<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 11, 1995
Registration No. 33-__________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
STEWART INFORMATION SERVICES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-1677330
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1980 Post Oak Boulevard
Houston, Texas 77056
(Address of Principal Executive Offices) (Zip Code)
----------------------------
STEWART TITLE GUARANTY COMPANY SALARY DEFERRAL PLAN AND TRUST
(Full Title of the Plan)
----------------------------
MAX CRISP
VICE PRESIDENT-FINANCE, SECRETARY AND TREASURER
STEWART INFORMATION SERVICES CORPORATION
1980 Post Oak Boulevard
Houston, Texas 77056
(713) 625-8100
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
----------------------------
Copy to:
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN
Attention: Stephen M. Mason
1200 Smith Street, Suite 1400
Houston, Texas 77002
----------------------------
<TABLE>
<CAPTION>
==============================================================================================================
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered(1) Offering Price per Aggregate Offering Registration
Registered Share(2) Price(2) Fee(2)
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 249,825 $18.88 $4,716,696 $1,626.45
$1.00 par value shares
per share
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) The proposed maximum offering price is estimated pursuant to
Rule 457(h) solely for the purpose of calculating the registration
fee and is based upon the average of the high and low sales prices of a
share of the Registrant's Common Stock on September 8, 1995 as
reported on the New York Stock Exchange.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information specified by Item 1 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended, and the introductory note to Part I of Form
S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The information specified by Item 2 of Part I of Form S-8 is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933, as amended, and the introductory note to Part I of Form
S-8.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents set forth below are hereby incorporated by reference in
this Registration Statement. All documents subsequently filed by Stewart
Information Services Corporation, a Delaware corporation (the "Company") and
the Stewart Title Guaranty Company Salary Deferral Plan and Trust (the "Plan")
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment that indicates that the securities offered hereby have
been sold or which deregisters the securities offered hereby then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof commencing on the respective dates on which
such documents are filed.
(1) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994.
(2) All other reports filed by the Company or the Plan
pursuant to Section 13(a) or 15(d) of the Exchange Act since the end
of the fiscal year covered by the Annual Report referred to in (1)
above.
(3) The description of the Company's common stock, $1.00
par value (the "Common Stock"), contained in a registration statement
on Form 8-A filed pursuant to the Exchange Act, including any
amendment or report filed for the purpose of updating such
description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules of the Company as of December
31, 1994 and 1993, and for each of the years in the three-year period ended
December 31, 1994, incorporated by reference in this Registration Statement
have been so incorporated in reliance upon the reports of the following: KPMG
Peat Marwick LLP; Price Waterhouse LLP; Perry-Smith & Co.; Ernst & Young LLP;
Doshier, Pickens & Francis, P.C.; Jim S. Walker; Denton Wolter & Company, P.C.;
Fancher & Company; M. Timothy O'Roark; Grant Bennett Accountants; McGee, Haza &
Co.; Aaronson, White & Company; Edgar, Kiker & Cross, L.L.P.; and Ginny Sanders
May, independent certified public accountants, incorporated by reference
herein, and given on the authority of said firms as experts in accounting and
auditing. The validity of the issuance of interests in the Plan registered
hereby will be passed on by Chamberlain, Hrdlicka, White, Williams & Martin,
counsel to the Company.
II-1
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Eleventh of the Company's Certificate of Incorporation
provides that no director of the Company will be personally liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty
by such directors as a director; provided, however, that such article will not
eliminate or limit liability of a director to the extent provided by applicable
law (i) for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law, (iii) under Section
174 of the General Corporation Law of the State of Delaware (the "GCL"), or
(iv) for any transaction from which the director derived an improper personal
benefit. The effect of this provision is to eliminate the personal liability
of a director to the Company and its stockholders for monetary damages for
breach of his fiduciary duty as a director to the extent allowed under the GCL.
If a director were to breach such duty in performing his duties as a director,
neither the Company nor the stockholders could recover monetary damages from
the director, and the only course of action available to the Company's
stockholders would be equitable remedies such as an action to enjoin or rescind
a transaction involving a breach of fiduciary duty. To the extent certain
claims against directors are limited to equitable remedies, Article Fourteenth
may reduce the likelihood of derivative litigation and may discourage
stockholders or management from initiating litigation against directors for
breach of their fiduciary duty. Additionally, equitable remedies may not be
effective in many situations. If a stockholder's only remedy is to enjoin
completion of the Board of Directors' action, this remedy would be ineffective
if the stockholder does not become aware of a transaction until after it has
been completed. In such a situation, it is possible that the stockholders and
the Company would not have an effective remedy against the directors.
Section 145 of the General Corporation Law of the State of Delaware
empowers the Company to, and the Bylaws of the Company provide that it shall,
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding by reason of
the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against 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
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Company, no indemnification may
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine that such person is fairly and reasonably entitled to
indemnity for proper expenses.
Delaware corporations are also authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot
II-2
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indemnify its directors and officers. The Company currently has in effect a
directors' and officers' liability insurance policy providing coverage for each
director and officer in his capacity as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Company, as amended (Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1987, is incorporated by reference herein).
4.2 Bylaws of the Company, as amended.
4.3 The Stewart Title Guaranty Company Salary Deferral Plan and Trust, the Fifth Amendment and Restatement
thereof.
4.4 Sixth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.5 Seventh Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.6 Eighth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.7 Ninth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.8 Tenth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.9 Eleventh Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.10 Twelfth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
5.1 Opinion of Messrs. Chamberlain, Hrdlicka, White, Williams & Martin regarding the legality of the
securities being registered.
23.1 Consents of independent accountants.
</TABLE>
II-3
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<TABLE>
<S> <C>
23.2 Consent of Counsel, Chamberlain, Hrdlicka, White, Williams & Martin, is set forth in the opinion
included in the Registration Statement as Exhibit 5.
24.1 Power of Attorney (contained on page II-6 hereof).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The Company 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 (the "Act");
(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.
(2) That, for the purpose of determining any liability
under the Act, 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 Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")
and each filing of the Plan's Annual Report pursuant
to Section 15(d) of the Exchange Act 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.
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(5) Insofar as indemnification for liabilities arising
under the Act may be permitted to directors, officers
and controlling persons of the Company pursuant to
the foregoing provisions, or otherwise, the Company
has been advised that in the opinion of the
Securities and Exchange Commission such
indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or
controlling person of the Company in the successful
defense of any action, suit or proceeding) is
asserted by such director, officer or controlling
person in connection with the securities being
registered, the Company will, unless in the opinion
of its counsel the matter has been settled by
controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as
expressed in the Act and will be governed by the
final adjudication of such issue.
(6) The Company hereby undertakes that it will submit or
has submitted the Plan and any amendments thereto to
the Internal Revenue Service (the "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(a) of the Internal Revenue Code.
II-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, and State of Texas, as of the 11th day
of September, 1995.
STEWART INFORMATION SERVICES
CORPORATION
By: /s/ MAX CRISP
Max Crisp, Vice President-Finance,
Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Max Crisp and Tannie L. Pizzitola, Jr.,
and each of them, to act as his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all 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 and necessary to be done, 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 his substitute or substitutes or
all of them may legally do or cause to be done by virtue thereof.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ CARLOSS MORRIS Co-chief executive officer September 11, 1995
CARLOSS MORRIS and Director (principal
executive officer)
/s/ STEWART MORRIS Co-chief executive officer September 11, 1995
STEWART MORRIS and Director (principal
executive officer)
/s/ C. M. HUDSPETH Director September 11, 1995
C. M. HUDSPETH
</TABLE>
II-6
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<TABLE>
<S> <C> <C>
/s/ NITA B. HANKS Director September 11, 1995
NITA B. HANKS
/s/ MAX CRISP Vice President - Finance, September 11, 1995
MAX CRISP Secretary, Treasurer and
Director (principal financial
and accounting officer)
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, the
trustee (or other persons who administer the Plan) have duly caused the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Houston, State of Texas, on September 11,
1995.
TRUSTEE OF STEWART TITLE
GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
First Interstate Bank of Texas,
N.A., Trustee
By: /s/ JOHN J. KELLEY
Name: Vice President & Trust Officer
Title: John J. Kelley
II-7
<PAGE> 10
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
4.1 Certificate of Incorporation of the Company, as amended (Exhibit 3.1 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1987, is incorporated by reference herein).
4.2 Bylaws of the Company, as amended.
4.3 The Stewart Title Guaranty Company Salary Deferral Plan and Trust, the Fifth Amendment and Restatement
thereof.
4.4 Sixth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.5 Seventh Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.6 Eighth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.7 Ninth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.8 Tenth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.9 Eleventh Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
4.10 Twelfth Amendment of the Stewart Title Guaranty Company Salary Deferral Plan and Trust.
5.1 Opinion of Messrs. Chamberlain, Hrdlicka, White, Williams & Martin regarding the legality of the
securities being registered.
23.1 Consents of independent accountants.
</TABLE>
<PAGE> 11
<TABLE>
<S> <C>
23.2 Consent of Counsel, Chamberlain, Hrdlicka, White, Williams & Martin, is set forth in the opinion
included in the Registration Statement as Exhibit 5.
24.1 Power of Attorney (contained on page II-6 hereof).
</TABLE>
<PAGE> 1
EXHIBIT 4.2
BY-LAWS
OF
STEWART INFORMATION SERVICES CORPORATION
ARTICLE I
OFFICES
SECTION 1.1. Registration office. The registered office of the corporation
in the State of Delaware shall be in the City of Wilmington, County of New
Castle, and the name of its registered agent shall be The Corporation Trust
Company.
SECTION 1.2. Other offices. The corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. Place of Meeting. All meetings of stockholders for the
election of directors shall be held at such place, either within or without the
State of Delaware, as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting.
SECTION 2.2. Annual Meeting. The annual meeting of stockholders shall be
held at such date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting,
SECTION 2.3. Voting List. The officer who has charge of
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stock ledger of the corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice,
or if not so specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
SECTION 2.4. Special Meeting. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chairman of the Board or by
the President or by the Board of Directors or by written order of a majority of
the directors and shall be called by the President or the Secretary at the
request in writing of stockholders owning a majority in amount of the entire
capital stock of the corporation issued and outstanding and entitled to vote.
Such request shall state the purpose of the proposed meeting. The Chairman of
the Board or the President or directors so calling, or the stockholders so
requesting, any such meeting shall fix the time and any place,
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either within or without the State of Delaware, as the place for holding such
meeting.
SECTION 2.5. Notice of Meeting. Written notice of the annual, and each
special meeting of stockholders, stating the time, place and purpose or purposes
thereof, shall be given to each stockholder entitled to vote thereat, not less
than ten nor more than 60 days before the meeting.
SECTION 2.6. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at any meeting of stockholders for the
transaction of business except at each election of directors and as otherwise
provided by statute or by the Certificate of Incorporation. At each meeting of
or the election of directors the holders of a majority of the Common Stock and
the holders of a majority of the Class B Common Stock, issued and outstanding of
each such class, and entitled to vote thereat, present in person or represented
by proxy shall constitute a quorum. Notwithstanding the other provisions of the
Certificate of Incorporation or these by-laws, the holders of a majority of the
shares of capital stock entitled to vote thereat, present in person or
represented by proxy, whether or not a quorum is present, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be
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given to each stockholder of record entitled to vote at the meeting. At such
adjourned meeting at which a quorum shall be present or represented any business
may be transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.7. Voting.
(a) Unless express provision of applicable statute, of the Certificate of
Incorporation or of these by-laws shall provide to the contrary, at each meeting
of stockholders each holder of capital stock of the Corporation shall be
entitled to cast one vote for each share of capital stock registered in his or
its name on the books of the Corporation on the record date for determination of
stockholders entitled to notice of, and to vote at, such meeting on each matter
properly submitted to stockholders at each meeting. If any stockholder entitled
to vote at any meeting shall be present at such meeting and such stockholder
shall abstain, whether in person or by proxy, from casting the vote or votes
which he or it is entitled to cast at such meeting, such abstention shall not
affect the determination of the presence of a quorum at such meeting. For all
purposes of these by-laws, an abstention from voting on any matter properly
submitted to stockholders at a meeting shall not be considered a vote cast for
or against such matter.
(b) Each stockholder having the right to vote shall be entitled to vote in
person or by proxy appointed by an instrument in writing subscribed by
stockholder, bearing a date not more than three years prior to voting, unless
such instrument provides for a
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longer period, and filed with the Secretary of the Corporation before, or at the
time of, the meeting. If such instrument shall designate two or more persons to
act as proxies, unless such instrument shall provide to the contrary, a majority
of such persons present at any meeting at which their powers thereunder are to
be exercised shall have and may exercise all of the powers of voting or giving
consents thereby conferred, or if only one be present, then such powers may be
exercised by that one, or if any even number attend and a majority do not agree
on any particular issue, each proxy so attending shall be entitled to exercise
such powers in respect to the same portion of the shares as he is of the proxies
representing such shares.
(c) When a quorum is present at any meeting of stockholders, a majority of
the shares voted in person or by proxy shall decide any question brought before
such meeting, unless the question is one upon which, by express provision of
applicable statute, of the Certificate of Incorporation or of these by-laws, a
different vote is required, in which case such express provision shall govern
and control the decision of such question.
(d) When a quorum is present at any meeting of stockholders at which the
Board of Directors is to be elected, the stockholders shall elect such directors
by a plurality of the shares voted in person or by proxy. All votes for election
of directors that are cast in person shall be cast by written ballot.
SECTION 2.8. Consent of Stockholders. Whenever the vote
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of stockholders at a meeting thereof is required or permitted to be taken for or
in connection with any corporate action by any provision of the statutes, the
meeting and vote of stockholders may be dispensed with if all the stockholders
who would have been entitled to vote upon the action if such meeting were held
shall consent in writing to such corporate action being taken; or if the
Certificate of Incorporation authorizes the action to be taken with the written
consent of the holders of less than all the stock who would have been entitled
to vote upon the action if a meeting were held, then on the written consent of
the stockholders having not less than such percentage of the number of votes as
may be authorized in the Certificate of Incorporation; provided that in no case
shall the written consent be by the holders of stock having less than the
minimum percentage of the vote required by statute for the proposed corporate
action, and provided that prompt notice must be given to all stockholders of the
taking of corporate action without a meeting and by less than unanimous consent.
SECTION 2.9. Voting of Stock of Certain Holders. Shares standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the by-laws of such corporation may prescribe, or in the
absence of such provision, as the Board of Directors of such corporation may
determine. Shares standing in the name of a deceased person may be voted by the
executor or administrator of such deceased person, either in person or by proxy.
Shares standing in the name of a guardian, conservator or trustee may be voted
by such fiduciary, either in
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person or by proxy, but no such fiduciary shall be entitled to vote shares held
in such fiduciary capacity without a transfer of such shares into the name of
such fiduciary. Shares standing in the name of a receiver may be voted by such
receiver. A stockholder whose shares are pledged shall be entitled to vote such
shares, unless in the transfer by the pledgor on the books of the corporation,
he has expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or his proxy, may represent the stock and vote thereon.
SECTION 2.10. Treasury Stock. The corporation shall not vote, directly or
indirectly, shares of its own stock owned by it; and such shares shall not be
counted in determining the total number of outstanding shares.
SECTION 2.11. Fixing Record Date. The Board of Directors may fix in advance
a date, not exceeding 60 days preceding the date of any meeting of stockholders,
or the date for payment of any dividend or distribution, or the date for the
allotment of rights, or the date when any change, or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining a
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such care such stockholders and only such
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stockholders as shall be stockholders of record on the date so fixed shall be
entitled to such notice of, and to vote at, any such meeting and any adjournment
thereof, or to receive payment of such dividend or distribution, or to receive
such allotment of rights, or to exercise such rights, or to give such consent,
as the case may be, notwithstanding any transfer of any stock an the books of
the corporation after any such record date fixed as aforesaid.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. Powers. The business and affairs of the corporation shall be
managed by its Board of Directors, which may exercise all such powers of the
corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these by-laws directed or required to be
exercised or done by the stockholders.
SECTION 3.2. Number, Election and Term. The number of directors which shall
constitute the whole Board shall be NINE. Unless such number if fixed by express
provision of the statutes or the Certificate of Incorporation, in which case
such express provision shall govern and control, the number of directors shall
from time to time be fixed and determined by the directors and shall be set
forth in the notice of any meeting of stockholders held for the purpose of
electing directors. The directors shall be elected at the annual meeting of
stockholders, except as provided in Section 3.3, and each director elected shall
hold office until his successor shall be elected and shall qualify. Directors
need
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not be residents of Delaware or stockholders of the corporation.
SECTION 3.3. Vacancies, Additional Directors and Removal From Office. if
any vacancy occurs in the members of the Board of Directors elected by the
holders of Common stock caused by death, resignation, retirement,
disqualification or removal from office of any such director, or otherwise, or
if any new directorship to be elected by the holders of Common stock is created
by an increase in the authorized number of directors, a majority of the
directors then in office elected by the holders of Common stock, though less
than a quorum, or a sole remaining such director, may choose a successor or fill
the newly created directorship; and a director so chosen shall hold office until
the next annual election and until his successor shall be duly elected and shall
qualify, unless sooner displaced, if any vacancy occurs in the members of the
Board of Directors elected by the holders of Class B Common stock caused by
death, resignation, retirement, disqualification or removal from office of any
such director, or otherwise, or if any new directorship to be elected by the
holders of Class B Common stock is created by an increase in the authorized
number of directors, a majority of the directors then in office elected by the
holders of Class B Common stock, though less than a quorum, or a sole remaining
such director, may choose a successor or fill the newly created directorship;
and a director so chosen shall hold office until the next annual election and
until his successor shall be duly elected and shall qualify, unless sooner
displaced. A director may be removed either for or without cause at any special
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meeting of stockholders duly called and held for such purpose except that only
the stockholders entitled to vote for any such director may vote for the removal
of such director.
SECTION 3.4. Regular Meeting. A regular meeting of the Board of Directors
shall be held each year, without other notice than this by-law, at the place of,
and immediately following, the annual meeting of stockholders; and other regular
meetings of the Board of Directors shall be held each year, at such time and
place as the Board of Directors may provide, by resolution, either within or
without the State of Delaware, without other notice than such resolution.
SECTION 3.5. Special Meeting. A special meeting of the Board of Directors
may be called by the Chairman of the Board or by the President and shall be
called by the Secretary on the written request of any two directors. The
Chairman or President so calling, or the directors so requesting, any such
meeting shall fix the time and any place, either within or without the State of
Delaware, as the place for holding such meeting.
SECTION 3.6. Notice of Special Meeting. Written notice of special meetings
of the Board of Directors shall be given to each director at least 48 hours
prior to the time of such meeting; provided however, in instances where notice
of such meeting is given orally, by telephone or telegraph, such notice need be
given only 24 hours prior to such meeting. Any director may waive notice of any
meeting. The attendance of a director at any meeting shall constitute a waiver
of notice of such meeting for the purpose of
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objecting to the transaction of any business because the meeting is not lawfully
called or convened. Neither the business to be transacted at, nor the purpose
of, any special meeting of the Board of Directors need be specified in notice or
waiver of notice of such meeting, except that notice shall be given of any
proposed amendment to the by-laws if it is to be adopted at any special meeting
or with respect to any other matter where notice is required by statute.
SECTION 3.7. Quorum and Vote Required. Six of the nine members of the Board
of Directors shall constitute a quorum for the transaction of business at any
meeting of the Board of Directors, and the act of all of the directors shall be
the act of the Board of Directors, except as may be otherwise specifically
provided by statute, by the Certificate of Incorporation or by these by-laws. If
a quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
SECTION 3.8. Action Without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof as provided in Article IV of these by-laws, may be taken without a
meeting, if a written consent thereto is signed by all members of the Board or
of such committee, as the case may be, and such written consent is filed with
the minutes of proceedings of the Board or committee.
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SECTION 3.9. Compensation. Directors, as such, shall not be entitled to any
stated salary for their services unless voted by the stockholders or the Board
of Directors; but by resolution of the Board of Directors, a fixed sum and
expenses of attendance, if any, may be allowed for attendance at each regular or
special meeting of the Board of Directors or any meeting of a committee of
directors. No provision of these by-laws shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor.
SECTION 3.10. Nomination of Directors to be Elected by Holders of Common
Stock. Only persons who are nominated in accordance with the following
procedures are eligible for election as directors by the holders of the Common
Stock of the corporation. Nominations of persons for election by the holders of
Common Stock to the Board of Directors of the corporation may be made at a
meeting of stockholders, by or at the direction of the Board of Directors, by
any nominating committee or person appointed to make nominations by the Board of
Directors, or by any holder of Common Stock of the corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this section, Nominations, if made by a stockholder of
the corporation shall be made pursuant to timely notice in writing addressed to
the secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 120 days prior to the meeting at
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which directors are to be elected by the holders of Common Stock. In the event
that less than 30 days notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be timely
must be received no later than the close of business on the seventh day
following the day on which notice of the date of the meeting was mailed or
public disclosure was made. A stockholder's notice shall set forth: (a) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of stock of the corporation which are beneficially
owned by the person and (iv) any other information relating to the person that
would be required to be disclosed in solicitations for proxies for election of
Directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended, or any successor rule; and (b) as to the stockholder giving the
notice (i) the name and record address of the stockholder and (ii) the class and
number of shares of the corporation which are beneficially owned by the
stockholder. The corporation may require any proposed nominee to furnish
additional information as reasonably required by the corporation to determine
the eligibility of the proposed nominee to serve as a director of the
corporation, No person shall be eligible for election as a director of the
corporation by the holders of Common Stock of the corporation unless nominated
in accordance with the procedures set
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forth in this section.
The presiding officer at the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and following such determination, the defective nomination
shall be disregarded.
SECTION 3.11. Advisory Directors. The Board of Directors may elect from one
(1) to nine (9) (as it may decide) Advisory Members of the Board of Directors
who may meet with the Board of Directors at such Board Meeting to which they are
invited by the Chairman of the Board, or the President or Executive Vice
President (it being realized that there may be meetings not deemed important
enough to warrant time and travel expense of all or a part of the Advisory
Members), and give the Board of Directors the benefit of their advice and
counsel. The Advisory Members of the Board of Directors may be elected at any
regular or special meeting of the Board of Directors. The Advisory Members of
the Board of Directors shall receive the same fee for attending a meeting that a
Director receives and shall be paid their travel expenses, if any, incurred in
attending meetings of the Board of Directors. No such payment shall preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.1. Designation, Powers and Name. The Board of Directors may, by
resolution passed by a majority of the whole
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Board, designate one or more committees, including, if they shall so determine,
an Executive Committee, each such committee to consist of two or more of the
directors of the corporation. The committee shall have and may exercise such of
the powers of the Board of Directors in the management of the business and
affairs of the corporation as may be provided in such resolution. The committee
may authorize the seal of the corporation to be affixed to all papers which may
require it. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of
any member of such committee or committees, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. Such committee or committees shall have such name or names and such
limitations of authority as may be determined from time to time by resolution
adopted by the Board of Directors.
SECTION 4.2. Minutes. Each committee of directors shall keep regular
minutes of its proceedings and report the same to the Board of Directors when
required.
SECTION 4.3. Compensation. Members of special or standing committees may be
allowed compensation for attending committee meetings, if the Board of Directors
shall so determine.
ARTICLE V
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NOTICE
SECTION 5.1. Methods of Giving Notice. Whenever under the provisions of the
statutes, the Certificate of Incorporation or these by-laws, notice is required
to be given to any director, member of any committee or stockholder, such notice
shall be in writing and delivered personally or mailed to such director, member
or stockholder; provided that in the case of a director or a member of any
committee such notice may be given orally or by telephone or telegram. If
mailed, notice to a director, member of a committee or stockholder shall be
deemed to be given when deposited in the United States mail first class in a
sealed envelope, with postage thereon prepaid, addressed, in the case of a
stockholder, to the stockholder at the stockholder's address as it appears on
the records of the corporation or, in the case of a director or a member of a
committee, to such person at his business address. If sent by telegraph, notice
to a director or member of a committee shall be deemed to be given when the
telegram, so addressed, is delivered to the telegraph company.
SECTION 5.2. Written Waiver. Whenever any notice is required to be given
under the provisions of the statutes, the Certificate of Incorporation or these
by-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE VI
OFFICERS
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SECTION 6.1. Officers. The officers of the corporation are Chairman of the
Board and Co-Chief Executive Officer, a President and Co-Chief Executive
Officer, a Senior Executive Vice President-Assistant Chairman, a Senior
Executive Vice President-Assistant President, one or more Vice Presidents, any
one or more which may be designated an Executive Vice President and/or Senior
Vice President, a Vice President-Finance, a Secretary, a Treasurer and a
Controller. The Board of Directors may by resolution create the office of Vice
Chairman of the Board and define the duties of such office. The Board of
Directors may appoint such other officers and agents including Assistant Vice
Presidents, Assistant Secretaries and Assistant Treasurers, as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined by the Board. Any two or
more offices, other than the offices of President and Secretary, may be held by
the same person. No officer shall execute, acknowledge, verify or countersign
any instrument on behalf of the corporation in more than one capacity, if such
instrument is required by law, by these by-laws or by any act of the corporation
to be executed, acknowledged, verified or countersigned by two or more officers.
The Chairman of the Board and Co-Chief Executive Officer and the President and
Co-Chief Executive Officer shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and none
of the officers need be a stockholder of the corporation.
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SECTION 6.2. Election and Term of Office. The officers of the corporation
shall be elected annually by the Board of Directors at its first regular meeting
held after the annual meeting of stockholders or as soon thereafter as
conveniently possible. Each officer shall hold office until his successor shall
have been chosen and shall have qualified or until his death or the effective
date of his resignation or removal, or until he shall cease to be a director in
the case of the Chairman of the Board and Co-Chief Executive Officer and the
President and Co-Chief Executive Officer.
SECTION 6.3. Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed with cause by the affirmative
vote of the Board of Directors whenever, in its judgment, the best interests of
the corporation shall be served thereby, but such removal shall be without
prejudice to the contractual rights, if any, of the person so removed. Any
officer may resign at any time by giving written notice to the corporation. Any
such resignation shall take effect at the date of the receipt of such notice or
at any later time specified therein, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 6.4. Vacancies. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise, may be filled by the
Board of Directors for the unexpired portion of the term.
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SECTION 6.5. Salaries. The salaries of all officers and agents of the
corporation shall he fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
SECTION 6.6. Chairman of the Board and Co-Chief Executive Officer. The
Chairman of the Board and Co-Chief Executive Officer shall preside at all
meetings of the Board of Directors or of the stockholders of the corporation. In
the Chairman's absence, or at the election of the President and Co-Chief
Executive Officer and the Chairman of the Board and Co-Chief Executive Officer,
such duties shall be attended to by the President and Co-Chief Executive
Officer. The Chairman of the Board and the President shall formulate and submit
to the Board of Directors or the Executive Committee matters of general policy
for the corporation and shall perform such other duties as usually appertain to
the office or as may be prescribed by the Board of Directors or the Executive
Committee. The Chairman of the Board and Co-Chief Executive Officer shall, with
the President and Co-Chief Executive Officer, be the principal executive officer
of the corporation and, subject to the control of the Board of Directors, shall
in general supervise and control the business and affairs of the corporation.
The Chairman of the Board and Co-Chief Executive Officer, acting with the
President and Co-Chief Executive Officers shall have the power to appoint and
remove subordinate officers, agents and employees, except those elected or
appointed by the Board of Directors. The Chairman of the Board and Co-Chief
Executive
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Officer, acting with the President and Co-Chief Executive Officer, shall keep
the Board of Directors and the Executive Committee fully informed and shall
consult them concerning the business of the corporation. Either or both may sign
with the Secretary or any other officer of the corporation thereunto authorized
by the Board of Directors, certificates for shares of the corporation and any
deeds, bonds, mortgages, contracts, checks, notes, drafts or other instruments
which the Board of Directors has authorized to be executed, except in cases
where the signing and execution thereof has been expressly delegated by these
by-laws or by the Board of Directors to some other officer or agent of the
corporation, or shall be required by law to be otherwise executed. Either or
both the Chairman of the Board and the President shall vote, or give a proxy to
any other officer of the corporation to vote, all shares of stock of any other
corporation (except that the Board of Directors shall vote, or give a proxy to
one or more member(s) of the Board to vote, all shares of the stock of Stewart
Title Guaranty Company) standing in the name of the corporation and in general
they shall perform all other duties normally incident to the office of the
Chairman of the Board and Co-Chief Executive Officer and President and Co-Chief
Executive Officer, and such other duties as may be prescribed by the
stockholders, the Board of Directors or the Executive Committee from time to
time. In the absence of the President and Co-Chief Executive Officer, or in the
event such officer is unable or refuses to act, the Chairman of the Board and
Co-Chief Executive Officer shall perform the duties and
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exercise the powers of the President and Co-Chief Executive Officer. If the
office of the President is vacant, the Chairman of the Board shall be the Chief
Executive Officer.
SECTION 6.7. President and Co-Chief Executive Officer. The President and
Co-Chief Executive Officer shall, with the Chairman of the Board and Co-Chief
Executive Officer, be the principal executive officer of the corporation and
subject to the control of the Board of Directors, shall in general supervise and
control the business and affairs of the corporation. In the absence of the
Chairman of the Board and Co-Chief Executive Officer, the President and Co-Chief
Executive Officer shall preside at all meetings of the Board of Directors and of
the Stockholders. The President and Co-Chief Executive Officer, acting with the
Chairman of the Board and Co-Chief Executive Officer, shall have the power to
appoint and remove subordinate officers, agents and employees, except those
elected or appointed by the Board of Directors. The President and Co-Chief
Executive Officer, acting with the Chairman of the Board and Co-Chief Executive
Officer, shall keep the Board of Directors and the Executive Committee fully
informed and shall consult them concerning the business of the corporation.
Either or both may sign with the Secretary or any other officer of the
corporation thereunto authorized by the Board of Directors, certificates for
shares of the corporation and any deeds, bonds, mortgages, contracts, checks,
notes, drafts or other instruments which the Board of Directors has authorized
to be executed, except in cases where the signing and execution thereof
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has been expressly delegated by these by-laws or by the Board of Directors to
some other officer or agent of the corporation, or shall be required by law to
be otherwise executed. Either or both the Chairman of the Board and the
President shall vote, or give a proxy to any other officer of the corporation to
vote, all shares of stock of any other corporation (except that the Board of
Directors shall vote, or give a proxy to one or more member(s) of the Board to
vote, all shares of the stock of Stewart Title Guaranty Company) standing in the
name of the corporation and in general they shall perform all other duties
normally incident to the office of President and Co-Chief Executive Officer and
Chairman of the Board and Co-Chief Executive Officer and such other duties as
may be prescribed by the stockholders, the Board of Directors or the Executive
Committee from time to time, In the absence of the Chairman of the Board and
Co-Chief Executive Officer, or in the event such officer is unable or refuses to
act, the President and Co-Chief Executive Officer shall perform the duties and
exercise the powers of the Chairman of the Board and Co-Chief Executive Officer.
If the office of the Chairman of the Board is vacant, the President shall be the
Chief Executive Officer.
SECTION 6.8. Vice President. in the absence of the President and Co-Chief
Executive Officer and the Chairman of the Board and Co-Chief Executive Officer,
or in the event both are unable or refuse to act, either or both the Senior
Executive Vice President-Assistant Chairman and the Senior Executive Vice
President-Assistant President (or in the event both such offices
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are vacant or both such officers are unable or refuse to act, the Vice
President-Finance) shall perform the duties and exercise the powers of the
President and Co-Chief Executive Officer and the Chairman of the Board and
Co-Chief Executive Officer. In the event the offices of both Chairman and
President are vacant, the Senior Executive Vice President-Assistant Chairman
shall perform the duties and exercise the powers of the Chairman and Co-Chief
Executive Officer and the Senior Executive Vice President-Assistant President
shall perform the duties and exercise the powers of the President and Co-Chief
Executive Officer. Any Vice President may sign, with the Secretary or Assistant
Secretary, certificates for shares of the corporation. The Vice Presidents shall
perform such other duties as from time to time may be assigned to them by the
Chairman, the President, the Board of Directors or the Executive Committee.
SECTION 6.9. Secretary. The Secretary shall (a) keep the minutes of the
meetings of the stockholders, the Board of Directors and committees of
directors; (b) see that all notices are duly given in accordance with the
provisions of these by-laws and as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, and see that the seal of
the corporation or a facsimile thereof is affixed to all certificates for shares
prior to the issue thereof and to all documents, the execution of which on
behalf of the corporation under its seal is duly authorized in accordance with
the provisions of these by-laws; (d) keep or cause to be kept a register of the
post office address
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of each stockholder which shall be furnished by such stockholder; (e) sign with
the President, or an Executive Vice President or Vice President, certificates
for shares of the corporation, the issue of which shall have been authorized by
resolution of the Board of Directors; (f) have general charge of the stock
transfer books of the corporation; and (g) in general, perform all duties
normally incident to the office of Secretary and such other duties as from time
to time may be assigned to him by the President, the Board of Directors or the
Executive Committee.
SECTION 6.10. Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such sum
and with such surety or sureties as the Board of Directors shall determine. He
shall have charge and custody of and be responsible for all funds and securities
of the corporation; receive and give receipts for monies due and payable to the
corporation from any source whatsoever and deposit all such monies in the name
of the corporation in such banks, trust companies or other depositories as shall
be selected in accordance with the provisions of Section 7.3 of these by-laws,
and in general, perform all duties normally incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the
President, the Board of Directors or the Executive Committee.
SECTION 6.11. Controller. The Controller shall prepare, or cause to be
prepared, for submission at each regular meeting of the Board of Directors, at
each annual meeting of the stockholders,
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and at such other times as may be required by the Board of Directors, the
President or the Executive Committee, a statement of financial condition of the
corporation in such detail as may be required; and in general, perform all the
duties incident to the office of Controller and such other duties as from time
to time may be assigned to him by the President, the Board of Directors or the
Executive Committee.
SECTION 6.12. Assistant Secretary or Treasurer. The Assistant Secretaries
and Assistant Treasurers shall, in general, perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
President, the Board of Directors or the Executive Committee. The Assistant
Secretaries and Assistant Treasurers shall, in the absence of the Secretary or
Treasurer, respectively, perform all functions and duties which such absent
officers may delegate, but such delegation shall not relieve the absent officer
from the responsibilities and liabilities of his office. The Assistant
Secretaries may sign, with the President or a Vice President, certificates for
shares of the corporation, the issue of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as the Board of
Directors shall determine.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.1. Contracts. Subject to the provisions of
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Section 6.1, the Board of Directors may authorize any officer, officers, agent
or agents, to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the corporation, and such authority may be general
or confined to specific instances.
SECTION 7.2. Checks, etc. All checks, demands, drafts or other orders for
the payment of money, notes or other evidences of indebtedness issued in the
name of the corporation, shall be signed by such officer or officers or such
agent or agents of the corporation, and in such manner, as shall be determined
by the Board of Directors.
SECTION 7.3. Deposits. All funds of the corporation not otherwise employed
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies or other depositories as the Board of Directors may
select.
ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.1. Issuance. Each stockholder of this corporation shall be
entitled to a certificate or certificates showing the number of shares of stock
registered in his name on the books of the corporation. The certificates shall
be in such form as may be determined by the Board of Directors, shall be issued
in numerical order and shall be entered in the books of the corporation as they
are issued. They shall exhibit the holder's name and number of shares and shall
be signed by the President or a Vice President and by the Secretary or an
Assistant Secretary.
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If any certificate is countersigned (1) by a transfer agent other than the
corporation or any employee of the corporation, or (2) by a registrar other than
the corporation or any employee of the corporation, any other signature on the
certificate may be a facsimile. If the corporation shall be authorized to issue
more than one class of stock or more than one series of any class, the
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and rights shall be set forth in
full or summarized on the face or back of the certificate which the corporation
shall issue to represent such class of stock; provided that, except as otherwise
provided by statute, in lieu of the foregoing requirements there may be set
forth on the face or back of the certificate which the corporation shall issue
to represent such class or series of stock, a statement that the corporation
will furnish to each stockholder who so requests the designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and qualifications, limitations or restrictions of such
preferences and rights. All certificates surrendered to the corporation for
transfer shall be cancelled and no new certificate shall be issued until the
former certificate for a like number of shares shall have been surrendered and
cancelled, except that in the case of a lost, stolen, destroyed or mutilated
certificate a new one may be issued therefor upon such terms and with such
indemnity, if any, to the corporation as the Board of
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Directors may prescribe. Certificates shall not be issued representing
fractional shares of stock.
SECTION 8.2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require or to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the corporation
with respect to the certificate or certificates alleged to have been lost,
stolen or destroyed, or both.
SECTION 8.3. Transfers. Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Transfers of shares shall be made only on the books
of the corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of
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attorney and filed with the Secretary of the corporation or the Transfer Agent.
SECTION 8.4. Registered Stockholders. The corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other parson,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of the State of Delaware.
ARTICLE IX
DIVIDENDS
SECTION 9.1. Declaration. Dividends upon the capital stock of the
corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
SECTION 9.2. Reserve. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the Board of Directors shall think conclusive to the
interest of the corporation, and the
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Directors may modify or abolish any such reserve in the manner in which it was
created.
ARTICLE X
INDEMNIFICATION
SECTION 10.1. Third Party Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), 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. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and with respect to any criminal action or
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proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 10.2. Actions by or in the Right of the Corporation. The
corporation shall indemnity any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit 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 except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable for misconduct in the performance of his duty to the corporation unless
and only to the extent that the Court of Chancery or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 10.3. Determination of Conduct. The
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determination that an officer, director, employee or agent, has met the
applicable standard of conduct set forth in Sections 10.1 and 10.2 (unless
indemnification is ordered by a court) shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or proceeding, or (2) if such quorum is not
obtainable, or even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
SECTION 10.4. Payment of Expenses in Advance. Expenses incurred in
defending a civil or criminal action, suit or proceeding shall be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the corporation as authorized in this Article X.
SECTION 10.5. Indemnity Not Exclusive. The indemnification and advancement
of expenses provided hereunder or granted pursuant hereto shall not be deemed
exclusive of any other rights to which those seeking indemnification or the
advancement of expenses may be entitled under any other by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. The indemnification and advancement of expenses provided hereunder or
granted pursuant
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hereto shall, unless otherwise provided when authorized or ratified, continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. Seal. The corporate seal shall have inscribed thereon the
name of the corporation, and the words "Corporate Seal, Delaware." The seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
SECTION 11.2. Books. The books of the corporation may be kept (subject to
any provision contained in the statutes) outside the State of Delaware at the
offices of the corporation at Houston, Texas, or at such other place or places
as may be designated from time to time by the Board of Directors.
ARTICLE XII
AMENDMENT
These by-laws may be altered, amended or repealed at any regular or special
meeting of the Board of Directors if (i) notice of such alteration, amendment or
repeal is contained in the notice of such meeting and (ii) such alteration,
amendment or repeal is approved by a majority vote of the directors elected by
the holders of the Common Stock and a majority vote of the directors elected by
the holders of Class B Common Stock; with each such class of directors voting
separately.
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EXHIBIT 4.3
EFFECTIVE DATE:
January 1, 1986
PLAN YEAR END:
December 31
<PAGE> 2
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Actual Contribution Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 Actual Deferral Percentage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Administrative Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.6 Affiliated Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.7 Aggregate Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.8 Annual Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.9 Authorized Leave of Absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.10 Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.11 Break-in-Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.12 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.13 Considered Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.14 Deferral Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.15 Determination Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.16 Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.17 Eligible Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.18 Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.19 Employer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1.20 Employer Matching Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.21 Employer Real Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.22 Employer Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.23 Entry Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.24 Excess Aggregate Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1.25 Excess Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.26 Family Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.27 Forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.28 Highly Compensated Eligible Employee . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1.29 Hour of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.30 Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.31 Marketable Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.32 Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.33 Non-Key Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.34 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.35 Plan Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.36 Qualified Nonelective Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.37 Qualifying Employer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.38 Retired Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.39 Signatory Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.40 Total Permanent Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
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1.41 Transferred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1.42 Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.43 Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.44 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1.45 Year of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II. EMPLOYEES ENTITLED TO PARTICIPATE . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1 Eligibility to Participate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.2 Participation Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.3 Participation and Service Upon Reemployment . . . . . . . . . . . . . . . . . . . . . . 24
2.4 Full Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.5 Transferred Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.6 Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.7 Notice to Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE III. CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.1 Deferral Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
3.2 Employer Matching Contributions
and Employer Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.3 Actual Deferral Percentage Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.4 Time of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
3.5 Administrative Committee to Prescribe Rules
Governing Deferral Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.6 Prohibition Against Reversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.7 Excess Deferral Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.8 Actual Contribution Percentage Test . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IV. ALLOCATION TO ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Certification by the Signatory Company . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2 Separate Account Maintained for Each Member . . . . . . . . . . . . . . . . . . . . . . 40
4.3 Allocation of Deferral Contribution to
Members Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.4 Allocation of Employer Matching Contributions
and Employer Contribution to Members' Accounts . . . . . . . . . . . . . . . . . . . . 41
4.5 Allocation of Trust Fund Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.6 Valuation of Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
4.7 Special Allocation Upon Termination, Partial
Termination or Complete Discontinuance of
Employer Matching Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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4.8 Entry of Adjustments to Each Member's Account . . . . . . . . . . . . . . . . . . . . . . . . 44
4.9 Accounts for Transferred Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
4.10 Rights in Trust Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4.11 Application of Forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE V. LIMITATIONS ON ANNUAL ADDITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.1 Limitation Under this Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.2 Limitation in Event of Member's Participation in
Defined Benefit Plan and Defined Contribution Plan . . . . . . . . . . . . . . . . . . . . . 46
5.3 Disposition of Excessive Annual Additions . . . . . . . . . . . . . . . . . . . . . . . . . . 47
5.4 Combining of Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.5 Transition Fraction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.6 Right of Reversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE VI. RETIREMENT AND DESIGNATION OF BENEFICIARY . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.1 Normal Retirement Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.2 Designation of Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VII. VESTING OF MEMBERS' INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.1 Vesting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.2 Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.3 Retirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
7.4 Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.5 Termination of Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.6 Disposition of Unvested Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.7 Circumstances Rendering Vesting
Schedule Inapplicable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE VIII. CLAIMS FOR PLAN BENEFITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.1 Application for Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.2 Processing of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.3 Notification to Claimant of Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.4 Review Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.5 Decision on Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.6 Disputed Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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ARTICLE IX. DISTRIBUTIONS FROM TRUST FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.1 Occasions for Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
9.2 Consent to Distribution; Special Rules
Upon Reemployment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.3 Manner of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
9.4 Time of Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.5 Mandatory Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
9.6 Distribution to Minors or Persons under
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
9.7 Community Property Interests - Interest of Spouse
of Member in the Event of Divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE X. TOP HEAVY PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.1 Determination of Top Heavy Plan Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.2 Determination of Super Top Heavy Plan Status . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.3 Aggregate Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
10.4 Aggregation Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.5 Top Heavy Plan Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.6 Allocations to Non-Key Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE XI. OTHER QUALIFIED PLANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.1 Transfers from Other Qualified Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
11.2 Transfers to Other Qualified Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE XII. ADMINISTRATIVE COMMITTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
12.1 Appointment, Resignation and Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
12.2 Rights, Powers and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
12.3 Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
12.4 Annual Audit of Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
12.5 Chairman and Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.6 Quorum and Voting Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.7 Limitation on Voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
12.8 Delegation of Rights, Powers and Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.9 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.10 Compensation and Expense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
12.11 Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.12 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
12.13 Reporting and Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
12.14 Statement to Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
12.15 Signatory Company to Supply Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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ARTICLE XIII. TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.1 Acceptance and Holding of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.2 Responsibility for Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
13.3 Resolutions of Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.4 Judicial Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
13.5 Dealings with Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.6 Annual Accounting by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
13.7 Preparation of Statement to Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.8 Resignation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
13.9 Removal of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.10 Appointment of Successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.11 Trustee's Compensation and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
13.12 Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.13 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
13.14 Appointment of Investment Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
ARTICLE XIV. INVESTMENT POWERS OF TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.1 Standards; Prudent Man Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.2 Powers of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
14.3 Prohibited Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
14.4 Investment of Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
ARTICLE XV. LOANS TO MEMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
15.1 No Plan Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
ARTICLE XVI. AMENDMENT AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
16.1 Amendment - General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
16.2 Amendments Necessary to Comply with Intentions
of Signatory Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
16.3 Termination with Respect to Signatory Company
Without Establishment of a Successor Plan . . . . . . . . . . . . . . . . . . . . . . . . . . 99
16.4 Continuation of Plan and Trust by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 101
ARTICLE XVII. CONTINUANCE OF PLAN BY SUCCESSOR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
17.1 Adoption of Plan by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
</TABLE>
v
<PAGE> 7
<TABLE>
<S> <C> <C>
ARTICLE XVIII. MERGER OF PLAN OR TRANSFER OF PLAN ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . 102
18.1 Transfer, Consolidation or Merger with
Another Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
ARTICLE XIX. ADOPTION OF PLAN BY A SIGNATORY COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
19.1 Method of Adoption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
19.2 Withdrawal from the Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
ARTICLE XX. RECOVERY OF EMPLOYER CONTRIBUTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
20.1 Initial Approval by Internal Revenue Service . . . . . . . . . . . . . . . . . . . . . . . . 104
20.2 Conditioned on Deductibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE XXI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
21.1 Plan is a Voluntary Undertaking by the
Signatory Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
21.2 Benefit Provided Solely by the Trust Fund . . . . . . . . . . . . . . . . . . . . . . . . . . 106
21.3 Nonalienation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
21.4 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
21.S Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
21.6 Reference to Code or Act Sections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
21.7 Binding Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
21.8 No Joint Venture Implied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
21.9 Copies of Plan Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
21.10 Titles and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
21.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
21.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
21.13 Agent for Service of Legal Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
21.14 Withholding; Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
21.15 Single Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
</TABLE>
vi
<PAGE> 8
FIFTH AMENDMENT AND RESTATEMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS FIFTH AMENDMENT AND RESTATEMENT of the Stewart Title Guaranty
Company Salary Deferral Plan (the "Plan") and Trust is made this 7th day of
May, 1992 to be effective (except as otherwise indicated) as of the 1st day of
January, 1989, by Stewart Title Guaranty Company (the "Corporation") of
Houston, Texas and First Interstate Bank of Texas, N.A., a banking institution
(hereinafter sometimes called the "Trustee") of Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its Employees and their
Beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986 effective
January 1, 1987, subsequently amended on February 26, 1988 effective January 1,
1986, amended on April 5, 1989 effective January 1, 1989, and amended May 30,
1989 effective May 31, 1989;
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend and restate the Plan effective the date set forth
above so it may continue to qualify under Sections 401(a) and 401(k) of the
Code and Treasury Regulations under Section 401(k) of the Code, and the Trust
continues to remain exempt under the Section 501(a) of the Code and the Plan
and Trust comply with the Act.
<PAGE> 9
NOW, THEREFORE, pursuant to the provisions of Article XV, Section 15.1
of the Plan, the Plan is hereby amended and restated as follows:
This document contains the provisions of the Plan as amended effective
January 1, 1989 except as otherwise indicated. Unless expressly stated
otherwise herein, each amended provision will be applicable only with respect
to persons in employment status on the indicated effective date of the
particular amended provision in question. The rights (if any) of all other
persons will be determined by the provisions of the Plan as previously in
effect, except as may otherwise be specifically provided hereby or by future
amendments to the Plan.
ARTICLE I.
Definitions
Unless the context reasonably requires a broader, narrower or
different meaning, as used herein the following words and phrases shall have
the meanings set forth below:
1.1 "Account" means, with respect to a Member, the ledger account
showing such Member's interest in the Trust Fund.
1.2 "Act" means the Employee Retirement Income Security Act of
1974, as amended.
1.3 "Actual Contribution Percentage" means, with respect to a
specified group of Eligible Employees, the average of the ratios (expressed as
a percentage, rounded to the nearest one-hundredth percent) calculated
separately for each Eligible Employee in such group of:
-2-
<PAGE> 10
(a) the sum of the following contributions paid under the Plan
on behalf of each such Eligible Employee for such Plan Year
(i) Employer Matching Contributions or any other
matching contributions that are not Qualified Nonelective
Contributions;
(ii) any after-tax employee contributions (including
any Excess Contributions that are recharacterized pursuant to
the provisions of Article III, Section 3.3(2) of the Plan);
(iii) Qualified Nonelective Contributions specifically
designated for this purpose; and
(iv) Deferral Contributions specifically designated
for this purpose;
to
(b) the Eligible Employee's Considered Compensation for such
Plan Year.
For purposes of subsection (a)(i) above, "matching contribution" shall mean (I)
any Employer contribution made to the Plan on behalf of an Eligible Employee on
account of an after-tax employee contribution made by such employee, (II) any
Employer contribution made to the Plan on behalf of an Eligible Employee on
account of such Employee's Deferral Contribution, and (III) any forfeitures
allocated on the basis of after-tax employee contributions, Deferral
Contributions or matching contributions.
With respect to any Highly Compensated Eligible Employee who is
eligible to participate in two or more plans of the Corporation or an
Affiliated Company to which matching contributions, employee contributions or
both are made, all such contributions on behalf of such Highly Compensated
Eligible Employee must be aggregated for purposes of determining such
Employee's Actual Contribution Percentage.
-3-
<PAGE> 11
1.4 "Actual Deferral Percentage" means, with respect to a
specified group of Eligible Employees for each Plan Year, the average of the
ratios (expressed as a percentage, rounded off to the nearest one-hundredth
percent) calculated separately for each Eligible Employee in such group of:
(a) the amount of Deferral Contributions (including any Excess
Deferrals as defined in Article III, Section 3.7 of the Plan and paid
under the Plan), and any Qualified Nonelective Contributions on behalf
of each such Eligible Employee for such Plan Year;
to
(b) the Eligible Employee's Considered Compensation for such
Plan Year.
With respect to any Highly Compensated Eligible Employee who participates in
two or more cash or deferred arrangements of the Corporation or Affiliated
Company, this ratio shall be calculated by treating all such cash or deferred
arrangements as one cash or deferred arrangement. The actual deferral ratio of
an Eligible Employee, with respect to whom neither a Deferral Contribution nor
a Qualified Nonelective Contribution is made, is zero.
For the purpose of determining the Actual Deferral Percentage of a
Highly Compensated Eligible Employee who is subject to the family aggregation
rules of Code Section 414(q)(6) because such Member is either a "five percent
owner" of the Corporation or one of the ten (10) Highly Compensated Eligible
Employees paid the greatest amount of compensation (as defined under Code
Section 415) during the Plan Year, the following shall apply:
(1) The combined Actual Deferral Percentage for the family
group (which shall be treated as one Highly Compensated Eligible
Employee) shall be the greater of: (i) the Actual Deferral Percentage
determined by
-4-
<PAGE> 12
aggregating elective contributions, compensation (as defined in Code
Section 414(s)), and amounts treated as elective contributions of all
eligible Family Members who are Highly Compensated Eligible Employees
without regard to family aggregation; and (ii) the Actual Deferral
Percentage determined by aggregating elective contributions,
compensation (as defined in Code Section 414(s)), and amounts treated
as elective contributions of all eligible Family Members (including
Highly Compensated Eligible Employees). However, in applying the
$200,000 limit to compensation (as defined in Code Section 414(s)),
Family Members shall include only the affected Employee's spouse and
any lineal descendants who have not attained age nineteen (19) before
the close of the Plan Year.
(2) Elective contributions, compensation (as defined in Code
Section 414(s)), and amounts treated as elective contributions of all
Family Members shall be disregarded for purposes of determining the
Actual Deferral Percentage of the non-Highly Compensated Eligible
Employee group except to the extent taken into account in paragraph
(1) above.
(3) If an employee is required to be aggregated as a member of
more than one family group in a plan, all Eligible Employees who are
members of those family groups that include the employee are
aggregated as one family group in accordance with paragraphs (1) and
(2) above.
(4) Except as provided in paragraph (1) above, "Family Member"
means, with respect to an affected Member, such Member's spouse, such
Member's lineal descendants and ascendants and their spouses, as
described in Code Section 414(q)(6)(B).
Paragraphs (1) through (4) above shall be administered in accordance with Prop.
Reg. Section 1.401(k)-l(g)(8)(iii) or its successor.
Qualified Nonelective Contributions and Employer Matching
Contributions may be treated as Deferral Contributions for purposes of
determining a Member's Actual Deferral Percentage only if such Qualified
Nonelective Contributions and Employer Matching Contributions (1) are
nonforfeitable when made, and (2) are subject to the same distribution
restrictions that apply to Deferral Contributions, without regard to whether
they are actually taken
-5-
<PAGE> 13
into account as Deferral Contributions for such purpose. Qualified Nonelective
Contributions and/or Employer Matching Contributions may be treated as Deferral
Contributions only if the conditions described in Prop. Reg. Section
1.401(k)-1(b)(3) or its successor are satisfied.
1.5 "Administrative Committee" means the committee appointed by
the Corporation to administer the Plan.
1.6 "Affiliated Company" or "Affiliated Companies" means a
corporation or other organization which is a member of any controlled group of
corporations, trades or businesses (as defined in Sections 414(b) and 414(c) of
the Code, except that the phrase "fifty percent (50%) or more" shall be
substituted for the phrase "at least 80 percent" each place it appears in
Section 1563(a)(1) of the Code) or is a member of an affiliated service group
(as defined in Section 414(m) of the Code).
1.7 "Aggregate Account" means, with respect to each Member, the
value of the Account maintained on behalf of such Member, including all amounts
attributable to Deferral Contributions, Employer Contributions, Employer
Matching Contributions and any after-tax employee contributions.
1.8 "Annual Additions" means the sum credited to a Member's
Account for any "limitation year" of (1) Employer contributions, (2) employee
contributions as determined under Sections 415(c)(2), 415(l) and 419A(d)(2) of
the Code, (3) forfeitures, if any, (4) amounts allocated, after March 31, 1984,
to an individual medical account as defined in Section 415(1)(1) of the Code
which is part of a pension or annuity plan maintained by the Employer and
-6-
<PAGE> 14
(5) amounts derived from contributions paid or accrued after December 31, 1985,
in taxable years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account of a key
employee (as defined in Section 419A(d)(3) of the Code) under a welfare benefit
plan (as defined in Section 419(e) of the Code) maintained by the Employer.
The percentage limitation referred to in Article V, Section 5.1(b) shall not
apply to: (1) any contribution for medical benefits (within the meaning of
Section 419A(f)(2) of the Code) after separation from service which is
otherwise treated as an "Annual Addition", or (2) any amount otherwise treated
as an "Annual Addition" under Section 415(1)(1) of the Code.
1.9 "Authorized Leave of Absence" means the following periods of
absence:
(a) Absence due to accident, sickness or pregnancy as long as
the Employee is continued on the employment rolls of the Signatory
Company and remains eligible to return to work upon his recovery;
(b) Absence due to membership in the Armed Forces of the
United States (but if such absence is not pursuant to orders issued by
the Armed Forces of the United States, only if with the consent of the
Signatory Company) provided that each such Employee shall apply for
reinstatement in the employment of the Signatory Company within ninety
(90) days after honorable discharge or after release to inactive duty,
as the cave may be; or
(c) Absence due to an approved leave of absence granted by a
Signatory Company pursuant to established practices applied in a
consistent and nondiscriminatory manner, provided each such Employee
shall, prior to the expiration of such leave of absence, apply for
reinstatement in the employment of the Signatory Company.
1.10 "Beneficiary" or "Beneficiaries" means such natural person or
persons, or trustee of a trust for the benefit of a
-7-
<PAGE> 15
natural person or persons, as may be determined pursuant to the provisions of
Article VI, Section 6.2 hereof. For purposes of determining whether the Plan
is a Top Heavy Plan, a Beneficiary of a deceased Member shall be considered as
either a Key Employee or a Non-Key Employee, depending upon whether such
deceased Member was classified as a Key Employee or Non-Key Employee.
1.11 "Break-in-Service" with respect to an Employee means any Plan
Year during which such Employee completes five hundred (500) or fewer Hours of
Service. Solely for the purpose of determining whether a Member has incurred a
one-year Break-in-Service, Hours of Service shall be recognized for "maternity
and paternity leaves of absence." A "maternity or paternity leave of absence"
shall mean, an absence from work for any period by reason of the Employee's
pregnancy, birth of the Employee's child, placement of a child with the
Employee in connection with the adoption of such child, or any absence for the
purpose of caring for such child for a period immediately following such birth
or placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if credit
therefore is necessary to prevent the Employee from incurring a one-year
Break-in-Service, or, in any other case, in the immediately following
computation period. The Hours of Service credited for a "maternity or
paternity leave of absence" shall be those which would normally have been
credited but for such absence, or, in any case in which the Administrative
Committee is unable to determine such hours normally credited, eight (8) Hours
of Service per day. The total Hours of Service required to be credited for a
"maternity or
-8-
<PAGE> 16
paternity leave of absence" shall not exceed Five Hundred One (501). No Hours
of Service will be credited for a "maternity or paternity leave of absence"
unless the Employee furnishes to the Administrative Committee such timely
information as it may reasonably require to substantiate the length and nature
of such absence.
Notwithstanding the foregoing, the severance from service date of an
employee who is absent from service beyond the first anniversary of the first
date of absence by reason of a maternity or paternity absence described in
Section 410(a)(5)(E)(i) or Section 411(a)(6)(E)(i) of the Code is the second
anniversary of the first date of such absence. The period between the first
and second anniversaries of the first date of absence from work is neither a
period of service nor a period of severance.
1.12 "Code" means the Internal Revenue Code of 1986, as amended.
1.13 "Considered Compensation" means, as to each Eligible Employee,
all compensation otherwise paid or accrued to him after he has become eligible
for the Plan by the Signatory Company during the Plan Year, including regular
salary, hourly base pay, overtime pay, contractual bonuses, bonuses derived by
formula, commissions, discretionary bonuses and Deferral Contributions, but
excluding any Employer Contributions or any Employer Matching Contributions
under this Plan and other contingent compensation. For Plan Years beginning on
or after January l, 1990 (or a later date permitted by Treasury regulations)
for purposes of calculating the Actual Deferral Percentage and Actual
Contribution Percentage, Considered
-9-
<PAGE> 17
Compensation shall be taken into account for the entire Plan Year of each
Eligible Employee without regard to whether that Employee was eligible to
participate in the Plan for the entire Plan Year.
For purposes of Article V of the Plan, Considered Compensation shall
not include the following:
(a) Employer contributions to a plan of deferred compensation
which are not included in the Employee's gross income for the taxable
year in which contributed or employer contributions under a simplified
employee pension plan to the extent such contributions are deductible
by the Eligible Employee, or any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a non-qualified
stock option, or when restricted stock (or property) held by the
Employee either becomes freely transferable or is no longer subject to
a substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(d) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
Section 403(b) of the Code (whether or not the amounts are actually
excludable from the gross income of the Employee).
Considered Compensation shall be limited to two hundred thousand dollars
($200,000) or such greater amount as may be determined pursuant to Section
416(d) or Section 401(a)(17) of the Code. In determining an Employee's
Considered Compensation the rules of Section 414(q)(6) of the Code shall apply,
except that the term "family" as used therein shall include only the Employee's
spouse and any of the Employee's lineal descendants who have not attained age
nineteen (19) on or before the last day of the Plan Year.
-10-
<PAGE> 18
1.14 "Deferral Contribution" means the amount each Member elects to
have the Signatory Company pay to the Trustee on behalf of such Member pursuant
to Article III, Section 3.1 of this Plan.
1.15 "Determination Date" means, with respect to any Plan Year, (a)
the last day of the preceding Plan Year, or (b) in the case of the first Plan
Year, the last day of such Plan Year.
1.16 "Effective Date" of this Plan means January 1, 1986. The
effective date of this Fifth Amendment and Restatement is January 1, 1989,
except as otherwise set forth in Appendix A hereto.
1.17 "Eligible Employee" means an Employee who has satisfied the
eligibility requirements of Article II, Section 2.1. and attained his Entry
Date.
1.18 "Employee" means any person who is now or shall hereafter
become employed by a Signatory Company but excluding independent contractors,
self-employed persons or employees who are nonresident aliens deriving no
earned income (constituting income earned from sources within the United
States) from a Signatory Company.
1.19 "Employer" means the Corporation and any Signatory Company or
Affiliated Company, and shall include all trades and businesses, whether or not
incorporated, which are either under common control as determined under
Sections 414(b) and 414(c) of the Code (as modified in Section 1.4 above) or an
affiliated service group as determined under Section 414(m) of the Code, and
any other entity required to be aggregated pursuant to the regulations under
Section 414(o) of the Code.
-11-
<PAGE> 19
1.20 "Employer Matching Contribution" and "Employer Contribution"
means the amount contributed (if any) by the respective Signatory Companies on
behalf of each Member which is equal to a percentage of such Member's Deferral
Contribution and Considered Compensation, respectively. Any Employer Matching
Contribution or Employer Contribution intended to qualify under Section 401(k)
of the Code and intended to be included in the calculation of the Actual
Deferral Percentage shall also be designated as a Qualified Nonelective
Contribution.
1.21 "Employer Real Property" means real property (and related
personal property) which is leased to a Signatory Company or to an Affiliated
Company of any such Signatory Company.
1.22 "Employer Stock" means an equity security (preferred or
common, voting or nonvoting) issued by a Signatory Company or by an Affiliated
Company of any such Signatory Company.
1.23 "Entry Dates" for each Plan Year are January 1, April 1, July
1 and October 1, of such Plan Year.
1.24 "Excess Aggregate Contributions" means, with respect to any
Plan Year, the excess of:
(a) the aggregate amount of the after-tax employee
contributions and Employer Matching Contributions that are not
designated as Qualified Nonelective Contributions (and any qualified
nonelective contribution or elective contribution such as a Deferral
Contribution which are taken into account in computing the Actual
Contribution Percentage) actually made on behalf of Highly Compensated
Eligible Employees for such Plan Year, over
(b) the maximum amount of contributions permitted under the
Actual Contribution Percentage Test for such Plan Year, as determined
under the provisions of Article III, Section 3.8 hereof.
-12-
<PAGE> 20
1.25 "Excess Contributions" means, with respect to any Plan Year,
the excess of:
(a) the sum of the Deferral Contributions and Qualified
Nonelective Contributions made on behalf of Highly Compensated
Eligible Employees for such Plan year, over
(b) the maximum amount of contributions permitted under the
Actual Deferral Percentage test for such Plan Year, as determined
under the provisions of Article III, Section 3.3 hereof.
1.26 "Family Member" unless defined differently elsewhere in this
Plan, means with respect to an affected Member such Member's lineal descendants
and ascendants and their spouses, as described in Code Section 414(q)(6)(B).
1.27 "Forfeiture" means the nonvested balance of an Employee's
Account which is forfeited in accordance with Article VII, Section 7.6 of the
Plan because of termination from employment prior to full vesting.
1.28 "Highly Compensated Eligible Employee" means an Eligible
Employee who performed services for the Employer during the "determination
year" and is in one or more of the following groups:
(a) during the "determination year" or "look-back year" was a
five-percent owner of the Employer, as defined in Section 416 of the
Code and the regulations issued thereunder;
(b) received compensation during the "look-back year" from the
Employer in excess of $75,000 (or such other amount in effect under
Section 414(q)(1)(B) of the Code);
(c) received compensation during the "look-back year" from the
Employer in excess of $50,000 (or such other amount in effect under
Section 414(q)(1)(C) of the Code) and was in the top-paid group of
employees for such 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
-13-
<PAGE> 21
Employees when ranked on the basis of compensation paid during such
Plan Year. For purposes of determining the "top-paid group" of
Employees for any Plan Year, Section 414(q)(8) of the Code and Q & A
9(b) of Treas. Reg. Section 1.414(q)-1T shall apply to exclude
certain employees; or
(d) was during the "look-back year" an officer of the Employer
(as defined in Section 416 of the Code and the regulations issued
thereunder) and received compensation greater than one hundred fifty
percent (150%) of the amount in effect under Section 415(c)(1)(A) for
such Plan Year. Notwithstanding the preceding sentence, for purposes
of this subsection (d) the following rules shall apply:
(1) the number of officers taken into account for
any year shall not exceed the lesser of
(A) fifty (50) employees; or
(B) the greater of three (3) employees or ten
percent (10%) of employees; and
(2) if no officer of the Employer received
compensation greater than one hundred fifty percent (150%) of
the amount in effect under Section 415(c)(1)(A) of the Code
for such Plan Year, then the highest paid officer of the
Employer shall be treated as having received such amount of
compensation.
(e) were in the group consisting of the one hundred (100)
Eligible Employees paid the greatest compensation during the
"determination year" and were also described in (b), (c) or (d) above
when these paragraphs are modified to substitute "determination year"
for "look-back year" as discussed below.
The "determination year" shall be the Plan Year for which testing is being
performed, and the "look-back year" shall be the immediately preceding
twelve-month period or (if the Employer elects pursuant to Q & A 14 of Treas.
Reg. Section 1.414(q)-1T) the calendar ending with or within the determination
year. For purposes of this Section, "compensation" shall be defined under
Section 414(q)(7) of the Code and the regulations thereunder.
-14-
<PAGE> 22
There will be attributed to any five percent (5%) owner or any of the
ten (10) most highly compensated Eligible Employees any compensation paid to,
contributions made by or on behalf of, or benefits provided for any family
member of such five percent (5%) owner or highly compensated Eligible Employee,
pursuant to Section 414(g)(6) of the Code and the regulations thereunder.
"Family Member" for purposes of the preceding sentence means the spouse and the
lineal ascendants and descendants (and spouses of such ascendants and
descendants) of any employee or former employee. A former employee shall be
treated as a Highly Compensated Eligible Employee if such former employee was a
Highly Compensated Eligible Employee as defined herein at the time he separated
from service or at any time after attaining age fifty-five (55). Except as
provided by Section 416(i) of the Code, an Employee's status as a Highly
Compensated Eligible Employee is to be determined by reference to the
controlled group of corporations as provided in Section 414(b) of the Code, and
employers aggregated under Sections 414(b), (c), (m) or (o) are treated as a
single employer.
Notwithstanding the preceding paragraph, an Employee who was not a
Highly Compensated Eligible Employee, as defined in subsections (b), (c) or
(d), for the immediately preceding Plan Year shall not be treated as a Highly
Compensated Eligible Employee, as defined in subsections (b), (c) or (d), for
the current Plan Year unless such Employee is a member of the group consisting
of the one hundred (100) Employees paid the highest Considered Compensation
during the current Plan Year.
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1.29 "Hour of Service" means a time of service determined under
regulations prescribed by the Secretary of Labor. For purposes of this
determination, "Hours of Service" shall include each hour for which an Employee
is directly or indirectly paid by the Signatory Company for performance of
duties and for reasons other than performance of duties such as vacation,
holidays, sickness, disability, lay-off, Authorized Leaves of Absence, and
similar paid periods; and each hour for which back pay, irrespective of
mitigation of damages, has been either awarded or agreed to by a Signatory
Company. All "Hours of Service" shall be credited to the Employee for the
computation period or periods in which the duties were performed or, in cases
where the Employee is paid for reasons other than the performance of duties,
pursuant to the procedures outlined in Department of Labor Regulation Section
2530.200b-2(b) and (c); provided, however, where back pay has been either
awarded or agreed to by the Signatory Company, such hours shall be credited to
the Employee for the computation period or periods to which the award or
agreement pertains rather than the computation period in which the award,
agreement or payment is made.
1.30 "Key Employee" means any Employee or former Employee (and any
Beneficiary of a Employee or former Employee) who, at any time during the Plan
Year or any of the preceding four (4) Plan Years, is:
(a) an officer of the employer (as defined in Section 416 of
the Code and the regulations issued thereunder) having annual
compensation greater than one hundred fifty percent (150%) of the
amount in effect under Section 415(c)(1)(A) of the Code for any such
Plan
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<PAGE> 24
Year. Only incorporated employers will be considered as having
officers;
(b) one of the ten Employees owning (or considered as owning
within the meaning of Section 318 of the Code) the largest interests
in all employers required to be aggregated under Code Sections 414(b),
414(c), and 414(m). However, an Employee shall not be considered a
top ten owner for a Plan Year under the preceding sentence if the
Employee earns less than $30,000 in annual compensation (or such other
amount adjusted in accordance with Section 415(c)(1)(A) of the Code)
as in effect for the calendar year in which the Determination Date
falls. For this purpose, if two Employees have the same such
interest, the Employee having the greater Considered Compensation
shall be treated as having the larger interest;
(c) a "five percent owner" of the employer. For this purpose
"five percent owner" means any person who owns (or is considered as
owning within the meaning of Section 318 of the Code) more than five
percent (5%) of the outstanding stock of the employer or stock
possessing more than five percent (5%) of the total combined voting
power of all stock of the employer. In determining the ownership
percentage, employers which would otherwise be aggregated under
Sections 414(b), 414(c) and 414(m) of the Code shall be treated as
separate employers; or
(d) a "one percent owner" of the employer having an annual
compensation from the employer of more than $150,000. For this purpose
"one percent owner" means any person who owns (or is considered owning
within the meaning of Section 318 of the Code) more than one percent
(1%) of the outstanding stock of the employer or stock possessing more
than one percent (1%) of the total combined voting power of all stock
of the employer. In determining the ownership percentage, the
employers which would otherwise be aggregated under Sections 414(b),
414(c), and 414(m) of the Code shall be treated as separate employers.
However, in determining whether an individual has compensation of more
than $150,000, compensation from each employer required to be
aggregated under Sections 414(b), 414(c) and 414(m) of the Code shall
be aggregated.
In addition, for Plan Years beginning after December 31, 1984, if a
Member or Former Member has not performed any services for any Employer
maintaining the Plan at any time during the five (5) year period ending on the
Determination Date, the Aggregate Account for
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<PAGE> 25
such Member or Former Member shall not be taken into account for
the purposes of determining whether this Plan is a Top Heavy or Super Top Heavy
Plan under Article X, Section 10.1 or 10.2.
1.31 "Marketable Obligation" means a bond, debenture, note,
certificate, or other evidence of indebtedness, referred to as an "obligation",
if:
(a) Such obligation is acquired:
(1) On the market
(A) At the price of the obligation prevailing
on a national securities exchange which is registered
with the Securities and Exchange Commission; or
(B) If the obligation is not traded on such
a national securities exchange, at a price not less
favorable to the Plan than the offering price for
the obligation as established by current bid and
asked prices quoted by persons independent of the
issuer;
(2) From an underwriter, at a price
(A) Not in excess of the public offering
price for the obligation as set forth in a prospectus
or offering circular filed with the Securities and
Exchange Commission; and
(B) At which a substantial portion of the
same issue is acquired by persons independent of the
issuer; or
(3) Directly from the issuer, at a price not less
favorable to the Plan than the price paid currently for a
substantial portion of the same issue by persons independent
of the issuer;
(b) Immediately following acquisition of such obligation:
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<PAGE> 26
(1) Not more than twenty-five percent (25%) of the
aggregate amount of obligations issued in such issue and
outstanding at the time of acquisition is held by the Plan;
and
(2) At least fifty percent (50%) of the aggregate
amount referred to in subparagraph (1) is held by persons
independent of the issuer; and
(c) Immediately following acquisition of the obligation, not
more than twenty-five percent (25%) of the assets of the Plan is
invested in obligations of the Signatory Company or an Affiliated
Company of the Signatory Company.
1.32 "Member" or "Members" means an Eligible Employee or Eligible
Employees who elects or elect to participate in the Plan during the Plan Year.
1.33 "Non-Key Employee" is an Employee who is not a Key Employee at
any time during the Plan Year or any of the preceding four (4) Plan Years and
the Beneficiaries of such Employee.
1.34 "Plan" means the Stewart Title Guaranty Company Salary
Deferral Plan herein set forth and all subsequent amendments hereto.
1.35 "Plan Year" begins on January 1 and ends on December 31.
1.36 "Qualified Nonelective Contributions" means any Employer
Contribution or Employer Matching Contribution (other than a Deferral
Contribution) that satisfies the same vesting and distribution provisions
applicable to Deferral Contributions as provided in Article VII of the Plan and
is designated by the Administrative Committee as such.
1.37 "Qualifying Employer Security" means a security issued by a
Signatory Company or by an Affiliated Company of any such
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<PAGE> 27
Signatory Company which is Employer Stock or a Marketable Obligation.
1.38 "Retired Member" means a person who was at one time a Member
and who has retired in accordance with the provisions of this Plan.
1.39 "Signatory Company" or "Signatory Companies" means the
Corporation, any of the Corporation's Affiliated Companies (and any other
business organization) which adopts this Plan.
1.40 "Total Permanent Disability" means a mental or physical
disability which, in the opinion of a physician selected by the Administrative
Committee, will prevent a Member from earning a reasonable livelihood and
which:
(a) Was neither contracted, suffered or incurred while such
Member was engaged in, nor resulted from his having engaged in, a
felonious criminal enterprise;
(b) Did not result from an intentionally self inflicted
injury;
(c) Did not result from an injury incurred while a member of
the Armed Forces of the United States after the Effective Date of this
Plan and for which such Member receives a military pension; and
(d) Did not result (directly or indirectly) from the Member's
engaging in substance abuse as determined by the Administrative
Committee under standards set forth in the substance abuse policy
adopted by the Signatory Company which employs the Member.
1.41 "Transferred" as used with respect to an Employee and
"Transfer of an Employee" means the termination of employment of an Employee by
one Signatory Company and the contemporaneous commencement of the employment of
such Employee by another Signatory Company.
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<PAGE> 28
1.42 "Trust" means the trust estate created herein or by the
separate agreement of the Corporation and the Trustee.
1.43 "Trust Fund" means the cash, bonds, stocks and other
properties held by the Trustee pursuant to the Trust created under the Plan.
1.44 "Trustee" or "Trustees" means the Ameritrust Texas, N.A. until
April 1, 1991 and then it means First Interstate Bank of Texas, N.A. (and its
successors) and any individual(s), corporation(s) or institution(s) appointed
by the Corporation as successor Trustee(s).
1.45 "Year of Service" means a period of twelve (12) consecutive
months during which an Employee has not less than one thousand (1,000) Hours of
Service with a Signatory Company or is on an Authorized Leave of Absence. For
purposes of determining eligibility under Article II, an Employee's initial
twelve (12) months of service with the Signatory Company, beginning with the
day he first performs an Hour of Service, shall be the computation period used
initially to determine whether he has a Year of Service. However, if an
Employee does not have at least one thousand (1,000) Hours of Service during
his initial twelve (12) months of service, the one thousand (1,000) Hours of
Service requirement shall be measured with respect to the Plan Year which
includes the first anniversary of his employment commencement date and, where
necessary, subsequent Plan Years. The computation of Years of Service before a
Break-in-Service includes Years of Service required for eligibility plus all
vesting computation periods based on one thousand (1,000) Hours of Service
during a
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<PAGE> 29
Plan Year. For all other purposes the computation of such period shall be made
with reference to the Plan Year. Years of Service for eligibility and vesting
purposes shall also include Hours of Service with an Affiliated Company or
predecessor Employer to the extent designated by the Administrative Committee
or as otherwise required by law.
ARTICLE II.
Employees Entitled to Participate
2.1 Eligibility to Participate. Every Employee shall become a
Member of the Plan on the Entry Date coincident with or next following the
completion of one (1) Year of Service with a Signatory Company and the filing
of a written application for membership with the Administrative Committee in
which he authorizes payroll deductions, agrees to conform to the requirements
of the Plan and furnishes to the Administrative Committee such information as
is necessary to enable it to fulfill its duties and responsibilities under the
terms and provisions of the Plan. If an Eligible Employee does not elect to
participate in the Plan, he may become a Member on a subsequent Entry Date by
submitting the required written application to the Administrative Committee
prior to that Entry Date. A Member's election to make Deferral Contributions
under this Plan shall in no way be made a direct or indirect condition of any
other benefit provided by the Employer to such Member under this or any other
plan or arrangement. The preceding sentence shall not apply to any Employer
Matching Contribution made by reason of such election.
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<PAGE> 30
2.2 Participation Status. In the event that any Member shall fail,
in any Plan Year of his employment after the Effective Date, to accumulate one
thousand (1,000) Hours of Service but does not incur a one (1) year
Break-in-Service, his Account shall be placed on inactive status. In such case,
such Plan Year shall not be considered as a Year of Service for the purpose of
determining the Member's vested interest in accordance with Article VII, 7.1
hereof and the Member shall not share in any Employer Contributions or Employer
Matching Contributions for any such Plan Year, but he shall continue to receive
income allocations and valuation adjustments in accordance with Article IV,
Sections 4.5 and 4.6 and shall continue to have the right to elect to make
Deferral Contributions in accordance with Article III, Section 3.1 until his
employment terminates as described in the following paragraph. In the event
such Member accumulates one thousand (1,000) Hours of Service in a subsequent
Plan Year, his Account shall revert to active status with full rights and
benefits under this Plan restored. In the event a Member terminates employment
for any reason, such Member shall (to the extent previously eligible):
(a) share in any Employer Matching Contributions and Employer
Contributions through the date of his termination of employment,
(b) continue to receive income allocations and valuation
adjustments on the amount in his Account pursuant to Article IV,
Sections 4.5 and 4.6 after his termination of employment until the
complete distribution of his Account pursuant to Article IX, and
(c) continue to have the right to elect to make Deferral
Contributions in accordance with Article III, Section 3.1 until the
date of his termination of employment.
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<PAGE> 31
2.3 Participation and Service Upon Reemployment. Participation in
the Plan shall cease upon termination of employment with the Signatory Company.
Termination of employment may result from retirement, death, disability,
voluntary or involuntary termination of employment, unauthorized absence, or by
failure to return to active employment with the Signatory Company by the date
on which an Authorized Leave of Absence expires.
Upon the reemployment of any person after the Effective Date who had
previously been employed by the Signatory Company on or after the Effective
Date, the following rules shall apply in determining his participation in the
Plan:
(a) If the reemployed Employee was not a Member of the Plan
during his prior period of employment, he must meet the service
requirements of Section 2.1 for participation in the Plan as if he
were a new Employee; provided, however, that if such Employee failed
to incur a Break-in-Service prior to his reemployment commencement
date, the eligibility computation period for such reemployed Employee
shall be the initial period beginning with the Employee's employment
commencement date and not the date of his reemployment;
(b) If the reemployed Employee had previously satisfied the
requirements of Section 2.1 and had been a Member of the Plan prior to
his termination of employment, he shall become an Eligible Employee on
his reemployment commencement date;
(c) If the reemployed Employee had been a Member of the Plan
prior to his termination but suffered a one-year Break-in-Service
prior to his resumption of employment, he shall not be eligible to
reparticipate in the Plan until he has completed a Year of Service
after his return.
For purposes of this section, an Employee's employment commencement date shall
be the date he first performs an Hour of Service for the Signatory Company and
his reemployment commencement date shall be
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<PAGE> 32
the date he first performs an Hour of Service upon reemployment with the
Signatory Company.
2.4 Full Participation. A Member who completes a Year of Service
shall participate fully in the Plan for such Plan Year. Employment for the full
Plan Year shall not be required in order for a Member to be eligible to
participate fully in the Plan for such Plan Year for purposes of sharing in
Employer Matching Contributions and Employer Contributions. The number of Hours
of Service completed by a Member during a particular Plan Year shall be the
sole determinant as to whether a Member shall be credited with a Year of
Service and thereby be entitled to participate fully in the Plan for such Plan
Year. There shall be no condition to participation in a Plan Year other than
meeting the eligibility requirements of Section 2.1 and attaining an Entry
Date.
Any Member who fails to complete a Year of Service during the Plan
Year in which he dies, retires, is determined to be suffering from a Total
Permanent Disability or otherwise terminates his employment with a Signatory
Company shall not be eligible to fully participate in the Plan for such Plan
Year. However, his Account shall continue to be credited with income
allocations and valuation adjustments pursuant to Article IV, Sections 4.5 and
4.6 until his Account is distributed to him.
Conversely, if the Member completes a Year of Service during a Plan
Year in which such a terminating event occurs, he shall be eligible to fully
participate in the Plan for such Plan Year. As long as a terminated Member's
Account remains in the Plan such
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<PAGE> 33
Member's Account shall be credited with income allocations and valuation
adjustments.
A Member who ia not eligible to "fully participate" in the Plan within
the meaning of this Section 2.4, shall nonetheless have the right to elect to
make Deferral Contributions in accordance with Article III, Section 3.1.
2.5 Transferred Employee. An Employee's status as either an
Employee, Eligible Employee or a Member shall not be deemed to be interrupted
or severed by the fact that he is transferred from the employ of one Signatory
Company to that of any other Signatory Company or performs services for more
than one Signatory Company.
2.6 Certification. Eligibility shall be determined and certified
to the Trustee by the Administrative Committee, based upon information
furnished by the Signatory Company, not later than thirty (30) days after each
Entry Date.
2.7 Notice to Employees. The Administrative Committee shall notify
each Employee of his eligibility to participate within thirty (30) days before
the Entry Date on which he will become an Eligible Employee under Section 2.1
hereof, and each such notice shall be accompanied by an enrollment form and a
description of the Plan written in a manner reasonably calculated to be
understood by the Employee. The Administrative Committee shall notify each
Member whose Account is placed on inactive status, or restored to active status
pursuant to Section 2.2 hereof, within a reasonable time after such action has
been taken.
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<PAGE> 34
ARTICLE III.
Contributions
3.1 Deferral Contributions. For each Plan Year beginning with the
first Plan Year with respect to which this Plan is adopted by a Signatory
Company, each Member employed by such Signatory Company may elect to have
allocated to his Account as a Deferral Contribution any percentage (or whole
dollar amount if authorized by the Administrative Committee in its sole
discretion), not to exceed eighteen percent (18%) of his Considered
Compensation for the Plan Year; provided, however, that the Administrative
Committee in its discretion may limit the percentage (or dollar amount)
deferred by any Member who is a Highly Compensated Eligible Employee. The
Deferral Contribution shall be paid through payroll deductions of the
applicable percentage (or dollar amount) by the Signatory Company, and the
compensation otherwise paid to the Member shall be reduced to the extent of
such Deferral Contribution.
The Member may change his Deferral Contribution percentage (or dollar
amount) by filing the required form with the Administrative Committee before
the beginning of a payroll period. The new Deferral Contribution shall become
effective as of the payroll period which begins after the day the
Administrative Committee receives and processes the form.
The Member shall have the right to suspend his Deferral Contribution
at any time by giving a written notification to the Administrative Committee.
Such suspension shall become effective for the payroll period next following
the payroll period during
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<PAGE> 35
which such notification is received by the Administrative Committee. If the
Member suspends his Deferral Contribution, he shall forfeit his right to elect
to make additional Deferral Contributions until the next Entry Date. As of this
next or any subsequent Entry Date, the Member may resume Deferral Contributions
to his Account by filing the required form prior to an Entry Date, to take
effect for the next payroll period following such Entry Date.
Elections to make Deferral Contributions, increase or decrease
Deferral Contributions, suspend Deferral Contributions or resume Deferral
Contributions shall be in writing, signed by the Member, on such form or forms
as the Administrative Committee shall provide. Upon termination of employment,
the amount attributable to the Deferral Contribution allocated to the Member's
Account shall be distributed pursuant to Article VII of this Plan.
Each Member's Deferral Contribution for a Plan Year under this Plan
shall be limited to $7,000 (as adjusted for the cost of living, or such other
amount provided in Section 402(g)(5) of the Code). If a Member's total personal
deferral contributions exceed $7,000 (as adjusted for the cost of living, or
such other amount provided in Section 402(g)(5) of the Code) in any Plan Year,
the provisions of Article III, Section 3.7 hereof shall become applicable. The
term "total personal deferral contributions" means the sum of all Deferral
Contributions and any other "elective deferrals" by an Eligible Employee under
any other cash or deferred arrangements or (qualified plan type) elective
deferral vehicle of
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<PAGE> 36
the Employer or any other employer, subject to any offset rules provided under
the Code or regulations.
No Deferral Contribution may be taken into account for purposes of
determining whether any other contributions under this Plan or any other plan
meet the requirements of Section 401(a) or Section 410(b) of the Code, or for
purposes of satisfying the ("top heavy") minimum allocation rules of Article X,
Section 10.6 of this Plan. The preceding sentence shall not apply for purposes
of determining whether a plan meets the percentage portion or average benefit
requirement of Section 410(b)(2)(A)(ii) of the Code.
3.2 Employer Matching Contributions and Employer Contributions.
For each Plan Year beginning with the first Plan Year with respect to which
this Plan is adopted by a Signatory Company, such Signatory Company shall,
subject to the limitations contained in Section 3.3 hereof, contribute to the
Trust, an Employer Matching Contribution equal to a percentage of each Member's
Deferral Contribution for such Plan Year, such Employer Matching Contribution
to be determined by the Board of Directors of the Corporation, acting in its
sole discretion. The amount of the Employer Matching Contribution for each Plan
Year shall be established by a resolution adopted by such Board of Directors.
The Corporation's Board of Directors shall have the right to make a larger or
additional Employer Matching Contribution on behalf of Members who are not
Highly Compensated Members for the purpose of assuring the Plan's compliance
with the Actual Deferral Percentage Test of Section 3.3 of this Article and the
Actual Contribution Test of Section 3.8 of this Article, and such additional
Employer
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<PAGE> 37
Matching Contribution for non-Highly Compensated Members shall be immediately
and fully nonforfeitable and shall not be subject to any vesting schedule in
Article VII, Section 7.1.
For each Plan Year beginning with the first Plan Year with respect to
which this Plan is adopted by a Signatory Company, such Signatory Company may,
subject to the limitations contained in Section 3.3 of this Article, contribute
to the Trust an Employer Contribution equal to a percentage of an Eligible
Employee's Considered Compensation, such sum to be determined by the
Corporation's Board of Directors, acting in its sole discretion. Such Employer
Contribution for any Plan Year will be allocated to an Eligible Employee
pursuant to Article IV, regardless of whether the Eligible Employee makes
Deferral Contributions for all or any part of such Plan Year.
The amount of the Employer Matching Contribution and Employer
Contribution for each Plan Year shall be established by a resolution adopted by
the Corporation's Board of Directors. Such resolution will be communicated to
the Signatory Companies by the Corporation and to the Members by their
respective Signatory Companies. For the initial Plan Year, ending December 31,
1986, and for each year thereafter, unless otherwise established or determined
by the Board of Directors the Employer Matching Contribution shall be equal to
fifty percent (50%) of each Member's Deferral Contribution up to a maximum
Deferral Contribution of four percent (4%) of each such Member's Considered
Compensation. For purposes of this Section 3.2, in computing the Employer
Matching
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<PAGE> 38
Contribution, a Member's Considered Compensation shall only be taken into
account up to fifty thousand dollars ($50,000)
3.3 Actual Deferral Percentage Test. If for the Plan the Actual
Deferral Percentage for the group of Highly Compensated Eligible Employees
(based upon Eligible Employee participation elections) would be more than the
greater of:
(a) the Actual Deferral Percentage of all other Eligible
Employees multiplied by 1.25; or
(b) the lesser of (i) two percentage (2%) points plus the
Actual Deferral Percentage of all other Eligible Employees, or (ii)
the Actual Deferral Percentage of all other Eligible Employees
multiplied by two (2),
such Excess Contribution shall be corrected in the manner set forth below. The
calculation described in the preceding sentence is referred to herein as the
"Actual Deferral Percentage Test." The Administrative Committee may, in its
discretion, select either of the following methods of correction or any
combination thereof in any Plan Year:
(1) The Excess Contributions (and income allocable thereto)
may, if such Excess Contributions are designated by the Administrative
Committee as distributions of Excess Contributions (and income), be
distributed to the appropriate Highly Compensated Eligible Employees
after the close of such Plan Year and within 12 months of the close of
such Plan Year. The income allocable to Excess Contributions includes
both income for the Plan Year for which the Excess Contributions were
made and income for the period between the end of the Plan Year and
the date of distribution, and will be calculated pursuant to Prop.
Reg. Section 1.401(k)-l(f)(4). If feasible, the Administrative
Committee shall in its sole discretion determine and distribute the
amount of Excess Contributions within two and one-half (2 1/2) months
after the end of the Plan Year. The Administrative Committee may
distribute Excess Contributions without regard to any notice or
consent otherwise required under the Plan or Section 411(a)(11) and
Section 417 of the Code limiting distributions. The amount of Excess
Contributions for a Highly Compensated Eligible Employee for a Plan
Year is to be determined by
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<PAGE> 39
the following leveling method, under which the actual deferral ratio
of the Highly Compensated Eligible Employee with the highest actual
deferral ratio is reduced to the extent required to satisfy the Actual
Deferral Percentage Test set forth above or cause such Highly
Compensated Eligible Employee's actual deferral ratio to equal the
ratio of the Highly Compensated Eligible Employee with the next
highest actual deferral ratio. This process must be repeated until
the Actual Deferral Percentage Test is satisfied for such Plan Year.
Except to the extent otherwise provided in regulations, both refunded
Excess Deferrals and retained Excess Deferrals under Section 3.7 of
this Article are taken into account in determining a Member's Actual
Deferral Percentage for purposes of the above calculation.
(2) The Excess Contributions may be recharacterized as
after-tax employee contributions in accordance with the provisions of
Treas. Reg. Section 1.401(k)- l(f)(3). Recharacterized Excess
Contributions remain subject to the nonforfeitability requirements and
distribution limitations that apply to Deferral Contributions. Excess
Contributions will not be recharacterized with respect to a Highly
Compensated Eligible Employee to the extent that the recharacterized
amounts, in combination with employee contributions actually made by
such Highly Compensated Eligible Employee, exceed the maximum amount
of employee contributions (determined prior to the application of Code
Section 401(m)(2)(A)) that such Highly Compensated Eligible Employee
is permitted to make under the Plan in the absence of
recharacterization.
In no event shall the sum of the Deferral Contributions (including
recharacterized Excess Contributions), and the Signatory Company's Employer
Matching Contribution, and the Signatory Company's Employer Contribution exceed
an amount equal to fifteen percent (15%) of the total Considered Compensation
otherwise paid or accrued during such Plan Year of such Signatory Company plus
the maximum amount deductible under the "carry-over" provisions of the Code
relating to Employer Matching Contributions and Employer Contributions in
previous years of less than the maximum amount permissible. In addition, in no
event shall the aggregate of such Deferral Contribution, Employer Matching
Contribution, Employer
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<PAGE> 40
Contribution and the Signatory Company's contributions to all other qualified
pension, profit sharing or stock bonus plans for such Plan Year exceed the
amount deductible from the Signatory Company's income for such Plan Year under
Section 404(a)(7) of the Code. In the event the aggregate of the Signatory
Company's contributions under all plans would exceed such maximum deductible
amount, the Employer Matching Contribution and Employer Contribution to the
Plans shall be reduced by the amount necessary to reduce the Signatory
Company's aggregate contribution under all such plans to the maximum amount
deductible under said section of the Code.
Deferral Contributions will be taken into account under the Actual
Deferral Percentage Test for a Plan Year only if such Deferral Contributions
are allocated to the Eligible Employee as of a date within such Plan Year. For
this purpose, a Deferral Contribution is considered allocated as of a date
within a Plan Year if the allocation is not contingent on participation or
performance of services after such date and the Deferral Contribution is
actually paid to the Trust no later than twelve (12) months after the Plan Year
to which the contribution relates.
In the case of a Highly Compensated Eligible Employee whose Actual
Deferral Percentage is determined under the family aggregation rules of Code
Section 414(q)(6), the determination of the amount of Excess Contributions
shall be made as follows:
(3) If the Highly Compensated Eligible Employee's Actual
Deferral Percentage is determined under Article I, Section 1.4(1)(ii),
then the Actual Deferral Percentage is reduced in accordance with the
leveling method described in Treas. Reg. Section 1.401(k)-l(f)(2) and
the Excess Contributions for the family unit are allocated among the
Family Members in proportion to the elective contribu-
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<PAGE> 41
tions of each Family Member that have been combined to determine the
Actual Deferral Percentage.
(4) If the Highly Compensated Eligible Employee's Actual
Deferral Percentage is determined under Article I, Section 1.4(1)(i),
then the Actual Deferral Percentage is reduced in accordance with the
leveling method described in Treas. Reg. Section 1-401(k)-l(f)(2) but
not below the Actual Deferral Percentage of Family Members who are
Non-Highly Compensated Eligible Employees without regard to family
aggregation. Excess Contributions are determined by taking into
account the contributions of the eligible Family Members who are
Highly Compensated Eligible Employees without regard to family
aggregation, and are allocated among such Family Members in proportion
to each such Family Member's elective contributions. If further
reduction of the Actual Deferral Percentage is required, Excess
Contributions resulting from this reduction are determined by taking
into account the contributions of all eligible Family Members and are
allocated among such Family Members in proportion to the elective
contributions of each Family Member.
Paragraphs (3) and (4) above shall be administered in accordance with Prop.
Reg. Section 1.401(k)-1(f)(5)(iii). Excess Contributions will be corrected in
accordance with this Section 3.3 in a timely fashion to avoid disqualification
of the Plan or other sanction imposed under the Code (including the imposition
of tax under Code Section 4979).
3.4 Time of Payment. The Employer Matching Contribution and
Employer Contribution of each Signatory Company for each Plan Year shall be
paid to the Trustee in one or more installments as the Signatory Company
(subject to the consent of the Corporation) may from time to time determine;
provided, however, that all such installments shall be paid no later than the
time prescribed by law for filing such Signatory Company's federal income tax
return for such taxable year (including extensions thereof) and, if earlier
with respect to the Employer Matching Contribution, no later than
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12 months after the close of the Plan Year (or other period prescribed by final
regulations).
3.5 Administrative Committee to Prescribe Rules Governing Deferral
Contributions. Deferral Contributions may be made only in accordance with such
uniform rules and regulations as may be prescribed from time to time by the
Administrative Committee. Such uniform rules and regulations of the
Administrative Committee may, among other things and subject to the provisions
set forth in the Plan, restrict Deferral Contributions to those made through
authorized payroll deductions, require payroll deductions to be authorized on a
specified periodic basis and suspend, for a specified period, the right to
Deferral Contributions on the part of a Member who has discontinued his
Deferral Contributions.
3.6 Prohibition Against Reversion. In no event, except as
expressly provided in Article XX and Article V, Section 5.6 hereof, shall the
principal or income of the Trust herein created be paid to or revert to the
Signatory Company, or be used for any purpose other than for the exclusive
benefit of the Members or their Beneficiaries.
3.7 Excess Deferral Contributions. The amount by which an
Eligible Employee's Deferral Contribution (including for this purpose any other
total personal deferral contributions within the meaning of Section 3.1 above)
in any Plan Year exceeds the limitation in effect under Section 402(g)(1) of
the Code and referred to in Section 3.1 above for such Plan Year shall be known
as the Eligible Employee's Excess Deferral for such Plan Year. An Eligible
Employee's Excess Deferral for any Plan Year shall not be
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<PAGE> 43
considered as reducing such Eligible Employee's compensation under Article III,
Section 3.1 to the extent of such Excess Deferral.
An Eligible Employee's Excess Deferral is not required to be refunded
to such Eligible Employee. However, notwithstanding any other provision of law
or of this Plan limiting distributions, the Administrative Committee in its
sole discretion may refund any Eligible Employee's Excess Deferral (plus any
allocable income) to such Eligible Employee in accordance with the provisions
set forth below. If a Member has made an Excess Deferral for his taxable year,
the Member must notify the Administrative Committee in writing no later than
the March 15th following the end of such taxable year, on the form prescribed
by the Administrative Committee for this purpose, of the amount the Member
requests to be distributed. The distribution to the Member shall be made after
such taxable year but no later than the first April 15 following the close of
such taxable year. Alternatively, the Administrative Committee may also
provide for a distribution of the Excess Deferral during ,such taxable year,
provided the following conditions are satisfied:
(a) The Member designates the distribution as an Excess
Deferral;
(b) The distribution of the Excess Deferral is made after the
date in which the Plan received the Excess Deferral; and
(c) The Administrative Committee designates the distribution
as a distribution of an Excess Deferral.
The amount of Excess Deferral to be distributed to a Member for the Member's
taxable year shall be reduced by any Excess Contribution previously distributed
or recharacterized as an after-tax employee
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<PAGE> 44
contribution under Section 3.3 of the Plan for the Plan Year beginning with or
within such taxable year.
3.8 Actual Contribution Percentage Test. If for the Plan Year the
Actual Contribution~Percentage for the group of Highly Compensated Eligible
Employees would be more than the greater of:
(a) the Actual Contribution Percentage for all other Eligible
Employees multiplied by 1.25; or
(b) the lesser of (i) the Actual Contribution Percentage for
all other Eligible Employees plus two percentage (2%) points, or (ii)
the Actual Contribution Percentage for all other Eligible Employees
multiplied by two (2),
such Excess Aggregate Contributions, shall be corrected in the manner set forth
below. The calculation described in the preceding sentence is referred to
herein as the "Actual Contribution Percentage Test." The Excess Aggregate
Contributions (and income allocable thereto) shall be distributed to (or, if
forfeitable, in the discretion of the Administrative Committee uniformly
applied, forfeited by) Highly Compensated Eligible Employees after the close of
the Plan Year in which such Excess Aggregate Contributions arose and within 12
months after the close of the following Plan Year. If feasible, the
Administrative Committee shall in its sole discretion determine and distribute
the amount of Excess Aggregate Contributions within two and one-half (2 1/2)
months after the end of the Plan Year. In the event of the complete
termination of the Plan during such Plan Year, the distributions described in
the preceding sentence shall be made after termination of the Plan and within
the 12 months following such termination.
The amount of Excess Aggregate Contributions for a Highly Compensated
Eligible Employee for a Plan Year is to be determined
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by the following contribution leveling method, under which the actual
contribution ratio of the Highly Compensated Eligible Employee with the highest
actual contribution ratio is reduced to the extent required to satisfy the
Actual Contribution Percentage Test set forth above or to cause such Highly
Compensated Eligible Employee's actual contribution ratio to equal the ratio of
the Highly Compensated Eligible Employee with the next highest actual
contribution ratio. This process must be repeated until the Actual
Contribution Percentage Test is satisfied for such Plan Year.
In determining the amount of Excess Aggregate Contributions under the
leveling method set forth above, actual contribution ratios must be rounded to
the nearest one-hundredth percent of the Eligible Employee's Considered
Compensation. In no case shall the amount of Excess Aggregate Contributions
with respect to any Highly Compensated Eligible Employee exceed the amount of
the after-tax employee contributions and Employer Matching Contributions on
behalf of such Highly Compensated Eligible Employee for such Plan Year. Excess
Aggregate Contributions for a Plan Year shall be distributed or forfeited in
accordance with the provisions Ret forth above and shall not remain unallocated
or allocated to a suspense account for allocation to one or more Employees in
any future year. The determination of the amount of Excess Aggregate
Contributions witH respect to a Plan Year shall be made after the determination
and correction of Excess Deferrals under Article III, Section 3.7, and the
determination and correction of Excess Contributions under Article III, Section
3.3, respectively, have been made.
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<PAGE> 46
In the case of a Highly Compensated Eligible Employee whose Actual
Contribution Percentage is determined under the family aggregation rules of
Code Section 414(q), the determination of the amount of Excess Aggregate
Contributions shall be made as follows:
(1) If the, Highly Compensated Eligible Employee's Actual
Contribution Percentage is determined by combining the contributions
and compensation of all Family Members, then the Actual Contribution
Percentage is reduced in accordance with the leveling method described
in Prop. Reg. Section l-401(m)-l(e)(2) and the Excess Aggregate
Contributions for the family unit are allocated among the Family
Members in proportion to the contributions of each Family Member that
have been combined to determine the Actual Contribution Percentage.
(2) If the Highly Compensated Eligible Employee's Actual
Contribution Percentage is determined by combining the contributions
of only those Family Members who are Highly Compensated Eligible
Employees without regard to family aggregation, then the Actual
Contribution Percentage is reduced in accordance with the leveling
method described in Prop. Reg. Section 1.401(m)- l(e)(2) but not below
the Actual Contribution Percentage of Family Members who are
Non-Highly Compensated Eligible Employees without regard to family
aggregation. Excess Aggregate Contributions are determined by taking
into account the contributions of the eligible Family Members who are
Highly Compensated Eligible Employees without regard to family
aggregation and are allocated among such Family Members in proportion
to each such Family Member's employee contributions and Employer
Matching Contributions. If further reduction of the Actual
Contribution Percentage is required, Excess Aggregate Contributions
resulting from this reduction are determined by taking into account
the contributions of all eligible Family Members and are allocated
among such Family Members in proportion to the employee contributions
and Employer Matching Contributions of each Family Member.
Paragraphs (1) and (2) above shall be administered in accordance with Prop.
Reg. Section l.401(m)-l(e)(4)(iii).
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ARTICLE IV.
Allocation to Accounts
4.1 Certification by the Signatory Company. As soon as
practicable after the end of the first Plan Year and the end of each succeeding
Plan Year thereafter, the Signatory Company shall certify to the Administrative
Committee the amount of its Employer Matching Contribution and Employer
Contribution (if any) for the Plan Year then ended and the names of the
Members entitled to share therein, the amount of Considered Compensation paid
to each Member for such Plan Year and the amount of Considered Compensation
paid to all Members for such Plan Year. Such certification shall be conclusive
evidence of such facts.
4.2 Separate Account Maintained for Each Member. The
Administrative Committee shall create and maintain adequate records to disclose
the interest in the Trust Fund of each Member, Retired Member and Beneficiary.
Such records shall be in the form of individual Accounts, and credits and
charges shall be made to such Accounts in the manner herein described. The
maintenance of individual Accounts is only for accounting purposes and a
segregation of the assets of the Trust Fund to each Account shall not be
required.
4.3 Allocation of Deferral Contribution to Members' Accounts. At
the end of each payroll period under procedures adopted by the Administrative
Committee, the Signatory Company shall transfer the Deferral Contributions to
the Trustee and shall certify to the Administrative Committee the names of the
Eligible Employees, the names of the Members, and the Deferral Contribution
amount for each
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Member. The Administrative Committee shall allocate the Deferral Contribution
made on behalf of a Member directly to such Member's Account.
4.4 Allocation of Employer Matching Contributions. Employer
Contributions to Members' Accounts. The Administrative Committee shall
determine the Deferral Contribution amount for each Member of the Plan. The
Administrative Committee shall then, under procedures adopted by it, allocate
an amount from the Signatory Company's Employer Matching Contribution (if any)
to the Member's Account which is equal to the matching percentage, as
determined by the Corporation's Board of Directors under Article III, Section
3.2 hereof, of the Member's Deferral Contribution for the Plan Year.
The Administrative Committee shall allocate the Signatory Company's
Employer Contribution (if any) for each Plan Year among the Members employed by
the Signatory Company in the proportion that the Considered Compensation of
each Member employed by the Signatory Company bears to the total Considered
Compensation of all Members employed by the Signatory Company.
If a Member has been transferred or performs services for more than
one (1) Signatory Company during the Plan Year, such Member shall be entitled
to have allocated to his Account a portion of the Employer Matching
Contribution and Employer Contribution made by each Signatory Company by whom
such Member was employed during such Plan Year and the amount allocated to the
Member's Account shall be computed with respect to each Signatory Company in
the manner hereinabove provided based (in the case of Employer Matching
Contributions) upon the Deferral Contribution made on his behalf by
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<PAGE> 49
each Signatory Company during the Plan Year and (in the case of Employer
Contributions) upon the Considered Compensation earned by the Member from each
Signatory Company during the Plan Year. A Member shall not receive a lesser
allocation to his Account by reason of having been transferred or having
performed services for more than one (1) Signatory Company during the Plan Year
than such Member would have received had his Deferral Contribution or
Considered Compensation for the Plan Year been paid by one Signatory Company.
If an adjustment of the allocation to such Member's Account is necessary in
order to achieve this result, it shall be made by the Signatory Company with
whom such Member was employed for the greatest portion of the Plan Year.
4.5 Allocation of Trust Fund Income. As of the end of each
calendar quarter, the Administrative Committee shall determine the amount of
income earned by each class of investment since the preceding Entry Date. The
Administrative Committee shall allocate such income among the Members in the
proportion that the amount in each Member's Account invested in each class of
investment at the end of each such calendar quarter since the preceding Entry
Date bears to the aggregate amount of all Members' Accounts invested in such
class of investments at the end of such calendar quarter since the preceding
Entry Date.
However, in the event that a Member receives a distribution from his
Account during any such calendar quarter, the allocation of income to such
Member's Account for such calendar quarter shall be based upon his reduced
Account balance at the end of such calendar quarter and the amount invested in
each class of
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investment as of the end of such calendar quarter. If a Member received the
total balance in his Account during a calendar quarter, he shall not be
entitled to an income allocation for such calendar quarter.
4.6 Valuation of Trust Fund. As of the end of each calendar
quarter, the Trustee shall revalue the Trust Fund at its then fair market
value. The Administrative Committee shall then allocate any appreciation or
depreciation in the Trust Fund among the Members' Accounts in the proportion
that the amount in each Member's Account invested in such class of investments
at such Entry Date bears to the aggregate amount of all Members' Accounts at
the end of such calendar quarter after the allocation of income under Section
4.5. Beginning with the second calendar quarter, the Trustee shall allocate any
appreciation in the Trust Fund among the Members in the proportion that the
amount in each Member's Account at the beginning of the calendar quarter bears
to the aggregate of all Members' Accounts at the beginning of such calendar
quarter.
However, in the event that a Member receives a distribution from his
Account during a calendar quarter preceding an Entry Date, the valuation
adjustment allocated to such Member's Account for such calendar quarter shall
be based upon his reduced Account balance at the end of such calendar quarter.
If a Member receives the total balance in his Account during a calendar
quarter, he shall not be entitled to a valuation adjustment for such calendar
quarter. However, the Administrative Committee shall have the authority to
change the number of times the Trust Fund is revalued
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during the Plan Year, provided that such authority is exercised in a
nondiscriminatory manner.
4.7 Special Allocation Upon Termination, Partial Termination, or
Complete Discontinuance of Employer Matching Contributions or Employer
Contributions. Notwithstanding any other provision of this instrument to the
contrary, if:
(a) the Plan is terminated pursuant to Article XVI,
Section 16.3 hereof; or
(b) the Plan is terminated with respect to a group of Members
resulting in a partial termination of the Plan,
all previously unallocated funds shall be allocated to the Accounts of the
Members at the time of such termination, partial termination or Employer
Contributions under the Plan using the allocation methods prescribed by
Sections 4.3 through 4.5 hereof as appropriate depending on the nature and
source of such unallocated funds.
4.8 Entry of Adjustments to Each Member's Account. The
Administrative Committee shall credit to each Member's Account such Member's
portion of the adjustments and allocations required by Sections 4.3 through 4.5
of this Plan, so that all such adjustments and allocations become effective and
shall be entered into each Member's Account as of the end of the Plan Year to
which they are attributable unless required more frequently by the
Administrative Committee pursuant to Sections 4.4 and 4.5.
4.9 Accounts for Transferred Members. In the case of a Member who
has transferred or performs services for more than one Signatory Company during
a Plan Year, the Administrative Committee
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<PAGE> 52
shall maintain on its books such Member's Account and open or reopen an Account
for such Member with respect to each Signatory Company to which the Member has
transferred. In this fashion, the Administrative Committee may maintain several
different Accounts with respect to each Transferred Member. However, the
foregoing provisions of this Section 4.9 are for administrative convenience
only. For all other purposes under this Plan, all Accounts of each Transferred
Member shall be regarded as one Account, which shall be attributable to the
Signatory Company by whom such Transferred Member is then employed.
4.10 Rights in Trust Assets. No such allocations, adjustments,
credits or transfers shall ever vest in any Member any right, title or interest
in the Trust Fund except at the times and upon the terms or conditions below
set forth. Such Trust Fund shall, as to all Accounts of Members, be a
commingled fund, and all securities purchased or otherwise acquired by the
Trustee under the Plan shall be issued in the name of the Trustee for the
Stewart Title Guaranty Company Salary Deferral Savings Plan, or in such other
name or names as the Trustee shall designate.
4.11 Application of Forfeitures. The Administrative Committee
shall, within thirty (30) days after the end of each Plan Year, determine the
Members from the Signatory Company who have forfeited all or part of their
respective interests in their Accounts pursuant to the provisions of Article
VII, Sections 7.5(a) and 7.6 hereof, during such Plan Year and shall certify
such information to the Trustee. The total amount of all Forfeitures shall then
be used to reduce such Signatory Company's future Employer Matching
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<PAGE> 53
Contributions and Employer Contributions under Article III, Section 3.2 of the
Plan.
ARTICLE V.
Limitations on Annual Additions
5.1 Limitation Under this Plan. Notwithstanding any provisions
herein to the contrary, the Annual Addition to the Accounts of any Member under
all defined contribution plans of his Employer (as that term is defined in
Section 5.4 hereof) for any Plan Year cannot exceed the lesser of:
(a) Thirty thousand dollars ($30,000) or such greater amount
as may be determined pursuant to Section 415(c)(1)(A) of the Code, as
adjusted under Section 415(d) of the Code; or
(b) Twenty-five percent (25%) of the Member's compensation
from his Employer for such Plan Year, as determined under Section
415(c)(3) of the Code and the regulations thereunder.
5.2 Limitation in Event of Member's Participation in Defined
Benefit Plan and Defined Contribution Plan. In any case in which an Employee
is a participant in both a defined benefit plan and this Plan, the sum of the
defined benefit plan fraction and the defined contribution plan fraction for
any year may not exceed 1.0 except as may be permitted by Section 2004(a)(3) or
otherwise under the Act. The defined benefit plan fraction for any year is a
fraction (a) the numerator of which is the projected annual benefit of the
Member under the plan (determined as of the close of the Plan Year); and (b)
the denominator of which is the lesser of: (i) the product of 1.25, multiplied
by the dollar limitation in effect for such Plan Year under Section
415(b)(1)(A) of the Code, or (ii) the product of 1.4, multiplied by the amount
which may be
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taken into account under Section 415(b)(1)(B) of the Code with respect to such
Member for such Plan Year. The defined contribution plan fraction for any year
is a fraction (a) the numerator of which is the sum of the Annual Additions to
the Member's Account as of the close of the Plan Year; and (b) the denominator
of which is the sum of the lesser of the following amounts determined for such
Plan Year and for each prior Year of Service: (i) the product of 1.25,
multiplied by the dollar limitation in effect for such Plan Year as may be
determined pursuant to Section 415(c)(1)(A) of the Code, or (ii) the product of
1.4, multiplied by the amount which may be taken into account under Section
415(c)(1)(B) of the Code for such Plan Year. The Administrative Committee
shall reduce the numerator of the defined contribution plan fraction in order
that their sum shall not exceed 1.0 for any Plan Year in accordance with
Section 5.3 hereof.
However, 1.0 shall be substituted for 1.25 for any Top Heavy Plan Year
unless an extra minimum Employer Matching Contribution equal to one percent
(1%) of the Considered Compensation of all Members who are Non-Key Employees is
allocated among such members pursuant to Article IV, Section 4.4.
Notwithstanding the foregoing, 1.0 shall be substituted for 1.25 for any Plan
Year in which the Plan is a Super Top Heavy Plan.
5.3 Disposition of Excessive Annual Additions. If as a result of a
reasonable error in estimating a Member's Considered Compensation, the Annual
Additions under the terms of the Plan for a particular Member would cause the
limitations of Section 415 of the Code which are applicable to that Member for
that Plan Year to
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be exceeded, the excess amounts shall not be deemed Annual Additions to such
Member's Account in that Plan Year, but shall be treated as follows:
The excess amounts attributable to Employer Matching
Contributions or Employer Contributions in the Member's Account must
be allocated and reallocated to the Accounts of the other Members in
the Plan, pursuant to the provisions of Article IV, Section 4.4.
However, if the allocation or reallocation of the excess amounts
further causes the limitations of Section 415 of the Code to be
exceeded with respect to each Plan Member for that Plan Year, then
these amounts must be held unallocated in a suspense account. If a
suspense account is in existence at any time during a particular Plan
Year (other than the Plan Year described in the preceding sentence),
all amounts in the suspense account must first be allocated and
reallocated to Members' Accounts (subject to the limitations of
Section 415 of the Code) before any Employer Matching Contributions or
Employer Contributions may be made to the Plan for that Plan Year.
5.4 Combining of Plans. For purposes of applying the limitations
contained in this article, all defined contribution plans, terminated or not,
of an Employer shall be treated as one defined contribution plan and all
defined benefit plans, terminated or not, of an Employer shall be treated as
one defined benefit plan. For purposes of this article, Employer shall mean
all trades or businesses, whether or not incorporated, which are either under
common control as determined under Sections 414(b) or 414(c) of the Code or are
an affiliated service group as determined under Section 414(m) of the Code.
For the purpose of applying the limitations set forth above, as imposed by
Section 415 of the Code, a Member's compensation or annual benefit payable by
the Signatory Company or any Affiliated Company of the Signatory Company shall
be treated as being from a single employer. For purposes of the limitations of
this section and of applying Sections 414(b) and
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<PAGE> 56
414(c) of the Code as they relate to Sections 415 and 1563(a)(1) of the Code,
the phrase "more than fifty percent (50%)" shall be substituted for the phrase
"at least eighty percent (80%)".
5.5 Transition Fraction. At the election of the Administrative
Committee, in applying the provisions of Section 5.3 with respect to the
defined contribution fraction for any Plan Year ending after December 31, 1982,
the amount taken into account for the denominator for each Member for all Plan
Years ending before January 1, 1983 shall be an amount equal to the product of
(a) the amount of the denominator determined under Section 5.3 (as in effect
for the Plan Year ending in 1982) for Plan Years ending in 1982, multiplied by
(b) the "transition fraction".
For purposes of the preceding paragraph, the term "transition
fraction" shall mean a fraction (a) the numerator of which is the lesser of (1)
$51,875 or (2) 1.4 multiplied by twenty-five percent (25%) of the Member's
compensation for the Plan Year ending in 1981, and (b) the denominator of which
is the lesser of (1) $41,500 or (2) twenty-five percent (25%) of the Member's
compensation for the Plan Year ending in 1981.
Notwithstanding the foregoing, for any Plan Year in which the Plan is
a Top Heavy Plan, $41,500 shall be substituted for $51,875 in determining the
transition fraction."
5.6 Right of Reversion. Notwithstanding Article III, Section 3.6,
in the event of termination of the Plan as provided in Article XVI, Section
16.3 any amounts held in the suspense account shall revert to the Signatory
Company.
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ARTICLE VI.
Retirement and Designation of Beneficiary
6.1 Normal Retirement Date. "Normal Retirement Age" means the date
on which an Employee attains age sixty-five (65). Each Employee shall retire
from employment on the date he reaches his Normal Retirement Age, such date to
be his Normal Retirement Date; provided, however, that an Employee may continue
employment thereafter subject to the condition that, in the event the Signatory
Company has nineteen (19) or fewer employees, such Employee must obtain the
approval of the Board of Directors of the Signatory Company to continue
employment after his Normal Retirement Date. Each Employee who is employed by
the Signatory Company on the date it adopts the Plan shall be deemed for the
purposes of this Section 6.1 to have secured the approval of the Board of
Directors of the Signatory Company and shall continue to be so deemed until
such approval is affirmatively withdrawn. This Section 6.1 shall be applied in
a uniform, nondiscriminatory manner to all Employees, present and future.
6.2 Designation of Beneficiary. Each Member and each Retired
Member shall have the unrestricted right at any time, and from time to time, to
designate and to rescind or change any designation of a primary and contingent
Beneficiary or Beneficiaries to receive benefits in the event of his death,
except as hereinafter provided. The designation by a Member who was married at
the time of his death of a Beneficiary other than the Member's spouse shall
only be permitted with such spouse's written consent. Such consent must
designate a specific beneficiary, must acknowledge the effect of
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<PAGE> 58
the Member's designation and must be witnessed either by a member of the
Administrative Committee or by a Notary Public. Otherwise the death benefits of
the Member shall be paid to the Member's spouse, except as hereinafter
provided. A Member's designation of a Beneficiary other than such Member's
spouse, which is consented to by such Member's spouse as provided above, may
not be changed without subsequent spousal consent (unless the spouse's consent
to the original Beneficiary designation expressly permits designations by the
Member without further spousal consent). Any such designation, change or
rescission of designation shall be made in writing by filling out and
furnishing to the Administrative Committee the appropriate form prescribed by
it. A contingent Beneficiary or Beneficiaries shall be entitled to receive any
unpaid death benefits only if no primary Beneficiary is alive or legally
entitled to receive it on the date of payment of the benefit. Any estate,
assignee or appointee of either a primary or a contingent Beneficiary shall
have no interest in or right to receive any death benefit payment not actually
made before the death of such Beneficiary. The last such designation received
by the Administrative Committee shall be controlling over any testamentary or
other disposition; provided, however, that no designation, rescission or change
thereof shall be effective unless received by the Administrative Committee
prior to the death of the Member. Upon the divorce of a Member or a retired
Member, any designation of his divorced spouse as a primary Beneficiary or as a
contingent Beneficiary hereunder shall automatically terminate and become
ineffective, and such divorced spouse shall have no
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interest in or right to receive any death benefit hereunder unless such Member
shall file with the Administrative Committee, after the date of such divorce
decree, a new designation of Beneficiary naming his divorced spouse as a
Beneficiary hereunder. If there is no designated Beneficiary alive at the time
of any payment of the death benefit, then the death benefit or balance thereof
shall be paid to the surviving spouse of the deceased Member or, if there is no
surviving spouse, to the estate of the deceased Member. The Signatory Company
employing a Member shall not be named as his Beneficiary. If the
Administrative Committee shall be in doubt as to the right of any Beneficiary
designated by a deceased Member to receive any unpaid death benefit, the
Administrative Committee may direct the Trustee to pay the amount in question
to the estate of such Member, in which event the Trustee, the Signatory
Company, the Administrative Committee and any other person in any manner
connected with the Plan shall have no further liability in respect to the
payment so paid.
ARTICLE VII.
Vesting of Members' Interests
7.1 Vesting. The interest of each Member who began participating
in the Plan prior to January 1, 1989 in the amount credited to his Account
attributable to Employer Matching Contributions and Employer Contributions
shall be immediately one hundred percent (100%) vested and shall not be
forfeitable for any reason. The interest of each Member who commenced
participation on or after January 1, 1989, in the amount credited to his
Account attributable to Employer Matching Contributions and Employer
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Contributions shall vest as hereinafter specified and, once vested, shall not
be forfeitable for any reason. Each Member shall immediately and at all times
have a one hundred percent (100%) vested interest in the amount credited to his
Account attributable to Deferral Contributions.
7.2 Death. On the death of a Member (or a Retired Member prior to
the complete distribution of such Retired Member's Account) his death benefit
shall be one hundred percent (100%) of the amount credited to his Account at
the end of the calendar quarter in which he dies. Payment of such death benefit
to the Member's designated Beneficiary or Beneficiaries shall commence no later
than ninety (90) days after the end of the calendar quarter in which the Member
dies. However, in the event that the payment of his death benefit under this
Section would violate Article IX, 9.4, then such benefit shall commence no
later than sixty (60) days after the end of the Plan Year in which the Member
dies.
Notwithstanding any other provision of this Plan, in the case of a
Member who is married at the time of his death, the death benefit under this
Section (reduced by any security interest held by the Plan by reason of a loan
outstanding to such Member) shall be payable in full to such Member's spouse,
or in the event there is no surviving spouse or such surviving spouse has
consented in the manner provided in Article VI, Section 6.2, to a designated
Beneficiary.
7.3 Retirement. Upon attaining his Normal Retirement Date as
provided in Article VI, Section 6.1 and upon reaching his Normal Retirement
Age, a Member shall have a nonforfeitable right to his
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Account balance. Such retirement benefit shall be paid to the Member in the
form of benefit determined by the Administrative Committee pursuant to Article
IX, Section 9.3. The payment of his retirement benefit shall commence no later
than ninety (90) days after the end of the calendar quarter in which he retires
after attaining his Normal Retirement Date unless the Member requests otherwise
in writing. However, in the event that the payment of his retirement benefit
under this Section would violate Article IX, Section 9.4, then payment of such
benefit shall commence no later than sixty (60) days after the end of the Plan
Year in which such Member retires.
7.4 Disability. In the event the Administrative Committee
determines that a Member is suffering from a Total Permanent Disability, his
disability benefit shall be one hundred percent (100%) of the amount credited
to his Account at the end of the calendar quarter following such determination.
Such disability benefit shall be paid to the Member in the form of benefit
determined by the Administrative Committee pursuant to Article IX, Section 9.3.
Payments shall commence no later than ninety (90) days after the end of the
calendar quarter in which the Member is determined to be totally, permanently
disabled unless the Member requests otherwise in writing. However, in the
event that the payment of his disability benefit under this section would
violate Article IX, Section 9.4, then such benefit shall commence no later than
sixty (60) days after the end of the Plan Year in which the Member is
determined to be totally, permanently disabled.
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If a Member who had previously been determined to be totally,
permanently disabled returns to the employment of the Signatory Company prior
to receiving the entire balance in his Account, a separate ledger account shall
be created for such Member and the remaining portion of his Account shall be
transferred to such new Account, which shall share in income allocations and
valuation adjustments pursuant to Article IV, Sections 4.5 and 4.6 until the
amount is distributed in full upon his subsequent death, retirement,
determination of Total Permanent Disability or severance of employment. A new
Account shall be established for the returning Member as if he were a new
Member, and said Account shall vest pursuant to Section 7.5 starting at the
point on the vesting schedule the Member had achieved prior to the
determination of his Total Permanent Disability.
7.5 Termination of Employment. In no event shall the vested
interest of a Member who began participating in the Plan prior to January 1,
1989 in the amount credited to his Account attributable to Employer Matching
Contributions and Employer Contributions be less than his nonforfeitable vested
amount as determined under Section 7.1.
(a) Vesting Schedule. A Member whose employment is terminated
for any reason other than death, retirement under Section 7.3 above or
Total Permanent Disability shall be entitled to a severance benefit no
later than one hundred twenty (120) days after the end of the Plan
Year in which he terminates employment equal to the vested interest
attributable to Deferral Contributions, Employer Matching
Contributions and Employer Contributions in such Member's Account at
the end of the Plan Year. However, in the event that the payment of
his severance benefit under this section would violate Article IX,
Section 9.4, then such benefit shall commence no later than sixty (60)
days after the latest date determined under that section. For the
purpose of this
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Section 7.5(a), a Member's "vested interest" shall be determined using
the following schedules and shall be an amount equal to the percentage
of the balance of such Member's Account attributable to Employer
Matching Contributions and Employer Contributions for the number of
Years of Service as of the end of the Plan Year. As provided in
Section 7.1, a Member's vested interest in his Account attributable to
Deferral Contributions shall at all times be one hundred percent
(100%).
In the event that the vesting schedule contained in this
Section 7.5(a) is amended, the vested percentage of a Member who began
participating in the Plan on or after January 1, 1989 shall not be
less than his nonforfeitable vested percentage as computed under this
Section 7.5(a). If such a Member has at least three (3) Years of
Service, he shall have the right during the election period to elect
to have the nonforfeitable percentage of his benefit derived from
Employer Matching Contributions and Employer Contributions computed
under this Section 7.5(a) without regard to such amendment.
Notwithstanding the preceding sentence, no election need be provided
for any Member whose nonforfeitable percentage under the Plan, as
amended, at any time cannot be less than such percentage determined
without regard to such amendment. The election period shall begin on
the date the amendment is adopted and shall end no earlier than the
latest of (a) sixty (60) days after the date the amendment is adopted,
(b) sixty (60) days after the date the amendment becomes effective, or
(c) sixty (60) days after the Member is issued written notice of the
Plan amendment by the Employer, Signatory Company or Administrative
Committee. A Member shall be considered to have completed three (3)
Years of Service for purposes of this paragraph if such Member has
completed three (3) Years of Service as defined in Article I, Section
1.44, whether or not consecutive, without regard to the exceptions of
Code Section 411(a)(4) prior to the expiration of the election period.
For any Employee who does not have an Hour of Service in any Plan Year
beginning after December 31, 1988, "five (5) Years of Service" shall
be substituted for "three (3) Years of Service" in applying this
paragraph.
<TABLE>
<CAPTION>
Percentage of
Participating Employee's
Years of Service Account that Becomes Vested
---------------- ---------------------------
<S> <C>
Less than four years . . . . . . . . . . . . 0%
Four years or more . . . . . . . . . . . . . 100%
</TABLE>
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<PAGE> 64
The amount credited to such Member's Account which is not
vested when he terminates employment shall be disposed of as provided
in Section 7.6 hereof.
(b) Years of Service Computation. For purposes of determining
the Member's vested interest in the assets in his Account, all Years
of Service with the Signatory Company, or any Affiliated Company, or
any Predecessor Employer as of the date of severance shall be taken
into account except the following with respect to Breaks-in-Service:
(i) If a Member does not have a vested interest in
his Account at the time he incurs a Break-in-Service, Years of
Service completed by such Member prior to such Break shall not
be taken into account if at such time the number of
consecutive one-year Breaks-in-Service included in his most
recent Break-in-Service equals or exceeds the aggregate number
of his Years of Service (whether or not consecutive) completed
before such Break, or five (5), if greater. In computing the
aggregate number of Years of Service prior to such Break,
Years of Service which could have been disregarded under this
subsection by reason of a prior Break-in-Service may be
disregarded. Pre-Break and post-Break Years of Service will
not be aggregated until the Member has completed one (1) Year
of Service after his return to employment;
(ii) If a Member has five consecutive years of
Breaks-in-Service for Plan Years, then any service after such
Break will not increase the Member's vested interest in his
Account before such Break; and
(iii) If a Member has a vested interest in his
Account and his separation from employment and his subsequent
reemployment do not incur five consecutive years of
Breaks-in-Service, his Account will continue to vest, starting
at the point in the vesting schedule where he left employment.
7.6 Disposition of Unvested Amounts. Upon termination of
employment, the amount in the Member's Account shall be maintained until the
end of the Plan Year in which the Member terminates employment. As of the end
of such Plan Year, the unvested amount
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shall be forfeited and used to reduce future Employer Matching Contributions
and Employer Contributions as provided in Article IV, Section 4.11 of the Plan.
7.7 Circumstances Rendering Vesting Schedule Inapplicable.
Notwithstanding any other provisions of this instrument to the contrary, if:
(a) the Plan is terminated pursuant to Article XVI,
Section 16.3 hereof; or
(b) the Plan is terminated with respect to a group of Members
resulting in a partial termination of the Plan; or
(c) there occurs a complete discontinuance of Employer
Contributions under the Plan,
the vesting schedule contained in Section 7.5(a) hereof shall be inapplicable
and each Member affected by such termination, partial termination or complete
discontinuance of Employer Contributions shall thereupon have a full one
hundred percent (100%) vested interest in the amount standing to his credit in
his Account at such time and in any amounts thereafter credited or allocated to
his Account; provided, however, that if the Signatory Company shall thereafter
resume making Employer Contributions hereunder, all amounts credited or
allocated to a Members Account with respect to the Plan Year for which such
Employer Contributions are resumed and the Plan Years for which they are
continued, shall vest only in accordance with the vesting schedule contained in
Section 7.5(a) hereof. For purposes of this section, a complete discontinuance
of Employer Contributions under the Plan is contrasted with a suspension of
Employer Contributions under the Plan which is merely a temporary cessation of
Employer Contributions by the Signatory
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Company. During any such period of termination, partial termination or
complete discontinuance of Employer Contributions under the Plan, all other
provisions of this Plan shall nevertheless continue in full force and effect
other than provisions for Employer Contributions and allocations thereof to
Members' Accounts. The Signatory Company shall notify the District Director of
the Internal Revenue Service in the event it has completely discontinued to
make Employer Contributions to the Plan or in the event of termination or
partial termination of the Plan.
ARTICLE VIII.
Claims for Plan Benefits
8.1 Application for Benefits. Each Member or designated
Beneficiary claiming benefits under this Plan must make written application
therefor within fifteen (15) days preceding or following (whichever is
applicable) the actual retirement, termination of employment, death prior to
retirement, determination of Total Permanent Disability, or the happening of
any other occurrence believed by the claimant to entitle him to benefits
hereunder. The date the claim shall be considered as filed shall be the date a
properly completed application is received by the Administrative Committee.
Each such application (a) shall be in writing on a form to be provided by the
Administrative Committee, (b) shall be signed by the claimant or his personal
representative, (c) shall be made to the Administrative Committee, and (d)
shall be filed in such a manner and with such persons as the Administrative
Committee may specify. The Administrative Committee may require that there be
furnished to it in connection with such application all relevant
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information. Failure to timely file such application or to supply all relevant
information shall not result in the forfeiting of any rights claimed but shall
excuse postponement of the orderly processing of such claim and the time of
commencing payment thereof.
8.2 Processing of Claim. Upon receipt by the Administrative
Committee of a properly completed application for benefits form, it shall be
the duty and responsibility of the Administrative Committee to verify the facts
and claims made therein with the appropriate Signatory Company and to determine
whether the claim is valid. In arriving at a decision, the Administrative
Committee may require additional relevant information from the claimant. In
any event, within ninety (90) days of receipt of the application, the
Administrative Committee shall determine whether, when and in what amount
distributions are to be paid from the Plan to the claimant. If the
Administrative Committee fails to act on the claim within said ninety (90) day
period, the claimant may proceed to the review stage described in Section 8.4
hereof as if the claim had been denied.
8.3 Notification to Claimant of Decision. If distributions are to
be made, the Administrative Committee shall immediately notify the claimant and
the Trustee of the amount and method of payment. It shall then be the
responsibility of the Trustee to arrange the distribution. If the claim is
denied, in whole or in part, the Administrative Committee shall send written
notice of the denial to the claimant. A notice that a claim has been denied
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shall set forth, in a manner calculated to be understood by the claimant:
(a) The specific reason or reasons for the denial;
(b) Specific reference to the pertinent Plan provisions
on which the denial was based;
(c) 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
(d) An explanation of the Plan's claim review procedure.
8.4 Review Procedure. A claimant shall be entitled to a full and
fair review of a denial of claim for benefits. To avail himself of this right,
the claimant, or his duly authorized representative, must timely file an
application for review with the Administrative Committee. Such application
must be in writing and must be filed within sixty (60) days of receipt of the
notice of denial of benefits. If the claimant desires a personal appearance or
hearing before the Administrative Committee to present his case, he shall so
state in his application for review. An appeal shall be considered as filed on
the date it is received by the Administrative Committee. Subsequent to the
filing of an appeal and prior to the rendering of a decision thereon, the
claimant, or his duly authorized representative, may review pertinent documents
and may submit issues and comments in writing. If a hearing is held, the
claimant may be represented thereat by legal counsel or other duly authorized
representative.
8.5 Decision on Review. The Administrative Committee shall render
a decision no later than sixty (60) days after its receipt
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of a request for review unless special circumstances, such as the need to hold
a hearing, require an extension of time for processing, in which case a
decision shall be rendered as soon as possible, but not later than one hundred
twenty (120) days after receipt of a request for review. The decision for
review shall be in writing and shall include the specific reasons for the
decision, written in a manner calculated to be understood by the claimant, with
specific reference to the pertinent Plan provisions on which the decision is
based. The review decision by the Administrative Committee shall be considered
final.
8.6 Disputed Benefits. If any dispute shall arise between a
Member, or other person claiming under a Member, and the Administrative
Committee after the review of the claim for benefits, or if any dispute shall
develop as to the person to whom the payment of any benefit under the Plan
shall be made, the Trustee may withhold payment of all or any part of the
benefits payable hereunder to the Member, or other person claiming under the
Member, until such dispute has been resolved by a court of competent
jurisdiction or settled by the parties involved.
ARTICLE IX.
Distributions from Trust Funds
9.1 Occasions for Distributions. Distributions from the Trust
shall be made to Members or Beneficiaries only upon the occurrence of one of
the following events:
(1) the Member's death, retirement at Normal Retirement Age, or
Total Permanent Disability as provided in Article VII,
Sections 7.2, 7.3 and 7.4 hereof, respectively;
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(2) termination of employment as provided in Article VII, Section
7.5 hereof;
(3) termination of the Plan and Trust as provided in Article XVI;
(4) the sale or other disposition by a Signatory Company to an
unrelated corporation which does not maintain the Plan, of
substantially all of the Signatory Company's assets (but only
with respect to Members who continue employment with the
acquiring corporation); or
(5) the sale or other disposition by a Signatory Company of its
interest in a subsidiary to an unrelated entity which does not
maintain the Plan (but only with respect to Members who
continue employment with the subsidiary).
A distribution pursuant to paragraphs (4) or (5) above shall be made in a
method provided under Article VII, Section 7.5. All distribution events set
forth above are subject to the conditions and specifications set forth
hereafter in this Article IX.
9.2 Consent to Distribution: Special Rules Upon Reemployment.
(a) In those instances where a Member severs his
employment with the Signatory Company for any reason other than death
or retirement and, as a result thereof, would otherwise be entitled to
a distribution of his vested interest in the Employer Contributions in
his Account, no such distribution shall, under any circumstances, be
authorized by the Administrative Committee nor effected by the Trustee
prior to the death or retirement of such Member unless (i) the gross
amount to be distributed is $3,500 or less, or (ii) the gross amount
is in excess of $3,500 and the Member consents to the distribution and
executes a distribution form supplied by the Administrative Committee
signifying such consent. A certified copy of such distribution form
shall be transmitted to the Trustee for its records along with written
directions as to the amount, time and manner of distribution.
(b) In the event that a Member does not consent to a
distribution as required under this Section 9.2, a separate ledger
account shall be created for such Member upon his incurring a
forfeiture under Article VII, Section 7.6. The vested portion of his
Account, as determined under Article VII, Section 7.1, shall be
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transferred to the separate ledger account. Such separate ledger
account shall share in income and valuation adjustments pursuant to
Article IV, Sections 4.4 and 4.5 until the amount is distributed in
full upon the Member's subsequent death, retirement or Total Permanent
Disability. Any Member who does not consent to a distribution under
this Section 9.2 and is reemployed within five (5) years from the date
his employment is severed shall be entitled to have the forfeited
portion of his Account restored to him in full, unadjusted by any
gains or losses occurring subsequent to the valuation date preceding
his termination. Such restoration shall be paid from Employer
Contributions, Forfeitures and income or gain to the Plan for the Plan
Year of such restoration, as determined by the Administrative
Committee.
(c) If an Employee returns to the employment of a
Signatory Company after incurring a forfeiture under Article VII,
Section 7.6 and again becomes a Member under the Plan, a new Account
shall be established for him as if he were a new Member. The new
Account shall be maintained independently of the separate ledger
account. Such account shall share in Employer Contributions,
Forfeitures, income and valuation adjustments pursuant to Article IV
and shall vest as determined under Article VII, Section 7.1. Upon
subsequent termination of employment, the vested portion of the
Account shall be distributed upon the Member's entitlement to a
distribution under Article VII hereof or, if the Member again does not
give the necessary consent to a distribution, such vested amount shall
be added to the separate ledger account.
(d) If any such reemployed Employee is reemployed before
incurring five (5) consecutive years of Break-in-Service, and such
Employee had received prior to his reemployment an entire distribution
of the vested portion of his Account which was less than fully vested,
the forfeited portion of his Account shall be reinstated only if he
repays the full amount distributed to him before the end of the
earlier of the following periods: (i) five (5) consecutive Years of
Break-in-Service, or (ii) the period ending on the fifth (5th)
anniversary of the Member's reemployment. If such Employee repays
such full amount distributed to him, the undistributed portion of his
Account must be restored in full, unadjusted by any gains or losses
occurring subsequent to the valuation date preceding his termination.
Such restoration shall be paid from Employer Contributions,
Forfeitures and income or gain to the Plan for the Plan Year of such
restoration, as determined by the Administrative Committee. This
provision shall be interpreted in a
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manner consistent with the transitional rules of Section 303(a)(2) of
the Retirement Equity Act as to service prior to Plan Years beginning
before January 1, 1985.
9.3 Manner of Distributions. The Administrative Committee shall
direct the Trustee, in writing, when to distribute the amounts referred to in
Article VII, Sections 7.2, 7.3, 7.4 and 7.5, in accordance with the Member's
election, under one of the following methods:
(a) A lump sum payment in cash or in kind or both; except
that this form of payment shall not apply in cases under Article VII,
Sections 7.3 and 7.5 (pertaining to termination from employment for
reasons other than death or Total Permanent Disability or continuation
in employment beyond Normal Retirement Age) where the entire Account
balance exceeds fifty thousand dollars ($50,000.00); or
(b) Distributions in the manner provided below, after
having segregated the aggregate amount thereof in a special account;
provided, that the monies in such special account will earn the going
rate of interest paid by local banks on savings accounts placed in
insured depositories at interest, or, at the option of the Member or
Beneficiary (or Beneficiaries), be credited with their portion of the
gains or losses of the Trust pursuant to Article IV, Sections 4.5 and
4.6; provided further that the interest or other income earned on such
special account shall be paid at the end of each Plan Year.
Distribution of his entire Plan benefit in substantially equal annual,
quarterly or monthly installments, over any time period not exceeding
his life expectancy (or the life expectancies of such Member and his
designated Beneficiary); provided that the value of any such
installment in cases under Article VII, Sections 7.3 and 7.5
(pertaining to termination from employment for reasons other than
death or Total Permanent Disability or continuation in employment
beyond Normal Retirement Age) shall (except as otherwise provided in
the Plan) not exceed fifty thousand dollars ($50,000.00) on an annual
basis; provided further, that the present value of the benefits to be
distributed to the Member shall exceed fifty percent (50%) of the
prevent value of the total benefit to be distributed to the Member and
his designated Beneficiary.
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In the event of the Member's death, the benefit shall be paid according to
the method either set forth on the beneficiary designation on file with the
Administrative Committee or elected by the Beneficiary or Beneficiaries.
9.4 Time of Distributions. Distributions required by Section 9.3
hereof shall commence as soon as administratively feasible. Unless the Member
executes an election form consented to by the Administrative Committee which
states how and when benefits are to commence, payment of benefits to the Member
shall in no event begin later than the sixtieth (60th) day after the latest of
the close of the Plan Year in which:
(a) the Member attains age 65,
(b) the Member has his tenth (lOth) anniversary of the
year in which he commenced participation in the Plan, and
(c) the Member's employment with a Signatory Company
terminates.
9.5 Mandatory Distributions. Notwithstanding any other provision
in the Plan to the contrary, benefits shall be distributed to the Member or his
Beneficiary no later than set forth in this section.
(a) Mandatory Age Distribution. A Member's benefits
shall be distributed to him no later than the April 1st of the
calendar year following the calendar year in which the Member attains
age 70 1/2, but the balance of his benefits must be distributed over
the life of such Member (or lives of such Member and his designated
Beneficiary) or over a time period not exceeding the Member's life
expectancy (or the life expectancies of the Member and his designated
Beneficiary).
(b) Mandatory Death Distribution. If the distribution of
the Member's benefits had commenced pursuant to Section 9.5(a) and the
Member dies before his entire benefit is distributed to him, the
remaining portion of
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his benefit will be distributed at least as rapidly as under the
method of distribution being used pursuant to Section 9.5(a) as of the
date of such Member's death. If a Member dies prior to the
commencement of his benefit distribution pursuant to Section 9.5(a),
the entire benefit of such Member will be distributed within five (5)
years after the death of such Member. However, such five (5) year
rule shall be disregarded for any portion of the Member's benefit
which is payable to (or for the benefit of) a designated Beneficiary,
such portion to be distributed (in Accordance with regulations issued
by the Secretary) over the life of such designated Beneficiary (or
over a period not exceeding beyond the life expectancy of such
Beneficiary), and such distributions commence not later than one (1)
year after the date of the Member's death or such later date as the
Secretary may prescribe by regulations. In such a situation, the
benefit portion distributed to such Beneficiary shall be treated as
distributed on the date on which such distribution begins.
In the event that the designated Beneficiary is the deceased
Member's surviving spouse, the date on which the benefit distribution
is required to commence shall be no earlier than the date on which the
Member would have attained age 70 1/2. If the surviving spouse dies
before the distributions to such spouse commence, this subsection
shall be applied as if the surviving spouse were the Member. For
purposes of this subsection, any amount paid to a child shall be
treated as if it had been paid to the surviving spouse if such amount
shall become payable to the surviving spouse upon such child reaching
majority (or other designated event permitted under Treasury
regulations).
(c) Prior Irrevocable Election. If the Member made an
irrevocable election prior to December 31, 1983 to defer the
distribution of benefits beyond the dates set forth in Section 9.5(a)
and (b), such election shall govern the distribution 80 long as said
election was pursuant to the terms of the Plan at the time of the
election.
(d) Recalculation of Life Expectancies. For purposes of
this Section, the life expectancy of a Member and a Member's spouse
may, in the discretion of the Administrative Committee, be
redetermined but no more frequently than annually and in accordance
with such rules as may be prescribed by Treasury regulations.
Notwithstanding any other provision of this Plan, the Plan shall in all
respects comply with the provisions of Prop. Reg.
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Section 1.401(a)(9)-1 and the minimum incidental death benefit limits of Prop.
Reg. Section 1.401(a)(9)-2, which are specifically incorporated herein by
reference.
9.6 Distribution to Minors or Persons under Disability. Should any
distribution hereunder become payable to a minor or to a person who, in the
opinion of the Administrative Committee, is incapable of taking care of his
affairs, the Administrative Committee may direct the Trustee to make such
distribution in any one or combination of the following ways: (1) directly to
such minor or person; (2) to the legal guardian of the person or estate of such
minor or person; or (3) to a person or financial institution serving as
Custodian for such Beneficiary under the Uniform Gifts to Minors Act of any
state. Any distribution so made shall constitute full and complete discharge
of any liability under the Plan with respect to the amount so distributed.
9.7 Community Property Interests - Interest of Spouse of Member in
the Event of Divorce. In the event of a divorce between a Member and his
spouse and in the event that the Divorce Decree entered by the Court having
jurisdiction in the matter gives such divorced spouse a portion of the Member's
vested interest in his Account, the Trustee shall, pursuant to the direction of
the Administrative Committee, segregate such amount in a separate account for
the benefit of such spouse. Such account shall thereafter be held and
administered as a part of the Trust Fund (but such account shall only share in
income allocations and valuation adjustments of the Trust Fund) until such time
as the Member or his Beneficiary becomes entitled to a distribution
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hereunder. In the event the spouse is also awarded a portion of the future
Deferral Contributions, and/or future Employer Matching Contributions and/or
future Employer Contributions which normally would be allocated to the Members
Account, the Administrative Committee, after it receives a certified copy of
such Divorce Decree, shall instruct the Trustee to allocate such portion to the
spouse's account. At the time the Member or his Beneficiary becomes entitled
to a distribution hereunder, the amounts held by the Trustee for the spouse
shall be distributed to such spouse in a lump sum. If such spouse should die
prior to the time of distribution to such spouse hereunder, such amounts then
held by the Trustee shall be paid over to the estate of such spouse within six
(6) months after notification to the Trustee of the death of such spouse. All
rights and benefits, including elections, provided to a Member in this Plan
shall be subject to the rights afforded to any "alternate payee" under a
"qualified domestic relations order" as those terms are defined in Section
414(p) of the Code.
ARTICLE X.
Top Heavy Provisions
10.1 Determination of Top Heavy Plan Status. The Plan shall be
considered a Top Heavy Plan for any Plan Year in which, as of the Determination
Date, the sum of the Aggregate Accounts of Key Employees under this Plan and
any plan of an Aggregation Group exceeds sixty percent (60%) of the Aggregate
Accounts of all Members under this Plan and any plan of an Aggregation Group.
If a Member, who was a Key Employee for any prior Plan Year, is a Non-
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Key Employee for any Plan Year, such Member's Aggregate Account balance shall
not be taken into account for purposes of determining whether the Plan is a Top
Heavy Plan (or whether any Aggregation Group which includes the Plan is a Top
Heavy Group). In addition, the Account balance of any Member who has not
within the past five (5) years performed any services for the Signatory Company
shall not be taken into account for purposes of determining whether the Plan is
a Top Heavy Plan (or whether any Aggregation Group which includes the Plan is a
Top Heavy Group).
10.2 Determination of Super Top Heavy Plan Status. The Plan shall
be considered a Super Top Heavy Plan for any Plan Year in which, as of the
Determination Date, the sum of the Aggregate Accounts of Key Employees under
this Plan and any plan of an Aggregation Group exceeds ninety percent (90%) of
the Aggregate Accounts of all Members under this Plan and any plan of an
Aggregation Group. For purposes of determining if the Plan is a Super Top
Heavy Plan, a Member's inclusion in the Key Employee grouping shall be
determined in the manner set forth in Section 10.1.
10.3 Aggregate Accounts. A Member's Aggregate Account as of the
Determination Date shall be the sum of:
(a) his Account balance as of the most recent valuation date
occurring within a twelve (12) month period ending on the
Determination Date;
(b) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of any
contributions actually made after the valuation date but before the
Determination Date, except for the first Plan Year when such
adjustment shall also reflect the amount of any contributions made
after the Determination Date that are allocated as of a date in that
first Plan Year;
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(c) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4) preceding Plan
Years. However, in the case of distributions made after the valuation
date and prior to the Determination Date, such distributions are not
included as distributions for top heavy purposes to the extent that
such distributions are already included in the Member's Aggregate
Account balance as of the valuation date. Notwithstanding anything
herein to the contrary, all distributions, including distributions
made prior to January 1, 1984, will be counted, and distributions
under a terminated plan which if it had not been terminated would have
been required to be included in an Aggregation Group will be counted;
and
(d) any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax deductible qualified
Employee contributions shall not be considered to be a part of the
Members Aggregate Account balance.
10.4 Aggregation Group. An Aggregation Group for purposes of this
article is either a Required Aggregation Group or a Permissive Aggregation
Group as hereinafter determined. In determining Aggregation Groups, "Employer"
means an employer as defined in Section 416 of the Code and the regulations
issued thereunder.
(a) Required Aggregation Group. In determining a
Required Aggregation Group hereunder, each plan of the Employer in
which a Key Employee is a participant, and each other plan of the
Employer which enables any plan in which a Key Employee participates
to meet the require-ments of Code Sections 401(a)(4) or 410, will be
required to be aggregated. Such group shall be known as a Required
Aggregation Group. In the case of a Required Aggregation Group, each
plan in the group will be considered a Top Heavy Plan if the Required
Aggregation Group is a Top Heavy Group. No plan in the Required
Aggregation Group will be considered a Top Heavy Plan if the Required
Aggregation Group is not a Top Heavy Group.
(b) Permissive Aggregation Group. The Employer may also
include any other plan not required to be included in the Required
Aggregation Group, provided the resulting group, taken as a whole,
would continue to satisfy the provisions of Code Sections 401(a)(4) or
410. Such group shall be known as a Permissive Aggregation Group. In
the case of a Permissive Aggregation Group, only a plan that is part
of the Required Aggregation Group will be
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considered a Top Heavy Plan if the Permissive Aggregation Group is a
Top Heavy Group. No plan in the Permissive Aggregation Group will be
considered a Top Heavy Plan if the Permissive Aggregation Group is not
a Top Heavy Group.
(c) Aggregation of Multiple Plans. When more than one
plan is aggregated, the Aggregate Accounts (including distributions
for Key Employees and all Employees) are determined separately for
each plan as of each plan's Determination Date. The plans are then
aggregated by adding the results of each plan as of the Determination
Dates for such plans that fall within the same calendar year.
10.5 Top Heavy Plan Requirements. For any Plan Year in which the
Plan is considered to be a Top Heavy Plan, the Plan shall:
(a) limit the Considered Compensation maximum dollar
amount pursuant to Article I, Section 1.13;
(b) require minimum allocations to Non-Key Employees
pursuant to Section 10.6; and
(c) replace the vesting schedule in Article VII, Section
7.5(a) of this Plan with the following:
<TABLE>
<CAPTION>
Percentage of
Participating Employee's
Years of Service Account that Becomes Vested
---------------- ---------------------------
<S> <C>
Less than two years . . . . . . . . . 0%
Two years . . . . . . . . . . . . . . 20%
Three years . . . . . . . . . . . . . 40%
Four years. . . . . . . . . . . . . . 60%
Five years. . . . . . . . . . . . . . 80%
Six years or more . . . . . . . . . . 100%
</TABLE>
10.6 Allocations to Non-Key Employees. For any Plan Year in which
the Plan is determined to be a Top Heavy Plan, the following allocation
provisions shall be operational and shall supplement Article IV, Section 4.4.
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(a) Minimum Allocations Required for Top Heavy Plan
Years. Notwithstanding the foregoing, for any Top Heavy Plan Year,
the sum of the Employer Contributions, Employer Matching Contributions
and Deferral Contributions allocated to the Member's account of each
Non-Key Employee shall be equal to at least three percent (3%) of such
Non-Key Employee's Considered Compensation. However, should the sum
of the Employer's contributions allocated to the Member's Account of
each Key Employee for such Top Heavy Plan Year be less than three
percent (3%) of each Key Employee's Considered Compensation, the sum
of the Employer Contributions allocated to the Member's Account of
each Non-Key Employee shall be equal to the largest percentage
allocated to the Member's Account of any Key Employee. For allocation
purposes, where contributions to Key Employees are less than three
percent (3%) of Considered Compensation amounts contributed by Key
Employees to a salary deferral plan must be included as part of such
Key Employee's Considered Compensation for purposes of determining
contributions made on behalf of Key Employees.
(b) Extra Minimum Allocation Permitted for Top Heavy
Plans other than Super Top Heavy Plans. If a Key Employee is a Member
in both a defined contribution plan and a defined benefit pension plan
that are both part of a Top Heavy Group (but neither of such plans is
a Super Top Heavy Plan), the defined contribution and the defined
benefit fractions set forth in Article V, Section 5.2 shall remain
unchanged, provided the Member's Account of each Non-Key Employee who
is a Member receives an extra allocation (in addition to the minimum
allocation set forth above) equal to not less than one percent (1%) of
such Non-Key Employee's Considered Compensation.
(c) Computation of the Minimum Contribution. For purposes
of the minimum allocations set forth above, the percentage allocated
to the Member's Account of any Key Employee shall be equal to the
ratio of the sum of the Employer Contribution, Employer Matching
Contribution and Deferral Contribution allocated on behalf of such Key
Employee divided by the Considered Compensation for such Key Employee.
(d) Eligibility for the Minimum Contribution. For any
Plan Year in which the Plan is a Top Heavy Plan, the minimum
allocations set forth above shall be allocated to the Accounts of all
Non-Key Employees who are Members and who are employed by the Employer
on the last day of the Plan Year, including Non-Key Employees who are
Members but have failed to complete a Year of Service regardless of
compensation.
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(e) Alternative Methods of Complying with the Minimum
Benefit Requirement. Notwithstanding anything herein to the contrary,
in any Plan Year in which a Non-Key Employee is a Member in both this
Plan and a defined benefit pension plan, and both such plans are Top
Heavy Plans, the Employer shall not be required to provide a Non-Key
Employee with both the full separate minimum defined benefit plan
benefit and the full separate defined contribution plan allocations.
Therefore, for Non-Key Employees who are participating in a defined
benefit plan maintained by the Employer and the minimum benefits under
Section 416(c)(2) of the Code are accruing to a Non-Key Employee under
such Plan, the minimum allocations provided for above shall not be
applicable, and no minimum contribution shall be made to the Plan on
behalf of the Non-Key Employee. Alternatively, the Employer may
satisfy the minimum benefit requirement of Section 416(c)(1)(E) of the
Code for the Non-Key Employee by providing any combination of benefits
and/or contributions that satisfy the safe harbor rules contained in
Treasury Regulation Section 1.416-1(M-12).
(f) Accounting. The Administrative Committee may
establish a second Account for each Member to which allocations are
credited for Plan Years in which the Plan is a Top Heavy Plan or a
Super Top Heavy Plan. Such separate Accounts shall be credited with
income allocations and earning adjustments pursuant to Article IV,
Section 4.5 and 4.6. Contributions to each Member's top heavy Account
shall be invested pursuant to such Member's instruction regarding the
investment of his Deferral Contributions, Employer Matching
Contributions (if any), Employer Contributions (if any) and his
non-top heavy Account.
ARTICLE XI.
Other Qualified Plans
11.1 Transfers from Other Qualified Plans. The Administrative
Committee may give its consent to the transfer of assets to this Plan and Trust
from any other corporate qualified plan meeting the requirements of Section
401(a) of the Code, except that no such transfer shall be permitted if such
assets are subject to the joint and survivor annuity requirements of Section
401(a)(11) of the Code.
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11.2 Transfers to Other Qualified Plans. The Administrative
Committee may, upon written request of a Member otherwise entitled to receive a
distribution of benefits under Article IX, direct the Trustee to transfer the
vested amount of such Member's Account hereunder to another qualified plan
meeting the requirements of Section 401(a) of the Code which is maintained by
the Signatory Company or a successor employer of the Member and which makes
provision for receiving such transferred assets. The assets so transferred
shall be accompanied by written instructions from the Administrative Committee
identifying this Plan, the other plan, the name of the Member, his one hundred
percent (100%) vested interest, the actual Employer Contributions and Employer
Contributions of the Signatory Company and the current value of the assets
attributable thereto. Prior to the transfer of any assets, the Trustee must be
satisfied that the holding of such assets is permitted in the transferee trust.
Upon receipt of such written instructions, the Trustee shall effect the
transfer of the Member's Account. Such transferred assets shall be credited to
such Member's Account in the transferee plan and trust as a fully vested
portion thereof.
ARTICLE XII.
Administrative Committee
12.1 Appointment, Resignation and Removal. The Board of Directors
of the Corporation shall appoint an Administrative Committee of one or more
persons, the members of which shall serve until resignation, death or removal.
Any member of the Administrative Committee may resign at any time by mailing or
delivering written notice of such resignation to the Board of
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Directors of the Corporation thirty (30) days before the effective date of such
resignation. Such notice may be waived by written consent of the Corporation.
Any member of the Administrative Committee may be removed by the Board of
Directors of the Corporation with or without cause. Vacancies in the
Administrative Committee arising by resignation, death, removal or otherwise
shall be filled by such persons as may be appointed by the Board of Directors
of the Corporation. Each member of the Administrative Committee shall, before
entering upon the performance of his duties, qualify by signing a consent to
serve as a member of the Administrative Committee under and pursuant to this
Plan and by filing such consent with the Corporation.
12.2 Rights, Powers and Authority. The Administrative Committee
shall have general supervision of the administration of the Plan and Trust
according to the terms and provisions of this Amendment and Restatement and
shall have all powers necessary to accomplish such purposes, including, but not
limited to, the right, power, discretion and authority:
(a) To make rules and regulations for the administration
of the Plan and Trust which are not inconsistent with the terms and
provisions hereof; provided, that such rules and regulations are
evidenced in writing and copies thereof are delivered to the Trustee
and to each Signatory Company;
(b) To construe in its sole and absolute discretion in a
manner that is not arbitrary or capricious all terms, provisions,
conditions and limitations of the Plan and Trust; and its construction
thereof, made in good faith and without discrimination in favor of or
against any Member, shall be final and conclusive on all parties at
interest;
(c) To correct any defect or supply any omission or
reconcile any inconsistency which may appear in the Plan
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and Trust, in such manner and to such extent as it shall deem
expedient to carry the Plan and Trust into effect for the greatest
benefit of all parties in interest, and its judgment of such
expediency shall be final and conclusive on all parties at interest;
(d) To select, employ and compensate from time to time
such consultants, actuaries, accountants, attorneys and other agents
and employees as the Administrative Committee may deem necessary or
advisable for the proper and efficient administration of the Plan or
Trust; and any agent or employee so selected by the Administrative
Committee may be a person or firm then, theretofore, or thereafter
serving any Signatory Company in any capacity;
(e) To determine in its sole and absolute discretion in a
manner that is not arbitrary or capricious all questions relating to
the eligibility of Employees to become Members, and to determine the
Years of Service and the amount of Considered Compensation upon which
the benefits of each Member shall be calculated;
(f) To determine all questions in its sole and absolute
discretion in a manner that is not arbitrary or capricious relating to
the administration of the Plan and Trust; including, but not limited
to, differences of opinion which may arise between a Signatory
Company, the Trustee, a Member or any of them; and, whenever it is
deemed advisable, to determine such questions in order to promote the
uniform and nondiscriminatory administration of the Plan and Trust for
the benefit of all parties at interest; and
(g) To direct and instruct the Trustee in all matters
relating to the payment of Plan benefits.
12.3 Administration. Whenever, in the administration of the Plan,
any action is taken by the Administrative Committee, such action shall be
uniform in nature as applied to all persons similarly situated and no such
action shall be taken which will discriminate in favor of Members who are
officers, shareholders, partners or highly compensated. The Administrative
Committee shall keep records containing all relevant data pertaining to
individual Members and their rights under the Plan and is charged with the duty
of seeing that Member receives the benefits to which he is
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entitled. Any Employee may consult with the Administrative Committee on any
matter or matters relating to the Plan. The Administrative Committee shall
supply each Member with a designation of beneficiary form which may be
completed and signed by the Member pursuant to Article VI, Section 6.2 and
filed with the Administrative Committee, and with any other forms it shall
require in connection with the administration of the Plan.
12.4 Annual Audit of Plan. Unless otherwise relieved of the
responsibility to file audited financial statements with the Department of
Labor, if the Plan has one hundred (100) or more Members, it shall be the duty
and responsibility of the Administrative Committee to engage, on behalf of all
Members, an independent Certified Public Accountant who shall conduct an annual
examination of any financial statements of the Plan and Trust and of other
books and records of the Plan and Trust as the Certified Public Accountant may
deem necessary to enable him to form and provide a written opinion as to
whether the financial statements and related schedules required to be filed
with the Department of Labor or furnished to each Member are presented fairly
and in conformity with generally accepted accounting principles applied on a
basis consistent with that of the preceding Plan Year. Such examination shall
be conducted in accordance with generally accepted auditing standards and shall
involve such tests of the books and records of the Plan and Trust as the
Certified Public Accountant considers necessary. However, if the statements
required to be submitted as part of the reports to the Department of Labor are
prepared by a bank or similar institution or insurance
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carrier regulated and supervised and subject to periodic examination by a state
or federal agency and if such statements are certified by the preparer as
accurate and if such statements are, in fact, made a part of the annual report
to the Department of Labor, then the examination required by the foregoing
provisions of this section shall be optional with the Administrative Committee.
12.5 Chairman and Secretary. The Administrative Committee shall
select a Chairman from among its members who shall preside at all meetings of
the Administrative Committee and who shall be authorized to execute all
documents in the name of the Administrative Committee. In addition, it shall
select a Secretary who may or may not be a member of the Administrative
Committee and who shall keep the minutes of the Administrative Committee's
proceedings and all records, documents and data pertaining to the
Administrative Committee's supervision of the administration of the Plan and
Trust.
12.6 Quorum and Voting Majority. A majority of the members of the
Administrative Committee shall constitute a quorum for the transaction of
business, and the vote of a majority of the members present and voting at any
meeting shall decide any question brought before such meeting. The
Administrative Committee may decide any question by the vote, taken without a
meeting, of a majority of its members.
12.7 Limitation on Voting. A member of the Administrative
Committee who is also a Member hereunder shall not vote or act upon any matter
relating solely to himself.
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12.8 Delegation of Rights. Powers and Duties. The Chairman or the
Secretary of the Administrative Committee may execute any certificate or other
written evidence of the action of the Administrative Committee. The
Administrative Committee may delegate any of its rights, powers, and duties to
any one or more of its member, including the power to execute any document on
behalf of the Administrative Committee, in which event the Administrative
Committee shall notify the Trustee, in writing, of such action and the name or
names of its members so designated. The Trustee thereafter shall accept and
may rely upon any document executed by such member or members as representing
action by the Administrative Committee until the Administrative Committee shall
file with the Trustee a written revocation of such designation.
12.9 Liability. Except to the extent that such liability is
created by Section 405 of the Act, no member of the Administrative Committee
shall be liable for any act or omission of any other member of the
Administrative Committee, nor for any act or omission on his own part, except
for his own gross negligence or willful misconduct, nor for the exercise of any
power or discretion in the performance of any duty assumed by him hereunder.
12.10 Compensation and Expense. The members of the Administrative
Committee shall serve without compensation for their services, but all expenses
of the Administrative Committee, including premiums for bonds for each member
thereof as required by Section 12.11 hereof, shall be paid by each Signatory
Company in the proportion that the total amount in the Accounts of
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the Members of such Signatory Company bears to the total amount in the Accounts
of the Members of all Signatory Companies; provided, however, that at the
election of all of the Signatory Companies, such expenses (except the premiums
for the required bonds under Section 12.11) may be paid from the Trust Fund.
12.11 Bonds. Each and every member of the Administrative Committee
shall be required to give bond for the faithful performance of his duties, the
amount of which shall be fixed at the beginning of each Plan Year. The amount
of each bond shall be determined annually by the Board of Directors of the
Corporation but shall not be less than ten percent (10%) of the amount of funds
handled. Unless otherwise required by the Secretary of Labor, however, no bond
shall be less than one thousand dollars ($1,000) nor more than five hundred
thousand dollars ($500,000). For purposes of fixing the amount of the bond,
the amount of funds handled shall be determined by the funds handled by the
Administrative Committee during the preceding Plan Year, or, if the Plan had no
preceding Plan Year, the amount of funds to be handled during the current Plan
Year by the Administrative Committee. The bond shall provide protection to the
Plan against loss by reason of acts of fraud or dishonesty on the part of the
members of the Administrative Committee, directly or through connivance with
others.
12.12 Indemnity. The Signatory Companies shall indemnify and save
the members of the Administrative Committee, and each of them, harmless from
any and all claims, losses, damages, expenses (including counsel fees approved
by the Administrative Committee) and liabilities (including any amounts paid in
settlement with the
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Administrative Committee's approval) or other effects and consequences arising
from any act, omission or conduct in their official capacity, except when the
same is judicially determined to be due to the gross negligence or willful
misconduct of such member. Any amounts paid or owing under this Section 12.12
shall be considered as an expense of the Administrative Committee to be paid by
the respective Signatory Companies as provided in Section 12.10 hereof. It is
expressly provided, however, that any excise tax assessed against any member or
members of the Administrative Committee pursuant to the provisions of Section
4975 of the Code shall not, for the purposes of this Plan and Trust, be
considered an expense of the Administrative Committee to be paid by the
Signatory Companies as hereinabove provided.
12.13 Reporting and Disclosure. The Administrative Committee shall
file or cause to be filed with the appropriate office of the Internal Revenue
Service and the Department of Labor all reports, returns, notices and other
information required under the Act or Code, including, but not limited to, the
plan description, summary plan description, annual reports and amendments
thereto, requests for determination letters, annual reports and registration
statements required by Section 6057(a) of the Code, returns and reports
required by Section 6047(c) of the Code, and shall provide the Members and
their Beneficiaries with such information as may be required by the Act or
Code. Nothing contained in this Plan shall give any Member or Beneficiary the
right to examine any data or records reflecting the compensation paid to any
other Member or Beneficiary.
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12.14 Statement to Members. Within one hundred twenty (120) days
after the end of each Entry Date, the Administrative Committee shall transmit
to each Member or Beneficiary a written statement showing, as of such calendar
quarter:
(a) The balance in his Account as of the last day of the
preceding calendar quarter;
(b) The amount of Deferral Contributions, and Employer
Matching Contributions (if any) and Employer Contributions (if any)
allocated to his Account for such calendar quarter;
(c) The adjustment of his Account to reflect his share of the
income, valuation adjustments and expenses of the Trust for such
calendar quarter;
(d) The new balance in his Account; and
(e) Such other information as may be required under the Code
and regulations thereunder.
12.15 Signatory Company to Supply Information. To enable the
Administrative Committee to perform its functions, the Signatory Company shall
supply full and timely information to the Administrative Committee on all
matters relating to the compensation of all Members, their Hours of Service,
their Years of Service, their retirement, death, disability, or termination of
employment and such other pertinent facts as the Administrative Committee may
require; and the Administrative Committee shall advise the Trustee of such of
the foregoing facts as may be pertinent to the Trustee's duties under the Plan.
The Administrative Committee may rely upon such information as is supplied by
the Signatory Company and shall have no duty or responsibility to verify such
information.
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ARTICLE XIII.
Trustee
13.1 Acceptance and Holding of Funds. The Trustee shall retain,
manage, administer and hold the Trust Fund in accordance with the terms of this
Plan. The Trustee shall receive any securities or other property that are
tendered to the Trustee and that the Trustee deems acceptable. The Trustee
shall have no duty to compel any Employer Matching Contribution or Employer
Contribution to the Trust Fund by a Signatory Company.
13.2 Responsibility for Actions. The Trustee shall not be
responsible for any acts or omissions of the Administrative Committee and may
assume that the Administrative Committee is discharging its duties under this
Plan until and unless it is notified to the contrary, in writing, by any person
known to be a Member of the Plan or by a Signatory Company. If the Trustee
receives such notice, the Trustee may exercise its own discretion and may apply
to a court of competent jurisdiction for guidance with respect to the
disposition of the Trust Fund or any other matter. Any powers granted to the
Trustee that are to be exercised according to the direction of the
Administrative Committee shall be exercised by the Trustee exactly as directed
by the Administrative Committee in a written instrument signed by the person or
persons authorized to sign for the Administrative Committee and delivered to
the Trustee. The Trustee shall have absolutely no liability for any loss or
breach of trust of any kind which may result from any action or failure of
action due to its compliance with written direction from the Administrative
Committee (whether or not such action is to be
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taken solely at the direction of the Administrative Committee) or for a failure
on the part of the Administrative Committee to give a written direction
properly or within a required period of time. The Trustee may accept as true
all paper, certificates, statements and representations of fact that are
presented to it without investigation or verification if the Trustee believes;
them to be genuine, to have been signed by the Administrative Committee and to
be the act of the Administrative Committee, and may rely solely on the written
advice of the Administrative Committee on any question of fact. If at any time
the Administrative Committee shall fail to give directions or instructions to
the Trustee or to express its consent and approval to proposed action within a
reasonable time after consent and approval is requested by the Trustee, the
Trustee, although being under no obligation to do so, may act (and shall be
protected in so acting) without such directions, instructions, consent or
approval and may exercise its own discretion and judgment as seems appropriate
and advisable under the circumstances in order to effectuate the purposes of
this Plan.
13.3 Resolutions of Board of Directors. The Trustee shall be fully
protected in relying upon a resolution of the Board of Directors of the
Corporation, duly certified by the Corporation's secretary or assistant
secretary, as to the membership of the Administrative Committee until a
subsequent resolution is filed with the Trustee by the Board of Directors.
13.4 Judicial Protection. The Trustee may seek judicial protection
for any action or proceeding it deems necessary to settle the accounts of the
Trustee; a judicial determination or a
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declaratory judgment as to a question of construction of the Plan or Trust; or
judicial instruction as; to action under this Plan or Trust. The Trustee need
join only the Administrative Committee and the Signatory Company as parties
defendant although the Trustee may join other parties. The district court of
Harris County, Texas, shall have jurisdiction and venue in all such matters.
13.5 Dealings with Third Parties. No person dealing with the
Trustee shall be required to verify the application by the Trustee for Trust
purposes of any money paid or other property delivered to the Trustee. All
persons dealing with the Trustee shall be entitled to rely upon the
representations of the Trustee as to its authority and are released from any
duty of inquiry with respect thereto. Any action of the Trustee hereunder
shall be conclusively evidenced for all purposes of this Agreement by a
certificate duly signed by the Trustee, and such certificate shall be
conclusive evidence of the facts recited therein and shall fully protect all
persons relying upon the truth thereof. Any person dealing with the Trustee in
good faith shall not be required to inquire whether the Administrative
Committee has instructed the Trustee or whether the Trustee is otherwise
authorized to take or omit any action. Any such person shall be fully protected
in acting upon any notice, resolution, instruction, direction, order,
certificate, opinion, letter, telegram or other document believed by such
person to be genuine, to have been signed by the Trustee and to be the act of
the Trustee.
13.6 Annual Accounting by Trustee. Within forty-five (45) days
after the end of each Plan Year, the Trustee shall render to
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the Administrative Committee and to each Signatory Company a written accounting
of its administration of the Trust Fund showing all receipts and disbursements
during the preceding Plan Year and the market value of the assets of the Trust
Fund as of the end of such Plan Year. The written approval of any accounting
by the Administrative Committee as to all matters and transactions stated or
shown therein relating to the Trust shall be final and binding upon the
Administrative Committee, each Signatory Company and upon all persons who shall
then be or shall thereafter become interested in such Trust and the Trustee
shall be released and discharged as to all items, matters and things set forth
in such accounting as if such accounting had been settled by decree of a court
of competent jurisdiction. The failure of the Administrative Committee to
notify the Trustee of its disapproval of such accounting within ninety (90)
days after receipt of any such accounting shall be equivalent to written
approval. The Trustee shall have, nevertheless, the right to have its accounts
settled by judicial proceeding. The records of the Trustee as to the Trust
Fund may be inspected by the Administrative Committee or Signatory Company
during normal business hours of the Trustee.
13.7 Preparation of Statement to Members. The Trustee shall
provide any assistance and information requested by the Administrative
Committee in conjunction with the preparation of the statements to Members in
accordance with Section 12.14.
13.8 Resignation of Trustee. The Trustee may resign at any time by
giving thirty (30) days' written notice to the Corporation. Such notice may be
waived by written consent of the Corporation.
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Upon such resignation, the Trustee shall within a reasonable time render to the
Administrative Committee and to each Signatory Company a written account of its
administration of the Trust for the period following that which was covered by
the last annual accounting, through the effective date of resignation.
13.9 Removal of Trustee. The Corporation may remove any Trustee at
any time by giving thirty (30) days' written notice. Such notice may be waived
by written consent of the Trustee being removed. In the event of removal, the
Trustee shall be under the same duty to settle its accounts as provided in
Section 13.6 above.
13.10 Appointment of Successor Trustee. The resignation or removal
of a Trustee shall not terminate the Trust. In the event of a vacancy in the
position of Trustee at any time, the Corporation shall designate and appoint a
successor Trustee. Any successor Trustee, upon executing an acknowledged
acceptance of the trusteeship and upon settlement of the accounts and discharge
of the retiring Trustee, shall be vested, without further act on the part of
anyone, with all the estates, titles, rights, powers, duties and discretions
granted to the retiring Trustee. The retiring Trustee shall execute and
deliver such assignments or other instruments as may be deemed advisable by the
successor Trustee.
13.11 Trustee's Compensation and Expenses. The Trustee may receive
such reasonable compensation as may be agreed upon from time to time; provided,
however, that no person serving as Trustee who receives full-time compensation
from a Signatory Company or group of Signatory Companies shall receive
compensation from the
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Trust Fund except for reimbursement of expenses properly and actually paid.
All brokerage costs, transfer taxes and expenses incurred in connection with
the investment and reinvestment of the Trust Fund, all income taxes or other
taxes of any kind whatsoever which may be levied or assessed under existing or
future laws upon or with respect to the Trust Fund, and any interest which may
be payable on money borrowed by the Trustee for the purposes of the Trust,
shall be paid from the Trust Fund, and, until paid, shall constitute a charge
upon the Trust Fund. All other administrative expenses incurred by the Trustee
in the performance of its duties, including fees for legal, appraisal and
accounting services rendered to the Trustee, such compensation to the Trustee
as may be agreed upon in writing from time to time between the Corporation and
the Trustee, all premiums for bonds required under Section 13.12 hereof and all
other proper charges and disbursements of the Trustee, shall be paid by each
Signatory Company in the proportion that the total amount in the Accounts Of
the Members of such Signatory Company bears to the total amount in the Accounts
of the Members of all Signatory Companies; provided, however, that at the
election of all of the Signatory Companies, such expenses (except premiums for
required bonds under Section 13.12 hereof) may be paid from the Trust Fund. It
is expressly provided, however, that any excise tax assessed against any
Trustee pursuant to the provisions of Section 4975 of the Code shall not, for
the purposes of this Plan and Trust, be considered an expense of the Trust to
be paid by the Signatory Companies as hereinabove provided.
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13.12 Bonds. Unless otherwise specifically exempted by federal
statute or regulations promulgated thereunder, each and every Trustee shall be
required to give bond for the faithful performance of its duties, the amount of
which shall be fixed at the beginning of each Plan Year. The amount of each
bond shall be determined annually by the Board of Directors of the Corporation
but shall not be less than ten percent (10%) of the amount of funds handled.
Unless otherwise required by the Secretary of Labor, however, no bond shall be
less than one thousand dollars ($1,000) nor more than five hundred thousand
dollars ($500,000). For purposes of fixing the amount of the bond, the amount
of funds handled by the Trustee shall be determined by the funds handled by the
Trustee during the preceding Plan Year, or, if the Plan had no preceding Plan
Year, the amount of funds to be handled during the current Plan Year by the
Trustee. The bond shall provide protection to the Plan against loss by reason
of acts of fraud or dishonesty on the part of the Trustee, directly or through
connivance with others. However, this Section 13.12 shall not apply as to any
Trustee who is also a member of the Administrative Committee and has given bond
as required by Article XI, Section 12.11 hereof.
13.13 Indemnity. The Signatory Companies shall indemnify and save
the Trustee harmless from any and all claims, losses, damages, expenses
(including counsel fees approved by the Trustee) and liabilities (including any
amounts paid in settlement with the Trustee's approval) or other effects and
consequences arising from any act, omission or conduct in its official
capacity, except when the same is judicially determined to be due to the gross
negligence
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or willful misconduct of the Trustee. Any amounts paid or owing under this
Section 13.13 shall be considered as an expense of the Trustee to be paid by
the respective Signatory Companies as provided in Section 13.11 hereof. It is
expressly provided, however, that any excise tax assessed against the Trustee
pursuant to the provisions of Section 4975 of the Code shall not, for the
purposes of this Plan and Trust, be considered an expense of the Trustee to be
paid by the Signatory Companies as hereinabove provided.
13.14 Appointment of Investment Manager. The Corporation, upon
notice to the Trustee, may appoint an investment manager or managers over any
portion or portions of the Trust Fund. Such investment manager shall be a
fiduciary who is (a) registered as an investment adviser under the Investment
Advisers Act of 1940, (b) a bank, as defined in that act, or (c) an insurance
company qualified to perform these types of services under the laws of more
than one state. Such investment manager shall acknowledge in writing its
appointment as a fiduciary under this Plan. The investment manager shall,
except to the extent limited in its written agreement with the Corporation,
have all the powers and duties over the portion of the Trust Fund designated as
under its control, as the powers and duties of a Trustee under this Plan
including those set forth in Article XIV of this Plan. In accordance with
Section 405(d)(1) of the Act, the Trustee shall not be liable for any acts or
omissions of the investment manager or be under an obligation to invest or
otherwise manage any assets of the
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Plan, which are subject to the management of such investment manager.
ARTICLE XIV.
Investment Powers of Trustee
14.1 Standards: Prudent Man Rule. The Trustee shall, in
discharging its duties, act solely in the interest of the Members and
Beneficiaries of the Plan. It must act exclusively for the purpose of
providing benefits to Members and Beneficiaries and for defraying the
reasonable expenses of the Plan. The Trustee shall carry out its duties with
the same care, skill, prudence and diligence that a prudent man acting in a
like capacity would use under conditions prevailing at that time.
14.2 Powers of Trustee. The Trustee shall have the following
authority, rights, privileges and powers in addition to the authority, rights,
privileges and powers elsewhere vested in the Trustee and those now or
hereafter conferred by law, subject to any limitations stated in this Plan:
(a) To hold, manage, control, collect, use (including the
power to hold any property unproductive of income) and dispose of the
Trust Fund in accordance with the terms of this instrument as if it
were the fee simple owner of such Trust Fund; and
(b) To keep any or all securities or other property in
the name of some other person, partnership or corporation with a power
of attorney for transfer attached, or in its name without disclosing
its fiduciary capacity; and
(c) To invest and reinvest the Trust Assets, as
instructed pursuant to Section 14.4; and
(d) To vote, either in person or by proxy, with or
without power of substitution, any stocks, bonds or other securities
held by it; to exercise any options appurtenant to any stocks, bonds
or other securities for the conversion thereof into other stocks,
bonds or securities; to exercise
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any rights to subscribe for additional stocks, bonds or other
securities and to make any and all necessary payments thereof; and
(e) To collect the principal and income of the Trust as
the same may become due and payable and to give binding receipt
therefor; and
(f) To institute, join in, maintain, defend, compromise,
submit to arbitration or settle any litigation, claim, obligation or
controversy in favor of or against the Trust Fund, all in the name of
the Trustee and without the joinder of any Member; and
(g) From time to time transfer to a common or pooled trust
fund maintained by any corporate Trustee hereunder or any affiliate of
such trustee, all or such part of the Trust Fund as the Trustee may
deem advisable and such part or all of the Trust Fund so transferred
shall be subject to all the terms and provisions of the common or
pooled trust fund which contemplate the commingling for investment
purposes of such trust assets with trust assets of other employees'
profit sharing and pension plans established by other public
institutions and organizations. The Trustee may, from time to time,
withdraw from such common or pooled trust fund all or such part of the
Trust Fund as the Trustee may deem advisable; and
(h) To partition any property or interest held as part of
the Trust Fund and to pay or receive such money or property necessary
or advisable to equalize differences; to make any distribution from
the Trust Fund in cash or in kind, or both (including an undivided
interest in any property) or in any other manner (including composing
shares differently) and to value any property belonging to the Trust
Fund, which valuation at all times shall be binding upon the Signatory
Company and all Members; and
(i) To loan or borrow money in any manner (including
joint and several obligations) with or with out security, upon such
terms as the Trustee may deem advisable regardless of the duration of
the Trust created by this instrument and to mortgage (including the
making of purchase money mortgages), pledge or in any other manner
encumber all or any part of the Trust Fund as the Trustee may deem
advisable. However, this Section shall not apply to purchases of
Qualifying Employer Securities or Employer Stock; and
(j) To select, employ and compensate such lawyers,
brokers, banks, investment counsel or other agents or employees and to
delegate to them such of the duties, rights and powers of the Trustee
(including the power to vote shares
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of stock) as the Trustee deems advisable in administering the Trust
Fund; and
(k) To appoint any person or corporation in any state of
the United States to act as ancillary Trustee with respect to any
portion of the Trust Fund. Any ancillary Trustee shall have such
rights, powers, duties and discretions as are delegated to it by the
Trustee but shall exercise the same, subject to such limitations or
further directions of the Trustee as shall be specified in the
instrument evidencing its appointment. Any ancillary Trustee shall be
account able solely to the Trustee and shall be entitled to reasonable
compensation; and
(l) To exercise all the rights, powers, options and
privileges now or hereafter granted to trustees under the Texas Trust
Code, except such as conflict with the terms of this instrument. So
far as possible, no subsequent legislation or regulation shall limit
the rights, powers or privileges granted in this Plan or in the Texas
Trust Code, as it now exists. The Trustee shall have, hold, manage,
control, use, invest and reinvest, disburse and dispose of the Trust
Fund as if the Trustee were the owner thereof in fee simple instead of
in trust, subject only to such limitations as are contained herein or
such of the laws of the State of Texas as cannot be waived. The
instrument shall always be construed in favor of the validity of any
act or omission of the Trustee; and
(m) To make a loan or loans to Members under such terms
and conditions as provided in Article XV hereof; and
(n) To deposit the assets of the Trust with itself or its
successors as a bank and/or its bank holding affiliate.
Notwithstanding any other provision of the Plan, the Trustee may cause
all or any part of the monies or other assets of the Trust, without
limitation as to amounts, to be commingled with the monies and assets
of similar trusts created by others by causing such monies and assets
to be invested as a part of any one or more of the trust funds created
by the Trustee, and monies or other assets of this Trust 80 added to
any of such trust funds at any time shall be subject to all of the
provisions of the governing instruments of any said trust funds.
14.3 Prohibited Transactions. Except as elsewhere permitted in the
Act:
(a) The Trustee shall not cause the Plan to engage in a
transaction if it knows, or should know, that such transaction
constitutes a direct or indirect:
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(1) Sale, exchange or leasing of any property
between the Plan and a party in interest;
(2) Lending of money or other extension of credit
between the Plan and a party in interest, except for exempt
and authorized transactions;
(3) Furnishing of goods, services or facilities
between the Plan and a party in interest;
(4) Transfer to, or use by or for the benefit of,
a party in interest of any assets of the Plan; or
(5) Acquisition on behalf of the Plan of any
Employer Security or Employer Real Property in violation of
Section 407(a) of said Act.
(b) The Trustee who has authority or discretion to
control or manage the assets of a Plan shall not permit the Plan to
hold any Employer Security or Employer Real Property if it knows, or
should know, that holding such security or real property violates
Section 407(a) of said Act.
(c) The Trustee shall not:
(1) Deal with the assets of the Plan in its own
interest or for its own account;
(2) In his individual capacity or any other
capacity act in any transaction involving the Plan on behalf
of a party (or represent a party) whose interests are adverse
to the interests of the Plan or the interests of its Members
or Beneficiaries; or
(3) Receive any consideration for its own
personal account from any party dealing with the Plan in
connection with a transaction involving the assets of the
Plan.
(d) A transfer of real or personal property by a party in
interest to the Plan shall be treated as a sale or exchange if the
property is subject to a mortgage or similar lien which the Plan
assumes or if it is subject to a mortgage or similar lien which a
party in interest placed on the property within the ten-year period
ending on the date of the transfer.
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(e) Except as otherwise permitted in the Act:
(1) The Plan shall not acquire or hold:
(A) Any Employer Security which is not a
Qualifying Employer Security, or
(B) Any Employer Real Property or Qualifying
Employer Real Property.
(f) For purposes of determining the time at which a Plan
acquires Employer Real Property for purposes of this section, such
property shall be deemed to be acquired by the Plan on the date on
which the Plan acquires the property or on the date on which the lease
to the Signatory Company (or Affiliated Company) is entered into,
whichever is later.
(g) The Trustee shall not acquire any collectibles. For
purposes for this subsection, "collectibles" means any work of art,
any rug or antique, any metal or gem, any stamp or coin, any alcoholic
beverage, or any other tangible personal property specified by the
Secretary of Labor or Secretary of the Treasury.
14.4 Investment of Contributions. Each Member shall have the right
to elect, in writing on a form provided by the Administrative Committee, to
have the Deferral Contributions, Employer Matching Contributions and Employer
Contributions which are allocated to his Account invested in such classes of
investments as are selected by the Administrative Committee and offered for
Members' investment on a uniform, nondiscriminatory basis including the
following investments:
Fund A - Fixed Income. Invested predominantly in fixed income
investments, including but not limited to bonds, preferred stocks,
debentures, insurance contracts, and notes secured by real estate
mortgages.
Fund B - Equity. Invested predominantly in equity
investments, including but not limited to common stocks, preferred
stocks and convertible debt securities.
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Fund C - Time Deposit/Money Market Account. Invested
predominantly in time deposits and money market funds, including
savings accounts and certificates of a financial organization
(including such accounts with the Trustee or its affiliates which bear
a reasonable rate of interest), United States Treasury Bills, bankers
acceptances, commercial paper and notes (including variable amount
notes maintained by the Trustee).
Fund D - General Balanced Portfolio. Invested as a general
balanced portfolio in all forms of investments, including (without
limitation) equities or fixed income securities, time deposits or
money market funds, in any combination and in any amount, all in the
sole discretion of the Trustee.
The Administrative Committee shall then instruct the Trustee to invest the
Deferral Contributions and Employer Matching Contributions in the manner and
proportions instructed by the Member. The Member may elect any combination of
investments in these Funds in increments of twenty-five percent (25%).
A Member may elect to change the investment of his present Account
and/or the investment of future contributions to be made on his behalf. In the
event that the Member wants to change his investment election, he must notify
the Administrative Committee of such change in writing. Investment election
changes must be in increments of twenty-five percent (25%) and shall be
effective on the Entry Date coincident with or next following fifteen (15) days
after the election change is received by the Administrative Committee.
ARTICLE XV.
Loans to Members
15.1 No Plan Loans. Loans to Members are not authorized under this
Plan.
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ARTICLE XVI.
Amendment and Termination
16.1 Amendment - General. The Corporation shall have the sole
right to amend this Plan. In the event of any such amendment, each other
Signatory Company shall be deemed to have consented to the amendment unless it
notifies the Corporation, in writing, that it refuses to ratify the amendment.
In the event that a Signatory Company refuses to ratify to any such amendment,
such refusal to ratify shall constitute a withdrawal from this Plan by such
Signatory Company. Upon the delivery by the Corporation to the Trustee of a
certified copy of the resolution authorizing an amendment to this Plan, this
Plan shall be deemed to have been so amended and all Members and other persons
claiming any interest hereunder shall be bound thereby; provided, that no
amendment:
(a) Shall have the effect of vesting in any Signatory
Company any interest in any property held subject to the terms of the
Trust; or
(b) Shall cause or permit any property held subject to
the terms of the Trust to be diverted to purposes other than the
exclusive benefit of the present or future Members and Beneficiaries;
or
(c) Shall substantially increase the duties or
liabilities of the Trustee without its written consent; or
(d) Shall (except as permitted by law) reduce benefits of
a Member.
For purposes of this paragraph, a plan amendment which has the effect
of (1) eliminating or reducing an early retirement benefit or a retirement-type
subsidy, or (2) eliminating an optional form of benefit, with respect to
benefits attributable to service before the amendment, shall be treated as
reducing benefits. In the case
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of a retirement-type subsidy, the preceding sentence shall apply only with
respect to a Member who satisfies (either before or after the amendment) the
preamendment conditions for the subsidy. In general, a retirement-type subsidy
is a subsidy that continues after retirement, but does not include a qualified
disability benefit, a medical benefit, a social security supplement, a death
benefit (including life insurance), or a plant shutdown benefit (that does not
continue after retirement age). Furthermore, no amendment to the plan shall
have the effect of decreasing a Member's vested Account balance determined
without regard to such amendment as of the later of the date such amendment is
adopted, or becomes effective.
16.2 Amendments Necessary to Comply with Intentions of Signatory
Companies. It is the intention of each Signatory Company that its Employer
Matching Contributions and Employer Contributions to this Plan be deductible
under the applicable provisions of the Code, that such Employer Matching
Contributions and Employer Contributions not be subject to withholding under
the Code or the Federal Insurance Contributions Act; and that such Employer
Matching Contributions and Employer Contributions not be subject to the Fair
Labor Standards Act of 1938, as amended, as part of the "regular rate". The
Corporation shall make such amendments to this Plan as may be necessary to
carry out these intentions. All amendments to this Plan which may be required
for the purpose of realizing the intentions above stated may be made
retroactively.
16.3 Termination with Respect to Signatory Company Without
Establishment of a Successor Plan. A termination of this Plan by
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any Signatory Company, as provided below in this Section 16.3, without
establishment of a successor plan, shall constitute a termination only with
respect to such Signatory Company and such termination shall not constitute a
termination of this Plan with respect to any other Signatory Company. This Plan
shall terminate as to a Signatory Company upon the happening of any of the
following events:
(a) The approval of the Administrative Committee of a
written request by such Signatory Company to terminate the Plan,
effective as of the last day of the Plan Year in which such consent is
issued;
(b) Adjudication of the Signatory Company as a "debtor"
under the Bankruptcy Act of 1978 or general assignment by the
Signatory Company to or for the benefit of creditors or dissolution of
the Signatory Company; and/or
(c) Twenty-one (21) years following the death of the last
surviving original Member living at the time this Plan was adopted by
the Signatory Company; provided, however, that this Section 16.3(c)
shall be effective only in the event that the Rule Against
Perpetuities is applicable to the Trust established under this Plan.
Upon termination of this Plan by any Signatory Company without establishment of
a successor plan, the Administrative Committee and the Trust will continue
until the Plan benefit of each Member has been distributed. Plan benefits
shall be computed and, if necessary, the Trust Fund shall be partially or
totally converted to a liquid posture to permit an efficient and equitable
distribution. The Signatory Company will give written notice to the District
Director of the Internal Revenue Service of the fact that the Signatory Company
has terminated or partially terminated the Plan.
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Upon termination of the Plan, a Member who is partially vested in
amounts in his Account attributable to Employer Matching Contributions and
Employer Contributions as of such Plan termination shall immediately be fully
vested in accordance with the provisions of Article VII, Section 7.7 of the
Plan. Distribution on account of termination of the Plan shall be made in
accordance with the distribution alternatives set forth in Article IX, Section
9.3 of the Plan.
16.4 Continuation of Plan and Trust by Successor. This Trust shall
not be considered terminated upon the dissolution or liquidation of a Signatory
Company in the event that a successor to the Signatory Company, by operation of
law or by the acquisition of its business interests, shall elect to continue
this Plan and Trust as provided in Article XVI hereof.
ARTICLE XVII.
Continuance of Plan by Successor
17.1 Adoption of Plan by Successor. In the event of the
consolidation or merger of any Signatory Company or the sale by any Signatory
Company of its assets, the resulting successor person or persons corporation
may continue the Plan by direction from such person, (if not a corporation); or
(if a corporation) by adopting the same by resolution of its Board of Directors
and by executing a proper supplemental Trust Agreement with the Trustee. If,
within ninety (90) days from the effective date of such consolidation, merger
or sale of assets, such successor neither adopts this Plan as provided herein
nor adopts a successor plan for the benefit of the employees of the Signatory
Company, then the Plan automatically
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shall be terminated and the Trust Fund shall be distributed exclusively to the
Members or their Beneficiaries in the manner provided in Article XVI, Section
16.3.
ARTICLE XVIII.
Merger of Plan or Transfer of Plan Assets
18.1 Transfer, Consolidation or Merger with Another Plan. In the
event of (1) a merger or consolidation of the Plan with any other plan or (2) a
transfer of assets and liabilities of the Plan to any other plan, each Member
of the Plan will (if the Plan then terminated) be entitled to receive a benefit
immediately after such merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately
before such merger, consolidation or transfer (if the Plan had then been
terminated).
ARTICLE XIX.
Adoption of Plan by a Signatory Company
19.1 Method of Adoption. Any Affiliated Company (or other business
organization) except those with a payroll system which is incompatible with the
Corporation's or otherwise, in the determination of the Administrative
Committee, incapable of making the computations and accountings necessary to
administer the Plan may, with the approval of the Corporation, adopt this Plan
for all or any classification of its Employees, as permitted by Section 401(a)
of the Code. The Plan should be adopted by the Affiliated Company in a manner
which indicates the following:
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(a) The particular classification or classifications of its
Employees which are to be eligible for membership in the Plan; and
(b) Its agreement to be bound as a Signatory Company by all
the terms, provisions, conditions and limitations of this Plan with
respect to its Employees eligible for membership in this Plan; and
(c) Any other information required by the Administrative
Committee or the Trustee with reference to Employees or Members.
This Plan may be adopted by compliance with the foregoing conditions on or
before the end of any Plan Year.
19.2 Withdrawal from the Plan. Subject to the consent of the
Corporation, any Signatory Company may at any time withdraw from or discontinue
its participation in this Plan either by failure to consent to an amendment as
provided in Article XVI, Section 16.1 or by giving written notice of such
withdrawal to the Trustee and may cause to be segregated from the Trust Fund
that part of the assets held in the Trust Fund for the Accounts of the Members
employed by such Signatory Company at the date of such discontinuance. A
withdrawal, whether or not voluntary, from this Plan by a Signatory Company
shall not of itself constitute a termination of the Plan with respect to such
Signatory Company. A Signatory Company which withdraws, voluntarily or
involuntarily, from this Plan shall, as soon as may be practicable, adopt a
comparable employee benefit
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plan and trust which shall qualify under Section 401(a) of the Code. The
withdrawing Signatory Company shall then file with the Trustee a written
instrument evidencing its discontinuance in this Plan and shall likewise file
with the Trustee a certification by the Administrative Committee authorizing
the segregation from the Trust Fund of the assets attributable to the Members
employed by such Signatory Company. In the event of segregation as hereinabove
provided, the Trustee shall deliver to the successor Trustee such part of the
Trust Fund as may be determined by the Administrative Committee to constitute
the appropriate share of the Trust Fund then held with respect to the Members
employed by such Signatory Company. Such former Signatory Company will
thereafter exercise with respect to such Plan and Trust all of the rights and
powers which may be reserved to such Signatory Company under the terms of the
written instruments providing for such segregation as aforesaid. Such
segregating Signatory Company shall likewise file with the successor Trustee
such other written instruments as may be necessary in order to make effective
the continuance as a separate trust (as though such Signatory Company were the
sole creator thereof) of the assets so segregated in accordance with the
provisions of this Plan or in accordance with such other plan as may be
mutually agreed upon between such Signatory Company and a successor Trustee.
ARTICLE XX.
Recovery of Employer Contributions
20.1 Initial Approval By Internal Revenue Service. Notwithstanding
any other provision of this Plan and Trust Agreement,
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it is specifically understood that this Plan and Trust Agreement is adopted and
executed by the Signatory Company upon the condition precedent that the Plan
and Trust shall be approved and qualified by the Internal Revenue Service as
meeting the requirements of the Code and the regulations and rulings issued
thereunder with respect to salary deferral plans and trusts so that the
Signatory Company will be permitted to deduct for federal income tax purposes
the amount of the Deferral Contributions, Employer Contributions (if any) and
its Employer Matching Contributions (if any) to the Trust under the Plan, that
such Deferral Contributions, Employer Contributions (if any) and Employer
Matching Contributions (if any) will not be taxable to the Members as income
when made and that the Trust will be exempt from federal income tax. In the
event the Internal Revenue Service shall rule that the Plan and Trust are not
so approved and qualified, all Deferral Contributions, Employer Contributions
(if any) and all Employer Matching Contributions (if any) made to the Trust
under the Plan by a Signatory Company prior to the initial determination by the
Internal Revenue Service as to the qualification of the Plan and Trust shall
revert and be repaid by the Trustee to the Signatory Company. No Member,
Eligible Employee, Employee or other person shall have any right to the
Employer Matching Contributions (if any) or Employer Contributions (if any).
However, Deferral Contributions allocated to each Member's Account shall be
paid to such Member. If the Corporation shall determine, however, in
consultation with the Commissioner's representatives, that such failure of
qualification may be cured by steps that the Corporation deems will be in the
interest of it and
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its Employees, the Corporation may elect to amend the Plan and/or Trust in
order to achieve such qualification rather than cause the reversion of Deferral
Contributions, Employer Contributions (if any) and Employer Matching
Contributions (if any) as herein provided.
20.2 Conditioned on Deductibility. All employer contributions of
any kind to this Plan are expressly made conditioned on being allowed as a
deduction to the Signatory Company for federal income tax purposes.
ARTICLE XXI.
Miscellaneous
21.1 Plan is a Voluntary Undertaking by the Signatory Company. The
adoption and maintenance of this Plan and Trust are strictly voluntary
undertakings on the part of the Signatory Company and shall not be deemed to be
a contract between the Signatory Company and any Employee. Nothing contained
herein shall be deemed to give any Employee the right to be retained in the
employment of the Signatory Company, to interfere with the rights of the
Signatory Company to discharge any Employee at any time or to interfere with an
Employee's right to terminate his employment at any time.
21.2 Benefit Provided Solely by the Trust Fund. All benefits
payable under this Plan shall be paid or provided for solely from the Trust and
the Signatory Company assumes no liability or responsibility therefor.
21.3 Nonalienation. No benefit payable or to become payable under
the Plan will, except as otherwise specifically provided by law, be subject in
any manner to anticipation, alienation, sale,
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transfer, assignment, pledge, encumbrance or charge, and any attempt so to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same by a Member or Beneficiary prior to distribution as herein provided shall
be absolutely and wholly void, whether such conveyance, transfer, assignment,
mortgage, pledge or encumbrance be intended to take place or become effective
before or after the expiration of the period herein fixed for the continuance
of the said Trust estate; nor will any benefit be in any manner liable for or
subject to the debts, contracts, liabilities, engagements or torts of the
person entitled thereto. The Trustee shall never under any circumstances be
required to recognize any conveyance, transfer, assignment, mortgage or pledge
by a Member or Beneficiary hereunder of any part of the Trust estate or any
interest therein and shall never be required to pay any money or thing of value
thereon or therefor, to any creditor of a Member or Beneficiary or upon any
debt created by a Member or Beneficiary for any cause whatsoever. For purposes
of this Section 21.3, a loan made to a Member or Beneficiary pursuant to
Article XV hereof shall not be treated as an assignment or alienation if such
loan is secured by the Member's vested interest in the amount standing as a
credit to his Account and is exempt from the tax imposed by Section 4975
(relating to tax on prohibited transactions) of the Code, as amended by the
Act. This provision shall not apply to a "qualified domestic relations order"
defined in Section 414(p) of the Code, and those other domestic relations
orders permitted to be so treated by the Administrative Committee under the
provisions of the Retirement Equity Act of 1984. The
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Administrative Committee shall establish a written procedure to determine the
qualified status of domestic relations orders and to administer distributions
under such qualified orders. Further, to the extent provided under a
"qualified domestic relations order," a former spouse of a Participant shall be
treated as the spouse of a surviving spouse for all purposes under the Plan.
21.4 Applicable Law. The provisions of this Plan shall be
construed, administered and enforced according to the Code, as amended, the
Act, and, to the extent applicable, the laws of the State of Texas. All
contributions to and distributions from the Trust shall be deemed to take place
in the State of Texas. The Trustee or Signatory Company may at any time
initiate any legal action or proceeding for the settlement of the accounts of
the Trustee, for the determination of any questions (including questions of
construction which may arise) or for instruction, and the only necessary
parties to such action or proceeding shall be the Trustee and the Signatory
Company, except that any other person or persons may be included as parties
defendant at the elections of the Trustee and the Signatory Company.
21.5 Construction. Unless the context clearly indicates to the
contrary, the masculine gender shall include the feminine and neuter, and the
singular shall include the plural. The words "hereof," "herein, n hereunder"
and other similar compounds of the word "here" shall mean and refer to the
entire Plan and not to any particular provision or section.
21.6 Reference to Code or Act Sections. Reference to the
provisions of any particular Section of the Code or Act shall be
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deemed reference to any Section of the Code or Act which may hereafter contain
the same or similar provisions.
21.7 Binding Agreement. This Plan shall be binding upon the
adopting Signatory Companies, the Trustee and their respective successors and
assigns, and upon the Members, their Beneficiaries and their respective heirs
and legal representatives.
21.8 No Joint Venture Implied. The adoption of this Plan by any
Signatory Company shall not create a joint venture or partnership relationship
between it and any other party hereto, nor shall such action ever be construed
as having that effect. Any rights, duties, liabilities or obligations assumed
hereunder by each participating Signatory Company or imposed upon it as a
result of the terms and provisions of this Plan, shall relate to and affect
such Signatory Company alone.
21.9 Copies of Plan Available. Copies of this Plan and any and all
amendments thereto shall be made available for inspection at all reasonable
times at the principal office of the Signatory Company to all Employees, and
any Employee may obtain a copy of them upon request and the payment of a
reasonable reproduction fee.
21.10 Titles and Headings. The titles to and headings of paragraphs
in this Plan are for convenience and reference only and, in the event of any
conflict, the text of this Plan and Trust, rather than such titles or headings,
shall control.
21.11 Counterparts. This Plan and all amendments thereto may be
executed in any number of counterparts, each of which shall be deemed an
original, and said counterparts shall constitute but one
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and the same instrument which may be sufficiently evidenced by any one
counterpart.
21.12 Severability. If any provision of this Plan and Trust shall
be held illegal or invalid for any reason, said illegality or invalidity shall
not affect the remaining provisions hereof, but each provision shall be fully
severable and the Plan and Trust shall be construed and enforced as if said
illegal or invalid provision had never been inserted herein.
21.13 Agent for Service of Legal Process. The President of the
Corporation is hereby designated as agent of the Plan for the service of legal
process. Such designated agent may be changed from time to time by action of
the Board of Directors of the Corporation in writing, and such changes shall
become effective upon of the U.S. Secretary of Labor.
21.14 Withholding: Reports. Except for loans within the limits
specified in Section 15.1 for which Federal income tax withholding is not
required, the Administrative Committee shall withhold Federal income tax from
all distributions from the Trust Fund to any Payee (or, alternatively direct
the Trustee to do so, providing the Trustee with such information as may be
required under Treasury Regulations), unless such Payee elects not to have
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withholding apply to a distribution. For purposes of this Section 21.14, Payee
means the Member or other individual or entity entitled to a distribution under
this Plan. The manner and amount of withholding will be determined pursuant to
Section 3405 of the Code and the regulations thereunder. The Payee shall be
timely provided with the following: notice of the Payee's right to elect not to
have withholding apply to any distribution; notice of the method of making such
election; a statement that the election remains effective until revoked; notice
of the Payee's right to revoke such election at any time; and a statement to
advise the Payee that penalties may be incurred under the estimated tax payment
rules if the payments of the estimated tax are not adequate or if sufficient
tax is not withheld from the distribution. Procedures with respect to such
notice requirements and the Payee's election shall be determined pursuant to
Section 3405 of the Code and the regulations thereunder. The Administrative
Committee shall maintain records, and make returns and reports with respect to
distributions and withholding thereof, if any, as required under Section
6047(e) of the Code and the regulations thereunder. In addition the
Administrative Committee shall make any reports required under Sections 402(f)
and 6652(j) pertaining to explanations to recipients of lump sum distributions
from the Plan.
21.15 Single Plan. The Plan shall be administered, accounted for
and otherwise treated as a single plan with respect to all the Signatory
Companies that adopt this Plan.
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IN WITNESS WHEREOF, the Corporation and the Trustee have caused this
Agreement to be executed in multiple counterpart copies on this 11th day of
May, 1992, effective as set forth above.
STEWART TITLE GUARANTY COMPANY
By: /s/ Malcom S. Morris
President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: /s/ John Kelley
Title: Vice President
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<PAGE> 120
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm S. Morris, known to me to be the person whose name is subscribed to the
foregoing instrument, as President of STEWART TITLE GUARANTY COMPANY, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 11th day of May, 1992.
/s/ Kevin L. Carter
NOTARY PUBLIC IN AND FOR
THE STATE OF T E X A S
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John Kelley, known to me to be the person whose name is subscribed to the
foregoing instrument, as Vice President of FIRST INTERSTATE BANK OF TEXAS,
N.A., and acknowledged to me that he executed the same for the purposes and
consideration therein expressed, in the capacity therein stated and as the act
and deed of said banking institution.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the 7th day of May, 1992.
/s/ Renella T. Hill
NOTARY PUBLIC IN AND FOR
THE STATE OF T E X A S
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<PAGE> 1
EXHIBIT 4.4
SIXTH AMENDMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS SIXTH AMENDMENT of the STEWART TITLE GUARANTY COMPANY SALARY
DEFERRAL PLAN AND TRUST (hereinafter sometimes called the "Plan" or "Trust") is
made this the 18th day of September, 1991, to be effective as set forth below,
by and between STEWART TITLE GUARANTY COMPANY (hereinafter sometimes called
"Corporation") of Houston, Texas, and FIRST INTERSTATE BANK OF TEXAS, N.A.
(hereinafter sometimes called "Trustee"), a national banking association of
Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its employees and their
beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986, effective
January 1, 1987; subsequently amended on February 26, 1988 effective January 1,
1986; amended on April 5, 1989 effective January 1, 1989; amended on May 30,
1989 effective May 31, 1989; and amended and restated on April 26, 1991
effective January 1, 1989; and
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend the Plan and Trust effective the date set forth
below.
-1-
<PAGE> 2
NOW, THEREFORE, pursuant to the provisions of Article XVI, Section
16.1 of the Plan, the Plan is hereby amended as follows:
1. Effective January 1, 1989, Article I, Section 1.45 of the Plan
shall be amended by adding to the end thereof the following:
Years of Service for eligibility and vesting purposes shall
also include Hours of Service performed by the Member while employed
as an employee of the following companies:
(a) Commonwealth Title Services of Indiana, Inc.
(b) Landata, Inc. of Illinois;
(c) Coldwell Banker of Fairfax, Virginia.
2. Effective October 1, 1991, Article XV of the Plan shall be
amended by deleting it in its entirety and substituting therefor the following:
ARTICLE XV.
Loans to Members
15.1 Application and Limitation. Upon the written
application of any Member (including any Member who (a) has terminated
employment, (b) has not received a distribution of the entire balance
in such Member's account, and (c) is a "party-in-interest" (as defined
in Section 3(14) of the Act)) the Administrative Committee, in
accordance with its uniform, nondiscriminatory policy, may make a loan
to such Member under this Plan. The Trustee shall have no power or
responsibility to administer or make interpretations under this
Article XV and shall be directed by the Administrative Committee in
any action it takes under this Article. If the Member is married at
the time of the application, written spousal consent regarding the
amount of the loan and the possible reduction of the Member's Account
balance as a result of default shall be obtained within the 90-day
period ending on the date the loan is made, and such consent shall
meet requirements comparable to those set forth in Section 417(a)(2)
of the Code. The preceding sentence shall not apply if the
Administrative Committee does not have actual knowledge of such
marriage or the Member reasonably demonstrates that the whereabouts of
his spouse is unknown.
-2-
<PAGE> 3
The amount of a loan to any Member shall not exceed the lesser
of:
(a) $50,000, reduced by the excess (if any) of
(i) the highest outstanding balance of
loans from the Plan during the
one-year period ending on the day
before the date on which a loan is
made, over
(ii) the outstanding balance of loans
from the Plan on the date on which a
loan is made, or
(b) one-half (1/2) of the vested amount in the
Member's Account.
15.2 Purposes of Loans. Loans shall be made under the
provisions of this Article XV for any legal purpose except for the
purposes of purchasing securities. The authority herein granted to
the Administrative Committee to approve such loans from the Trust Fund
is for the purpose of above and shall not be used as a means of
distributing benefits before they otherwise become due. The
Administrative Committee shall review and process Members'
applications for loans on a case-by-case basis in accordance with its
uniform, nondiscriminatory policy.
15.3 Terms. All loans to Plan Members granted under this
provision shall be treated as a segregated individual earmarked
investment of each such borrowing Member's Account (as provided in
Section 15.6 below) and shall be evidenced by the Member's promissory
note payable to the order of the Trustee. the Administrative
Committee shall have the right to make any reasonable interpretations
to implement the rate of interest charged and shall have the right to
modify such interpretations upon proper notice with respect to all
future loans. Such loans shall bear interest at the rate determined
by the Administrative Committee at the time the loan is made
commensurate with the interest rate charged by persons in the business
of lending money for loans that could be made under similar
circumstances on either a local geographical basis or if the
Administrative Committee determines it appropriate on a uniform
national basis. The terms of any loan shall be prescribed by the
Administrative Committee in accordance with the provisions of this
Article and with notice to the Member. The specified maturity date,
including extensions,
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<PAGE> 4
renewals, renegotiations, or revisions, shall not be later than the
earlier of (a) except for a "party- in-interest," the date of the
Member's termination of employment or (b) either five (5) years
measured from the date the loan is made by the Trustee, or, in the
event of a home loan, as described in Section 15.4, ten (10) years
measured from the date such home loan is made. Any loan granted under
the terms of this Article XV shall be repaid on an installment basis,
with substantially level amortization of principal and interest, not
less often than quarterly. Loan repayments shall be made through
payroll deduction, which shall be irrevocably authorized by the
borrowing member in writing on a form prescribed by the Administrative
Committee for this purpose. Payroll deduction shall be the exclusive
means of repayment except for a Member with an outstanding loan
balance who terminates employment and no longer receives compensation
payments from a Signatory Company. Such a terminated Member shall
continue to make payments in the form of personal checks or money
orders. The borrowing Member's Account shall serve as security for
the loan and a provision for this shall be provided in the promissory
note made by the Member. Every loan applicant shall receive, at the
time the loan is made, a clear statement of the charges involved in
each loan transaction. this statement shall include the dollar amount
and annual interest rate of the finance charge. To the extent
applicable, these disclosures shall comply with the requirements of
the federal Truth-in-Lending laws. Expenses incurred by the Plan in
processing a Member's loan shall be charged against the borrowing
Member. The Administrative Committee, in its discretion, shall
promulgate a written loan procedures program to carry out the
provisions of this Article and applicable tax and labor regulations.
15.4 Home Loans. A home loan is any loan used to acquire
any dwelling unit (including, but not limited to, a house, apartment,
condominium, or mobile home not used on a transient basis) which
within a reasonable time is to be used (determined at the time the
loan is made) as the principal residence of the Member.
15.5 Recourse: Prohibition Against Distributions While Loan
Outstanding. There shall not be any payment out of the Trust Fund
(except to the extent the Plan allows for hardship withdrawals) to any
Member, Beneficiary, or other individual or entity under this Plan
unless and until all unpaid loans to such Member, and interest
thereon, shall have been first satisfied in full. In the event a note
is not paid as and when due, the Administrative Committee (or Trustee)
may, in addition and without resort to such other remedies as it
-4-
<PAGE> 5
may have under the law, give written notice to the Member sent to his
last known address. If the note is not paid after a reasonable time
as prescribed by the Administrative Committee in accordance with its
uniform procedures, the amount standing to the credit of the member's
Account in the Trust will be offset by the amount of the unpaid
balance of the loan, together with the interest thereon. The
Administrative Committee shall then send a written notice to the
Member at his last known address which confirms the amount the Member
must include in his income as a deemed distribution from the Plan.
The Administrative Committee shall also be responsible for any
informational reporting, withholding or other tax notice requirements
incident to such deemed distribution. At the time an event requiring
a distribution from the Trust Fund occurs, such as death, disability,
retirement or termination of employment, such amount which had offset
against the Member's Account, will now be applied to actually reduce
the Member's interest in such Account. If an event normally requiring
a distribution, as described above, occurs before any loan is repaid
in full, the unpaid balance thereof, together with the interest
thereon, shall become due and payable and the Trustee shall first
satisfy the indebtedness from the amount in the member's Account
before making any payments to the Member, or to such other individual
or entity as determined under this Plan.
15.6 Treatment of Loan Proceeds. The Administrative
Committee shall determine in accordance with its prescribed procedures
the amount and extent of the investment funds in which the Member's
Account is held at the time of the loan from which the loan shall be
charged and debited. the borrowing Member shall be furnished a copy
of these procedures. All Member loans under this Article XV shall be
treated as segregated earmarked investments of such borrowing Member's
Account. Each Member's Account shall be credited with repayments of
interest made by such Member and received by the Trust. Each
repayment of principal and interest shall be credited to the
underlying investment funds in the same proportion as the Member's
most recent designation of investments of his current Deferral
Contributions except to the extent that the procedures prescribed by
the Administrative Committee otherwise provide.
15.7 Effect on Right to Participate in Plan. Unless a
Member leaves the employ of a Signatory Company or withdraws from the
Plan temporarily or permanently, the existence of a loan from the Plan
shall not affect such Member's good standing and right to continue to
participate in the Plan.
-5-
<PAGE> 6
15.8 Minimum Loan Amounts and Other Limitations.
Notwithstanding any other provision of this Plan, no Member shall be
eligible for a loan under the provisions of this Article XV unless the
amount such loan, considered separately without regard to or adding
back to any other outstanding loans of the Member from the Plan,
exceeds the minimum limit uniformly prescribed by the Administrative
Committee. Under current Department of Labor regulations the limit
may not be greater than $1,000.00. The Administrative Committee may
also prescribe other procedures and limitations with respect to the
number of loans that a Member may make from the Plan each year or have
outstanding at any one time and the time, method and frequency during
each year when such loan or loans shall be made and charged against
such Member's Account.
3. In all other respects, the Plan shall be and remain as
previously amended.
IN WITNESS WHEREOF, this Sixth Amendment to the Stewart Title Guaranty
Company Salary Deferral Plan and Trust has been entered into and is effective
on the date set forth above.
CORPORATION:
STEWART TITLE GUARANTY COMPANY
By: ________________________________
Malcolm Morris, President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: ________________________________
John J. Kelley, Vice President
and Trust Officer
-6-
<PAGE> 7
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
September, 1991.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, known to me to be the person whose name is subscribed to the
foregoing instrument as Vice President and Trust Officer of First Interstate
Bank of Texas, N.A., and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated
and as the act and deed of said national banking association.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
September, 1991.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
-7-
<PAGE> 1
EXHIBIT 4.5
SEVENTH AMENDMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS SEVENTH AMENDMENT of the STEWART TITLE GUARANTY COMPANY SALARY
DEFERRAL PLAN AND TRUST (hereinafter sometimes called the "Plan" or "Trust") is
made this the _____ day of _____________, 1992, to be effective as set forth
below, by and between STEWART TITLE GUARANTY COMPANY (hereinafter sometimes
called "Corporation") of Houston, Texas, and FIRST INTERSTATE BANK OF TEXAS,
N.A. (hereinafter sometimes called "Trustee"), a national banking association
of Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its employees and their
beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986, effective
January 1, 1987; subsequently amended on February 26, 1988 effective January 1,
1986; amended on April 5, 1989 effective January 1, 1989; amended on May 30,
1989 effective May 31, 1989; amended and restated on April 26, 1991 effective
January 1, 1989; and amended on September 18, 1992; and
<PAGE> 2
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend the Plan and Trust effective the date set forth
below.
NOW, THEREFORE, pursuant to the provisions of Article XVI, Section
16.1 of the Plan, the Plan is hereby amended as follows:
1. Effective July 1, 1992, Article III, Section 3.2 shall be
amended by deleting the last paragraph thereof in its entirety and substituting
therefor the following:
The amount of the Employer Matching Contribution and Employer
Contribution for each Plan Year shall be established by a resolution
adopted by the Corporation's Board of Directors. Such resolution will
be communicated to the Signatory Companies by the Corporation and to
the Members by their respective Signatory Companies. Effective July
1, 1992, and for each Plan Year beginning thereafter, unless otherwise
established or determined by the Board of Directors, the Employer
Matching Contribution shall be equal to fifty percent (50%) of each
Member's Deferral Contribution up to a maximum Deferral Contribution
of six percent (6%) of each such Member's Considered Compensation.
The Employer Matching Contribution in any Plan Year, unless otherwise
established or determined by the Board of Directors, shall not exceed
One Thousand Dollars ($1,000.00).
2. Effective January 1, 1992, Article XII, Section 12.6 shall be
amended by adding to the end thereof the following:
The Members of the Administrative Committee may participate in and
hold a meeting of such committee by means of conference telephone or
similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in
a meeting pursuant to this provision shall constitute presence in
person at such meeting.
3. In all other respects, the Plan shall continue as previously
amended.
-2-
<PAGE> 3
IN WITNESS WHEREOF, this Seventh Amendment to the Stewart Title
Guaranty Company Salary Deferral Plan and Trust has been entered into and is
effective on the date set forth above.
CORPORATION:
STEWART TITLE GUARANTY COMPANY
By: ________________________________
Malcolm Morris, President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: ________________________________
John J. Kelley, Vice President
and Trust Officer
-3-
<PAGE> 4
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
______________, 1992.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, known to me to be the person whose name is subscribed to the
foregoing instrument as Vice President and Trust Officer of First Interstate
Bank of Texas, N.A., and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated
and as the act and deed of said national banking association.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
____________________, 1992.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
-4-
<PAGE> 1
EXHIBIT 4.6
EIGHTH AMENDMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS EIGHTH AMENDMENT of the STEWART TITLE GUARANTY COMPANY SALARY
DEFERRAL PLAN AND TRUST (hereinafter sometimes called the "Plan" or "Trust") is
made this the _____ day of _____________, 1992, to be effective as of the 1st
day of January, 1992, by and between STEWART TITLE GUARANTY COMPANY
(hereinafter sometimes called "Corporation") of Houston, Texas, and FIRST
INTERSTATE BANK OF TEXAS, N.A. (hereinafter sometimes called "Trustee"), a
national banking association of Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its employees and their
beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986, effective
January 1, 1987; subsequently amended on February 26, 1988, effective January
1, 1986; amended on April 5, 1989, effective January 1, 1989; amended on May
30, 1989, effective May 31, 1989; amended and restated on April 26, 1991,
effective January 1, 1989; and amended on September 18, 1992; and amended on
_______________, 1992;
<PAGE> 2
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend the Plan and Trust effective the date set forth
below.
NOW, THEREFORE, pursuant to the provisions of Article XVI, Section
16.1 of the Plan, the Plan is hereby amended as follows:
Article IX, Section 9.7 of the Plan is amended by deleting the present
Section 9.7 in its entirety and substituting therefor the following new Section
9.7:
9.7 Community Property Interests - Interest of Spouse of Member in
the Event of Divorce. In the event of a divorce between a Member and his
spouse and in the event that the Divorce Decree entered by the Court having
jurisdiction in the matter gives such divorced spouse a portion of the Member's
vested interest in his Account, the Trustee shall, pursuant to the direction of
the Administrative Committee, segregate such amount in a separate account for
the benefit of such spouse. Such account shall thereafter be held and
administered as a part of the Trust Fund (but such account shall only share in
income allocations and valuation adjustments of the Trust Fund). In the event
the spouse is also awarded a portion of the future Deferral Contributions,
and/or future Employer Matching Contributions and/or future Employer
Contributions which normally would be allocated to the Member's Account, the
Administrative Committee, after it receives a certified copy of such Divorce
Decree, shall instruct the Trustee to allocate such portion to the spouse's
account. Within the period of time specified therein after entry of the final
Qualified Domestic Relations Order which complies with Section 414(p) of the
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<PAGE> 3
Code (even if earlier than the "earliest retirement age" as defined in Section
414(p)(4)(B) of the Code) or, if no period of time is specified therein, at the
time the Member or his Beneficiary becomes entitled to a distribution
hereunder, the amounts held by the Trustee for the spouse shall be distributed
to such spouse in a lump sum unless otherwise elected by such spouse. If such
spouse should die prior to the time of distribution to such spouse hereunder,
such amounts then held by the Trustee shall be paid over to the designated
Beneficiary of such spouse or, if none has been designated, to the estate of
such spouse within six (6) months after notification to the Trustee of the
death of such spouse. All rights and benefits, including elections, provided
to a Member in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic relations order" as those terms
are defined in Section 414(p) of the Code.
In all other respects, the Plan shall remain as previously amended.
IN WITNESS WHEREOF, this Eighth Amendment to the Stewart Title
Guaranty Company Salary Deferral Plan and Trust has been entered into and is
effective on the date set forth above.
CORPORATION:
STEWART TITLE GUARANTY COMPANY
By: ________________________________
Malcolm Morris, President
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<PAGE> 4
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: ________________________________
John J. Kelley, Vice President
and Trust Officer
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
______________, 1992.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, known to me to be the person whose name is subscribed to the
foregoing instrument as Vice President and Trust Officer of First Interstate
Bank of Texas, N.A., and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated
and as the act and deed of said national banking association.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
____________________, 1992.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
-4-
<PAGE> 1
EXHIBIT 4.7
NINTH AMENDMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS NINTH AMENDMENT of the STEWART TITLE GUARANTY COMPANY SALARY
DEFERRAL PLAN AND TRUST (hereinafter sometimes called the "Plan" or "Trust") is
made this the _____ day of _____________, 1993, to be effective as set forth
below, by and between STEWART TITLE GUARANTY COMPANY (hereinafter sometimes
called "Corporation") of Houston, Texas, and FIRST INTERSTATE BANK OF TEXAS,
N.A. (hereinafter sometimes called "Trustee"), a national banking association
of Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its employees and their
beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986, effective
January 1, 1987; subsequently amended on February 26, 1988 effective January 1,
1986; amended on April 5, 1989 effective January 1, 1989; amended on May 30,
1989 effective May 31, 1989; amended and restated on April 26, 1991 effective
January 1, 1989; and amended on September 18, 1991; and amended on April 24,
1992; and
<PAGE> 2
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend the Plan and Trust effective the date set forth
below.
NOW, THEREFORE, pursuant to the provisions of Article XVI, Section
16.1 of the Plan, the Plan is hereby amended as follows:
1. Article VII, Section 7.5(a) shall be amended by deleting the
first paragraph in its entirety and substituting the following:
(a) Vesting Schedule. A Member whose employment is
terminated for any reason other than death or retirement under Section
7.3 above or Total Permanent Disability shall be entitled to a
severance benefit no later than ninety (90) days after the end of the
calendar quarter in which he terminates employment equal to the vested
interest attributable to Deferral Contributions, Employer Matching
Contributions and Employer Contributions in such Member's Account at
the end of such calendar quarter. However, in the event that the
payment of his severance benefit under this section would violate
Article IX, Section 9.4, then such benefit shall commence no later
than sixty (60) days after the latest date determined under that
section. For the purpose of this Section 7.5(a), a Member's "vested
interest" shall be determined using the following schedules and shall
be an amount equal to the percentage of the balance of such Member's
Account attributable to Employer Matching Contributions and Employer
Contributions for the number of Years of Service as of the end of the
Plan Year. As provided in Section 7.1, a Member's "vested interest"
in his Account attributable to Deferral Contributions shall at all
times be one hundred percent (100%).
2. Article IX, Section 9.3(a) shall be amended by deleting it in
its entirety and substituting the following:
(a) A lump sum payment in cash or in kind or both; except
that this form of payment shall not apply in cases under Article VII,
Section 7.3 and 7.5 (pertaining to termination from employment for
reasons other than death or Total Permanent Disability or continuation
in employment beyond Normal Retirement Age) where the entire Account
balance exceeds one hundred thousand dollars ($100,000.00).
3. Article IX, Section 9.3(b) shall be amended by deleting it in
its entirety and substituting the following:
-2-
<PAGE> 3
(b) Distributions in the manner provided below, after
having segregated the aggregate amount thereof in a special account;
provided, that the monies in such special account will earn the going
rate of interest paid by local banks on savings accounts placed in
insured depositories at interest, or, at the option of the Member or
Beneficiary (or Beneficiaries), be credited with their portion of the
gains or losses of the Trust pursuant to Article IV, Sections 4.5 and
4.6; provided further that the interest or other income earned on such
special account shall be paid at the end of each Plan Year.
Distribution of his entire Plan benefit in substantially equal annual,
quarterly or monthly installments, over any time period not exceeding
his life expectancy (or the life expectancies of such Member and his
designated Beneficiary); provided that the value of any such
installment in cases under Article VII, Sections 7.3 and 7.5
(pertaining to termination from employment for reasons other than
death or Total Permanent Disability or continuation in employment
beyond Normal Retirement Age) shall (except as otherwise provided in
the Plan) not exceed one hundred thousand dollars ($100,000.00) on an
annual basis; provided further, that the present value of the benefits
to be distributed to the Member shall exceed fifty percent (50%) of
the present value of the total benefit to be distributed to the Member
and his designated Beneficiary.
4. Article IX is amended by inserting immediately following the
present Section 9.7, the following new Section 9.8 which is intended to
incorporate into the Plan the Model Amendment from Revenue Procedure 93-12:
9.8 Incorporation of Revenue Procedure 93-12 Model Amendment.
This Section 9.8 applies to distributions made on or after January 1, 1993.
Notwithstanding any provision of the Plan to the contrary that would otherwise
limit a distributee's election under this Section 9.8, a distributee may elect
at the time and in the manner prescribed by the Administrative Committee, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
a) Eligible rollover distribution: For purposes of this Section
9.8, an eligible rollover distribution
-3-
<PAGE> 4
is any distribution of all or any portion of the balance to
the credit of the distributee, except that an eligible
rollover distribution does not include: any distribution that
is one of a series of substantially equal periodic payments
(not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint
life expectancies) of the distributee and the distributee's
designated beneficiary, or for a specified period of ten years
or more; any distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; and the portion
of any distribution that is not includible in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
b) Eligible retirement plan: For purposes of this Section 9.8,
an eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified trust described in Section 401(a) of the Code, that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
c) Distributee: For purposes of this Section 9.8, a distributee
includes an employee or former employee. In addition, the
employee's or former employee's surviving spouse and the
employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are
distributees with regard to the interest of the spouse or
former spouse.
d) Direct rollover: For purposes of this Section 9.8, a direct
rollover is a payment by the Plan to the eligible retirement
plan specified by the distributee.
5. Article XI, Section 11.1 shall be amended by deleting the
present Section 11.1 in its entirety and substituting therefore a new Section
11.1 which shall read as follows:
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<PAGE> 5
11.1 Transfers from Other Qualified Plans. With the consent of the
Administrative Committee, assets compatible with the investment objectives of
this Plan may be transferred to this Plan and Trust from any other qualified
plan meeting the requirements of Section 401(a) of the Code which is maintained
by a Signatory Company or by a predecessor employer of the Member for the
benefit of the Member if he is one hundred percent (100%) vested in such
assets, or from an Individual Retirement Account ("IRA") to the extent that the
assets from such IRA had been previously rolled over from another qualified
plan and that such rollover into the Plan is permitted under the Code.
However, in the event the Member rolls over assets from his IRA to the Plan, he
shall first certify to the Administrative Committee the amount he rolled over
into the IRA and both the name and classification of the previous qualified
plan. Assets may not be transferred directly or indirectly from any other
qualified plan meeting the requirements of Section 401(a) of the Code which is
not exempt from the joint and survivor annuity requirements of Section
401(a)(11) of the Code; provided, however, that if by mistake or otherwise any
such benefits are transferred to the Plan on behalf of a Member from (a) a
defined benefit plan, (b) a defined contribution plan subject to Section 412 of
the Code, or (c) a defined contribution plan which is subject to Sections
401(a)(11) and 417 of the Code with respect to that Member, such benefits shall
be subject to the requirements of Reg. Section 1.401(a)-20, Q & A-5(a) and (b),
including the separate accounting requirement for such benefits. The assets so
transferred shall be accompanied by written instructions from the
Administrative
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<PAGE> 6
Committee to the Trustee identifying the other plan, the Member's IRA (if
applicable), this Plan, the name of the Member, his one hundred percent (100%)
vested interest therein, the actual contributions of the Member and the
Signatory Company or predecessor employer, as the case may be, and the current
value of the assets attributable thereto. Such transferred assets shall be
credited to such Member's Account as a fully vested portion thereof.
6. Article XIV, Section 14.4 shall be amended by deleting the
present Section 14.4 in its entirety and substituting therefore a new Section
14.4 which shall read as follows:
14.4 Investment of Contributions. Each Member shall have the right
to elect, in writing on a form provided by the Administrative Committee, to
have the Deferral Contributions, Employer Matching Contributions and Employer
Contributions which are allocated to his Account invested in such classes of
investments as are selected by the Administrative Committee and offered for
Members' investment on a uniform, nondiscriminatory basis including the
following investments:
Fund A - Fixed Income. Invested predominantly in fixed income
investments, including but not limited to bonds, preferred stocks,
debentures, insurance contracts, and notes secured by real estate
mortgages.
Fund B - Equity. Invested predominantly in equity
investments, including but not limited to common stocks, preferred
stocks and convertible debt securities.
Fund C - Time Deposit/Money Market Account. Invested
predominantly in time deposits and money market funds, including
savings accounts and certificates of a financial organization
(including such accounts with the Trustee or its affiliates which bear
a reasonable rate of interest), United States Treasury Bills, bankers
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<PAGE> 7
acceptances, commercial paper and notes (including variable amount
notes maintained by the Trustee).
Fund D - General Balanced Portfolio. Invested as a general
balanced portfolio in all forms of investments, including (without
limitation) equities or fixed income securities, time deposits or
money market funds, in any combination and in any amount, all in the
sole discretion of the Trustee.
The Administrative Committee shall then instruct the Trustee to invest the
Deferral Contributions and Employer Matching Contributions in the manner and
proportions instructed by the Member. The Member may elect any combination of
investments in these Funds in increments of ten percent (10%).
As of any point in time, a Member may elect to change the investment
of his present account and/or the investment of future contributions to be made
on his behalf. In the event that the Member wants to change his investment
election, he must notify the Administrative Committee of such change in
writing. Investment election changes must be in increments of ten percent
(10%) and shall be effective on the Entry Date coincident with or next
following fifteen (15) days after the election change is received by the
Administrative Committee.
7. The Plan is amended by inserting immediately following the
present Article XXI, the following new Article XXII:
ARTICLE XXII
Merger of Stewart Title Services Savings Plan
Effective January 1, 1994, (the "Plan Merger Date") the
Stewart Title Services Savings Plan (the "Transferor Plan") maintained
by Stewart Title Services Corporation,
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<PAGE> 8
Landmark Holdings Corporation and Stewart Title Services Corporation
of Colorado Springs has been merged into this Plan. On the Plan
Merger Date, the participants in the Transferor Plan, commenced
participation as Members of this Plan, subject to the eligibility and
participation provisions of this Plan. Vesting Service (as defined)
under the Transferor Plan shall be counted as Years of Service under
this Plan. Each transferring participant's account balance in the
Transferor Plan as of January 1, 1994 shall be transferred to this
Plan and shall become such participant's initial account balance in
this Plan as of January 1, 1994, ("Initial Account Balance").
Such a Member's Account in this Plan shall thereafter be
credited with all such Member's Deferral Contributions, Employer
Contributions and Employer Matching Contributions under this Plan plus
earnings, gains and losses on the entire Account balance$ and such
Melber's vest%d - ntepA@I'GBDBAD8B"Dce (as defined) under the
Transferor Plan as of the Plan Merger Date shall have a vested
percentage under Section 7.5 of this Plan of not less than 20 percent.
The assets in each such Member"s Account from the Transferor Plan
shall be maintained and merged together with all assets deriving from
the commencement of such Member"s participation in the Plan. With
respect to each such Member, the Member's entire account balance shall
be maintained, administered and distributed in accordance with the
provisions of this Plan,
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<PAGE> 9
except when a distribution is due to be made to such a Member under
Article VII and Article IX of this Plan, the Member shall be offered
all the distribution options under Article VI of the Transferor Plan
with respect to such Member"s Initial Account Balance, to the extent
each such distribution option is protected and required under Section
1.411(d)-4 of the Regulations. Under this Article XXII, this Plan
shall not be treated as a "transferee plan" within the meaning of
Section 1.401(a)-20 Q & A-5(a) of the Regulations and the Initial
Account Balance shall not be accounted for in the manner provided in
Section 1.401(a)-20 Q & A-5(b) of the Regulations.
8. The amendments made in Sections 1, 2, 3, 5 and 6 above shall
become effective on July 1, 1993. The amendment made in Section 7 above shall
become effective on January 1, 1994. The amendment made in Section 4 above
shall become effective for all distributions from the Plan on or after January
1, 1993.
9. The Plan, as amended hereby, shall continue to remain in
effect.
IN WITNESS WHEREOF, this Ninth Amendment to the Stewart Title Guaranty
Company Salary Deferral Plan and Trust has been entered into and is effective
on the date set forth above.
CORPORATION:
STEWART TITLE GUARANTY COMPANY
By: ________________________________
Malcolm Morris, President
TRUSTEE:
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<PAGE> 10
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: ________________________________
John J. Kelley, Vice President
and Trust Officer
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
______________, 1993.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, known to me to be the person whose name is subscribed to the
foregoing instrument as Vice President and Trust Officer of First Interstate
Bank of Texas, N.A., and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, in the capacity therein stated
and as the act and deed of said national banking association.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _______ day of
____________________, 1993.
____________________________________
NOTARY PUBLIC, STATE OF TEXAS
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<PAGE> 1
EXHIBIT 4.8
TENTH AMENDMENT OF THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS TENTH AMENDMENT of the STEWART TITLE GUARANTY COMPANY SALARY
DEFERRAL PLAN AND TRUST (hereinafter sometimes called the "Plan" or "Trust") is
made this the 8th day of August, 1994, to be effective as set forth below, by
and between STEWART TITLE GUARANTY COMPANY (hereinafter sometimes called
"Corporation") of Houston, Texas, and FIRST INTERSTATE BANK OF TEXAS, N.A.
(hereinafter sometimes called "Trustee"), a national banking association of
Houston, Texas.
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its employees and their
beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended on May 18, 1986, effective
January 1, 1987; subsequently amended on February 26, 1988 effective January 1,
1986; amended on April 5, 1989 effective January 1, 1989; amended on May 30,
1989 effective May 31, 1989; amended and restated on April 26, 1991 effective
January 1, 1989; and amended on September 18, 1991; and amended on April 24,
1992; and amended on May 27, 1992; and amended on May 20, 1993; and
WHEREAS, the Corporation, through the action of its Board of
Directors, wishes to amend the Plan and Trust effective the date set forth
below.
<PAGE> 2
NOW, THEREFORE, pursuant to the provisions of Article XVI, Section
16.1 of the Plan, the Plan is hereby amended as follows:
Article I, Section 1.3 of the Plan is amended by deleting the present
Section 1.3 in its entirety and substituting therefor the following new Section
1.3:
1.3 "Actual Contribution Percentage" means, with respect to a
specified group of Eligible Employees, the average of the ratios (expressed as
a percentage, rounded to the nearest one-hundredth percent) calculated
separately for each Eligible Employee in such group of:
(a) the sum of the following contributions paid under the
Plan on behalf of each such Eligible Employee for such Plan Year
(i) Employer Matching Contributions or any other
matching contributions that are not Qualified Nonelective
Contributions;
(ii) any after-tax employee contributions
(including any Excess Contributions that are recharacterized
pursuant to the provisions of Article III, Section 3.3(2) of
the Plan);
(iii) Qualified Nonelective Contributions
specifically designated for this purPose; and
(iv) Deferral Contributions specifically designated
for this purpose;
to
(b) the Eligible Employee's Considered Compensation for such
Plan Year.
For purposes of subsection (a)(i) above, "matching contribution shall mean (I)
any Employer contribution made to the Plan on behalf of an Eligible Employee on
account of an after-tax employee contribution made by such employee, (II) any
Employer contribution made to the Plan on behalf of an Eligible Employee on
account of
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<PAGE> 3
such Employee's Deferral Contribution, and (III) any forfeitures allocated on
the basis of after-tax employee contributions, Deferral Contributions or
matching contributions.
With respect to any Highly Compensated Eligible Employee who is
eligible to participate in two or more plans of the Corporation or an
Affiliated Company to which matching contributions, employee contributions or
both are made, all such contributions on behalf of such Highly Compensated
Eligible Employee must be aggregated for purposes of determining such
Employee's Actual Contribution Percentage.
For the purpose of determining the Actual Contribution Percentage of a
Highly Compensated Employee who is either a 5% owner or one of the ten (10)
Highly Compensated Employees paid the greatest amount of compensation (as
defined under Code Section 415) during the Plan Year, and is thereby subject to
the family aggregation rules of Code Section 414(q)(6), the Actual Contribution
Percentage for the family group (which is treated as one Highly Compensated
Employee) is the Actual Contribution Percentage determined by combining the
contributions and compensation of all eligible Family Members. Except to the
extent taken into account in the preceding sentence, the contributions and
compensation of all Family Members are disregarded in determining the Actual
Contribution Percentages for the groups of Highly Compensated Employees and
Non-Highly Compensated Employees.
Article I, Section 1.13 of the Plan is amended by deleting the present
Section 1.13 in its entirety and substituting therefor the following new
Section 1.13:
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<PAGE> 4
1.13 "Considered Compensation" means, as to each Eligible Employee, all
compensation otherwise paid or accrued to him after he has become eligible for
the Plan by the Signatory Company during the Plan Year, including regular
salary, hourly base pay, overtime pay, contractual bonuses, bonuses derived by
formula, commissions, discretionary bonuses and Deferral Contributions, but
excluding any Employer Contributions or any Employer Matching Contributions
under this Plan and other contingent compensation. For Plan Years beginning on
or after January 1, 1990 (or a later date permitted by Treasury regulations)
for purposes of calculating the Actual Deferral Percentage and Actual
Contribution Percentage, Considered Compensation shall be taken into account
for the entire Plan Year of each Eligible Employee without regard to whether
that Employee was eligible to participate in the Plan for the entire Plan Year.
For purposes of Article V of the Plan, Considered Compensation shall
not include the following:
(a) Employer contributions to a plan of deferred compensation
which are not included in the Employee's gross income for the taxable
year in which contributed or employer contributions under a simplified
employee pension plan to the extent such contributions are deductible
by the Eligible Employee, or any distributions from a plan of deferred
compensation;
(b) Amounts realized from the exercise of a nonqualified stock
option, or when restricted stock (or property) held by the Employee
either becomes freely transferable or is no longer subject to a
substantial risk of forfeiture;
(c) Amounts realized from the sale, exchange or other
disposition of stock acquired under a qualified stock option; and
(d) Other amounts which received special tax benefits, or
contributions made by the Employer (whether or not under a salary
reduction agreement) towards the purchase of an annuity described in
Section 403(b) of the
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<PAGE> 5
Code (whether or not the amounts are actually excludable from the
gross income of the Employee).
Considered Compensation shall be limited to two hundred thousand dollars
($200,000) or such greater amount as may be determined pursuant to Section
416(d) or Section 401(a)(17) of the Code. In determining an Employee's
Considered Compensation the rules of Section 414(q)(6) of the Code shall apply,
except that the term "family" as used therein shall include only the Employee's
spouse and any of the Employee's lineal descendants who have not attained age
nineteen (19) on or before the last day of the Plan Year. For this purpose in
applying the $200,000 limit above, a Highly Compensated Employee and members of
his family will be treated as a single employee with one compensation and the
$200,000 limit will be allocated among the members of the family unit in
proportion to each such family member's compensation (except for the purpose of
determining compensation below the Plan's integration level, if applicable).
For other purposes in the Plan, the term "family member" unless otherwise
indicated means with respect to the affected Member, such Member's spouse, such
Member's lineal descendants and ascendants and the spouses of such lineal
descendants and ascendants, as described in Section 414(q)(6)(B) of the Code.
In addition to other applicable limitations set forth in the Plan, and
notwithstanding any other provision of the Plan to the contrary, for Plan Years
beginning on or after January 1, 1994, the annual compensation of each employee
taken into account under the Plan shall not exceed the OBRA '93 annual
compensation limit. The OBRA '93 annual compensation limit is $150,000, as
adjusted by the
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<PAGE> 6
Commissioner for increases in the cost of living in accordance with Section
401(a)(17)(B) of the Internal Revenue Code. The cost-of-living adjustment in
effect for a calendar year applies to any period, not exceeding 12 months, over
which compensation is determined (determination period) beginning in such
calendar year. If a determination period consists of fewer than 12 months, the
OBRA '93 annual compensation limit will be multiplied by a fraction, the
numerator of which is the number of months in the determination period, and the
denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitations under Section 401(a)(17) of the Code shall mean
the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current Plan
Year, the compensation for that prior determination period is subject to the
OBRA '93 annual compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning before the first
day of the first Plan Year beginning on or after January 1, 1994, the OBRA '93
annual compensation limit is $150,000.
Article II, Section 2.3 of the Plan is amended by deleting the present
Section 2.3 in its entirety and substituting therefor the following new Section
2.3:
2.3 Participation and Service Upon Reemployment. Partici-pation in
the Plan shall cease upon termination of employment with the Signatory Company.
Termination of employment may result from
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<PAGE> 7
retirement, death, disability, voluntary or involuntary termination of
employment, unauthorized absence, or by failure to return to active employment
with the Signatory Company by the date on which an Authorized Leave of Absence
expires.
Upon the reemployment of any person after the Effective Date who had
previously been employed by the Signatory Company on or after the Effective
Date, the following rules shall apply in determining his participation in the
Plan:
(a) If the reemployed Employee was not a Member of the Plan
during his prior period of employment, he must meet the service
requirements of Section 2.1 for participation in the Plan as if he
were a new Employee; provided, however, that if such Employee failed
to incur a Break-in-Service prior to his reemployment commencement
date, the eligibility computation period for such reemployed Employee
shall be the initial period beginning with the Employee's employment
commencement date and not the date of his reemployment;
(b) If the reemployed Employee had previously satisfied the
requirements of Section 2.1 and had been a Member of the Plan prior to
his termination of employment, he shall become an Eligible Employee on
his reemployment commencement date;
(c) If the reemployed Employee had been a Member of the Plan
prior to his termination but suffered a one-year Break-in-Service
prior to his resumption of employment, he shall not be eligible to
reparticipate in the Plan until he has completed a Year of Service
after his return, and his reparticipation shall be effective as of his
reemployment commencement date.
For purposes of this section, an Employee's employment commencement date shall
be the date he first performs an Hour of Service for the Signatory Company and
his reemployment commencement date shall be the date he first performs an Hour
of Service upon reemployment with the Signatory Company.
In the case of a Member who does not have any nonforfeitable right
under the Plan to the portion of his Account attributable to
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<PAGE> 8
employer contributions, and who has multiple consecutive one-year
Breaks-in-Service, the number of Years of Service earned before the
Break-in-Service will be totalled. If the number of consecutive one-year
Breaks-in-Service equals or exceeds the greater of: (i) five (5), or (ii) the
aggregate number of pre-Break Years of Service, all pre-Break Years of Service
may be excluded in determining such Member's eligibility or reeligibility for
the Plan.
Article III, Section 3.3 of the Plan is amended by deleting the
present Section 3.3 in its entirety and substituting therefor the following new
Section 3.3:
3.3 Actual Deferral Percentage Test. If for the Plan Year the Actual
Deferral Percentage for the group of Highly Compensated Eligible Employees
(based upon Eligible Employee participation elections) would be more than the
greater of:
(a) the Actual Deferral Percentage of all other Eligible
Employees multiplied by 1.25; or
(b) the lesser of (i) two percentage (2%) points plus the
Actual Deferral Percentage of all other Eligible Employees, or (ii)
the Actual Deferral Percentage of all other Eligible Employees
multiplied by two (2),
such Excess Contribution shall be corrected in the manner set forth below. The
calculation described in the preceding sentence is referred to herein as the
"Actual Deferral Percentage Test." The Administrative Committee may, in its
discretion, select either of the following methods of correction or any
combination thereof in any Plan Year:
(1) The Excess Contributions (and income allocable
thereto) may, if such Excess Contributions are designated by the
Administrative Committee as distributions of Excess Contributions (and
income), be distributed to the appropriate Highly Compensated Eligible
Employees after
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<PAGE> 9
the close of such Plan Year and within 12 months of the close of such
Plan Year. The income allocable to Excess Contributions includes both
income for the Plan Year for which the Excess Contributions were made
and income for the period between the end of the Plan Year and the
date of distribution, and will be calculated pursuant to Treas. Reg.
Section 1.401(k)-1(f)(4). If feasible, the Administrative Committee
shall in its sole discretion determine and distribute the amount of
Excess Contributions within two and one-half (2 1/2) months after the
end of the Plan Year. The Administrative Committee may distribute
Excess Contributions without regard to any notice or consent otherwise
required under the Plan or Section 411(a)(11) and Section 417 of the
Code limiting distributions. The amount of Excess Contributions for a
Highly Compensated Eligible Employee for a Plan Year is to be
determined by the following leveling method, under which the actual
deferral ratio of the Highly Compensated Eligible Employee with the
highest actual deferral ratio is reduced to the extent required to
satisfy the Actual Deferral Percentage Test set forth above or cause
such Highly Compensated Eligible Employee's actual deferral ratio to
equal the ratio of the Highly Compensated Eligible Employee with the
next highest actual deferral ratio. This process must be repeated
until the Actual Deferral Percentage Test is satisfied for such Plan
Year. Except to the extent otherwise provided in regulations, both
refunded Excess Deferrals and retained Excess Deferrals under Section
3.7 of this Article are taken into account in determining a Member's
Actual Deferral percentage for purposes of the above calculation.
(2) The Excess Contributions may be recharacterized as
after-tax employee contributions in accordance with the provisions of
Treas. Reg. Section 1.401(k)-1(f)(3). Recharacterized Excess
Contributions remain subject to the nonforfeitability requirements and
distribution limitations that apply to Deferral Contributions. Excess
Contributions will not be recharacterized with respect to a Highly
Compensated Eligible Employee to the extent that the recharacterized
amounts, in combination with employee contributions actually made by
such Highly Compensated Eligible Employee, exceed the maximum amount
of employee contributions (determined prior to the application of Code
Section 401(m)(2)(A)) that such Highly Compensated Eligible Employee
is permitted to make under the Plan in the absence of
recharacterization;
provided recharacterization as provided in the foregoing paragraph (2) will not
be applied or utilized unless the Plan is first amended on a timely basis (so
to be in effect on the first day of the Plan Year for which recharacterization
is to be applied) to
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<PAGE> 10
provide for after tax employee contributions and satisfy the other conditions
set forth in Treas. Reg. Section 1.401(k)-1(f)(3)(iii).
In no event shall the sum of the Deferral Contributions (including
recharacterized Excess Contributions), and the Signatory Company's Employer
Matching Contribution, and the Signatory Company's Employer Contribution exceed
an amount equal to fifteen percent (15%) of the total Considered Compensation
otherwise paid or accrued during such Plan Year of such Signatory Company plus
the maximum amount deductible under the "carry-over" provisions of the Code
relating to Employer Matching Contributions and Employer Contributions in
previous years of less than the maximum amount permissible. In addition, in no
event shall the aggregate of such Deferral Contribution, Employer Matching
Contribution, Employer Contribution and the Signatory Company's contributions
to all other qualified pension, profit sharing or stock bonus plans for such
Plan Year exceed the amount deductible from the Signatory Company's income for
such Plan Year under Section 404(a)(7) of the Code. In the event the aggregate
of the Signatory Company's contributions under all plans would exceed such
maximum deductible amount, the Employer Matching Contribution and Employer
Contribution to the Plans shall be reduced by the amount necessary to reduce
the Signatory Company's aggregate contribution under all such plans to the
maximum amount deductible under said section of the Code.
Deferral Contributions will be taken into account under the Actual
Deferral Percentage Test for a Plan Year only if such Deferral Contributions
are allocated to the Eligible Employee as of a date within such Plan Year. For
this purpose, a Deferral Contribution is considered allocated as of a date
within a Plan
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<PAGE> 11
Year if the allocation is not contingent on participation or performance of
services after such date and the Deferral Contribution is actually paid to the
Trust no later than twelve (12) months after the Plan Year to which the
contribution relates.
In the case of a Highly Compensated Eligible Employee whose Actual
Deferral Percentage is determined under the family aggregation rules of Code
Section 414(q)(6), the determination of the amount of Excess Contributions
shall be made as follows:
(3) If the Highly Compensated Eligible Employee's Actual
Deferral Percentage is determined under Article I, Section 1.4(1)(ii),
then the Actual Deferral Percentage is reduced in accordance with the
leveling method described in Treas. Reg. Section 1.401(k)-1(f)(2) and
the Excess Contributions for the family unit are allocated among the
Family Members in proportion to the elective contributions of each
Family Member that have been combined to determine the Actual Deferral
Percentage.
(4) If the Highly Compensated Eligible Employee's Actual
Deferral Percentage is determined under Article I, Section 1.4(1)(i),
then the Actual Deferral Percentage is reduced in accordance with the
leveling method described in Treas. Reg. Section 1.401(k)-1(f)(2) but
not below the Actual Deferral Percentage of Family Members who are
Non-Highly Compensated Eligible Employees without regard to family
aggregation. Excess Contributions are determined by taking into
account the contributions of the eligible Family Members who are
Highly Compensated Eligible Employees without regard to family
aggregation, and are allocated among such Family Members in proportion
to each such Family Member's elective contributions. If further
reduction of the Actual Deferral Percentage is required, Excess
Contributions resulting from this reduction are determined by taking
into account the contributions of all eligible Family Members and are
allocated among such Family Members in proportion to the elective
contributions of each Family Member.
Paragraphs (3) and (4) above shall be administered in accordance with Treas.
Reg. Section 1.401(k)-1(f)(5)(ii). Excess Contributions will be corrected in
accordance with this Section 3.3 in a timely fashion to avoid disqualification
of the Plan or other sanction
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<PAGE> 12
imposed under the Code (including the imposition of tax under Code Section
4979).
Article III, Section 3.8 of the Plan is amended by deleting the
present Section 3.8 in its entirety and substituting therefor the following new
Section 3.8:
3.8 Actual Contribution Percentage Test. If for the Plan Year the
Actual Contribution Percentage for the group of Highly Compensated Eligible
Employees would be more than the greater of:
(a) the Actual Contribution Percentage for all other
Eligible Employees multiplied by 1.25; or
(b) the lesser of (i) the Actual Contribution Percentage
for all other Eligible Employees plus two percentage (2%) points, or
(ii) the Actual Contribution Percentage for all other Eligible
Employees multiplied by two (2),
such Excess Aggregate Contributions, shall be corrected in the manner set forth
below. The calculation described in the preceding sentence is referred to
herein as the "Actual Contribution Percentage Test."
For this purpose, an eligible employee is any employee who is directly
or indirectly eligible to receive an allocation of matching contributions or to
make employee contributions and includes: an employee who would be a plan
participant but for the failure to make required contributions; an employee
whose right to make employee contributions or to receive matching contributions
has been suspended because of an election (other than certain one-time
elections) not to participate; and an employee who cannot make an employee
contribution or receive a matching contribution because section 415(c)(1) or
section 415(e) prevents the employee from receiving additional annual
additions. In the case of an
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<PAGE> 13
eligible employee who makes no employee contributions and who receives no
matching contributions, the contribution ratio that is to be included in
determining the ACP is zero. For a plan year, contributions will be taken into
account as follows: An employee contribution is to be taken into account if it
is paid to the trust during the plan year or paid to an agent of the plan and
transmitted to the trust within a reasonable period after the end of the plan
year. An excess contribution to a cash or deferred arrangement that is
recharacterized (but only if such recharacterization is properly provided for
under Section 3.3(2) above) is to be taken into account in the plan year in
which the contribution would have been received in cash by the employee had the
employee not elected to defer the amounts. A matching contribution taken into
account for a plan year only if it is (1) made on account of the employee's
elective or employee contributions for the plan year, (2) allocated to the
employee's account as of a date within that year, and (3) paid to the trust by
the end of the 12th month following the close of that year. Qualified matching
contributions which are used to meet the requirements of section 401(k)(3)(A)
are not to be taken into account for purposes of the ACP test of section
401(m). For purposes of determining whether a plan satisfies the actual
contribution percentage test of section 401(m), all employee and matching
contributions that are made under two or more plans that are aggregated for
purposes of section 401(a)(4) and 410(b) (other than section 410(b)(2)(A)(ii))
are to be treated as made under a single plan and that if two or more plans are
permissively aggregated for purposes of section 401(m),
-13-
<PAGE> 14
the aggregated plans must also satisfy section 401(a)(4) and 410(b) as though
they were a single plan.
The Excess Aggregate Contributions(and income allocable thereto) shall
be distributed to (or, if forfeitable, in the discretion of the Administrative
Committee uniformly applied, forfeited by) Highly Compensated Eligible
Employees after the close of the Plan Year in which such Excess Aggregate
Contributions arose and within 12 months after the close of the following Plan
Year. If feasible, the Administrative Committee shall in its sole discretion
determine and distribute the amount of Excess Aggregate Contributions within
two and one-half (2 1/2) months after the end of the Plan Year. In the event
of the complete termination of the Plan during such Plan Year, the
distributions described in the preceding sentence shall be made after
termination of the Plan and within the 12 months following such termination.
The amount of Excess Aggregate Contributions for a Highly Compensated
Eligible Employee for a Plan Year is to be determined by the following
contribution leveling method, under which the actual contribution ratio of the
Highly Compensated Eligible Employee with the highest actual contribution ratio
is reduced to the extent required to satisfy the Actual Contribution Percentage
Test set forth above or to cause such Highly Compensated Eligible Employee's
actual contribution ratio to equal the ratio of the Highly Compensated Eligible
Employee with the next highest actual contribution ratio. This process must be
repeated until the Actual Contribution Percentage Test is satisfied for such
Plan Year.
In determining the amount of Excess Aggregate Contributions under the
leveling method set forth above, actual contribution
-14-
<PAGE> 15
ratios must be rounded to the nearest one-hundredth percent of the Eligible
Employee's Considered Compensation. In no case shall the amount of Excess
Aggregate Contributions with respect to any Highly Compensated Eligible
Employee exceed the amount of the after-tax employee contributions and Employer
Matching Contributions on behalf of such Highly Compensated Eligible Employee
for such Plan Year. Excess Aggregate Contributions for a Plan Year shall be
distributed or forfeited in accordance with the provisions set forth above and
shall not remain unallocated or allocated to a suspense account for allocation
to one or more employees in any future year. The determination of the amount
of Excess Aggregate Contributions with respect to a Plan Year shall be made
after the determination and correction of Excess Deferrals under Article III,
Section 3.7, and the determination and correction of Excess Contributions under
Article III, Section 3.3, respectively, have been made.
The distribution (or forfeiture, if applicable) of excess aggregate
contributions will include the income allocable thereto. The income allocable
to the excess aggregate contributions includes income for the plan year for
which the excess aggregate contributions were made and may include income for
the period between the end of the plan year and the date of distribution (or
forfeiture). The manner in which income allocable to excess aggregate
contributions is to be calculated shall be made in accordance with Treas. Reg.
Section 1.401(m)-1(e)(3)(ii).
In the case of a Highly Compensated Eligible Employee whose Actual
Contribution Percentage is determined under the family
-15-
<PAGE> 16
aggregation rules of Code Section 414(q), the determination of the amount of
Excess Aggregate Contributions shall be made as follows:
(1) If the Highly Compensated Eligible Employee's Actual
Contribution Percentage is determined by combining the contributions
and compensation of all Family Members, then the Actual Contribution
Percentage is reduced in accordance with the leveling method described
in Treas. Reg. Section 1.401(m)-1(e)(2) and the Excess Aggregate
Contributions for the family unit are allocated among the Family
Members in proportion to the contributions of each Family Member that
have been combined to determine the Actual Contribution Percentage.
(2) If the Highly Compensated Eligible Employee's Actual
Contribution Percentage is determined by combining the contributions
of only those Family Members who are Highly Compensated Eligible
Employees without regard to family aggregation, then the Actual
Contribution Percentage is reduced in accordance with the leveling
method described in Treas. Reg. Section 1.401(m)-1(e)(2) but not below
the Actual Contribution Percentage of Family Members who are
Non-Highly Compensated Eligible Employees without regard to family
aggregation. Excess Aggregate Contributions are determined by taking
into account the contributions of the eligible Family Members who are
Highly Compensated Eligible Employees without regard to family
aggregation and are allocated among such Family Members in proportion
to each such Family Member's employee contributions and Employer
Matching Contributions. If further reduction of the Actual
Contribution Percentage is required, Excess Aggregate Contributions
resulting from this reduction are determined by taking into account
the contributions of all eligible Family Members and are allocated
among such Family Members in proportion to the employee contributions
and Employer Matching Contributions of each Family Member.
Paragraphs (1) and (2) above shall be administered in accordance with Treas.
Reg. Section 1.401(m)-1(e)(2)(iii).
Restriction on Multiple Use of Alternative Limit. In addition to the
limits prescribed by this Section 3.3 and Section 3.8 of this Article III, in
the event the limits in those sections have been both satisfied under the 1.25
or (a) portion limit or otherwise in a manner that would violate Section
401(m)(9)(A) of the Code, the provisions of Section 1.401(m)-2 of the Treasury
-16-
<PAGE> 17
Regulations shall be applied and complied with in order to satisfy this
requirement. This may result in corrective distributions to certain Highly
Compensated Eligible Employees. Any corrections or other adjustments made to
satisfy this requirement shall be determined by the Committee in accordance
with the Treasury Regulations. The corrective distribution shall be first made
by reducing the Actual Deferral Percentage and with respect to all Highly
Compensated Eligible Employees.
Article IV, Section 4.3 of the Plan is amended by deleting the present
Section 4.3 in its entirety and substituting therefor the following new Section
4.3:
4.3 Allocation of Deferral Contribution to Members' Accounts. At the
end of each payroll period under procedures adopted by the Administrative
Committee, the Signatory Company shall transfer the Deferral Contributions to
the Trustee and shall certify to the Administrative Committee the names of the
Eligible Employees, the names of the Members, and the Deferral Contribution
amount for each Member. The Administrative Committee shall allocate the
Deferral Contribution made on behalf of a Member directly to such Member's
Account and such Deferral Contribution shall be held in a separate account
under such Member's Account. This separate account shall not contain any other
contributions.
Article V is amended by inserting immediately after the present
Section 5.3(b), the following new Section 5.3(c):
(c) Notwithstanding the provisions of paragraphs (a) and
(b) above, to the extent that Annual Additions in excess of the
permissible limit of Code Section 415 result from a reasonable error
in determining total elective deferrals as defined in Treas. Reg.
Section 1.415-6(b)(6), then such excess Annual Additions may be
corrected by distributing elective deferrals to the
-17-
<PAGE> 18
Member to the extent necessary to eliminate the amount in excess of
the Code Section 415 limitation. The amount distributed is includible
in the Member's income for the taxable year in which it is
distributed, and is characterized for tax and reporting purposes as a
corrective distribution rather than a distribution of benefits. This
paragraph (c) shall be administered in accordance with the provisions
of Treas. Reg. Section 1.415-6(b)(6)(iv) and Revenue Procedure 92-93,
1992-2 C.B. 505.
The Plan, as amended hereby, shall continue to remain in effect.
IN WITNESS WHEREOF, this Tenth Amendment to the Stewart Title Guaranty
Company Salary Deferral Plan and Trust has been entered into and is effective
on the date set forth above.
CORPORATION:
STEWART TITLE GUARANTY COMPANY
By: ______________________________
Malcolm Morris, President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By: _________________________________
John J. Kelley, Vice President
and Trust Officer
-18-
<PAGE> 19
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, personally appeared Malcolm
Morris, known to me to be the person whose name is subscribed to the foregoing
instrument as President of Stewart Title Guaranty Company, and acknowledged to
me that he executed the same for the purposes and consideration therein
expressed, in the capacity therein stated and as the act and deed of said
Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of August,
1994.
_____________________________________
NOTARY PUBLIC, STATE OF TEXAS
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, personally appeared John J.
Kelley, known to me to be the person whose name is subscribed to the foregoing
instrument as Vice President and Trust Officer of First Interstate Bank of
Texas, N.A., and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated and as the
act and deed of said national banking association.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of August,
1994.
_____________________________________
NOTARY PUBLIC, STATE OF TEXAS
-19-
<PAGE> 1
EXHIBIT 4.9
ELEVENTH AMENDMENT TO THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS ELEVENTH AMENDMENT of the Stewart Title Guaranty Company Salary
Deferral Plan and Trust (hereinafter sometimes called the "Plan" and/or
"Trust") is made this ________ day of ______________, 1994, to be effective as
stated herein, by and between Stewart Title Guaranty Company (hereinafter
sometimes called "Corporation"), of Houston, Texas and First Interstate Bank of
Texas, N.A. (hereinafter sometimes called "Trustee"), a national banking
association of Houston, Texas:
W I T N E S S E T H:
WHEREAS, on December 31, 1986, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its Employees and their
Beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended May 18, 1986, effective
January 1, 1987; and amended February 26, 1988, effective January 1, 1986; and
amended April 5, 1989, effective January 1, 1989; and amended May 30, 1989,
effective May 31, 1989; and amended and restated May 11, 1992, effective
January 1, 1989; and amended September 18, 1991; and amended April 24, 1992;
and amended May 27, 1992, and amended May 20, 1993; and amended August 8, 1994;
and
WHEREAS, the Corporation through the action of its Board of Directors,
wishes to amend the Plan effective the date set forth above so it may continue
to qualify under Sections 401(a) and
<PAGE> 2
501(a) of the Internal Revenue Code of 1986, as amended, and the Employment
Retirement Income Security Act of 1974, as amended.
NOW THEREFORE, pursuant to the provisions of Article XVI, Section
16.1, the Plan is hereby amended as follows:
Article IX, Section 9.8 of the Plan is amended effective January 1,
1993 by inserting at the end of present Section 9.8 the following paragraph:
If a distribution is one to which Sections 401(a)(11) and 417 of the
Code do not apply, such distribution may commence less than thirty (30) days
after the notice required under Treasury Regulation Section 1.411(a)-11(c) is
given, provided that:
(1) the Administrative Committee clearly informs
the Member that the Member has a right to a period of at least
thirty (30) days after receiving the notice to consider the
decision of whether or not to elect a distribution (and, if
applicable, a particular distribution option), and
(2) the Member, after receiving the notice,
affirmatively elects a distribution.
IN WITNESS WHEREOF, the Corporation and the Trustee have caused this
Eleventh Amendment to be executed on this ____ day of ______________, 1994, to
be effective as of the dates stated above.
STEWART TITLE GUARANTY COMPANY
BY: _______________________________
Malcolm Morris, President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
____________________________________
John J. Kelley, Vice President and
Trust Officer
<PAGE> 3
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed and in the capacity therein stated, as the act and deed of
said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the _____ day of
________________, 1994.
_______________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF T E X A S
My Commission Expires:________
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, Vice President and Trust Officer of First Interstate Bank of
Texas, N.A., known to me to be the person whose name is subscribed to the
foregoing instrument as Trustee, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the _____ day of
_______________, 1994.
_______________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission Expires:_________
-3-
<PAGE> 1
EXHIBIT 4.10
TWELFTH AMENDMENT TO THE
STEWART TITLE GUARANTY COMPANY
SALARY DEFERRAL PLAN AND TRUST
THIS TWELFTH AMENDMENT of the Stewart Title Guaranty Company Salary
Deferral Plan and Trust (the "Plan" and/or "Trust") is made this ________ day
of ______________, 1995, by and between Stewart Title Guaranty Company (the
"Corporation"), of Houston, Texas and First Interstate Bank of Texas, N.A. (the
"Trustee"), a national banking association of Houston, Texas:
W I T N E S S E T H:
WHEREAS, on December 31, 1985, the Corporation previously adopted the
Plan and Trust for the sole and exclusive benefit of its Employees and their
Beneficiaries, effective January 1, 1986; and
WHEREAS, the Plan was previously amended May 18, 1986, effective
January 1, 1987; and amended February 26, 1988, effective January 1, 1986; and
amended April 5, 1989, effective January 1, 1989; and amended May 30, 1989,
effective May 31, 1989; and amended and restated May 11, 1992, effective
January 1, 1989; and amended September 18, 1991; and amended April 24, 1992;
and amended May 27, 1992, and amended May 20, 1993; and amended August 8, 1994;
and amended December 12, 1994, effective January 1, 1993; and
WHEREAS, the Corporation wishes to amend the Plan and Trust effective
beginning on or after October 1, 1995;
<PAGE> 2
NOW THEREFORE, pursuant to the provisions of Article XVI, Section
16.1, the Plan and Trust is hereby amended as follows:
1. Article XIV, Section 14.2 shall be amended by
deleting paragraph (d) thereunder in its entirety, and substituting
therefor the following:
(d) (In its sole and complete discretion): to
vote, either in person or by proxy, with or without power of
substitution, any stocks (including Employer Stock), bonds or
other securities held by it; to respond to any tender or
exchange offer and any matters related thereto with respect to
any stock including Employer Stock; to exercise any options
appurtenant to any stocks, bonds or other securities for the
conversion thereof into other stocks, bonds or securities; to
exercise any rights to subscribe for additional stocks, bonds
or other securities and to make any and all necessary payments
thereof; and
2. Article XIV, Section 14.2 shall be amended by adding
to the end thereof a new paragraph (o) to read as follows:
; and
(o) To invest in whole or in part, the assets of the
Trust in Employer Stock or other Qualifying Employer
Securities which satisfy the definition in Section 407(d)(5)
of the Act, including the common stock, $1.00 par value, of
Stewart Information Services Corporation, an Affiliated
Company hereunder (the "SISCO Stock"); provided that the
purchase or other acquisition of the SISCO Stock be made by
the Trustee on the open market, in private transactions or by
matching corresponding orders within the Trust, and not be
made by issuance of such stock by SISCO or the sale of such
stock as treasury stock by SISCO without the written legal
opinion of the
-2-
<PAGE> 3
Corporation's counsel in or regarding compliance with
applicable securities laws; provided further that the
acquisition of SISCO Stock by the Trustee for the Trust is
subject to the limitations provided in Section 14.4 below;
(This Plan is intended to qualify as an "eligible individual
account plan" as defined in Section 407(d)(3) of the Act.)
3. Article XIV, shall be amended by deleting in its
entirety Section 14.4 (as modified by the Ninth Amendment to the Plan)
thereunder and substituting therefor the following:
14.4 Investment of Contributions. Each Member
shall have the right to elect, in writing on a form provided
by the Administrative Committee, to have the Deferral
Contributions, Employer Matching Con-tributions, Employer
Contributions (if any) and any rollover contributions accepted
into the Plan pursuant to Article XI, Section 11.1, which are
allocated to his Account invested in such classes of
investments as are selected from time to time by the
Administrative Com-mittee and offered for investment by the
Members on a uniform, nondiscriminatory basis. It is
contemplated that the Administrative Committee will select and
administer a variety of investment funds to make available to
the Members in a manner generally intended (except as provided
below) to satisfy the participant control provisions of
Section 404(c) of the Act and the regulations thereunder. At
the present time it is contemplated that the Administrative
Committee will make the following types of investment funds
available:
Fixed Income Fund. Invested predominantly in
fixed income invest- ments, including but not limited
to bonds, preferred stocks, debentures, insurance
contracts, and notes secured by real estate
mortgages.
-3-
<PAGE> 4
Equity Fund. Invested predominantly in
equity investments, including but not limited to
common stocks, preferred stocks and convertible debt
securities.
Money Market Fund. Invested pre-dominantly
in time deposits and money market funds, including
savings accounts and certificates of a financial
organ-ization (including such accounts with the
Trustee or its affiliates which bear a reasonable
rate of interest), United States Treasury Bills,
bankers accep-tances, commercial paper and notes
(including variable amount notes maintained by the
Trustee).
Balanced Fund. Invested as a general
balanced portfolio in all forms of investments,
including (without limitation) equities or fixed
income securities, time deposits or money market
funds, in any combination and in any amount, all in
the sole discretion of the Trustee.
International Securities Fund. Invested in
the equity and fixed income securities of foreign
companies and the securities of foreign governments.
Company Stock Fund. Invested in SISCO Stock.
The Administrative Committee shall have the authority
to change from time to time the investment funds and types of
investment funds made available hereunder and to oversee and
monitor the management of these funds by the Trustee and any
Investment Managers, except that with respect to the Company
Stock Fund, the Administrative Committee shall be subject to
the direction of the Corporation. With respect to the Company
Stock Fund, the Plan and Trust shall be administered and
managed in a manner to comply with the applicable
regu-lations, releases, rulings and exemptions of the
Securities and Exchange Commission, including to the extent
applicable those under Rule 144 and Rule 16(b)(3).
-4-
<PAGE> 5
The Administrative Committee shall instruct the
Trustee to invest the Deferral Contributions, Employer
Matching Contributions, Employer Contributions (if any) and
any rollover contributions accepted into the Plan pursuant to
Article XI, Section 11.1, in the manner and proportions
instructed by the Member. The Member may elect any
combination of investments in his existing Account and the
future contributions to be made to his Account in the funds
made available under the Plan in increments of 10 percent,
except that the maximum amount a Member may have invested in
the Company Stock Fund under this Plan, is 20 percent of his
total Account balance. Not- withstanding the limitation in
the preceding sentence, the 20 percent limitation on a
Member's investment in the Company Stock Fund shall not cause
a divestment or liquidation of any amount of the Member's
Account in the Company Stock Fund even if such amount exceeds
20 percent of his total Account balance by virtue of the
greater appreciation (or lesser depreciation) in value of the
Company Stock Fund as compared to the total appreciation (or
depreciation) in value of the other funds in such Member's
Account. Each Member shall be allowed to designate without
limit that up to the maximum 20 percent of such Member's
cur-rent and future Deferral Contributions and Employer
Matching Contributions made to the Trust at any time or after
any payroll period, may be invested in the Company Stock Fund,
without regard to whether or not the pro-portion of his
Account balance held in the Company Stock Fund as compared to
the total Account balance exceeds the 20 percent limit.
It is contemplated that at the present time, that the
administration of the Company Stock Fund shall not be
conducted by the Administrative Committee in a manner intended
to comply with the participant control pro-visions of Section
404(c) of the Act and the regulations thereunder. The
Administrative Committee shall have sole authority to
deter-mine whether the administration of any or all of the
investment funds shall be conducted in a manner intended to
comply with the partic-
-5-
<PAGE> 6
ipant control provisions of Section 404(c) of the Act and the
regulations thereunder.
It is also recognized that since the SISCO Stock is
not actively traded on the open market each and every business
day, that the execution of any trade by the Trustee in the
SISCO Stock pursuant to a direction of the Member may become
subject to a delay or lag of several or more days until a
corresponding order is received from another investor in order
to complete the trade. The Trustee shall have the authority
in its discretion to match within the Trust any corresponding
buy and sell orders for the SISCO Stock currently made by
Members, before filling such orders outside the Trust in the
open market or otherwise. For purposes of all trades, orders
and buy and sell directions of the SISCO Stock, the Trustee
shall have a reasonably sufficient period of time, as the
Trustee may determine in its discretion, to complete such
trade or other settlement, whether by matching within the
Trust or by going outside the Trust such as on the open
market.
As of any point in time, a Member may elect to change
the investment of his present account and/or the investment of
future contributions to be made on his behalf. In the event
that the Member wants to change his investment election, he
must notify the Administrative Committee of such change in
writing. Investment election changes must be in increments of
10 percent and shall be effective on the Entry Date coincident
with or next following 15 days after the election change is
received by the Administrative Committee.
The Administrative Committee shall have complete
authority to prescribe the forms and procedures for the making
of elections and directions by the Members under this Section
14.4 and to prescribe any new forms and procedures including
any of the percentage limits on any of the investment funds
made available under this Plan. Therefore, the Administrative
Committee shall have authority to change the procedures and
limits specified above in this Section 14.4.
-6-
<PAGE> 7
4. The Plan, as amended hereby, shall continue to remain
in effect.
IN WITNESS WHEREOF, the Corporation and the Trustee have caused this
Twelfth Amendment to be executed.
STEWART TITLE GUARANTY COMPANY
_________________, 1995 BY: _______________________________
Malcolm Morris, President
TRUSTEE:
FIRST INTERSTATE BANK OF TEXAS, N.A.
_________________, 1995 BY:_________________________________
John J. Kelley, Vice President and
Trust Officer
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
Malcolm Morris, known to me to be the person whose name is subscribed to the
foregoing instrument as President of Stewart Title Guaranty Company, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed and in the capacity therein stated, as the act and deed of
said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the _____ day of
________________, 1995.
_______________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF T E X A S
-7-
<PAGE> 8
My Commission Expires:________
THE STATE OF TEXAS }
}
COUNTY OF HARRIS }
BEFORE ME, the undersigned authority, on this day personally appeared
John J. Kelley, Vice President and Trust Officer of First Interstate Bank of
Texas, N.A., known to me to be the person whose name is subscribed to the
foregoing instrument as Trustee, and acknowledged to me that he executed the
same for the purposes and consideration therein expressed and in the capacity
therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this the _____ day of
_______________, 1995.
_______________________________
NOTARY PUBLIC IN AND FOR
THE STATE OF TEXAS
My Commission Expires:_________
-8-
<PAGE> 1
EXHIBIT 5.1
[CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN LETTERHEAD]
September 11, 1995
Stewart Information Services Corporation
1980 Post Oak Boulevard
Houston, Texas 77056
Gentlemen:
We have acted as your counsel in the preparation and filing of a
Registration Statement on Form S-8 under the Securities Act of 1933, as
amended, relating to the registration of (i) participa-tions in the Stewart
Title Guaranty Company Salary Deferral Plan and Trust (the "Plan") and (ii)
shares of Common Stock of Stewart Information Securities Corporation (the
"Company"), both of which may be offered under and pursuant to the Plan.
You have requested that we furnish you this legal opinion concerning
certain matters about the Company, the Plan and the securities being
registered. In connection with this opinion, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such
documents, corporate records, and other instruments and have made such other
and further investigations as we have deemed necessary to enable us to express
the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company was duly and validly organized and is validly
existing in good standing as a corporation under the laws of the State of
Delaware.
2. The Plan constitutes a valid and legally binding agreement of
Stewart Title Guaranty Company conferring valid, legal interests in the Plan in
eligible employees participating therein to the extent and upon the terms and
conditions described therein, and when issued pursuant to the terms and
conditions of the Plan, such interests will be legally issued, fully paid and
nonassessable.
<PAGE> 2
Stewart Information Services Corporation
September 11, 1995
Page 2
The foregoing opinion concerning the legality, validity, binding
nature and enforceability of the Plan, is subject to the general principles of
equity (regardless of whether such question is considered in a proceeding in
equity or at law), and to applicable bankruptcy, insolvency, moratorium,
fraudulent or preferential conveyance and other similar laws affecting the
enforcement of creditors' rights.
This opinion is solely for your benefit, and may not be relied on by
any person other than you and your counsel.
This opinion is rendered as of the date hereof and we undertake no,
and hereby disclaim any, obligation to advise you of any changes in or new
developments which might affect any matters or opinions set forth herein.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement on Form S-8.
Very truly yours,
CHAMBERLAIN, HRDLICKA, WHITE
WILLIAMS & MARTIN
/s/ Stephen M. Mason
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Interests of Named Experts and
Counsel" in the Registration Statement.
/s/ KPMG Peat Marwick LLP
Houston, Texas
September 8, 1995
<PAGE> 2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Stewart Information Services Corporation of our report
dated January 20, 1995 on the consolidated financial statements of Stewart
Title & Trust of Phoenix, Inc. appearing in the Annual Report on Form 10-K for
the year ended December 31, 1994. We also consent to the reference to us under
the heading "Interests of Named Experts and Counsel" appearing in such
Registration Statement.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Phoenix, Arizona
September 7, 1995
<PAGE> 3
The Board of Directors
Stewart Information Services Corporation
We consent to the reference to our firm under the caption "Interests of Named
Experts and Counsel" in the Registration Statement (Form S-8) pertaining to the
1995 amendment of the Stewart Title Guaranty Company Salary Deferral Plan
(401-K) and to the incorporation by reference therein of our reports dated
January 19, 1993 with respect to the financial statements of Stewart Title of
Central California, California, Fresno County, Modesto and Monterey County
consolidated in Stewart Information Services Corporation's Annual Report (Form
10K) for the year ended December 31, 1994 filed with Securities and Exchange
Commission.
/s/ Perry-Smith & Co.
PERRY-SMITH & Co.
Certified Public Accountants
Sacramento, California
<PAGE> 4
The Board of Directors
Stewart Information Services Corporation
We consent to the reference to our firm under the caption "Interests of Names
Experts and Counsel" in the Registration Statement (Form S-8) and related
Prospectus pertaining to the 1995 amendment of the Stewart Title Guaranty
Company Salary Deferral Plan (401-K) and to the incorporation by reference
therein of our report dated January 20, 1995 with respect to the financial
statements of Stewart Title (not presented separately therein) included in
Stewart Information Services Corporation's Annual Report (Form 10-K) for the
year ended December 31, 1994, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG
ERNST & YOUNG
Los Angeles, California
September 8, 1995
<PAGE> 5
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Doshier, Pickens, & Francis, P.C.
DOSHIER, PICKENS, & FRANCIS, P.C.
Amarillo, Texas
<PAGE> 6
The Board of Directors
Stewart Information Services Corporation
I consent to the use of my reports incorporated herein by reference
and to the reference to me under the heading "Interests of Named Experts and
Counsel" in the Registration Statement.
/s/ Jim S. Walker
JIM S. WALKER
Beaumont, Texas
<PAGE> 7
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Denton Wolter & Company, P.C.
DENTON WOLTER & COMPANY, P.C.
Dallas, Texas
<PAGE> 8
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Fancher and Company
FANCHER AND COMPANY
Corpus Christi, Texas
<PAGE> 9
The Board of Directors
Stewart Information Services Corporation
I consent to the use of my report incorporated herein by reference and to
the reference to me under the heading "Interests of Named Experts and Counsel"
in the Registration Statement.
/s/ M. TIMOTHY O'ROARK
M. TIMOTHY O'ROARK
El Paso, Texas
<PAGE> 10
The Board of Directors
Stewart Information Services Corporation
We consent to the reference to our firm under the caption "Interests of Named
Experts and Counsel" in the Registration Statement (Form S-8) and related
Prospectus pertaining to the 1995 amendment of the Stewart Title Guaranty
Company Salary Deferral Plan (401-K) and to the incorporation by reference of
our reports relating to the financial statements of Stewart Title (not
presented separately therein) included in Stewart Information Services
Corporation's Annual Report (Form 10-K) for the year ended December 31, 1994,
filed with the Securities and Exchange Commission.
/s/ GRANT BENNETT ACCOUNTANTS
GRANT BENNETT ACCOUNTANTS
A PROFESSIONAL CORPORATION
Certified Public Accountants
Sacramento, California
<PAGE> 11
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ McGee, Haza & Co.
McGEE, HAZA & CO.
Dallas, Texas
<PAGE> 12
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Aaronson, White & Company
AARONSON, WHITE & COMPANY
Houston, Texas
<PAGE> 13
The Board of Directors
Stewart Information Services Corporation
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Interests of Named Experts
and Counsel" in the Registration Statement.
/s/ Edgar, Kiker & Cross, LLP
EDGAR, KIKER & CROSS, LLP
Beaumont, Texas
<PAGE> 14
The Board of Directors
Stewart Information Services Corporation
I consent to the use of my reports incorporated herein by reference
and to the reference to me under the heading "Interests of Named Experts and
Counsel" in the Registration Statement.
/s/ Ginny Sanders May
GINNY SANDERS MAY
Lake Jackson, Texas
