitability Of Elective Contributions: All salary reduction
-------------------------------------------
contributions made on behalf of Participants to this Plan shall be 100%
vested immediately.
[d] Distributions Restriction: Salary reductions shall be subject to the
-------------------------
restrictions on withdrawals under section 7.6.
[e] Limit On Actual Deferral Percentage: The actual deferral percentage for
-----------------------------------
Highly Compensated Employees for each Plan Year must be no greater than
either [1] 1.25 times the actual deferral percentage for all other
Employees for such Plan Year, or [2] 2.0 times the actual deferral
percentage for all other Employees for such Plan Year if the actual
deferral percentage for Highly Compensated Employees is not more than two
percentage points higher than the actual deferral percentage for all other
Employees for such Plan Year.
[f] Adjustments to Actual Deferral Percentage: In the event that the
-----------------------------------------
limitations set forth in paragraphs [a] or [e] are not met, the Plan
Committee shall adjust either the salary reductions or the Company
contributions pursuant to one or more of the options set forth below, as
determined by the Company:
[1] On or before the 15th day of the third month following the end of each
Plan Year, but in no event later than the close of the following Plan
Year, each Highly Compensated Employee, beginning with the Employee
having the highest "actual deferral percentage", shall have his or her
portion of the excess deferral or the excess Company contribution (and
any income allocable to such portion as determined below) distributed
to him or her until the limitations set forth in paragraphs [a] and [e]
are satisfied. Income or losses attributable to excess elective
deferrals will be determined under any reasonable method used by the
Plan to allocate income and losses on Plan assets. In determining the
income or loss attributable to excess Company contributions, the term
"elective deferral" in the preceding sentences shall be replaced with
"Company contribution." To the extent any such excess elective
deferrals or excess Company contributions have been applied to the
purchase of Qualifying Employer Securities, any distributions under
this paragraph will be made in whole shares of such Qualifying Employer
Securities and fractional shares shall be distributed in cash.
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<PAGE>
[2] A Participant may elect to treat his or her excess elective deferrals
or excess Company contributions as an amount distributed to the
Participant and then contributed by the Participant to the Plan as a
voluntary after-tax contribution, to the extent such recharacterized
excess contributions in combination with other Participant
contributions made under the Plan do not exceed the limitations on
Participant contributions provided in the Plan, including the average
contribution percentage limitation. Recharacterized contributions will
be nonforfeitable and will be subject to the distribution and
withdrawal provisions applicable to salary reduction contributions.
Recharacterization must occur within two and one-half months after the
close of the Plan Year in which the excess contributions arose and
recharacterization is deemed to occur no earlier than the date the last
Highly Compensated Employee is provided with notification of the amount
recharacterized and the consequences of such recharacterization.
Recharacterized amounts will be taxable to the Participant in the
Participant's taxable year in which the Participant would have received
such amounts in cash but for the salary reduction election.
[3] Within 30 days after the end of the Plan Year, the Company shall make a
contribution on behalf of non-Highly Compensated Employees in an amount
sufficient to satisfy the limitations set forth in paragraph [e]. Such
contribution shall be allocated to the Account of each non-Highly
Compensated Employee in the same proportion that each non-Highly
Compensated Employee's deferred compensation for the year bears to the
total deferred compensation of all non-Highly Compensated Employees.
[4] Any matching Company contribution that is attributable to excess
elective deferrals distributed to a Participant under paragraph [1]
above will be forfeited as of the distribution date of the excess
deferrals and such forfeited amount will be used to reduce the Company
contribution to this Plan under section 4.2 for the Plan Year in which
such forfeiture occurs.
[5] A Participant may assign to this Plan any elective deferrals exceeding
the limitations set forth in Code Section 402(g), as described in
section 4.11[a] above, by notifying the Plan Committee on or before the
March 15 of the year following the Participant's fiscal year in which
such excess was contributed. A Participant is deemed to have notified
the Plan Committee of any excess elective deferrals that arise taking
into account only those elective deferrals made to this Plan and any
other Plan maintained by the Company.
[g] Definitions:
[1] The "actual deferral percentage" for a specified group of Employees for
a Plan Year shall be the average of the ratios (calculated separately
for each Employee in such group) of the amount of Compensation deferred
under the Plan on behalf of each
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<PAGE>
such Employee for the Plan Year to the Employee's Compensation for such
Plan Year. For purposes of determining the actual deferral percentage,
salary reduction contributions shall be considered, and the Plan
Committee shall determine whether vested Company contributions shall be
considered.
[2] "Salary reductions" are those reductions in salary that each Participant
elects to defer.
4.11 NONDISCRIMINATION REQUIREMENTS FOR EMPLOYEE AND MATCHING COMPANY
----------------------------------------------------------------
CONTRIBUTIONS:
- -------------
[a] Limit on Average Contribution Percentage: The average contribution
----------------------------------------
percentage for Highly Compensated Employees shall not exceed the greater of
[1] 1.25 times the average contribution percentage for all other Employees,
or [2] the lesser of 2.0 times the average contribution percentage for all
other Employees or the average contribution percentage for all other
Employees plus two percentage points.
[b] Adjustments to Average Contribution Percentage: In the event that the
----------------------------------------------
average contribution percentage test set forth in paragraph [a] above is
not met, on or before the 15th day of the third month following the end of
each Plan Year, but in no event later than the close of the following Plan
Year, each Highly Compensated Employee, beginning with the Employee having
the highest contribution percentage, shall have his or her portion of the
excess aggregate contribution (and any income allocable to such portion as
determined below) distributed to him or her until the test set forth in
paragraph [a] is satisfied. Income and losses attributable to such excess
aggregate contributions shall be determined by multiplying the income (or
loss) for the Plan Year allocable to the matching or Employee contributions
by a fraction, the numerator of which is the excess aggregate contribution
made on behalf of the Employee for such Plan Year and the denominator of
which is the total Account balance of the Employee attributable to matching
and Employee contributions, adjusted for gains and losses allocable to such
total Account balance for the Plan Year. Income or losses attributable to
excess aggregate contributions will be determined under any reasonable
method used by the Plan to allocate income and losses on Plan assets. To
the extent any such excess aggregate contributions have been applied to the
purchase of Qualifying Employer Securities, any distributions under this
paragraph will be made in whole shares of such Qualifying Employer
Securities and fractional shares shall be distributed in cash.
[c] Average Contribution Percentage: The "average contribution percentage"
-------------------------------
for a specified group of Employees for a Plan Year shall be the average of
the ratios (calculated separately for each Employee in such group) of the
sum of the matching Company contributions and the Participant voluntary
after-tax contributions made on behalf of each such Employee for the Plan
Year to the Employee's Compensation for such Plan Year. For purposes of
determining the contribution percentage, the Plan Committee may elect to
treat salary reduction contributions as Company matching contributions.
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<PAGE>
[d] Multiple Use: If the sum of the average contribution percentage and
------------
the actual deferral percentage for Highly Compensated Employees
exceeds the aggregate limit described below, such excess amount will
be treated as an excess Company contribution or an excess aggregate
contribution, as determined by the Plan Committee, and such excess
contributions will be distributed to Highly Compensated Employees,
beginning with the Highly Compensated Employee with the highest actual
deferral percentage or the highest contribution percentage,
respectively, in the same manner as excess Company contributions and
excess aggregate contributions are distributed as provided in section
4.11[f] or in paragraph [b] above. The aggregate limit is the greater
of [1] the sum of [A] 1.25 times the greater of the actual deferral
percentage for non-Highly Compensated Employees or the average
contribution percentage for non-Highly Compensated Employees for the
Plan Year plus [B] the lesser of two times or two plus the lesser of
such actual deferral percentage or average contribution percentage; or
[2] the sum of [A] 1.25 times the lesser of the actual deferral
percentage for non-Highly Compensated Employees or the average
contribution percentage for non-Highly Compensated Employees for the
Plan Year plus [B] the lesser of two times or two plus the greater of
such actual deferral percentage or average contribution percentage.
-16-
<PAGE>
ARTICLE V
DETERMINATION AND VESTING OF PARTICIPANTS' ACCOUNTS
---------------------------------------------------
5.1 DETERMINATION OF PARTICIPANTS' ACCOUNTS:
---------------------------------------
[a] Allocation Of Contributions: As of the last day of each calendar quarter
---------------------------
the Plan Committee shall allocate to the Account of each Participant any
amounts contributed by the Company to the trust on behalf of such
Participant under section 4.2 for the calendar quarter then ended.
Forfeitures remaining after the payment of Plan expenses under section 8.6
will be used to reduce Company contributions and shall be allocated during
the first calendar quarter after the end of the year in which the
forfeitures occur, along with Company contributions made during that
quarter. Voluntary contributions and salary reductions under section 4.1
shall be allocated to the Account of the Participant making such
contribution.
[b] Allocation Of Earnings, Losses And Changes In Fair Market Value Of The Net
--------------------------------------------------------------------------
Assets Of The Trust Fund; Allocation Of Qualifying Employer Securities:
----------------------------------------------------------------------
Qualifying Employer Securities shall be allocated to the Accounts of
Participants as of the end of each calendar quarter after acquired by the
Trust Fund in the ratio that contributions under section 4.1 made to each
Account in the calendar quarter bear to the total contributions under
section 4.1 made to all Accounts for the calendar quarter. Any dividends,
cash or stock, paid on Qualifying Employer Securities shall be allocated
along with the Qualifying Employer Securities on which they are paid. Once
Qualifying Employer Securities are allocated to a Participant's Accounts,
any dividends, cash, or stock paid on such allocated securities shall be
allocated directly to such Accounts. Earnings and losses of the Trust Fund
(other than on Qualifying Employer Securities) shall be computed and
allocated to the Participants in the ratio which the total dollar value of
the Account (whether or not vested and excluding Qualifying Employer
Securities) of each Participant in the Trust Fund bears to the aggregate
dollar value of the Accounts (whether or not vested and excluding
Qualifying Employer Securities) of all Participants as of the annual
computation date. Only Participants in the Plan on the last day of the Plan
Year shall share in the allocation of earnings, losses and changes in fair
market value of the net assets of the Trust Fund (other than Qualifying
Employer Securities) for that year.
[c] Participants' Accounts: The Plan Committee shall maintain an Account for
----------------------
each Participant showing the number of shares allocated to his Account in
the Trust Fund as of the last previous computation date attributable to any
contributions made by the Company, including any Company contributions for
the year ending on such date. This Account shall be known as the Company
contributions Account. Separate Accounts also shall be kept, known as the
Employee contributions Account, showing the voluntary and salary reduction
contributions of each Participant, shares allocated, and the earnings,
losses and changes in fair market value thereof. The Company contributions
Account and the Employee contributions
-17-
<PAGE>
Account for Participants shall be considered separate contracts for
purposes of Code Section 72(e). The Plan Committee shall distribute, or
cause to be distributed, to each Participant at least annually a written
statement setting forth the value of such Participant's Accounts as of
the last day of the Plan Year, and such other information as the Plan
Committee shall determine.
[d] Valuation Dates: The valuation date of the Trust Fund shall be the
---------------
last day of each Plan Year, at which time the Plan Committee shall
determine the value of the net assets of the Trust Fund (i.e., the
----
value of all the assets of the Trust Fund at their then current fair
market value, less all liabilities) and the value of contributions by
each Company and all Participants for such year. Qualifying Employer
Securities shall be valued at the closing dealer "bid" price of the
stock in the over-the-counter market as reported by the National
Association of Securities Dealers, Inc., or National Quotation Bureau,
Inc.
[e] Computation Dates: The Plan Committee shall compute the value of each
-----------------
Participant's Account at least annually on the last day of each Plan
Year and shall base such computations on the value of the assets in the
Trust Fund on the valuation date coincident with such date. Upon any
direct distribution or withdrawal under Article VII, the Plan Committee
shall make a special computation by which it shall adjust the value of
such Participant's Account to reflect the value of such Account
determined as of the most recent Quarterly Anniversary Date prior to the
occurrence of such direct distribution or withdrawal. For distribution
or withdrawal purposes, the value of the Participant's Account will
equal the number of shares of Qualifying Employer Securities allocated
to the Participant's Account as of the last day of the Plan quarter plus
the dollar value of the any assets other than Qualifying Employer
Securities which are allocated to the Participant's Account as of the
last day of the Plan quarter. If a Participant who attains Normal
Retirement Age, suffers Total Disability, terminates his employment for
any other reason, or otherwise is entitled to a distribution or
withdrawal from the Plan, is to receive a distribution of his vested
Account in the form of Qualifying Employer Securities pursuant to
Article VII, the Participant will receive his vested Account computed as
described above as of the last day of the Plan quarter immediately
preceding the distribution or withdrawal from the Participant's Account.
If a Participant is entitled to receive any distribution or withdrawal
in cash, as expressly provided under Article VII, the Participant will
receive the proceeds from the sale of the Qualifying Employer Securities
allocated to his vested Account, plus the value of any assets other than
Qualifying Employer Securities allocated to his Account valued as
described above as of the last day of the Plan quarter immediately
preceding the distribution or withdrawal from the Participant's Account.
The sale of Qualifying Employer Securities pursuant to this section
5.1[e] will be made within a reasonable period of time after the Plan
Administrator receives the Participant's request for a distribution or
withdrawal in cash, as expressly provided under Article VII.
[f] Suspense Account For Unallocated Amounts: If the amount to be allocated
----------------------------------------
to any Participant's Account would exceed the contribution limitations
of sections 4.8 or 4.9, a
-18-
<PAGE>
separate suspense account shall be established to hold such
unallocated amounts for any year or years provided that:
[1] no Company contributions may be made at any time when their
allocations would be precluded by Section 415 of the Code;
[2] investment gains and losses and other income are not allocated to
the suspense account; and
[3] the amounts in the suspense account are allocated under section
5.1[a] as of each allocation date on which such amounts may be
allocated until the suspense account is exhausted.
In the event of Plan termination, the balance of such suspense account
may revert to the Company, subject to regulations governing such
reversion.
[g] Allocation Of Company Contributions For Payroll Period Of Withdrawal Or
-----------------------------------------------------------------------
Termination Of Employment: Any Participant who withdraws all or any
-------------------------
part of his own contributions under section 7.6 shall receive an
allocation of Company contributions for the bi-weekly payroll period of
his withdrawal, if he is otherwise entitled to a contribution. Any
Participant who terminates employment for any reason shall receive an
allocation of Company contributions for the bi-weekly payroll period of
his termination if he is otherwise entitled to a contribution.
5.2 VESTING OF PARTICIPANTS' ACCOUNTS:
---------------------------------
[a] General Rules: If any Participant reaches his or her Normal Retirement
-------------
Age, dies, or suffers Total Disability while employed with the Company,
the Participant's entire Account shall become fully vested without
regard to the number of Years of Service such Participant has had with
the Company. Any Account, whether vested or forfeitable, shall become
payable to a Participant or his or her Beneficiaries only to the extent
provided in this Plan. A Participant or former Participant who has
designated a Beneficiary and who dies shall cease to have any interest
in this Plan or in his or her Account, and his or her Beneficiary shall
become entitled to distribution of the Participant's Account under this
Plan and not as a result of any transfer of the interest or Account. A
Participant's Account attributable to his or her own contributions or
attributable to a rollover contribution shall be fully vested at all
times.
[b] Vesting Schedule: A Participant shall have a vested interest in the
----------------
portion of his Account attributable to Company contributions, in
accordance with the following schedule:
-19-
<PAGE>
<TABLE>
<CAPTION>
Percentage of Account
Years of Service Which Is Vested
---------------- ---------------------
<S> <C>
Fewer than 1 0
1 or more but fewer than 2 20
2 or more but fewer than 3 30
3 or more but fewer than 4 45
4 or more but fewer than 5 60
5 or more but fewer than 6 80
6 or more 100
</TABLE>
5.3 FULL VESTING UPON TERMINATION OR PARTIAL TERMINATION OF PLAN OR UPON
--------------------------------------------------------------------
COMPLETE DISCONTINUANCE OF CONTRIBUTIONS: Upon the termination or partial
- ----------------------------------------
termination of this Plan or upon complete discontinuance of any contributions to
the Plan, the Accounts of all Participants affected, as of the date such
termination, partial termination, or complete discontinuance of any and all
contributions occurred, shall be fully vested.
5.4 SERVICE INCLUDED IN DETERMINATION OF VESTED ACCOUNTS: All Years of Service
----------------------------------------------------
with the Company and all Years of Service with any entity under common control
with the Company shall be included for the purpose of determining a
Participant's vested Account under section 5.2, except Years of Service excluded
by reason of a Break in Service under section 5.5.
5.5 EFFECT OF BREAK IN SERVICE ON VESTING: With respect to a Participant who
-------------------------------------
has five or more consecutive one-year Breaks in Service, Years of Service after
such Break in Service shall not be taken into account for purposes of computing
the Participant's vested Account balance attributable to Company contributions
made before such five or more year period.
5.6 EFFECT OF CERTAIN DISTRIBUTIONS: The provisions of this section shall not
-------------------------------
apply to any Participant contributions (including salary reductions) or rollover
contributions.
[a] Repayment Of Distribution: A Participant who terminates participation for
-------------------------
any reason prior to attainment of Normal Retirement Age, disability, or
death while any portion of his Account in the Trust Fund is forfeitable and
who receives a distribution of his vested Account attributable to Company
contributions not later than the close of the second Plan Year following
the Plan Year in which such termination of participation occurs, shall have
the right to pay back such distribution to the Plan. Such repayment may be
made [1] only if the Participant has returned to the employ of the Company
at the time of such repayment, and [2] in the case of a distribution upon
Termination of Employment, before the earlier of the date on which the
Participant experiences five consecutive one-year Breaks in Service or five
years from the date of reemployment with the Company or, in the case of any
other distribution, five years from the date of distribution. Repayment of
a Participant's Account attributable to his salary reduction contributions
or his voluntary contributions, if any, shall not be permitted under this
section. A Participant who desires to make repayment of a
-20-
<PAGE>
distribution under this paragraph [a] shall make repayment directly to the
Plan Committee. If a Participant repays a distribution under this section,
the value of his Account shall be the amount of his Account prior to
distribution, unadjusted for any subsequent gains or losses. The amount of
the Participant's Account that was forfeited previously shall be restored
from one or more of the following sources, at the discretion of the Plan
Committee: income or gain to the Plan, forfeitures or Company
contributions.
[b] Forfeiture Of Account When Repayment Of Distribution Is Not Made: If
----------------------------------------------------------------
distribution is made to a Participant and he does not repay such
distribution under the terms of paragraph [a] when the time limit for
repayment expires under paragraph [a] above, the Participant shall forfeit
the entire portion of his nonvested Account (as adjusted for gains and
losses) which was not distributed to him. The Account shall be unadjusted
for any increase in vesting for service completed during the repayment
period.
-21-
<PAGE>
ARTICLE VI
RETIREMENT DATE--DESIGNATION OF BENEFICIARY
-------------------------------------------
6.1 NORMAL RETIREMENT DATE: A Participant shall be entitled to retire
----------------------
voluntarily, for purposes of this Plan, on the last date of the quarter in which
a Participant attains his Normal Retirement Age. At any time thereafter such
Participant may retire. Until retirement, a Participant shall continue to
participate in the Plan unless he elects otherwise.
6.2 DESIGNATION OF BENEFICIARY: A Participant's full vested Account balance
--------------------------
shall be payable, on the death of the Participant, to the Participant's
surviving spouse or to his designated Beneficiary if there is no surviving
spouse or if the spouse consents to such beneficiary designation in writing.
This spousal consent shall acknowledge the effect of such consent and shall be
witnessed by a Plan Committee member or a notary public. If there is no
surviving spouse or in the case of a spousal election not to receive the
Account, a Participant shall designate a Beneficiary to receive his Account in
the Trust Fund upon his death on the form prescribed by and delivered to the
Plan Committee. The Participant shall have the right to change or revoke a
designation at any time by filing a new designation or notice of revocation with
the Plan Administrator. No notice to any Beneficiary other than the spouse nor
consent by any Beneficiary other than the spouse shall be required to effect any
change of designation or revocation. If a Participant fails to designate a
Beneficiary before his death, or if no designated Beneficiary survives the
Participant, the Plan Committee shall direct the Trustee to pay his Account in
the Trust Fund to his surviving spouse, or if none, to his personal
representative. If no personal representative has been appointed, and if the
benefit payable does not exceed the minimum amount for which an estate or
inheritance tax release is required under applicable state law, or for which a
personal representative must be appointed under applicable state law, the Plan
Committee may direct the Trustee to pay the benefit to the person or persons
entitled to it under the laws of the state where such Participant was domiciled
at the date of his death. In such case, the Plan Committee may require such
proof of right or identity from such person as the Plan Committee may deem
necessary. If the benefit exceeds the minimum amount for which an estate or
inheritance tax release or the appointment of a personal representative is
required under applicable state law, the Plan Committee may direct the Trustee
to hold the benefit in a segregated account until a personal representative has
been appointed.
6.3 PARTICIPANT OR BENEFICIARY WHOSE WHEREABOUTS ARE UNKNOWN: In the case of
--------------------------------------------------------
any Participant or Beneficiary whose whereabouts are unknown, the Plan Committee
shall notify such Participant or Beneficiary at his last known address by
certified mail with return receipt requested advising him of his right to a
pending distribution. If the Participant or Beneficiary cannot be located in
this manner, the Plan Committee may direct the Trustee to establish a custodial
account for such Participant or Beneficiary for the purpose of holding the
Participant's Account until it is claimed by the Participant or Beneficiary or
until proof of death satisfactory to the Plan Committee is received by the Plan
Committee. If such proof of death is received, the Plan Committee shall direct
the Trustee to distribute the Participant's Account in accordance with the
provisions of section 6.2. Any Trustee fees or other administrative expenses
attributable to a custodial account established and maintained under this
section shall be charged against such account.
-22-
<PAGE>
ARTICLE VII
DISTRIBUTION FROM TRUST FUND
----------------------------
7.1 WHEN ACCOUNTS BECOME DISTRIBUTABLE AND EFFECT OF DISTRIBUTION: If a
-------------------------------------------------------------
Participant dies, suffers Total Disability, retires, or terminates his
employment for any other reason, the portion of his vested Account attributable
to Company contributions, to Participant contributions, and to any rollover
contributions shall be distributable under section 7.2. When his Account becomes
distributable, such Participant shall cease to have any further interest or
participation in the Trust Fund or any subsequent accruals or contributions to
the Trust Fund except as provided below:
[a] a Participant shall retain the right to receive distribution of his Account
as determined at the last prior regular computation or upon the special
computation as determined under section 5.1; and
[b] except as provided in section 5.1, a Participant who makes contributions
during any quarter shall retain the right to receive his share in the
Company's contribution allocated to his Account for such quarter.
7.2 DISTRIBUTION OF ACCOUNTS:
------------------------
[a] Notification Of Trustee And Nature Of Distribution: Quarterly after a
--------------------------------------------------
Participant's vested Account becomes distributable, the Plan Committee
shall notify the Trustee in writing of the Participant's name and address,
the amount of his vested Account which is distributable and the reason for
its being distributable. A Participant's Account shall be distributed in
whole shares of Qualifying Employer Securities, and cash will be
distributed in lieu of fractional shares.
[a] Distribution Upon Retirement And Upon Total Disability: If a Participant's
------------------------------------------------------
Account becomes distributable upon his termination of active employment
with the Company because such Participant has attained retirement age or
because of his Total Disability, the Trustee shall distribute to the
Participant his vested Account balance in a lump sum within a reasonable
time after the close of the quarter in which such Termination of Employment
occurred or, in the discretion of the Participant, at the close of any
later quarter. If the Participant dies before receiving his vested Account,
the remaining Account balance shall be paid to his Beneficiary under this
section. Any payments received as disability benefits under this Plan are
intended to qualify as distributions from an accident and health plan as
described in the Code.
[b] Distribution Upon Death: If a Participant's Account becomes distributable
-----------------------
because of his death, the Trustee shall distribute to the Participant's
Beneficiary the total Account balance
-23-
<PAGE>
in a lump sum within a reasonable time after the close of the quarter in
which the Participant died or, in the discretion of the Beneficiary, at the
close of any later quarter. If the Beneficiary dies before receiving the
Participant's vested Account, the Account balance shall be made to the
contingent Beneficiary, if any. If the Participant has not designated a
Beneficiary, or if he has designated a Beneficiary who dies and the
Participant has not designated a contingent Beneficiary, the Participant's
vested Account shall be paid in a lump sum under section 6.2.
[c] Distribution Upon Other Termination Of Employment: If a Participant's
-------------------------------------------------
Account becomes distributable upon his Termination of Employment for any
reason other than retirement, disability, or death, the Trustee shall
distribute to the Participant his vested Account balance in a lump sum
within a reasonable time after the close of the quarter in which such
Termination of Employment occurred or, in the discretion of the
Participant, at the close of any later quarter. If the Participant dies
prior to receiving his vested Account, the Account balance shall be
distributed to his Beneficiary under this section. A Participant shall be
considered to have terminated employment for purposes of this section on
the date the Company disposes of substantially all of the assets used by
the Company in a trade or business if such Participant continues employment
with the entity acquiring such assets. For purposes of this section, if the
Company disposes of its interest in a subsidiary of the Company, a
Participant who continues employment with such subsidiary shall be treated
as if he terminated employment with the Company on the date the Company
disposed of its interest in the subsidiary.
7.3 DISPOSITION OF FORFEITABLE ACCOUNT ON TERMINATION OF EMPLOYMENT: If a
---------------------------------------------------------------
Participant's employment is terminated for any reason prior to attainment of
Normal Retirement Age, death, or Total Disability, while any part of his Account
in the Trust Fund is forfeitable, then that portion of his Account which is
forfeitable shall be forfeited by him on the earlier of the date the Participant
receives a distribution of his Account or the date on which he experiences five
or more consecutive one-year Breaks in Service. Any amount forfeited by a
Participant shall reduce the contribution of his Company for the first quarter
of the Plan Year after it is forfeited, as provided under section 4.2. If any
such Participant returns to the employment of the Company and has not incurred
five or more consecutive one-year Breaks in Service, the Company shall restore
to the Participant's Account out of its next contribution the exact number of
shares of Qualifying Employer Securities plus any other amounts that he
forfeited, if the Participant repays the distributed amount pursuant to section
5.6.
7.4 ASSIGNMENT OF BENEFITS:
----------------------
[a] General Rules: Except as provided below, all amounts payable by the
-------------
Trustee shall be paid only to the person entitled to them, and all such
payments shall be paid directly to such person and not to any other person
or corporation. Such payments shall not be subject to the claim of any
creditor of a Participant, nor shall such payments be taken in execution by
attachment or garnishment or by any other legal or equitable proceedings.
No person shall
-24-
<PAGE>
have any right to alienate, anticipate, commute, pledge, encumber, or
assign any payments or benefits which he may expect to receive,
contingently or otherwise, under this Plan, except the right to designate a
Beneficiary or Beneficiaries; provided, that this section shall not affect,
restrict, or abridge any right of setoff or lien which the trust may have
by law.
[b] Qualified Domestic Relations Orders: Paragraph [a] shall not apply with
-----------------------------------
respect to payments in accordance with the requirements of a qualified
domestic relations order. A qualified domestic relations order 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
otherwise payable to a Participant under the Plan. A domestic relations
order means any judgment, decree, or order (including approval of a
property settlement agreement) that 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 is made pursuant to
a state domestic relations law (including a community property law). To
qualify, the domestic relations order must:
[1] clearly state the name and last known mailing address of the
Participant and the name and mailing address of each alternate payee
covered by the order;
[2] clearly state the amount or percentage of the Participant's benefits to
be paid by the Plan to each alternate payee, or the manner in which the
amount or percentage is to be determined;
[3] clearly state the number of payments or period to which the order
applies;
[4] identify each Plan to which the order applies;
[5] not require the Plan to provide any type or form of benefits, or any
option, not otherwise provided under the Plan;
[6] not require the Plan to provide increased benefits (determined on the
basis of actuarial value); and
[7] not require the payment of benefits to an alternate payee that are
required to be paid to another alternate payee under another order
previously determined to be a qualified domestic relations order.
In the case of any distribution before a Participant has separated from
service, a qualified domestic relations order shall not fail to meet the
requirements of section 7.4[b][5] solely because such order requires that
payment of benefits be made to an alternate payee [A] on or after the date
the Participant attains the earliest retirement age, [B] as if the
Participant had retired on the date on which such payment is to begin under
such order, and [C] in any form in which benefits may be paid under the
Plan to the Participant (other than in the form of a
-25-
<PAGE>
qualified joint and survivor annuity with respect to the alternate payee
and his subsequent spouse). Payment of benefits before Termination of
Employment solely by reason of payments to an alternate payee under a
qualified domestic relations order shall not be deemed to be a violation of
Code Section 401(a) or (k). Notwithstanding any other provision of this
Plan, payments to an alternate payee pursuant to a qualified domestic
relations order may be made at any time prescribed by such order without
violating the terms of this Plan or the Code.
[c] Definitions:
-----------
[1] "Alternate payee" means any spouse, former spouse, child, or other
dependent of a Participant who is recognized by a qualified domestic
relations order as having a right to receive all, or a portion of, the
benefits payable under a Plan with respect to such Participant.
[2] "Earliest retirement age" means the earliest of the date on which the
Participant's Account becomes distributable or the date the Participant
attains age 50.
7.5 OTHER RULES FOR DISTRIBUTION OF FUND: Notwithstanding any other provision
------------------------------------
in this Plan, any vested Account which becomes distributable for any reason
shall be distributed pursuant to section 7.2; provided that no amount (taking
into consideration both Company and Employee contributions) may be distributed
to a Participant prior to the later of Normal Retirement Age or age 62 unless
the amount is distributed in a lump sum of $3,500 or less or the Participant
consents to the distribution. Notwithstanding any other provisions of this
Plan, the following distribution rules shall apply:
[a] Before Death: The entire Account of each Participant will be distributed
------------
to him not later than the required beginning date.
[b] After Death: If a Participant dies before distribution of the
-----------
Participant's Account has been made, the total vested Account balance of
the Participant shall be distributed within five years after the death of
the Participant. If the designated Beneficiary is the surviving spouse of
the Participant, the date on which the distributions are required shall not
be earlier than the date on which the Participant would have attained age
70-1/2, and if the surviving spouse dies before the distribution to such
spouse, distributions shall be made as if the surviving spouse were the
Participant.
[c] Required Beginning Date: Required beginning date means April 1 of the
-----------------------
calendar year following the calendar year in which the Participant attains
age 70-1/2.
[d] Designated Beneficiary: Designated Beneficiary means any individual
----------------------
designated as a Beneficiary by the Participant.
-26-
<PAGE>
[e] Treatment Of Payments To Children: Under regulations prescribed by the
---------------------------------
Secretary of Treasury, any amount paid to a child shall be treated as if it
had been paid to the surviving spouse if such amount will become payable to
the surviving spouse upon such child reaching majority (or such other
designated event permitted under regulations).
[f] Spouse, Trust For Benefit Of Spouse, Or Estate As Beneficiary: If
-------------------------------------------------------------
distribution prior to a Participant's death has not commenced and if the
Participant designates his spouse, a trust for the benefit of his spouse,
or his estate as his Beneficiary, the provisions of this paragraph shall
apply (subject to the limitations in this section):
[1] Spouse As Beneficiary: If a Participant designates his spouse as his
---------------------
Beneficiary, upon the death of the Participant the spouse shall receive
the entire Account of the Participant in a lump sum distribution.
[2] QTIP Trust As Beneficiary: If a Participant designates as his
-------------------------
Beneficiary a qualified terminable interest property (QTIP) trust for
the benefit of his spouse, upon the death of the Participant the
trustee of the QTIP trust shall receive the entire Account of the
Participant in a lump sum distribution.
[3] General Power Of Appointment Trust As Beneficiary: If the Participant
-------------------------------------------------
designates as his Beneficiary a trust over which his spouse has a
general power of appointment, upon the death of the Participant the
spouse shall receive the entire Account of the Participant in a lump
sum distribution.
[4] Estate As Beneficiary: If the Participant designates his estate as his
---------------------
Beneficiary with a specific bequest of his income in respect of
decedent to his spouse, upon the death of the Participant the personal
representative of the Participant (or the successor of the personal
representative) shall receive the entire Account of the Participant in
a lump sum distribution.
7.6 WITHDRAWALS:
-----------
[a] Company Contributions: A Participant may withdraw all or any part of his
---------------------
or her Account attributable to Company contributions, if any, including any
earnings, losses, and changes in fair market value of such contributions,
upon attaining age 59 1/2, but only if the Participant is 100% vested in
his or her total Account balance. Such withdrawal upon attaining age 59
1/2 may be made only once in each Plan Year and such withdrawal upon age 59
1/2 may be made without any suspension of Plan participation as a result of
such withdrawal.
[b] Voluntary Contributions: A Participant may request withdrawal of all or
-----------------------
any part of his or her Account attributable to voluntary after-tax
contributions effective at the end of any Plan quarter and such withdrawal
will be distributed within a reasonable period of time after the end of the
Plan quarter if the Participant files a written request with the Plan
Committee at
-27-
<PAGE>
least two weeks before the end of the Plan quarter. In the
event the withdrawal is a result of a serious financial hardship, as
defined in section 7.6[c][1] below, the Plan Committee, in its discretion,
may direct that such withdrawal be made prior to the end of the Plan
quarter. A Participant who has not attained age 59 1/2 and who makes
withdrawal of any portion of his or her voluntary after-tax contributions
under this paragraph [b], including any hardship withdrawal, may not again
contribute to the Trust Fund under section 4.1 until the first calendar
quarter commencing six months after the withdrawal is made, but such
Participant shall receive an allocation of Company contributions, if any,
for the calendar quarter of his or her withdrawal date. Any expenses
attributable to any withdrawal under this section 7.6[b] may be charged to
the Account of the Participant requesting the withdrawal. Vested benefits
under the Plan may not be forfeited because a Participant withdraws his or
her voluntary after-tax contributions.
[c] Salary Reductions: Salary reduction contributions may be withdrawn in the
-----------------
following circumstances:
[1] A Participant may withdraw his or her salary reduction contributions
to this Plan, excluding any earnings on such contributions, upon
serious financial hardship. Serious financial hardship means an
immediate and heavy financial need of the Participant on account of
medical expenses of the Participant or the Participant's dependents,
the purchase or preservation from foreclosure of the Participant's
principal residence (excluding normal mortgage payments), the
prevention of the eviction of the Participant from his or her
principal residence, the payment of the next twelve months of post-
secondary tuition and related educational expenses for the Participant
or the Participant's dependents, or the occurrence of any other event
deemed by the Secretary of the Treasury to create an immediate and
heavy financial need under Income Tax Regulation Section 1.401(k)-
1(d)(2)(iv)(C). No other event shall be considered a serious
financial hardship under the terms of the Plan. A hardship
distribution cannot exceed the amount required to meet the immediate
financial need and cannot be reasonably available to the Participant
from other resources, including insurance reimbursement, reasonable
asset liquidation, cessation of Participant contributions to this
Plan, or borrowing from commercial sources on reasonable terms. The
Company adopts the deemed hardship standards of Income Tax Regulation
Sections 1.401(k)-1(d)(2)(iv), as described above, as the sole means
of hardship withdrawal of salary reduction contributions. If the Plan
Committee determines in accordance with a uniform and
nondiscriminatory policy that serious financial hardship exists, it
may direct the Trustee to distribute the amount requested to the
Participant. A Participant who makes a hardship withdrawal under this
section may not contribute to the Trust Fund under section 4.1 until
the first calendar quarter commencing twelve months after such
hardship withdrawal, but shall receive an allocation of Company
contributions, if any, for the calendar quarter of his or her
withdrawal date. A Participant who makes a hardship withdrawal in a
Plan Year under this section may not make salary reduction
contributions in the next
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<PAGE>
succeeding year in excess of the maximum deferral amounts provided in
section 4.11[a] less the salary reductions made in the year of the
hardship withdrawal. Any expenses attributable to the hardship
withdrawal may be charged to the Account of the Participant requesting
the withdrawal. A Participant requesting a hardship withdrawal under
this paragraph [1] may elect to receive such withdrawal in cash. In
the event of a cash withdrawal election, the Plan Committee will
direct the Trustee to sell the number of shares attributable to the
Participant's salary reduction contributions that will satisfy the
hardship withdrawal and the Participant will receive the cash proceeds
from such sale as a hardship withdrawal.
[2] A Participant may withdraw all or any part of his or her salary
reduction contributions, including any earnings, losses, and changes
in fair market value of such contributions, upon attaining age 59 1/2,
but only if the Participant is 100% vested in his or her total Account
balance. Such withdrawal upon attaining age 59 1/2 will be
distributed as of the end of any Plan quarter if a request to receive
the withdrawal is filed with the Plan Committee at least two weeks
prior to the end of the Plan quarter. A withdrawal upon attaining age
59 1/2 may be made only once in each Plan Year and such withdrawal
upon age 59 1/2 may be made without any suspension of Plan
participation as a result of such withdrawal.
[d] Withdrawals From Other Plans: Any withdrawal from any plan maintained by
----------------------------
any Company which is a member of a group of corporations or trades or
businesses under common control with the Company will be deemed to be a
withdrawal from this Plan for purposes of applying the withdrawal
limitations and suspension of Plan participation provisions of this section
7.6. Common control will be determined pursuant to Code Section 414(b) and
the regulations thereunder.
7.7 ELIGIBLE ROLLOVER DISTRIBUTIONS:
-------------------------------
[a] General Rule: Notwithstanding any provision of the Plan to the contrary
------------
that otherwise would limit a Participant's distribution election under this
Article, a Participant may elect, at the time and in the manner prescribed
by the Plan Committee, to have any portion of an eligible rollover
distribution paid directly to an eligible retirement plan specified by the
Participant in a direct rollover.
[b] Limitations on Direct Rollover Distributions: This Plan will not be
--------------------------------------------
required to make any direct rollover distribution if the total amount to be
distributed to the Participant during the Plan Year is less than $200. If
the amount of the distribution is $500 or less, any directrollover
distribution must consist of the entire distribution amount. The
Participant may elect only one eligible retirement plan to which a direct
rollover distribution will be made.
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<PAGE>
[c] Definitions:
-----------
[1] An "eligible rollover distribution" is any distribution of all or any
portion of the balance to the credit of the Participant, except that
an eligible rollover distribution does not include [A] 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; [B] any
distribution to the extent such distribution is required under Code
Section 401(a)(9); and [C] the portion of any distribution that is not
includible in gross income (determined without regard to the exclusion
for net unrealized appreciation with respect to employer securities).
[2] An "eligible retirement plan" is an individual retirement account
described in Code Section 408(a), an individual retirement annuity
described in Code Section 408(b), an annuity plan described in Code
Section 403(a), or a qualified trust described in Code Section 401(a),
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to a
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
[3] A "distributee" includes a Participant or former Participant. In
addition, the Participant's or former Participant's surviving spouse
and the Participant's or former Participant's spouse or former spouse
who is the alternate payee under a qualified domestic relations order,
as defined in Code Section 414(p), are distributees with regard to the
interest of the spouse or former spouse.
[4] A "direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
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<PAGE>
ARTICLE VIII
FIDUCIARY OBLIGATIONS
---------------------
8.1 GENERAL FIDUCIARY DUTIES: A Fiduciary shall discharge his duties under the
------------------------
Plan solely in the interest of the Participants and the Beneficiaries and for
the exclusive purpose of providing benefits to Participants and to their
Beneficiaries and defraying reasonable expenses of administering the Plan. All
Fiduciaries shall act with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims. Except as authorized by regulations of the
Secretary of Labor, no Fiduciary may maintain the indicia of ownership of any
assets of the Plan outside the jurisdiction of the district courts of the United
States. A Fiduciary shall act in accordance with the documents and instruments
governing the Plan to the extent such documents and instruments are consistent
with the requirements of law.
8.2 ALLOCATION OF FIDUCIARY RESPONSIBILITY: A Named Fiduciary may designate
--------------------------------------
persons other than Named Fiduciaries to carry out fiduciary responsibilities
(other than Trustee responsibilities) under the Plan.
8.3 LIABILITY OF FIDUCIARIES:
------------------------
[a] Extent Of Liability: A Fiduciary who breaches any of the responsibilities,
-------------------
obligations, or duties imposed upon him by this Plan or by the requirements
of law shall be personally liable only [1] to make good to the Plan any
losses resulting from his breach [2] to restore to the Plan any profits the
Fiduciary has made through the use of Plan assets for his personal account,
and [3] to pay those penalties prescribed by law arising from his breach. A
Fiduciary shall be subject to such other equitable or remedial relief as a
court of law may deem appropriate, including removal of the Fiduciary. A
Fiduciary also may be removed for a violation of section 8.8 (prohibition
against certain persons holding certain positions). No Fiduciary shall be
liable with respect to the breach of a fiduciary duty if such breach was
committed before he became a Fiduciary or after he ceased to be a
Fiduciary.
[b] Liability Of Fiduciary For Breach By Co-Fiduciary: A Fiduciary shall be
-------------------------------------------------
liable for a breach of fiduciary responsibility of another Fiduciary of
this Plan, only if he [1] participates knowingly in, or knowingly
undertakes to conceal, an act or omission of the other Fiduciary, and knows
such act or omission by the other Fiduciary is a breach of the other
Fiduciary's duties, [2] enables another Fiduciary to commit a breach, by
his failure to comply with section 8.1 in the administration of the
specific responsibilities which give rise to his status as a Fiduciary, or
[3] has knowledge of a breach of another Fiduciary and does not make
reasonable efforts under the circumstances to remedy the breach.
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<PAGE>
[c] Liability For Improper Delegation Of Fiduciary Responsibility: A Named
-------------------------------------------------------------
Fiduciary who allocates any of his fiduciary responsibilities to any person
or designates any person to carry out any of his fiduciary responsibilities
shall be liable for the act or omission of such person in carrying out the
responsibility only to the extent that the Named Fiduciary fails to satisfy
his general fiduciary duties of section 8.1 with respect to the allocation
or designation, with respect to the establishment or implementation of the
procedure by which he allocates the responsibilities, or in continuing the
allocation or designation. Nothing in this paragraph shall prevent a Named
Fiduciary from being liable if he otherwise would be liable for an act or
omission under paragraph [b].
[d] Fiduciary To Whom Responsibilities Are Allocated: Any person who has been
------------------------------------------------
designated to carry out fiduciary responsibilities under section 8.2 shall
be liable for such responsibilities under this section to the same extent
as any Named Fiduciary.
[e] Liability Insurance And Indemnification: Nothing in this Plan shall
---------------------------------------
preclude a Fiduciary from purchasing insurance to cover liability from and
for his own account. The Company may purchase insurance to cover potential
liability of those persons who serve in a fiduciary capacity with regard to
the Plan or may indemnify a Fiduciary against liability and expenses
reasonably incurred by him in connection with any action to which such
Fiduciary may be made a party by reason of his being or having been a
Fiduciary.
8.4 PROHIBITED TRANSACTIONS: No Fiduciary shall cause the Plan to engage in a
-----------------------
transaction if the Fiduciary knows or should know that the transaction
constitutes a prohibited transaction under law. No disqualified person under
law (other than a Fiduciary acting only as such) shall engage in a prohibited
transaction as prescribed by law.
8.5 RECEIPTS OF BENEFITS BY FIDUCIARIES: Nothing shall prohibit any Fiduciary
-----------------------------------
from receiving any benefit to which he may be entitled as a Participant or
Beneficiary in the Plan, if such benefit is computed and paid on a basis which
is consistent with the terms of the Plan as applied to all other Participants
and Beneficiaries. The determination of any matters affecting the payment of
benefits to any Fiduciary other than the Plan Committee shall be determined by
the Plan Committee. If the Plan Committee is an individual, the determination
of any matters affecting the payment of benefits to the Plan Committee shall be
made by a temporary Plan Committee who shall be appointed by the Board of
Directors for such purpose. If the Plan Committee is a group of individuals,
the determination of any matters affecting the payment of benefits to any
individual Plan Committee member shall be made by the remaining Plan Committee
members without the vote of such individual Plan Committee member. If the
remaining Plan Committee members are unable to agree on any matter affecting the
payment of such benefits, the Board of Directors shall appoint a temporary Plan
Committee to decide the matter.
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<PAGE>
8.6 COMPENSATION AND EXPENSES OF FIDUCIARIES:
----------------------------------------
[a] General Rules: A Fiduciary shall be entitled to receive any reasonable
-------------
compensation for services rendered or for the reimbursement of expenses
properly and actually incurred in the performance of his duties under the
Plan. However, no Fiduciary who already receives full-time pay from a
Company shall receive compensation from the Plan, except for reimbursement
of expenses properly and actually incurred. All compensation and expenses
shall be paid by the Plan, unless the Company, in its discretion, elects to
pay all or any part of such compensation and expenses. In its discretion,
the Plan Committee may direct that all such compensation and expenses be
paid from forfeitures under the Plan or from general Plan assets.
[b] Compensation Of Plan Committee And Plan Administrator: A Plan
-----------------------------------------------------
Administrator who is not a full-time employee of a Company shall be
entitled to such reasonable compensation as the Plan Committee and the Plan
Administrator mutually shall determine. A Plan Committee member who is not
a full-time employee of a Company shall be entitled to such reasonable
compensation as the Company and the Plan Committee mutually shall
determine. Any expenses properly and actually incurred by the Plan
Committee or the Plan Administrator due to a request by a Participant shall
be charged to the Account of the Participant on whose behalf such expenses
are incurred.
[c] Compensation Of Trustee: A Trustee who is not a full-time employee of a
-----------------------
Company shall be entitled to such reasonable compensation for its services
as the Plan Committee and the Trustee mutually shall determine.
[d] Compensation Of Persons Retained Or Employed By Named Fiduciary: The
---------------------------------------------------------------
compensation of all agents, counsel, or other persons retained or employed
by a Named Fiduciary shall be determined by the Named Fiduciary employing
such person, with the Plan Committee's approval, provided that a person who
is a full-time employee of a Company shall receive no compensation from the
Plan.
8.7 SERVICE BY FIDUCIARIES AND DISQUALIFIED PERSONS: Nothing in this Plan
-----------------------------------------------
shall prohibit anyone from serving as a Fiduciary in addition to being an
officer, employee, agent, or other representative of a disqualified person as
defined in the Code.
8.8 PROHIBITION AGAINST CERTAIN PERSONS HOLDING CERTAIN POSITIONS: No person
-------------------------------------------------------------
who has been convicted of a felony shall be permitted to serve as an
administrator, Fiduciary, officer, trustee, custodian, counsel, agent, or
employee of this Plan, or as a consultant to this Plan, unless permitted under
law. The Plan Committee shall ascertain to the extent practical that no
violation of this section occurs. In any event, no person knowingly shall
permit any other person to serve in any capacity which would violate this
section.
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<PAGE>
ARTICLE IX
PLAN ADMINISTRATOR AND PLAN COMMITTEE
-------------------------------------
9.1 APPOINTMENT OF PLAN ADMINISTRATOR AND PLAN COMMITTEE: The Board of
----------------------------------------------------
Directors by resolution shall appoint a Plan Administrator and Plan Committee,
both of whom shall hold office until resignation, death, or removal by the Board
of Directors. If the Board of Directors fails to appoint the Plan Committee or
Plan Administrator, or both, the Board of Directors shall be the Plan Committee,
the Plan Administrator, or both. Any person may serve in more than one
fiduciary capacity, including service as Plan Administrator and Plan Committee
member. Any group of persons appointed by the Board of Directors may serve in
the capacity of Plan Committee, Plan Administrator, or both.
9.2 ORGANIZATION AND OPERATION OF OFFICES OF PLAN ADMINISTRATOR AND PLAN
--------------------------------------------------------------------
COMMITTEE: The Plan Administrator and Plan Committee may adopt such procedures
- ---------
as each deems desirable for the conduct of his respective affairs and may
appoint or employ a secretary or other agents, any of whom may be, but need not
be, an officer or employee of the Company. Any agent may be removed at any time
by the person appointing or employing him.
9.3 INFORMATION TO BE MADE AVAILABLE TO PLAN COMMITTEE AND PLAN ADMINISTRATOR:
-------------------------------------------------------------------------
To enable the Plan Committee and the Plan Administrator to perform all of their
respective duties under the Plan, the Company shall provide the Plan Committee
and the Plan Administrator with access to the following information for each
Employee: [a] name and address, [b] social security number, [c] birthdate, [d]
dates of commencement and Termination of Employment, [e] reason for Termination
of Employment, [f] hours worked during each year, [g] annual Compensation, [h]
Company contributions, if any, and such other information as the Plan Committee
or the Plan Administrator may require. To the extent the information is
available in Company records, a Company shall provide the Plan Committee and
Plan Administrator with access to information relating to each Employee's
Participant contributions, benefits received under the Plan, and marital status.
If such information is not available from the Company records, the Plan
Committee shall obtain such information from the Participants. The Plan
Committee, the Plan Administrator and the Company may rely on and shall not be
liable because of any information which an Employee provides, either directly or
indirectly. As soon as possible following any Participant's death, Total
Disability, retirement, or other Termination of Employment, his Company shall
certify in writing to the Plan Committee and Plan Administrator such
Participant's name and the date and reason for his Termination of Employment.
9.4 RESIGNATION AND REMOVAL OF PLAN ADMINISTRATOR OR PLAN COMMITTEE MEMBER;
-----------------------------------------------------------------------
APPOINTMENT OF SUCCESSORS: Any Plan Administrator or Plan Committee member may
- -------------------------
resign at any time by giving written notice to the Board of Directors, effective
as stated in such notice, otherwise upon receipt of such notice. At any time
the Plan Administrator or any Plan Committee member may be removed by the Board
of Directors without
-34-
<PAGE>
cause. As soon as practical, following the death, resignation, or removal of any
Plan Administrator or Plan Committee member, the Board of Directors shall
appoint a successor by resolution. Written notice of the appointment of a
successor Plan Administrator or successor Plan Committee member shall be given
by the Company to the Trustee. Until receipt by the Trustee of such written
notice, the Trustee shall not be charged with knowledge or notice of such
change.
9.5 DUTIES AND POWERS OF PLAN ADMINISTRATOR--REPORTING AND DISCLOSURE:
-----------------------------------------------------------------
[a] General Requirements: The Plan Administrator shall be responsible for all
--------------------
applicable reporting and disclosure requirements of law. The Plan
Administrator shall prepare, file with the Secretary of Labor, the
Secretary of the Treasury, or the Pension Benefit Guaranty Corporation,
when applicable, and furnish to Plan Participants and Beneficiaries, when
applicable, the following:
[1] summary plan description;
[2] description of modifications and changes;
[3] annual report;
[4] terminal and supplementary reports;
[5] registration statement; and
[6] any other return, report, or document required by law.
[b] Statement Of Benefits Accrued And Vested: The Plan Administrator is to
----------------------------------------
furnish any Plan Participant or Beneficiary who so requests in writing, a
statement indicating, on the basis of the latest available information, the
total benefits accrued and the vested benefits, if any, which have accrued,
or the earliest date on which benefits will become vested. The Plan
Administrator shall furnish a written statement to any Participant who
terminates employment during the Plan Year and is entitled to a deferred
vested benefit under the Plan as of the end of the Plan Year, if no
retirement benefits have been paid with respect to such Participant during
the Plan Year. The statement shall be an individual statement and shall
contain the information required in the annual registration statement which
the Plan Administrator is required to file with the Secretary of the
Treasury. The Plan Administrator shall furnish the individual statement to
the Participant before the expiration of the time prescribed for filing the
annual registration statement with the Secretary of the Treasury.
[c] Inspection Of Documents: The Plan Administrator is to make available for
-----------------------
inspection copies of the plan description and the latest annual report and
the agreements under which the plan was established or is operated. Such
documents shall be available for examination by any
-35-
<PAGE>
Participant or Beneficiary in the principal office of the Plan
Administrator and in such other places as may be necessary to make
available all pertinent information to all Participants. Upon written
request by any Participant or Beneficiary, the Plan Administrator is to
furnish a copy of the latest updated summary plan description, plan
description, and the latest annual report, any terminal report, and any
agreements under which the plan is established or operated. In addition,
the Plan Administrator is to comply with every other requirement imposed on
him by law.
[d] Employment Of Advisers And Persons To Carry Out Responsibilities: The Plan
----------------------------------------------------------------
Administrator may appoint one or more persons to render advice with regard
to any responsibility the Plan Administrator has under the Plan and may
employ one or more persons (other than a Named Fiduciary) to carry out any
of his responsibilities under the Plan.
9.6 DUTIES AND POWERS OF PLAN COMMITTEE--IN GENERAL: The Plan Committee is
-----------------------------------------------
authorized and directed to decide, in its complete discretion, all questions
arising in the administration, interpretation, and application of the Plan and
Trust, including all questions relating to eligibility, vesting, and
distribution, except as may be reserved under this Plan to the Company or its
Board of Directors. The Plan Committee may designate any person (other than the
Plan Administrator or Trustee) to carry out any of the Plan Committee's
fiduciary responsibilities under the Plan (other than a Trustee Responsibility)
and may appoint one or more persons to render advice with regard to any
responsibility the Plan Committee has under the Plan. The Plan Committee from
time to time shall direct the Trustee concerning the payments to be made out of
the Trust Fund pursuant to this Plan. All notices, directions, information, and
other communications from the Plan Committee shall be in writing.
9.7 DUTIES AND POWERS OF PLAN COMMITTEE--KEEPING OF RECORDS: The Plan
-------------------------------------------------------
Committee shall keep a record of all the Plan Committee's proceedings and shall
keep all such books of account, records, and other data as may be necessary or
advisable in its judgment for the administration of this Plan and Trust,
including records to reflect the affairs of this Plan, to determine the amount
of vested and/or forfeitable interests of the respective Participants in the
Trust Fund, and to determine the amount of all benefits payable under this Plan.
The Plan Committee shall maintain separate accounts for each Participant as
provided under section 5.1. Subject to the requirements of law, any person
dealing with the Plan Committee may rely on, and shall incur no liability in
relying on, a certificate or memorandum in writing signed by the Plan Committee
as evidence of any action taken or resolution adopted by the Plan Committee.
9.8 DUTIES AND POWERS OF PLAN COMMITTEE--CLAIMS PROCEDURE:
-----------------------------------------------------
[a] Filing And Initial Determination Of Claim: Any Participant, Beneficiary
-----------------------------------------
or his duly authorized representative may file a claim for a Plan benefit
to which the claimant believes that he is entitled. Such a claim must be in
writing and delivered to the Plan Committee in person or by certified mail,
postage prepaid. Within 90 days after receipt of such claim, the
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<PAGE>
Plan Committee shall send to the claimant by certified mail, postage
prepaid, notice of the granting or denying, in whole or in part, of such
claim unless special circumstances require an extension of time for
processing the claim. In no event may the extension exceed 90 days from the
end of the initial period. If such extension is necessary the claimant will
receive a written notice to this effect prior to the expiration of the
initial 90-day period. The Plan Committee shall have full discretion
pursuant to the Plan to deny or grant a claim in whole or in part. If
notice of the denial of a claim is not furnished in accordance with this
paragraph [a], the claim shall be deemed denied and the claimant shall be
permitted to exercise his right of review pursuant to paragraphs [c] and
[d] of this section.
[b] Duty Of Plan Committee Upon Denial Of Claim: The Plan Committee shall
-------------------------------------------
provide to every claimant who is denied a claim for benefits written notice
setting forth in a manner calculated to be understood by the claimant:
[1] the specific reason or reasons for the denial;
[2] specific reference to pertinent Plan provisions on which the denial is
based;
[3] a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material is necessary; and
[4] an explanation of the Plan's claim review procedure.
[c] Request For Review Of Claim Denial: Within 60 days after receipt by the
----------------------------------
claimant of written notification of the denial in whole or in part of his
claim, the claimant or his duly authorized representative, upon written
application to the Plan Committee in person or by certified mail, postage
prepaid, may request a review of such denial, may review pertinent
documents and may submit issues and comments in writing. Upon its receipt
of the request for review, the Plan Committee shall notify the Board of
Directors of the request.
[d] Claims Reviewer: Upon its receipt of notice of a request for review, the
---------------
Board of Directors shall appoint a person other than a Plan Committee
member to be the claims reviewer. The Plan Committee shall deliver to the
claims reviewer all documents submitted by the claimant and all other
documents pertinent to the review. The claims reviewer shall make a prompt
decision on the review. The decision on review shall be written in a manner
calculated to be understood by the claimant, and shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the decision is based. The decision on review shall be
made not later than 60 days after the Plan Committee's receipt of a request
for a review, unless special circumstances require an extension of time for
processing, in which case a decision shall be rendered not later than 120
days after receipt of a request for review. If such extension is necessary
the claimant shall be given written notice of the extension prior to the
expiration of the initial 60-day period. If notice of the decision on
review is not furnished in accordance with this paragraph [d], the claim
shall be deemed
-37-
<PAGE>
denied and the claimant shall be permitted to exercise his
right to legal remedy pursuant to paragraph [e] of this section.
[e] Legal Remedy: After exhaustion of the claims procedure as provided
------------
under this Plan, nothing shall prevent any person from pursuing any
other legal remedy. Notwithstanding any provision of the Collective
Bargaining Agreement, claims for benefit under this Plan will not be
subject to any mandatory arbitration or mediation provision provided
under the Collective Bargaining Agreement but, instead, any claim for
benefit under this Plan will be made, reviewed, and acted upon solely as
provided in this Plan.
9.9 DUTIES AND POWERS OF PLAN COMMITTEE--FUNDING POLICY: The policy of the
---------------------------------------------------
Company is that this Plan shall be funded primarily with Participant
contributions. Company contributions to the Plan, if any, on behalf of
Participants will be determined solely and exclusively by good faith
negotiations between the Company and the collective bargaining unit covered by
the Collective Bargaining Agreement. The Plan Committee shall determine the
Plan's short-run and long-run financial needs and regularly communicate these
requirements to the appropriate persons. The Plan Committee will determine
whether the Plan has a short-run need for liquidity, (e.g., to pay benefits) or
----
whether liquidity is a long-run goal and investment growth is a more current
need. The Plan Committee shall communicate such information to the Trustee so
that investment policy can be coordinated appropriately with Plan needs.
9.10 DUTIES AND POWERS OF PLAN COMMITTEE--BONDING OF FIDUCIARIES AND PLAN
--------------------------------------------------------------------
OFFICIALS: The Plan Committee shall procure bonds for every Fiduciary of the
- ---------
Plan and every Plan Official, if he handles funds of the Plan, in an amount not
less than 10% of the amount of funds handled and in no event less than $1,000,
except the Plan Committee shall not be required to procure such bonds if:
[a] the person is excepted from the bonding requirement by law, or
[b] the Secretary of Labor exempts the Plan from the bonding requirements.
The bonds shall conform to the requirements of law.
9.11 DUTIES AND POWERS OF PLAN COMMITTEE--QUALIFIED DOMESTIC RELATIONS
-----------------------------------------------------------------
ORDERS: The Plan Committee shall establish reasonable procedures for
- ------
determining the qualification status of a domestic relations order. Such
procedures:
[a] shall be in writing;
[b] shall provide to each person specified in a domestic relations order as
entitled to payment of Plan benefits notification of such procedures
promptly upon receipt by the Plan of the order; and
-38-
<PAGE>
[c] shall permit an alternate payee to designate a representative for receipt
of copies of notices that are sent to the alternate payee.
Within a reasonable period of time after receipt of such order, the Plan
Committee shall determine whether such order is a qualified domestic relations
order and notify the Participant and each alternate payee of such determination.
During any period in which the issue of whether a qualified domestic relations
order is a qualified domestic relations order is being determined, the Plan
Committee shall segregate in a separate account the amounts which would have
been payable to the alternate payee during such period if the order had been
determined to be a qualified domestic relations order. If, within 18 months the
order is determined not to be a qualified domestic relations order or the issue
as to whether such order is a qualified domestic relations order is not
resolved, then the Plan Committee shall pay under the terms of the Plan the
segregated amounts to the person or persons who would have been entitled to such
amounts if there had been no order. If a Plan Fiduciary acts in accordance with
the fiduciary responsibility provisions of ERISA, then the Plan's obligation to
the Participant and each alternate payee shall be discharged to the extent of
any payment made.
9.12 ADVICE TO DESIGNATED FIDUCIARIES: Any Fiduciary designated by the Plan
--------------------------------
Committee or Plan Administrator may appoint with the consent of the Plan
Committee or Plan Administrator, respectively, one or more persons to render
advice with regard to any responsibility such designated Fiduciary has under the
Plan.
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<PAGE>
ARTICLE X
POWERS AND DUTIES OF THE TRUSTEE
--------------------------------
10.1 INVESTMENT OF TRUST FUND:
------------------------
[a] Duties of Trustee: The duty of the Trustee is to hold in trust the
-----------------
funds it receives. The Trustee shall have exclusive authority and
discretion to manage and control the assets of the Plan and to manage,
invest, and reinvest the Trust Fund and the income from it under this
article, without distinction between principal and income, and shall be
responsible only for such sums that it actually receives as Trustee. The
Trustee shall have no duty to collect any sums from the Plan Committee.
[b] Powers of Trustee: The Trustee shall apply the funds it receives
-----------------
primarily to purchase shares of Qualifying Employer Securities, and the
Trustee may invest in Qualifying Employer Securities, up to 100% of the
value of Plan assets, without regard to the diversification requirement or
the prudence requirement to the extent it requires diversification.
Purchases of stock may be made by the Trustee in the open market or by
private purchase, or, if available, from the Company, or as the Trustee
may determine in its sole discretion, provided only that no private
purchase or purchase from the Company may be made at a price greater than
the current market price for Qualifying Employer Securities on the day of
such purchase. The Trustee also may purchase stock from Participants who
receive distributions from this trust, provided that all such purchases
shall be made at the current market price on the day of such purchase. The
Trustee also shall have the power to invest and/or reinvest any and all
money or property of any description at any time held by it and
constituting a part of the Trust Fund, without previous application to, or
subsequent ratification of, any court, tribunal, or commission, or any
federal or state governmental agency and may invest in real property and
all interests in real property, in bonds, notes, debentures, mortgages,
commercial paper, preferred stocks, common stocks, or other securities,
rights, obligations, or property, real or personal, including shares or
certificates of participation issued by regulated investment companies or
regulated investment trusts, shares or units of participation in qualified
common Trust Funds, in qualified pooled funds, or in pooled investment
funds of an insurance company qualified to do business in the state. If
the Trustee is a bank or similar financial institution supervised by the
United States or a state, it may invest Plan assets in its own deposits
(savings accounts and certificates of deposit) if such deposits bear a
reasonable rate of interest.
[c] Diversification and Prudence Requirements: Except to the extent the
-----------------------------------------
Trustee invests in the Qualifying Employer Securities, the Trustee shall
diversify the investments of the Plan to minimize the risk of large
losses, unless under the circumstances it is clearly prudent not to do so.
The Trustee shall act with the care skill, prudence, and diligence under
the
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<PAGE>
circumstances then prevailing that a prudent man acting in a like capacity
and familiar with such matters would use in the conduct of an enterprise
of a like character and with like aims.
10.2 ADMINISTRATIVE POWERS OF THE TRUSTEE: Subject to the requirements imposed
------------------------------------
by law, the Trustee shall have all powers necessary or advisable to carry out
the provisions of this Plan and Trust and all inherent, implied, and statutory
powers now or subsequently provided by law, including specifically the power to
do any of the following:
[a] to cause any securities or other property to be registered and held in
its name as Trustee, or in the name of one or more of its nominees,
without disclosing the fiduciary capacity, or to keep the same in
unregistered form payable to bearer ;
[b] to sell, grant options to sell, exchange, pledge, encumber, mortgage,
deed in trust, or use any other form of hypothecation, or otherwise
dispose of the whole or any part of the Trust Fund on such terms and for
such property or cash, or part cash and credit, as it may deem best; to
retain, hold, maintain, or continue any securities or investments which it
may hold as part of the Trust Fund for such length of time as it may deem
advisable; and generally, in all respects, to do all things and exercise
each and every right, power, and privilege in connection with and in
relation to the Trust Fund as could be done, exercised, or executed by an
individual holding and owning such property in absolute and unconditional
ownership;
[c] to abandon, compromise, contest, and arbitrate claims and demands; to
institute, compromise, and defend actions at law (but without obligation
to do so); in connection with such powers, to employ counsel as the
Trustee shall deem advisable and as approved by the Plan Committee; and to
exercise such powers all at the risk and expense of the Trust Fund;
[d] to borrow money for this trust upon such terms and conditions as the
Trustee shall deem advisable, and to secure the repayment of such by the
mortgage or pledge of any assets of the Trust Fund, provided that the
Trustee may not borrow money to purchase Qualifying Employer Securities;
[e] to vote in person or by proxy any shares of stock or rights held in the
Trust Fund as directed by the Plan Committee; to participate in and to
exchange securities or other property in reorganization, liquidation, or
dissolution of any corporation, the securities of which are held in the
Trust Fund; and
[f] to pay any amount due on any loan or advance made to the Trust Fund, to
charge against and pay from the Trust Fund all taxes of any nature levied,
assessed, or imposed upon the Trust Fund, and to pay all reasonable
expenses and attorney fees necessarily incurred by the Trustee and
approved by the Plan Committee with respect to any of the foregoing
matters.
10.3 ADVICE OF COUNSEL: The Trustee may consult with legal counsel, who may be
-----------------
counsel for the Company or Trustee's own counsel, with respect to the meaning or
construction of the Plan
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<PAGE>
and Trust or Trustee's obligations or duties. The Trustee shall be protected
from any responsibility with respect to any action taken or omitted by it in
good faith pursuant to the advice of such counsel, to the extent permitted by
law.
10.4 RECORDS AND ACCOUNTS OF THE TRUSTEE: The Trustee shall keep all such
-----------------------------------
records and accounts which may be necessary in the administration and conduct of
this trust. The Trustee's records and accounts shall be open to inspection by
the Company, the Plan Committee, and the Plan Administrator, at all reasonable
times during business hours. All income, profits, recoveries, contributions,
forfeitures, and any and all moneys, securities, and properties of any kind at
any time received or held by the Trustee shall be held for investment purposes
as a commingled Trust Fund. Separate accounts or records may be maintained for
operational and accounting purposes, but no such account or record shall be
considered as segregating any funds or property from any other funds or property
contained in the commingled fund, except as otherwise provided. After the close
of each year of the trust, the Trustee shall render to the Company and the Plan
Committee a statement of assets and liabilities of the Trust Fund for such year.
10.5 APPOINTMENT, RESIGNATION, REMOVAL, AND SUBSTITUTION OF TRUSTEE: The
--------------------------------------------------------------
Board of Directors by resolution shall appoint a Trustee or Trustees, each of
which shall hold office until resignation or removal by the Board of Directors.
The Trustee may resign at any time upon 30 days' written notice to the Company.
The Trustee may be removed at any time by the Company upon written notice to the
Trustee with or without cause. Upon resignation or removal of the Trustee, the
Company, by action of its Board of Directors, shall appoint a successor trustee
which shall have the same powers and duties as are conferred upon the Trustee
appointed under this Plan. The resigning or removed Trustee shall deliver to its
successor trustee all property of the Trust Fund, less a reasonable amount
necessary to provide for its compensation, expenses, and any taxes or advances
chargeable or payable out of the Trust Fund. If the Trustee is an individual,
death shall be treated as a resignation, effective immediately. If any corporate
Trustee at any time shall be merged, or consolidated with, or shall sell or
transfer substantially all of its assets and business to another corporation,
whether state or federal, or shall be reorganized or reincorporated in any
manner, then the resulting or acquiring corporation shall be substituted for
such corporate Trustee without the execution of any instrument and without any
action upon the part of the Company, any Participant or Beneficiary, or any
other person having or claiming to have an interest in the Trust Fund or under
the Plan.
10.6 APPOINTMENT OF TRUSTEE--ACCEPTANCE IN WRITING: The Trustee shall accept
---------------------------------------------
its appointment as soon as practical by executing this Plan or by delivering a
signed document to the Company, a copy of which shall be sent to the Plan
Committee by the Trustee. The Board of Directors shall appoint a new Trustee if
the Trustee fails to accept its appointment in writing.
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<PAGE>
ARTICLE XI
CONTINUANCE, TERMINATION, AND AMENDMENT OF PLAN AND TRUST
---------------------------------------------------------
11.1 TERMINATION OF PLAN: The right is reserved to the Company, by action of
-------------------
its Board of Directors, to terminate this Plan in whole or in part at any time,
unless such termination is prohibited by the Collective Bargaining Agreement;
provided, however, that the Company, in its discretion, may terminate the Plan
in the event of the dissolution, consolidation, or merger of the Company or the
sale by the Company of substantially all of its assets. The termination of this
Plan in no event shall have the effect of revesting any part of the Trust Fund
in the Company.
11.2 TERMINATION OF TRUST: The trust created by execution of this agreement
--------------------
shall continue in full force and effect for such time as may be necessary to
accomplish the purposes for which it is created, unless sooner terminated and
discontinued by the Company's Board of Directors. Notice of such termination
shall be given to the Trustee by the Plan Committee in the form of an instrument
in writing executed by the Company pursuant to the action of its Board of
Directors, together with a certified copy of the resolution of the Board of
Directors to that effect. In its discretion the Plan Committee may receive a
favorable determination letter from the Internal Revenue Service stating that
the prior qualified status of the Plan has not been affected by such
termination. Such termination shall take effect as of the date of the delivery
of the notice of termination and favorable determination letter, if obtained, to
the Trustee. The Plan Administrator shall file such terminal reports as are
required in Article IX.
11.3 MERGER, CONSOLIDATION, OR TRANSFER OF ASSETS OR LIABILITIES OF THE PLAN:
-----------------------------------------------------------------------
The Board of Directors of the Company may merge or consolidate this Plan with
any other plan or may transfer the assets or liabilities of the Plan to any
other plan if each Participant in the plan (if the plan then terminated) would
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). If any merger, consolidation, or transfer of assets or liabilities
occurs, the Plan Administrator shall file such reports as are required in
Article IX.
11.4 DISTRIBUTION OF TRUST FUND ON TERMINATION OF TRUST: If the trust is
--------------------------------------------------
terminated under this article, the Trustee shall determine the value of the
Trust Fund and of the respective interests of the Participants and Beneficiaries
under Article V as of the business day next following the date of such
termination. The value of the Account of each respective Participant or
Beneficiary in the Trust Fund shall be vested in its entirety as of the date of
the termination of the Plan. The Trustee then shall transfer to each
Participant or Beneficiary the net balance of the Participant's Account unless
the Plan Committee directs the Trustee to retain the assets and pay them under
the terms of this Plan as if no termination had occurred.
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<PAGE>
11.5 AMENDMENTS TO PLAN AND TRUST: At any time the Company may amend this
----------------------------
Plan and Trust by action of its Board of Directors, provided that no amendment
shall cause the Trust Fund to be diverted to purposes other than for the
exclusive benefit of the Participants and their Beneficiaries and provided
further that the provisions of the Plan that satisfy the requirements of
subparagraph (C)(2)(ii)(A) under Rule 16b-3 promulgated under Section 16 of the
Securities Exchange Act of 1934, as amended, shall not be amended more
frequently than once every six months, unless otherwise necessary to comply with
changes in the Code, ERISA, or the rules and regulations promulgated thereunder.
No amendment shall decrease the vested interest of any Participant nor shall any
amendment increase the contribution of any Company or Participant to the Plan.
If an amended vesting schedule is adopted, any Participant who has three or more
Years of Service at the later of the date the amendment is adopted or becomes
effective and who is disadvantaged by the amendment, may elect to remain under
the Plan's prior vesting schedule. Such election must be made within a period
established by the Plan Committee, in accordance with applicable regulations,
and on a form provided by and delivered to the Plan Committee. No amendment to
the Plan (including a change in the actuarial basis for determining optional
benefits) shall be effective to the extent that it has the effect of decreasing
a Participant's accrued benefit. For purposes of this paragraph, a Plan
amendment that has the effect of [a] eliminating or reducing an early retirement
benefit or a retirement-type subsidy, or [b] eliminating an optional form of
benefit, with respect to benefits attributable to service before the amendment
will be treated as reducing accrued benefits. No amendment shall discriminate in
favor of employees who are officers, shareholders, or Highly Compensated
Employees. Notwithstanding anything in this Plan and Trust to the contrary, the
Plan and Trust may be amended at any time to conform to the provisions and
requirements of federal and state law with respect to employees' trusts or any
amendments to such laws or regulations or rulings issued pursuant to them. No
such amendment shall be considered prejudicial to the interest of any
Participant or Beneficiary under this Plan.
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<PAGE>
ARTICLE XII
MISCELLANEOUS
-------------
12.1 BENEFITS TO BE PROVIDED SOLELY FROM THE TRUST FUND: All benefits
--------------------------------------------------
payable under this Plan shall be paid or provided solely from the Trust Fund,
and no Company assumes liability or responsibility for payment of benefits.
12.2 NOTICES FROM PARTICIPANTS TO BE FILED WITH PLAN COMMITTEE: Whenever
---------------------------------------------------------
provision is made in the Plan that a Participant may exercise any option or
election or designate any Beneficiary, the action of each Participant shall be
evidenced pursuant to procedures promulgated by the Plan Committee. If a form
is furnished by the Plan Committee any for such purpose, a Participant shall
give written notice of his exercise of any option or election or of his
designation of any Beneficiary on the form provided for such purpose. Written
notice shall not be effective until received by the Plan Committee.
12.3 TEXT TO CONTROL: The headings of articles and sections are included
---------------
solely for convenience of reference. If any conflict between any heading and the
text of this Plan and Trust exists, the text shall control.
12.4 SEVERABILITY: If any provision of this Plan and Trust is illegal or
------------
invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions. On the contrary, such remaining provisions shall be fully
severable, and this Plan and Trust shall be construed and enforced as if such
illegal or invalid provisions never had been inserted in the agreement.
12.5 JURISDICTION: This Plan shall be construed and administered under
------------
the laws of the State of Colorado when the laws of that jurisdiction are not in
conflict with federal substantive law.
12.6 PLAN FOR EXCLUSIVE BENEFIT OF PARTICIPANTS; REVERSION PROHIBITED: This
----------------------------------------------------------------
Plan and Trust has been established for the exclusive benefit of the
Participants and their Beneficiaries. Under no circumstances shall any funds
contributed to or held by the Trustee at any time revert to or be used by or
enjoyed by a Company except to the extent permitted by Article IV.
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<PAGE>
This Plan and Trust has been approved by the Board of Directors of the
Company and is accepted by the Plan Administrator and the Trustees as of the
dates indicated below.
PLAN ADMINISTRATOR
______________________________________
Date:_________________________________
TRUSTEE
______________________________________
Date:_________________________________
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS AND STOCKHOLDERS
TELE-COMMUNICATIONS, INC.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Tele-Communications, Inc. of our reports dated March 27, 1995, relating
to the consolidated balance sheets of Tele-Communications, Inc. and subsidiaries
as of December 31, 1994 and 1993, and the related consolidated statements of
operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1994, and all related schedules, which
reports appear in the December 31, 1994 annual report on Form 10-K of Tele-
Communications, Inc. Our reports refer to the adoption of Statement of Financial
Accounting Standards No. 115, "Accounting for Investments in Certain Debt and
Equity Securities," in 1994.
KPMG PEAT MARWICK LLP
Denver, Colorado
June 28, 1995
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS AND STOCKHOLDERS
LIBERTY MEDIA CORPORATION:
We consent to incorporation by reference in the registration statement on Form
S-8 of Tele-Communications, Inc. of our report dated March 18, 1994, relating to
the consolidated balance sheets of Liberty Media Corporation and subsidiaries
(Successor) as of December 31, 1993 and 1992, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the years
ended December 31, 1993 and 1992 and the period from April 1, 1991 to December
31, 1991 (Successor Periods) and the consolidated statements of operations,
stockholders' equity, and cash flows of Liberty Media (a combination of certain
programming interests and cable television assets of TCI Communications, Inc.
(formerly Tele-Communications, Inc.)) (Predecessor) for the period from January
1, 1991 to March 31, 1991 (Predecessor Periods), which report appears in the
current report on Form 8-K of TCI Communications, Inc., dated April 6, 1994, as
amended. Our report refers to a change in the method of accounting for income
taxes in 1993.
KPMG PEAT MARWICK LLP
Denver, Colorado
June 28, 1995
<PAGE>
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS AND SHAREHOLDERS OF
TELEWEST COMMUNICATIONS PLC
We consent to incorporation by reference in the registration statement on Form
S-8 of Tele-Communications, Inc. of our report dated 21 March 1995, relating to
the consolidated balance sheet of TeleWest Communications plc and subsidiaries
as of 31 December 1994 and 1993, and the related consolidated statements of
operations and cash flows for each of the years in the three year period ended
31 December 1994, which report appears in the 31 December 1994 annual report on
Form 10-K of Tele-Communications, Inc., as amended.
KPMG
London, England
June 28, 1995
<PAGE>
EXHIBIT 23.4
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS
QVC, INC.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Tele-Communications, Inc. of our report dated March 5, 1994, relating to
the consolidated balance sheets of QVC, Inc. and subsidiaries as of January 31,
1994 and 1993, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the three-year
period ended January 31, 1994, which report appears in the current report on
Form 8-K of Tele-Communications, Inc. dated February 3, 1995, as amended.
Our report refers to a change in the method of accounting for income taxes.
KPMG PEAT MARWICK LLP
Philadelphia, Pennsylvania
June 28, 1995
<PAGE>
EXHIBIT 23.5
------------
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
THE BOARD OF DIRECTORS AND SHAREHOLDERS OF
TCI INTERNATIONAL HOLDINGS, INC.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Tele-Communications, Inc. of our report dated March 24, 1995, relating to
the combined balance sheets of Cablevision (A Combination of certain cable
television assets of Cablevision S.A., Televisora Belgrano S.A., Construred S.A.
and Univent's S.A., as defined in Note 1) as of December 31, 1994 and 1993, and
the related combined statements of operations and deficit and cash flows for
each of the years in the three-year period ended December 31, 1994, which report
appears in the current report on Form 8-K of Tele-Communications, Inc., dated
April 11, 1995.
KPMG FINSTERBUSCH PICKENHAYN SIBILLE
JOSE ALBERTO SCHUSTER,
PARTNER
Buenos Aires, Argentina
June 28, 1995
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-8 of Tele-
Communications, Inc. of our report dated February 4, 1994, relating to the
consolidated financial statements of TeleCable Corporation which appears on page
12 of the TCI Communications, Inc. and Tele-Communications, Inc. Current Report
on Form 8-K dated August 26, 1994.
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
Norfolk, Virginia
June 30, 1995
