<PAGE> 1
As filed with the Securities and Exchange Commission on November 16, 1999
Registration No. 333-
------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
TRINITY INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-0225040
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2525 STEMMONS FREEWAY
DALLAS, TEXAS 75207-2401
(214) 631-4420
(Address of Principal Executive Offices) (Zip Code)
----------------------------
PROFIT SHARING PLAN FOR EMPLOYEES
OF TRINITY INDUSTRIES, INC. AND CERTAIN
AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999
SUPPLEMENTAL PROFIT SHARING PLAN
FOR EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES
(Full Titles of the Plans)
MICHAEL G. FORTADO
TRINITY INDUSTRIES, INC.
2525 STEMMONS FREEWAY
DALLAS, TEXAS 75207-2401
(214) 631-4420
(Name, address and telephone number, including area code, of agent for service)
----------------------------
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
TITLE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER SHARE PRICE (1) FEE(1)
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$1.00 Par Value (2)
Profit Sharing Plan for
Employees of Trinity
Industries, Inc. and
Certain Affiliates as 500,000 shares(2) $29.00 (3) $14,500,000 (3) $4,031
Restated Effective April
1, 1999
Supplemental Profit 250,000 shares(2) $29.00 (3) $ 7,250,000 (3) $2,016
Sharing Plan for
Employees of Trinity
Industries, Inc. and
Certain Affiliates
TOTAL 750,000 shares $21,750,000 $6,047
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this registration statement has been broken down
into two subtotals. In addition, pursuant to Rule 416 under the Securities Act
of 1933, as amended, this registration statement also covers additional shares
of common stock of the registrant as may be offered or issued as a result of
stock splits, stock dividends or similar transactions.
(2) In addition, 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 plans described
herein.
(3) Estimated in accordance with Rule 457(c) and (h) under the Securities Act of
1933, as amended, solely for purposes of calculating the registration fee, based
on the average of the high and low prices of the registrant's common stock on
November 10, 1999 as reported on the New York Stock Exchange.
- --------------------------------------------------------------------------------
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<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 (Plan Information) and Item 2
(Registrant Information and Employee Plan Annual Information) 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 (the "Securities Act"), and the
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Pursuant to General Instruction E to Form S-8, Trinity Industries, Inc.
("Trinity") and the Profit Sharing Plan for Employees of Trinity Industries,
Inc. and Certain Affiliates as Restated Effective April 1, 1999 (the "Profit
Sharing Plan") hereby incorporate by reference the contents of the Registration
Statement on Form S-8 as filed with the Securities and Exchange Commission (the
"Commission") on December 19, 1986 (Registration No. 33-10937), as subsequently
amended. This Registration Statement is being filed to register an additional
500,000 shares of Common Stock of Trinity, $1.00 par value per share, for
issuance under the Profit Sharing Plan and 250,000 shares of Common Stock of
Trinity for issuance under the Supplemental Profit Sharing Plan for Employees of
Trinity Industries, Inc. and Certain Affiliates (the "Supplemental Plan"), in
each event with related plan interests, pursuant to the terms of such plans.
Trinity and the Profit Sharing Plan and the Supplemental Plan hereby
incorporate by reference the documents set forth below in this Registration
Statement. All documents subsequently filed by Trinity, the Profit Sharing Plan
and the Supplemental 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 which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
(a) Trinity's Annual Report on Form 10-K filed with the Commission for
the fiscal year ended March 31, 1999;
(b) Trinity's Quarterly Reports on Form 10-Q filed with the Commission
for the fiscal quarters ended June 30, 1999 and September 30, 1999;
(c) Trinity's Current Report on Form 8-K filed with Commission on April
1, 1999;
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<PAGE> 4
(d) The description of Trinity's Common Stock, $1.00 par value per
share, contained in Trinity's Registration Statement on Form S-4
dated July 17, 1996 (Registration No. 333-8321), as amended by
Post-Effective Amendment No. 1 dated July 19, 1996; and
(e) The description of rights to purchase Trinity's Series A Junior
Participating Preferred Stock, $1.00 par value per share, contained
in Trinity's Registration Statement on Form 8-A dated April 2, 1999
filed pursuant to Section 12 of the Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may 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
(collectively, a "Proceeding") (other than an action by or in the right of the
corporation) by reason of the fact that he or she 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 or
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner he or she 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 or her conduct was
unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify
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 such
person acted in any of the capacities set forth above, against such expenses
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that 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
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 indemnification
for such expenses which the court shall deem proper.
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<PAGE> 5
Further, Section 145(c) of the DGCL provides that, to the extent a
director or officer of a corporation has been successful on the merits or
otherwise in the defense of any action, suit or proceeding referred to above or
in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith.
Section 145(f) of the DGCL provides that the statutory provisions on
indemnification are not exclusive of indemnification provided pursuant to, among
other things, the bylaws or indemnification agreements. Trinity's Bylaws contain
provisions regarding the indemnification of directors and officers of Trinity.
Article VI of Trinity's Bylaws provides for the indemnification of Trinity's
officers and directors to substantially the same extent permitted by the DGCL.
The indemnification described above (unless ordered by a court) shall
be paid by Trinity unless a determination is made (i) by Trinity's Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such Proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by Trinity's stockholders, that
indemnification of the director, officer, employee or agent is not proper in the
circumstances because he has not met the applicable standard of conduct set
forth above.
Article VI of Trinity's Bylaws provides that costs, charges and
expenses (including attorneys' fees) incurred by a person seeking
indemnification under Article VI of Trinity's Bylaws in defending a Proceeding
shall be paid by Trinity in advance of the final disposition of such Proceeding;
provided, however, that the payment of such costs, charges and expenses incurred
by a director or officer in his capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer) in advance of the final disposition of such Proceeding
shall be made only upon receipt of an undertaking by or on behalf of the
director or officer to repay all amounts so advanced in the event that it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by Trinity. Such costs, charges and expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
Trinity's Board of Directors deems appropriate. The Board of Directors may, upon
approval of such director, officer, employee or agent of Trinity, authorize
Trinity's counsel to represent such person in any Proceeding, whether or not
Trinity is a party to such Proceeding.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
but excludes specifically liability for any (i) breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) acts or omissions not in
good faith or involving intentional misconduct or a knowing violation of law,
(iii) payments of unlawful dividends or unlawful stock repurchases or
redemptions, or (iv) transactions from which the director derived an improper
personal benefit. The provision does not limit equitable remedies, such as an
injunction or rescission for breach of a director's fiduciary duty of care.
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<PAGE> 6
Trinity's Certificate of Incorporation contains a provision eliminating
the personal liability of a director from breaches of fiduciary duty, subject to
the exceptions described above.
(b) Trinity has entered into Indemnity Agreements with all of its
directors and officers that establish contract rights to indemnification
substantially similar to the rights to indemnification provided for in Trinity's
Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following documents are filed as a part of this registration
statement.
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION
------- -----------
<S> <C>
4.1 Specimen Common Stock Certificate of Registrant (incorporated by
reference to Exhibit 4.1 to the Registrant's Form 10-K Annual
Report for the fiscal year ended March 31, 1999, filed June 29,
1999).
23.1* Consent of Ernst & Young LLP.
24.1* Power of Attorney (included on the signature pages of this
Registration Statement).
99.1* Profit Sharing Plan for Employees of Trinity Industries, Inc. and
Certain Affiliates as Restated Effective April 1, 1999.
99.2* Supplemental Profit Sharing Plan for Employees of Trinity
Industries, Inc. and Certain Affiliates (Amendment No. 8 and
Supplemental Profit Sharing Plan as Restated Effective January 1,
2000).
</TABLE>
- ------------
* Filed herewith.
Trinity hereby undertakes that it will submit or has submitted the
Profit Sharing Plan for Employees of Trinity Industries, Inc. and
Certain Affiliates as Restated Effective April 1, 1999, 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 of the Internal Revenue
Code.
ITEM 9. UNDERTAKINGS.
(a) Trinity 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;
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<PAGE> 7
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided,however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by Trinity pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
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.
(b) Trinity hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of Trinity's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Trinity
pursuant to the foregoing provisions, or otherwise, Trinity has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by Trinity of expenses incurred or paid by a director, officer or
controlling person of Trinity 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, Trinity will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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<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 Dallas, State of Texas, on November 12, 1999.
TRINITY INDUSTRIES, INC.
By: /s/ Michael G. Fortado
-------------------------------------
Michael G. Fortado, Vice President,
Secretary and General Counsel
-8-
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Timothy R. Wallace, Jim S. Ivy and
Michael G. Fortado, and each of them with full power to act without the other,
his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all 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 on and about the premises
as fully and 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
any of them, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Timothy R. Wallace Chairman, President, Chief November 12, 1999
- ------------------------------------ Executive Officer and Director
Timothy R. Wallace (Principal Executive Officer)
/s/ Jim S. Ivy Vice President (Principal November 12, 1999
- ------------------------------------ Financial Officer)
Jim S. Ivy
/s/ John M. Lee Vice President (Principal November 12, 1999
- ------------------------------------ Accounting Officer)
John M. Lee
/s/ W. Ray Wallace Director November 12, 1999
- ------------------------------------
W. Ray Wallace
/s/ David W. Biegler Director November 12, 1999
- ------------------------------------
David W. Biegler
/s/ Barry L. Galt Director November 12, 1999
- ------------------------------------
Barry L. Galt
</TABLE>
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<PAGE> 10
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Clifford J. Grum Director November 12, 1999
- ------------------------------------
Clifford J. Grum
/s/ Dean P. Guerin Director November 12, 1999
- ------------------------------------
Dean P. Guerin
/s/ Jess T. Hay Director November 12, 1999
- ------------------------------------
Jess T. Hay
/s/ Edmund M. Hoffman Director November 12, 1999
- ------------------------------------
Edmund M. Hoffman
/s/ Diana S. Natalicio Director November 12, 1999
- ------------------------------------
Diana S. Natalicio
</TABLE>
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<PAGE> 11
Pursuant to the requirements of the Securities Act of 1933, the
trustees (or other persons who administer the employee benefit plans) of the
Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain
Affiliates as Restated Effective April 1, 1999 and the Supplemental Profit
Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates
have duly caused this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Dallas, State of Texas,
on the 12th day of November, 1999.
PROFIT SHARING PLAN FOR
EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES AS RESTATED
EFFECTIVE APRIL 1, 1999
By: Profit Sharing Committee for the Profit
Sharing Plan for Employees of Trinity
Industries and Certain Affiliates as
Restated Effective April 1, 1999
By: /s/ Timothy R. Wallace
---------------------------------------
Printed Name: Timothy R. Wallace
Title: Member, Profit Sharing Committee
By: /s/ Jack L. Cunningham, Jr.
---------------------------------------
Printed Name: Jack L. Cunningham, Jr.
Title: Member, Profit Sharing Committee
By: /s/ Neil O. Shoop
---------------------------------------
Printed Name: Neil O. Shoop
Title: Member, Profit Sharing Committee
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<PAGE> 12
SUPPLEMENTAL PROFIT SHARING PLAN FOR
EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES
By: Profit Sharing Committee for the
Supplemental Profit Sharing Plan for
Employees of Trinity Industries, Inc. and
Certain Affiliates
By: /s/ Timothy R. Wallace
---------------------------------------
Printed Name: Timothy R. Wallace
Title: Member, Profit Sharing Committee
By: /s/ Jack L. Cunningham, Jr.
---------------------------------------
Printed Name: Jack L. Cunningham, Jr.
Title: Member, Profit Sharing Committee
By: /s/ Neil O. Shoop
---------------------------------------
Printed Name: Neil O. Shoop
Title: Member, Profit Sharing Committee
-12-
<PAGE> 13
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<S> <C>
4.1 Specimen Common Stock Certificate of Registrant
(incorporated by reference to Exhibit 4.1 to the
Registrant's Form 10-K Annual Report for the fiscal
year ended March 31, 1999, filed June 29, 1999).
23.1* Consent of Ernst & Young LLP.
24.1* Power of Attorney (included on the signature pages of
this Registration Statement).
99.1* Profit Sharing Plan for Employees of Trinity
Industries, Inc. and Certain Affiliates as Restated
Effective April 1, 1999.
99.2* Supplemental Profit Sharing Plan for Employees of
Trinity Industries, Inc. and Certain Affiliates
(Amendment No. 8 and Supplemental Profit Sharing Plan
as Restated Effective January 1, 2000).
</TABLE>
- --------------
* Filed herewith.
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8 to be filed on or about November 16, 1999) pertaining to the
Profit Sharing Plan for Employees of Trinity Industries, Inc. and Certain
Affiliates as Restated Effective April 1, 1999 and the Supplemental Profit
Sharing Plan for Employees of Trinity Industries, Inc. and Certain Affiliates as
Restated Effective January 1, 2000 of our reports dated June 2, 1999 and June
24, 1999, with respect to the consolidated financial statements of Trinity
Industries, Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended March 31, 1999, and the related financial statement schedules
included therein filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
November 12, 1999
<PAGE> 1
EXHIBIT 99.1
PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE APRIL 1, 1999
ARTICLE I
PURPOSE
On this 29 day of April, 1999, TRINITY INDUSTRIES, INC., a corporation
organized and existing under the laws of the State of Delaware (hereinafter, the
"Company") , hereby restates in its entirety the PROFIT SHARING PLAN FOR
EMPLOYEES OF TRINITY INDUSTRIES INC. AND CERTAIN AFFILIATES AS RESTATED
EFFECTIVE APRIL 1, 1994 (hereinafter, the "Plan") , such restatement to be
effective as of April 1, 1999;
W I T N E S S E T H :
WHEREAS, the Company has heretofore adopted, for the benefit of its
employees, the PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND
CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1994 (hereinafter, the "Prior
Plan"); and
WHEREAS, pursuant to the provisions of Section 10.01 of the Prior Plan
to the effect that the Prior Plan may be amended by the Company, the Company
wishes to, and does hereby, amend and restate the Prior Plan, as re-titled
PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN
AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999 (hereinafter, the "Plan"); and
WHEREAS, the Board of Directors of the Company has heretofore
authorized adoption of the Plan and the execution of a trust agreement, of even
date herewith, known as the PROFIT SHARING TRUST FOR EMPLOYEES OF TRINITY
INDUSTRIES, INC. AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999
(hereinafter, the "Trust") for the purpose of carrying out the terms of the Plan
and which Trust is intended to form a part of the Plan; and
WHEREAS, the following affiliates of the Company (hereinafter, the
"Participating Employers") desire hereby to adopt the Plan and Trust for the
benefit of their employees: Trinity Industries Transportation, Inc., Transit Mix
Concrete & Materials Company, Standard Forged Products, Inc., Syro, Inc.,
Stearns Airport Equipment Co., Inc., Trinity Marine Caruthersville, Inc.,
Syntechnics, Inc., Trinity Materials, Inc., Trinity Marine Port Allen, Inc.,
Transit Mix Concrete & Materials Company of Louisiana, Trinity Mobile Railcar
Repair, Inc., Trinity Marine Nashville, Inc., Trinity Casteel, Inc., Trinity
Rail, Inc., Trinity Rail Services, Inc., Trinity EE, Inc., Trinity
1
<PAGE> 2
Marine Products, Inc., Trinity Fitting & Flange Group, Inc., Trinity Difco,
Inc., Difco, Inc., Trinity Industries Buffalo, Inc., Transit Mix Baytown,
McConway & Torley Corporation; and
WHEREAS, it is intended that the Plan and the Trust meet the
requirements of Sections 401(a) and 501(a) of the Internal Revenue Code of 1986
and the requirements of the Employee Retirement Income Security Act of 1974;
NOW, THEREFORE, the Company, joined by the Participating Employers,
hereby agrees as follows:
ARTICLE II
DEFINITIONS, CONSTRUCTION, ADOPTION AND APPLICABILITY
2.01 Definitions
The following words and phrases, when used herein, unless their context
clearly indicates otherwise, shall have the following respective
meanings:
(a) ADDITIONS: With respect to each year, the sum of the following
amounts allocated on behalf of a Participant for a Year: (i) all
Employer contributions; (ii) all Forfeitures; and (iii) all
Employee contributions. Except to the extent provided in Treasury
regulations, Additions include "excess contributions" (as defined
in Code Section 401(k)(8)(B)) and "excess aggregate contributions"
(as defined in Code section 401(m)(6)(B)), irrespective of whether
the Plan distributes or forfeits such excess amounts. "Excess
deferrals" (as defined in Code section 402(g)) are not Additions
unless distributed after the correction period described in Code
Section 402(g). Additions also include excess amounts reapplied to
reduce Employer contributions. Amounts allocated to an individual
medical account (as defined in Code Section 415(l)(2)) included as
part of a defined benefit plan maintained by the Employer are
Additions.
(b) AFFILIATE: Any corporation (other than an Employer) which is
included within a controlled group of corporations (as defined in
Section 414(b) of the Code) which includes an Employer; any trade
or business (other than an Employer), whether or not incorporated,
which is under common control (as defined in Section 414(c) of the
Code) with an Employer; any organization (other than an Employer),
whether or not incorporated, which is a member of an affiliated
service group (as defined in Section 414(m) of the Code) which
includes an Employer; and any other entity required to be
aggregated with an Employer pursuant to regulations under Section
414(o) of the Code.
(c) AUTHORIZED LEAVE OF ABSENCE: Any absence (including military leave)
authorized by an Employer under the Employer's standard personnel
practices, uniformly applied and in accordance with applicable
Federal law (other than ERISA); provided however that no absence
shall be considered an Authorized Leave of Absence unless the
Employee returns to employment immediately (in the case of
2
<PAGE> 3
military leave, within the 90-day period after his discharge or
release or within the period prescribed by applicable law,
whichever is longer) upon the expiration of such absence. An
absence due to service in the Armed Forces of the United States
shall be considered an Authorized Leave of Absence provided that
the absence is caused by war or other emergency, or provided that
the Employee is required to serve under the laws of conscription in
time of peace.
(d) BENEFICIARY: A person or persons (natural or otherwise) designated
by a Participant or Former Participant in accordance with the
provisions of Section 6.05 to receive any death benefit which shall
be payable under this Plan.
(e) CODE: The Internal Revenue Code of 1986, as amended from time to
time.
(f) COMMITTEE: The persons appointed under the provisions of Article
VIII to administer the Plan.
(g) COMPANY: TRINITY INDUSTRIES, INC., a corporation organized and
existing under the laws of the State of Delaware, or its successor
or successors.
(h) COMPENSATION: The total of all amounts paid to a Participant by the
Employer for personal services as reported on the Participant's
Federal Income Tax Withholding Statement (Form W-2) plus any salary
reduction amounts described in Section 4.02 hereof and any amounts
not included in the Participant's gross income pursuant to Section
125 of the Code, but excluding (i) any other contributions made
under this Plan or any other plan of deferred compensation, (ii)
tuition reimbursement payments, (iii) moving expense payments, (iv)
excess life insurance imputed income, (v) income from nonqualified
stock options, (vi) automobile allowance payments, (vii) medical
allowance payments, (viii) safe driving bonuses, (ix) employee
awards, (x) lodging allowance payments, (xi) tool allowance
payments, (xii) road expense reimbursement payments, (xiii)
commuting allowance payments, (xiv) meal allowance payments, (xv)
third-party sick pay, (xvi) attendance/safety bonuses; (xvii)
travel allowances, (xviii) company automobile; (xix) executive
perquisites; and (xx) such other similar amounts as the Committee
may from time to time exclude in its sole discretion; provided,
however, that for purposes of determining benefits hereunder, the
total Compensation of a Participant to be taken into account for a
given Year shall not exceed $150,000.00 (as automatically increased
in accordance with Treasury Department regulations to reflect cost
of living adjustments). Notwithstanding the preceding, for purposes
of discrimination testing under Sections 401(a)(4), 401(k), 401(m)
and 410(b) of the Code, Compensation shall be determined without
excluding the items described in clauses (ii) through (iv), (vi)
through (xi) and (xiii) through (xix) of this paragraph.
(i) DISABILITY: A physical or mental condition which, in the judgment
of the Committee, totally and presumably permanently prevents a
Participant from engaging in any substantial or gainful employment.
Determinations of Disability shall be made on the basis of
standards applied uniformly to all Participants.
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(j) EFFECTIVE DATE: Except where otherwise indicated herein, April 1,
1999, the date on which the provisions of this amended and restated
Plan become effective.
(k) ELAPSED-TIME EMPLOYMENT: With respect to an Employee, the period
beginning on his Employment Commencement Date (or Re-employment
Commencement Date, as the case may be) and ending on the date of
his Severance from Service. Such period shall be determined without
regard to the actual number of Hours of Employment completed by the
Employee during such period. Except to the extent otherwise
permitted by the Committee in its sole discretion, Elapsed-Time
Employment completed with an Affiliate or a Participating Employer
prior to the date on which such Affiliate or Employer was included
within a controlled group of corporations (as defined in Section
414(b) of the Code) which includes the Company shall not be
recognized under this Plan.
(l) EMPLOYEE: Any individual on the payroll of an Employer, including
leased employees as defined in Code Section 414(n), whose wages
from such Employer are subject to withholding for purposes of
Federal income taxes and for purposes of the Federal Insurance
Contributions Act. Notwithstanding the foregoing, if such leased
employees constitute less than twenty percent (20%) of the
Employer's non-highly compensated work force within the meaning of
Code Section 414(n)(5)(C)(ii), the term "Employee" shall not
include leased employees covered by a plan described in Code
Section 414(n)(5) unless otherwise provided by the terms of this
Plan. Notwithstanding the preceding, the term "Employee" shall not
include any individual who is designated as an "independent
contractor" by the Employer, even if the status of such individual
subsequently is changed from that of an independent contractor to
that of an employee as a result of administrative or legal
proceedings.
(m) EMPLOYER or PARTICIPATING EMPLOYER: The Company, Trinity Industries
Transportation, Inc., Transit Mix Concrete & Materials Company,
Standard Forged Products, Inc., Syro, Inc., Stearns Airport
Equipment Co., Inc., Trinity Marine Caruthersville, Inc.,
Syntechnics, Inc., Trinity Materials, Inc., Trinity Marine Port
Allen, Inc., Transit Mix Concrete & Materials Company of Louisiana,
Trinity Mobile Railcar Repair, Inc., Trinity Marine Nashville,
Inc., Trinity Casteel, Inc., Trinity Rail, Inc., Trinity Rail
Services, Inc., Trinity EE, Inc., Trinity Marine Products, Inc.,
Trinity Fitting & Flange Group, Inc., Trinity Difco, Inc., Difco,
Inc., Trinity Industries Buffalo, Inc., Transit Mix Baytown,
McConway & Torley Corporation, or any other Affiliate of the
Company which may have adopted this Plan in accordance with the
provisions of Section 2.03 hereof.
(n) EMPLOYER CONTRIBUTION ACCOUNT: The account maintained for a
Participant or Former Participant to record his share of the
contributions of his Employer made pursuant to Section 4.01(b)
hereof and adjustments relating thereto.
(o) EMPLOYMENT COMMENCEMENT DATE: The first date on which an Employee
completes an Hour of Employment.
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(p) ERISA: Public Law No. 93-406, the Employee Retirement Income
Security Act of 1974, as amended from time to time.
(q) EXTENDED ABSENCE EMPLOYEE: An Employee who is absent from his
Employer's employment solely because of (i) the Employee's
pregnancy, (ii) the birth of the Employee's child, (iii) the
placement of a child with the Employee in connection with the
adoption of the child by the Employee, or (iv) the care of a child
by the Employee during the period immediately following such
child's birth to, or placement with, the Employee.
(r) FIDUCIARIES: The Employers, the Committee, and the Trustee, but,
except to the extent of an appointment made by the Committee
pursuant to Section 8.05(g) hereof, only with respect to the
specific responsibilities of each for Plan and Trust
administration, all as described in Section 8.01.
(s) FORFEITURES: The portion of a Participant's Employer Contribution
Account which is forfeited because of a Severance from Service
before full vesting.
(t) FORMER PARTICIPANT: A Participant whose Participation has
terminated but who has a vested account balance under the Plan
which has not been paid in full.
(u) HIGHLY COMPENSATED EMPLOYEE: A Participant or Former Participant
who is a Highly Compensated Employee, as defined in Code Section
414(q). A Participant or Former Participant is considered a Highly
Compensated Employee if:
(1) during the Plan Year (the "Determination Year"), during the
twelve month period immediately preceding the Determination
Year or, if the Employer elects, during the calendar year
ending with or within the Determination Year (the "Look Back
Year"), the Participant or Former Participant was at any time
a "five percent owner" as defined in Code Section
416(i)(1)(A)(iii); or
(2) for the preceding Plan Year, the Participant or Former
Participant had Compensation from the Employer in excess of
$80,000 (as automatically increased in accordance with
Treasury Department regulations).
The Committee shall determine which Participants or Former
Participants are Highly Compensated Employees in a manner
consistent with Code Section 414(q) and the regulations promulgated
thereunder. The Employer may make a calendar year election to
determine the Highly Compensated Employees for the Look Back Year,
as described above and as prescribed by the applicable Treasury
Department regulations, provided that a calendar year election must
apply to all employee pension benefit plans of the Employer.
A Former Participant who separated from Service, or is deemed to
have separated from Service under the applicable Treasury
Department regulations, prior to the Plan Year, who performs no
Service for the Employer during the Plan Year and who was
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<PAGE> 6
a Highly Compensated Employee either for the "separation year " or
any Plan Year ending on or after such Former Participant attained
age fifty-five (55) is considered a Highly Compensated Employee.
For purposes of this paragraph (u), "separation year" means the
Plan Year during which the Employee separates from Service with the
Employer.
(v) HOUR OF EMPLOYMENT: Each hour (i) for which an Employee is on an
Authorized Leave of Absence or is directly or indirectly paid or
entitled to payment by his Employer for the performance of duties
or for reasons other than the performance of duties, or (ii) for
which back-pay (irrespective of mitigation of damages) has been
either awarded or agreed to by the Employer. In the case of clause
(i) above, each such Hour of Employment shall, in general, be
credited for the computation period in which the duties were
performed, or to which payments or entitlements to payments relate
(in cases in which Hours of Employment are credited for periods in
which duties are not performed.) In the case of clause (ii) above,
each such Hour of Employment shall, in general, be credited for the
computation period to which the agreement or award pertains.
Notwithstanding any provision to the contrary herein contained, no
Employee shall be credited with an Hour of Employment under both
clauses (i) and (ii) above. In determining the number of Hours of
Employment to be credited to an Employee in the case of a payment
which is made or due to an Employee under the provisions of clause
(i) above, for a period during which services were not performed
(including a payment made by application of clause (ii) for a
period also covered by clause (i) during which services were not
performed), and the computation period(s) to which Hours of
Employment shall be credited, the Committee shall apply the rules
set forth in United States Department of Labor Regulationsss.
2530.200b-2(b) and (c), which rules are incorporated into and made
a part of this Plan by reference. Nothing in this paragraph shall
be construed as denying an Employee credit for an Hour of
Employment which he is required to receive under any Federal law,
the nature and extent of which credit shall be determined by such
Federal law.
Hours of Employment shall be determined from records maintained by
each Employer; provided, however, that an Employer may elect to
determine Hours of Employment for any classification of Employees
which is reasonable, nondiscriminatory and consistently applied, on
the basis that Hours of Employment include forty-five (45) Hours of
Employment for each week or portion thereof during which an
Employee is credited with one (1) Hour of Employment. In
determining the equivalent number of Hours of Employment to be
credited to an Employee in the case of a payment made or due under
paragraph (1) above, when the payment is not calculated on the
basis of units of time, the Committee shall apply the rules set
forth in United States Department of Labor Regulations Section
2530.200b-2(b)(2) and (3). If such a payment is calculated on the
basis of units of time, which units are greater than the period of
employment used in this equivalency formula, the Employee shall be
credited with the number of Hours of Employment included in the
periods of employment which, in the course of the Employee's
regular work schedule, would be included in the unit or units of
time on the basis of which the payment is calculated.
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Except to the extent otherwise permitted by the Committee in its
sole discretion, Hours of Employment completed with an Affiliate or
a Participating Employer prior to the date on which such Affiliate
or Employer was included within a controlled group of corporations
(as defined in Section 414(b) of the Code) which includes the
Company shall not be recognized under this Plan.
(w) INCOME: The net gain or loss of the Trust Fund from investments, as
reflected by interest payments, dividends, realized and unrealized
gains and losses on securities, other investment transactions and
expenses paid from the Trust Fund. In determining the Income of the
Trust Fund for any period, assets shall be valued on the basis of
their fair market value, as determined by the Trustee.
(x) KEY EMPLOYEE: An Employee who, at any time during the Plan Year in
which the determination date occurs or any of the four preceding
Plan Years, is (i) an officer of the Employer having annual
compensation greater than 50% of the amount in effect under Section
415(b)(1)(A) of the Code for any such Year, (ii) an owner of (or
considered as owning within the meaning of Section 318 of the Code)
both more than a one-half percent interest as well as one of the
ten largest interests in the Employer and having annual
compensation from the Employer of more than the limitation in
effect under Section 415(c)(1)(A) of the Code, (iii) a 5% owner of
the Employer in accordance with Section 416(i)(A)(iii) of the Code,
or (iv) a 1% owner of the Employer having annual compensation in
excess of $150,000.
(y) MATCHING EMPLOYER CONTRIBUTION: Any contribution to the Plan made
by an Employer for the Plan Year on behalf of a Participant
pursuant to Section 4.01(b) hereof.
(z) NON-HIGHLY COMPENSATED EMPLOYEE: An Employee who is not a Highly
Compensated Employee.
(aa) PARTICIPANT: An Employee participating in the Plan in accordance
with the provisions of Section 3.01.
(bb) PARTICIPATION: The period commencing on the date on which an
Employee becomes a Participant and ending on the date on which the
Employee incurs a Break in Service (as defined in Section 3.02(d)).
(cc) PLAN: PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES AS RESTATED EFFECTIVE APRIL 1, 1999, the
Plan set forth herein, as amended from time to time, more commonly
known as THE TRINITY 401(K) PLAN.
(dd) PRIOR PLAN: The Profit Sharing Plan for Employees of Trinity
Industries, Inc. and Certain Affiliates, as in effect prior to the
Effective Date.
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(ee) RE-EMPLOYMENT COMMENCEMENT DATE: The first date on which an
Employee completes an Hour of Employment upon his return to the
employment of the Employers after a Break in Service.
(ff) ROLLOVER ACCOUNT: The account maintained for a Participant or
Former Participant to record "qualifying rollover distributions"
contributed to the Plan pursuant to Section 4.04 hereof and
adjustments relating thereto.
(gg) SALARY REDUCTION CONTRIBUTION: Any contribution to the Plan made by
an Employer for the Plan Year on behalf of a Participant pursuant
to Section 4.01(a) hereof.
(hh) SALARY REDUCTION CONTRIBUTION ACCOUNT: The account maintained for a
Participant or Former Participant to record contributions made on
his behalf by his Employer pursuant to Section 4.01(a) hereof and
adjustments relating thereto.
(ii) SERVICE: A Participant's period of employment with the Employers
determined in accordance with Section 3.02.
(jj) SEVERANCE FROM SERVICE: With respect to an Employee, the later of
(1) or (2), where--
(1) is the earlier of (i) the date on which he quits, or is
discharged from, the employment of the Employers, or the date
of his retirement or death, or (ii) the first anniversary of
the first date of a period in which he remains absent from the
employment of the Employers, with or without pay, for any
reason other than one specified in (i), above, such as
vacation, holiday, sickness, Authorized Leave of Absence or
layoff; and
(2) is, in the case of an Extended Absence Employee, the second
anniversary of such Employee's absence.
(kk) TRUST (or TRUST FUND): The fund known as the PROFIT SHARING TRUST
FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES AS
RESTATED EFFECTIVE APRIL 1, 1999, maintained in accordance with the
terms of the trust agreement, as from time to time amended, which
constitutes a part of this Plan.
(ll) TRUSTEE: The corporation, individual or individuals appointed by
the Board of Directors of the Company to administer the Trust.
(mm) VALUATION DATE: Each business day on which Trust assets may be
purchased or sold.
(nn) YEAR or PLAN YEAR: The 12-month period ending on March 31 of each
year.
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2.02 Construction
The masculine gender, where appearing in the Plan, shall be deemed to
include the feminine gender, unless the context clearly indicates to
the contrary. The words "hereof," "herein," "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.
2.03 Adoption by Others
Any Affiliate of the Company may adopt this Plan and thereby become an
Employer; provided, however, that the Board of Directors of the Company
approves such adoption; provided, further, that the administrative
powers and control of the Company as provided herein shall not be
deemed diminished under the Plan by reason of the adoption of the Plan
by any other Employer, and such administrative powers and control
granted in Section 8.01 hereof with respect to the appointment of the
Committee and other matters shall apply only with respect to the
Company and not to any other Employer.
2.04 Applicability
The provisions of this Plan shall apply only to an Employee who
terminates employment on or after the Effective Date. In the case of an
Employee who terminates employment prior to the Effective Date, and
except as otherwise provided in Sections 3.01 and 9.06 hereof, the
rights and benefits, if any, of such former Employee shall be
determined in accordance with the provisions of the Prior Plan, as in
effect on the date on which his employment terminated.
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation
Subject to the provisions of Section 3.03 hereof and except for any
Employee (i) who is a member of a collective bargaining unit, the
recognized representative of which has not agreed to Participation in
the Plan by its members, (ii) who is a nonresident alien and receives
no earned income (within the meaning of Section 911(d)(2) of the Code)
from the Employer which constitutes income from United States sources
(within the meaning of Section 861(a)(3) of the Code), (iii) who is a
leased employee within the meaning of Section 414(n)(2) of the Code,
(iv) who is classified as a project status employee, or (v) who is an
employee or within a class of employees designated on Appendix I
attached hereto, an Employee shall become a Participant in this Plan as
follows:
(a) Any Employee included under the provisions of the Prior Plan as of
January 1, 1999 shall continue to participate in accordance with
the provisions of this Plan.
(b) The Participation of any Employee who is eligible to become a
Participant on or after January 1, 1999, shall commence on the
first day of the month immediately following the sixty (60)-day
period beginning on his Employment Commencement Date.
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Under no circumstances shall an individual become a Participant prior
to the date on which he is classified as an active Employee. An active
Participant who incurs a Severance from Service and who is subsequently
re-employed by an Employer shall immediately reenter the Plan as an
active Participant on his Re-employment Commencement Date, with such
Participant's prior salary reduction agreement to continue to apply
until amended, terminated or suspended in accordance with the
provisions of Section 4.02 hereof. In the event that a Participant
shall either become a member of a collective bargaining unit described
above, or otherwise be excluded from Participation pursuant to the
first paragraph of this Section 3.01, his Participation shall thereupon
cease but he shall continue to accrue Service hereunder during the
period of his continued employment with the Employer. For purposes of
this Section 3.01, an Employee shall be credited with Service for
periods of employment with an Affiliate (determined as if such
Affiliate were an Employer), but shall not commence Participation
hereunder prior to the date on which he commences employment with an
Employer. The term "active Participant" shall mean any Employee
currently participating in the Plan who has not incurred a Severance
from Service.
The Committee is hereby authorized to identify, in writing on Appendix
I, those employees or classes of employees employed at a location of an
Employer who are not eligible to participate in the Plan. The Committee
is further authorized and directed to revise Appendix I, or to have
Appendix I revised by the appropriate person designated by the
Committee, to reflect any necessary additions and deletions thereto as
soon as administratively possible following such identification by the
Committee. Revisions to Appendix I shall require the adoption of a Plan
amendment and, notwithstanding the provisions of Section 10.01 hereof,
the Board of Directors of the Company hereby delegates to the Committee
(or the Committee's authorized representative) the authority to execute
such an amendment from time to time.
3.02 Service
The amount of benefit payable to or on behalf of a Participant or
Former Participant shall be determined on the basis of his period of
Service, in accordance with the following:
(a) In General--Subject to the Break in Service provisions of
paragraph (d) of this Section, an Employee's Service shall
equal the total of his Elapsed-Time Employment. Service shall
be counted in years and completed days.
(b) Transfers from Affiliates--In the event that an Employee who
at any time was employed by an Affiliate either commences
employment with a Participating Employer, or returns to the
employment of a Participating Employer, then, except as
otherwise provided below, such Employee shall receive Service
with respect to the period of his employment with such
Affiliate (to the extent not credited under paragraph (c) of
this Section). In applying the provisions of the preceding
sentence--
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(1) except to the extent otherwise permitted by the
Committee in its sole discretion, such Employee shall
not receive Service with respect to any period of
employment with such Affiliate completed prior to the
date on which such Affiliate became an Affiliate;
(2) the amount of such Service shall be determined in
accordance with paragraph (a) of this Section 3.02,
as if such Affiliate were a Participating Employer;
and
(3) if such Employee incurs a Break in Service (as
defined in paragraph (d) of this Section and
determined as if such Affiliate were a Participating
Employer) prior to his commencement of employment
with the Participating Employer or return to the
employment of the Participating Employer, then the
amount of such Employee's service attributable to the
period of his employment with such Affiliate shall be
determined in accordance with paragraph (d) of this
Section.
(c) Transfers to Affiliate--In the event that a Participant who at
any time was employed by a Participating Employer either
commences employment with an Affiliate, or returns to the
employment of an Affiliate, then, except as otherwise provided
below, such Participant shall receive service with respect to
the period of his employment with such Affiliate (to the
extent not credited under paragraph (b) of this Section). In
applying the provisions of the preceding sentence--
(1) the amount of such Service shall be determined in
accordance with paragraph (a) of this Section, as if
such Affiliate were a Participating Employer; and
(2) if such Participant incurs a Break in Service (as
defined in paragraph (d) of this Section and
determined as if such Affiliate were a Participating
Employer) prior to his commencement of employment
with the Affiliate or return to the employment of the
Affiliate, then the amount of such Participant's
Service attributable to his prior period of
employment with the Participating Employer shall be
determined in accordance with paragraph (d) of this
Section.
Except as otherwise provided in Sections 4.02, 6.07 and 12.03
hereof, such Participant shall receive no benefits under this
Plan prior to the date on which he incurs a Severance from
Service, determined as if all Affiliates were Participating
Employers.
(d) Break in Service--An Employee who incurs a Severance from
Service and who fails to complete at least one (1) Hour of
Employment during the twelve (12)-month period beginning on
the date of such Severance from Service shall have a Break in
Service. If, during the twelve (12)-month period beginning on
the date of an Employee's Severance from Service, the Employee
shall return to the employment of a Participating Employer by
completing at least one (1) Hour of Employment
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<PAGE> 12
within such twelve (12)-month period, then such Employee will
not have a Break in Service and shall receive Service for the
period beginning on the date of his Severance from Service and
ending on the date of his re-employment; provided, however,
that in the case of an Employee who is absent from the
employment of the Participating Employers for a reason
specified in Section 2.01(jj)(1)(ii) hereof and who, prior to
the first anniversary of the first date of such absence incurs
a Severance from Service for a reason specified in section
2.01(jj)(1)(i) hereof, such Employee shall receive Service
only if he completes at least one (1) Hour of Employment
within the twelve (12)-month period beginning on the first
date of such absence and shall receive such Service only for
the period beginning on the first day of such absence and
ending on the date of his re-employment. Upon incurring a
Break in Service, an Employee's rights and benefits under the
Plan shall be determined in accordance with his Service at the
time of the Break in Service. For a Participant who, at the
time of a Break in Service, satisfied any requirements of this
Plan for vested benefits, his pre-break Service shall, upon
his Re-employment Commencement Date, be restored in
determining his rights and benefits under the Plan. For an
Employee who, at the time of a Break in Service, had not
fulfilled such requirements, periods of pre-break Service
shall, upon his Re-employment Commencement Date, be restored
only if the consecutive periods of Break in Service were less
than the greater of (i) sixty (60) months or (ii) the total
periods of pre-break Service.
(e) Special Rule for Extended Absence Employees--Notwithstanding
the preceding provisions of this Section 3.02, in the case of
an Extended Absence Employee, the period between the first and
second anniversaries of such Employee's absence shall, under
no circumstances, be treated as a period of Service.
3.03 Election to Participate
In order to participate hereunder, an Employee otherwise eligible to
participate pursuant to Section 3.01 must, after having received a
written explanation of the terms of, and the benefits provided under,
the Plan, elect to participate in such Plan in accordance with such
procedures as the Committee or Trustee may prescribe and must execute a
salary reduction agreement described in Section 4.02 hereof. Such
election to participate and execution of a salary reduction agreement
shall be effected on the date on which Participation hereunder first
commences or on the first day of any calendar quarter thereafter.
3.04 Transfer
An Employee who is transferred between Participating Employers shall be
as eligible for Participation and benefits as in the absence of such
transfer.
3.05 Special Rules for Former Collective Bargaining Employees of the LPG
Division
The following special rules shall apply in the case of each Employee of
the Company's LPG Division who, as of November 15, 1988, ceased to be
covered by a collective bargaining agreement described in Section 3.01
hereof:
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(a) Such Employee was eligible to become a Participant on the
later of (i) January 1, 1989 or (ii) the date on which he
satisfies the requirements of Section 3.01 hereof.
(b) Notwithstanding the provisions of Section 3.02 hereof, the
Elapsed-Time Employment and Service of any such Employee who
failed to elect to participate hereunder pursuant to Section
3.03 hereof on the date on which he was first eligible to do
so pursuant to Section 3.01 hereof, shall be determined as if
his Employment Commencement Date were the later of (i) January
1, 1989 or (ii) the date on which he first completes an Hour
of Employment.
3.06 Special Rules for Employees of Syro Steel Company
Notwithstanding any provision to the contrary herein contained, the
following special rules shall apply with respect to any Employee of
Syro Steel Company who immediately prior to October 1, 1992 was a
participant in, or eligible to participate in, the Syro Steel Company
Employees' Retirement Savings Plan (the "Syro Plan"):
(a) Such Employee was eligible to become a Participant in this
Plan on October 1, 1992;
(b) For purposes of determining such Employee's "vested
percentage" under Section 6.03 hereof, such Employee shall
receive service with respect to periods of employment credited
to such Employee under the Syro Plan, or which would be
credited to such Employee under the Syro Plan, in calculating
his vested interest under the Syro Plan; and
(c) Such Employee shall be fully vested in benefits accrued under
the Syro Plan and transferred to or merged with this Plan.
This paragraph (c) is intended to apply only to benefits
accrued under the Syro Plan and should not be construed as
conferring any greater right to benefits accrued under this
Plan than may otherwise be provided hereunder.
Each Employee of Syro Steel Company who immediately prior to October 1,
1992 was not a participant in, or eligible to participate in, the Syro
Plan shall be eligible to become a Participant in this Plan on the date
on which he satisfies the requirements of Section 3.01 hereof, except
that such Employee shall be credited with Service with respect to
periods of employment with Syro Steel Company prior to October 1, 1992.
3.07 Special Rules for Employees of Platzer Shipyard, Inc.
Notwithstanding any provision to the contrary herein contained, the
following special rules shall apply with respect to any Employee of
Platzer Shipyard, Inc. who immediately prior to April 1, 1994 was a
Participant in, or eligible to participate in, the Platzer Shipyard,
Inc. 401(k) Plan (the "Platzer Plan"):
(a) Such Employee was eligible to become a Participant in the Plan
on April 1, 1994;
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(b) For purposes of determining such Employee's "vested
percentage" under Section 6.03(b) hereof, such Employee shall
receive credit for Service with respect to periods of
employment with Platzer Shipyard, Inc. prior to April 1, 1994,
as determined in accordance with the provisions of the Platzer
Plan or the Plan, whichever shall provide the greater benefit;
(c) The Plan shall preserve all optional forms of benefit and
methods of benefit payment provided under the Platzer Plan.
Such optional forms and methods shall be available with
respect to the Participant's entire account balance and shall
not be limited to only those amounts transferred pursuant to
the merger of the Platzer Plan with the Plan;
(d) The Plan shall preserve a disabled Participant's right to
receipt of a disability benefit under the terms of the Platzer
Plan so long as the disability conforms to the requirements
for disability as defined in the Platzer Plan and the
disability occurred prior to April 1, 1994.
Each Employee of Platzer Shipyard, Inc. who immediately prior to April
1, 1994 was not a Participant in, or eligible to participate in, the
Platzer Plan shall be eligible to become a Participant in this Plan on
the date on which he satisfies the requirements of Section 3.01 hereof,
except that such Employee shall be credited with Service with respect
to periods of employment with Platzer Shipyard, Inc. prior to April 1,
1994.
3.08 Special Rules for Employees of Transcisco Industries, Inc.
Notwithstanding any provision to the contrary herein contained, the
following special rules shall apply with respect to any Employee of
Transcisco Industries, Inc. who immediately prior to January 1, 1997
was a participant in, or eligible to participate in, the Transcisco
Industries, Inc. Employees' Profit Sharing and Tax-Advantaged Savings
Plan (the "Transcisco Plan"):
(a) Such Employee was eligible to become a Participant in the Plan
on January 1, 1997;
(b) For purposes of determining such Employee's 'vested
percentage' under Section 6.03(b) hereof, such Employee shall
receive credit for Service with respect to periods of
employment with Transcisco Industries, Inc. prior to January
1, 1997, as determined in accordance with the provisions of
the Transcisco Plan or the Plan, whichever shall provide the
greater benefit; provided that such Employee shall continue at
all times to be fully vested in any qualified matching
contributions credited to such Employee under the Transcisco
Plan.
(c) The Plan shall preserve, with respect to such Employee, all
optional forms of benefit and methods of benefit payment
provided under the Transcisco Plan, including the right of any
such Employee who is married to receive payment in the form of
a 50% qualified joint and survivor annuity to the extent
provided under the Transcisco Plan (it being understood that
any such annuity shall be provided pursuant to a
nontransferable annuity contract to be purchased by the
Trust). Such optional forms
14
<PAGE> 15
and methods shall be available with respect to such Employee's
entire account balance and shall not be limited to only those
amounts transferred pursuant to the merger of the Transcisco
Plan into the Plan;
(d) The Plan shall preserve the right of any such Employee who is
disabled to receipt of a disability benefit under the terms of
the Transcisco Plan so long as the disability conforms to the
requirements for disability as defined in the Transcisco Plan
and the disability occurred prior to January 1, 1997;
(e) In lieu of the qualified preretirement survivor annuity
payable with respect to such Employee under the Transcisco
Plan, there shall be paid the death benefit specified in
Section 6.02 hereof; and
(f) Notwithstanding the provisions of Section 6.06(e) hereof, if,
prior to January l, l997, more than one loan from the
Transcisco Plan was outstanding with respect to such Employee,
such loans shall not be accelerated and the Employee shall
continue to make payments in accordance with the terms of such
loans.
Each Employee of Transcisco Industries, Inc. who immediately prior to
January 1, 1997 was not a participant in, or eligible to participate
in, the Transcisco Plan shall be eligible to become a Participant in
this Plan on the date on which he satisfies the requirements of Section
3.01 hereof, except that such Employee shall be credited with Service
with respect to periods of employment with Transcisco Industries, Inc.
prior to January 1, 1997.
3.09 Special Rules for Employees of DIFCO, Inc.
Notwithstanding any provision to the contrary herein contained, the
following special rules shall apply with respect to any Employee of
DIFCO, Inc. who immediately prior to October 1, 1997 was a participant
in, or eligible to participate in, the DIFCO, Inc. Salary Deferral and
Profit Sharing Plan and Trust (the "DIFCO Plan"):
(a) Such Employee was eligible to become a Participant in the Plan
on October 1, 1997;
(b) For purposes of determining such Employee's 'vested
percentage' under Section 6.03(b) hereof, such Employee shall
receive credit for Service with respect to periods of
employment with DIFCO, Inc. prior to October 1, 1997, as
determined in accordance with the provisions of the DIFCO Plan
or the Plan, whichever shall provide the greater benefit;
provided that full vesting solely by reason of attainment of
age sixty-two (62) and the completion of three (3) years of
service shall apply to that portion of such Employee's benefit
accrued as of September 30, 1997;
(c) The Plan shall preserve, with respect to such Employee, all
optional forms of benefit and methods of benefit payment
provided under the DIFCO Plan, including the right of any such
Employee who is married to receive payment in the form of a
50% qualified joint and survivor annuity to the extent
provided under the DIFCO Plan (it being understood that any
such annuity shall be provided pursuant to a nontransferable
annuity contract to be purchased by the Trust). Such optional
forms
15
<PAGE> 16
and methods shall be available with respect to such Employee's
entire account balance and shall not be limited to only those
amounts transferred pursuant to the merger of the DIFCO Plan
into the Plan;
(d) The Plan shall preserve the right of any such Employee who is
disabled to receipt of a disability benefit under the terms of
the DIFCO Plan so long as the disability conforms to the
requirements for disability as defined in the DIFCO Plan and
the disability occurred prior to October 1, 1997;
(e) In lieu of the qualified preretirement survivor annuity
payable with respect to such Employee under the DIFCO Plan,
there shall be paid the death benefit specified in Section
6.02 hereof;
(f) Notwithstanding the provisions of Section 6.06(e) hereof, if,
prior to October 1, 1997, more than one loan from the DIFCO
Plan was outstanding with respect to such Employee, such loans
shall not be accelerated and the Employee shall continue to
make payments in accordance with the terms of such loans; and
(g) Notwithstanding Section 4.05 hereof, any account(s)
established for such Employee under the DIFCO Plan for
after-tax employee contributions may be transferred to this
Plan, with such Employee to be permitted to withdraw the full
balance(s) in such account(s) at such time and within such
parameters as may be determined by the Committee.
Each Employee of DIFCO, Inc. who immediately prior to October 1, 1997
was not a participant in, or eligible to participate in, the DIFCO Plan
shall be eligible to become a Participant in this Plan on the date on
which he satisfies the requirements of Section 3.01 hereof, except that
such Employee shall be credited with Service with respect to periods of
employment with DIFCO, Inc. prior to October 1, 1997.
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.01 Employer Contributions
Employers shall make contributions to the Trust Fund in accordance with
the following:
(a) Salary Reduction Contribution--For each Year, each Employer
shall contribute on behalf of each of its Employees
participating in the Plan an amount of contribution agreed to
be made by such Employer pursuant to a salary reduction
agreement under Section 4.02 entered into between the Employer
and the Participant for such Year. Contributions made by the
Employer for a given Year pursuant to this paragraph (a) shall
be deposited in the Trust Fund as soon as administratively
feasible, but in no event later than fifteen (15) business
days after the end of the month during which such amounts
would otherwise have been payable to the Participant, in
accordance with Department of Labor Regulations Sections
2510.3-102.
16
<PAGE> 17
(b) Additional Matching Contribution--
(1) In General. For each Year, each Employer shall make
an additional contribution on behalf of each of its
Employees for whom a contribution was made pursuant
to paragraph (a) of this Section 4.01; provided,
however, that no such additional contribution shall
be made prior to the first day of the calendar
quarter following the date on which such Employee
completes one (1) year of Service. Such contributions
shall equal an amount which, when added to the
Forfeitures which have become available for
application as of the end of the Year pursuant to
Section 4.03 hereof, will be sufficient to credit
each such Participant's Employer Contribution Account
with an amount equal to a percentage of that portion
of the Participant's salary reduction for such Year
pursuant to Section 4.02 hereof which does not exceed
six percent (6%) of his Compensation for such Year,
based on his years of Service as follows:
<TABLE>
<CAPTION>
Years of Service Applicable Percentage
---------------- ---------------------
<S> <C>
Less than 1 0%
1 but less than 2 25%
2 but less than 3 30%
3 but less than 4 35%
4 but less than 5 40%
5 or more 50%
</TABLE>
Notwithstanding the preceding provisions of this
paragraph (b), no portion of a Participant's salary
reduction shall be taken into account for purposes of
this computation if, prior to the end of such Year,
such portion (including any portion constituting a
deemed distribution pursuant to Section 6.06(c)
hereof) is withdrawn by, or otherwise distributed to,
the Participant prior to the Participant's attainment
of age fifty-nine and one-half (59-1/2), or if such
portion represents one or more contributions pursuant
to paragraph (a) of this Section 4.01 made prior to
the first day of the calendar quarter following the
date on which such Participant completes one (1) year
of Service.
For any Year, the Employers may decline to make any
portion of the contribution specified in this
paragraph (b) if the Employers determine that such
action is necessary to ensure that the discrimination
requirements of Section 401(a)(4) of the Code, as
amended, or the discrimination tests of Section
401(m) of the Code, as amended, are satisfied; or,
alternatively, in the case of a violation of the
discrimination tests of such Section 401(m), the
Employers may direct the Trustee to distribute
"excess aggregate contributions" (as defined in
Section 401(m)(6)(B) of such Code), to the
Participants by or on whose behalf such contributions
were made by the last day of the following year. All
additional matching contributions of the Employers
shall be paid to the Trustee and payment shall be
made not later
17
<PAGE> 18
than the time prescribed by law for filing the
consolidated Federal income tax return of the
Employers, including any extensions which have been
granted for the filing of such tax return.
(2) Discrimination Tests. With respect to Matching
Employer Contributions, the discrimination tests of
Code Section 401(m) are satisfied in the following
manner:
(a) For the Plan Year Ending March 31, 1998: (i)
the Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall not
exceed the Average Contribution Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the current Year
multiplied by 1.25; or (ii) the Average
Contribution Percentage for Eligible
Participants who are Highly Compensated
Employees for the Year shall not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the current Year multiplied by
two (2), provided that the Average
Contribution Percentage for Eligible
Participants who are Highly Compensated
Employees does not exceed the Average
Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the current Year by more than
two (2) percentage points.
(b) For Plan Years Ending After March 31, 1998:
(i) the Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall not
exceed the Average Contribution Percentage
for Eligible Participants who are Non-Highly
Compensated Employees for the prior Year
multiplied by 1.25; or (ii) the Average
Contribution Percentage for Eligible
Participants who are Highly Compensated
Employees for the Year shall not exceed the
Average Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the prior Year multiplied by
two (2), provided that the Average
Contribution Percentage for Eligible
Participants who are Highly Compensated
Employees does not exceed the Average
Contribution Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the prior Year by more than
two (2) percentage points.
In any year in which the Average Contribution
Percentage for Highly Compensated Employees who are
Eligible Participants does not satisfy the limitation
set forth above, the Committee shall reduce
allocations of Matching Employer Contributions to
such individuals in the manner provided in this
paragraph. First, the Committee shall calculate the
amount of "excess deferrals" and "excess
contributions," if any, under Section 4.03(d) and
shall make any required distributions thereunder.
Second, if the
18
<PAGE> 19
Committee then determines that the Plan continues to
fail the Average Contribution Percentage Test for the
Year, it shall reduce "excess aggregate
contributions," as adjusted for allocable income,
during the next Plan Year. For purposes of this
paragraph, "excess aggregate contributions" are the
amount of aggregate Matching Employer Contributions
allocated on behalf of the Highly Compensated
Employees which causes the Plan to fail the Average
Contribution Percentage Test. The Committee shall
reduce the "excess aggregate contributions" to the
Highly Compensated Employees in accordance with the
following steps:
(A) The Committee shall calculate total "excess
aggregate contributions" for the Highly
Compensated Employees.
(B) The Committee shall calculate the total
dollar amount by which the "excess aggregate
contributions" for the Highly Compensated
Employees must be reduced in order to
satisfy the Average Contribution Percentage
Test.
(C) The Committee shall calculate the total
dollar amount of Matching Employer
Contributions for each Highly Compensated
Employee.
(D) The Committee shall reduce the Matching
Employer Contributions of the Highly
Compensated Employee(s) with the highest
dollar amount of Matching Employer
Contributions by reducing such contributions
in such Highly Compensated Employee(s)
Account in an amount necessary to cause the
dollar amount of such Highly Compensated
Employee(s)' Matching Employer Contributions
to equal the sum of the Matching Employer
Contributions of the Highly Compensated
Employee(s) with the next highest dollar
amount of such contributions.
(E) If the total dollar amount reduced pursuant
to Step (D) above is less than the total
dollar amount of "excess aggregate
contributions," Step (D) shall be applied to
the Highly Compensated Employee(s) with the
next highest dollar amount of Matching
Employer Contributions until the total
amount of reduced Matching Employer
Contributions equals the total dollar amount
of "excess aggregate contributions"
calculated in Step (B).
(F) When calculating the amount of reduction
under Step (D), if a lesser reduction, when
added to any amounts already reduced under
this paragraph, would equal the total amount
of reductions necessary to permit the Plan
to satisfy the Average Contributions
Percentage Test under this Section
4.01(b)(2), the lesser amount shall be
reduced instead.
19
<PAGE> 20
(G) Any Matching Employer Contributions amount
reduced from a Highly Compensated Employee's
Account pursuant to Step (D) above, which
shall be treated as an "excess aggregate
contribution" (as defined in Code Section
401(m)(6)(B) and the regulations
thereunder), together with the income
allocable thereto, shall be distributed (or,
if not vested, forfeited) to the Participant
within two and one-half (2-1/2) months of
the beginning of the subsequent Plan Year.
For purposes of this subparagraph (2), an Eligible
Participant's "Contribution Percentage" shall mean
the ratio (expressed as a percentage), of the sum of
the Matching Employer Contributions under the Plan on
behalf of the Eligible Participant for the Year to
such Eligible Participant's Compensation for the
Year. The Contribution Percentage of an Eligible
Participant who has no Matching Employer
Contributions allocated to his Employer Contribution
Account for the Year shall equal zero (0). "Eligible
Participant" shall mean any Employee who is
authorized under the terms of the Plan to have
Matching Employer Contributions allocated to his
Employer Contribution Account for the Year, and shall
include any Employee who is eligible to make Salary
Reduction Contributions under the terms of the Plan
but elects not to make such contributions for the
Year, who is eligible to participate under the terms
of the Plan but elects not to participate pursuant to
the provisions of Section 3.03 hereof, or who is not
eligible to have Matching Employer Contributions
allocated to his Employer Contribution Account due to
the limitation on Additions set forth in Section 5.03
hereof. The "Average Contribution Percentage" is the
average (expressed as a percentage) of the
Contribution Percentages of all Eligible
Participants.
In the event that this Plan satisfies the
requirements of Code Section 401(a)(4) and 410(b)
only if aggregated with one or more other plans, or
if one or more other plans satisfy the requirements
of Code Section 401(a)(4) and 410(b) only if
aggregated with this Plan, then this subparagraph (2)
shall be applied by determining the Contribution
Percentage of Eligible Participants as if all such
plans were a single plan. If a Highly Compensated
Employee participates in two (2) or more plans of the
Employers to which matching contributions are made
then all such contributions shall be aggregated for
purposes of this subparagraph (2).
The income allocable to an "excess aggregate
contribution" (as defined in Code Section
401(m)(6)(B) and regulations thereunder) shall be
determined by multiplying the income allocable to a
Participant's Employer Contribution Account for the
Plan Year by a fraction, the numerator of which is
the "excess aggregate contributions" (as defined in
Code Section 401(m)(6)(B) and regulations promulgated
thereunder) for the Participant, as determined above,
and the denominator of which is the balance of the
Participant's Employer Contribution Account on the
last day of the Plan
20
<PAGE> 21
Year, reduced by the income allocable to such account
for the Plan Year and increased by the loss allocable
to such account for the Plan Year.
The Committee may, in its sole discretion, elect to
take contributions to a Participant's Salary
Reduction Contribution Account into account in
computing the Average Contribution Percentage, in the
manner and to the extent provided by Treasury
Department regulations promulgated under Code Section
401(m). However, in such a case, the Actual Deferral
Percentage tests under Section 4.02(e) must still be
computed and met separately, and in connection
therewith, no aggregation with Matching Employer
Contributions shall be permitted. Alternatively, the
Employer may, in its sole discretion, elect to make
qualified nonelective contributions, subject to the
vesting and distribution requirements under Sections
6.03 and 6.04 hereof, and in the manner and to the
extent provided by Treasury Department regulations
under Code Section 401(m), that would, in combination
with Matching Employer Contributions under the Plan,
satisfy the limitation set forth above. In any event,
said correction of the discrimination tests described
herein shall be made within twelve (12) months of the
end of the Year.
In order to prevent the multiple use of the
alternative limitations described in clause (ii) of
the first paragraph of this subparagraph (2) and in
Section 4.02(e)(ii) hereof, the limitation on the
multiple use of alternative limitations described in
Treasury Department regulations under Code Section
401(m) is specifically incorporated herein by
reference and shall apply to reduce the Salary
Reduction Contributions of, or Matching Employer
Contributions for, those Eligible Participants who
are Highly Compensated Employees, so that there is no
multiple use of said alternative limitations. Any
"excess contribution" (as defined in Code Section
401(k)(8)(B) and regulations thereunder) resulting
from a reduction in Salary Reduction Contributions
shall be distributed in accordance with Section
4.02(d), and any "excess aggregate contribution" (as
defined in Code Section 401(m)(6)(B) and regulations
thereunder) resulting from a reduction in Matching
Employer Contributions shall be distributed in
accordance with this Section. In lieu of said
reduction, the Employer may make such additional
contributions as described in this Section and
Section 4.02(d) hereof, in the manner and to the
extent provided under the Treasury Department
regulations under Code Sections 401(k) and 401(m), so
as to comply with the limitation on the multiple use
of alternative limitations.
(c) Limitations--All contributions of an Employer shall be made
from consolidated current earnings, as computed in accordance
with accepted accounting practices, before deduction of
Federal income taxes and reserves for contingencies, if any,
other than reasonable reserves of a type or character allowed
or allowable as deductions for Federal income tax purposes,
and before deduction of any contributions hereunder. In no
event, however, shall the Employer contributions for any Year
exceed the amount deductible for such Year for income tax
purposes (on a
21
<PAGE> 22
consolidated return basis) as a contribution to the Trust
under the applicable provisions of the Code. Further, no
Matching Employer Contributions shall be made for a Year
unless the Company's earnings per share for such Year are
sufficient to cover dividends to stockholders; provided,
however, that in no event will a Matching Employer
Contribution be made if the Company's net profits for such
Year are less than Thirty-Three and One-Third Cents ($.33-1/3)
per share.
4.02 Participant Salary Reduction
Upon commencement of Participation hereunder and in accordance with
such procedures as the Committee or Trustee shall prescribe, a
Participant shall enter into a salary reduction agreement with his
Employer. The terms of such salary reduction agreement shall provide
that the Participant agrees to accept a reduction in salary from the
Employer equal to any whole percentage of his Compensation per payroll
period, with such percentage to be not more than fourteen percent (14%)
of such Compensation.
In the event that the total reduction on behalf of any Participant for
any of his or her taxable years exceeds $7,000 (or such greater amount
as permitted under Treasury Department regulations to reflect cost-of-
living adjustments), such "excess deferrals" (as defined in Code
Section 402(g)(2) and regulations promulgated thereunder), together
with income allocable thereto, shall be distributed to the Participant
on whose behalf such reduction was made not later than April 15
following the close of the Participant's taxable year in which the
reduction was made, in the manner and to the extent provided under
regulations promulgated by the Secretary of Treasury; provided that
such excess deferrals shall first be reduced by any "excess
contributions" previously distributed for the Plan Year beginning in
that taxable year pursuant to Section 4.02(d) hereof.
The income allocable to an "excess deferral" (as defined in Code
Section 402(g)(2) and regulations promulgated thereunder) shall be
determined by multiplying the income allocable to a Participant's
Salary Reduction Contribution Account for the Plan Year by a fraction,
the numerator of which is the "excess deferrals" (as defined in Code
Section 402(g)(2) and regulations promulgated thereunder) of the
Participant, as determined above, and the denominator of which is the
balance of the Participant's Salary Reduction Contribution Account on
the last day of the Plan Year, reduced by the income allocable to such
account for the Plan Year and increased by the loss allocable to such
account for the Plan Year.
Amounts credited to a Participant's Salary Reduction Contribution
Account pursuant to Section 4.01(a) and this Section shall be one
hundred percent (100%) vested and non-forfeitable at all times.
Further, salary reduction agreements shall be governed by the
following:
(a) A salary reduction agreement shall apply to each payroll
period during which an effective salary reduction agreement is
on file with the Participant's Employer.
22
<PAGE> 23
(b) A salary reduction agreement shall be entered into by a
Participant upon commencement of Participation hereunder and
may be terminated or suspended by the Participant at any time
upon notice to the Committee. In addition, if a Participant
voluntarily terminates or suspends his salary reduction
agreement, he may enter into another salary reduction
agreement at any time upon notice to the Committee. Finally, a
Participant may amend his salary reduction agreement at any
time upon notice to the Committee.
(c) Terminations or suspensions of salary reduction agreements, as
well as new salary reduction agreements and amendments to
salary reduction agreements, shall be effective as of, and
shall not apply to any payroll period preceding, the payroll
period next following the date on which such termination,
suspension, salary reduction agreement or amendment is
received by the Committee.
(d) An Employer may amend or revoke its salary reduction agreement
with any Participant at any time if the Employer determines
that such revocation or amendment is necessary (i) to ensure
that a Participant's Additions for any Year will not exceed
the limitation of Section 5.03 hereof, (ii) to ensure that
Employer contributions made pursuant to Section 4.01 hereof
are fully deductible by the Employer for Federal income tax
purposes, (iii) to ensure that a Participant's Salary
Reduction Contributions do not exceed the limitation of
Section 4.02 hereof relating to "excess deferrals" (as defined
in Code Section 402(g)(2) and regulations promulgated
thereunder), or (iv) to ensure that the discrimination tests
of Code Section 401(k) are met for such Year.
In any case in which such discrimination tests are not met for
a Year, the Employer may, in the alternative, (i) direct the
Trustee to distribute "excess contributions" (as defined in
Code Section 401(k)(8)(B) and regulations promulgated
thereunder), together with the income allocable thereto, but
first reduced by any "excess deferrals" (as defined in Code
Section 402(g)(2) and regulations promulgated thereunder)
previously distributed pursuant to Section 4.02 hereof for the
taxable year ending within the Plan Year, to the Participant
on whose behalf such contributions were made within two and
one-half (2-1/2) months of the beginning of the subsequent
Year, or (ii) make such additional contributions, subject to
the vesting and distribution requirements of Sections 6.03 and
6.04 hereof, and in the manner and to the extent provided by
regulations under Code Section 401(k) promulgated by the
Secretary of Treasury, to the Salary Reduction Contribution
Accounts of Participants who are Non-Highly Compensated
Employees as to cause such tests to be satisfied. The Plan
shall forfeit Matching Employer Contributions attributable to
"excess contributions" (as defined in Code Section
401(k)(8)(B)) distributed under the foregoing clause (i) and
such amounts treated as Forfeitures shall be applied as
Forfeitures in accordance with Section 4.03 of the Plan. In
any event, said correction of the discrimination tests
described herein shall be made within twelve (12) months of
the end of the Year. In addition, an Employer may amend or
revoke its salary reduction agreement with any Participant at
any time if the Employer determines that such revocation or
amendment is necessary to ensure that the discrimination tests
of Code Section 401(m) are met for such Year.
23
<PAGE> 24
The income allocable to an "excess contribution" (as defined
in Code Section 401(k)(8)(B) and regulations promulgated
thereunder) shall be determined by multiplying the income
allocable to a Participant's Salary Reduction Contribution
Account for the Plan Year by a fraction, the numerator of
which is the "excess contributions" (as defined in Code
Section 401(k)(8)(B) and regulations promulgated thereunder)
of the Participant, as determined under Section 4.02(e), and
the denominator of which is the balance of the Participant's
Salary Reduction Contribution Account on the last day of the
Plan Year, reduced by the income allocable to such account for
the Plan Year and increased by the loss allocable to such
account for the Plan Year.
(e) The discrimination tests of Code Section 401(k) are satisfied
in the following manner:
(1) For the Plan Year Ending March 31, 1998: the Actual
Deferral Percentage for Eligible Participants who are
Highly Compensated Employees for the Year shall bear
a relationship to the Actual Deferral Percentage for
Eligible Participants who are Non-Highly Compensated
Employees for the current Year whereby (i) the Actual
Deferral Percentage for the group of Eligible
Participants who are Highly Compensated Employees for
the Year is not more than the Actual Deferral
Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the current Year
multiplied by 1.25; or (ii) the excess of the Actual
Deferral Percentage for the group of Eligible
Participants who are Highly Compensated Employees for
the Year over that of all Eligible Participants who
are Non-Highly Compensated Employees for the current
Year shall not be more than two (2) percentage
points, and the Actual Deferral Percentage for the
group of Eligible Participants who are Highly
Compensated Employees for the current Year is not
more than the Actual Deferral Percentage of all
Eligible Participants who are Non-Highly Compensated
Employees for the current Year multiplied by two (2).
(2) For Plan Years Ending After March 31, 1998: the
Actual Deferral Percentage for Eligible Participants
who are Highly Compensated Employees for the Year
shall bear a relationship to the Actual Deferral
Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the prior Year
whereby (i) the Actual Deferral Percentage for the
group of Eligible Participants who are Highly
Compensated Employees for the Year is not more than
the Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated Employees
for the prior Year multiplied by 1.25; or (ii) the
excess of the Actual Deferral Percentage for the
group of Eligible Participants who are Highly
Compensated Employees for the Year over that of all
Eligible Participants who are Non-Highly Compensated
Employees for the prior Year shall not be more than
two (2) percentage points, and the Actual Deferral
Percentage for the group of Eligible Participants who
are Highly Compensated Employees for the
24
<PAGE> 25
prior Year is not more than the Actual Deferral
Percentage of all Eligible Participants who are
Non-Highly Compensated Employees for the prior Year
multiplied by two (2).
If the allocations of the Participant Salary Reduction
Contributions do not satisfy the tests set forth above, the
Committee shall adjust the accounts of the Highly Compensated
Employees as provided in this paragraph. The Committee shall
distribute excess contributions, as adjusted for allocable
income, during the next Plan Year. However, the Employer will
incur an excise tax equal to 10% of the amount of excess
contributions for a Year if such contributions are not
distributed to the appropriate Highly Compensated Employees
during the first 2-1/2 months of the next Plan Year. For
purposes of this paragraph, "excess contributions" are the
amount of aggregate Salary Reduction Contributions which cause
the Plan to fail the Actual Deferral Percentage Test. The
Committee shall make distributions to each Highly Compensated
Employee of his or her respective share of excess
contributions pursuant to the following steps:
(A) The Committee shall calculate total excess
contributions for the Highly Compensated Employees.
(B) The Committee shall calculate the total dollar amount
by which the excess contributions for the Highly
Compensated Employees must be reduced in order to
satisfy the Actual Deferral Percentage Test.
(C) The Committee shall calculate the total dollar amount
of the Salary Reduction Contributions for each Highly
Compensated Employee.
(D) The Committee shall reduce the Salary Reduction
Contributions of the Highly Compensated Employee(s)
with the highest dollar amount of Salary Reduction
Contributions by refunding such contributions to such
Highly Compensated Employee(s) in an amount
sufficient to cause the dollar amount of such Highly
Compensated Employee(s)' Salary Reduction
Contributions to equal the dollar amount of the
Salary Reduction Contributions of the Highly
Compensated Employee(s) with the next highest dollar
amount of Salary Reduction Contributions.
(E) If the total dollar amount distributed pursuant to
Step (D) above is less than the total dollar amount
of excess contributions, Step (D) shall be applied to
the Highly Compensated Employee(s) with the next
highest dollar amount of Salary Reduction
Contributions until the total amount of distributed
Salary Reduction Contributions equals the total
dollar amount of excess contributions calculated in
Step (B).
(F) When calculating the amount of a distribution under
Step (D), if a lesser reduction, when added to any
amounts already distributed under this paragraph,
would equal the total amount of distributions
necessary to permit the Plan to satisfy the Actual
Deferral Percentage Test under this Section 4.03(e),
the lesser amount shall be distributed from the Plan.
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For purposes of this paragraph (e), the "Actual Deferral
Percentage" for a specified group of Eligible Participants for
a Year shall be the average of the ratios (expressed as a
percentage and calculated separately for each Eligible
Participant in such group) of (i) the amount of each such
Eligible Participant's Salary Reduction Contributions actually
paid over to the Trust on behalf of the Participant for such
Year, to (ii) such Participant's Compensation for the Year.
Salary Reduction Contributions shall be taken into account for
the Year if such contributions (i) relate to Compensation that
would have been received during the Year (but for the deferral
election) or relate to Compensation attributable to services
performed during the Year that would have been received within
2-1/2 months after the close of the Year (but for the deferral
election), and (ii) are allocated to the Participant's account
as of a date within the Year in accordance with Treasury
Department regulations under Code Section 401(k). The Actual
Deferral Percentage of an Eligible Participant for whom no
Salary Reduction Contributions are paid to the Trust on his
behalf for the Year shall equal zero (0). "Eligible
Participant" shall mean any Employee who is authorized under
the terms of the Plan to have contributions allocated to his
Salary Reduction Contribution Account for all or a portion of
the Year, and shall include any Employee who is eligible to
make Salary Reduction Contributions under the terms of the
Plan but elects not to make such contributions for the Year,
who is eligible to participate under the terms of the Plan but
elects not to participate pursuant to the provisions of
Section 3.03 hereof, whose right to make Salary Reduction
Contributions has been suspended under Section 4.02(h)(1)
hereof, or who is not eligible to have Salary Reduction
Contributions allocated to his Salary Reduction Contribution
Account due to the limitations on Additions set forth in
Section 5.03 hereof.
In the event that this Plan satisfies the requirements of Code
Section 401(a)(4) or 410(b) only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of Code Section 401(a)(4) or 410(b) only if
aggregated with this Plan, then this paragraph (e) shall be
applied by determining the Contribution Percentage of Eligible
Participants as if all such plans were a single plan. If a
Highly Compensated Employee participates in two (2) or more
plans of the Employers to which salary reduction contributions
are made then all such contributions shall be aggregated for
purposes of this paragraph (e).
(f) An Employer may revoke its salary reduction agreements with
all Participants or amend its salary reduction agreements with
all Participants on a uniform basis, if it determines that it
will not have sufficient current profits to make the
contributions to the Plan required by the salary reduction
agreements.
(g) Except as provided above, a salary reduction agreement
applicable to any given Year, once made, may not be revoked or
amended by the Participant or the Employer.
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(h) No amounts may be withdrawn by a Participant from his Salary
Reduction Contribution Account prior to termination of
employment with the Employers except to the extent of an
election made in accordance with the following:
(1) If the Participant elects a withdrawal prior to the
date on which he attains age 59-1/2, such withdrawal
(i) may not include any earnings accrued after 1988
and (ii) will require the consent of the Committee.
Such consent shall be given only if the Participant
is able to demonstrate financial hardship. The
Committee will determine that the Participant has
properly demonstrated financial hardship only if the
Participant demonstrates that the purpose of the
withdrawal is to meet his immediate and heavy
financial needs, the amount of the withdrawal does
not exceed such financial needs, and the amount of
the withdrawal is not reasonably available from other
resources. The Participant will be considered as
having demonstrated that the purpose of the
withdrawal is to meet his immediate and heavy
financial needs only if he represents that the
distribution is on account of --
(A) medical expenses (as described in Section
213(d) of the Code) incurred (or required to
be paid in advance to obtain medical care)
by the Participant, his spouse or any of his
dependents;
(B) the purchase (excluding mortgage payments)
of a principal residence for the
Participant;
(C) the payment of tuition and related
educational fees for the next twelve (12)
months of post-secondary education for the
Participant, his spouse, children or
dependents; or
(D) foreclosure on the mortgage of, or eviction
from, the Participant's principal residence.
Moreover, the Participant will be considered as
having demonstrated that the amount of the withdrawal
is unavailable from his other resources and in an
amount not in excess of that necessary to satisfy his
immediate and heavy financial needs only if each of
the following requirements is satisfied:
(AA) the Participant represents that the
distribution is not in excess of the amount
of his immediate and heavy financial needs;
and
(BB) the Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available to him under all plans
currently maintained by the Employers.
In the event of any withdrawal by a Participant
pursuant to this subparagraph (1), such Participant's
Salary Reduction Contributions under this Section
4.02 and his contributions under all other employee
plans maintained by the Employers shall be suspended
for a period of twelve (12) months following
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<PAGE> 28
such withdrawal, and the Participant may authorize no
further contributions under this Section 4.02 until
the first business day immediately following such
twelve (12) month period of suspension. Withdrawal
elections under this subparagraph (1) may be made at
any time but not more frequently than once each Plan
Year. All withdrawals under this subparagraph shall
be made in accordance with the provisions of Section
6.04 hereof, relating to the form of payment. To the
extent elected by a Participant, any hardship
withdrawal made pursuant to this subparagraph (1) to
such Participant shall be increased by an amount
equal to the lesser of (i) all Federal, state and
local income taxes and associated penalties
(including, if applicable, the additional income tax
described in Section 6.04(a) hereof) imposed with
respect to such hardship withdrawal or (ii) the
amount, if any, in such Participant's Salary
Reduction Contribution Account in excess of such
hardship withdrawal.
(2) If the Participant or Former Participant elects a
withdrawal on or after the date on which he attains
age 59-1/2, such a withdrawal will not require the
consent of the Committee and may be made for any
purpose and at any time; provided that any such
withdrawal must be in the form of a lump sum and must
be made at the same time that withdrawals are made
pursuant to the provisions of Section 6.07(a) hereof
and in accordance with the requirements set forth
therein.
(3) Any withdrawal by a Participant may not exceed the
balance then credited to his Salary Reduction
Contribution Account. Withdrawal elections shall be
made on written forms supplied by the Committee for
that purpose. If the Participant is married, his
spouse must specifically consent to a withdrawal
hereunder within a period which is ninety (90) days
prior to the date on which the withdrawal is made.
(4) Subject to the foregoing provisions, a Former
Participant who is entitled to a distribution under
Section 6.04 but who has not yet elected to receive
such distribution may elect a withdrawal under this
Section 4.02(h) prior to the time that such
distribution is made if such Former Participant
elects to take a distribution as of the end of the
next calendar quarter in the form of a lump sum in
accordance with Section 6.04 hereof.
4.03 Disposition of Forfeitures
If, upon a Severance from Service, a Participant is not entitled to a
distribution of the entire balance in his Employer Contribution
Account, then as of the date on which such Severance from Service
occurs, his Account shall be divided into two portions, one
representing the nonforfeitable portion, and the other representing the
Forfeiture portion, of such Account. His Employer Contribution Account
shall continue to receive Income allocations pursuant to Section
5.02(a) until the nonforfeitable portion of such Account is
distributed. The Participant shall receive a distribution of the
nonforfeitable portion of such Account pursuant to Section 6.04.
Notwithstanding the foregoing, prior to a Participant's sixty-fifth
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<PAGE> 29
(65th) birthday, written consent of the Participant is required before
commencement of the distribution of any portion of his Account if the
present value of the nonforfeitable total interest in his Account is
greater than $5,000.
As of the date on which such payment occurs, the Forfeiture portion of
such Account shall be transferred to a special interest-bearing
"forfeiture management account". As of the end of the Year in which
such transfer occurs, and except as otherwise provided below, such
forfeiture management account shall be applied to reduce the Matching
Employer Contributions to the Plan under Section 4.01(b) hereof;
provided that, to the extent that the amount in the forfeiture
management account available to reduce Matching Employer Contributions
for the Year exceeds such Matching Employer Contributions and all
restoration amounts described below, such excess shall be applied in
payment of Trustee fees and other administrative expenses of the Plan
and Trust.
If the Participant returns to the employ of an Employer before
incurring five (5) consecutive one (l)-year Breaks in Service, he shall
have the right to repay to the Trust Fund the amount of a prior lump
sum payment within the five (5)-year period beginning on his
Re-employment Commencement Date. If such repayment is made, then, as of
the end of the Year of repayment, the amount of his prior Forfeiture
shall be restored and, together with the amount repaid, shall become
the beginning balance in his new Employer Contribution Account. Such
restoration shall be made first from the forfeiture management account.
To the extent that such forfeiture management account is insufficient
for this purpose, restoration shall be effected by the making of a
special Employer contribution for such Year of repayment.
Notwithstanding the preceding provisions of this Section 4.03, a
Participant who, upon a Severance from Service, is entitled to no
portion of his Employer Contribution Account, shall be deemed to have
received a distribution of zero from such Account at the earliest date
on which a distribution could be made under Section 6.04 hereof.
4.04 Rollover Contributions; Transfers
With the approval of the Committee, any Employee who was a participant
in another plan of deferred compensation which is qualified under
Section 401(a) of the Code may contribute to this Plan a portion or all
of the amount of any "qualifying rollover distribution" received by him
from such other plan. Any amounts so contributed and related earnings
or losses shall be held in a separate Rollover Account established for
such Participant. Such Rollover Account shall be one hundred percent
(100%) vested in the Participant, shall share in Income allocations in
accordance with Section 5.02(a), but shall not share in Employer
contribution or Forfeiture allocations. The total amount in such
Rollover Account shall be distributed in accordance with Article VI.
The term "qualifying rollover distribution" is herein defined as any
amount which, pursuant to Section 402(a)(5) of the Code, may be
transferred to this Plan and thereby not be includible in the gross
income of the recipient for the taxable year in which paid.
The Trustee, upon approval of the Committee, may accept a transfer from
the trustee of another qualified plan or trust of all or any of the
assets held by such plan or trust for some
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<PAGE> 30
or all participants therein; provided, however, that no such transfer
shall be accepted for any one particular individual participant in
another qualified plan or trust. In the case of a transfer to the
Trustee of all or any of the assets of another qualified plan or trust
by the trustee of the transferor plan, the amounts so transferred shall
be allocated to the individual accounts of each Participant who was
also a participant in such other qualified plan. In no event shall a
Participant's vested interest in such a transferred account be less
after such transfer than it was prior to such transfer. Furthermore,
with respect to such transferred amounts, the vesting schedule of this
Plan shall be the same or better than the vesting schedule under the
transferor plan, or, in the alternative, this Plan may provide that the
entire value of such transferred amounts shall be fully vested and
nonforfeitable in the Participant affected.
The Trustee, upon direction from the Committee, may transfer any amount
available for distribution to a Participant hereunder by reason of
termination of employment to another trust forming part of a pension,
profit sharing or stock bonus plan maintained by such Participant's new
employer and represented by such employer in writing as meeting the
requirements of Section 401(a) of the Code, provided that the trust to
which such transfer is to be made permits such transfers.
4.05 Contributions by Participants
Except as provided in Section 4.04 hereof, Participants are neither
required nor permitted to make any contributions under this Plan.
4.06 Special Rules under USERRA
Notwithstanding any provision of this Plan to the contrary,
contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Code Section
404(u).
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.01 Individual Accounts
The Committee shall create and maintain adequate records to disclose
the interest in the Trust of each Participant, Former Participant, 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. When appropriate, a Participant, Former Participant,
and Beneficiary shall have three separate accounts--an Employer
Contribution Account, a Salary Reduction Contribution Account, and a
Rollover Account. 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.
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5.02 Account Adjustments
The accounts of Participants, Former Participants, and Beneficiaries
shall be adjusted in accordance with the following:
(a) Income--As of each Valuation Date, the Income of the Trust
Fund shall be allocated in the following manner:
(1) The Income (hereinafter, the "Fund Income")
attributable to each investment fund (hereinafter,
"Fund") established pursuant to Article VII hereof
(including, as a separate investment fund, assets, if
any, invested at the discretion of the Trustee) shall
first be determined.
(2) Fund Income shall then be allocated pro rata to the
accounts of Participants, Former Participants, and
Beneficiaries who had unpaid balances in their
accounts invested in such Fund on such Valuation
Date.
(b) Salary Reduction Contributions--The Employer contribution for
a Year made on behalf of a Participant pursuant to Section
4.01(a) hereof shall be allocated to the Participant's Salary
Reduction Contribution Account as of a date no later than the
last day of such Year.
(c) Matching Employer Contributions--As of a date no later than
the last day of each Year, the Matching Employer Contributions
for the Year made pursuant to Section 4.01(b) hereof plus the
Forfeitures which are being applied to reduce such Matching
Employer Contributions for the Year, shall be allocated to the
Employer Contribution Accounts of Participants for whom such
contributions were made. The amount allocated to each such
Participant's Employer Contribution Account shall be the
amount determined in accordance with such Section 4.01(b)
5.03 Maximum Additions
(a) Notwithstanding anything contained herein to the contrary, the
total additions made to the Salary Reduction Account and
Employer Contribution Account of a Participant for any Year
shall not exceed the lesser of (1) or (2), where--
(1) is the greater of $30,000 (or such greater amount as
permitted under Internal Revenue Service rulings to
reflect increases in the cost-of-living) or
one-fourth (1/4) of the dollar limitation in effect
under Section 415(b)(1)(A) of the Code; and
(2) is 25% of the Participant's total compensation for
such Year.
For purposes of this Section 5.03, a Participant's "total
compensation" includes earned income, wages, salaries, fees
for professional service and other amounts received for
personal services actually rendered in the course of
employment with his Employer (including, but not limited to,
commissions paid to salesmen,
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<PAGE> 32
compensation for services on the basis of a percentage of
profits, commissions on insurance premiums, tips, and bonuses)
and excluding the following: (i) Employer contributions to a
plan of deferred compensation to the extent contributions are
not included in the gross income of a Participant for the
taxable year in which contributed, or on behalf of a
Participant to a simplified employee pension plan under
Section 219(b)(7) of the Code, and any distributions from a
plan of deferred compensation whether or not includible in the
gross income of the Participant when distributed, provided
that a Participant's "total compensation" shall include his
Salary Reduction Contributions and contributions to a plan
described in Code Section 125; (ii) amounts realized from the
exercise of a non-qualified stock option, or when restricted
stock (or property) held by a Participant becomes freely
transferable or is no longer subject to a substantial risk of
forfeiture; (iii) amounts realized from the sale, exchange or
other disposition of stock acquired under a qualified stock
option; (iv) other amounts which receive special tax benefits,
or contributions made by the Employer (whether or not under a
salary reduction agreement) towards the purchase of an annuity
contract described in Section 403(b) of the Code (whether or
not the contributions are excludible from the gross income of
the Participant); and (v) compensation in excess of $150,000
(as automatically increased in accordance with Treasury
Department regulations to reflect cost-of-living adjustments).
(b) If such Additions exceed the limitations set forth in
paragraph (a), above, such excess shall be deemed to arise
solely from Matching Employer Contributions described in
Section 4.01(b) hereof and the amount of such contributions
constituting the excess shall be treated as a Forfeiture for
the Year. In the event that all or any portion of such excess
cannot be treated as a Forfeiture for such Year because of the
application of paragraph (a), above, the amount which cannot
be so treated shall be held in a suspense account until it can
be so treated in a subsequent Year, and no further Additions
shall be made to Participants' accounts until the amount in
such suspense account has been fully disposed of.
Notwithstanding any provision to the contrary herein
contained, if this Plan terminates during any Year in which
such suspense account cannot be disposed of because of the
application of paragraph (a), above, the amount in the
suspense account shall revert to the Employers.
(c) Notwithstanding the foregoing, the otherwise permissible
annual Additions for any Participant under this Plan may be
further reduced to the extent necessary, as determined by the
Committee, to prevent disqualification of the Plan under
Section 415 of the Code, which imposes the following
additional limitations on the benefits payable to Participants
who also may be participating in another tax-qualified
pension, profit-sharing, savings or stock bonus plan
maintained by an Employer: If an individual is a Participant
at any time in both a defined benefit plan and a defined
contribution plan maintained by the Employer, the sum of the
defined benefit plan fraction and the defined contribution
plan fraction for any Plan Year may not exceed 1.0. The
defined benefit plan fraction for any Plan Year is a fraction,
the numerator of which is the Participant's projected annual
benefit under the Plan (determined at the close of the Plan
Year) and the denominator of which is the lesser of (i) 1.25
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<PAGE> 33
multiplied by $90,000 or such greater amount permitted by
Internal Revenue Service regulations to reflect cost-of-living
adjustments, or (ii) 1.4 multiplied by one hundred percent
(100%) of the Participant's average monthly compensation, as
defined in the applicable Income Tax regulations under Section
415 of the Code, during the three consecutive years when the
total compensation paid to him was highest. The defined
contribution plan fraction for any Plan Year is a fraction,
the numerator of which is the sum of the annual Additions to
the Participant's accounts in such Plan Year and for all prior
Plan Years and the denominator of which is the sum of the
applicable maximum amounts of annual Additions which could
have been made under Section 415(c) of the Code for such Plan
Year and for all prior years of such Participant's employment
(assuming for this purpose, that said Section 415(c) had been
in effect during such prior years). The applicable maximum
amount for any Plan Year shall be equal to the lesser of (i)
1.25 multiplied by the dollar limitation in effect for such
Plan Year under Section 415(c)(1)(A) of the Code, or (ii) 1.4
multiplied by twenty five percent (25%) of the Participant's
total compensation for such Plan Year.
(d) For purposes of this limitation, all defined benefit plans of
the Employer, whether or not terminated, are to be treated as
one defined benefit plan and all defined contribution plans of
the Employer, whether or not terminated, are to be treated as
one defined contribution plan. The extent to which a
Participant's annual Additions under the Plan shall be reduced
as compared to the extent to which his annual benefits or
Additions under any other plans shall be reduced in order to
achieve compliance with the limitations of Section 415 of the
Code shall be determined by the Committee in such a manner as
to maximize the aggregate benefits payable to such
Participant. If such reduction is under this Plan, the
Committee shall advise the affected Participant of any
additional limitations on his annual benefits required by this
paragraph.
(e) The above limitations are intended to comply with the
provisions of Section 415 of the Code, so that the maximum
benefits provided by plans of the Employers shall be exactly
equal to the maximum amounts allowed under Section 415 of such
Code and regulations thereunder. If there is any discrepancy
between the provisions of Section 415 of such Code and the
provisions of this Plan, such discrepancy shall be resolved in
such a way as to give full effect to the provisions of such
Section 415.
(f) For purposes of this Plan, the "limitation year" shall be the
Plan Year.
(g) Notwithstanding the foregoing, the combined plan limitations
as defined in Code Section 415(e) and described in paragraphs
(c) and (d) above shall not be applied to limitation years
beginning after December 31, 1999.
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<PAGE> 34
5.04 Top-Heavy Provisions
The following provisions shall become effective in any Year in which
the Plan is determined to be a Top-Heavy Plan:
(a) Determination of Top-Heavy Status--The Plan will be considered
a Top-Heavy Plan for the Year if as of the last day of the
preceding Plan Year, (the "determination date"):
(1) The value of the sum of Employer Contribution Accounts and
Salary Reduction Contribution Accounts (but not including any
allocations to be made as of such last day of the Year except
contributions actually made on or before that date and
allocated pursuant to Section 5.02(b) or (c)) of Participants
who are Key Employees and their Beneficiaries exceeds sixty
percent (60%) of the value of the sum of Employer Contribution
Accounts and Salary Reduction Contribution Accounts (but not
including any allocations to be made as of such last day of
the Year, except contributions actually made on or before that
date and allocated pursuant to Section 5.02(b) or (c)) of all
Participants and their Beneficiaries (the "60% Test") or (2)
the Plan is part of a required aggregation group (within the
meaning of Code Section 416(g)(2)) and the required
aggregation group is top-heavy. However, and notwithstanding
the results of the "60% Test", the Plan shall not be
considered a Top-Heavy Plan for any Year in which the Plan is
a part of a required or permissive aggregation group (within
the meaning of Section 416(g)(2)) which is not top-heavy. For
purposes of the "60% Test" for any Plan Year, (i) the value of
the Employer and Salary Reduction Contribution Accounts of
individuals who are former Key Employees shall not be taken
into account, (ii) the value of the Employer and Salary
Reduction Contribution Accounts of individuals who have not
rendered services to the Employers for the five (5)-year
period ending on the determination date shall not be taken
into account, and (iii) any contribution of eligible rollover
contributions, or any plan-to-plan transfer described in
Section 4.05 hereof, shall not be treated as part of the
Participant's Employer or Salary Reduction Contribution
Account.
(2) Aggregation shall be determined as follows:
(A) Aggregation Group-
(i) Required Aggregation-The term
"aggregation group" means-
(I) each plan of the Employer in
which a Key Employee is a
participant, and
(II) each other plan of the Employer
that enables any plan described
in subclause (I) to meet the
requirements of Section
401(a)(4) or 410.
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<PAGE> 35
(ii) Permissive Aggregation-The Employer
may treat any plan not required to
be included in an aggregation group
under clause (i) as being part of
such group if such group would
continue to meet the requirements of
Code Sections 401(a)(4) and 410 with
such plan being taken into account.
(B) Top-Heavy Group-The term "top-heavy group"
means any aggregation group if-
(i) the sum (as of the determination
date) of-
(I) the present value of
the cumulative accrued benefits for
Key Employees under all defined
benefit plans included in such
group, and
(II) the aggregate of the
accounts of Key Employees under all
defined contribution plans included
in such group,
(ii) exceeds sixty percent (60%) of a
similar sum determined for all
Employees.
(b) Minimum Allocations--Notwithstanding the provisions of
Sections 5.02(b) and (c), for any Year during which the Plan
is deemed a Top-Heavy Plan, the amount of Employer
contribution for the Year to be allocated to the Employer
Contribution Account of each Participant who is not a Key
Employee and who is employed by the Employers on the last day
of the Year shall not be less than the lesser of (i) three
percent (3%) of the Participant's total compensation for the
Year or (ii) the percentage obtained by dividing the amount
allocated to the Salary Reduction Contribution Account and
Employer Contribution Account of the most highly compensated
Key Employee for the Year by so much of the total compensation
of such Key Employee for the Year as does not exceed $150,000
(as automatically increased in accordance with Treasury
Department regulations); provided,, however, that an amount
allocated to the Salary Reduction Contribution Account of a
Participant who is not a Key Employee shall not be considered
in determining the minimum allocation for such Participant
hereunder; provided, further, that the requirements of this
paragraph (b) shall not apply to the extent that the minimum
allocations set forth herein are made under another defined
contribution plan maintained by the Employer.
(c) Impact on Maximum Benefits--For any Plan Year in which the
Plan is a Top-Heavy Plan, Section 5.03 shall be read by
substituting the number 1.00 for the number 1.25 wherever it
appears therein; provided, however, that where the Plan is not
a "Super" Top-Heavy Plan (as defined in Code Section
416(h)(2)(B)), no such substitution shall occur if, for such
Plan Year, the minimum allocations determined pursuant to
paragraph (b) of this Section are determined by reference to
four percent (4%), in lieu of three percent (3%), of total
compensation.
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(d) "Total Compensation" Defined--The term "total compensation" as
used in this Section 5.04 shall have the same meaning as that
set forth in Section 5.03(a) hereof.
ARTICLE VI
BENEFITS
6.01 Retirement or Disability
(a) In General--If a Participant's employment with his Employer is
terminated at or after his normal retirement date, or if his
employment is terminated prior to his normal retirement date
because of Disability, he shall be entitled to receive the
entire amount then in each of his accounts in accordance with
Section 6.04. The "entire amount" in a Participant's accounts
at termination of employment shall include any Employer
contribution to be made pursuant to Section 4.01 for the Year
of termination of employment but not yet allocated. If a
Participant remains in employment after his normal retirement
date, he shall continue to be treated as an active Participant
hereunder. For purposes of this Plan, the term "normal
retirement date" means, with respect to a Participant, the
first day of the month coincident with, or immediately
following, his attainment of age sixty-five (65).
(b) Required Beginning Date--Except to the extent that Section
1121(d)(4) of the Tax Reform Act of 1986 provides otherwise, a
Participant must commence receipt of his benefits not later
than April 1 of the calendar year following the calendar year
in which he attains age seventy and one-half (70-1/2);
provided, however, that no such commencement shall be required
in the case of a Participant who attains age seventy and
one-half (70-1/2) after calendar year 1996 (other than a
Participant who is a five-percent (5%) owner described in
Section 401(a)(9)(C)(ii)(I) of the Code). Notwithstanding the
preceding sentence (i) a Participant who has attained age
seventy and one-half (70-1/2) prior to calendar year 1997
shall have the right to elect the commencement of his benefit
payments on April 1 of the calendar year following the
calendar year in which he attains such age, and (ii) a
Participant currently receiving benefit payments solely
because of the attainment of such age prior to calendar year
1997 shall have the right to elect the suspension of such
benefit payments until the date specified in Section 6.04
hereof (determined without regard to this Section 6.01). Any
such election shall be made at such time and in such manner as
the Committee shall determine in a nondiscriminatory manner.
6.02 Death
In the event that the termination of employment of a Participant is
caused by his death, the entire amount then in each of his accounts
shall be paid to his Beneficiary in accordance with Section 6.04 after
receipt by the Committee of acceptable proof of death. The "entire
amount" in a Participant's accounts at termination of employment shall
include any Employer contributions to be made pursuant to Section 4.01
for the Year of termination of employment but not yet allocated.
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6.03 Termination for Other Reasons
If a Participant's employment with his Employer is terminated before
his normal retirement date for any reason other than Disability or
death, the Participant shall be entitled to the sum of:
(a) The entire amount credited to both his Salary Reduction
Contribution Account (including any Employer contributions to
be made to such account for the Year of termination of
employment but not yet allocated) and his Rollover Account,
plus
(b) An amount equal to the "vested percentage" of his Employer
Contribution Account balance (including any Employer
contributions to be made to such account for the Year of
termination of employment but not yet allocated). Such vested
percentage shall be determined in accordance with the
following schedule:
<TABLE>
<CAPTION>
Vested Forfeited
Years of Service Percentage Percentage
---------------- ---------- ----------
<S> <C> <C>
Less than 1 0% 100%
1 but less than 2 20% 80%
2 but less than 3 40% 60%
3 but less than 4 60% 40%
4 but less than 5 80% 20%
5 or more 100% 0%
</TABLE>
Payment of benefits due under this Section shall be made in accordance
with Section 6.04. Notwithstanding any provision to the contrary herein
contained, a Participant shall be fully vested in his Employer
Contribution Account balance upon his attainment of age sixty-five
(65). In the event that the Plan is amended to change the vesting
schedule set forth above, a Participant with at least three (3) years
of Service shall have the right to elect that his vested percentage be
determined pursuant to the vesting schedule in effect prior to the
amendment.
6.04 Payments of Benefits
The following provisions shall apply with respect to the method and
timing of benefit payments hereunder:
(a) In General--Payment of a Participant's (or Former
Participant's) benefits upon entitlement under Sections
6.01-6.03 hereof shall commence as soon as administratively
feasible following the receipt by the Trustee of the last
contribution made on behalf of such Participant or Former
Participant; provided that payment in no event shall commence
earlier than the end of the month immediately following the
month in which such entitlement occurs; provided further that
payment prior to the date set forth in the immediately
following sentence shall be made only upon completion by the
recipient of a distribution request in such form as may be
specified from time to time by the Committee; provided further
that, in the case of a
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<PAGE> 38
Participant or Former Participant whose vested account balance
exceeds $5,000, such account balance shall not be distributed
without the consent of the Participant or Former Participant,
unless such Participant or Former Participant has attained age
sixty-five (65). However, and notwithstanding anything to the
contrary herein contained, payment of his benefits must
commence no later than the earlier of (i) the required
beginning date, if any, applicable to the Participant or
Former Participant pursuant to Section 6.01(b) hereof, or (ii)
unless a Participant or Former Participant elects a later date
(which can be no later than the date, if any, specified in
clause (i) of this sentence), the sixtieth (60th) day after
the latest of the close of the Year in which the Participant
attains age sixty-five (65) or incurs a Severance from
Service; provided that, in the case of (ii) of this sentence,
if the amount of a payment cannot be ascertained by such
sixtieth (60th) day, a payment retroactive to such date may be
made no later than sixty (60) days after the earliest date on
which the amount of such payment can be ascertained. If a
Participant or Former Participant elects that a benefit
payment be made to him before his attainment of age fifty-nine
and one-half (59-1/2), the Participant or Former Participant
shall be advised by the Committee that an additional income
tax may be imposed equal to ten percent (10%) of the portion
of the amount so received which is included in his gross
income for the taxable year of receipt unless, among others,
(i) such distribution is made on account of death or
Disability, (ii) such distribution is part of a scheduled
series of substantially equal periodic payments for the life
of the Participant or Former Participant (or the joint life
expectancies of the Participant or Former Participant and his
Beneficiary, (iii) such distribution is used to pay medical
expenses to the extent deductible under Section 213 of the
Code (determined without regard to whether the Participant or
Former Participant itemizes deductions), (iv) such
distribution is made to an alternate payee pursuant to a
"qualified domestic relations order" described in Section 9.03
hereof, or (v) such distribution is made to a Participant by
reason of "early retirement." For purposes of the preceding
sentence, a Participant who terminates employment on or after
his attainment of age 55 for reasons other than death,
Disability or normal retirement shall be treated as having
separated from service by reason of early retirement and shall
be entitled to that portion of his benefit determined pursuant
to Section 6.03 hereof, to be payable, subject to the
foregoing provisions of this Section 6.04, as of the date of
his early retirement. The Committee shall direct the Trustee
to distribute the Participant's (or Former Participant's)
benefits in any one of the following two methods, as elected
by the recipient:
(1) In a lump sum; or
(2) In periodic payments of substantially equal amounts
for a specified number of years not in excess of ten
(10) (or, if less, the life expectancy of the
Participant or Former Participant or the joint life
expectancy of the Participant or Former Participant
and his Beneficiary designated in accordance with
Section 6.05), in which event the unpaid balance
shall continue to receive an Income allocation in
accordance with Section 5.02(a). Such periodic
payments shall be made not less frequently than
annually. If periodic payments are made to a
Participant or Former Participant prior to
38
<PAGE> 39
his death and if the Participant or Former
Participant dies before receiving all payments to
which he was entitled, the remaining payments shall
be made at least as rapidly to his designated
Beneficiary. If the Participant or Former Participant
dies before payment of his benefits has commenced,
his benefits must be distributed in full within five
(5) years from the date of his death, unless such
distribution is made to the Participant's (or Former
Participant's) designated Beneficiary, in which case,
if distribution begins no later than one (1) year
after the date of the Participant's (or Former
Participant's) death, distribution may be made over
ten (10) years (or, if less, the life expectancy of
the designated Beneficiary).
Notwithstanding any provision of this Section 6.04 to
the contrary, a Participant, Former Participant, or
Beneficiary who has previously elected to receive
benefits in periodic payments of substantially equal
amounts for a specified number of years may, at any
time, elect to have the remaining balance of such
benefits paid in a lump sum as soon as practicable
following such election. The amount which a
Participant, Former Participant, or Beneficiary is
entitled to receive at any time and from time to time
may be paid in cash or in securities, or in any
combination thereof, provided no discrimination in
value results therefrom. In all cases, distributions
from the Plan will be made in accordance with the
requirements of Section 401(a)(9) of the Code and the
Treasury Department regulations thereunder, including
the minimum distribution incidental benefit
requirements.
(b) Special Rules Applicable to Married
Participants--Notwithstanding the preceding provisions of this
Section 6.04, the following special rules shall apply with
respect to payments made to or on behalf of a married
Participant or a married Former Participant who received a
transfer to this Plan of assets (other than a transfer made
pursuant to a qualifying rollover distribution described in
Section 4.04 hereof), from a plan described in Section
401(a)(11)(b)(i) and (ii) of the Code:
(1) Pre-Retirement Survivor Annuity. Any death benefits
payable pursuant to Section 6.02 hereof, shall be
paid to the Participant's (or Former Participant's)
surviving spouse in the form of a life annuity;
provided, however, that, at any time prior to the
Participant's (or Former Participant's) death, the
Participant or Former Participant and his spouse may,
by written election acknowledging the effect of such
election, direct that such death benefits be payable
to one or more other Beneficiaries and in a form
provided under paragraph (a) above.
(2) Qualified Joint and Survivor Annuity. Any benefits
payable under Section 6.01 or 6.03 hereof, shall be
paid in the form of a joint and survivor annuity
under which a monthly amount is payable to the
Participant or Former Participant for his life, and,
upon his death, no less than fifty percent (50%), nor
more than one hundred percent (100%), of such monthly
amount is payable to his spouse, if surviving, for
the remainder of the spouse's life; provided,
however, that within a period beginning ninety (90)
days prior to
39
<PAGE> 40
the date on which benefits commence, the Participant
or Former Participant and his spouse may, by a
written election acknowledging the effect of such
election, direct that the Participant's (or Former
Participant's) benefits be paid in a form provided
under paragraph (a) above.
(c) Distribution of Small Amounts--Notwithstanding the preceding
provisions of this Section 6.04, a Participant's (or Former
Participant's) benefits hereunder shall in all events be paid
in a lump sum if the total of such benefits is $5,000 or less;
provided, however, that unless otherwise requested by the
distributee, no payment shall be made prior to the end of the
year in which entitlement to such payment occurs.
(d) Direct Rollovers--Notwithstanding any provision of the Plan to
the contrary, the recipient of all or any portion of a
Participant's (or Former Participant's) benefits, other than a
Beneficiary who is not a surviving spouse, may elect, in the
manner prescribed by the Committee, to have any portion of an
eligible rollover distribution paid directly to 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 will accept the eligible rollover distribution, as
specified by the recipient; provided, however, that a
recipient who is a surviving spouse may elect a direct
rollover to an individual retirement account or individual
retirement annuity only. For purposes of this Section 6.04(d),
an "eligible rollover distribution" shall mean any
distribution of all or any portion of the balance to the
credit of the recipient, except (i) a 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 recipient or the joint lives (or joint life
expectancies) of the recipient and the recipient's designated
Beneficiary, or for a specified period of ten (10) years or
more; (ii) a distribution to the extent such distribution is
required under Section 401(a)(9) of the Code; or (iii) the
portion of any distribution that is not includible in gross
income.
6.05 Designation of Beneficiary
Each Participant or Former Participant from time to time may designate
any person or persons (who may be designated contingently or
successively and who may be an entity other than a natural person) as
his Beneficiary or Beneficiaries to whom his Plan benefits are paid if
he dies before receipt of all such benefits. Each Beneficiary
designation shall be on a form prescribed by the Committee and will be
effective only when filed with the Committee during the Participant's
(or Former Participant's) lifetime. Each Beneficiary designation filed
with the Committee will cancel all Beneficiary designations previously
filed with the Committee. Except as otherwise provided below, the
revocation of a Beneficiary designation, no matter how effected, shall
not require the consent of any designated Beneficiary.
If any Participant or Former Participant fails to designate a
Beneficiary in the manner provided herein, or if the Beneficiary
designated by a deceased Participant or Former Participant dies before
him or before complete distribution of the Participant's (or Former
40
<PAGE> 41
Participant's) benefits, the Committee shall direct the Trustee to
distribute such Participant's (or Former Participant's) benefits (or
the balance thereof) to his surviving spouse or, if he has no surviving
spouse, then, in the Committee's discretion, to either:
(a) any one or more of the next of kin of such Participant or
Former Participant, and in such proportions as the Committee
determines; or
(b) the estate of the last to die of such Participant or Former
Participant and his Beneficiary or Beneficiaries.
Notwithstanding any provision to the contrary herein contained, the
designation, by a married Participant or a married Former Participant,
of a Beneficiary other than his spouse shall require the written
consent of such spouse. The consent must name the designated
Beneficiary or Beneficiaries who are to be the recipients of the
Participant's (or Former Participant's) benefits. The spouse's consent
must acknowledge the effect of the election and be witnessed by a
notary public or Plan representative.
6.06 Loans to Participants
The Committee is authorized to establish a program of Participant loans
from the Trust Fund. A loan shall be made to a Participant upon his
representation that he is subject to a financial emergency, and the
Committee shall be entitled to rely conclusively on any such
representation.
In addition to such rules and regulations as the Committee may adopt,
all loans shall comply with the following rules and conditions:
(a) An application for a loan by a Participant shall be made in
writing to the Committee, whose action thereon shall be final.
If the Participant is married, his spouse must specifically
consent to the application within a period which is ninety
(90) days prior to the date on which the loan is made.
(b) The period of repayment for any loan shall be arrived at by
agreement between the Committee and the borrower, but such
period in no event shall exceed five (5) years; provided,
however, that such period may exceed five (5) years where the
proceeds of the loan are to be used to acquire, construct,
reconstruct or substantially rehabilitate a dwelling which is
to be used within a reasonable time as the principal residence
of the Participant or a dependent of the Participant. The loan
(i) must be in level payments, made not less frequently than
quarterly, over the term of the loan, with privilege of
prepayment, in whole (but not in part), at any time, and (ii)
prior to termination of the borrowing Participant's
employment, shall be repaid by payroll deduction. Within the
limitations of the immediately preceding sentence, the precise
manner and frequency of payments shall be determined by the
Committee at the time that the loan is made.
(c) Each loan made to a Participant shall be secured by (i) an
assignment and pledge of not more than 50%, as determined
immediately after the origination of the loan as of
41
<PAGE> 42
the current Valuation Date, of his right, title and interest
in and to his Salary Reduction Contribution Account plus the
vested portion of his Employer Contribution Account, and (ii)
his promissory note for the amount of the loan, including
interest payable to the order of the Trustee. A "default"
shall occur upon the failure by a Participant to make payment
under the loan by the end of the calendar quarter following
the calendar quarter in which the due date of such payment
occurred; provided that in the case of a Participant who is on
an Authorized Leave of Absence for medical reasons, no default
shall occur until the end of a twelve (12)-month period
beginning on such due date. Upon default, the entire remaining
principal balance of the loan shall be treated as a deemed
distribution to the Participant from the Plan, and the amount
of such deemed distribution shall be reported to the Internal
Revenue Service on Form W2-P or Form 1099-R, as appropriate.
(d) Each loan shall bear a rate of interest equal to the "prime
lending rate" of the Trustee bank at the time such loan is
made.
(e) No loan shall be made in an amount less than $1,000. In
addition with respect to a Participant, no more than two loans
may be outstanding at any time.
(f) No amount shall be loaned to a Participant which would cause
his outstanding loan balance under the Plan to exceed the
lesser of (1) or (2), where-
(1) is $50,000 reduced by the excess of the highest
outstanding balance of loans to such Participant over
the twelve (12) month period ending on the day before
the loan is made over the outstanding balance of
loans to such Participant on the date the loan is
made, and
(2) is one-half (1/2) of the value of his Salary
Reduction Contribution Account plus the vested
portion of his Employer Contribution Account as of
the current Valuation Date.
(g) No distribution (other than a hardship withdrawal described in
Section 4.02(h)(1) hereof) shall be made to any Participant or
Former Participant or to a Beneficiary of any such Participant
unless and until all unpaid loans of such Participant have
been liquidated. Foreclosure against a Participant's Employer
Contribution Account and Salary Reduction Contribution Account
shall occur immediately upon default and shall result in the
reduction of such account balances to the extent of unpaid
principal; provided that there shall be no foreclosure against
a Participant's account balances until the occurrence
hereunder of an event permitting distribution of such account
balances.
(h) Loans shall be made available to Former Participants who are
parties-in-interest only as required by ERISA and Department
of Labor guidelines.
(i) Any loan made prior to April 1, 1999 under the Plan shall
continue to be governed by the provisions of the Plan as in
effect prior to such date and applicable to such loan.
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<PAGE> 43
(j) The Committee may from time to time promulgate such additional
procedures as it deems necessary, in its sole discretion, for
the governance of Plan loans; provided that such procedures
shall be consistent with the foregoing provisions of this
Section 6.06 and shall be applied in a uniform and
nondiscriminatory manner.
(k) Loan repayments will be suspended under this Plan, as
permitted under Code Section 414(u)(4), on behalf of those
Participants who are on an Authorized Leave of Absence because
of "qualified military service," as defined in Code Section
414(u).
6.07 Other Withdrawals
(a) Paid to a Participant--A Participant or Former Participant may
elect to receive a lump-sum distribution of the vested amount
in his Employer Contribution Account at any time after such
Participant or Former Participant attains age fifty-nine and
one-half (59-1/2). A Former Participant who is entitled to a
distribution under Section 6.04 but who has not yet elected to
receive such distribution may elect a withdrawal under this
Section 6.07 prior to the time that such distribution is made
if such Former Participant elects to take a distribution in
the form of a lump sum at the time specified in, and in
accordance with, Section 6.04 hereof. In addition, a
Participant or Former Participant may elect to receive a
lump-sum distribution of his Rollover Account at any time upon
a showing of financial hardship (as described in Section 4.02
hereof). Withdrawal elections under this Section 6.07 shall be
made on written forms supplied by the Committee for that
purpose. If the Participant or Former Participant is married,
his spouse must specifically consent to a withdrawal hereunder
within a period which is ninety (90) days prior to the date on
which the withdrawal is made.
(b) Paid to an Alternate Payee--Any amounts payable, pursuant to
Section 414(p) of the Code, to an "alternate payee" (as
defined in such Section) shall be distributed to such payee in
a lump sum as soon as reasonably possible after such payee's
right to such distribution is established by a "qualified
domestic relations order" (as defined in such Section);
provided that if the amount distributable to such payee
exceeds $5,000, such payee must consent to any such
distribution made prior to his or her attainment of age
sixty-five (65). An alternate payee shall be entitled to
receive a distribution pursuant to this paragraph (b) even
though the associated Participant may be ineligible to receive
a distribution of any portion or all of his vested account
balances hereunder and notwithstanding that the related
qualified domestic relations order may mandate distribution to
such alternate payee at a later date. This paragraph (b) is
intended to govern the timing of a distribution to an
alternate payee and shall not be construed to increase the
amount of such distribution.
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<PAGE> 44
ARTICLE VII
TRUST FUND
7.01 General
All contributions under this Plan shall be paid to the Trustee and
deposited in the Trust Fund. All assets of the Trust Fund, including
investment income, shall be retained for the exclusive benefit of
Participants, Former Participants, and Beneficiaries and shall be used
to pay benefits to such persons or to pay administrative expenses of
the Plan and Trust Fund to the extent not paid by the Employers and,
except as provided in Section 5.03(b) and below, shall not revert to or
inure to the benefit of the Employers.
Notwithstanding anything herein to the contrary and pursuant to Section
403(c)(2) of ERISA, upon an Employer's request, a contribution which
was made by reason of a mistake of fact, or conditioned upon the
initial qualification of the Plan or upon the deductibility of the
contribution under Section 404 of the Code, shall be returned to the
Employer within one year after the payment of the contribution, the
denial of the qualification, or the disallowance of the deduction (to
the extent disallowed), whichever is applicable. It is hereby
acknowledged that (i) all contributions hereunder are expressly
conditioned on the deductibility of such contributions and (ii) the
continued existence of the Plan is conditioned on its
tax-qualification.
The Trustee shall generally have authority for the management and
investment of assets held in the Trust, to the extent provided in the
Trust; provided that a Participant, Former Participant, or Beneficiary
shall have the right, in accordance with procedures prescribed by the
Committee, to direct the Trustee as to the investment of assets in his
Accounts. Effective January 1, 1999, any such investment direction by a
Participant, Former Participant, or Beneficiary shall consist solely of
the right to direct the extent to which assets shall be invested in the
following investment media: (i) an equity fund consisting of the common
stock of the Company; (ii) the Putnam Voyager Fund; and/or (iii) any
one or more of the funds offered by Chase Bank of Texas, N.A. and known
as the Chase Vista Prime Money Market Fund I, the Chase Vista U.S.
Treasury Income Fund A, the Chase Vista Balanced Fund-A, the Chase Core
Equity Fund and the Chase Vista International Equity Fund A. Effective
January 1, 1999, (i) each Participant, Former Participant, or
Beneficiary shall be permitted to indicate the extent to which assets
shall be invested in accordance with procedures provided by the
Committee for this purpose, and (ii) subject to such requirements as
may be necessary to effectuate an orderly transition, a Participant,
Former Participant, or Beneficiary may elect that allocations to his
Accounts be invested to a different extent as of any business day
during a Plan Year. Requests to vary the extent to which allocations
are to be invested in the above media shall be made in accordance with
such procedures as the Committee shall prescribe. Should a Participant,
Former Participant, or Beneficiary fail to provide the Trustee with the
investment directives described herein, the assets in such individual's
Accounts shall be invested as determined by the Trustee in accordance
with the provisions of the Trust Agreement.
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<PAGE> 45
A Participant, Former Participant or Beneficiary is entitled to direct
the exercise of voting rights with respect to the shares of Company
common stock allocated to said Participant's (or Former Participant's
or Beneficiary's) Accounts (with the number of such allocated shares to
be determined as of any Valuation Date by dividing the then price per
share into the total value of all shares allocated to such Accounts).
The Committee shall obtain, as to all such common stock, directions
from such Participant, Former Participant, or Beneficiary as to how
said shares are to be voted. The Committee shall furnish such
directions to the Trustee, who shall then vote the shares accordingly.
If, however, within a reasonable period of time prior to any meeting of
stockholders of the Company as may be specified by the Committee, no
instructions shall have been received by the Committee from such
Participant(s), Former Participant(s) or Beneficiary(ies), the
Committee shall instruct the Trustee to vote, in person or by proxy,
such shares in the manner determined by the Committee in its sole
discretion.
The Trustee shall vote any unallocated shares of Company common stock
held by it pursuant to written directions from the Committee.
7.02 Special Rules for HMGI Stock Fund.
Notwithstanding the preceding, a Participant's Accounts may be invested
in an equity fund consisting of the common stock of Halter Marine
Group, Inc. ("HMGI"). All shares of HMGI common stock (the "HMGI
Shares") received by the Plan as a result of the Company's distribution
of HMGI Shares to its shareholders shall be held in a separate equity
fund (the "HMGI Stock Fund"). For purposes of this Plan, such
distribution shall be treated as a distribution of income on the shares
of common stock of the Company held by the Trust. Except as otherwise
provided in this Section 7.02, the HMGI Shares shall be treated in the
same manner as shares of the Company's common stock.
(a) The HMGI Shares shall be allocated among the Participants'
Accounts on a pro-rata basis based on the number of shares of
common stock of the Company allocated to each Participant's
Accounts as of March 31, 1997; provided, however, that all
such allocations shall be in whole shares of HMGI common
stock. To the extent that a Participant would be allocated a
fractional HMGI Share on March 31, 1997, such fraction will be
sold and the proceeds shall be invested in shares of the
common stock of the Company.
(b) The Trustee shall not purchase any additional HMGI Shares. If
the Trustee receives a distribution of cash dividends on the
HMGI Shares held in the HMGI Stock Fund, such amounts shall be
reinvested as if they were an additional contribution to the
Plan in accordance with each Participant's most recent
investment election.
(c) A Participant may on any business day direct the Trustee to
liquidate any portion of his investment in the HMGI Stock Fund
and reinvest the proceeds in another investment media;
provided, however, that such Participant shall not thereafter
be permitted to invest such funds in the HMGI Stock Fund.
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<PAGE> 46
ARTICLE VIII
ADMINISTRATION
8.01 Allocation of Responsibility Among Fiduciaries for Plan and Trust
Administration
The Fiduciaries shall have only those specific powers, duties,
responsibilities and obligations as are specifically given them under
this Plan or the Trust. In general, the Employers shall have the sole
responsibility for making the contributions provided for under Section
4.01, and the Company shall have the sole authority to appoint and
remove the Trustee, members of the Committee and any Investment Manager
which may be provided for under the Trust and to amend or terminate, in
whole or in part, this Plan or the Trust. The Committee shall have the
sole responsibility for the administration of this Plan, which
responsibility is specifically described in this Plan and the Trust.
The Trustee shall have responsibility for the administration of the
Trust and the management of the assets held under the Trust, to the
extent provided in the Trust and Article VII hereof. Each Fiduciary
warrants that any directions given, information furnished, or actions
taken by it shall be in accordance with the provisions of the Plan or
the Trust, as the case may be, authorizing or providing for such
direction, information or action. Furthermore, each Fiduciary may rely
upon any such direction, information or action of another Fiduciary as
being proper under this Plan or the Trust, and is not required under
this Plan or the Trust to inquire into the propriety of any such
direction, information or action. It is intended under this Plan and
the Trust that each Fiduciary shall be responsible for the proper
exercise of its own powers, duties, responsibilities and obligations
and shall not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
8.02 Appointment of Committee
The Plan shall be administered by a Profit Sharing Committee consisting
of at least three persons who shall be appointed by and serve at the
pleasure of the Board of Directors of the Company. All usual and
reasonable expenses of the Committee may be paid in whole or in part by
the Employers, and any expenses not paid by the Employers shall be paid
by the Trustee out of the principal or income of the Trust Fund. Any
members of the Committee who are Employees shall not receive
compensation with respect to their services for the Committee.
8.03 Claims Procedure
The Committee shall make all determinations as to the right of any
person to a benefit. Any denial by the Committee of a claim for
benefits under the Plan by a Participant, Former Participant, or
Beneficiary shall be stated in writing by the Committee and delivered
or mailed to the Participant, Former Participant, or Beneficiary; and
such notice shall set forth the specific reasons for the denial,
written to the best of the Committee's ability in a manner that may be
understood without legal or actuarial counsel. In addition, the
Committee shall afford a reasonable opportunity to any Participant,
Former Participant, or Beneficiary whose claim for benefits has been
denied for a review of the decision denying the claim.
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<PAGE> 47
8.04 Records and Reports
The Committee shall exercise such authority and responsibility as it
deems appropriate in order to comply with ERISA and governmental
regulations issued thereunder relating to records of Participant's
Service, account balances and the percentage of such account balances
which are nonforfeitable under the Plan; notifications to Participants
and Former Participants; annual registration with the Internal Revenue
Service; and annual reports to the Department of Labor.
8.05 Other Committee Powers and Duties
The Committee shall have such duties and powers as may be necessary to
discharge its responsibilities hereunder, including, but not by way of
limitation, the following:
(a) to construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of
payment of any benefits hereunder;
(b) to prescribe procedures to be followed by Participants, Former
Participants, or Beneficiaries filing applications for
benefits;
(c) to prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(d) to receive from the Employers and from Participants or Former
Participants such information as shall be necessary for the
proper administration of the Plan;
(e) to furnish the Employer, upon request, such annual reports
with respect to the administration of the Plan as are
reasonable and appropriate;
(f) to receive, review and keep on file (as it deems convenient or
proper) reports of the financial condition, and of the
receipts and disbursements, of the Trust Fund from the
Trustee; and
(g) to appoint or employ individuals to assist in the
administration of the Plan and any other agents it deems
advisable, including legal and actuarial counsel, the Trustee
or any other Fiduciary.
Subject to the right of the Committee to amend the Plan pursuant to the
last paragraph of Section 3.01 hereof, the Committee shall have no
power to add to, subtract from or modify any of the terms of the Plan,
or to change or add to any benefits provided by the Plan, or to waive
or fail to apply any requirements of eligibility for a benefit under
the Plan.
8.06 Rules and Decisions
The Committee may adopt such rules as it deems necessary, desirable, or
appropriate. All rules and decisions of the Committee shall be
uniformly and consistently applied to all
47
<PAGE> 48
Participants and Former Participants in similar circumstances. When
making a determination or calculation, the Committee shall be entitled
to rely upon information furnished by a Participant, Former
Participant, or Beneficiary, the Employers, the legal counsel of the
Employers, or the Trustee.
8.07 Committee Procedures
The Committee may act at a meeting or in writing without a meeting. The
Committee shall elect one of its members as chairman, appoint a
secretary, who may or may not be a Committee member, and advise the
Trustee of such actions in writing. The secretary shall keep a record
of all meetings and forward all necessary communications to the
Employers or the Trustee. The Committee may adopt such bylaws and
regulations as it deems desirable for the conduct of its affairs. All
decisions of the Committee shall be made by the vote of the majority
including actions in writing taken without a meeting. A dissenting
Committee member who, within a reasonable time after he has knowledge
of any action or failure to act by the majority, registers his dissent
in writing delivered to the other Committee members, the Employers and
the Trustee, shall not be responsible for any such action or failure to
act.
8.08 Authorization of Benefit Payments
The Committee shall issue directions to the Trustee concerning all
benefits which are to be paid from the Trust Fund pursuant to the
provisions of the Plan, and warrants that all such directions are in
accordance with this Plan.
8.09 Application and Forms for Benefits
The Committee may require a Participant or Former Participant to
complete and file with the Committee an application for a benefit and
all other forms approved by the Committee, and to furnish all pertinent
information requested by the Committee. The Committee may rely upon all
such information so furnished it, including the Participant's (or
Former Participant's) current mailing address. The failure by a
Participant or Former Participant to file a claim for benefits will not
result in the forfeiture of any benefits which are otherwise
nonforfeitable under this Plan.
8.10 Facility of Payment
Whenever, in the Committee's opinion, a person entitled to receive any
payment of a benefit or installment thereof hereunder is under a legal
disability or is incapacitated in any way so as to be unable to manage
his financial affairs, the Committee may direct the Trustee to make
payments to such person or to his legal representative or to a relative
or friend of such person for his benefit, or the Committee may direct
the Trustee to apply the payment for the benefit of such person in such
manner as the Committee considers advisable. Any payment of a benefit
or installment thereof in accordance with the provisions of this
Section shall be a complete discharge of any liability for the making
of such payment under the provisions of the Plan.
48
<PAGE> 49
8.11 Indemnification
The Employers shall indemnify and hold harmless each member of the
Committee against all loss, cost, expenses or damages, including
attorneys' fees and court costs: (a) occasioned by any act or omission
to act in connection with the responsibility of such member for the
administration of this Plan; or (b) arising under or by virtue of the
provisions of Part 4, Subtitle B, Title I of ERISA; provided, however,
that the Employers shall not indemnify and hold harmless any such
member against any loss, cost, expenses and damages occasioned by the
gross negligence or willful misconduct of such member.
8.12 Unclaimed Benefits
During the time when a benefit hereunder is payable to any Participant,
Former Participant, or Beneficiary, the Committee, upon request by the
Trustee, or at its own instance, shall mail by registered or certified
mail to such Participant, Former Participant, or Beneficiary, at his
last known address, a written demand for his then address and for
satisfactory evidence of his continued life, or both. If such
information is not furnished to the Committee within twelve (12) months
from the mailing of such demand, then the Committee may, in its sole
discretion, declare such benefit, or any unpaid portion thereof,
suspended, with the result that such unclaimed benefit shall be treated
as a Forfeiture for the Year within which such twelve (12) month period
ends, but shall be subject to restoration through an Employer
contribution if the lost Participant, Former Participant, or
Beneficiary later files a claim for such benefit.
ARTICLE IX
MISCELLANEOUS
9.01 Nonguarantee of Employment
Nothing contained in this Plan shall be construed as a contract of
employment between any Employer and any Employee, or as a right of any
Employee to be continued in the employment of any Employer, or as a
limitation on the right of an Employer to discharge any of its
Employees, with or without cause.
9.02 Rights to Trust Assets
No Employee or Beneficiary shall have any right to, or interest in, any
assets of the Trust Fund upon termination of his employment or
otherwise, except as provided from time to time under this Plan, and
then only to the extent of the benefits payable under the Plan to such
Employee out of the assets of the Trust Fund. All payments of benefits
as provided for in this Plan shall be made solely out of the assets of
the Trust Fund and none of the Fiduciaries shall be liable therefor in
any manner.
49
<PAGE> 50
9.03 Nonalienation of Benefits
Except as provided below, no Participant, Former Participant or
Beneficiary shall have the right to anticipate, assign, alienate,
charge, encumber, sell or transfer any benefit provided under the Plan,
and the Trustee will not recognize any anticipation, assignment,
alienation, charge, sale or transfer. Furthermore, a benefit under the
Plan shall not be subject to attachment, charge, encumbrance,
garnishment, levy, execution or other legal or equitable process. The
foregoing restrictions shall not apply in the following case(s):
(a) Participant Loans. If a Participant, Former Participant or
Beneficiary who has become entitled to receive payment of
benefits under this Agreement is indebted to the Trustee by
virtue of a participant loan the Committee may direct the
Trustee to pay the indebtedness and charge it against the
account balance of the Participant, Former Participant or
Beneficiary.
(b) Distributions Under Domestic Relations Orders. Nothing
contained in this Plan shall prevent the Trustee, under the
direction of the Committee, from complying with the provisions
of a qualified domestic relations order, as defined in Code
Section 414(p).
(c) Distributions Under Certain Judgments and Settlements. Nothing
contained in this Plan shall prevent the Trustee from
complying with a judgment or settlement which requires the
Trustee to reduce a Participant's benefits under the Plan by
an amount that the Participant is ordered or required to pay
to the Plan if each of the following criteria are satisfied:
(1) The order or requirement must arise-
(A) under a judgment or conviction for a crime
involving the Plan;
(B) under a civil judgment (including a consent
order or decree) entered by a court in an
action brought in connection with an actual
or alleged violation of Part 4 of Title I of
ERISA; or
(C) under a settlement agreement with either the
Secretary of Labor or the Pension Benefit
Guaranty Corporation and the Participant in
connection with an actual or alleged
violation of Part 4 of Title I of ERISA by a
fiduciary or any other person.
(2) The decree, judgment, order or settlement must
expressly provide for the offset of all or part of
the amount ordered or required to be paid to the Plan
against the Participant's benefits under the Plan.
(3) To the extent that (i) the survivor annuity
requirements of Code Section 401(a)(11) apply to the
portion of the Participant's account balance which
will be reduced or offset, and (ii) the Participant
has a spouse at the time at which the reduction or
offset is to be made--
50
<PAGE> 51
(A) (i) the spouse must consent to the reduction
or offset in writing, as witnessed by a
notary public or a plan representative, (ii)
it must be established that such consent may
not be obtained for any of the reasons
outlined in Code Section 417(a)(2)(B), or
(iii) the spouse must previously have
executed an election to waive his or her
right to a qualified joint and survivor
annuity or a qualified preretirement annuity
in accordance with the requirements of Code
Section 417(a);
(B) the decree, judgment, order or settlement
must require the spouse to pay an amount to
the Plan in connection with a violation of
Part 4 of Title I of ERISA; or
(C) the decree, judgment, order or settlement
must provide that the spouse shall retain
his or her right to receive a survivor
annuity calculated as provided in Code
Section 401(a)(13)(D).
9.04 Discontinuance of Employer Contributions
In the event of the permanent discontinuance of contributions to the
Plan by the Employers, the accounts of all Participants shall, as of
the date of such discontinuance, become nonforfeitable.
9.05 Certain Social Security Increases
In the case of a Participant or his Beneficiary who is receiving
benefits under this Plan, or in the case of a Former Participant, such
benefits shall not be decreased by reason of any increase in the
benefit levels payable under Title II of the Social Security Act or any
increase in the wage base under such Title II occurring after the date
of such Participant's termination of employment.
9.06 Effective Date for Certain Changes under the Uniformed Services
Employment and Reemployment Rights Act of 1994 and Small Business Job
Protection Act of 1996:
In addition to other limitations set forth in the Plan and
notwithstanding the provisions of Section 2.01(j) relating to the
Effective Date of the Plan, the following provisions of the Plan shall
be effective as of the dates stated below:
(a) Sections 4.06 and 6.06(k) shall be effective as of December 2,
1994;
(b) Sections 2.01(h), 2.01(u), 4.01(b)(2), 4.02(e), and 6.01(b)
shall be effective for Plan Years beginning after March 31,
1997; and
(c) Sections 4.01(b)(1) and 5.03(a) shall be effective for Plan
Years beginning after March 31, 1998.
51
<PAGE> 52
ARTICLE X
AMENDMENTS AND ACTION BY EMPLOYER
10.01 Amendments
The Company reserves the right to make from time to time any amendment
or amendments to this Plan which do not cause any part of the Trust
Fund to be used for, or diverted to, any purpose other than the
exclusive benefit of Participants, Former Participants, or their
Beneficiaries; provided, however, that the Company may make any
amendment it determines necessary or desirable with or without
retroactive effect, to comply with ERISA. In addition, no amendment
hereof, unless made to secure the approval of the Internal Revenue
Service or other governmental bureau or agency shall operate
retroactively to reduce or divest the then vested interest hereunder of
any Participant, Former Participant, or Beneficiary or to reduce or
divest any benefit payable hereunder unless all Participants, Former
Participants, and Beneficiaries then having vested interests or benefit
payments affected thereby shall consent to such amendment.
10.02 Action by Employer
Any action by an Employer under this Plan may be by resolution of its
Board of Directors, or by any person or persons duly authorized by
resolution of said Board to take such action.
ARTICLE XI
SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS
11.01 Successor Employer
In the event of the dissolution, merger, consolidation or
reorganization of an Employer, provisions may be made by which the Plan
and Trust will be continued by the successor; and, in that event, such
successor shall be substituted for the Employer under the Plan. The
substitution of the successor shall constitute an assumption of Plan
liabilities by the successor and the successor shall have all of the
powers, duties and responsibilities of the Employer under the Plan.
11.02 Plan Assets
In the event of any merger or consolidation of the Plan with, or
transfer in whole or in part of the assets and liabilities of the Trust
Fund to, another trust fund held under any other plan of deferred
compensation maintained or to be established for the benefit of all or
some of the Participants of this Plan, the assets of the Trust Fund
applicable to such Participants shall be transferred to the other trust
fund only if:
(a) each Participant would (if either this Plan or the other plan
then terminated) receive a benefit immediately after the
merger, consolidation or transfer which is equal to or
52
<PAGE> 53
greater than the benefit he would have been entitled to
receive immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
(b) resolutions of the Board of Directors of the Employer under
this Plan, or of any new or successor employer of the affected
Participants, shall authorize such transfer of assets; and, in
the case of a new or successor employer of the affected
Participants, its resolutions shall include an assumption of
liabilities with respect to such Participants' inclusion in
the new employer's plan; and
(c) such other plan and trust are qualified under Sections 401(a)
and 501(a) of the Code.
ARTICLE XII
PLAN TERMINATION
12.01 Right to Terminate
In accordance with the procedures set forth in this Article, the
Company may terminate the Plan at any time. In addition, each
Participating Employer may, at any time, discontinue its participation
in the Plan, in which event the Plan shall be considered terminated as
to such Participating Employer. In the event of the dissolution,
merger, consolidation or reorganization of an Employer, the Plan shall
terminate with respect to such Employer unless the Plan is continued by
a successor to the Employer in accordance with Section 11.01.
12.02 Partial Termination
Upon termination of the Plan with respect to a group of Participants
which constitutes a partial termination of the Plan, the Trustee shall,
in accordance with the directions of the Committee, allocate and
segregate for the benefit of the Participants with respect to whom the
Plan is being terminated the proportionate interest of such
Participants in the Trust Fund. The funds so allocated and segregated
shall be used by the Trustee to pay benefits to or on behalf of
Participants in accordance with Section 12.03. The termination of
active participation by those individuals described in Addendum A shall
not constitute a partial termination of the Plan.
12.03 Liquidation of the Trust Fund
Upon complete or partial termination of the Plan, the accounts of all
Participants affected thereby shall become fully vested, and the
Committee shall direct the Trustee to distribute the assets remaining
in the Trust Fund, after payment of any expenses properly chargeable
thereto, to Participants, Former Participants and Beneficiaries in
proportion to their respective account balances.
53
<PAGE> 54
12.04 Manner of Distribution
Distributions after termination of the Plan shall be made in a form and
manner consistent with the provisions of Section 6.04 hereof.
IN TESTIMONY WHEREOF, TRINITY INDUSTRIES, INC. has caused this
instrument to be executed in its name and on its behalf, by the officer
thereunto duly authorized, this 29 day of April, 1999, effective as of April 1,
1999 (except as otherwise indicated herein).
TRINITY INDUSTRIES, INC.
By: /s/ Jack Cunningham
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Industries Transportation, Inc, on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY INDUSTRIES
TRANSPORTATION, INC.
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Transit Mix Concrete & Materials Company, on this 29 day of April,
1999, effective as of April 1, 1999.
TRANSIT MIX CONCRETE &
MATERIALS COMPANY
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
54
<PAGE> 55
Joined by Standard Forged Products, Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
STANDARD FORGED PRODUCTS, INC.
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Syro, Inc., on this 29 day of April, 1999, effective as of April 1,
1999.
SYRO, INC.
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Airport Equipment Co., Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY AIRPORT
EQUIPMENT CO., INC.
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
55
<PAGE> 56
Joined by Trinity Materials, Inc., on this 29 day of April, 1999, effective as
of April 1, 1999.
TRINITY MATERIALS, INC.
By: /s/ Michael G. Fortado
----------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
56
<PAGE> 57
Joined by Transit Mix Concrete & Materials Company of Louisiana, on this 29 day
of April, 1999, effective as of April 1, 1999.
TRANSIT MIX CONCRETE &
MATERIALS COMPANY OF LOUISIANA
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
57
<PAGE> 58
Joined by Trinity Mobile Railcar Repair, Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY MOBILE RAILCAR
REPAIR, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Casteel, Inc., on this 29 day of April, 1999, effective as of
April 1, 1999.
TRINITY CASTEEL, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
58
<PAGE> 59
Joined by Trinity Rail, Inc., on this 29 day of April, 1999, effective as of
April 1, 1999.
TRINITY RAIL, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Rail Services, Inc., on this 29 day of April, 1999, effective
as of April 1, 1999.
TRINITY RAIL SERVICES, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity EE, Inc., on this 29 day of April, 1999, effective as of April
1, 1999.
TRINITY EE, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
59
<PAGE> 60
Joined by Trinity Marine Products, Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY MARINE PRODUCTS, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Fitting & Flange Group, Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY FITTING & FLANGE GROUP, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Difco, Inc., on this 29 day of April, 1999, effective as of
April 1, 1999.
TRINITY DIFCO, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
60
<PAGE> 61
Joined by Difco, Inc., on this 29 day of April, 1999, effective as of April 1,
1999.
DIFCO, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Trinity Industries Buffalo, Inc., on this 29 day of April, 1999,
effective as of April 1, 1999.
TRINITY INDUSTRIES BUFFALO, INC.
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
Joined by Transit Mix Baytown, on this 29 day of April, 1999, effective as of
April 1, 1999.
TRANSIT MIX BAYTOWN
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
61
<PAGE> 62
Joined by McConway & Corporation on this 29 day of April, 1999, effective as of
April 1, 1999.
McCONWAY & TORLEY CORPORATION
By: /s/ Michael G. Fortado
---------------------------------------
Title: Vice President
ATTEST:
/s/ Neil O. Shoop
- ---------------------------------
Assistant Secretary
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Jack Cunningham, Vice President of TRINITY INDUSTRIES, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
62
<PAGE> 63
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY INDUSTRIES
TRANSPORTATION, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRANSIT MIX CONCRETE & MATERIALS
COMPANY.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
63
<PAGE> 64
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of STANDARD FORGED PRODUCTS, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of SYRO, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
64
<PAGE> 65
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY AIRPORT EQUIPMENT CO.,
INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
65
<PAGE> 66
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY MATERIALS, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
66
<PAGE> 67
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRANSIT MIX CONCRETE & MATERIALS
COMPANY OF LOUISIANA.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
67
<PAGE> 68
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY MOBILE RAILCAR REPAIR,
INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
68
<PAGE> 69
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY CASTEEL, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY RAIL, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
69
<PAGE> 70
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY RAIL SERVICES, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY EE, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
70
<PAGE> 71
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY MARINE PRODUCTS, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY FITTING & FLANGE GROUP,
INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
71
<PAGE> 72
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY DIFCO, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of DIFCO, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
72
<PAGE> 73
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRINITY INDUSTRIES BUFFALO, INC.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of TRANSIT MIX BAYTOWN.
/s/ Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
73
<PAGE> 74
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 29th day of April,
1999, by Michael G. Fortado, Vice President of McCONWAY & TORLEY CORPORATION
Patricia A. Theiss
-------------------------------------------
Notary Public in and for
My Commission Expires: the State of Texas
1/28/00
- ---------------------------------
Print Name of Notary:
(SEAL) /s/ Patricia A. Theiss
-------------------------------------------
74
<PAGE> 75
APPENDIX I
<TABLE>
<CAPTION>
Location Company/Division L1 L2 L4
- -------- ---------------- -- -- --
<S> <C> <C> <C>
Russellville, AR Fittings/Flange 65 06 370
</TABLE>
Key
Level 1 (L1) = Company/Employer
Level 2 (L2) = Payroll Designation
Level 4 (L4) = Plant Location
75
<PAGE> 1
EXHIBIT 99.2
AMENDMENT NO. 8 TO
SUPPLEMENTAL PROFIT SHARING PLAN
FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES
WHEREAS, TRINITY INDUSTRIES, INC. (the "Company") has heretofore
adopted the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY
INDUSTRIES, INC. AND CERTAIN AFFILIATES (the "Plan"); and
WHEREAS, pursuant to those provisions of the Plan permitting the
Company to amend the Plan from time to time, the Company desires to revise the
Plan to permit Participants to invest their account balances in units of common
stock of Trinity Industries, Inc. and in certain other particulars.
NOW THEREFORE, effective as of the dates noted below, the Plan is
hereby amended as follows:
1. Effective as of December 1, 1999, Section 2.01 of the Plan is hereby
amended by adding the following new paragraph (ii) to the end thereof to be and
read as follows:
"(ii) STOCK UNIT: A deemed share of Company common stock, more fully
described in Section 5.02(e) hereof."
2. Effective April 1, 1999, Section 4.01 of the Plan is hereby amended
by revising paragraph (a) thereof to be and read as follows:
"(a) Salary Reduction Contribution--For each Year, each Employer shall
credit the Salary Reduction Contribution Account of each of its
Employees participating in the Plan with an amount agreed to be
credited by such Employer pursuant to a salary reduction
agreement under Section 4.02 entered into between the Employer
and the Participant for such Year; provided that if such
Participant is also a participant in the Profit Sharing Plan for
Employees of Trinity Industries, Inc. and Certain Affiliates,
such Participant must first have elected to contribute the
maximum permissible salary reduction contribution for the Year to
his salary reduction contribution account under such Profit
Sharing Plan, with such maximum permissible amount to be
determined by reference to all applicable limitations of (i) Code
Section 401, (ii) the provisions of such Profit Sharing Plan and
(iii) other applicable law."
1
<PAGE> 2
3. Effective as of December 1, 1999, Section 5.02 of the Plan is hereby
amended by adding the following new paragraph (e) to the end thereof to be and
read as follows:
"(e) Stock Units--The Committee shall permit a Participant to
designate that all or any portion of his Account balances be
treated as invested in Stock Units as of December 1, 1999 or as
of the last day of each succeeding month (or if no shares of the
Company's common stock are traded on such date, as of the
immediately preceding trading date). For purposes of calculating
the number of Stock Units deemed credited to a Participant's
Accounts pursuant to this Section, the price of a Stock Unit
shall be equal to one hundred percent (100%) of the closing price
of a share of the Company's common stock on the date on which the
Stock Units are deemed credited to the Participant's Accounts (or
if no shares of the Company's common stock are traded on such
date, on the immediately preceding trading date). To the extent
that Stock Units are allocated to a Participant's Accounts, the
following additional provisions shall apply.
(1) Voting Rights. A Participant shall not be entitled to any
voting rights with respect to the Stock Units deemed
credited to his Accounts.
(2) Dividends. To the extent that a dividend is paid on the
Company's common stock, the Committee shall credit to the
Accounts of each Participant whose Accounts are deemed
invested in Stock Units an amount equal to the value of such
dividends. Such amounts shall be credited to a Participant's
Accounts in the form of additional Stock Units at a price
equal to one hundred percent (100%) of the closing price of
a share of the Company's common stock on the date on which
such dividend is paid (or if no shares of the Company's
common stock are traded on such date, on the immediately
preceding trading date).
(3) Dilution and Other Adjustments. In the event of any change
in the outstanding shares of common stock of the Company by
reason of any stock dividend, split, spin-off,
recapitalization, merger, consolidation, combination,
extraordinary dividend, exchange of shares or other similar
change, the Committee shall adjust the number or kind of
Stock Units then deemed allocated to the Participants'
Accounts as follows:
(a) Subject to any required action by stockholders, the
number of Stock Units shall be proportionately adjusted
for any increase or decrease in the number of issued
shares of the Company's common stock resulting from (i)
a subdivision or consolidation of shares, (ii) the
payment of a stock dividend or (iii) any other increase
or decrease in the number of shares effected without
receipt of consideration by the Company.
(b) In the event of a change in the shares of the Company's
common stock as presently constituted, which is limited
to a change of par
2
<PAGE> 3
value into the same number of shares with a different
par value or without par value, the shares of the
Company's common stock resulting from any such change
shall be deemed to be the shares of common stock within
the meaning of this Plan.
Any adjustments made by the Committee pursuant to this
subparagraph (3) shall be final, binding, and conclusive.
Except as hereinbefore provided in this Section, a
Participant to whose Account Stock Units are allocated shall
have no rights by reason of (i) any subdivision or
consolidation of the Company's stock or securities, (ii) the
payment of any stock dividend or (iii) any other increase or
decrease in the number of shares of stock of any class or by
reason of any dissolution, liquidation, reorganization,
merger, or consolidation or spinoff of assets or stock of
another corporation, and any issuance by the Company of
additional shares of stock (of any class), or securities
convertible into shares of stock (of any class), shall not
affect the number of Stock Units allocated to such
Participant's Accounts under this Plan."
4. Effective as of December 1, 1999, Section 6.01 of the Plan is hereby
amended by adding the following new paragraph (d) to the end of the first
paragraph thereof, to be and read as follows:
"(d) Payments shall be made in cash or, to the extent that any amount
to be distributed has been deemed invested in Stock Units, in
common stock of the Company; provided that any amount deemed
invested in fractional shares shall, in all events, be paid in
cash."
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this AMENDMENT NO. 8 TO THE
SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC. AND
CERTAIN AFFILIATES to be executed in its name and on its behalf this 16th day of
November, 1999, effective as noted above.
TRINITY INDUSTRIES, INC.
By: /s/ M.J. Lintner
------------------------------------
Title: Vice President, Human Resources
------------------------------------
ATTEST:
/s/ Michael G. Fortado
- ------------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 16th day of November,
1999, by M.J. Lintner of TRINITY INDUSTRIES, INC., a Delaware corporation, on
behalf of said corporation.
/s/ Kathleen L. Southmayd
------------------------------------
Notary Public in and for
the State of Texas
My Commission Expires: Printed Name of Notary:
6/24/03 Kathleen L. Southmayd
- ------------------------------- ------------------------------------
4
<PAGE> 5
SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF
TRINITY INDUSTRIES, INC. AND CERTAIN AFFILIATES
AS RESTATED EFFECTIVE JANUARY 1, 2000
ARTICLE I
PURPOSE
TRINITY INDUSTRIES, INC., a corporation organized and existing under
the laws of the State of Delaware (hereinafter, the "Company"), hereby restates
the SUPPLEMENTAL PROFIT SHARING PLAN FOR EMPLOYEES OF TRINITY INDUSTRIES, INC.
AND CERTAIN AFFILIATES (hereinafter, the "Plan"), such restatement to be
effective as of January 1, 2000;
W I T N E S S E T H:
WHEREAS, the Company wishes to promote in certain of its highly
compensated employees and those of its affiliates the strongest interest in the
successful operation of the business and increased efficiency in their work, to
align the financial interests of such employees with those of Company
shareholders and to provide an opportunity for accumulation of funds for their
retirement; and
WHEREAS, it is intended that the Plan be "unfunded" for purposes of the
Employee Retirement Income Security Act of 1974 (hereinafter, "ERISA") and not
be construed to provide income to any participant or beneficiary under the
Internal Revenue Code of 1986 (hereinafter, the "Code") prior to actual receipt
of benefits hereunder;
NOW, THEREFORE, the Company hereby agrees as follows:
ARTICLE II
DEFINITIONS, CONSTRUCTION, AND APPLICABILITY
2.01 Definitions
The following words and phrases, when used herein, unless
their context clearly indicates otherwise, shall have the
following respective meanings:
(a) ACCOUNT: A Participant's Compensation Reduction
Contribution Account, Matching Contribution Account,
Additional Matching Contribution Account and/or
Discretionary Contribution Account, as the case may be.
<PAGE> 6
(b) ADDITIONAL MATCHING CONTRIBUTION: Any amount credited
by an Employer for a Plan Year to a Participant
pursuant to Section 4.01(c) hereof.
(c) ADDITIONAL MATCHING CONTRIBUTION ACCOUNT: The account
maintained for a Participant on the books of his
Employer to which Additional Matching Contributions and
adjustments related thereto are credited.
(d) AFFILIATE: Any corporation (other than an Employer)
which is included within a controlled group of
corporations (as defined in Code Section 414(b)) which
includes an Employer; any trade or business (other than
an Employer), whether or not incorporated, which is
under common control (as defined in Code Section
414(c)) with an Employer; any organization (other than
an Employer), whether or not incorporated, which is a
member of an affiliated service group (as defined in
Code Section 414(m)) which includes an Employer; and
any other entity required to be aggregated with an
Employer pursuant to regulations under Code Section
414(o).
(e) ANNUAL INCENTIVE COMPENSATION: Any amount payable as an
annual bonus to a Participant pursuant to the Company's
incentive pay program.
(f) AUTHORIZED LEAVE OF ABSENCE: Any absence authorized by
an Employer under the Employer's standard personnel
practices provided that all persons under similar
circumstances must be treated alike in the granting of
such Authorized Leaves of Absence and provided further
that the Participant returns within the period of
authorized absence. An absence due to service in the
Armed Forces of the United States shall be considered
an Authorized Leave of Absence provided that the
absence is caused by war or other emergency, or
provided that the Employee is required to serve under
the laws of conscription in time of peace, and further
provided that the Employee returns to employment with
the Employer within the period provided by law.
(g) AWARD COMPENSATION: All items taxable as the
Participant's ordinary income under the Trinity
Industries 1993 and 1998 Stock Option and Incentive
Plans; provided that Award Compensation expressly shall
not include income or gain attributable to incentive
stock options awarded thereunder.
(h) BASE COMPENSATION: All amounts payable to a Participant
which constitute scheduled items of salary or wages.
(i) BENEFICIARY: A person or persons (natural or otherwise)
designated by a Participant in accordance with the
provisions of Section 6.06 to receive any death benefit
which shall be payable under this Plan.
2
<PAGE> 7
(j) CHANGE IN CONTROL: A Change in Control shall be deemed
to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(1) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the
Company (not including in the securities
beneficially owned by such Person any securities
acquired directly from the Company or its
affiliates) representing thirty percent (30%) or
more of the combined voting power of the Company's
then outstanding securities, excluding any Person
who becomes such a Beneficial Owner in connection
with a transaction described in clause (i) of
paragraph (3) below; or
(2) the following individuals cease for any reason to
constitute a majority of the number of directors
then serving: individuals who, on May 6, 1997,
constitute the Board and any new director (other
than a director whose initial assumption of office
is in connection with an actual or threatened
election contest, including but not limited to a
consent solicitation, relating to the election of
directors of the Company) whose appointment or
election by the Board or nomination for election
by the Company's stockholders was approved or
recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either
were directors on May 6, 1997, or whose
appointment, election or nomination for election
was previously so approved or recommended; or
(3) there is consummated a merger or consolidation of
the Company or any direct or indirect subsidiary
of the Company with any other corporation, other
than (i) a merger or consolidation which would
result in the voting securities of the Company
outstanding immediately prior to such merger or
consolidation continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity or any
parent thereof) at least sixty percent (60%) of
the combined voting power of the securities of the
Company or such surviving entity or any parent
thereof outstanding immediately after such merger
or consolidation, or (ii) a merger or
consolidation effected to implement a
recapitalization of the Company (or similar
transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the
securities beneficially owned by such Person any
securities acquired directly from the Company or
its Affiliates other than in connection with the
acquisition by the Company or its Affiliates of a
business) representing thirty percent (30%) or
more of the combined voting power of the Company's
then outstanding securities; or
(4) the stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company
or there is consummated an agreement for the sale
or
3
<PAGE> 8
disposition by the Company of all or substantially
all of the Company's assets, other than a sale or
disposition by the Company of all or substantially
all of the Company's assets to an entity, at least
sixty percent (60%) of the combined voting power
of the voting securities of which are owned by
stockholders of the Company in substantially the
same proportions as their ownership of the Company
immediately prior to such sale.
For purposes of this paragraph:
"Affiliate" shall have the meaning sect forth in
Rule 12b-2 promulgated under Section 12 of the
Exchange Act.
"Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
"Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used
in Section 13(d) and 14(d) thereof, except that
such term shall not include (i) the Company or any
of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee
benefit plan of the Company or any of its
Affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly
or indirectly, by the stockholders of the Company
in substantially the same proportions as their
ownership of stock of the Company.
(k) CODE: The Internal Revenue Code of 1986, as amended
from time to time.
(l) COMMITTEE OR PLAN COMMITTEE: The persons appointed
under the provisions of Article VIII to administer the
Plan.
(m) COMPANY: TRINITY INDUSTRIES, INC., a corporation
organized and existing under the laws of the State of
Delaware, or its successor or successors.
(n) COMPENSATION: Annual Incentive Compensation, Award
Compensation and/or Base Compensation paid to a
Participant.
(o) COMPENSATION REDUCTION CONTRIBUTION: An amount credited
by an Employer for the Plan Year to a Participant
pursuant to Section 4.01(a) hereof.
(p) COMPENSATION REDUCTION CONTRIBUTION ACCOUNT: The
account maintained for a Participant on the books of
his Employer to which Compensation Reduction
Contributions and adjustments related thereto are
credited.
4
<PAGE> 9
(q) DISABILITY: A physical or mental condition which, in
the judgment of the Committee, totally and presumably
permanently prevents a Participant from engaging in any
substantial or gainful employment. Determinations of
Disability shall be made on the basis of standards
applied uniformly to all Participants.
(r) DISCRETIONARY CONTRIBUTIONS: Any amount credited by an
Employer for the Plan Year to a Participant pursuant to
Section 4.01(e) hereof.
(s) DISCRETIONARY CONTRIBUTION ACCOUNT: The account
maintained for a Participant on the books of his
Employer to which Discretionary Contributions and
adjustments related thereto are credited.
(t) EFFECTIVE DATE: Except where otherwise indicated
herein, January 1, 2000, the date on which the
provisions of this amended and restated Plan become
effective.
(u) ELAPSED-TIME EMPLOYMENT: With respect to an Employee,
the period beginning on his Employment Commencement
Date (or Reemployment Commencement Date, as the case
may be) and ending on the date of his Severance from
Service. Such period shall be determined without regard
to the actual number of Hours of Employment completed
by the Employee during such period. Except to the
extent otherwise permitted by the Committee in its sole
discretion, Elapsed-Time Employment completed with an
Affiliate or a Participating Employer prior to the date
on which such Affiliate or Employer was included within
a controlled group of corporations (as defined in Code
Section 414(b)) which includes the Company shall not be
recognized under this Plan.
(v) EMPLOYEE: Any individual on the payroll of an Employer
(i) whose wages from the Employer are subject to
withholding for purposes of Federal income taxes and
for purposes of the Federal Insurance Contributions
Act, (ii) who is included within a "select group of
management or highly compensated employees," as such
term is used in Section 401(a)(1) of ERISA, and (iii)
who is designated by the Plan Committee as eligible to
participate in this Plan; provided that, under no
circumstances shall an individual be an eligible
Employee hereunder until the first day of the calendar
quarter immediately following his Employment
Commencement Date.
(w) EMPLOYER or PARTICIPATING EMPLOYER: The Company and any
Affiliate of the Company to the extent that an Employee
of such Affiliate is a Participant hereunder.
(x) EMPLOYMENT COMMENCEMENT DATE: The first date on which
an Employee completes an Hour of Employment.
(y) ERISA: Public Law No. 93-406, the Employee Retirement
Income Security Act of 1974, as amended from time to
time.
5
<PAGE> 10
(z) EXTENDED ABSENCE EMPLOYEE: An Employee who is absent
from his Employer's employment solely because of (i)
the Employee's pregnancy, (ii) the birth of the
Employee's child, (iii) the placement of a child with
the Employee in connection with the adoption of the
child by the Employee, or (iv) the care of a child by
the Employee during the period immediately following
such child's birth to, or placement with, the Employee.
(aa) FORFEITURES: The portion of a Participant's Matching
Contribution Account, Additional Matching Contribution
Account and Discretionary Contribution Account, if any,
which is forfeited because of a Severance from Service
before full vesting.
(bb) HOUR OF EMPLOYMENT: Each hour (i) for which an Employee
is on an Authorized Leave of Absence or is directly or
indirectly paid or entitled to payment by his Employer
for the performance of duties or for reasons other than
the performance of duties, or (ii) for which back-pay
has been agreed to by the Employer. Hours of Employment
shall be determined from records maintained by each
Employer; provided, however, that an Employer may elect
to determine Hours of Employment for any classification
of Employees which is reasonable, nondiscriminatory and
consistently applied, on the basis that Hours of
Employment include forty-five (45) Hours of Employment
for each week or portion thereof during which an
Employee is credited with one (1) Hour of Employment.
Except to the extent otherwise permitted by the
Committee in its sole discretion, Hours of Employment
completed with an Affiliate or a Participating Employer
prior to the date on which such Affiliate or Employer
was included within a controlled group of corporations
(as defined in Code Section 414(b)) which includes the
Company shall not be recognized under this Plan.
(cc) INITIAL EFFECTIVE DATE: July 1, 1990, the date on which
the Prior Plan became effective.
(dd) MATCHING CONTRIBUTION ACCOUNT: The account maintained
for a Participant on the books of his Employer to which
Matching Employer Contributions and adjustments related
thereto are credited.
(ee) MATCHING EMPLOYER CONTRIBUTION: Any amount credited by
an Employer for a Plan Year to a Participant pursuant
to Section 4.01(b) hereof.
(ff) PARTICIPANT: An Employee participating in the Plan in
accordance with the provisions of Section 3.01.
(gg) PARTICIPATION: The period commencing on the date on
which an Employee becomes a Participant and ending on
the date on which the Employee incurs a Break in
Service (as defined in Section 3.02(d)).
6
<PAGE> 11
(hh) PLAN: The SUPPLEMENTAL PROFIT SHARING PLAN FOR
EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN
AFFILIATES AS RESTATED EFFECTIVE JANUARY 1, 2000, the
Plan set forth herein, as amended from time to time.
(ii) PRIOR PLAN: The SUPPLEMENTAL PROFIT SHARING PLAN FOR
EMPLOYEES OF TRINITY INDUSTRIES, INC. AND CERTAIN
AFFILIATES, as in effect prior to the Effective Date.
(jj) REEMPLOYMENT COMMENCEMENT DATE: The first date on which
an Employee completes an Hour of Employment upon his
return to the employment of the Employers after a Break
in Service.
(kk) SERVICE: A Participant's period of employment with the
Employers determined in accordance with Section 3.02.
(ll) SEVERANCE FROM SERVICE: With respect to an Employee,
the later of (1) or (2), where--
(1) is the earlier of (i) the date on which he quits,
or is discharged from, the employment of the
Employers, or the date of his retirement or death,
or (ii) the first anniversary of the first date of
a period in which he remains absent from the
employment of the Employers, with or without pay,
for any reason other than one specified in (i),
above, such as vacation, holiday, sickness,
Authorized Leave of Absence or layoff; and
(2) is, in the case of an Extended Absence Employee,
the second anniversary of such Employee's absence.
(mm) STOCK UNIT: A deemed share of Company common stock,
more fully described in Section 5.04 hereof.
(nn) TRUST (or TRUST FUND): The fund known as the TRINITY
INDUSTRIES, INC. SUPPLEMENTAL PROFIT SHARING AND
DEFERRED DIRECTOR FEE TRUST, maintained in accordance
with the terms of the trust agreement, as from time to
time amended, which constitutes a part of this Plan.
(oo) TRUSTEE: The corporation, individual or individuals
appointed to administer the Trust in accordance with
the agreement governing the Trust.
(pp) VALUATION DATE: The last day of each month (or if no
Company stock is traded on such date, the immediately
preceding trading date), and such other dates as the
Committee in its discretion may prescribe.
(qq) YEAR or PLAN YEAR: The twelve (12)-month period ending
on March 31 of each year.
7
<PAGE> 12
2.02 Construction
The masculine gender, where appearing in the Plan, shall be
deemed to include the feminine gender, unless the context
clearly indicates to the contrary. The words "hereof,"
"herein," "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.
2.03 Applicability
The provisions of this Plan shall apply only to a
Participant who terminates employment on or after the
Effective Date. In the case of a Participant who terminates
employment prior to the Effective Date, the rights and
benefits, if any, of such former Employee shall be
determined in accordance with the provisions of the Prior
Plan, as in effect on the date on which his employment
terminated.
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation
An Employee who was a Participant under the Prior Plan shall
continue as a Participant under this Plan, to the extent
provided hereunder. All references hereunder to such
Participant's "compensation reduction agreement" shall include
his salary reduction agreement executed under the Prior Plan.
An individual classified as an Employee under Section 2.01(v)
hereof shall become a Participant in this Plan on the first
day of (i) the month on or immediately following such
classification or (ii) any of his taxable years thereafter,
provided that, prior to such date, he shall first have
undertaken the actions specified in Section 3.03 hereof.
An active Participant who incurs a Severance from Service and
who is subsequently reemployed by an Employer shall reenter
the Plan as an active Participant on his Reemployment
Commencement Date or the first day of any of his next
following taxable years, but only if (i) he continues to
qualify as an Employee within the meaning of Section 2.01(v)
hereof and (ii) prior to such date he shall have again
undertaken the actions specified in Section 3.03 hereof. In
the event that a Participant shall cease to qualify as an
Employee within the meaning of Section 2.01(v) hereof, his
Participation shall thereupon cease but he shall continue to
accrue Service hereunder during the period of his continued
employment with the Employers.
Any provisions of this Plan to the contrary notwithstanding,
effective on and after the date of a Change in Control, the
term "Participant" shall be limited to those individuals who
satisfy the requirements set forth for participation in this
Plan and who were Participants in this Plan as of the date
immediately prior to the date of such Change in Control.
8
<PAGE> 13
3.02 Service
The amount of benefit payable to or on behalf of a Participant
shall be determined on the basis of his period of Service, in
accordance with the following:
(a) In General. Subject to the Break in Service
provisions of paragraph (d) of this Section, an
Employee's Service shall equal the total of his
Elapsed-Time Employment. Service shall be counted in
years and completed days.
(b) Transfers from Affiliates. In the event that an
Employee who at any time was employed by an Affiliate
either commences employment with a Participating
Employer, or returns to the employment of a
Participating Employer, then, except as otherwise
provided below, such Employee shall receive Service
with respect to the period of his employment with
such Affiliate (to the extent not credited under
paragraph (c) of this Section). In applying the
provisions of the preceding sentence--
(1) except to the extent otherwise permitted by
the Committee in its sole discretion, such
Employee shall not receive Service with
respect to any period of employment with
such Affiliate completed prior to the date
on which such Affiliate became an Affiliate;
(2) the amount of such Service shall be
determined in accordance with paragraph (a)
of this Section, as if such Affiliate were a
Participating Employer; and
(3) if such Employee incurs a Break in Service
(as defined in paragraph (d) of this Section
and determined as if such Affiliate were a
Participating Employer) prior to his
commencement of employment with the
Participating Employer or return to the
employment of the Participating Employer,
then the amount of such Employee's Service
attributable to the period of his employment
with such Affiliate shall be determined in
accordance with paragraph (d) of this
Section.
(c) Transfers to Affiliate. In the event that a
Participant who at any time was employed by a
Participating Employer either commences employment
with an Affiliate, or returns to the employment of an
Affiliate, then, except as otherwise provided below,
such Participant shall receive Service with respect
to the period of his employment with such Affiliate
(to the extent not credited under paragraph (b) of
this Section). In applying the provisions of the
preceding sentence--
(1) the amount of such Service shall be
determined in accordance with paragraph (a)
of this Section, as if such Affiliate were a
Participating Employer; and
(2) if such Participant incurs a Break in
Service (as defined in paragraph (d) of this
Section and determined as if such Affiliate
were a Participating Employer) prior to his
commencement of employment with the
Affiliate or return to the employment of the
Affiliate, then
9
<PAGE> 14
the amount of such Participant's Service
attributable to his prior period of
employment with the Participating Employer
shall be determined in accordance with
paragraph (d) of this Section.
(d) Break in Service. An Employee who incurs a Severance
from Service and who fails to complete at least one (1)
Hour of Employment during the twelve (12)-month period
beginning on the date of such Severance from Service
shall have a Break in Service. If, during the twelve
(12)-month period beginning on the date of an
Employee's Severance from Service, the Employee shall
return to the employment of a Participating Employer by
completing at least one (1) Hour of Employment within
such twelve (12)-month period, then such Employee will
not have a Break in Service and shall receive Service
for the period beginning on the date of his Severance
from Service and ending on the date of his
reemployment; provided, however, that in the case of an
Employee who is absent from the employment of the
Participating Employers for a reason specified in
Section 2.01(ll)(1)(ii) hereof and who, prior to the
first anniversary of the first date of such absence,
incurs a Severance from Service for a reason specified
in Section 2.01(ll)(1)(i) hereof, such Employee shall
receive Service only if he completes at least one (1)
Hour of Employment within the twelve (12)-month period
beginning on the first date of such absence and shall
receive such Service only for the period beginning on
the first day of such absence and ending on the date of
his reemployment. Upon incurring a Break in Service, an
Employee's rights and benefits under the Plan shall be
determined in accordance with his Service at the time
of the Break in Service. For a Participant who, at the
time of a Break in Service, satisfied any requirements
of this Plan for vested benefits, his pre-break Service
shall, upon his Reemployment Commencement Date, be
restored in determining his rights and benefits under
the Plan. For an Employee who, at the time of a Break
in Service, had not fulfilled such requirements,
periods of pre-break Service shall, upon his
Reemployment Commencement Date, be restored only if the
consecutive periods of Break in Service were less than
the greater of (i) sixty (60) months or (ii) the total
period of pre-break Service.
(e) Special Rule for Participants After Initial Eligibility
Date. Notwithstanding the preceding provisions of this
Section 3.02, the Elapsed-Time Employment and Service
of any Participant who failed to elect to participate
hereunder pursuant to Section 3.03 hereof prior to the
date on which he was first eligible to do so pursuant
to Section 3.01 hereof shall be determined as if his
Employment Commencement Date were the later of (i) the
Initial Effective Date or (ii) the date on which he
first completes an Hour of Employment. In addition, in
the case of a Participant who was not employed by an
Employer on the Initial Effective Date but was so
employed prior to such date, such prior period of
employment will not, under any circumstances, be
treated as Service unless such Participant elects to
participate hereunder pursuant to such Section 3.03
prior to the date on which he was first eligible to do
so pursuant to such Section 3.01.
(f) Special Rule for Extended Absence Employees.
Notwithstanding the preceding provisions of this
Section 3.02, in the case of an Extended
10
<PAGE> 15
Absence Employee, the period between the first and
second anniversaries of such Employee's absence shall,
under no circumstances, be treated as a period of
Service.
3.03 Election to Participate
In order to participate hereunder, an Employee, otherwise
eligible to participate pursuant to Section 3.01 hereof, must,
after having received a written explanation of the terms of
and the benefits provided under the Plan, elect to participate
in such Plan on such form or forms as the Committee may
provide and must execute a compensation reduction agreement
described in Section 4.02 hereof. Such election to participate
and execution of a compensation reduction agreement shall be
effected on any date on or prior to the applicable date
specified in such Section 3.01 for the commencement of
Participation and, in all events, prior to the completion of
services for which amounts subject to the compensation
reduction agreement would otherwise have been paid to such
Employee.
3.04 Transfer
An Employee who is transferred between Participating Employers
shall be as eligible for Participation and benefits as in the
absence of such transfer.
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.01 Employer Contributions
Employers shall credit Participant accounts in accordance with
the following:
(a) Compensation Reduction Contribution. For each Year,
each Employer shall credit the Compensation Reduction
Contribution Account of each of its Employees
participating in the Plan with an amount agreed to be
credited by such Employer pursuant to a compensation
reduction agreement entered into between the Employer
and the Participant for such Year, as provided in
Section 4.02; provided that if such Participant is also
a participant in the Profit Sharing Plan for Employees
of Trinity Industries, Inc. and Certain Affiliates,
such Participant must first have elected to contribute
the maximum permissible salary reduction contribution
for the Year to his salary reduction contribution
account under such Profit Sharing Plan, with such
maximum permissible amount to be determined by
reference to all applicable limitations of (i) Code
Section 401, (ii) the provisions of such Profit Sharing
Plan and (iii) other applicable law. Such compensation
reduction agreement shall include a separate deferral
election for each of the following types of
Compensation:
(i) Base Compensation;
(ii) Annual Incentive Compensation; and
(iii) Award Compensation.
11
<PAGE> 16
(b) Matching Employer Contribution. For each Year, each
Employer shall credit a Matching Employer Contribution
amount in the form of Stock Units to each of its
Employees for whom an amount was credited pursuant to
paragraph (a) of this Section 4.01; provided, however,
that no such Matching Employer Contribution shall be
credited prior to the date on which such Employee
completes one (1) year of Service. Such Matching
Employer Contribution, when added to the Forfeitures
which have become available for application as of the
end of the Year pursuant to Section 4.03 hereof, shall
be equal to a percentage of that portion of the
Participant's Compensation Reduction Contribution for
such Year pursuant to Section 4.02 hereof which does
not exceed six percent (6%) of his Base Compensation
plus Annual Incentive Compensation for such Year, based
on his years of Service as follows:
<TABLE>
<CAPTION>
Years of Service Applicable Percentage
---------------- ---------------------
<S> <C>
Less than 1 0%
1 but less than 2 25%
2 but less than 3 30%
3 but less than 4 35%
4 but less than 5 40%
5 or more 50%
</TABLE>
(c) Additional Matching Contribution. For each Year, each
Employer shall credit an additional amount in the form
of Stock Units to each of its Employees for whom an
amount was credited pursuant to paragraph (a) of this
Section 4.01, which when added to the Forfeitures which
have become available for application as of the end of
the Year pursuant to Section 4.03 hereof and which have
not been applied as provided in paragraph (b) of this
Section, shall be equal to seventeen and one-half
percent (17 1/2%) of that portion of the Participant's
Compensation Reduction Contribution for such Year
pursuant to Section 4.02 hereof which is invested or
deemed invested in Stock Units pursuant to Section
5.02(a) hereof up to twenty-five percent (25%) of the
sum of his Base Compensation and Annual Incentive
Compensation for such Year.
(d) Limitations on Matching Contributions. Except in the
case of a Participant who "retires" (as defined in the
Trinity Industries, Inc. Standard Pension Plan), dies
or incurs a Disability during a Year, no Matching
Employer Contributions shall be credited to a
Participant for a Year unless such Participant is
actively employed by an Employer on the last day of
such Year. In addition, no Matching Employer
Contributions or Additional Matching Contributions
shall be credited to Participants for a Year unless (i)
the Company's earnings per share for such Year are
sufficient to cover dividends to stockholders, or (ii)
the Company's net profits for such Year are at least
Thirty-Three and one-third Cents ($.33-1/3) per share.
In addition, and notwithstanding paragraph (b) of this
Section, the amount of Matching Employer Contribution
credited to a Participant for a Year under this Plan
shall be reduced by the amount of any matching
contribution credited to the
12
<PAGE> 17
Participant for such Year under the Profit Sharing Plan
for Employees of Trinity Industries, Inc. and Certain
Affiliates.
(e) Discretionary Contributions. In addition to the
contributions described above, for each Year an
Employer may, but shall not be required to, credit the
Discretionary Contribution Account of any one or more
Participants in its employ during such Year with such
amounts in the form of Stock Units or otherwise as the
Employer may determine in its sole discretion.
4.02 Participant Compensation Reduction
(a) General. Prior to commencement of Participation
hereunder, a Participant shall have entered into a
written compensation reduction agreement with his
Employer. The terms of such compensation reduction
agreement shall provide that the Participant agrees to
accept a reduction in Compensation from the Employer.
In consideration of such agreement, the Employer will
credit the Participant's Compensation Reduction
Contribution Account for each Year with an amount equal
to the total amount by which the Participant's
Compensation from the Employer was reduced during the
Year pursuant to the compensation reduction agreement.
(b) Election Requirements. Compensation reduction
agreements shall be further governed by the following:
(1) A compensation reduction agreement shall
specify the types of Compensation to which
it will apply and shall be effective during
the period in which it is on file with the
Participant's Employer, but in no event
shall be effective to (i) reduce Award
Compensation which is attributable to the
exercise of nonqualified stock options, the
lapse of all restrictions on a grant of
restricted stock, the exercise of stock
appreciation rights or the payment of
dividend equivalent rights and which is
payable during the six (6) month period
immediately following the date of execution
of the agreement; or (ii) reduce payments of
Base Compensation, Annual Incentive
Compensation or other types of Award
Compensation for services completed on or
before the date on which such compensation
reduction agreement is received by the
Corporate Benefits department of the
Company.
(2) A compensation reduction agreement shall
have been entered into by a Participant on
or prior to commencement of Participation
hereunder and shall remain in effect until
terminated or amended by the Participant in
accordance with the procedures set forth
herein. Any amendment or termination of a
compensation reduction agreement shall not
be effective until the first day of the
Participant's taxable year immediately
following the taxable year of the
Participant in which an election so to amend
or terminate is executed by the Participant
and his Employer and must be received by the
Corporate Benefits department of the Company
at least fifteen (15) days prior to the end
of the taxable year of execution. If a
Participant
13
<PAGE> 18
terminates his compensation reduction
agreement as hereinabove provided, then he
may elect to enter into another compensation
reduction agreement to be effective as of the
first day of any of his taxable years
following his taxable year in which such
termination was first effective, provided
that written notice of such election must be
received by the Corporate Benefits department
of the Company at least fifteen (15) days
prior to such effective date. Notwithstanding
the preceding provisions of this subparagraph
(2), to the extent that a compensation
reduction agreement reduces Award
Compensation described in subparagraph (1)(i)
of this paragraph (b), such agreement shall
at all times be irrevocable.
4.03 Forfeitures
If, upon a Severance from Service, a Participant is not
entitled to a distribution of the entire balance in his
Matching Contribution Account, Additional Matching
Contribution Account and/or Discretionary Contribution
Account, then the amount to which the Participant is not
entitled shall become a Forfeiture and shall be deducted from
the Participant's Accounts at such time. The portion of the
Participant's Accounts which is not a Forfeiture shall
continue to be adjusted as provided in Section 5.03(a) until
it is distributed in full. The Participant shall receive a
distribution of the nonforfeitable portion of his Accounts
pursuant to Article VI.
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.01 Individual Accounts
The Committee shall create and maintain adequate records to
disclose the interest hereunder of each Participant, Former
Participant 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. When
appropriate, a Participant shall have up to four separate
Accounts, a Compensation Reduction Contribution Account, a
Matching Contribution Account, an Additional Matching
Contribution Account, and a Discretionary Contribution
Account.
5.02 Investment of Accounts
(a) Participant Election. The Committee shall credit each
Participant's Accounts with earnings or losses
according to the hypothetical investment selections
made by the Participant pursuant to his participation
agreement executed pursuant to Section 3.03 hereof. The
Committee shall adopt rules concerning the manner in
which a Participant may elect to change his
hypothetical investment selections; provided that a
Participant shall be permitted to do so no less
frequently than as of the first day of each month;
provided further, that a Participant may not change the
hypothetical election which applies to any portion of
his Accounts that is invested or deemed to be invested
in Stock Units. The earnings or losses attributable to
a Participant's Accounts shall be determined as if the
amounts credited to such Accounts
14
<PAGE> 19
were actually invested in Stock Units, to the extent
required or elected hereunder, and, to the extent not
so required or elected, in the hypothetical investments
selected under the Participant's participation
agreement. In the case of a Participant receiving
installment payments under Article VI hereof, the
Participant's Accounts will continue to receive
allocations of earnings or losses in accordance with
this subsection until his Accounts are paid in full. If
a Participant's participation agreement fails to
designate one or more hypothetical investment
selections, the Participant's Account will be deemed
invested in Stock Units, to the extent required
hereunder, and, to the extent not so required, in the
investment option designated as having the least
investment risk.
(b) Investment Options. The Committee shall have sole and
absolute discretion with respect to the number and
types of investment options made available for
selection by Participants pursuant to this Section, the
timing of Participant elections and the method by which
adjustments are made. The Committee may in its sole
discretion refuse to recognize Participant elections
that it determines may cause the Participant's Accounts
to become subject to the short-swing profit provisions
of Section 16b of the Securities Exchange Act of 1934
and establish special election procedures for
Participants subject to Section 16 of such Act. The
Committee shall permit Participants to designate that
their investments be treated as invested in (i) Stock
Units or (ii) one or more investment indices; provided
that amounts credited on or after the Effective Date to
a Participant's Matching Contribution Account or
Additional Matching Contribution Account shall at all
times be invested in Stock Units; provided further that
Compensation Reduction Contributions made on or after
the Effective Date of Award Compensation shall at all
times be invested in Stock Units. The designation of
investment options by the Committee shall be for the
sole purpose of adjusting Accounts pursuant to this
Section and, except to the extent that investment in
Stock Units is required hereunder, the provisions of
this Article V shall not obligate the Company or any of
the Employers to invest or set aside any assets for the
payment of benefits hereunder; provided, however, that
the Company or an Employer may invest a portion of its
general assets in investments, including investments
which are the same as or similar to the investment
indices designated by the Committee and selected by
Participants, but any such investments shall remain
part of the general assets of the Company or such
Employer and shall not be deemed or construed to grant
a property interest of any kind to any Participant,
designated Beneficiary or estate. The Committee shall
notify the Participants of the investment indices
available and the procedures for making and changing
elections.
(c) Non-Binding Status of Elections. A Participant's
hypothetical investment selections pursuant to the
immediately preceding paragraph shall be made solely
for purposes of crediting earnings and/or losses to his
Accounts under Section 5.03 of this Plan. The Committee
shall not, in any way, be bound to actually invest any
amounts set aside pursuant to Article VII below to
satisfy its obligations under this Plan in accordance
with such selections.
15
<PAGE> 20
5.03 Account Adjustments
The accounts of Participants, Former Participants and
Beneficiaries shall be adjusted in accordance with the
following:
(a) Valuation Adjustments. As of each Valuation Date, the
amount credited to a Participant's Accounts as of the
preceding Valuation Date, less any distributions or
Forfeitures with respect to such Accounts since such
preceding Valuation Date, shall be adjusted by
reference to the fluctuations in value, taking into
account gain, loss, expenses and other adjustments, of
the investments selected by the Participant for the
investment adjustment of his or her Accounts, with such
adjustments to be made in the manner prescribed by the
Committee. Following such adjustment, the amounts
credited to a Participant's Accounts shall be increased
to take into account additional deferrals and
contributions credited to such Accounts since the
preceding Valuation Date.
(b) Compensation Reduction Contributions. The amount
credited pursuant to Section 4.01(a) hereof for a Year
as a Compensation Reduction Contribution shall be
allocated to the Participant's Compensation Reduction
Contribution Account as of the date on which such
Compensation Reduction Contribution would otherwise
have been paid to the Participant as Compensation.
(c) Matching Contributions. Any Stock Units credited to a
Participant by an Employer pursuant to Section 4.01(b)
or (c) during a Year shall be allocated, as the case
may be, to the Participant's Matching Contribution
Account or the Participant's Additional Matching
Contribution Account at such time as may be determined
by the Employer in its absolute discretion, but no
earlier than the last day of such Year.
(d) Discretionary Contributions. Any amounts credited to a
Participant by an Employer pursuant to Section 4.01(e)
during a Year shall be allocated to the Participant's
Discretionary Contribution Account at the time
determined by the Employer in its absolute discretion.
5.04 Stock Units
(a) General. For purposes of calculating the number of
Stock Units credited or deemed credited to a
Participant's Accounts pursuant to Section 5.03 (b) or
(d), the price of a Stock Unit shall be equal to one
hundred percent (100%) of the closing price on the New
York Stock Exchange of a share of the Company's common
stock on the date on which the Stock Units are credited
or deemed credited to the Participant's Accounts (or if
no shares of the Company's common stock are traded on
such date, on the immediately preceding trading date).
For purposes of calculating the number of Stock Units
credited to a Participant's Accounts pursuant to
Section 5.02 (c), the price of a Stock Unit shall be
equal to one hundred percent (100%) of the average
daily closing price on the New York Stock Exchange of a
Share of the Company's common stock for the Year with
respect to which the Stock Units are credited to the
Participant's Accounts,
16
<PAGE> 21
provided, that for Stock Units credited with respect to
the year ending March 31, 2000, such average daily
closing price shall be calculated for the period
beginning on January 1, 2000 and ending on such March
31, 2000.
(b) Voting Rights. A Participant shall not be entitled to
any voting rights with respect to the Stock Units
credited or deemed credited to his Accounts.
(c) Dividends. To the extent that a dividend is paid on the
Company's common stock, the Committee shall credit to
the Accounts of each Participant whose Accounts are
invested or deemed invested in Stock Units an amount
equal to the value of such dividends. Such amounts
shall be credited to the Participant's Accounts in the
form of additional Stock Units at a price equal to one
hundred percent (100%) of the closing price on the New
York Stock Exchange of a share of the Company's common
stock on the date on which such dividend is paid (or if
no shares of the Company's common stock are traded on
such date, on the immediately preceding trading date).
(d) Dilution and Other Adjustments. In the event of any
change in the outstanding shares of common stock of the
Company by reason of any stock dividend, split,
spin-off, recapitalization, merger, consolidation,
combination, extraordinary dividend, exchange of shares
or other similar change, the Committee shall adjust the
number or kind of Stock Units then allocated or deemed
allocated to the Participants' Accounts as follows:
(1) Subject to any required action by stockholders,
the number of Stock Units shall be proportionately
adjusted for any increase or decrease in the
number of issued shares of the Company's common
stock resulting from (i) a subdivision or
consolidation of shares, (ii) the payment of a
stock dividend or (iii) any other increase or
decrease in the number of shares effected without
receipt of consideration by the Company.
(2) In the event of a change in the shares of the
Company's common stock as presently constituted,
which is limited to a change of par value into the
same number of shares with a different par value
or without par value, the shares of the Company's
common stock resulting from any such change shall
be deemed to be the shares of common stock within
the meaning of this Plan.
Any adjustments made by the Committee pursuant to this
Section 5.04 shall be final, binding, and conclusive.
Except as hereinbefore provided in this Section 5.04, a
Participant to whose Account Stock Units are allocated
shall have no rights by reason of (i) any subdivision
or consolidation of the Company's stock or securities,
(ii) the payment of any stock dividend or (iii) any
other increase or decrease in the number of shares of
stock of any class or by reason of any dissolution,
liquidation, reorganization, merger, or consolidation
or spinoff of assets or stock of another corporation,
and any issuance by the Company of additional shares of
stock (of any class), or securities
17
<PAGE> 22
convertible into shares of stock (of any class), shall
not affect the number of Stock Units allocated to such
Participant's Accounts under this Plan.
ARTICLE VI
DISTRIBUTION OF BENEFITS
6.01 General
Within thirty (30) days following the termination of a
Participant's employment, the Committee (i) shall certify to
the Trustee or the Treasurer of the Employer, as applicable,
the total amount of the allocations to the credit of the
Participant on the books of each Employer by which the
Participant was employed at a time when amounts were credited
by such Employer to his Accounts and the Participant's
nonforfeitable interest in such Accounts, and (ii) shall
determine whether the payment of the amounts credited to the
Participant's Accounts under the Plan is to be paid directly
by the applicable Employer, from the Trust Fund, or by a
combination of such sources (except to the extent that the
provisions of the Trust specify payment from the Trust Fund).
6.02 Payments of Benefits
Payment of the nonforfeitable portion of the amounts credited
to a Participant's Accounts shall be made in accordance with
the following provisions:
(a) Death, Disability or Retirement. Payments made with
respect to a Participant's termination of employment
on account of death, Disability or "retirement" (as
defined in the Trinity Industries, Inc. Standard
Pension Plan), shall be made in such form as the
Participant may elect from the following
alternatives:
(1) In a lump sum;
(2) In annual periodic payments for a specified
number of years, not in excess of 20, with
the first payment to be made no later than
the sixtieth (60th) day following the date
on which the Participant's termination of
employment occurs and subsequent payments to
be made in the same calendar quarter of each
succeeding year, where the payment made
during each year shall be in an amount equal
to a fraction of the Participant's Account
balances as of the last day of the calendar
quarter preceding the calendar quarter in
which the payment is made, and where such
fraction for each payment shall be one (1)
divided by the number of payments remaining
(including the current payment), and in
which event the unpaid balance shall
continue to be adjusted as provided in
Section 5.03(a) until it is distributed in
full; or
(3) In any combination of the methods specified
in subparagraphs (1) or (2) of this
paragraph (a).
18
<PAGE> 23
Any election pursuant to this paragraph (a) must be
made prior to the date on which such Employee's
Participation hereunder first commences, with all
payments to be made in the form of a lump sum in the
absence of a timely election and, except as expressly
provided otherwise in this Plan, shall be
irrevocable; provided, however, that a Participant
may change such election once during any Year, with
the new election to be effective for a distribution
arising from termination of employment of the
Participant only if such distribution is to be made
or commence for more than twelve (12) months after
the date of the new election. The Committee shall, as
of the last day of the calendar quarter within which
the Participant terminates employment, certify to the
Trustee or the Treasurer of the Employer, as
applicable, the method of payment selected by the
Participant.
(b) Termination of Employment. Payments with respect to a
Participant's termination of employment for reasons
other than death, Disability or "retirement" (as
defined in the Trinity Industries, Inc. Standard
Pension Plan) shall be made in the form of a lump
sum.
(c) Prior Plan Elections. Notwithstanding the preceding
provisions of this Section 6.02 and with respect to
an Employee who became a Participant in the Prior
Plan before the Effective Date, such Participant's
election with respect to the form of payment made
pursuant to the provisions of the Prior Plan shall
remain in effect unless changed by the Participant in
the manner and to the extent described in paragraph
(a) above.
(d) Timing. Payment of amounts credited to a
Participant's Accounts must be made or commence by no
later than the sixtieth (60th) day following the date
on which the Participant's termination of employment
occurs.
The Trustee (to the extent provided in the Trust) or the
Treasurer of the Employer, as applicable, shall thereafter
make payments of benefits in the manner and at the times
specified above, subject, however, to all of the other terms
and conditions of this Plan and the Trust. This Plan shall be
deemed to authorize the payment of all or any portion of a
Participant's benefits from the Trust Fund to the extent such
payment is required by the provisions of the Trust. Payments
shall be made in cash or, to the extent that any amount to be
distributed has been invested or deemed invested in Stock
Units, in common stock of the Company; provided that any
amount invested or deemed invested in fractional shares shall,
in all events, be paid in cash.
6.03 Vesting of Benefits
(a) Death or Disability. If a Participant's termination
of employment is attributable to his death or
Disability, he shall be entitled to the entire amount
then credited to his Accounts.
(b) Termination of Employment. (1) Compensation Reduction
Contribution Account. If a Participant's termination
of employment is not attributable to his death or
Disability, he shall be entitled to the entire amount
then credited to his Compensation Reduction
Contribution Account.
19
<PAGE> 24
(2) Additional Matching Contribution Account. If a
Participant's termination of employment is not
attributable to his death or Disability, he shall be
entitled to all amounts credited to his Additional
Matching Contribution Account for more than two (2)
calendar years following the end of the calendar year
in which occurs the allocation of the Compensation
Reduction Contribution with respect to which such
Additional Matching Contributions were made;
provided, however, that if the Participant terminates
employment by reason of retirement on or after age
sixty-five (65), the Committee may, in its sole
discretion, authorize a distribution of the entire
amount credited to his Additional Matching
Contribution Account; provided further, that if such
termination of employment occurs on or after a Change
in Control, the Participant shall be entitled to the
entire amount credited to his Additional Matching
Contribution Account.
(3) Other Accounts. If a Participant's termination of
employment is not attributable to his death or
Disability, he shall be entitled to a "vested
percentage" of the amounts credited to his Matching
Contribution Account and Discretionary Contribution
Account, if any, based on his years of Service as
follows:
<TABLE>
<CAPTION>
Vested Forfeited
Years of Service Percentage Percentage
---------------- ---------- ----------
<S> <C> <C>
Less than 1 0% 100%
1 but less than 2 20% 80%
2 but less than 3 40% 60%
3 but less than 4 60% 40%
4 but less than 5 80% 20%
5 or more 100% 0%
</TABLE>
; provided, however, that if the Participant
terminates employment by reason of retirement on or
after age sixty-five (65), the Committee may, in its
discretion, authorize up to full vesting of the
entire amount credited to such Accounts; provided,
further, that if such termination of employment
occurs on or after a Change in Control, the
Participant shall under all circumstances be entitled
to the entire amount credited to such Accounts.
Notwithstanding the preceding provisions of this
subparagraph (3), for amounts credited to a
Participant's Matching Contribution Account and
Discretionary Contribution Account, if any, pursuant
to the terms of the Prior Plan, if the Participant's
termination of employment is attributable to
retirement on or after age sixty-five (65), he shall
under all circumstances be entitled to one hundred
percent (100%) of such amounts.
(d) Amount Credited. For purposes of this Section, the
amount credited to a Participant's Accounts at
termination of employment shall include any amounts
to be credited pursuant to Section 4.01 hereof for
the Year of termination of employment but not yet
allocated.
20
<PAGE> 25
6.04 Death
If a Participant shall die while in the service of an
Employer, or after termination of employment with the
Employers and prior to the complete distribution of all
amounts payable to him under the Plan, any remaining amounts
payable to the Participant hereunder shall be payable to his
Beneficiary. The Committee shall cause the Trustee (to the
extent provided in the Trust) or the Treasurer of the
Employer, as applicable, to pay to such Beneficiary all of the
amounts then standing to the credit of the Participant in his
Accounts, with such payment to be made at the time and in the
manner specified in Section 6.02 hereof.
6.05 Plan Termination
If the Plan is terminated pursuant to the provisions of
Article X hereof, the Committee shall cause the Trustee or the
Treasurer of the Employer, as applicable, to pay to all
Participants all of the amounts then standing to their credit,
with payment to be made at the time and in the manner
specified in Section 6.02 hereof; provided, however, that if
the Plan is terminated on or after a Change in Control,
payment shall be made in the form of a lump sum which shall be
paid no later than sixty (60) days following the date on which
the Plan termination occurs, or, if elected by the Participant
at least one full year prior to the date on which payment
otherwise would have been made upon termination of the Plan,
payment may be made in the form of five annual installments,
with the first installment to be made no later than sixty (60)
days following the date on which the termination occurs and
the remaining installments to be paid no later than the last
day of February of the next four successive calendar years.
Each installment shall be in an amount equal to a fraction of
the total balance in the Participant's Accounts as of the end
of the immediately preceding calendar quarter, where the
fraction shall be one (1) divided by the number of
installments remaining to be paid (including the current
installment), and where the unpaid balance shall continue to
be adjusted as provided in Section 5.03(a) until it is
distributed in full.
6.06 Designation of Beneficiary
Each Participant from time to time may designate any person or
persons (who may be designated contingently or successively
and who may be an entity other than a natural person) as his
Beneficiary or Beneficiaries to whom his Plan benefits are
paid if he dies before receipt of all such benefits. Each
Beneficiary designation shall be on a form prescribed by the
Committee and will be effective only when filed with the
Committee during the Participant's lifetime. Each Beneficiary
designation filed with the Committee will cancel all
Beneficiary designations previously filed with the Committee.
The revocation of a Beneficiary designation, no matter how
effected, shall not require the consent of any designated
Beneficiary.
If any Participant fails to designate a Beneficiary in the
manner provided herein, or if the Beneficiary designated by a
deceased Participant dies before him or before complete
distribution of the Participant's benefits, the Committee, in
its sole discretion, may direct the Trustee to distribute such
Participant's benefits (or the balance thereof) to his
surviving spouse or to either:
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(a) any one or more of the next of kin of such Participant,
and in such proportions as the Committee determines; or
(b) the estate of the last to die of such Participant and
his Beneficiary or Beneficiaries.
6.07 In-Service Distributions
No amounts credited to a Participant's Accounts shall be
distributed to or on behalf of the Participant prior to the
occurrence of one of the events specified in the provisions of
this Article VI except as follows:
(a) A distribution may be made to or on behalf of the
Participant to the extent that the Committee, in its
sole discretion, consents to such distribution upon a
showing, by the Participant, of an unforeseeable
emergency. For this purpose, an "unforeseeable
emergency" is defined as severe financial hardship to
the Participant resulting from a sudden and unexpected
illness or accident of the Participant or of a
dependent of the Participant, loss of the Participant's
property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising
as a result of events beyond the control of the
Participant. The circumstances that will constitute an
unforeseeable emergency will depend on the facts of
each case, but payment may not be made to the extent
that such hardship is or may be relieved--(i) through
reimbursement or compensation by insurance or
otherwise, (ii) by liquidation of the Participant's
assets, to the extent that the liquidation of such
assets would not itself cause severe financial
hardship, or (iii) by cessation of deferrals under the
Plan.
(b) A lump sum distribution may be made to or on behalf of
a Participant at any time, but no more often than once
during any Year, of an amount equal to at least 25% of
the Participant's nonforfeitable Account balances, and
in such proportions from each such Account as the
Participant may request; provided, however, that (i) an
amount equal to 10% of the amount distributed from the
Accounts of a Participant pursuant to this paragraph
shall be forfeited in the same proportion from such
Accounts at the time of the distribution so that the
amount distributed to the Participant pursuant to this
paragraph shall never exceed the amount of the
Participant's nonforfeitable Account balances minus the
amount so forfeited, and (ii) the compensation
reduction agreement of any Participant who receives a
distribution pursuant to this paragraph shall be
suspended for one full year from the date of such
distribution.
6.08 Designated Distributions
Prior to the beginning of a calendar year, a Participant may
elect that all or any portion of the amount of any
Compensation Reduction Contribution to be credited to the
Participant's Compensation Reduction Contribution Account
during such calendar year, be distributed to or on behalf of
the Participant in the form of a lump sum in a subsequent
calendar year designated by the Participant, which subsequent
calendar year shall not be earlier than the third calendar
year following the calendar
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year for which the election is made. The distribution shall
be made no later than March 31 of the designated year. In
the event of the Participant's termination of employment for
any reason prior to the designated year, the election shall
be void and of no effect.
ARTICLE VII
NATURE OF PLAN; FUNDING
7.01 No Trust Required
The adoption of this Plan and any setting aside of amounts by
the Employers with which to discharge their obligations
hereunder shall not be deemed to create a trust; legal and
equitable title to any funds so set aside shall remain with
the Employers, and any recipient of benefits hereunder shall
have no security or other interest in such funds. Any and all
funds so set aside shall remain subject to the claims of the
general creditors of the Employers, present and future. This
provision shall not require the Employers to set aside any
funds, but the Employers may set aside funds if they choose to
do so.
7.02 Funding of Obligation
Section 7.01 above to the contrary notwithstanding, the
Employers may elect to transfer assets to the Trust, the
provisions of which shall at all times require the use of the
Trust's assets to satisfy claims of an Employer's general
unsecured creditors in the event of such Employer's insolvency
and direct that no Participant shall at any time have a prior
claim to such assets. The assets of the Trust shall not be
deemed to be assets of this Plan.
ARTICLE VIII
ADMINISTRATION
8.01 Appointment of Committee
The Board of Directors of the Company shall appoint a Plan
Committee to administer, construe and interpret the Plan. Such
Committee, or such successor Committee as may be duly
appointed by such Board of Directors, shall serve at the
pleasure of the Board of Directors. All usual and reasonable
expenses of the Committee shall be paid by the Employers.
Decisions of the Committee with respect to any matter
involving the Plan shall be final and binding on the Company,
its shareholders, each Employer and all officers and other
executives of the Employers. For purposes of ERISA, the
Committee shall be the Plan "administrator" with respect to
the general administration of the Plan.
8.02 Duties of Committee
The Committee shall maintain complete and adequate records
pertaining to the Plan, including but not limited to
Participants' Accounts, amounts transferred to the Trust,
reports from the Trustee and all other records that shall be
necessary or desirable in
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the proper administration of the Plan. The Committee shall
furnish the Trustee such information as is required to be
furnished by the Committee or the Company pursuant to the
Trust. The Committee may employ such persons or appoint such
agents to assist it in the performance of its duties as it
may deem appropriate. If a member of the Committee is a
Participant hereunder, such Committee member shall be
precluded from participation in any decision relative to his
benefits under the Plan.
8.03 Indemnification of Committee
The Company (the "Indemnifying Party") hereby agrees to
indemnify and hold harmless the members of the Committee (the
"Indemnified Parties") against any losses, claims, damages or
liabilities to which any of the Indemnified Parties may become
subject to the extent that such losses, claims, damages or
liabilities or actions in respect thereof arise out of or are
based upon any act or omission of the Indemnified Party in
connection with the administration of this Plan (other than
any act or omission of such Indemnified Party constituting
gross negligence or willful misconduct), and will reimburse
the Indemnified Party for any legal or other expenses
reasonably incurred by him or her in connection with
investigating or defending against any such loss, claim,
damage, liability or action. Promptly after receipt by the
Indemnified Party of notice of the commencement of any action
or proceeding with respect to any loss, claim, damage or
liability against which the Indemnified Party believes he or
she is indemnified, the Indemnified Party shall, if a claim
with respect thereto is to be made against the Indemnifying
Party, notify the Indemnifying Party in writing of the
commencement thereof; provided, however, that the omission so
to notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party to the
extent the Indemnifying Party is not prejudiced by such
omission. If any such action or proceeding shall be brought
against the Indemnified Party, and it shall notify the
Indemnifying Party of the commencement thereof, the
Indemnifying Party shall be entitled to participate therein,
and, to the extent that it shall wish, to assume the defense
thereof, with counsel reasonably satisfactory to the
Indemnified Party, and, after notice from the Indemnifying
Party to the Indemnified Party of its election to assume the
defense thereof, the Indemnifying Party shall not be liable to
such Indemnified Party for any legal or other expenses
subsequently incurred by the Indemnified Party in connection
with the defense thereof other than reasonable costs of
investigation or reasonable expenses of actions taken at the
written request of the Indemnifying Party. The Indemnifying
Party shall not be liable for any compromise or settlement of
any such action or proceeding effected without its consent,
which consent will not be unreasonably withheld.
8.04 Unclaimed Benefits
During the time when a benefit hereunder is payable to any
Participant or Beneficiary, the Committee may, at its own
instance, mail by registered or certified mail to such
Participant or Beneficiary, at his last known address, a
written demand for his then address, or for satisfactory
evidence of his continued life, or both. If such information
is not furnished to the Committee within twelve (12) months
from the mailing of such demand, then the Committee may, in
its sole discretion, declare such benefit, or any unpaid
portion thereof, suspended, with the result that such
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unclaimed benefit shall be treated as a Forfeiture for the
Year with or within which such twelve (12)-month period ends,
but shall be subject to restoration through an Employer
contribution if the lost Participant or Beneficiary later
files a claim for such benefit.
ARTICLE IX
MISCELLANEOUS
9.01 Nonguarantee of Employment
Nothing contained in this Plan shall be construed as a
contract of employment between any Employer and any Employee,
or as a right of any Employee to be continued in the
employment of any Employer, or as a limitation on the right of
an Employer to discharge any of its Employees, with or without
cause.
9.02 Nonalienation of Benefits
Benefits payable under this Plan shall not be subject in any
manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment,
execution, or levy of any kind, either voluntary or
involuntary, prior to actually being received by the person
entitled to the benefit under the terms of the Plan; and any
attempt to anticipate, alienate, sell, transfer, assign,
pledge, encumber, charge or otherwise dispose of any right to
benefits payable hereunder shall be void.
9.03 No Preference
No Participant shall have any preference over the general
creditors of an Employer in the event of such Employer's
insolvency.
9.04 Incompetence of Recipient
If the Committee receives evidence satisfactory to it that any
person entitled to receive a payment hereunder is, at the time
the benefit is payable, physically, mentally or legally
incompetent to receive such payment and to give a valid
receipt therefor, and that an individual or institution is
then maintaining or has custody of such person and that no
guardian, committee or other representative of the estate of
such person has been duly appointed, the Committee may direct
that such payment be paid to such individual or institution
maintaining or having custody of such person, and the receipt
of such individual or institution shall be valid and a
complete discharge for the payment of such benefit.
9.05 Texas Law to Apply
THIS PLAN SHALL BE CONSTRUED AND ENFORCED UNDER THE LAWS OF
THE STATE OF TEXAS EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL
LAW.
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9.06 Claims Procedure/Arbitration
If any person (hereinafter called the "Claimant") feels that
he or she is being denied a benefit to which he or she is
entitled under this Plan, such Claimant may file a written
claim for said benefit with the Committee. Within sixty (60)
days following the receipt of such claim the Committee shall
determine and notify the Claimant as to whether he or she is
entitled to such benefit. Such notification shall be in
writing and, if denying the claim for benefit, shall set forth
the specific reason or reasons for the denial, make specific
reference to the pertinent provisions of this Plan, and advise
the Claimant that he or she may, within sixty (60) days
following the receipt of such notice, in writing request to
appear before the Committee or its designated representative
for a hearing to review such denial. Any such hearing shall be
scheduled at the mutual convenience of the Committee or its
designated representative and the Claimant, and at any such
hearing the Claimant and/or his or her duly authorized
representative may examine any relevant documents and present
evidence and arguments to support the granting of the benefit
being claimed. The final decision of the Committee with
respect to the claim being reviewed shall be made within sixty
(60) days following the hearing thereon, and the Committee
shall in writing notify the Claimant of said final decision,
again specifying the reasons therefor and the pertinent
provisions of this Plan upon which said final decision is
based. The final decision of the Committee shall be conclusive
and binding upon all parties having or claiming to have an
interest in the matter being reviewed.
Any dispute or controversy arising out of, or relating to, the
payment of benefits pursuant to this Plan shall be settled by
arbitration in Dallas, Texas (or, if applicable law requires
some other forum, then such other forum) in accordance with
the rules then obtaining of the American Arbitration
Association. The District Court of Dallas County, Texas or, as
the case may be, the United States District Court for the
Northern District of Texas shall have jurisdiction for all
purposes in connection with any such arbitration. Any process
or notice of motion or other application to either of said
courts, and any paper in connection with arbitration, may be
served by certified mail, return receipt requested, or by
personal service or in such other manner as may be permissible
under the rules of the applicable court or arbitration
tribunal, provided a reasonable time for appearance is
allowed. Arbitration proceedings must be instituted within one
(1) year after the claimed breach occurred, and the failure to
institute arbitration proceedings within such period shall
constitute an absolute bar to the institution of any
proceedings, and a waiver of all claims, with respect to such
breach.
9.07 Reimbursement of Costs
In the event that a dispute arises between a Participant or
Beneficiary and the Company or other Employer with respect to
the payment of benefits hereunder, and attorney's fees,
expenses and costs are incurred by either party in the course
of litigation or otherwise, the party against whom the other
party has been successful in such dispute shall reimburse such
other party for the full amount of any such attorneys' fees,
expenses and costs.
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9.08 Acceleration of Payment
In the event that the Internal Revenue Service formally
assesses a deficiency against a Participant on the grounds
that an amount credited to such Participant's Accounts under
this Plan is subject to Federal income tax (the "Reclassified
Amount") earlier than the time payment otherwise would be made
to the Participant pursuant to this Plan, then the Committee
shall direct the Employer maintaining such Participant's
Accounts to pay to such Participant and deduct from such
Account the Reclassified Amount.
ARTICLE X
AMENDMENTS OR TERMINATION OF PLAN
The Board of Directors of the Company shall have the power and right
from time to time to modify, amend, supplement, suspend or terminate the Plan as
it applies to each Employer, provided that no such change in the Plan may
deprive a Participant of the amounts allocated to his or her accounts or be
retroactive in effect to the prejudice of any Participant.
Any provision of this Plan to the contrary notwithstanding, no action
to modify, amend, supplement, suspend or terminate the Plan on or after the date
of a Change in Control shall be effective without the consent of a majority of
the Participants in the Plan at the time of such action.
ARTICLE XI
WITHDRAWING EMPLOYERS; TRANSFER TO SUCCESSOR PLAN
11.01 Withdrawing Employers
In the event that a Participating Employer elects to
discontinue or revoke its participation in this Plan:
(a) the Company shall cause to be prepared a new plan (the
"Successor Plan") for the withdrawing Participating
Employer, the terms of which shall be identical to the
terms of this Plan;
(b) the Company shall transfer, deliver and assign any and
all benefit obligations under this Plan which relate to
Participants who are employees of the withdrawing
Participating Employer or its subsidiaries to the
Successor Plan; and
(c) the withdrawing Participating Employer shall be deemed
to have consented to the adoption of the Successor
Plan.
For purposes of this provision, the Successor Plan shall treat
all benefit obligations described under (b) above as if they
had accrued due to an individual's service with the
withdrawing Participating Employer. Subsequent to the
withdrawing Participating Employer's adoption of the Successor
Plan, and the transfer of benefit obligations from this Plan
to the Successor Plan, Participants whose benefits were
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transferred to the Successor Plan shall not be entitled to
receive any amounts from this Plan which relate to benefit
obligations which accrued prior to the transfer.
11.02 Transfer to Successor Plan
Any provision of this Plan to the contrary notwithstanding, in
the event that:
(a) the employment of a Participant with the Company or
other Participating Employer is terminated in
connection with the sale, spin-off or other disposition
of a direct or indirect subsidiary of the Company or a
sale or other disposition of assets of the Company or
the assets of a direct or indirect subsidiary of the
Company (the "Transaction");
(b) in connection with the Transaction, such terminated
Participant becomes employed by the subsidiary that is
sold, spun-off or otherwise disposed of, the purchaser
of the subsidiary or assets or other surviving entity
in the Transaction, as the case may be, or an affiliate
thereof, (the "Successor Employer"); and
(c) in connection with and effective as of or prior to the
closing of the Transaction, the Successor Employer
establishes a new plan, the terms of which are
substantially identical to the terms of this Plan and
which treat all benefit obligations which relate to the
Participant (including those transferred to the
Successor Plan pursuant to the provisions of this
Section) as if they had accrued due to the
Participant's service with the Successor Employer (the
"Successor Plan"),and a new rabbi trust, the terms of
which are substantially identical to the terms of the
Trust (the "Successor Trust"),
then the Participant shall not be entitled to a distribution
of benefits from this Plan on account of such termination of
employment, and the Company or other Participating Employer
which formerly employed the Participant and which maintains an
Account or Accounts for such Participant under this Plan shall
transfer, deliver and assign to the Successor Plan and
Successor Employer as of the date the Participant becomes
employed by the Successor Employer any and all benefit
obligations under this Plan which relate to the Participant,
and effective with and subsequent to the adoption of the
Successor Plan by the Successor Employer and the transfer of
the Participant's benefit obligations from this Plan to the
Successor Plan, the Participant whose benefits were
transferred to the Successor Plan shall not be entitled to
receive any amounts from this Plan which relate to benefit
obligations which accrued prior to the transfer. The preceding
provisions to the contrary notwithstanding, the provisions of
this Section 11.02 shall not be effective for Transactions
that occur on or after the date of a Change in Control without
the written consent of a majority of the Participants in the
Plan at such time.
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IN TESTIMONY WHEREOF, TRINITY INDUSTRIES, INC. has caused this instrument
to be executed in its name and on its behalf, by the officer thereunto duly
authorized, this 16th day of November, 1999, effective as of January 1, 2000.
TRINITY INDUSTRIES, INC.
By: /s/ M.J. Lintner
-----------------------------------------
Title: Vice President, Human Resources
---------------------------------------
ATTEST:
/s/ Michael G. Fortado
- -----------------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on the 16th day of November,
1999, by M.J. Lintner of TRINITY INDUSTRIES, INC., a Delaware corporation, on
behalf of said corporation.
/s/ Kathleen L. Southmayd
-----------------------------------------
Notary Public in and for
the State of Texas
My Commission Expires: Printed Name of Notary:
6/24/03 Kathleen L. Southmayd
- ----------------------------- -----------------------------------------
