As filed with the Securities and Exchange Commission on May 5, 2000
Registration No. 333-88613
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO FORM S-4 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VIACOM INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1515 Broadway
New York, New York 10036
(212) 258-6000
(Address, including zip code, and telephone number, including area
code of Registrant's principal executive offices)
-------------------------
The Westinghouse Savings Program
CBS Employee Investment Fund
Infinity Broadcasting Corporation Employees' 401(k) Plan and
Infinity Broadcasting Corporation Employees' 401(k) Union Plan
Amended and Restated Infinity Broadcasting Corporation Stock Option Plan
Infinity Broadcasting Corporation Warrant Certificate No. 3 to Mel Karmazin
King World 1998 Stock Option and Restricted Stock Purchase Plan
King World 1996 Amended and Restated Stock Option
and Restricted Stock Purchase Plan
King World Salesforce Bonus Plan
Gaylord Entertainment Company Amended and Restated 1993
Stock Option and Incentive Plan
Gaylord Entertainment Company Amended and Restated 1991
Stock Option and Incentive Plan
CBS Corporation Deferred Compensation and Stock Plan for Directors
CBS 1991 Long-Term Incentive Plan
CBS 1993 Long-Term Incentive Plan
Westinghouse 1984 Long-Term Incentive Plan
Non-Qualified Stock Option Agreement for Leo Yochum
(Full titles of the Plans)
--------------------------
Michael D. Fricklas, Esq.
Executive Vice President,
General Counsel and Secretary
Viacom Inc.
1515 Broadway
New York, New York 10036
(212) 258-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement
relates to 71,927,276 shares of Class B Common Stock, par value $.01 per share
(the "Class B Common Stock"), of Viacom Inc. (the "Registrant"). Such shares
are issuable (i) to holders of outstanding options and warrants to purchase
shares of Common Stock, par value $1.00 per share, of CBS Corporation ("CBS"),
which options were assumed by the Registrant upon the effective time of the
merger of CBS with and into the Registrant (the "Merger") on May 4, 2000 (the
"Effective Time") and (ii) under the Westinghouse Savings Program, CBS Employee
Investment Fund, Infinity Broadcasting Corporation Employees' 401(k) Plan and
Infinity Broadcasting Corporation Employees' 401(k) Union Plan (the "CBS
Investment Plans") which were assumed by the Registrant on the Effective Time.
These shares of Class B Common Stock were originally registered on the
Registrant's Registration Statement on Form S-4 to which this is an amendment;
accordingly, the registration fee in respect of such Class B Common Stock was
paid at the time of the original filing of the Registration Statement relating
to such Class B Common Stock. Pursuant to Rule 416(c) under the Securities Act
of 1933, as amended (the "Securities Act") this Post-Effective Amendment also
covers an indeterminate amount of interests to be offered or sold pursuant to
the CBS Investment Plans.
EXPLANATORY NOTE
Pursuant to an Agreement and Plan of Merger, dated as of
September 6, 1999, as amended and restated as of October 8, 1999 and as of
November 23, 1999 (the "Merger Agreement"), among the Registrant, CBS
Corporation ("CBS") and Viacom/CBS LLC, among other things, (i) CBS merged with
and into the Registrant with the Registrant continuing as the surviving
corporation, (ii) each share of common stock, par value $1.00 per share, of CBS
("CBS Common Stock"), issued and outstanding immediately prior to the Effective
Time was converted into the right to receive 1.085 shares of Class B Common
Stock, and (iii) at the Effective Time, shares of Class B Common Stock, rather
than shares of CBS Common Stock, became issuable pursuant to the following
plans:
CBS Investment Plans
--------------------
o The Westinghouse Savings Program
o CBS Employee Investment Fund
o Infinity Broadcasting Corporation Employees' 401(k)
Plan
o Infinity Broadcasting Corporation Employees' 401(k)
Union Plan
CBS Option Plans
----------------
o Amended and Restated Infinity Broadcasting Corporation
Stock Option Plan
o Infinity Broadcasting Corporation Warrant Certificate
No. 3 to Mel Karmazin
o King World 1998 Stock Option and Restricted Stock
Purchase Plan
o King World 1996 Amended and Restated Stock Option and
Restricted Stock Purchase Plan
o King World Salesforce Bonus Plan
o Gaylord Entertainment Company Amended and Restated 1993
Stock Option and Incentive Plan
o Gaylord Entertainment Company Amended and Restated 1991
Stock Option and Incentive Plan
o CBS Corporation Deferred Compensation and Stock Plan
for Directors
o CBS 1991 Long-Term Incentive Plan
o CBS 1993 Long-Term Incentive Plan
o Westinghouse 1984 Long-Term Incentive Plan
o Non-Qualified Stock Option Agreement for Leo Yochum
Viacom hereby amends its Registration Statement (the
"Registration Statement") on Form S-4 (No. 333-88613), filed with the Securities
and Exchange Commission on November 24, 1999, by filing this Post-Effective
Amendment No. 1 on Form S-8 (the "Post-Effective Amendment") relating to
64,015,000 shares of Class B Common Stock issuable upon the exercise of options
and warrants to acquire or receive shares of Class B Common Stock pursuant to
the provisions of the CBS Option Plans and 7,912,276 shares of Class B Common
Stock available under the CBS Investment Plans. Pursuant to Rule 416(c) under
the Securities Act of 1933, as amended (the "Securities Act"), this
Post-Effective Amendment also covers an indeterminate amount of interests to be
offered or sold pursuant to the CBS Investment Plans.
2
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- ----------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act, and the "Note" to Part I of Form S-8.
3
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant are hereby incorporated by
reference into this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, as amended by Amendment No. 1 to the Annual Report
on Form 10-K/A dated April 28, 2000;
(b) Current Report on Form 8-K dated May 4, 2000;
(c) The description of the Registrant's Class B Common Stock
contained in the Registrant's joint proxy statement/prospectus included
in the Registration Statement.
(d) Joint proxy statement/prospectus filed by the Registrant
and CBS on November 24, 1999.
The following documents filed with the Commission by CBS are
hereby incorporated by reference into this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, as amended by Amendment No. 1 to the Annual Report
on Form 10-K/A dated April 28, 2000.;
(b) Annual Report on Form 11-K for the Westinghouse Savings
Program for the fiscal year ended December 31, 1998.
(c) Annual Report on Form 11-K for the CBS Employee Investment
Fund for the fiscal year ended December 31, 1998.
(d) Annual Report on Form 11-K for the Infinity Broadcasting
Corporation Employees' 401(k) Plan for the fiscal year ended December
31, 1998.
(e) Annual Report on Form 11-K for the Infinity Broadcasting
Corporation Employees' 401(k) Union Plan for the fiscal year ended
December 31, 1998.
All documents subsequently filed by the Registrant 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
to this 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 in this Registration Statement and to
be part thereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by
4
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law
("DGCL") allows a corporation to include in its certificate of incorporation a
provision eliminating the personal liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except in cases where the director breached his or her duty of loyalty
to the corporation or its stockholders, failed to act in good faith, engaged in
intentional misconduct or a knowing violation of the law, willfully or
negligently authorized the unlawful payment of a dividend or approved an
unlawful stock redemption or repurchase or obtained an improper personal
benefit. The Registrant's Restated Certificate of Incorporation (the "Viacom
Charter") contains provisions that eliminate directors' personal liability, in
certain circumstances.
Section 1 of Article VI of the Viacom Charter provides that the
Registrant shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of the Registrant) by reason of the fact that he or
she is or was a director, officer, employee or agent of the Registrant, or is or
was serving at the request of the Registrant as a director, officer, employee or
agent (including trustee) of another corporation, partnership, joint venture,
trust or other enterprise, against judgments, fines, amounts paid in settlement
and expenses (including attorneys' fees), actually and reasonably incurred by
him in connection with such action, suit or proceedings if he acted in good
faith and in a manner reasonably believed to be in or not opposed to the best
interests of the Registrant, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Registrant, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
5
Section 2 of Article VI of the Viacom Charter provides that the
Registrant shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Registrant to procure a judgment in its favor by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Registrant unless and only to the extent that the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability and in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnify for such
expenses which the court shall deem proper.
Section 4 of Article VI of the Viacom Charter provides that any
indemnification made pursuant to the above provisions (unless ordered by a
court) shall be made by the Registrant only as authorized in the specific case
upon a determination that indemnification of the present or former director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct as set forth above. Such determination shall be
made, with respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceedings, even though less than a quorum, or (2) by a
committee of such directors designated by a majority vote of such directors,
even though less than a quorum, or (3) if there are no such directors, or if
such directors so direct, by independent legal counsel in a written opinion, or
(4) by the stockholders of the Registrant entitled to vote thereon.
The Viacom Charter provides that to the extent that a present
or former director, officer, employee or agent of the Registrant has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by that person in connection therewith. The
indemnification and advancement of expenses provided by, or granted pursuant to,
the indemnification provisions of the Viacom Charter shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled under any statute, by-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in that person's official capacity and as to action in another capacity while
holding such office. Without limiting the foregoing, the Registrant is
authorized to enter into an agreement with any director, officer, employee or
agent of the Registrant providing indemnification for such person against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement that result from any threatened pending or completed actions, suit or
proceeding, whether civil, criminal, administrative or investigative, including
any action by or in the right of the Registrant, that arises by reason of the
fact that such person is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, to the full extent allowed by law, except that no
such agreement shall provide for indemnification for any actions that constitute
fraud, actual dishonesty or willful misconduct.
6
The Registrant may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Registrant would have the power to indemnify him against such
liability under the provisions of Article VI of the Viacom Charter.
Pursuant to Section 7 of Article VI of the Viacom Charter, the
Registrant has purchased certain liability insurance for its officers and
directors as permitted by Section 145(g) of the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
The Registrant has submitted the CBS Investment Plans to the
Internal Revenue Service (the "IRS") in a timely manner for a determination as
to the qualification of the CBS Investment Plans under Sections 401(k) and
501(a) of the Internal Revenue Code of 1986, as amended, and the Registrant will
cause all changes required by the IRS to be made to maintain the qualification
of the CBS Investment Plans.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under
the 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; and
(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) The undersigned Registrant hereby further undertakes that,
for purposes of determining any liability under the Securities Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act that is incorporated by reference in the Registration
7
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 the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant 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 the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Post-Effective Amendment No. 1 on Form S-8 to
Form S-4 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York on May 6,
2000.
VIACOM INC.
(Registrant)
By: /s/ Michael D. Fricklas
-------------------------------------
Name: Michael D. Fricklas
Title: Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration
Statement has been signed by the following persons in the capacities indicated
on the 5th day of May, 2000.
Signature Capacity
*
- ------------------------------------- Director
George S. Abrams
*
- ------------------------------------- Director
George H. Conrades
*
- ------------------------------------- Director
Philippe P. Dauman
*
- ------------------------------------- Director
Thomas E. Dooley
*
- ------------------------------------- Director
William H. Gray III
*
- ------------------------------------- Director, President and
Mel Karmazin Chief Operating Officer
*
- ------------------------------------- Director
Jan Leschly
*
- ------------------------------------- Director
David T. McLaughlin
*
- ------------------------------------- Director
Leslie Moonves
*
- ------------------------------------- Director
Ken Miller
*
- ------------------------------------- Director
Brent D. Redstone
*
- ------------------------------------- Director
Shari Redstone
*
- ------------------------------------- Director, Chairman of the Board
Sumner M. Redstone and Chief Executive Officer,
(Principal Executive Officer)
*
- ------------------------------------- Executive Vice President and
Fredric G. Reynolds Chief Financial Officer
(Principal Financial Officer)
*
- ------------------------------------- Director
Frederic V. Salerno
*
- ------------------------------------- Director
William Schwartz
*
- ------------------------------------- Director
Ivan Seidenberg
*
- ------------------------------------- Director
Patty Stonesifer
*
- ------------------------------------- Director
Robert D. Walter
*
- ------------------------------------- Vice President, Controller and
Susan C. Gordon Chief Accounting Officer
(Principal Accounting Officer)
*By: /s/ Michael D. Fricklas May 5, 2000
-------------------------------
Michael D. Fricklas
Attorney-in-Fact
Westinghouse Savings Program. Pursuant to the requirements of
the Securities Act, the trustee (or other persons who administer the employee
benefit plan) have duly caused this Post-Effective Amendment to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 5th day of May, 2000.
WESTINGHOUSE SAVINGS PROGRAM
By: /s/ William A. Roskin
---------------------------------------
Name: William A. Roskin
Title: Executive Vice President, Human
Resources and Administration,
Viacom Inc.
CBS Employee Investment Fund. Pursuant to the requirements of
the Securities Act, the trustee (or other persons who administer the employee
benefit plan) have duly caused this Post-Effective Amendment to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on this 5th day of May, 2000.
CBS EMPLOYEE INVESTMENT FUND
By: /s/ William A. Roskin
---------------------------------------
Name: William A. Roskin
Title: Executive Vice President, Human
Resources and Administration,
Viacom Inc.
Infinity Broadcasting Corporation Employees' 401(k) Plan.
Pursuant to the requirements of the Securities Act, the trustee (or other
persons who administer the employee benefit plan) have duly caused this Post-
Effective Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 5th day of
May, 2000.
INFINITY BROADCASTING CORPORATION
EMPLOYEES' 401(k) PLAN
By: /s/ William A. Roskin
---------------------------------------
Name: William A. Roskin
Title: Executive Vice President, Human
Resources and Administration,
Viacom Inc.
Infinity Broadcasting Corporation Employees' 401(k) Union Plan.
Pursuant to the requirements of the Securities Act, the trustee (or other
persons who administer the employee benefit plan) have duly caused this
Post-Effective Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on this
5th day of May, 2000.
INFINITY BROADCASTING CORPORATION
EMPLOYEES' 401(k) UNION PLAN
By:/s/ William A. Roskin
---------------------------------------
Name: William A. Roskin
Title: Executive Vice President, Human
Resources and Administration,
Viacom Inc.
13
Exhibit Index
Exhibit No. Description of Document
4.1 Restated Certificate of Incorporation of Viacom Inc. (incorporated
by reference to Exhibit 3.1 to Amendment No. 3 to the Registrant's
Registration Statement on Form S-4 filed by the Registrant on
November 24, 1999 (Registration No. 333-88613)).
4.2 By-laws of Viacom Inc. (incorporated by reference to Exhibit 3.2
to Amendment No. 3 to the Registrant's Registration Statement on
Form S-4 filed by the Registrant on November 24, 1999
(Registration No. 333-88613)).
4.3 Agreement and Plan of Merger, dated as of September 6, 1999, as
amended and restated as of October 8, 1999 and as of November 23,
1999, among Viacom Inc., CBS Corporation and Viacom/CBS LLC
(incorporated by reference to Amendment No. 3 to the Registration
Statement on Form S-4 filed by the Registrant on November 24, 1999
(Registration No. 333-88613)).
4.4* CBS 1993 Long-Term Incentive Plan, amended as of July 28, 1999.
4.5* CBS 1991 Long-Term Incentive Plan, amended as of July 28, 1999.
4.6 Westinghouse 1984 Long-Term Incentive Plan, amended as of November
1, 1996 (incorporated by reference to Exhibit 10(c) to Form 10-Q
of CBS Corporation for the quarter ended September 30, 1996).
4.7* CBS Corporation Deferred Compensation and Stock Plan for
Directors, amended as of July 28, 1999.
4.8 Amended and Restated Infinity Broadcasting Corporation Stock
Option Plan (incorporated by reference to Exhibit 4.4 to CBS
Corporation's Registration Statement on Post-Effective Amendment
No. 1 on Form S-8 to Form S-4 by CBS Corporation on January 2,
1997 (Registration No. 333-13219)).
4.9 Infinity Broadcasting Corporation Warrant Certificate No. 3 to Mel
Karmazin (incorporated by reference to Exhibit 4.6 to CBS
Corporation's Registration Statement on Post-Effective Amendment
No. 1 on Form S-8 to Form S-4 filed by CBS Corporation on January
2, 1997 (Registration No. 333-13219)).
14
4.10 King World 1998 Stock Option and Restricted Stock Purchase Plan
(incorporated by reference to Exhibit 10.1 to the Quarterly Report
on Form 10-Q of King World Productions, Inc. for the quarter ended
March 31, 1999).
4.11 King World 1996 Amended and Restated Stock Option and Restricted
Stock Purchase Plan (incorporated by reference to Exhibit 10.11 to
the Annual Report on Form 10-K of King World Productions, Inc. for
the fiscal year ended August 31, 1997).
4.12 King World Salesforce Bonus Plan (incorporated by reference to
Exhibit 10.2 to King World Productions, Inc.'s Registration
Statement on Form S-8 filed by King World Production, Inc. on
April 22, 1997 (Registration No. 333-11363)).
4.13 Gaylord Entertainment Company Amended and Restated 1993 Stock
Option and Incentive Plan (incorporated by reference to Exhibit
10.4 to the Quarterly Report on Form 10-Q of Gaylord Entertainment
Company for the quarter ended September 30, 1995).
4.14 Gaylord Entertainment Company Amended and Restated 1991 Stock
Option and Incentive Plan (incorporated by reference to Exhibit
10.3 to the Quarterly Report on Form 10-Q of Gaylord Entertainment
Company for the quarter ended September 30, 1995).
4.15* The Westinghouse Savings Program.
4.16* CBS Employee Investment Fund.
4.17* Infinity Broadcasting Corporation Employees' 401(k) Plan.
4.18* Infinity Broadcasting Corporation Employees' 401(k) Union Plan.
4.19* Non-Qualified Stock Option Agreement for Leo Yochum.
5.1** Opinion of Michael D. Fricklas, Executive Vice President, General
Counsel and Secretary of the Registrant, as to the legality of the
securities being registered.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of PricewaterhouseCoopers LLP.
23.3* Consent of KPMG LLP.
23.4* Consent of Mitchell & Titus, LLP.
23.5 Consent of Michael D. Fricklas, Executive Vice President, General
Counsel and Secretary of the Registrant (included in Exhibit 5.1).
24* Powers of Attorney.
- ------------------
* Filed herewith.
** Previously filed.
EXHIBIT 4.4
CBS CORPORATION
1993 LONG-TERM INCENTIVE PLAN
(as amended as of July 28, 1999)
ARTICLE I
GENERAL
1.1 Purpose
The purposes of the 1993 Long-Term Incentive Plan ("Plan") for key
personnel of CBS Corporation (formerly known as Westinghouse Electric
Corporation) ("Corporation") and its Subsidiaries (the Corporation and its
Subsidiaries severally and collectively referred to in the Plan as the
"Company") are to foster and promote the long-term financial success of the
Company and materially increase stockholder value by (i) attracting and
retaining key personnel of outstanding ability, (ii) strengthening the Company's
capability to develop, maintain and direct a competent management team, (iii)
motivating key personnel, by means of performance-related incentives, to achieve
long-range performance goals, (iv) providing incentive compensation
opportunities competitive with those of other major companies and (v) enabling
key personnel to participate in the long-term growth and financial success of
the Company.
1.2 Administration
(a) The Plan will be administered by a committee of the Board of
Directors of the Corporation ("Committee") which will consist of two or more
members. Each member will be a "non-employee director," as that term is defined
by Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), as such rule may be amended, or any successor rule, and an
"outside director," as that term is defined by Section 162(m) of the Internal
Revenue Code of 1986, as amended. The members will be appointed by the Board of
Directors, and any vacancy on the Committee will be filled by the Board of
Directors or in a manner authorized by the Board.
The Committee will keep minutes of its meetings and of any action taken
by it without a meeting. A majority of the Committee will constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present will be the acts of the Committee. Any action that may be
taken at a meeting of the Committee may be taken without a meeting if a consent
or consents in writing setting forth the action so taken is signed by all of the
members of the Committee. The Committee will make appropriate reports to the
Board of Directors concerning the operations of the Plan.
(b) Subject to the limitations of the Plan, the Committee will have the
sole and complete authority: (i) to select in accordance with Section 1.3
persons who will participate in the Plan ("Participant" or "Participants")
(including the right to delegate authority to select as Participants persons who
are not required to file reports with respect to securities of the Company
pursuant to
Section 16(a) of the Exchange Act ("Nonreporting Persons")); (ii) to make Awards
and payments in such forms and amounts as it may determine (including the right
to delegate authority to make Awards to Nonreporting Persons within limits
approved from time to time by the Committee); (iii) to impose such limitations,
restrictions and conditions upon such Awards as the Committee, or, with respect
to Awards to Nonreporting Persons, the Committee's authorized delegates, deems
appropriate; (iv) to interpret the Plan and the terms of any document relating
to the Plan and to adopt, amend and rescind administrative guidelines and other
rules and regulations relating to the Plan; (v) to amend or cancel an existing
Award in whole or in part (including the right to delegate authority to amend or
cancel an existing Award to a Nonreporting Person in whole or in part within
limits approved from time to time by the Committee), except that the Committee
and its authorized delegates may not, unless otherwise provided in the Plan, or
unless the Participant affected thereby consents, take any action under this
clause that would adversely affect the rights of such Participant with respect
to the Award, and except that the Committee and its authorized delegates may not
take any action to amend any outstanding Option under the Plan in order to
decrease the Option Price under such Option or to cancel and replace any such
Option with an Option with a lower Option Price unless such action is approved
by the common stockholders of the Corporation; and (vi) to make all other
determinations and to take all other actions necessary or advisable for the
interpretation, implementation and administration of the Plan. The Committee's
determinations on matters within its authority will be conclusive and binding
upon the Company and all other persons.
(c) The Committee will act with respect to the Plan on behalf of the
Corporation and on behalf of any Subsidiary issuing stock under the Plan,
subject to appropriate action by the board of directors of any such Subsidiary.
All expenses associated with the Plan will be borne by the Corporation subject
to such allocation to its Subsidiaries and operating units as it deems
appropriate.
1.3 Selection for Participation
Participants selected by the Committee (or its authorized delegates)
must be Eligible Persons, as defined below, who are key employees and have the
capacity to contribute to the success of the Company. "Eligible Persons" are
persons who are salaried employees of the Company ("Employee" or "Employees").
In making this selection and in determining the form and amount of Awards, the
Committee may give consideration to the functions and responsibilities of the
Eligible Person, his or her past, present and potential contributions to the
Company and other factors deemed relevant by the Committee.
1.4 Types of Awards under Plan
Awards ("Awards") under the Plan may be in the form of any one or more
of the following: (i) Incentive Stock Options ("ISOs") and Non-statutory Stock
options ("NSOs") (Incentive Stock Options and Non-statutory Stock Options
severally and collectively referred to in the Plan as "Options"), as described
in Article II; (ii) Stock Appreciation Rights ("SARs") and Limited Stock
Appreciation Rights ("Limited Rights"), as described in Article III;
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(iii) Performance Awards ("Performance Awards") as described in Article IV; and
(iv) Restricted Stock ("Restricted Stock") as described in Article V.
1.5 Shares Subject to the Plan
Shares of stock issued under the Plan may be in whole or in part
authorized and unissued or treasury shares of the Corporation's common stock,
par value $1.00 ("Common Stock"), or "Formula Value Stock" as defined in Section
8.12(d) (Common Stock and Formula Value Stock severally and collectively
referred to in the Plan as "Stock").
The maximum number of shares of Stock which may be issued for all
purposes under the Plan will be 4,000,000 increased on January 1 of each
calendar year from and including 1994 to and including 2003 by a number of
shares equal to one percent (1%) of the number of shares of Stock outstanding on
December 31 of the preceding year. The maximum number of such shares which may
be issued pursuant to the exercise of ISOs will be 1,000,000 increased on
January 1 of each calendar year from and including 1994 to and including 2003 by
1,000,000 shares. The maximum number of such shares subject to options to
purchase Stock, SARs and Limited Rights under the Plan awarded to any one
Participant in any one calendar year may not exceed 3,500,000 shares plus unused
share amounts that could have been awarded to that Participant in previous
calendar years.
Except as otherwise provided below, any shares of Stock subject to an
Option or other Award which is canceled or terminates without having been
exercised will again be available for Awards under the Plan. Shares subject to
an option canceled upon the exercise of an SAR will not again be available for
Awards under the Plan except to the extent the SAR is settled in cash. To the
extent that an Award is settled in cash, shares of Stock subject to that Award
will again be available for Awards. Shares of Stock tendered by a Participant or
withheld by the Company to pay the exercise price of an Option or to satisfy the
tax withholding obligations of the exercise or vesting of an Award will be
available again for Awards under the Plan, but only to Nonreporting Persons.
Shares of Restricted Stock forfeited to the Company in accordance with the Plan
and the terms of the particular Award will be available again for Awards under
the Plan unless the Participant has received the benefits of ownership (within
the applicable interpretation under Rule 16b-3 under the Exchange Act), in which
case such shares may only be available for Awards to Nonreporting Persons.
No fractional shares will be issued, and the Committee will determine
the manner in which fractional share value will be treated.
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ARTICLE II
STOCK OPTIONS
2.1 Award of Stock Options
The Committee may, from time to time, subject to the provisions of the
Plan and such other terms and conditions as the Committee may prescribe, award
to any Participant ISOs and NSOs to purchase Stock.
The Committee may provide with respect to any option to purchase Stock
that, if the Participant, while an Eligible Person, exercises the option in
whole or in part using already-owned Stock, the Participant will, subject to
this Section 2.1 and such other terms and conditions as may be imposed by the
Committee, receive an additional option ("Reload Option"). The Reload Option
will be to purchase, at Fair Market Value as of the date the original option was
exercised, a number of shares of Stock equal to the number of whole shares used
by the Participant to exercise the original option. The Reload Option will be
exercisable only between the date of its grant and the date of expiration of the
original option.
A Reload Option will be subject to such additional terms and conditions
as the Committee may approve, which terms may provide that the Committee may
cancel the Participant's right to receive the Reload Option and that the Reload
Option will be granted only if the Committee has not canceled such right prior
to the exercise of the original option. Such terms may also provide that, upon
the exercise by a Participant of a Reload Option while an Eligible Person, an
additional Reload Option will be granted with respect to the number of whole
shares used to exercise the first Reload Option.
2.2 Stock Option Agreements
The award of an option will be evidenced by a written agreement ("Stock
Option Agreement") in such form and containing such terms and conditions as the
Committee may from time to time determine.
2.3 Option Price
The purchase price of Stock under each Option ("Option Price") will not
be less than the Fair Market Value of such Stock on the date the Option is
awarded.
2.4 Exercise and Term of Options
(a) Except as otherwise provided in the Plan, Options will become
exercisable at such time or times as the Committee may specify. The Committee
may at any time and from time to time accelerate the time at which all or any
part of the Option may be exercised.
(b) The Committee will establish procedures governing the exercise of
options and
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will require that notice of exercise be given. Stock purchased on exercise of an
option must be paid for as follows: (1) in cash or by check (acceptable to the
Company in accordance with guidelines established for this purpose), bank draft
or money order payable to the order of the Company or (2) if so provided by the
Committee (not later than the time of grant, in the case of an ISO) (i) through
the delivery of shares of Stock which are then outstanding and which have a Fair
Market Value on the date of exercise equal to the exercise price, (ii) by
delivery of an unconditional and irrevocable undertaking by a broker to deliver
promptly to the Company sufficient funds to pay the exercise price, or (iii) by
any combination of the permissible forms of payment.
2.5 Termination of Eligibility
Unless the Committee provides otherwise: (a) in the event the
Participant is no longer an Eligible Person and ceased to be such as a result of
termination of service to the Company with the consent of the Committee or as a
result of his or her death, retirement or disability, each of his or her
outstanding Options (whether held by the Participant or, if the Option is an NSO
that has been transferred to a Permissible Transferee (as defined in Section
8.12) in accordance with Section 8.1, by that Permissible Transferee) will be
exercisable by the Participant (or his or her legal representative or designated
beneficiary) or Permissible Transferee, as the case may be, to the extent that
such Option was then exercisable, at any time prior to an expiration date
established by the Committee at the time of award, but in no event after such
expiration date; and (b) if the Participant ceases to be an Eligible Person for
any other reason, all of the Participant's then outstanding Options (whether
held by the Participant or, if the Option is an NSO that has been transferred to
a Permissible Transferee in accordance with Section 8.1, by that Permissible
Transferee) will terminate immediately.
ARTICLE III
STOCK APPRECIATION RIGHTS AND LIMITED RIGHTS
3.1 Award of Stock Appreciation Right
(a) An SAR is an Award entitling the recipient on exercise to receive
an amount, in cash or Stock or a combination thereof (such form to be determined
by the Committee), determined in whole or in part by reference to appreciation
in Stock value.
(b) In general, unless otherwise provided by the Committee an SAR
entitles the Participant to receive, with respect to each share of Stock as to
which the SAR is exercised, the excess of the share's Fair Market Value on the
date of exercise over its Fair Market Value on the date the SAR was granted.
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(c) SARs may be granted in tandem with options granted under the Plan
("Tandem SARS") or independently of Options ("Independent SARs"). An SAR granted
in tandem with an NSO may be granted either at or after the time the option is
granted. An SAR granted in tandem with an ISO may be granted only at the time
the option is granted.
(d) SARs awarded under the Plan will be evidenced by either a Stock
Option Agreement (when SARs are granted in tandem with an Option) or a separate
written agreement between the Company and the Participant in such form and
containing such terms and conditions as the Committee may from time to time
determine.
(e) Except as otherwise provided herein or by the Committee, a Tandem
SAR will be exercisable only at the same time and to the same extent and subject
to the same conditions as the option related thereto is exercisable, and the
Committee may prescribe additional conditions and limitations on the exercise of
the SAR. The exercise of a Tandem SAR will cancel the related Option. Tandem
SARs may be exercised only when the Fair Market Value of Stock to which it
relates exceeds the Option Price.
(f) Except as otherwise provided herein, an Independent SAR will become
exercisable at such time or times, and on such conditions, as the Committee may
specify, and the Committee may at any time accelerate the time at which all or
any part of the SAR may be exercised.
The Committee may provide, under such terms and conditions as it may
deem appropriate, for the automatic grant of additional SARs upon the full or
partial exercise of an Independent SAR.
Any exercise of an Independent SAR must be in writing, signed by the
proper person and delivered or mailed to the Company, accompanied by any other
documents required by the Committee.
(g) Except as otherwise provided herein or by the Committee, all SARs
will automatically be exercised on the last trading day prior to the expiration
date established by the Committee at the time of the award for the SAR, or, in
the case of a Tandem SAR, for the related Option, so long as exercise on such
date will result in a payment to the Participant.
(h) Unless otherwise provided by the Committee, no SAR will become
exercisable or will be automatically exercised for six months following the date
on which it was granted or the effective date of the Plan, whichever is later.
(i) At the time of award of an SAR, the Committee may limit the amount
of the payment that may be made to a Participant upon the exercise of the SAR.
The Committee may further determine that, if the amount to be received by a
Participant in any year is limited pursuant to this provision, payment of all or
a portion of the amount that is unpaid as a result of the limitation may be made
to the Participant at a subsequent time. No such limitation will
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require a Participant to return to the Company any amount theretofore received
by him or her upon the exercise of an SAR.
(j) Payment of the amount to which a Participant is entitled upon the
exercise of an SAR will be made in cash, Stock, or partly in cash and partly in
Stock, as the Committee may determine. To the extent that payment is made in
Stock, the shares will be valued at their Fair Market Value on the date of
exercise of the SAR.
(k) Unless otherwise provided by the Committee, each SAR will expire on
a date determined by the Committee or earlier upon the occurrence of the first
of the following: (i) in the case of a Tandem SAR, termination of the related
option, (ii) expiration of a period of six months after the Participant's
ceasing to be an Eligible Person as a result of termination of service to the
Company with the consent of the Committee or as a result of his or her death,
retirement or disability, or (iii) the Participant ceasing to be an Eligible
Person for any other reason.
3.2 Limited Rights
(a) The Committee may award Limited Rights pursuant to the provisions
of this Section 3.2 to the holder of an Option to purchase Common Stock granted
under the Plan (a "Related Option") with respect to all or a portion of the
shares subject to the Related Option. A Limited Right may be exercised only
during the period beginning on the first day following a Change in Control, as
defined in Section 7.2 of the Plan, and ending on the thirtieth day following
such date. Each Limited Right will be exercisable only to the same extent that
the Related Option is exercisable, and in no event after the termination of the
Related Option. In no event may a Limited Right be exercised during the first
six months after the date of grant of the Limited Right or the effective date of
the Plan, whichever is later. Limited Rights will be exercisable only when the
Fair Market Value (determined as of the date of exercise of the Limited Rights)
of each share of Common Stock with respect to which the Limited Rights are to be
exercised exceeds the Option Price per share of Common Stock subject to the
Related option.
(b) Upon the exercise of Limited Rights, the Related Option will be
considered to have been exercised to the extent of the number of shares of
Common Stock with respect to which such Limited Rights are exercised. Upon the
exercise or termination of the Related Option, the Limited Rights with respect
to such Related Option will be considered to have been exercised or terminated
to the extent of the number of shares of Common Stock with respect to which the
Related Option was so exercised or terminated.
(c) The effective date of the grant of a Limited Right will be the date
on which the Committee approves the grant of such Limited Right. Each grantee of
a Limited Right will be notified promptly of the grant of the Limited Right in
such manner as the Committee prescribes.
(d) Upon the exercise of Limited Rights, the holder thereof will
receive in cash an amount equal to the product computed by multiplying (i) the
excess of (a) the higher of (x) the
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Minimum Price Per Share (as hereinafter defined), or (y) the highest reported
closing sales price of a share of Common Stock on the New York Stock Exchange at
any time during the period beginning on the sixtieth day prior to the date on
which such Limited Rights are exercised and ending on the date on which such
Limited Rights are exercised, over (b) the Option Price per share of Common
Stock subject to the Related Option, by (ii) the number of shares of Common
Stock with respect to which such Limited Rights are being exercised.
(e) For purposes of this Section 3.2, the term "Minimum Price Per
Share" will mean the highest gross price (before brokerage commissions and
soliciting dealers' fees) paid or to be paid for a share of Common Stock
(whether by way of exchange, conversion, distribution upon liquidation or
otherwise) in any Change in Control which is in effect at any time during the
period beginning on the sixtieth day prior to the date on which such Limited
Rights are exercised and ending on the date on which such Limited Rights are
exercised. For purposes of this definition, if the consideration paid or to be
paid in any such Change in Control will consist, in whole or in part, of
consideration other than cash, the Board will take such action, as in its
judgement it deems appropriate, to establish the cash value of such
consideration.
ARTICLE IV
PERFORMANCE AWARDS
4.1 Nature of Performance Awards
A Performance Award provides for the recipient to receive an amount in
cash or Stock or a combination thereof (such form to be determined by the
Committee) following the attainment of Performance Goals. Performance Goals may
be related to personal performance, corporate performance (including corporate
stock performance), departmental performance or any other category of
performance deemed by the Committee to be important to the success of the
Company. The Committee will determine the Performance Goals, the period or
periods during which performance is to be measured and all other terms and
conditions applicable to the Award. Regardless of the degree to which
Performance Goals are attained, a Performance Award will be paid only when, if
and to the extent that the Committee determines to make such payment.
4.2 Other Awards Subject to Performance Condition
The Committee may, at the time any Award described in this Plan is
granted, impose the condition (in addition to any conditions specified or
authorized in the Plan) that Performance Goals be met prior to the Participant's
realization of any payment or benefit under the Award.
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ARTICLE V
RESTRICTED STOCK
5.1 Award of Restricted Stock
The Committee may award to any Participant shares of Stock subject to
this Article V and such other terms and conditions as the Committee may
prescribe, such Stock referred to herein as "Restricted Stock."
Each certificate for Restricted Stock will be registered in the name of
the Participant and deposited by him or her, together with a stock power
endorsed in blank, with the Corporation.
5.2 Restricted Stock Agreement
Shares of Restricted Stock awarded under the Plan will be evidenced by
a written agreement in such form and containing such terms and conditions as the
Committee may determine.
5.3 Restriction Period
At the time of award, there will be established for each Participant a
"Restriction Period" of such length as the Committee determines. The Restriction
Period may be waived by the Committee. Shares of Restricted Stock may not be
sold, assigned, transferred, pledged or otherwise encumbered, except as
hereinafter provided, during the Restriction Period. Subject to such restriction
on transfer, the Participant as owner of such shares of Restricted Stock will
have the rights of the holder of such Restricted Stock, except that the
Committee may provide at the time of the Award that any dividends or other
distributions paid on such Stock during the Restriction Period will be
accumulated and held by the Company and will be subject to forfeiture under
Section 5.4.
Upon the expiration or waiver by the Committee of the Restriction
Period, the Corporation will redeliver to the Participant (or his or her legal
representative or designated beneficiary) the shares deposited pursuant to
Section 5.1.
5.4 Termination of Eligibility
Unless otherwise determined by the Committee, in the event the
Participant is no longer an Eligible Person and ceased to be such as a result of
termination of service to the Company with the consent of the Committee, or as a
result of his or her death, retirement or disability, the restrictions imposed
under this Article V will lapse with respect to such number of the shares
previously awarded to him or her as may be determined by the Committee. All
other shares of Restricted Stock previously awarded to him or her which are
still subject to restrictions, along with any dividends or other distributions
thereon that have been accumulated and held by the
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Company, will be forfeited, and the Corporation will have the right to complete
the blank stock power.
Unless otherwise determined by the Committee, in the event the
Participant ceases to be an Eligible Person for any other reason, all shares of
Restricted Stock previously awarded to him or her which are still subject to
restrictions, along with any dividend or other distributions thereon that have
been accumulated and held by the Company, will be forfeited, and the Corporation
will have the right to complete the blank stock power.
ARTICLE VI
DEFERRAL OF PAYMENTS
6.1 Deferral of Amounts
If the Committee makes a determination to designate Awards or, from
time to time, groups or types of Awards, eligible for deferral hereunder, a
Participant may, subject to such terms and conditions and within such limits as
the Committee may from time to time establish, elect to defer the receipt of
amounts due to him or her under the Plan. Amounts so deferred are referred to
herein as "Deferred Amounts." The Committee may also permit amounts now or
hereafter deferred or available for deferral under any present or future
incentive compensation program or deferral arrangement of the Company to be
deemed Deferred Amounts and to become subject to the provisions of this Article.
Awards which are so deferred will be deemed to have been awarded in cash and the
cash deferred as Deferred Amounts.
The period between the date on which the Participant's Deferred Amount
would have been payable absent deferral and the final payment of such Deferred
Amount will be referred to herein as the "Deferral Period."
6.2 Investment During Deferral Period
Unless otherwise determined by the Committee, and subject to such
changes as the Committee may determine, the Deferred Amount will be treated
during the Deferral Period as if it were invested in putative convertible
debentures with a fixed interest rate, compounded annually, for the entire
Deferral Period. For purposes of determining the value of the Deferred Amount at
the time of payment, each putative debenture will be deemed to be convertible
into Common Stock at a conversion rate computed by reference to the Fair Market
Value of the Common Stock on the last trading day prior to the regular January
meeting of the Board of Directors on or preceding the date of deferral. Payment
of Deferred Amounts may be made in cash, Stock, or partly in cash and partly in
Stock, in the Committee's sole discretion.
6.3 Participant Reports
Annually, each Participant who has a Deferred Amount will receive a
report setting forth
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all of his or her then Deferred Amounts and the yield thereon to date.
6.4 Payment of Deferred Amounts
Payment of Deferred Amounts will be made at such time or times, and may
be in cash, Stock, or partly in cash and partly in Stock, as the Committee from
time to time determines. The limitations respecting the issuance of Stock or
other limitations on aggregate awards payable contained in the Annual
Performance Plan of the Corporation, Article XVI of the by-laws of the
Corporation, the 1974 Stock Option Plan, the 1979 Stock Option and Long-Term
Incentive Plan, the 1984 Long-Term Incentive Plan, the Plan and in any plan
hereafter adopted by the stockholders will be limitations applicable to the
payment of any Deferred Amounts under this Article VI.
6.5 Alternative Valuation Election
Unless otherwise determined by the Committee, a Participant may, at a
time established by the Committee, but prior to such Participant's ceasing to be
an Eligible Person, elect to establish the ultimate payable value of each
Deferred Amount by reference to the Fair Market Value of the Common Stock as of
the day on which an alternate valuation election is received by the corporation
in accordance with procedures established by the Committee.
Notwithstanding the establishment of the ultimate payable value
resulting from the alternate valuation election by the Participant, the yield
will continue as though no such election had been made and will continue to be
subject to the limitations set forth in Section 6.2, and Deferred Amounts and
the yield thereon will be paid as otherwise provided in this Article.
ARTICLE VII
CHANGES IN CONTROL
7.1 Effect of Change in Control
(a) Pre-July 28, 1999 Awards and Deferrals. With respect to Awards made
or granted pursuant to the Plan prior to July 28, 1999 and with respect to
amounts deferred under the Plan prior to July 28, 1999, notwithstanding any
other provision of the Plan, upon the occurrence of a Change in Control, as
defined in Section 7.2: (i) if so provided in the respective Stock Option
Agreements, as they may be amended from time to time, Options and, subject to
the exercise provisions of Section 3.2(a) of the Plan, Limited Rights, but not
SARs, outstanding and unexercised on the date of the Change in Control will
become immediately exercisable; (ii) all Performance Awards will be deemed to
have been earned on such basis as the Committee may prescribe and then paid on
such basis, at such time and in such form as the Committee may prescribe, or
deferred in accordance with the elections of Participants; (iii) all Restricted
Stock will be deemed to be earned and the Restriction Period will be deemed
expired on such terms and conditions as the Committee may determine; and (iv)
all amounts deferred under this Plan will be
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paid to a trustee or otherwise on such terms as the Committee may prescribe or
permit.
(b) Post-July 28, 1999 Awards and Deferrals. With respect to Awards
made or granted pursuant to the Plan on or after July 28, 1999 and with respect
to amounts deferred under the Plan on or after July 28, 1999, the occurrence of
a Change in Control, as defined in Section 7.2, will have no effect on such
outstanding Awards and deferrals pursuant to the Plan (i) unless, with respect
to an Option or a Limited Right, otherwise provided in the applicable Stock
Option Agreement, as it may be amended from time to time, or (ii) unless the
Committee or the Board determines otherwise.
7.2 Definition of Change in Control
Unless otherwise provided in an agreement or other document governing
the respective Award or Deferred Amount, as it may be amended from time to time,
the term "Change in Control" means the occurrence of one or more of the
following events: (a) there shall be consummated (i) any consolidation or merger
of the Corporation in which the Corporation is not the continuing or surviving
corporation or pursuant to which shares of the Common Stock would be converted
into cash, securities or other property, other than a merger of the Corporation
in which the holders of Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Corporation, or (b) the stockholders of
the Corporation shall approve any plan or proposal for the liquidation or
dissolution of the Corporation, or (c) (i) any person (as such term is defined
in Section 13(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), corporation or other entity shall purchase any Common Stock of
the Corporation (or securities convertible into Common Stock) for cash,
securities or any other consideration pursuant to a tender offer or exchange
offer, unless, prior to the making of such purchase of Common Stock (or
securities convertible into Common Stock), the Board shall determine that the
making of such purchase shall not constitute a Change in Control, or (ii) any
person (as such term is defined in Section 13(d) of the Exchange Act),
corporation or other entity (other than the Corporation or any benefit plan
sponsored by the Corporation or any of its subsidiaries) shall be the
"beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation representing
twenty percent or more of the combined voting power of the Corporation's then
outstanding securities ordinarily (and apart from any rights accruing under
special circumstances) having the right to vote in the election of directors
(calculated as provided in Rule 13d-3(d) in the case of rights to acquire any
such securities), unless, prior to such person so becoming such beneficial
owner, the Board shall determine that such person so becoming such beneficial
owner shall not constitute a Change in Control, or (d) at any time during any
period of two consecutive years, individuals who at the beginning of such period
constituted the entire Board shall cease for any reason to constitute at least a
majority thereof, unless the election or nomination for election of each new
director during such two-year period was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of such two-year period.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Transferability
No Option, Limited Right, SAR, Performance Award or share of Restricted
Stock or Deferred Amount under the Plan will be transferable other than by will,
by the applicable laws of descent and distribution, or, if permitted by the
Company, by transfer to a properly designated beneficiary in the event of death;
provided, however, that the Committee may, in its sole discretion, permit the
transfer of an NSO Option (including any Tandem SARs or Limited Rights) by a
Participant to a Permissible Transferee (as defined in Section 8.12) subject to
such terms and conditions as the Committee may, from time to time, determine.
All Awards and Deferred Amounts will be exercisable or received during the
Participant's lifetime only by such Participant or his or her legal
representative or, in the case of an NSO Option (including any Tandem SARs or
Limited Rights) that has been transferred to a Permissible Transferee in
accordance with this Section 8.1, by that Permissible Transferee. Any transfer
contrary to this Section 8.1 will nullify the option, Limited Right, SAR,
Performance Award or share of Restricted Stock, and any attempted transfer of a
Deferred Amount contrary to this Section 8.1 will be void and of no effect.
8.2 Beneficiaries
The Committee may, but need not, establish or authorize the
establishment of procedures not inconsistent with Section 8.1 under which a
Participant may designate a beneficiary or beneficiaries to hold, exercise
and/or receive amounts due under an Award or with respect to Deferred Amounts in
the event of the Participant's death.
8.3 Adjustments Upon Changes in Stock
If there is any change in the Stock of the Company, through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
split up, dividend in kind or other change in the corporate structure or
distribution to the stockholders, appropriate adjustments may be made by the
Board of Directors of the Company (or if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation) in the aggregate number and kind of shares subject to the Plan, and
the number and kind of shares and the price per share subject to outstanding
Options or which may be issued under outstanding Performance Awards or Awards of
Restricted Stock. Appropriate adjustments may also be made by the Board of
Directors or the Committee in the terms of any Awards under the Plan to reflect
such changes and to modify any other terms of outstanding Awards on an equitable
basis, including modifications of performance targets and changes in the length
of Performance Periods.
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8.4 Conditions of Awards
(a) Unless the Committee determines otherwise, either by waiving the
condition(s) or by limiting or otherwise amending the condition(s) with respect
to any specified Award or group of Awards, the rights of a Participant with
respect to any Award received under this Plan will be subject to the conditions
that, until the Participant has fully received all payments, transfers and other
benefits under the Award, he or she will (i) not engage, either directly or
indirectly, in any manner or capacity as advisor, principal, agent, partner,
officer, director, employee, member of any association or otherwise, in any
business or activity which is at the time competitive with any business or
activity conducted by the Company and (ii) be available, unless he or she has
died, at reasonable times for consultations at the request of the Company's
management with respect to phases of the business with which he or she is or was
actively connected during his or her employment, but such consultations will not
(except in the case of a Participant whose active service was outside the United
States) be required to be performed at any place or places outside of the United
States of America or during usual vacation periods or periods of illness or
other incapacity. In the event that either of the above conditions is applicable
(or is applicable as modified by the Committee) and is not fulfilled, the
Participant will forfeit all rights to any unexercised option or SAR, or any
Performance Award or Stock held which has not yet been determined by the
Committee to be payable or unrestricted (and any unpaid amounts equivalent to
dividends or other distributions or amounts equivalent to interest relating
thereto) as of the date of the breach of condition. Any determination by the
Board of Directors of the Corporation, which will act upon the recommendation of
the Chief Executive Officer, that the Participant is, or has, engaged in a
competitive business or activity as aforesaid or has not been available for
consultations as aforesaid or, if the Committee has modified such condition(s)
with respect to the Participant's Award, that the Participant has not complied
with such condition(s) as modified by the Committee will be conclusive.
(b) This Section 8.4 will not apply to Limited Rights.
8.5 Use of Proceeds
All cash proceeds from the exercise of options will constitute general
funds of the Company.
8.6 Tax Withholding
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all statutory federal, state and local
withholding tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Committee will have the right to require that the Participant or other
appropriate person remit to the Company an amount sufficient to satisfy the
statutory withholding requirements, or make other arrangements
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satisfactory to the Committee with regard to such requirements, prior to the
delivery of any Stock. If and to the extent that such withholding is required,
the Committee may permit the Participant or such other person to elect at such
time and in such manner as the Committee provides to have the Company hold back
from the shares to be delivered, or to deliver to the Company, Stock having a
value calculated to satisfy the statutory withholding requirement. In the
alternative, the Committee may, at the time of grant of any such Award, require
that the Company withhold from any shares to be delivered Stock with a value
calculated to satisfy applicable statutory tax withholding requirements.
If at the time an ISO is exercised the Committee determines that the
Company could be liable for statutory withholding requirements with respect to a
disposition of the Stock received upon exercise, the Committee may require as a
condition of exercise that the person exercising the ISO agree (i) to inform the
Company promptly of any disposition of Stock received upon exercise, and (ii) to
give such security as the Committee deems adequate to meet the potential
liability of the Company for the statutory withholding requirements and to
augment such security from time to time in any amount reasonably deemed
necessary by the Committee to preserve the adequacy of such security.
8.7 Non-Uniform Determinations
The Committee's determinations under the Plan, including without
limitation, (i) the determination of the Participants to receive Awards, (ii)
the form, amount, timing and payment of such Awards, (iii) the terms and
provisions of such Awards and (iv) the agreements evidencing the same, need not
be uniform and may be made by it selectively among Participants who receive, or
who are eligible to receive, Awards under the Plan, whether or not such
Participants are similarly situated.
8.8 Leaves of Absence; Transfers
The Committee will be entitled to make such rules, regulations and
determinations as it deems appropriate under the Plan with respect to any leave
of absence from the Company granted to a Participant. Without limiting the
generality of the foregoing, the Committee will be entitled to determine (i)
whether or not any such leave of absence will be treated as if the Participant
ceased to be an Employee and (ii) the impact, if any, of any such leave of
absence on Awards under the Plan. In the event a Participant transfers within
the Company, such Participant will not be deemed to have ceased to be an
Employee for purposes of the Plan.
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8.9 General Restriction
(a) Each Award under the Plan will be subject to the condition that, if
at any time the Committee determines that (i) the listing, registration or
qualification of shares of Stock upon any securities exchange or under any state
or federal law, (ii) the consent or approval of any government or regulatory
body or (iii) an agreement by the Participant with respect thereto, is necessary
or desirable, then such Award will not be consummated in whole or in part unless
such listing, registration, qualification, consent, approval or agreement has
been effected or obtained free from any conditions not acceptable to the
Committee.
(b) Shares of Common Stock for use under the provisions of this Plan
will not be issued until they have been duly listed, upon official notice of
issuance, upon the New York Stock Exchange and such other exchanges, if any, as
the Board of Directors of the Corporation determines, and a registration
statement under the Securities Act of 1933 with respect to such shares has
become, and is, effective.
8.10 Effective Date
The Plan will be effective on the date on which it is approved by the
common stockholders of the Corporation. Grants of Awards under the Plan may be
made prior to that date (but not before the date on which the Plan is adopted by
the Board of Directors), subject to such approval.
No Award may be granted under the Plan after May 25, 2003, but Awards
previously made may extend beyond that date and Reload Options and additional
Reload Options provided for with respect to original options outstanding prior
to that date may continue unless the Committee otherwise provides and subject to
such additional terms and conditions as the Committee may provide except that
all Reload Options issued after that date will be NSOs, and the provisions of
Article VI of the Plan will survive and remain effective as to all present and
future Deferred Amounts until such later date as the Committee or the Board of
Directors may determine.
The adoption of the Plan will not preclude the adoption by appropriate
means of any other stock option or other incentive plan for employees.
8.11 Amendment, Suspension and Termination of Plan
The Board of Directors may at any time or times amend the Plan for any
purpose which may at the time be permitted by law, or may at any time suspend or
terminate the Plan as to any further grants of Awards.
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8.12 Certain Definitions
(a) Unless otherwise determined by the Committee, the terms
"retirement" and "disability" as used under the Plan will be construed by
reference to the provisions of the Westinghouse Pension Plan or other similar
plan or program of the Company applicable to a Participant.
(b) The term "Fair Market Value" as it relates to Common Stock means
the average of the high and low prices of the Common Stock as reported by the
Composite Tape of the New York Stock Exchange (or such successor reporting
system as the Committee may select) on the relevant date or, if no sale of the
Common Stock has been reported for that day, the average of such prices on the
next preceding day and the next following day for which there were reported
sales. The term "Fair Market Value" as it relates to Formula Value Stock will
mean the value determined by the Committee.
(c) Unless otherwise determined by the Committee, the term "Subsidiary"
will mean, unless the context otherwise requires, any corporation (other than
the Corporation) in an unbroken chain of corporations beginning with the
corporation if each of the corporations other than the last corporation in such
chain owns stock possessing more than 50% of the voting power in one of the
other corporations in such chain.
(d) "Formula Value Stock" means shares of a class or classes of stock
the value of which is derived from a formula established by the Committee which
reflects such financial measures as the Committee may determine. Such shares
will have such other characteristics as may be determined at time of their
authorization.
(e) "Permissible Transferee" means any of the following: (1) a member
of the Participant's Immediate Family; (2) a trust solely for the benefit of the
Participant and/or the Participant's Immediate Family; and (3) a partnership or
limited liability company whose only partners or members, as the case may be,
are the Participant and/or Permissible Transferees of the Participant as
otherwise identified in this definition. "Immediate Family" has the meaning set
forth in Rule 16a-1(e) under the Exchange Act, as such rule may be amended from
time to time, or any successor rule.
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EXHIBIT 4.5
CBS CORPORATION
1991 LONG-TERM INCENTIVE PLAN
(as amended as of July 28, 1999)
ARTICLE I
GENERAL
1.1 Purpose
The purposes of the 1991 Long-Term Incentive Plan ("Plan") for eligible
employees of CBS Corporation (formerly known as Westinghouse Electric
Corporation) ("Corporation") and its Subsidiaries (the Corporation and its
Subsidiaries severally and collectively referred to in the Plan as the
"Company") are to foster and promote the long-term financial success of the
Company and materially increase stockholder value by (i) attracting and
retaining employees of outstanding ability, (ii) strengthening the Company's
capability to develop, maintain and direct a high performance team, (iii)
motivating employees, by means of performance-related incentives, to achieve
long-range performance goals, (iv) providing incentive compensation
opportunities competitive with those of other major companies and (v) enabling
employees to participate in the long-term growth and financial success of the
Company.
1.2 Administration
(a) The Plan will be administered by a committee of the Board of
Directors of the Corporation ("Committee") which will consist of two or more
members. The members will be appointed by the Board of Directors, and any
vacancy on the Committee will be filled by the Board of Directors or in a manner
authorized by the Board.
The Committee will keep minutes of its meetings and of any action taken
by it without a meeting. A majority of the Committee will constitute a quorum,
and the acts of a majority of the members present at any meeting at which a
quorum is present will be the acts of the Committee. Any action that may be
taken at a meeting of the Committee may be taken without a meeting if a consent
or consents in writing setting forth the action so taken is signed by all of the
members of the Committee. The Committee will make appropriate reports to the
Board of Directors concerning the operations of the Plan.
(b) Subject to the limitations of the Plan, the Committee will have the
sole and complete authority: (i) to select in accordance with Section 1.3
persons who will participate in the Plan ("Participant" or "Participants")
(including the right to delegate authority to select Participants); (ii) to make
Awards and payments in such forms and amounts as it may determine, including the
right to delegate authority to make Awards within limits approved by the
Committee; (iii) to impose such limitations, restrictions, terms and conditions
upon such Awards as the Committee or its authorized delegates deems appropriate;
(iv) to interpret the Plan and the
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terms of any document relating to the Plan and to adopt, amend and rescind
administrative guidelines and other rules and regulations relating to the Plan;
(v) to amend or cancel an existing Award in whole or in part (including the
right to delegate authority to amend or cancel an existing Award in whole or in
part within limits approved from time to time by the Committee), except that the
Committee and its authorized delegates may not, unless otherwise provided in the
Plan, or unless the Participant affected thereby consents, take any action under
this clause that would adversely affect the rights of such Participant with
respect to the Award, and except that the Committee and its authorized delegates
may not take any action to amend any outstanding Option under the Plan in order
to decrease the Option Price under such Option or to cancel and replace any such
Option with an Option with a lower Option Price; and (vi) to make all other
determinations and to take all other actions necessary or advisable for the
interpretation, implementation and administration of the Plan. The Committee's
determinations on matters within its authority will be conclusive and binding
upon the Company and all other persons.
(c) The Committee will act with respect to the Plan on behalf of the
Corporation and on behalf of any Subsidiary issuing stock under the Plan,
subject to appropriate action by the board of directors of any such Subsidiary.
All expenses associated with the Plan will be borne by the Corporation subject
to such allocation to its Subsidiaries and operating units as it deems
appropriate.
1.3 Selection for Participation
Participants selected by the Committee or its authorized delegates must
be Eligible Persons as defined below. "Eligible Persons" are persons who are
employees of the Company ("Employee" or "Employees") or, in the event of death
while an Employee, his or her estate. Eligible Persons will also include
independent contractors of the Company as to an Award if the person is an
independent contractor at the time the Award is granted. In making this
selection and in determining the form and amount of Awards, the Committee may
give consideration to the functions and responsibilities of the Eligible Person,
his or her past, present and potential contributions to the Company and other
factors deemed relevant by the Committee.
1.4 Types of Awards under Plan
Awards ("Awards") under the Plan may be in the form of any one or more
of the following: (i) Non-statutory Stock Options ("NSOs" or "Options"), as
described in Article II, (ii) Stock Appreciation Rights ("SARs") and Limited
Stock Appreciation Rights ("Limited Rights"), as described in Article III, (iii)
Performance Awards ("Performance Awards") as described in Article IV, and (iv)
Restricted Stock ("Restricted Stock") as described in Article V.
1.5 Shares Subject to the Plan
Shares of stock issued under the Plan may be in whole or in part
authorized and unissued or treasury shares of the Corporation's common stock,
par value $1.00 ("Common Stock"), or "Formula Value Stock" as defined in Section
8.12(d) (Common Stock and Formula Value Stock
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severally and collectively referred to in the Plan as "Stock").
The maximum number of shares of Stock which may be issued for all
purposes under the Plan will be 30,500,000, plus such additional shares as the
Board of Directors or the Committee may, from time to time, authorize by a
resolution or resolutions duly adopted by said Board of Directors or Committee.
Except as otherwise provided below, any shares of Stock subject to an
Option or other Award which is canceled or terminates without having been
exercised will again be available for Awards under the Plan. Shares subject to
an option canceled upon the exercise of an SAR will not again be available for
Awards under the Plan except to the extent the SAR is settled in cash. To the
extent that an Award is settled in cash, shares of Stock subject to that Award
will again be available for Awards. Shares of Stock tendered by a Participant or
withheld by the Company to pay the exercise price of an Option or to satisfy the
tax withholding obligations of the exercise or vesting of an Award will be
available again for Awards under the Plan. Shares of Restricted Stock forfeited
to the Company in accordance with the Plan and the terms of the particular Award
will be available again for Awards under the Plan.
No fractional shares will be issued, and the Committee will determine
the manner in which fractional share value will be treated.
ARTICLE II
STOCK OPTIONS
2.1 Award of Stock Options
The Committee may, from time to time, subject to the provisions of the
Plan and such other terms and conditions as the Committee may prescribe, award
to any Participant Options to purchase Stock.
The Committee may provide with respect to any option to purchase Stock
that, if the Participant, while an Eligible Person, exercises the option in
whole or in part using already-owned Stock, the Participant will, subject to
this Section 2.1 and such other terms and conditions as may be imposed by the
Committee, receive an additional option ("Reload Option"). The Reload Option
will be to purchase, at Fair Market Value as of the date the original option was
exercised, a number of shares of Stock equal to the number of whole shares used
by the Participant to exercise the original option. The Reload Option will be
exercisable only between the date of its grant and the date of expiration of the
original option.
A Reload Option will be subject to such additional terms and conditions
as the Committee may approve, which terms may provide that the Committee may
cancel the Participant's right to receive the Reload Option and that the Reload
Option will be granted only if the Committee has not canceled such right prior
to the exercise of the original option. Such
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terms may also provide that, upon the exercise by a Participant of a Reload
Option while an Eligible Person, an additional Reload Option will be granted
with respect to the number of whole shares used to exercise the first Reload
Option.
2.2 Stock Option Agreements
The award of an option will be evidenced by a written agreement ("Stock
Option Agreement") in such form and containing such terms and conditions as the
Committee may from time to time determine.
2.3 Option Price
The purchase price of Stock under each Option ("Option Price") will not
be less than the Fair Market Value of such Stock on the date the Option is
awarded.
2.4 Exercise and Term of Options
(a) Except as otherwise provided in the Plan, Options will become
exercisable at such time or times as the Committee may specify. The Committee
may at any time and from time to time accelerate the time at which all or any
part of the Option may be exercised.
(b) The Committee will establish procedures governing the exercise of
options and will require that notice of exercise be given. Stock purchased on
exercise of an option must be paid for as follows: (1) in cash or by check
(acceptable to the Company in accordance with guidelines established for this
purpose), bank draft or money order payable to the order of the Company or (2)
if so provided by the Committee (i) through the delivery of shares of Stock
which are then outstanding and which have a Fair Market Value on the date of
exercise equal to the exercise price, (ii) by delivery of an unconditional and
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or (iii) by any combination of the
permissible forms of payment.
2.5 Termination of Eligibility
Unless the Committee provides otherwise: (a) in the event the
Participant is no longer an Eligible Person and ceased to be such as a result of
termination of service to the Company with the consent of the Committee or as a
result of his or her death, retirement or disability, each of his or her
outstanding Options will be exercisable by the Participant (or his or her legal
representative or designated beneficiary), to the extent that such Option was
then exercisable, at any time prior to an expiration date established by the
Committee at the time of award, but in no event after such expiration date; (b)
in the event an Award is made to the estate of a person who died while an
Employee, each outstanding Option held by such estate will be exercisable by the
estate (or the distributee of said estate) at any time prior to an expiration
date established by the Committee at the time of award; and (c) if the
Participant ceases to be an Eligible Person for any other reason, all of the
Participant's then outstanding Options will terminate immediately.
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ARTICLE III
STOCK APPRECIATION RIGHTS AND LIMITED RIGHTS
3.1 Award of Stock Appreciation Right
(a) An SAR is an Award entitling the recipient on exercise to receive
an amount, in cash or Stock or a combination thereof (such form to be determined
by the Committee), determined in whole or in part by reference to appreciation
in Stock value.
(b) In general, unless otherwise provided by the Committee an SAR
entitles the Participant to receive, with respect to each share of Stock as to
which the SAR is exercised, the excess of the share's Fair Market Value on the
date of exercise over its Fair Market Value on the date the SAR was granted.
(c) SARs may be granted in tandem with options granted under the Plan
("Tandem SARS") or independently of Options ("Independent SARs"). An SAR granted
in tandem with an NSO may be granted either at or after the time the option is
granted.
(d) SARs awarded under the Plan will be evidenced by either a Stock
Option Agreement (when SARs are granted in tandem with an Option) or a separate
written agreement between the Company and the Participant in such form and
containing such terms and conditions as the Committee may from time to time
determine.
(e) Except as otherwise provided herein or by the Committee, a Tandem
SAR will be exercisable only at the same time and to the same extent and subject
to the same conditions as the option related thereto is exercisable, and the
Committee may prescribe additional conditions and limitations on the exercise of
the SAR. The exercise of a Tandem SAR will cancel the related Option. Tandem
SARs may be exercised only when the Fair Market Value of Stock to which it
relates exceeds the Option Price.
(f) Except as otherwise provided herein, an Independent SAR will become
exercisable at such time or times, and on such conditions, as the Committee may
specify, and the Committee may at any time accelerate the time at which all or
any part of the SAR may be exercised.
The Committee may provide, under such terms and conditions as it may
deem appropriate, for the automatic grant of additional SARs upon the full or
partial exercise of an Independent SAR.
Any exercise of an Independent SAR must be in writing, signed by the
proper person and delivered or mailed to the Company, accompanied by any other
documents required by the Committee.
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(g) Except as otherwise provided herein or by the Committee, all SARs
will automatically be exercised on the last trading day prior to the expiration
date established by the Committee at the time of the award for the SAR, or, in
the case of a Tandem SAR, for the related Option, so long as exercise on such
date will result in a payment to the Participant.
(h) Unless otherwise provided by the Committee, no SAR will become
exercisable or will be automatically exercised for six months following the date
on which it was granted.
(i) At the time of award of an SAR, the Committee may limit the amount
of the payment that may be made to a Participant upon the exercise of the SAR.
The Committee may further determine that, if the amount to be received by a
Participant in any year is limited pursuant to this provision, payment of all or
a portion of the amount that is unpaid as a result of the limitation may be made
to the Participant at a subsequent time. No such limitation will require a
Participant to return to the Company any amount theretofore received by him or
her upon the exercise of an SAR.
(j) Payment of the amount to which a Participant is entitled upon the
exercise of an SAR will be made in cash, Stock, or partly in cash and partly in
Stock, as the Committee may determine. To the extent that payment is made in
Stock, the shares will be valued at their Fair Market Value on the date of
exercise of the SAR.
(k) Unless otherwise provided by the Committee, each SAR will expire on
a date determined by the Committee or earlier upon the occurrence of the first
of the following: (i) in the case of a Tandem SAR, termination of the related
option, (ii) expiration of a period of six months after the Participant's
ceasing to be an Eligible Person as a result of termination of service to the
Company with the consent of the Committee or as a result of his or her death,
retirement or disability, or (iii) the Participant ceasing to be an Eligible
Person for any other reason.
3.2 Limited Rights
(a) The Committee may award Limited Rights pursuant to the provisions
of this Section 3.2 to the holder of an Option to purchase Common Stock granted
under the Plan (a "Related Option") with respect to all or a portion of the
shares subject to the Related Option. A Limited Right may be exercised only
during the period beginning on the first day following a Change in Control, as
defined in Section 7.2 of the Plan, and ending on the thirtieth day following
such date. Each Limited Right will be exercisable only to the same extent that
the Related Option is exercisable, and in no event after the termination of the
Related Option. In no event may a Limited Right be exercised during the first
six months after the date of grant of the Limited Right. Limited Rights will be
exercisable only when the Fair Market Value (determined as of the date of
exercise of the Limited Rights) of each share of Common Stock with respect to
which the Limited Rights are to be exercised exceeds the Option Price per share
of Common Stock subject to the Related option.
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(b) Upon the exercise of Limited Rights, the Related Option will be
considered to have been exercised to the extent of the number of shares of
Common Stock with respect to which such Limited Rights are exercised. Upon the
exercise or termination of the Related Option, the Limited Rights with respect
to such Related Option will be considered to have been exercised or terminated
to the extent of the number of shares of Common Stock with respect to which the
Related Option was so exercised or terminated.
(c) The effective date of the grant of a Limited Right will be the date
on which the Committee approves the grant of such Limited Right. Each grantee of
a Limited Right will be notified promptly of the grant of the Limited Right in
such manner as the Committee prescribes.
(d) Upon the exercise of Limited Rights, the holder thereof will
receive in cash an amount equal to the product computed by multiplying (i) the
excess of (a) the higher of (x) the Minimum Price Per Share (as hereinafter
defined), or (y) the highest reported closing sales price of a share of Common
Stock on the New York Stock Exchange at any time during the period beginning on
the sixtieth day prior to the date on which such Limited Rights are exercised
and ending on the date on which such Limited Rights are exercised, over (b) the
Option Price per share of Common Stock subject to the Related Option, by (ii)
the number of shares of Common Stock with respect to which such Limited Rights
are being exercised.
(e) For purposes of this Section 3.2, the term "Minimum Price Per
Share" will mean the highest gross price (before brokerage commissions and
soliciting dealers' fees) paid or to be paid for a share of Common Stock
(whether by way of exchange, conversion, distribution upon liquidation or
otherwise) in any Change in Control which is in effect at any time during the
period beginning on the sixtieth day prior to the date on which such Limited
Rights are exercised and ending on the date on which such Limited Rights are
exercised. For purposes of this definition, if the consideration paid or to be
paid in any such Change in Control will consist, in whole or in part, of
consideration other than cash, the Board will take such action, as in its
judgment it deems appropriate, to establish the cash value of such
consideration.
ARTICLE IV
PERFORMANCE AWARDS
4.1 Nature of Performance Awards
A Performance Award provides for the recipient to receive an amount in
cash or Stock or a combination thereof (such form to be determined by the
Committee) following the attainment of Performance Goals. Performance Goals may
be related to personal performance, corporate performance (including corporate
stock performance), departmental performance or any other category of
performance deemed by the Committee to be important to the success of the
Company. The Committee will determine the Performance Goals, the period or
periods during which performance is to be measured and all other terms and
conditions applicable to the Award.
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Regardless of the degree to which Performance Goals are attained, a Performance
Award will be paid only when, if and to the extent that the Committee determines
to make such payment.
4.2 Other Awards Subject to Performance Condition
The Committee may, at the time any Award described in this Plan is
granted, impose the condition (in addition to any conditions specified or
authorized in the Plan) that Performance Goals be met prior to the Participant's
realization of any payment or benefit under the Award.
ARTICLE V
RESTRICTED STOCK
5.1 Award of Restricted Stock
The Committee may award to any Participant shares of Stock subject to
this Article V and such other terms and conditions as the Committee may
prescribe, such Stock referred to herein as "Restricted Stock."
Each certificate for Restricted Stock will be registered in the name of
the Participant and deposited by him or her, together with a stock power
endorsed in blank, with the Corporation.
5.2 Restricted Stock Agreement
Shares of Restricted Stock awarded under the Plan will be evidenced by
a written agreement in such form and containing such terms and conditions as the
Committee may determine.
5.3 Restriction Period
At the time of award, there will be established for each Participant a
"Restriction Period" of such length as the Committee determines. The Restriction
Period may be waived by the Committee. Shares of Restricted Stock may not be
sold, assigned, transferred, pledged or otherwise encumbered, except as
hereinafter provided, during the Restriction Period. Subject to such restriction
on transfer, the Participant as owner of such shares of Restricted Stock will
have the rights of the holder of such Restricted Stock, except that the
Committee may provide at the time of the Award that any dividends or other
distributions paid on such Stock during the Restriction Period will be
accumulated and held by the Company and will be subject to forfeiture under
Section 5.4.
Upon the expiration or waiver by the Committee of the Restriction
Period, the Corporation will redeliver to the Participant (or his or her legal
representative or designated beneficiary) the shares deposited pursuant to
Section 5.1.
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5.4 Termination of Eligibility
Unless otherwise determined by the Committee, in the event the
Participant is no longer an Eligible Person and ceased to be such as a result of
termination of service to the Company with the consent of the Committee, or as a
result of his or her death, retirement or disability, the restrictions imposed
under this Article V will lapse with respect to such number of the shares
previously awarded to him or her as may be determined by the Committee. All
other shares of Restricted Stock previously awarded to him or her which are
still subject to restrictions, along with any dividends or other distributions
thereon that have been accumulated and held by the Company, will be forfeited,
and the Corporation will have the right to complete the blank stock power.
Unless otherwise determined by the Committee, in the event the
Participant ceases to be an Eligible Person for any other reason, all shares of
Restricted Stock previously awarded to him or her which are still subject to
restrictions, along with any dividend or other distributions thereon that have
been accumulated and held by the Company, will be forfeited, and the Corporation
will have the right to complete the blank stock power.
ARTICLE VI
DEFERRAL OF PAYMENTS
6.1 Deferral of Amounts
If the Committee makes a determination to designate Awards or, from
time to time, groups or types of Awards, eligible for deferral hereunder, a
Participant may, subject to such terms and conditions and within such limits as
the Committee may from time to time establish, elect to defer the receipt of
amounts due to him or her under the Plan. Amounts so deferred are referred to
herein as "Deferred Amounts." The Committee may also permit amounts now or
hereafter deferred or available for deferral under any present or future
incentive compensation program or deferral arrangement of the Company to be
deemed Deferred Amounts and to become subject to the provisions of this Article.
Awards which are so deferred will be deemed to have been awarded in cash and the
cash deferred as Deferred Amounts.
The period between the date on which the Participant's Deferred Amount
would have been payable absent deferral and the final payment of such Deferred
Amount will be referred to herein as the "Deferral Period."
6.2 Investment During Deferral Period
Unless otherwise determined by the Committee, and subject to such
changes as the Committee may determine, the Deferred Amount will be treated
during the Deferral Period as if it were invested in putative convertible
debentures with a fixed interest rate, compounded annually, for the entire
Deferral Period. For purposes of determining the value of the Deferred
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Amount at the time of payment, each putative debenture will be deemed to be
convertible into Common Stock at a conversion rate computed by reference to the
Fair Market Value of the Common Stock on the last trading day prior to the
regular January meeting of the Board of Directors on or preceding the date of
deferral. Payment of Deferred Amounts may be made in cash, Stock, or partly in
cash and partly in Stock, in the Committee's sole discretion.
6.3 Participant Reports
Annually, each Participant who has a Deferred Amount will receive a
report setting forth all of his or her then Deferred Amounts and the yield
thereon to date.
6.4 Payment of Deferred Amounts
Payment of Deferred Amounts will be made at such time or times, and may
be in cash, Stock, or partly in cash and partly in Stock, as the Committee from
time to time determines. The limitations respecting the issuance of Stock or
other limitations on aggregate awards payable contained in the Annual
Performance Plan of the Corporation, Article XVI of the by-laws of the
Corporation, the 1974 Stock Option Plan, the 1979 Stock Option and Long-Term
Incentive Plan, the 1984 Long-Term Incentive Plan, the Plan and in any plan
hereafter adopted by the stockholders will be limitations applicable to the
payment of any Deferred Amounts under this Article VI.
6.5 Alternative Valuation Election
Unless otherwise determined by the Committee, a Participant may, at a
time established by the Committee, but prior to such Participant's ceasing to be
an Eligible Person, elect to establish the ultimate payable value of each
Deferred Amount by reference to the Fair Market Value of the Common Stock as of
the day on which an alternate valuation election is received by the corporation
in accordance with procedures established by the Committee.
Notwithstanding the establishment of the ultimate payable value
resulting from the alternate valuation election by the Participant, the yield
will continue as though no such election had been made and will continue to be
subject to the limitations set forth in Section 6.2, and Deferred Amounts and
the yield thereon will be paid as otherwise provided in this Article.
ARTICLE VII
CHANGES IN CONTROL
7.1 Effect of Change in Control
(a) Pre-July 28, 1999 Awards and Deferrals. With respect to Awards made
or granted pursuant to the Plan prior to July 28, 1999 and with respect to
amounts deferred under the Plan prior to July 28, 1999, notwithstanding any
other provision of the Plan, upon the occurrence of a
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Change in Control, as defined in Section 7.2: (i) if so provided in the
respective Stock Option Agreements, as they may be amended from time to time,
Options and, subject to the exercise provisions of Section 3.2(a) of the Plan,
Limited Rights, but not SARs, outstanding and unexercised on the date of the
Change in Control will become immediately exercisable; (ii) all Performance
Awards will be deemed to have been earned on such basis as the Committee may
prescribe and then paid on such basis, at such time and in such form as the
Committee may prescribe, or deferred in accordance with the elections of
Participants; (iii) all Restricted Stock will be deemed to be earned and the
Restriction Period will be deemed expired on such terms and conditions as the
Committee may determine; and (iv) all amounts deferred under this Plan will be
paid to a trustee or otherwise on such terms as the Committee may prescribe or
permit.
(b) Post-July 28, 1999 Awards and Deferrals. With respect to Awards
made or granted pursuant to the Plan on or after July 28, 1999 and with respect
to amounts deferred under the Plan on or after July 28, 1999, the occurrence of
a Change in Control, as defined in Section 7.2, will have no effect on such
outstanding Awards and deferrals pursuant to the Plan (i) unless, with respect
to an Option or a Limited Right, otherwise provided in the applicable Stock
Option Agreement, as it may be amended from time to time, or (ii) unless the
Committee or the Board determines otherwise.
7.2 Definition of Change in Control
Unless otherwise provided in an agreement or other document governing
the respective Award or Deferred Amount, as it may be amended from time to time,
the term "Change in Control" means the occurrence of one or more of the
following events: (a) there shall be consummated (i) any consolidation or merger
of the Corporation in which the Corporation is not the continuing or surviving
corporation or pursuant to which shares of the Common Stock would be converted
into cash, securities or other property, other than a merger of the Corporation
in which the holders of Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving corporation
immediately after the merger, or (ii) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Corporation, or (b) the stockholders of
the Corporation shall approve any plan or proposal for the liquidation or
dissolution of the Corporation, or (c) (i) any person (as such term is defined
in Section 13(d) of the Exchange Act), corporation or other entity shall
purchase any Common Stock of the Corporation (or securities convertible into
Common Stock) for cash, securities or any other consideration pursuant to a
tender offer or exchange offer, unless, prior to the making of such purchase of
Common Stock (or securities convertible into Common Stock), the Board shall
determine that the making of such purchase shall not constitute a Change in
Control, or (ii) any person (as such term is defined in Section 13(d) of the
Exchange Act), corporation or other entity (other than the Corporation or any
benefit plan sponsored by the Corporation or any of its subsidiaries) shall be
the "beneficial owner" (as such term is defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Corporation representing
twenty percent or more of the combined voting power of the Corporation's then
outstanding securities ordinarily (and apart from any rights accruing under
special circumstances) having the right to vote in the election of directors
(calculated as
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provided in Rule 13d-3(d) in the case of rights to acquire any such securities),
unless, prior to such person so becoming such beneficial owner, the Board shall
determine that such person so becoming such beneficial owner shall not
constitute a Change in Control, or (d) at any time during any period of two
consecutive years, individuals who at the beginning of such period constituted
the entire Board shall cease for any reason to constitute at least a majority
thereof, unless the election or nomination for election of each new director
during such two-year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of such
two-year period.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Transferability
No Option, Limited Right, SAR, Performance Award or share of Restricted
Stock or Deferred Amount under the Plan will be transferable other than by will,
by the applicable laws of descent and distribution, or, if permitted by the
Company, by transfer to a properly designated beneficiary in the event of death.
All Awards and Deferred Amounts will be exercisable or received during the
Participant's lifetime only by such Participant or his or her legal
representative. Any transfer contrary to this Section 8.1 will nullify the
option, Limited Right, SAR, Performance Award or share of Restricted Stock, and
any attempted transfer of a Deferred Amount contrary to this Section 8.1 will be
void and of no effect.
8.2 Beneficiaries
The Committee may, but need not, establish or authorize the
establishment of procedures not inconsistent with Section 8.1 under which a
Participant may designate a beneficiary or beneficiaries to hold, exercise
and/or receive amounts due under an Award or with respect to Deferred Amounts in
the event of the Participant's death.
8.3 Adjustments Upon Changes in Stock
If there is any change in the Stock of the Company, through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
split up, dividend in kind or other change in the corporate structure or
distribution to the stockholders, appropriate adjustments may be made by the
Board of Directors of the Company (or if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation) in the aggregate number and kind of shares subject to the Plan, and
the number and kind of shares and the price per share subject to outstanding
Options or which may be issued under outstanding Performance Awards or Awards of
Restricted Stock. Appropriate adjustments may also be made by the Board of
Directors or the Committee in the terms of any Awards under the Plan to reflect
such changes and to modify any other terms of outstanding Awards on an equitable
basis, including modifications of performance targets and changes in the length
of Performance Periods.
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8.4 Conditions of Awards
(a) Unless the Committee determines otherwise, either by waiving the
condition(s) or by limiting or otherwise amending the condition(s) with respect
to any specified Award or group of Awards, the rights of a Participant with
respect to any Award received under this Plan will be subject to the conditions
that, until the Participant has fully received all payments, transfers and other
benefits under the Award, he or she will (i) not engage, either directly or
indirectly, in any manner or capacity as advisor, principal, agent, partner,
officer, director, employee, member of any association or otherwise, in any
business or activity which is at the time competitive with any business or
activity conducted by the Company and (ii) be available, unless he or she has
died, at reasonable times for consultations at the request of the Company's
management with respect to phases of the business with which he or she is or was
actively connected during his or her employment, but such consultations will not
(except in the case of a Participant whose active service was outside the United
States) be required to be performed at any place or places outside of the United
States of America or during usual vacation periods or periods of illness or
other incapacity. In the event that either of the above conditions is applicable
(or is applicable as modified by the Committee) and is not fulfilled, the
Participant will forfeit all rights to any unexercised option or SAR, or any
Performance Award or Stock held which has not yet been determined by the
Committee to be payable or unrestricted (and any unpaid amounts equivalent to
dividends or other distributions or amounts equivalent to interest relating
thereto) as of the date of the breach of condition. Any determination by the
Board of Directors of the Corporation, which will act upon the recommendation of
the Chief Executive Officer, that the Participant is, or has, engaged in a
competitive business or activity as aforesaid or has not been available for
consultations as aforesaid or, if the Committee has modified such condition(s)
with respect to the Participant's Award, that the Participant has not complied
with such condition(s) as modified by the Committee will be conclusive.
(b) This Section 8.4 will not apply to Limited Rights.
8.5 Use of Proceeds
All cash proceeds from the exercise of options will constitute general
funds of the Company.
8.6 Tax Withholding
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all statutory federal, state and local
withholding tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Stock may be delivered, the
Committee will have the right to require that the Participant or other
appropriate person remit to the Company an
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amount sufficient to satisfy the statutory withholding requirements, or make
other arrangements satisfactory to the Committee with regard to such
requirements, prior to the delivery of any Stock. If and to the extent that such
withholding is required, the Committee may permit the Participant or such other
person to elect at such time and in such manner as the Committee provides to
have the Company hold back from the shares to be delivered, or to deliver to the
Company, Stock having a value calculated to satisfy the statutory withholding
requirement. In the alternative, the Committee may, at the time of grant of any
such Award, require that the Company withhold from any shares to be delivered
Stock with a value calculated to satisfy applicable statutory tax withholding
requirements.
8.7 Non-Uniform Determinations
The Committee's determinations under the Plan, including without
limitation, (i) the determination of the Participants to receive Awards, (ii)
the form, amount, timing and payment of such Awards, (iii) the terms and
provisions of such Awards and (iv) the agreements evidencing the same, need not
be uniform and may be made by it selectively among Participants who receive, or
who are eligible to receive, Awards under the Plan, whether or not such
Participants are similarly situated.
8.8 Leaves of Absence; Transfers
The Committee will be entitled to make such rules, regulations and
determinations as it deems appropriate under the Plan with respect to any leave
of absence from the Company granted to a Participant. Without limiting the
generality of the foregoing, the Committee will be entitled to determine (i)
whether or not any such leave of absence will be treated as if the Participant
ceased to be an Employee and (ii) the impact, if any, of any such leave of
absence on Awards under the Plan. In the event a Participant transfers within
the Company, such Participant will not be deemed to have ceased to be an
Employee for purposes of the Plan.
8.9 General Restriction
(a) Each Award under the Plan will be subject to the condition that, if
at any time the Committee determines that (i) the listing, registration or
qualification of shares of Stock upon any securities exchange or under any state
or federal law, (ii) the consent or approval of any government or regulatory
body or (iii) an agreement by the Participant with respect thereto, is necessary
or desirable, then such Award will not be consummated in whole or in part unless
such listing, registration, qualification, consent, approval or agreement has
been effected or obtained free from any conditions not acceptable to the
Committee.
(b) Shares of Common Stock for use under the provisions of this Plan
will not be issued until they have been duly listed, upon official notice of
issuance, upon the New York Stock Exchange and such other exchanges, if any, as
the Board of Directors of the Corporation determines, and a registration
statement under the Securities Act of 1933 with respect to such shares has
become, and is, effective.
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8.10 Effective Date
The Plan will be deemed effective as of December 4, 1991.
No Award may be granted under the Plan after the Plan is terminated
pursuant to Section 8.11, but Awards previously made may extend beyond that date
and Reload Options and additional Reload Options provided for with respect to
original options outstanding prior to that date may continue unless the
Committee otherwise provides and subject to such additional terms and conditions
as the Committee may provide, and the provisions of Article VI of the Plan will
survive and remain effective as to all present and future Deferred Amounts until
such later date as the Committee or the Board of Directors may determine.
The adoption of the Plan will not preclude the adoption by appropriate
means of any other stock option or other incentive plan for employees and/or
independent contractors.
8.11 Amendment, Suspension and Termination of Plan
The Board of Directors may at any time or times amend the Plan for any
purpose which may at the time be permitted by law, or may at any time suspend or
terminate the Plan as to any further grants of Awards.
8.12 Certain Definitions
(a) Unless otherwise determined by the Committee, the terms
"retirement" and "disability" as used under the Plan will be construed by
reference to the provisions of the Westinghouse Pension Plan or other similar
plan or program of the Company applicable to a Participant.
(b) The term "Fair Market Value" as it relates to Common Stock means
the average of the high and low prices of the Common Stock as reported by the
Composite Tape of the New York Stock Exchange (or such successor reporting
system as the Committee may select) on the relevant date or, if no sale of the
Common Stock has been reported for that day, the average of such prices on the
next preceding day and the next following day for which there were reported
sales. The term "Fair Market Value" as it relates to Formula Value Stock will
mean the value determined by the Committee.
(c) Unless otherwise determined by the Committee, the term "Subsidiary"
will mean, unless the context otherwise requires, any corporation (other than
the Corporation) in an unbroken chain of corporations beginning with the
corporation if each of the corporations other than the last corporation in such
chain owns stock possessing more than 50% of the voting power in one of the
other corporations in such chain.
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(d) "Formula Value Stock" means shares of a class or classes of stock
the value of which is derived from a formula established by the Committee which
reflects such financial measures as the Committee may determine. Such shares
will have such other characteristics as may be determined at time of their
authorization.
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EXHIBIT 4.7
CBS CORPORATION
DEFERRED COMPENSATION AND STOCK PLAN
FOR DIRECTORS
(as amended as of February 24, 2000)
Section 1. Introduction
1.1 Establishment. CBS Corporation, a Pennsylvania corporation formerly
known as Westinghouse Electric Corporation (the "Company" or "CBS"), has
established the Deferred Compensation and Stock Plan for Directors, as amended
from time to time (the "Plan"), for those directors of the Company who are
neither officers (other than non-executive officers) nor employees of the
Company. The Plan provides, among other things, for the payment of specified
portions of the Annual Director's Fee and the Annual Board Chairman's Fee, if
applicable, in the form of Stock Options and Restricted Stock, the payment of
the Annual Committee Chair's Fee in the form of Restricted Stock, the granting
of Stock Options and Restricted Stock as additional Director compensation, and
the opportunity for the Directors to defer receipt of all or a part of their
cash compensation. Unless otherwise provided for herein, the term Company
includes CBS Corporation and its subsidiaries.
1.2 Purposes. The purposes of the Plan are to encourage the Directors
to own shares of the Company's stock and thereby to align their interests more
closely with the interests of the other shareholders of the Company, to
encourage the highest level of Director performance, and to provide a financial
incentive that will help attract and retain the most qualified Directors.
Section 2. Definitions
2.1 Definitions. The following terms will have the meanings set
forth below:
o "Annual Board Chairman's Fee" means the annual amount (which
may be prorated) established from time to time by the Board as
the annual fee to be paid to the Board Chairman, if any, for
his or her services as Board Chairman.
o "Annual Committee Chair's Fee" means the annual amount (which
may be prorated for a Director serving as a committee chair
for less than a full year) established from time to time by
the Board as the annual fee to be paid to Directors for their
services as chairs of standing committees of the Board.
o "Annual Director's Fee" means the annual amount (which may be
prorated for a Director serving less than a full calendar
year, as in the case of a Director who will be retiring or not
standing for reelection at the annual meeting of shareholders
or a Director joining the Board (or otherwise first becoming a
Director) after the beginning of the year) established from
time to time by the Board as the annual fee to be paid to
Directors for their services as directors.
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o "Attendance Percentage" for a Director with respect to a
particular Grant Year means the percentage of the aggregate of
all meetings of the Board and committees of which the Director
was a member held during the Grant Year (or, for Directors who
join the Board or otherwise first become Directors after the
beginning of the Grant Year, Directors who retire at the
annual meeting of shareholders (as described in the Company's
By-laws) held during the Grant Year, Directors who do not
stand for reelection at the annual meeting of shareholders
held during the Grant Year, or Directors who die during the
Grant Year, the aggregate of all such meetings held for the
portion of the Grant Year during which the Director served as
a director), excluding any meeting(s) not attended because of
illness, travel conditions, or other excused absences, which
were attended by the Director. Except as otherwise provided
below, in the event that a Director ceases to be a director at
any time during the Grant Year for any reason other than
retirement at the annual meeting of shareholders, not standing
for reelection at the annual meeting of shareholders, or
death, all meetings held during the Grant Year of the Board
and committees of which he was a member at the time of
termination of service will continue to be included as
meetings when calculating the Attendance Percentage.
o "Board" means the Board of Directors of the Company.
o "Board Chairman" means the director who is the non-employee,
non-executive chairman of the Board, if any.
o "Cash Account" means the account established by the Company in
respect of each Director pursuant to Section 6.3(a) hereof and
to which deferred cash compensation has been or will be
credited pursuant to the Plan.
o "Cause" means any act of (i) fraud or intentional
misrepresentation or (ii) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any of
its direct or indirect majority-owned subsidiaries.
o "CBS" or "Company" means CBS Corporation, a Pennsylvania
corporation, and its successors.
o "CBS/Viacom Merger" means the merger of CBS Corporation and
Viacom Inc.
o "Change in Control" will have the meaning assigned to it in
Section 9.2 hereof.
o "Committee" means the Compensation Committee of the Board (or
any subcommittee thereof) or any successor committee
established by the Board, or any subcommittee thereof, in each
case consisting of two or more members each of whom is a
"non-employee director" as that term is defined by Rule 16b-3
under the Exchange Act, as such rule may be amended, or any
successor rule.
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o "Common Stock Equivalent" means a hypothetical share of Stock
which will have a value on any date equal to the mean of the
high and low prices of the Stock as reported by the composite
tape of the New York Stock Exchange on that date, except as
otherwise provided under Section 9.1.
o "Common Stock Equivalent Award" means an award of Common Stock
Equivalents granted to a Director pursuant to Section 5 of the
Plan prior to its amendment as of April 26, 1995.
o "Debenture" means a hypothetical debenture of the Company that
has a face value of $100, bears interest at a rate equal to
the ten-year U.S. Treasury Bond rate (prior to January 1,
1995, the seven-year U.S. Treasury Bond rate) in effect the
week prior to the regular January meeting of the Board (or, if
no such meeting is held, the week prior to the first trading
day of the New York Stock Exchange in February) in the year in
respect of which deferred amounts are earned, and is
convertible into Stock at a conversion rate determined by
dividing $100 by the mean of the high and low prices of the
Stock as reported by the composite tape of the New York Stock
Exchange on the date the Debenture is credited to the Deferred
Debenture Account pursuant to Section 6.3 hereof.
o "Deferred Debenture Account" means the account established by
the Company pursuant to Section 6.3(c) hereof in respect of
each Director electing to defer cash compensation under the
Plan for 1997 and/or for an earlier year or years and to which
has been or will be credited Debentures and other amounts
pursuant to the Plan.
o "Deferred Stock Account" means the account established by the
Company in respect of each Director pursuant to Section 5.2
hereof and to which has been or will be credited Common Stock
Equivalents pursuant to the Plan.
o "Director" means a member of the Board who is neither an
officer nor an employee of the Company. For purposes of the
Plan, an employee is an individual whose wages are subject to
the withholding of federal income tax under Section 3401 of
the Internal Revenue Code, and an officer is an individual
elected or appointed by the Board or chosen in such other
manner as may be prescribed in the By-laws of the Company to
serve as such, other than a non-executive officer (such as the
Board Chairman).
o "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time.
o "Fair Market Value" means the mean of the high and low prices
of the Stock as reported by the composite tape of the New York
Stock Exchange (or such successor reporting system as the
Committee may select) on the relevant date or, if no sale of
the Stock has been reported for that day, the average of such
prices on the next preceding day and the next following day
for which there were reported sales.
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o "Grant Date" means, as to a Stock Option Award, the date of
grant pursuant to Section 7.1 and as to a Restricted Stock
Award, the date of grant pursuant to Section 8.1.
o "Grant Year" means, as to a particular award, the calendar
year in which the award was granted; provided, however, for
the year 2000, Grant Year will mean the calendar year 2000 or
the period from January 1, 2000 to and including the effective
date of the CBS/Viacom Merger, whichever is shorter.
o "Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
o "Option Vesting Date" will have the meaning assigned to it in
Section 7.2.
o "Restricted Stock" means shares of Stock awarded to a Director
pursuant to Section 8 and subject to certain restrictions in
accordance with the Plan.
o "Restricted Stock Award" means an award of shares of
Restricted Stock granted to a Director pursuant to Section 8
of the Plan.
o "Stock" means the common stock, $1.00 par value, of the
Company.
o "Stock Option" means a non-statutory stock option to purchase
shares of Stock for a purchase price per share equal to the
Exercise Price (as defined in Section 7.2(a)) in accordance
with the provisions of the Plan.
o "Stock Option Award" means an award of Stock Options granted
to a Director pursuant to Section 7 of the Plan.
o "Stock Option Value" means the value of a Stock Option for one
share of Stock on the relevant date as determined by the
Company.
o "Viacom" means Viacom Inc. and its successors.
2.2 Gender and Number. Except when otherwise indicated by the
context, the masculine gender will also include the feminine gender, and the
definition of any term herein in the singular will also include the plural.
Section 3. Plan Administration
(a) The Plan will be administered by the Committee. The
members of the Committee will be members of the Board appointed by the Board,
and any vacancy on the Committee will be filled by the Board or in a manner
authorized by the Board.
The Committee will keep minutes of its meetings and of any action taken
by it without a meeting. A majority of the Committee will constitute a quorum,
and the acts of a majority of the
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members present at any meeting at which a quorum is present will be the acts of
the Committee. Any action that may be taken at a meeting of the Committee may be
taken without a meeting if a consent or consents in writing setting forth the
action so taken is signed by all of the members of the Committee. The Committee
will make appropriate reports to the Board concerning the operations of the
Plan.
(b) Subject to the limitations of the Plan, the Committee
and/or the Board, will have the sole and complete authority: (i) to impose such
limitations, restrictions and conditions upon such awards as it deems
appropriate; (ii) to interpret the Plan and to adopt, amend and rescind
administrative guidelines and other rules and regulations relating to the Plan;
and (iii) to make all other determinations and to take all other actions
necessary or advisable for the implementation and administration of the Plan.
The Committee's or the Board's determinations on matters within its authority
will be conclusive and binding upon the Company and all other persons.
(c) The Company will be the sponsor of the Plan. All expenses
associated with the Plan will be borne by the Company.
Section 4. Stock Subject to the Plan
4.1 Number of Shares. 600,000 shares of Stock are authorized
for issuance under the Plan in accordance with the provisions of the Plan,
subject to adjustment and substitution as set forth in this Section 4. This
authorization may be increased from time to time by approval of the Board and,
if such approval is required, by the shareholders of the Company. The Company
will at all times during the term of the Plan retain as authorized and unissued
Stock at least the number of shares from time to time required under the
provisions of the Plan, or otherwise assure itself of its ability to perform its
obligations hereunder.
4.2 Other Shares of Stock. Any shares of Stock that are subject
to a Common Stock Equivalent Award, a Stock Option Award, a Restricted Stock
Award or a Debenture and which are forfeited, any shares of Stock that for any
other reason are not issued to a Director, and any shares of Stock tendered by a
Director to pay the Exercise Price of a Stock Option will automatically become
available again for use under the Plan if Rule 16b-3 under the Exchange Act, as
such rule may be amended, or any successor rule, and interpretations thereof by
the Securities and Exchange Commission or its staff permit such share
replenishment.
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4.3 Adjustments Upon Changes in Stock. If there is any change
in the Stock and/or in the corporate structure of the Company, through merger,
consolidation, division, share exchange, combination, reorganization,
recapitalization, stock dividend, stock split, spin-off, split up, dividend in
kind or other change in the corporate structure or distribution to the
shareholders, appropriate adjustments may be made by the Committee (or, if the
Company is not the surviving corporation in any such transaction, the board of
directors of the surviving corporation) in the aggregate number and kind of
shares subject to the Plan, and the number and kind of shares which may be
issued under the Plan. Appropriate adjustments may also be made by the Committee
in the terms of any awards or Debentures under the Plan to reflect such changes
and to modify any other terms of outstanding awards on an equitable basis as the
Committee in its discretion determines.
Section 5. Common Stock Equivalent Awards
5.1 Grants of Common Stock Equivalent Awards. Common Stock
Equivalents equal to a fixed number of shares of Stock were granted
automatically to Directors on a formula basis under Section 5.1 of the Plan
prior to its amendment as of April 26, 1995. All Common Stock Equivalents
granted pursuant to Section 5.1 prior to its amendment as of April 26, 1995 are
subject to adjustment as provided in Section 4.3.
5.2 Deferred Stock Account. A Deferred Stock Account has been
established for each Director elected prior to the annual meeting of
shareholders held in 1995. The Deferred Stock Account consists of compensation
in the form of Common Stock Equivalents which have been awarded to the Director
hereunder by the Company plus Common Stock Equivalents credited to the Deferred
Stock Account in respect of dividends and other distributions on the Stock
pursuant to Sections 5.3 and 5.4.
5.3 Hypothetical Investment. Compensation awarded hereunder in
the form of Common Stock Equivalents is assumed to be a hypothetical investment
in shares of Stock, and is subject to adjustment to reflect stock dividends,
splits and reclassifications and as otherwise set forth in Section 4.3.
5.4 Hypothetical Dividends. Dividends and other distributions
on Common Stock Equivalents will be deemed to have been paid as if such Common
Stock Equivalents were actual shares of Stock issued and outstanding on the
respective record or distribution dates. Common Stock Equivalents will be
credited to the Deferred Stock Account in respect of cash dividends and any
other securities or property issued on the Stock in connection with
reclassifications, spin-offs and the like on the basis of the value of the
dividend or other asset distributed and the value of the Common Stock
Equivalents on the date of the announcement of the dividend or asset
distribution, all at the same time and in the same amount as dividends or other
distributions are paid or issued on the Stock. Such Common Stock Equivalents are
subject to adjustment as provided in Section 4.3. Fractional shares will be
credited to a Director's Deferred Stock Account cumulatively but the balance of
shares of Common Stock Equivalents in a Director's Deferred Stock Account will
be rounded to the next highest whole share for any payment to such Director
pursuant to Section 5.6.
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5.5 Statement of Account. A statement will be sent to each
Director as to the balance of his Deferred Stock Account at least once each
calendar year.
5.6 Payment of Deferred Stock. Unless the Board or the
Committee determines otherwise, upon termination of services as a Director, the
balance of the Director's Deferred Stock Account will be paid to such Director
in Stock in January of the year following the year of termination of services as
a director or, as elected by such Director in writing, in five, ten or fifteen
consecutive annual installments beginning in January of the year following the
year of termination of services as a director, on the basis of one share of
Stock for each Common Stock Equivalent in such Director's Deferred Stock
Account. For purposes of this Section 5.6, if a CBS director becomes a Viacom
director on the effective date of the CBS/Viacom Merger, he or she will not be
deemed to have terminated service as a director until he or she terminates
service as a director of Viacom.
5.7 Payments to a Deceased Director's Estate. In the event of a
Director's death before the balance of his or her Deferred Stock Account is
fully paid to the Director, payment of the balance of the Director's Deferred
Stock Account will then be made to the beneficiary properly designated by the
Director pursuant to Section 5.8, if any, or to his or her estate in the absence
of such a beneficiary designation, in the time and manner selected by the
Committee. The Committee may take into account the application of any duly
appointed administrator or executor of a Director's estate and direct that the
balance of the Director's Deferred Stock Account be paid to his or her estate in
the manner requested by such application.
5.8 Designation of Beneficiary. A Director may designate a
beneficiary in the event of the Director's death in a form approved by the
Company.
Section 6. Deferral of Compensation
6.1 Amount of Deferral. A Director may elect to defer receipt
of all or a specified portion of the cash compensation otherwise payable to the
Director for services rendered to the Company in any capacity as a director.
6.2 Manner of Electing Deferral. A Director will make elections
permitted hereunder by giving written notice to the Company in a form approved
by the Committee and in compliance with Section 6.4. The notice will include:
(i) the percentage of cash compensation to be deferred, which amount must be
stated in whole increments of five percent; and (ii) the time as of which
deferral is to commence.
6.3 Accounts.
(a) Cash Account. A Cash Account has been or will be
established for each Director electing to defer hereunder. Each Cash Account
will be credited with the amounts deferred on the date such compensation is
otherwise payable and will be debited with the amount of any such compensation
forfeited in accordance with applicable Board policy.
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(b) Interest. Deferred amounts in the Cash Account will
accrue interest from time to time as follows:
(1) Pre-1998. For deferred amounts credited to the Cash
Account prior to January 1, 1998 (including but not limited
to Annual Director's Fees for the calendar year 1997), such
deferred amounts will accrue interest from time to time at a
rate equal to the ten-year U.S. Treasury Bond rate (prior to
January 1, 1995, the seven-year U.S. Treasury Bond rate) in
effect the week prior to the regular January meeting of the
Board (or, if no such meeting is held, the week prior to the
first trading day of the New York Stock Exchange in February)
in the year in respect of which such deferred amounts are
earned until the last trading day of the New York Stock
Exchange prior to the regular January meeting of the Board
(or, if no such meeting is held, until the first trading day
of February) in the year following the year in respect of
which deferred amounts are earned, at which time such
deferred amounts, including interest, will be invested in
Debentures and credited to the Deferred Debenture Account.
Deferred amounts will be credited to the Deferred Debenture
Account only in $100 amounts. Fractional amounts of $100 will
remain in the Cash Account and continue to accrue interest.
(2) 1998 and Thereafter. For deferred amounts credited to
the Cash Account on or after January 1, 1998 (and any
fractional amounts remaining in the Cash Account from prior
deferrals), unless otherwise determined by the Board or the
Committee prior to the deferral date such deferred amounts
will accrue interest from time to time at the Interest Credit
Rate then in effect, compounded annually. The "Interest
Credit Rate" will be reset by the Company on an annual basis
in January of the year, and will equal the then current
one-year U.S. Treasury Bill rate or such other fixed rate as
the Committee may from time to time determine.
(c) Deferred Debenture Account. A Deferred Debenture Account
has been established for each Director electing to defer cash compensation
hereunder for the calendar year 1997 and/or for an earlier year or years.
Deferred amounts credited to the Cash Account prior to January 1, 1998 will be
invested in Debentures and credited to the Deferred Debenture Account at the
time and in the manner set forth in Section 6.3(b)(1). Deferred amounts credited
to the Cash Account on or after January 1, 1998 will not be invested in
Debentures but will remain in the Cash Account and accrue interest until payment
hereunder.
6.4 Time for Electing Deferral. Any election to (i) defer cash
compensation, (ii) alter the portion of such amounts deferred, or (iii) revoke
an election to defer such amounts, must be made prior to the time such
compensation is earned by the Director and otherwise in compliance with any
deadline which the Company may from time to time impose and in the manner set
forth in Section 6.2.
6.5 Payment of Deferred Amounts. Unless the Board or the
Committee determines otherwise, upon termination of services as a Director,
payments from a Deferred Debenture
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Account and/or from a Cash Account will be made in five consecutive annual
installments beginning in the January following the Director's termination of
service or, if elected by such Director in writing, such payments may be made in
ten or fifteen consecutive annual installments or may be made in lump sum in the
January following the Director's termination of services. For purposes of this
Section 6.5, if a CBS director becomes a Viacom director on the effective date
of the CBS/Viacom Merger, he or she will not be deemed to have terminated
service as a Director until he or she terminates service as a director of
Viacom.
Payments from a Deferred Debenture Account will consist of accumulated
interest on the Debentures (which amount will only be payable in cash) plus the
greater value of (i) the face value of the Debentures or (ii) the shares of
Stock into which the Debentures are convertible. In the event the value of the
payment is determined by the amount referred to in clause (i), payment will be
made in cash. In the event such value is determined by clause (ii), such payment
will be made in Stock, other than the value of fractional shares which will be
paid in cash.
Payments from a Cash Account will consist of the deferred cash
compensation and accumulated interest in said account and will be made in cash.
6.6 Payments to a Deceased Director's Estate. In the event of a
Director's death before the balance of his or her Cash Account or Deferred
Debenture Account is fully paid to the Director, payment of the balance of the
Cash Account or Deferred Debenture Account will then be made to the beneficiary
properly designated by the Director pursuant to Section 6.7, if any, or to his
or her estate in the absence of such a beneficiary designation, in the time and
manner selected by the Committee. The Committee may take into account the
application of any duly appointed administrator or executor of a Director's
estate and direct that the balance of the Director's Cash Account or Deferred
Debenture Account be paid to his or her estate in the manner requested by such
application.
6.7 Designation of Beneficiary. A Director may designate a
beneficiary in the event of the Director's death in a form approved by the
Company.
Section 7. Stock Option Awards
7.1 Grants of Stock Option Awards.
(a) For calendar year 1995, Stock Options for a fixed number
of shares of Stock were granted automatically to Directors on a formula basis
under Section 7.1(a) of the Plan.
(b) For calendar year 1995, Stock Options for a fixed number
of shares of Stock were granted automatically on a formula basis under Section
7.1(b) of the Plan to Directors serving as chairs of standing committees of the
Board.
(c) For calendar years 1996 and 1997, Stock Options were
granted automatically under Section 7.1(c) of the Plan to Directors for
one-fourth of the value of their Annual Director's Fees.
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(d) Annual Director's Fee Grants. Beginning with calendar
year 1998, unless otherwise determined by the Board or the Committee each
Director will receive 5/16ths (31.25%) of the value of his or her Annual
Director's Fee in the form of a Stock Option Award. Such Stock Options will be
granted automatically each year on the last Wednesday in January of such year to
each Director in office on such Grant Date.
If a person joins the Board or otherwise first becomes a Director at
any time after the last Wednesday in January of a given calendar year (beginning
with 1998) but before the end of that calendar year, whether by action of the
shareholders of the Company or the Board or otherwise, unless otherwise
determined by the Board or the Committee such person upon becoming a Director
will be granted automatically 5/16ths (31.25%) of the value of his or her Annual
Director's Fee for that calendar year (which may be prorated) in the form of a
Stock Option Award on the last Wednesday of the calendar month in which such
person first becomes a Director (or in the next following calendar month if such
person first becomes a Director after the last Wednesday of the month). The
total number of shares of Stock subject to any such Stock Option Award will be
the number of shares determined by dividing the amount of the Annual Director's
Fee to be paid in the form of a Stock Option Award by the Stock Option Value on
the Grant Date, rounded up to the nearest whole share.
(e) Annual Board Chairman's Fee Grants. Beginning with
calendar year 1999, unless otherwise determined by the Board or the Committee,
the Board Chairman, if any, will receive 5/16ths (31.25%) of the value of his or
her Annual Board Chairman's Fee in the form of a Stock Option Award, and such
Stock Options will be granted automatically each year on the last Wednesday in
January of such year to the Board Chairman in office on such Grant Date, if any.
If a director becomes Board Chairman at any time after the last
Wednesday in January of a given calendar year (beginning with calendar year
1999) but before the end of that calendar year, whether by action of the Board
or otherwise, unless otherwise determined by the Board or the Committee such
director upon so becoming the Board Chairman will be granted automatically
5/16ths (31.25%) of the value of his or her Annual Board Chairman's Fee for that
calendar year (which may be prorated) in the form of a Stock Option Award on the
last Wednesday of the calendar month in which such person first becomes Board
Chairman (or in the next following calendar month if such person first becomes
Board Chairman after the last Wednesday of the month). The total number of
shares of Stock subject to any such Stock Option Award will be the number of
shares determined by dividing the amount of the Annual Board Chairman's Fee to
be paid in the form of a Stock Option Award by the Stock Option Value on the
Grant Date, rounded up to the nearest whole share.
(f) Other Stock Option Grants. Beginning with calendar year
1999, the Board or the Committee may, from time to time, grant Stock Option
Awards to one or more Directors or to the Board Chairman for such number of
shares as the Board or the Committee may determine as additional compensation to
such Director or Directors or to such Board Chairman for their services as such.
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(g) All Stock Options granted pursuant to Section 7.1 are
subject to adjustment as provided in Section 4.3.
7.2 Terms and Conditions of Stock Options. Unless otherwise
determined by the Board or the Committee, Stock Options granted under the Plan
will be subject to the following terms and conditions:
(a) Exercise Price. Beginning with Stock Options granted in
calendar year 1998 and thereafter, the purchase price per share at which a Stock
Option may be exercised ("Exercise Price") will be equal to the Fair Market
Value of a share of Stock on the Grant Date. Notwithstanding anything herein to
the contrary, in no event may the Board or the Committee establish an Exercise
Price that is less than the Fair Market Value of a share of Stock on the Grant
Date.
For Stock Options granted in 1995, 1996 and 1997, the Exercise Price
was determined as follows: on any Grant Date, (1) Stock Options for two-thirds
of the option shares granted on the Grant Date had an Exercise Price per share
equal to 100% of the Fair Market Value of a share of Stock on the Grant Date;
and (2) Stock Options for the remaining one-third of the option shares granted
on the Grant Date had an Exercise Price per share equal to 125% of the Fair
Market Value of a share of Stock on the Grant Date.
(b) Exercisability. Subject to the terms and conditions of
the Plan and of the agreement referred to in Section 7.2(j), a Stock Option may
be exercised in whole or in part upon notice of exercise to the Company: (1) as
to any Stock Option granted in calendar year 1995, commencing on the first day
after the Grant Date and until it terminates; and (2) as to any Stock Option
granted after January 1, 1996 that vests as provided in Section 7.2(c)(2),
7.2(c)(3) or 7.2(c)(4), commencing on January 1 of the calendar year next
following the Grant Year (the "Option Vesting Date") or, if so provided in the
relevant Stock Option Agreement, upon the occurrence of a Change in Control, if
earlier, and until it terminates. During a Director's lifetime, a Stock Option
may be exercised only by the Director or the Director's guardian or legal
representative. The Committee or the Board may at any time and from time to time
accelerate the time at which all or any part of a Stock Option may be exercised.
(c) Vesting of Stock Option Awards.
(1) Stock Options granted in calendar year 1995 vested
immediately on grant.
(2) Annual Director's Fee Grants. Except as otherwise set
forth in Section 7.1(c)(4), Stock Options granted as part of a Director's Annual
Director's Fee after January 1, 1996 will vest on the Option Vesting Date if the
Director has an Attendance Percentage of at least seventy-five percent (75%) for
the Grant Year. The Committee or the Board may at any time or from time to time
accelerate the vesting of all or any part of a Stock Option.
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In the event that a Director has an Attendance Percentage of less than
seventy-five percent (75%) for a Grant Year, Stock Options granted in that Grant
Year for a number of shares equal to the Director's Attendance Percentage for
that year multiplied by the total number of option shares granted for that year
(rounded up to the nearest whole share) will vest on the Option Vesting Date,
and Stock Options granted in that Grant Year as to the remaining option shares
will be forfeited and will terminate as of the Option Vesting Date.
(3) Annual Board Chairmen's Fee Grants and Other Grants.
Except as otherwise set forth in Section 7.1(c)(4), Stock Options granted as
part of an Annual Board Chairman's Fee, if any, or granted to a Director or to
the Board Chairman, if any, pursuant to Section 7.1(f) will vest on the Option
Vesting Date.
(4) Notwithstanding anything to the contrary herein, (i) in
the event that a director is removed for Cause from office as a director of the
Company (and/or, in the case of Stock Options granted to a director in his or
her capacity as Board Chairman, from office as Board Chairman, if applicable),
all outstanding Stock Options will be forfeited immediately as of the time the
grantee is so removed from office, (ii) if so provided in the relevant Stock
Option Agreement or if the Committee or the Board so determines with respect to
a Stock Option or Options, upon the occurrence of a Change in Control, all such
outstanding Stock Options will vest and become immediately exercisable, and
(iii) for any Director who, at the effective date of the CBS/Viacom Merger is
not a director of Viacom, Stock Options granted in calendar year 2000 as part of
such Director's Annual Director's Fee and Stock Options granted in calendar year
2000 to such Director, if any, pursuant to Section 7.1(f) will vest and become
immediately exercisable at the effective time of the CBS/Viacom Merger.
(d) Mandatory Holding of Stock. Except as otherwise provided
in Section 7.5 or Section 10 or unless waived by the Committee or the Board, any
Stock acquired on exercise of a Stock Option must be held by the grantee for a
minimum of: (1) three years from the date of exercise; (2) two years from the
date the grantee ceases to be a director of the Company; or (3) if so provided
in the relevant Stock Option Agreement or if the Committee or the Board so
determines with respect to a Stock Option or Options, until the occurrence of a
Change in Control, whichever first occurs (the "Option Shares Holding Period").
Notwithstanding the foregoing or anything to the contrary contained in any Stock
Option agreement, upon the effective time of the CBS/Viacom Merger, the Option
Shares Holding Period for any Stock acquired or to be acquired on exercise of a
Stock Option shall terminate.
(e) Option Term. The term of a Stock Option (the "Option
Term") will be the shorter of: (1) the period of ten years from its Grant Date;
(2) the period from the Grant Date until the Option Vesting Date for a Stock
Option that does not vest and is terminated on said date as provided in Section
7.2(c)(2), if applicable (or with respect to any portion of a Stock Option that
does not vest on the Option Vesting Date and is terminated as provided in
Section 7.2(c)(2), if applicable); (3) the period from the Grant Date until the
time the Stock Option is forfeited as provided in Section 7.2(c)(4)(i) in the
event a director is removed from office as a director of the Company and/or as
Board Chairman, if applicable, for Cause; or (4) the period from the Grant Date
until the date the Stock Option ceases to be exercisable as provided in Section
7.2(h).
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(f) Payment of Exercise Price. Stock purchased on exercise of
a Stock Option must be paid for as follows: (1) in cash or by check (acceptable
to the Company), bank draft or money order payable to the order of the Company,
(2) through the delivery of shares of Stock which are then outstanding and which
have a Fair Market Value on the date of exercise equal to the Exercise Price per
share multiplied by the number of shares as to which the Stock Option is being
exercised (the "Aggregate Exercise Price"); (3) by delivery of an unconditional
and irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the Aggregate Exercise Price, or (4) by a combination of
the permissible forms of payment; provided, however, that any portion of the
Exercise Price representing a fraction of a share must be paid in cash and no
share of Stock held for less than six months may be delivered in payment of the
Aggregate Exercise Price.
(g) Rights as a Shareholder. The holder of a Stock Option
will not have any of the rights of a shareholder with respect to any shares of
Stock subject to the Stock Option until such shares are issued by the Company
following the exercise of the Stock Option.
(h) Termination of Eligibility. If a grantee ceases to be a
director and/or ceases to be Board Chairman, if applicable, for any reason, any
outstanding Stock Options will be exercisable according to the following
provisions:
(1) If a grantee ceases to be a director and/or ceases to be
Board Chairman, if applicable, for any reason other than removal for Cause or
death, any outstanding Stock Options held by such grantee which are vested or
which thereafter vest will be exercisable by the grantee in accordance with
their terms at any time prior to the expiration of the Option Term;
(2) If a grantee is removed from office as a director of the
Company and/or as Board Chairman, if applicable, for Cause, any outstanding
vested Stock Options held by such grantee will be exercisable by the grantee in
accordance with their terms at any time prior to the earlier of (a) the time the
grantee is so removed from office and (b) the expiration of the Option Term; and
(3) Following the death of a grantee while a director and/or
while Board Chairman, if applicable, or after the grantee ceased to be a
director and/or ceased to be Board Chairman, if applicable, for any reason other
than removal for Cause, any Stock Options that are outstanding and exercisable
by such grantee at the time of death or which thereafter vest will be
exercisable in accordance with their terms by the person or persons entitled to
do so under the grantee's will, by a beneficiary properly designated by the
director in the event of death pursuant to Section 7.4, if any, or by the person
or persons entitled to do so under the applicable laws of descent and
distribution at any time prior to the earlier of (a) the expiration of the
Option Term and (b) two years after the date of death.
(i) Termination of Stock Option. A Stock Option will
terminate on the earlier of (1) exercise of the Stock Option in accordance with
the terms of the Plan, and (2) expiration of the Option Term as specified in
Sections 7.2(e) and 7.2(h).
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(j) Stock Option Agreement. All Stock Options will be
confirmed by an agreement, or an amendment thereto, which will be executed on
behalf of the Company by the Chief Executive Officer, the President or any Vice
President and by the grantee.
(k) General Restrictions.
(1) The obligation of the Company to issue Stock pursuant to
Stock Options under the Plan will be subject to the condition that, if at any
time the Company determines that (a) the listing, registration or qualification
of shares of Stock upon any securities exchange or under any state or federal
law, or (b) the consent or approval of any government or regulatory body is
necessary or desirable, then such Stock will not be issued unless such listing,
registration, qualification, consent or approval has been effected or obtained
free from any conditions not acceptable to the Company.
(2) Shares of Stock for use under the provisions of this
Section 7 will not be issued until they have been duly listed, upon official
notice of issuance, upon the New York Stock Exchange and such other exchanges,
if any, as the Board may determine, and a registration statement under the
Securities Act of 1933 with respect to such shares has become, and is,
effective.
Subject to the foregoing provisions of this Section 7.2 and the other
provisions of the Plan, any Stock Option granted under the Plan will be subject
to such restrictions and other terms and conditions, if any, as the Board and/or
the Committee may determine, in its or their discretion, and as are set forth in
the agreement referred to in Section 7.2(j), or an amendment thereto; provided,
however, that in no event will the Committee or the Board have any power or
authority which would cause transactions pursuant to the Plan to cease to be
exempt from the provisions of Section 16(b) of the Exchange Act pursuant to Rule
16b-3, as such rule may be amended, or any successor rule.
7.3 Annual Statement. A statement will be sent to each Director
as to the status of his or her Stock Options at least once each calendar year.
7.4 Designation of a Beneficiary. A Director may designate a
beneficiary to hold and exercise outstanding Stock Options in accordance with
the Plan in the event of the Director's death in a form approved by the Company.
7.5 Holding Period Applicable to a Deceased Grantee's Estate.
As long as at least six months have elapsed since the Grant Date, a beneficiary
properly designated by the Director pursuant to Section 7.4, if any, or a person
holding a Stock Option under a deceased grantee's will or under the applicable
laws of descent or distribution, exercising a Stock Option in accordance with
Section 7.2(h) will not be subject to the Holding Period with respect to shares
of Stock received on exercise of a Stock Option.
Section 8. Restricted Stock Awards.
8.1 Grants of Restricted Stock Awards.
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(a) Annual Director's Fee Grants. For calendar years 1996 and
1997, each Director received one-fourth of the value of his or her Annual
Director's Fee in the form of a Restricted Stock Award.
Beginning with calendar year 1998, unless otherwise determined by the
Board or the Committee each Director will receive 5/16ths (31.25%) of the value
of his or her Annual Director's Fee in the form of a Restricted Stock Award, and
such Restricted Stock will be granted automatically each year on the last
Wednesday in January of such year to each Director in office on such Grant Date.
If a person joins the Board or otherwise first becomes a Director at
any time after the last Wednesday in January of a given calendar year (beginning
with 1998) but before the end of that calendar year, whether by action of the
shareholders of the Company or the Board or otherwise, unless otherwise
determined by the Board or the Committee such person upon becoming a Director
will be granted automatically 5/16ths (31.25%) of the value of his or her Annual
Director's Fee for that calendar year (which may be prorated) in the form of a
Restricted Stock Award on the last Wednesday in the calendar month in which such
person first becomes a Director (or in the next following calendar month if said
person first becomes a Director after the last Wednesday of the month).
(b) Annual Committee Chair's Fee Grants. Beginning with
calendar year 1996, unless otherwise determined by the Board or the Committee
each Director who is the chair of a standing committee of the Board will receive
the full value of his or her Annual Committee Chair's Fee in the form of a
Restricted Stock Award, and such Restricted Stock will be granted automatically
each year immediately following the annual meeting of shareholders and the
organization meeting of the Board related to such annual meeting of
shareholders, beginning with the annual meeting of shareholders and related
organization meeting held in 1996, to each Director who is elected at such
organization meeting to serve as the chair of a standing committee of the Board.
Beginning after the 1998 organization meeting of the Board, if a
Director is elected to serve as the chair of a standing committee of the Board
at any time after the organization meeting of the Board held in connection with
the annual meeting of shareholders for a given year but before the next
organization meeting of the Board is held, unless otherwise determined by the
Board or the Committee such Director will, upon so becomming a committee chair,
receive the value of his or her Annual Committee Chair's Fee for that year
(which may be prorated) in the form of a Restricted Stock Award on the later of:
(1) the last Wednesday in the calendar month in which such Director becomes a
standing committee chair (or in the next following calendar month if said
Director becomes a standing committee chair after the last Wednesday of the
month); and (2) January 27, 1999.
(c) Annual Board Chairman's Fee Grants. Beginning with
calendar year 1999, unless otherwise determined by the Board or the Committee,
the Board Chairman, if any, will receive 5/16ths (31.25%) of the value of his or
her Annual Board Chairman's Fee in the form of a Restricted Stock Award, and
such Restricted Stock will be granted automatically each year
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on the last Wednesday in January of such year to the Board Chairman in office on
such Grant Date, if any.
If a director becomes Board Chairman at any time after the last
Wednesday in January of a given calendar year (beginning with calendar year
1999) but before the end of that calendar year, whether by action of the Board
or otherwise, unless otherwise determined by the Board or the Committee such
director upon so becoming the Board Chairman will receive 5/16ths (31.25%) of
the value of his or her Annual Board Chairman's Fee for that year (which may be
prorated) in the form of a Restricted Stock Award on the last Wednesday in the
calendar month in which such director becomes the Board Chairman (or in the next
following calendar month if said director becomes Board Chairman after the last
Wednesday of the month.
(d) The total number of shares of Stock representing any such
Restricted Stock Award will be the number of shares determined by dividing the
amount of the Annual Director's Fee, the Annual Committee Chair's Fee or the
Annual Board Chairman's Fee, as the case may be, to be paid in the form of a
Restricted Stock Award by the Fair Market Value of a share of Stock on the Grant
Date, rounded up to the nearest whole share.
(e) Other Restricted Stock Grants. Beginning with calendar
year 1999, the Board or the Committee may, from time to time, grant Restricted
Stock Awards to one or more Directors or to the Board Chairman for such number
of shares of Restricted Stock as the Board or the Committee may determine as
additional compensation to such Director or Directors or to such Board Chairman
for their services as such.
(f) Restricted Stock granted pursuant to Section 8.1 is
subject to adjustment as provided in Section 4.3.
8.2 Terms and Conditions of Restricted Stock. Unless otherwise
determined by the Board or the Committee, Restricted Stock granted under the
Plan will be subject to the following terms and conditions:
(a) Restriction Period. Restricted Stock will be subject to a
Restriction Period ("Restriction Period") beginning on the Grant Date and
continuing through December 31 of the calendar year in which the Grant Date
occurred.
(b) Vesting.
(1) Annual Director's Fee Grants. Except as set forth in
Section 8.2(b)(3), a Director's right to ownership in shares of Restricted Stock
granted to a Director pursuant to Section 8.1(a) will vest on the January 1
immediately following the expiration of the Restriction Period for such shares
(the "Restricted Stock Vesting Date") if the Director has an Attendance
Percentage of at least seventy-five percent (75%) for the Grant Year. The
Committee or the Board may at any time or from time to time waive the
Restriction Period or accelerate the vesting of shares of Restricted Stock.
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In the event that a Director has an Attendance Percentage of less than
seventy-five percent (75%) for a Grant Year, a number of shares of Restricted
Stock equal to the Director's Attendance Percentage for the Grant Year
multiplied by the total number of shares of Restricted Stock granted pursuant to
Section 8.1(a) during the Grant Year (rounded up to the nearest whole share)
will vest on the Restricted Stock Vesting Date and the remaining shares of
Restricted Stock granted pursuant to Section 8.1(a) during the Grant Year will
be forfeited as of the Restricted Stock Vesting Date.
(2) Annual Committee Chair's Fee Grants, Annual Board
Chairman's Fee Grants, and Other Grants. Except as set forth in Section
8.2(b)(3) below, a Director's right to ownership in shares of Restricted Stock
granted to a Director pursuant to Section 8.1(e), to a committee chair pursuant
to Section 8.1(b), or to the Board Chairman, if any, pursuant to Section 8.1(c)
will vest on the Restricted Stock Vesting Date.
(3) Notwithstanding anything to the contrary herein, (i) in
the event that a director is removed for Cause from office as a director of the
Company (and/or in the case of Restricted Stock granted to a director in his or
her capacity as Board Chairman, from office as Board Chairman, if applicable)
prior to the Restricted Stock Vesting Date, all of said Director's shares of
Restricted Stock that have not yet vested will be forfeited immediately as of
the time the grantee is so removed from office and the Company will have the
right to complete the blank stock power described below with respect to such
shares, (ii) if so provided in the relevant Restricted Stock Agreement or if the
Committee or the Board so determines with respect to a share or shares of
Restricted Stock, upon the occurrence of a Change in Control, all such shares of
Restricted Stock that have not yet vested will immediately vest, and (iii) for
any Director who, at the effective date of the CBS/Viacom Merger is not a
director of Viacom, Restricted Stock granted in calendar year 2000 pursuant to
section 8.1(e) or 8.2(b), if any, will at the effective time of the CBS/Viacom
Merger, immediately vest.
(c) Issuance of Shares. On or about the Grant Date, a
certificate representing the shares of Restricted Stock will be registered in
the Director's name and deposited by the Director, together with a stock power
endorsed in blank, with the Company. Subject to the transfer restrictions set
forth in Section 8.2(d) and to the last sentence of this Section 8.2(c), the
Director as owner of shares of Restricted Stock will have the rights of the
holder of such Restricted Stock during the Restriction Period. On the Restricted
Stock Vesting Date following expiration of the Restriction Period, vested shares
of Restricted Stock will be redelivered by the Company to the Director, and
non-vested shares of Restricted Stock will be forfeited and the Company will
have the right to complete the blank stock power with respect to such non-vested
shares; provided, however, with respect to shares of Restricted Stock granted in
1996 prior to shareholder approval of an amendment to the Plan on April 24,
1996, no certificates were issued, such shares were not issued and outstanding,
and the Directors did not have any of the rights of an owner of the shares until
the date such shareholder approval occurred.
(d) Transfer Restrictions; Mandatory Holding of Stock. Except
as otherwise provided in Section 8.5 or Section 10, shares of Restricted Stock
are not transferable during the Restriction Period. Once the Restriction Period
lapses and shares vest, except as otherwise
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provided in Section 8.5 or Section 10 or unless waived by the Committee or the
Board, shares acquired as a Restricted Stock Award must be held by the grantee
for a minimum of: (1) three years from the Grant Date; (2) two years from the
date the grantee ceases to be a director of the Company; or (3) if so provided
in the relevant Restricted Stock Agreement or if the Committee or the Board so
determines with respect to a share or shares of Restricted Stock, until the
occurrence of a Change of Control, whichever first occurs (the "Restricted
Shares Holding Period"). Notwithstanding the foregoing or anything to the
contrary contained in any Restricted Stock agreement, upon the effective time of
the CBS/Viacom Merger, the Restricted Shares Holding Period for any Restricted
Stock acquired as a Restricted Stock Award shall terminate.
(e) Restricted Stock Agreement. All Restricted Stock Awards
will be confirmed by an agreement, or an amendment thereto, which will be
executed on behalf of the Company by the Chief Executive Officer, the President
or any Vice President and by the grantee.
(f) General Restriction.
(1) The obligation of the Company to issue shares of
Restricted Stock under the Plan will be subject to the condition that if, at any
time, the Committee determines that (a) the listing, registration or
qualification of shares of Restricted Stock upon any securities exchange or
under any state or federal law or (b) the consent or approval of any government
or regulatory body is necessary or desirable, then such Restricted Stock will
not be issued unless such listing, registration, qualification, consent or
approval has been effected or obtained free from any conditions not acceptable
to the Company.
(2) Shares of Stock for use under the provisions of this
Section 8 will not be issued until they have been duly listed, upon official
notice of issuance, upon the New York Stock Exchange and such other exchanges,
if any, as the Board may determine, and a registration statement under the
Securities Act of 1933 with respect to such shares has become, and is,
effective.
Subject to the foregoing provisions of this Section 8.2 and the other
provisions of the Plan, any shares of Restricted Stock granted under the Plan
will be subject to such restrictions and other terms and conditions, if any, as
the Board or the Committee may be determine, in its discretion, and as are set
forth in the agreement referred to in Section 8.2(e), or an amendment thereto;
provided, however, that in no event will either the Committee or the Board have
any power or authority which would cause transactions pursuant to the Plan to
cease to be exempt from the provisions of Section 16(b) of the Exchange Act
under Rule 16b-3, as such rule may be amended, or any successor rule.
8.3 Annual Statement. A statement will be sent to each Director
as to the status of his or her Restricted Stock at least once each calendar
year.
8.4 Designation of a Beneficiary. A Director may designate a
beneficiary to hold shares of Restricted Stock in accordance with the Plan in
the event of the Director's death in a form approved by the Company.
-18-
8.5 Holding Period Applicable to a Deceased Grantee's Estate.
As long as at least six months have elapsed since the Grant Date, a beneficiary
properly designated by the Director pursuant to Section 8.4 in the event of
death, if any, or a person holding shares of Restricted Stock under a deceased
grantee's will or under the applicable laws of descent or distribution, will not
be subject to the Restricted Shares Holding Period with respect to such shares
of Restricted Stock.
Section 9. Change in Control
9.1 Settlement of Compensation. In the event of a Change in
Control of the Company as defined herein: (a) with respect to awards and other
benefits made or granted pursuant to the Plan prior to July 28, 1999, to the
extent not already vested, all Stock Option Awards, Restricted Stock Awards and
other benefits hereunder will be vested immediately (provided, however, that
with respect to awards and other benefits made or granted pursuant to the Plan
on or after July 28, 1999, the occurrence of a Change in Control will have no
effect on such outstanding awards or benefits pursuant to the Plan unless
otherwise provided in an agreement governing the award or other benefit or
unless the Committee or the Board determines otherwise); and (b) the value of
all unpaid Common Stock Equivalents and deferred amounts (whether deferred
before or after July 28, 1999) will be paid in cash to PNC Bank, National
Association, the trustee pursuant to a trust agreement dated as of June 22,
1995, as amended from time to time, or any successor trustee, or otherwise on
such terms as the Committee may prescribe or permit. For purposes of this
Section 9.1: the value of unpaid Common Stock Equivalents and deferred amounts
will be equal to the sum of (i) the value of all Common Stock Equivalent Awards
then held in such Director's Deferred Stock Account (the value of which will be
based upon the highest price of the Stock as reported by the composite tape of
the New York Stock Exchange during the 30 days immediately preceding the Change
in Control), (ii) the value of the Director's Cash Account, and (iii) the
greater value of (x) the cash amount equal to the face value of the Debentures
in the Director's Deferred Debenture Account plus cash equal to accrued interest
on the Debentures or (y) the number of shares of Stock into which the Debentures
in the Director's Deferred Debenture Account are convertible (the value of which
will be based upon the highest price of the Stock as reported by the composite
tape of the New York Stock Exchange during the 30 days immediately preceding the
Change in Control), plus cash equal to accrued interest on the Debentures.
9.2 Definition of Change in Control. A Change in Control will
mean the occurrence of one or more of the following events:
(a) there shall be consummated (i) any consolidation or
merger of the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares of the Company's Stock would be
converted into cash, securities or other property, other than a merger of the
Company in which the holders of the Company's Stock immediately prior to the
merger have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (ii) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions) of all,
or substantially all, of the assets of the Company; or
-19-
(b) the shareholders of the Company shall approve of any plan
or proposal for the liquidation or dissolution of the Company; or
(c) (i) any person (as such term is defined in Section 13(d)
of the Exchange Act), corporation or other entity shall purchase any Stock of
the Company (or securities convertible into the Company's Stock) for cash,
securities or any other consideration pursuant to a tender offer or exchange
offer, unless, prior to the making of such purchase of Stock (or securities
convertible into Stock), the Board shall determine that the making of such
purchase shall not constitute a Change in Control, or (ii) any person (as such
term is defined in Section 13(d) of the Exchange Act), corporation or other
entity (other than the Company or any benefit plan sponsored by the Company or
any of its subsidiaries) shall become the "beneficial owner" (as such term is
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty percent or more of the combined
voting power of the Company's then outstanding securities ordinarily (and apart
from any rights accruing under special circumstances) having the right to vote
in the election of directors (calculated as provided in Rule 13d-3(d) in the
case of rights to acquire any such securities), unless, prior to such person so
becoming such beneficial owner, the Board shall determine that such person so
becoming such beneficial owner shall not constitute a Change in Control; or
(d) at any time during any period of two consecutive years,
individuals who at the beginning of such period constituted the entire Board
shall cease for any reason to constitute at least a majority thereof, unless the
election or nomination for election of each new director during such two-year
period is approved by a vote of at least two-thirds of the directors then still
in office who were directors at the beginning of such two-year period.
Section 10. Assignability
10.1 The right to receive payments or distributions hereunder
(including any "derivative security" issued pursuant to the Plan, as such term
is defined by the rules promulgated under Section 16 of the Exchange Act), any
shares of Restricted Stock granted hereunder during the Restriction Period, and
any Stock Options granted hereunder will not be transferable or assignable by a
Director other than by will, by the laws of descent and distribution, to a
beneficiary properly designated by the Director pursuant to the appropriate
section of the Plan in the event of death, if any, or pursuant to a domestic
relations order as defined by Section 414(p)(1)(B) of the Internal Revenue Code
or the rules thereunder that satisfies Section 414(p)(1)(A) of the Internal
Revenue Code or the rules thereunder.
10.2 In addition, Stock acquired on exercise of a Stock Option
will not be transferable prior to the end of the applicable Option Shares
Holding Period, if any, set forth in Sections 7.2(d) and 7.5, and Stock acquired
as Restricted Stock will not be transferable prior to the end of the applicable
Restricted Shares Holding Period, if any, set forth in Sections 8.2(d) and 8.5,
in either case other than by will, by transfer to a beneficiary properly
designated by the Director pursuant to the appropriate section of the Plan in
the event of death, if any, by the applicable laws of descent and distribution,
or pursuant to a domestic relations order as defined by Section
-20-
414(p)(1)(B) of the Internal Revenue Code or the rules thereunder that satisfies
Section 414(p)(1)(A) of the Internal Revenue Code or the rules thereunder.
Section 11. Retention; Withholding of Tax
11.1 Retention. Nothing contained in the Plan or in any Stock
Option Award or Restricted Stock Award granted under the Plan will interfere
with or limit in any way the right of the Company to remove any director from
the Board or to remove the Board Chairman, if any, from office as such pursuant
to the Restated Articles of Incorporation and the By-laws of the Company, nor
confer upon any Director any right to continue in the service of the Company.
11.2 Withholding of Tax. To the extent required by applicable
law and regulation, each Director must arrange with the Company for the payment
of any federal, state or local income or other tax applicable to any payment or
any delivery of Stock hereunder before the Company will be required to make such
payment or issue (or, in the case of Restricted Stock, deliver) such shares
under the Plan.
Section 12. Plan Amendment, Modification and Termination
The Board may at any time terminate, and from time to time may amend or
modify the Plan, provided, however, that no amendment or modification may become
effective without approval of the amendment or modification by the shareholders
if shareholder approval is required to enable the Plan to satisfy any applicable
statutory or regulatory requirements.
Section 13. Requirements of Law
13.1 Federal Securities Law Requirements. Implementation and
interpretations of, transactions pursuant to, the Plan will be subject to all
conditions required under Rule 16b-3, as such rule may be amended, or any
successor rule, to qualify such transactions for any exemption from the
provisions of Section 16(b) of the Exchange Act available under that rule, or
any successor rule.
13.2 Governing Law. The Plan and all agreements hereunder will be
construed in accordance with and governed by the laws of the Commonwealth of
Pennsylvania.
Section 14. Other Compensation
Nothing contained in the Plan will be deemed to limit or restrict the
right of the Company to compensate directors for their services in any capacity
in whole or in part under separate compensation or deferral plans or programs
for directors or under other compensation arrangements.
-21-
EXHIBIT 4.15
WESTINGHOUSE SAVINGS PROGRAM
Restated as of January 1, 1994
WORKING COPY
(INCLUDING AMENDMENTS ADOPTED THROUGH THE DATE OF THE CLOSE
OF THE CBS / VIACOM MERGER)
TABLE OF CONTENTS
Page
----
ARTICLE I ELIGIBILITY AND PARTICIPATION.................................4
ARTICLE II CONTRIBUTIONS.................................................6
ARTICLE III INVESTMENT OPTIONS AND TRANSFERS TO AND FROM THE TRUST.......23
ARTICLE IV VALUATION OF INVESTMENTS AND CREDITS TO ACCOUNTS.............27
ARTICLE V VESTING OF ACCOUNTS..........................................29
ARTICLE VI DISTRIBUTION OF ACCOUNTS UPON TERMINATION, RETIREMENT,
OR DEATH.....................................................32
ARTICLE VII IN-SERVICE WITHDRAWALS.......................................41
ARTICLE VIII LOANS........................................................45
ARTICLE IX DESIGNATION OF BENEFICIARY...................................49
ARTICLE X VOTING OF STOCK..............................................51
ARTICLE XI TENDER OFFERS................................................52
ARTICLE XII EFFECTIVE DATE OF THE PLAN...................................53
ARTICLE XIII TERMINATION OR SUSPENSION OF THE PLAN........................54
ARTICLE XIV TRUSTEE......................................................56
ARTICLE XV ADMINISTRATION...............................................57
ARTICLE XVI GENERAL PROVISIONS...........................................68
ARTICLE XVII DEFINITIONS..................................................71
APPENDIX B TOP HEAVY PROVISIONS.........................................97
ARTICLE I
ELIGIBILITY AND PARTICIPATION
1. Any Employee shall be eligible to participate in the Plan immediately
upon employment by an Employer. To participate an Employee must apply
in accordance with reasonable procedures established by the Plan
Administrator.
2. If a Participant transfers employment from an Employer to an Affiliated
Entity or an Excluded Unit, he shall remain a Participant for all
purposes of the Plan, except that he shall not be eligible to
contribute and no Employer Match Contributions shall be made on his
behalf for the period of time he is employed by the Affiliated Entity
or Excluded Unit. If an employee transfers from an Affiliated Entity or
an Excluded Unit to an Employer, service with the Affiliated Entity or
Excluded Unit shall be recognized as Eligibility Service under this
Plan.
3. If a Retired Participant or a Terminated Participant is rehired as an
Employee, he may immediately participate in the Plan, and any previous
Eligibility Service shall be restored.
4. If a Retired Participant is rehired as an Employee and he has Accounts
remaining in this Plan, the Plan Administrator will segregate any new
contributions into separate Accounts so that the Accounts as a Retired
Participant are always available for immediate withdrawal under any
circumstances.
5. Effective at the beginning of the day (00:00:00 a.m.) on January 1,
2000, no individual may make any Pre-Tax Contributions, After-Tax
Contributions, or any other type of contributions to the Plan, nor
shall any Employer Match Contributions or any other type of
contributions be made to the Plan after such time.
3
ARTICLE II
CONTRIBUTIONS
1. A Participant may elect to save at a rate of two percent (2%) to twenty
percent (20%) of his Compensation, in increments of one percent (1%),
on an after-tax basis, a pre-tax basis or a combination thereof.
Contributions to the Plan on an after-tax basis as After-Tax
Contributions shall be allocated to the Participant's After-Tax Account
and contributions to the Plan on a pre-tax basis as Pre-Tax
Contributions shall be allocated to the Participant's Pre-Tax Account.
Each Participant shall make such election with the Plan Administrator,
in accordance with reasonable procedures established by the Plan
Administrator, specifying the portion of his Compensation that is to be
contributed to the Plan as After-Tax and/or Pre-Tax Contributions. The
election of the Participant shall remain in effect until a new election
from that Participant is received by the Plan Administrator.
2. Effective as of the last business day of each Calendar Month, for each
dollar a Participant contributes on either an after-tax basis or a
pre-tax basis, his Employer shall contribute fifty cents (50(cent))
into the Participant's Employer Match Contribution Account, subject to
a maximum Employer Match Contribution of three percent (3%) of the
Participant's Compensation for that month; provided that such Employer
Match Contribution may, at the discretion of the Administrative
Managers and Financial Managers, be made in the form of shares of
Viacom Inc. Common Stock equal in value to the Employer Match
Contribution as determined based on the closing price of Viacom Inc.
Common Stock on the NYSE as of the last business day of such Calendar
Month, rather than in cash, with respect to each Participant (i) who is
not represented by a labor organization or other representative which
is recognized by an Employer as a representative for the
4
purpose of collective bargaining, or (ii) who is represented by a labor
organization or other representative which is recognized by an Employer
as a representative for the purpose of collective bargaining, to the
extent that such labor organization or other representative makes a
request that represented Participants be eligible for Employer Match
Contributions in the form of shares of Viacom Inc. Common Stock and the
Administrative Managers designate such represented Participants as
eligible for Employer Match Contributions in the form of shares of
Viacom Inc. Common Stock.
3. Any amounts credited to any Account for a Participant that are
forfeited by such Participant pursuant to any provision of the Plan
shall not be returned to the Company but shall be used to reduce the
obligations of the Company to make Employer Match Contributions under
the Plan.
4. Treatment of Excess Elective Deferral Amounts. Effective January 1,
1987, the Plan shall not incur any Excess Elective Deferrals as defined
in section 402(g) of the Code. Notwithstanding any other provision of
the Plan, Excess Elective Deferrals as adjusted for income or losses
thereon shall be distributed to the Participants in accordance with
this Article.
a. For purposes of this Article, the following definitions shall have
the following meanings:
(1) "Elective Deferrals" for a taxable year means the sum of all
Employer contributions made on behalf of a Participant
pursuant to an election to defer under any qualified CODA as
described in section 401(k) of the Code, any simplified
employee pension cash or
5
deferred arrangement as described in section 402(h)(1)(B) of
the Code, any eligible deferred compensation plan under
section 457 of the Code, any plan as described under section
501(c)(18) of the Code, and any employer contributions made
on behalf of a Participant for the purchase of an annuity
contract under section 403(b) of the Code pursuant to a
salary reduction agreement.
(2) "Excess Elective Deferrals" shall mean those Elective
Deferrals that are includable in a Participant's gross income
under section 402(g) of the Code because they exceed the
Dollar Limit. Excess Elective Deferrals shall be treated as
Annual Additions under the Plan, unless they are distributed
by April 15 of the year following the calendar year in which
they were made.
b. A Participant may assign to this Plan any Excess Elective
Deferrals made during the taxable year of the Participant by
filing a claim in writing with the Plan Administrator no later
than March 1 following the year in which the Excess Elective
Deferral was made. Said claim shall specify the Participant's
Excess Elective Deferral amount for the preceding calendar year,
and shall be accompanied by the Participant's written statement
that if such amounts are not distributed, such Excess Elective
Deferral amount, when added to amounts deferred under other plans
or arrangements described in section 401(k), 408(k), 457,
501(c)(18) or 403(b) of the Code shall exceed the Dollar Limit for
the year in which the deferral occurred. A Participant shall be
deemed to have given the notification described above if the
Excess Elective Deferral results from Elective Deferrals to this
Plan or other plans of the Employer or the Employer's Controlled
Group.
6
c. A Participant who has an Excess Elective Deferral during a taxable
year may receive a corrective distribution. Such a corrective
distribution shall be made if:
(1) the Participant designates the distribution as an Excess
Elective Deferral or is deemed to make the designation under
paragraph 4.b above;
(2) the corrective distribution is made after the date on which
the Plan received the Excess Elective Deferral; and
(3) the Plan Administrator designates the distribution as a
distribution of an Excess Elective Deferral.
d. The Excess Elective Deferral distributed to a Participant with
respect to a calendar year shall be adjusted to reflect income or
loss in the Participant's Pre-Tax Account for the taxable year
allocable thereto. The income or loss allocable to such Excess
Elective Deferral Amount shall be determined in accordance with
section 402(g) of the Code and the regulations thereunder.
e. Excess Elective Deferral amounts, as adjusted for income and
losses, shall be distributed to the Participant no later than
April 15 of the year following the calendar year in which such
Excess Elective Deferral was made.
5. Actual Deferral Percentage Test. Effective January 1, 1989, the actual
deferral percentage (ADP) for Participants who are Highly Compensated
Employees shall not exceed the greater of a or b as follows:
7
a. the ADP of Participants who are Non-Highly Compensated Employees
times 1.25; or
b. the ADP of Participants who are Non-Highly Compensated Employees
times 2.0, but not to exceed the ADP of Participants who are
Non-Highly Compensated Employees by more than two (2) percentage
points.
6. ADP Formula.
a. The ADP for a specified group of Participants for a Plan Year
shall be the average of the Actual Deferral Ratios (ADR)
calculated separately for each Participant in such group.
For purposes of determining the ADP of a Highly Compensated
Employee or a Highly Compensated Employee in the group consisting
of the ten Highly Compensated Employees paid the greatest
Compensation during the Plan Year, the Employee's Pre-Tax
Contributions shall include the Pre-Tax Contributions of Family
Members; and such Family Members shall be disregarded as separate
Employees in determining the ADP both for Participants who are
Non-Highly Compensated Employees and for Participants who are
Highly Compensated Employees.
The Plan Administrator shall determine as soon as practicable
after the end of the Plan Year whether the ADP for Highly
Compensated Employees satisfies either of the tests contained in
Article II.5. In the event neither test is satisfied, the Plan
Administrator may elect either of the following:
(1) to recharacterize all or any portion of the Pre-Tax
Contributions for
8
Highly Compensated Employees as After-Tax Contributions as
provided in Article II.8;
(2) to reduce the allowable Pre-Tax Contributions for Highly
Compensated Employees as provided in Article II.9; or
(3) to make an Additional Contribution (subject to the
requirements of Article II.10) for all or a portion of
Non-Highly Compensated Employees eligible to make
contributions under Article II.1. in a level dollar amount or
a uniform percentage of Compensation, as the Company shall
elect, within the time period required by any applicable law
or regulation.
b. The Plan shall take into account the ADRs of all eligible
Employees for purposes of the ADP test. For this purpose, an
eligible Employee is any Employee who is directly or indirectly
eligible to make Pre-Tax Contributions under the Plan for all or a
portion of a Plan Year, including an Employee who would be
eligible but for his failure to make Pre-Tax Contributions and an
Employee whose eligibility to make Pre-Tax Contributions has been
suspended because of an election not to participate. In the case
of an eligible Employee who makes no Pre-Tax Contributions, the
ADR for such Employee that is to be included in determining the
ADP is zero.
c. A Pre-Tax Contribution shall be taken into account under the ADP
test for a Plan Year only if it relates to Compensation that
either would have been received by the Employee in the Plan Year
(but for the deferral election) or is attributable to services
performed by the Employee in the Plan Year and
9
would have been received by the Employee within 2 1/2 months after
the close of the Plan Year (but for the deferral election).
d. A Pre-Tax Contribution shall be taken into account under the ADP
test for a Plan Year only if it is contributed to the Trust before
the last day of the twelve-month period immediately following the
Plan Year to which the contribution relates and is allocated
within the Plan Year to which the contribution relates. A Pre-Tax
Contribution is considered allocated as of a date within a Plan
Year if the allocation is not contingent on participation or
performance of services after such date.
e. The ADR and ADP shall be calculated to the nearest .01 percent.
7. Calculations of Excess Contributions.
a. The amount of Pre-Tax Contributions for a Highly Compensated
Employee in excess of that permitted under Article II.5.
(hereinafter, Excess Contributions) shall be determined in the
following manner. First, the ADR of the Highly Compensated
Employee with the highest ADR is reduced to the extent necessary
to satisfy the ADP test or cause such ADR to equal the ADR of the
Highly Compensated Employee with the next highest ADR. This
process is repeated until the ADP test is satisfied. The amount of
Excess Contributions for a Highly Compensated Employee is the
difference between the total of Pre-Tax and other contributions
(if any) taken into account for the ADP test, and the product of
the Employee's ADR at the time the ADP test is satisfied, as
determined above, multiplied by the Employee's Compensation.
10
b. In the case of a Highly Compensated Employee whose ADR is
determined under the family aggregation rules, the amount of
Excess Contributions shall be determined as provided in Article
II.7.a. The Excess Contributions for the family unit are allocated
among the Family Members in proportion to the contributions of
each Family Member that have been combined.
c. The amount of Excess Contributions that are recharacterized under
Article II.8, or distributed under Article II.9, with respect to
an Employee for a Plan Year, shall be reduced by Excess Elective
Deferrals previously distributed to the Employee for the
Employee's taxable year ending with or within the Plan Year, in
accordance with section 402(g)(2) of the Code, and Excess Elective
Deferrals to be distributed for a taxable year will be reduced by
Excess Contributions previously distributed or recharacterized for
the Plan Year beginning in such taxable year.
8. Recharacterization of Excess Contributions. Excess Contributions may be
recharacterized as After-Tax Contributions. Recharacterized amounts
shall be reallocated to the Participant's After-Tax Account, but shall
continue to be fully vested and subject to distribution limitations
that apply to Pre-Tax Accounts. In no event shall amounts be
recharacterized by a Highly Compensated Employee to the extent such
amount in combination with other contributions exceeds any other limit
under the Plan. Recharacterization must occur no later than April 15 of
the year following the Plan Year in which the original contributions
were made.
9. Distribution of Excess Contributions. Excess Contributions may be
distributed to Participants on whose behalf such Excess Contributions
were made no later than
11
the last day of the Plan Year following the Plan Year for which they
were made. Excess Contributions that are distributed shall be adjusted
to reflect income (or loss) allocable thereon, determined using a
reasonable method of computing the income (or loss) allocable to Excess
Contributions, provided that the method does not violate Code section
401(a)(4), is used consistently for all Participants and for all
corrective distributions under the Plan for the Plan Year, and is used
by the Plan for allocating income (or loss) to Participant Accounts.
10. Additional and Employer Match Contributions. Additional Contributions
and Employer Match Contributions may be treated as Pre-Tax
Contributions for purposes of the ADP test only if such contributions
are non-forfeitable when made and subject to the same distribution
restrictions that apply to elective contributions. Additional
Contributions and Employer Match Contributions which may be treated as
Pre-Tax Contributions must satisfy these requirements without regard to
whether they are actually taken into account as Pre-Tax Contributions
for purposes of satisfying the ADP tests.
Additional Contributions and/or Employer Match Contributions may be
treated as Pre-Tax Contributions only if the conditions described in
section 1.401(k)-1(b)(5) of the Treasury regulations are satisfied.
The amount of the Additional and Employer Match Contributions for
Non-Highly Compensated Employees made under this Article II.10, the
distribution of Excess Contributions for Highly Compensated Employees
in accordance with Article II.9, or the recharacterized contributions
under Article II.8, shall be such that at least one of the tests
contained in Article II.5 is satisfied.
11. Forfeiture of Employer Match Contributions. Any Employer Match
Contributions
12
made on account of an Excess Contribution or an Excess Elective
Deferral shall be forfeited and shall be used to reduce the amount of
Employer Match Contributions required to be made by the Company for the
year of forfeiture.
12. Actual Contribution Percentage Test. Effective January 1, 1987, the
actual contribution percentage (ACP) for Participants who are Highly
Compensated Employees shall not exceed the greater of a or b as
follows:
a. the ACP of Participants who are Non-Highly Compensated Employees
times 1.25; or
b. the ACP of Participants who are Non-Highly Compensated Employees
times 2.0, but not to exceed the ACP of Participants who are
Non-Highly Compensated Employees by more than two (2) percentage
points.
13. ACP Formula.
a. The ACP for a specified group of Participants for a Plan Year
shall be the average of the Actual Contribution Ratios (ACR)
calculated separately for each Participant in such group.
For purposes of determining the ACP of a Highly Compensated
Employee or a Highly Compensated Employee in the group consisting
of the ten Highly Compensated Employees paid the greatest
Compensation during the Plan Year, the Employee's Employer Match
Contribution and After-Tax Contributions shall include the
Employer Match Contributions and After-Tax Contributions of Family
Members; and such Family Members shall be disregarded as separate
Employees in determining the ACP both
13
for Participants who are Non-Highly Compensated Employees and for
Participants who are Highly Compensated Employees.
The Plan Administrator shall determine as soon as practicable
after the end of the Plan Year whether the ACP for Highly
Compensated Employees satisfies either of the tests contained in
Article II.12. In the event neither test is satisfied, the Plan
Administrator may elect either of the following:
(1) to reduce the allowable Employer Match Contribution and/or
After-Tax Contributions for Highly Compensated Employees as
provided in Article II.14; or
(2) to make an Additional Contribution for all or a portion of
Non-Highly Compensated Employees eligible to make
contributions under Article II.1 in a level dollar amount or
a uniform percentage of Compensation, as the Plan
Administrator shall elect, within the time period required by
any applicable law or regulation.
b. The Plan shall take into account the ACRs of all eligible
Employees for purposes of the ACP test. For this purpose, an
eligible Employee is any Employee who is directly or indirectly
eligible to receive an allocation of Employer Match Contributions,
including an Employee who would be eligible but for his failure to
make After-Tax and/or Pre-Tax Contributions and an Employee whose
right to receive Employer Match Contributions has been suspended
because of an election not to participate. In the case of an
eligible Employee who receives no Employer Match Contributions,
the ACR that is to be included in determining the ACP is zero.
14
c. An Employer Match Contribution shall be taken into account under
the ACP test for a Plan Year only if it is made on account of the
eligible Employee's After-Tax and/or Pre-Tax Contributions for the
Plan Year, contributed to the Trust before the last day of the
twelve-month period immediately following the Plan Year to which
the contributions relate and is allocated within the Plan Year to
which the contributions relate. Employer Match Contributions which
are used to meet the requirements of section 401(k)(3)(A) of the
Code are not taken into account.
d. The ACR and ACP shall be calculated to the nearest .01 percent.
14. Calculation of Excess Aggregate Contributions.
a. The amount of contributions for a Highly Compensated Employee in
excess of that permitted under Article II.12 (hereinafter, Excess
Aggregate Contributions) shall be determined in the following
manner. First, the ACR of the Highly Compensated Employee with the
highest ACR is reduced (first, as to After-Tax Contributions, if
any, then as to Employer Match Contributions) to the extent
necessary to satisfy the ACP test or cause such ACR to equal the
ACR of the Highly Compensated Employee with the next highest ACR.
This process is repeated until the ACP test is satisfied. The
amount of Excess Aggregate Contribution for a Highly Compensated
Employee is the difference between the total of Employer Match
Contributions and other contributions taken into account for the
ACP test, and the product of the Employee's ACR at the time the
ACP test is satisfied, as determined above, multiplied by the
Employee's Compensation.
15
b. In the case of a Highly Compensated Employee whose ACR is
determined under the family aggregation rules, the amount of
Excess Aggregate Contributions shall be determined as provided in
Article II.14.a. The Excess Aggregate Contributions for the family
unit are allocated among the Family Members in proportion to the
contributions of each Family Member that have been combined.
c. The amount of Excess Aggregate Contributions for a Plan Year shall
be determined only after first determining the Excess
Contributions that are treated as Employee After-Tax Contributions
(if any) due to recharacterization of such contributions made to
this Plan, or to another plan aggregated with this Plan under
Article II.19, for the Plan Year.
15. Distribution of Excess Aggregate Contributions. Excess Aggregate
Contributions shall be distributed, in a manner that satisfies the
requirements described in section 1.401(a)(4)-4 of the Treasury
regulations (so that after correction each level of matching
contributions will be currently and effectively available to a group of
employees that satisfies Code section 410(b)), to Participants on whose
behalf such Excess Aggregate Contributions were made (on the basis of
the respective portions of such Excess Aggregate Contributions
attributable to each Highly Compensated Employee), to the extent
vested, no later than the last day of the Plan Year following the Plan
Year for which they were made. Non-vested Excess Aggregate
Contributions shall be applied as provided in Article II.17. Excess
Aggregate Contributions shall be adjusted to reflect income (or loss)
allocable thereon, determined using a reasonable method of computing
the income (or loss) allocable to Excess Aggregate Contributions,
provided that the method does not
16
violate Code section 401(a)(4), is used consistently for all
Participants and for all corrective distributions under the Plan for
the Plan Year, and is used by the Plan for allocating income (or loss)
to Participant Accounts.
16. Additional Contributions. Additional Contributions may be treated as
Employer Match Contributions only if the conditions described in
Treasury regulation 1.401(m)-1(b)(5) are satisfied.
The amount of Additional Contributions for Non-Highly Compensated
Employees made under this Article II.16, or the distribution of Excess
Aggregate Contributions to Highly Compensated Employees under Article
II.15 shall be such that at least one of the tests contained in Article
II.12 are satisfied.
17. Forfeitures. Amounts forfeited by Highly Compensated Employees due to
the distribution of Excess Aggregate Contributions shall be treated as
an Annual Addition under the Plan and shall be applied to reduce future
Employer Match Contributions required to be made by the Company. No
forfeiture arising under this Article shall be allocated to the account
of any Highly Compensated Employee.
18. Aggregate Limit. The sum of the ADP and ACP for Highly Compensated
Employees, determined after any corrections required to meet the ADP
test or ACP test, shall not exceed the Aggregate Limit as defined
herein. If the limit is exceeded, then either the ADR or ACR, as the
Plan Administrator shall elect, for all affected Highly Compensated
Employees, shall be reduced in accordance with Article II.6.a or
Article 13.a as applicable. The amounts of the reduction for each
Highly Compensated Employee shall be treated as an Excess Contribution
or Excess Aggregate Contribution, as appropriate. "Aggregate Limit"
means the greater of a or b below:
17
a. The sum of:
(1) One hundred twenty-five percent (125%) of the greater of the
ADP for eligible Non-Highly Compensated Employees or the ACP
for eligible Non-Highly Compensated Employees for the Plan
Year; and
(2) Two (2) plus the lesser of such ADP or ACP, but not greater
than two hundred percent (200%) of the lesser amount; or
b. The sum of:
(1) One hundred twenty-five percent (125%) of the lesser of the
ADP for the eligible Non-Highly Compensated Employees or the
ACP for the eligible Non-Highly Compensated Employees for the
Plan Year; and
(2) Two (2) plus the greater of such ADP or ACP, but not greater
than two hundred percent (200%) of the greater amount.
19. Special Rules.
a. The ADR and ACR for any Participant who is a Highly Compensated
Employee for the Plan Year and who is eligible to make Pre-Tax
18
Contributions, or to have Employer Match Contributions allocated
to his account, or to make After-Tax Contributions, under two (2)
or more plans that are maintained by an Employer or the Employer's
Controlled Group shall be determined as if all such contributions
were made under a single plan.
b. In the event that this Plan satisfies the requirements of sections
410(b) and 401(a)(4) of the Code only if aggregated with one or
more other plans, or if one or more other plans satisfy the
requirements of sections 410(b) and 401(a)(4) of the Code only if
aggregated with this Plan, then the contribution percentages and
deferral percentages of Participants shall be determined as if all
such plans were a single plan.
c. The determination and treatment of the contribution percentage of
any Participant shall satisfy such other requirements as may be
prescribed by the Secretary of the Treasury.
20. Adjustments to Contribution Limits. Notwithstanding any other Plan
provision, the Plan Administrator may limit the Pre-Tax Contribution
percentage for Employees who have reached the Dollar Limit, or the
Pre-Tax and/or After-Tax Contribution percentage(s) for all or a class
of Highly Compensated Employees, as it determines is necessary or
desirable to assure that the Plan satisfies the requirements of this
Article II. To the extent no other Plan requirement is violated, that
portion of any elected Pre-Tax Contribution percentage which is limited
under this Article II.20 shall instead be treated as an election to
make After-Tax Contributions.
21. Adjustments to Contributions. A Participant may increase or decrease
his rate of
19
After-Tax and/or Pre-Tax Contributions at any time by making a new
election with the Plan Administrator in accordance with reasonable
procedures established by the Plan Administrator. A Participant may
suspend After-Tax and/or Pre-Tax Contributions at any time by providing
notice to the Plan Administrator in accordance with reasonable
procedures established by the Plan Administrator. A Participant may
recommence After-Tax and/or Pre-Tax Contributions to the Plan at any
time by making a new election with the Plan Administrator. All
elections of adjustments to contributions shall be effective as soon as
practicable after the election is filed with the Plan Administrator.
22. Permitted Employer Refunds. Employer contributions hereunder shall be
refunded to the Employer under the limited circumstances listed below:
a. Any contribution made by the Employer due to a mistake of fact
shall be refunded to the Employer within one year of such
contribution.
b. Employer contributions are expressly conditioned on deductibility
under section 404 of the Code. Any contribution that is disallowed
as a deduction shall be refunded to the Employer within one year
of such disallowance.
c. Refunds of contributions due to a disallowance of deduction or
mistake of fact shall not include earnings attributable to the
amount being refunded due to disallowance or mistake, but losses
thereto shall reduce the amount to be refunded.
20
ARTICLE III
INVESTMENT OPTIONS AND TRANSFERS TO AND FROM THE TRUST
1. All contributions to the Participants' Accounts shall be invested in
one or more of the Investment Funds, which shall be designated by the
Financial Managers, subject to the approval of the Administrative
Managers. Investment Funds may include (but are not limited to) the
Company Stock Fund, the Fixed Income Fund and Mutual Funds as
designated by the Financial Managers, subject to the approval of the
Administrative Managers. The Financial Managers, subject to the
approval of the Administrative Managers, in their discretion, may
change or terminate the existing Investment Funds or establish
additional Investment Funds at any time. However, any Investment Fund
that is not an investment company registered under the Investment
Company Act of 1940 shall be managed by an Investment Manager appointed
by the Financial Managers. The selection of Investment Fund choices and
the administration of Plan investments are intended to comply with the
requirements of section 404(c)of ERISA and the regulations thereunder.
To the extent the requirements of section 404(c) of ERISA are
satisfied, neither the Administrative Managers, the Financial Managers,
the Plan Administrator, the Trustee, nor any other Plan fiduciary,
shall be responsible for any losses resulting from a Participant's
individual selection of Investment Fund choices.
2. All funds of the Plan shall be invested by the Trustee in accordance
with the provisions of the Plan and Trust Agreement.
3. A Participant shall elect an investment mix in accordance with
reasonable procedures established by the Plan Administrator. Effective
October 1, 1994,
21
contributions may be invested in any combination of the investment
options available under the Plan in increments of one percent (1%). The
Participant may change his election at any time by notifying the Plan
Administrator, in accordance with reasonable procedures established by
the Plan Administrator, to be effective with the first payroll
disbursed after receipt and completion of processing by the Plan
Administrator of such direction.
Notwithstanding the above paragraph, Employer Match Contributions made
in the form of Viacom Inc. Common Stock pursuant to Article II.2 shall
be invested in the Company Stock Fund. A Participant may not elect to
have such Employer Match Contributions, at the time contributed to the
Plan, invested in an investment option other than the Company Stock
Fund.
4. The shares of Viacom Inc. Common Stock required each day for purposes
of the Plan shall be purchased by the Trustee on the open market, from
the Company or from such other person or persons and at such time or
times as the Trustee may in its sole discretion determine in accordance
with ERISA. Any shares purchased from the Company for a particular
calendar day may be authorized and unissued shares or treasury shares,
as the Company shall determine.
5. A Participant other than a Terminated Participant who has received a
Rollover Distribution from a qualified defined contribution plan or a
distribution from an individual retirement account (as described in
section 408(d)(3)(A) of the Code) may elect, in accordance with
reasonable procedures established by the Plan Administrator, to roll
over not more than the cash value of the distribution, less any amount
attributable to the Participant's After-Tax Contributions, to his
After-Tax Account within sixty (60) days of receipt of such
distribution. In addition, (a) a Participant other than a Terminated
Participant may authorize the Trustee of the
22
Westinghouse Pension Plan to transfer the entire balance to the credit
of the Participant in such plan directly to the Trust of this Plan, and
(b) a Participant who has received a Rollover Distribution from the CBS
Employee Investment Fund may elect, in accordance with reasonable
procedures established by the Plan Administrator, to roll over not more
than the cash value of the distribution, less any amount attributable
to the Participant's After-Tax Contributions, to his After-Tax Account
within sixty (60) days of receipt of such distribution. Effective
October 1, 1994, the Participant may elect to invest any amount rolled
over or transferred to this Plan in any of the investment options
available under the Plan in increments of one percent (1%).
6. Any Participant who ceases to be an Employee shall continue to have the
authority to direct the investment of his Accounts in accordance with
the provisions of Article III.7.
7. Contributions made by or on behalf of a Participant shall be invested
in the Investment Fund or Funds selected by the Participant until the
effective date of a new designation which has been properly provided to
the Plan Administrator in accordance with reasonable procedures
established by the Plan Administrator. A designation provided by a
Participant changing his investment options shall apply to investment
of future deposits and/or to amounts already accumulated in his
Accounts. A Participant may change his investment options for new
contributions and/or change his investment selection with regard to
amounts already accumulated in his Accounts at any time by providing
notice to the Plan Administrator in accordance with reasonable
procedures established by the Plan Administrator. Any changes in a
Participant's investment mix made under this Article III.7 for new
contributions will take effect as soon as practicable. Effective
October 1, 1994, any changes in a Participant's investments made under
23
this Article III.7 for amounts already accumulated in his Accounts will
take effect at the end of the Trading Day on which the transaction has
been accepted by the Plan Administrator. Such change shall be subject
to any actions taken by the Mutual Fund sponsors based upon liquidity
needs.
Notwithstanding the above paragraph, to the extent that Employer Match
Contributions are made in Viacom Inc. Common Stock pursuant to Article
II.2, a Participant may not elect to have such Employer Match
Contributions, at the time contributed to the Plan, invested in an
investment option other than the Company Stock Fund. A Participant may,
however, elect to change his investment selection for any such Employer
Match Contributions that have already been made to his Employer Match
Contribution Account. Such change in investment selection will not
affect Employer Match Contributions made to the Company Stock Fund
after the effective date of such change.
8. In the event an Employer should sell or acquire shares of stock or
other assets or properties of any other company which has a defined
contribution plan, qualified under Section 401(a) of the Code, in
effect at the time of such sale or acquisition, the Administrative
Managers and Financial Managers may, in such manner and to such extent
as they deem advisable, accept a trust to trust transfer of assets from
the defined contribution plan of such company for any employees who
will become, or will remain as, a Participant in the Westinghouse
Savings Program, provided that the trust from which such assets are
transferred permits the transfer to be made and the transfer will not
jeopardize the tax exempt status of the Savings Program or the Savings
Program trust or create adverse tax consequences for the Employer. The
assets transferred shall be allocated to the Participant's After-Tax
Account.
24
ARTICLE IV
VALUATION OF INVESTMENTS AND CREDITS TO ACCOUNTS
1. The Value of each Participant's Accounts as of each Valuation Date
shall be determined after reflecting any transfers, withdrawals, or
contributions as of such date.
2. Effective October 1, 1994, the interests of a Participant in the
Company Stock Fund and the Fixed Income Fund shall be represented by
Units that shall be valued and credited to each Participant's Accounts
as follows:
a. Any Participants' Accounts which contained the Company Stock Fund
and/or the Fixed Income Fund on September 30, 1994, shall be
credited with a number of Units equivalent in Value to the Value
of such Funds in each such Account as of September 30, 1994.
b. The Value of a Unit of the Company Stock Fund and the Fixed Income
Fund within each Account of the Participant shall be determined as
of each Valuation Date by dividing the total number of Units
within each such fund immediately prior to the Valuation Date into
the Value of all the assets then held by the Trustee with respect
to such Fund.
3. For investments in the Company Stock Fund and the Fixed Income Fund,
the appropriate Accounts of each Participant as of each Valuation Date
shall be credited with that number of Units (calculated to the fourth
decimal place) determined by dividing (a) contributions made and
amounts transferred into each of the funds by or on behalf of such
Participant by (b) the Value of a Unit of such fund as of the Valuation
Date.
25
4. For investments in each of the Mutual Funds, the appropriate Accounts
of each Participant as of each Valuation Date shall be credited with
that number of whole and fractional shares of the Mutual Fund
(calculated to the fourth decimal place) determined by dividing (a)
contributions, dividends and amounts transferred into each of the funds
by (b) the closing share price of the Mutual Fund as of the Valuation
Date.
5. Each Participant shall be furnished with a statement of his Accounts
under the Plan, as required by section 404(c) of ERISA and the
regulations thereunder, and any other applicable provision of ERISA.
26
ARTICLE V
VESTING OF ACCOUNTS
1. A Participant shall at all times be one hundred percent (100%) vested
in, and have a nonforfeitable right to, his After-Tax and Pre-Tax
Accounts.
2. A Participant who had an Account in the Plan on December 31, 1988 and
any Employee who accrued Eligibility Service with an Employer any time
prior to January 1, 1989 shall be vested in, and have a nonforfeitable
right to, his Employer Match Contribution Account effective January 1,
1989. A Participant who began accruing Eligibility Service on or after
January 1, 1989 shall not be vested in any portion of his Employer
Match Contribution Account until he accrues five (5) years of
Eligibility Service, at which time he shall become one hundred percent
(100%) vested in, and have a nonforfeitable right to, his Employer
Match Contribution Account. Notwithstanding the foregoing, the Employer
Match Contribution Account shall become one hundred percent (100%)
vested upon the retirement or death of a Participant. In addition, the
Employer Match Contribution of a Participant who is a "Business
Employee" (as that term is defined in Section 1.1 of an Asset Purchase
Agreement dated November 14, 1997 between the Company and Siemens Power
Generation Corporation ("Purchase Agreement")) or are, pursuant to the
Purchase Agreement, deemed to be employees of the Purchaser as of the
Closing Date shall become one hundred percent (100%) vested on the
Closing Date under the Purchase Agreement; provided that amounts vested
under the terms of this sentence (and are not otherwise vested) shall
not be available for withdrawal under the terms of Article VII.4 until
such time as such amounts are transferred to a Code section 401(k) plan
maintained by Siemens Power Generation Corporation pursuant to the
terms of the Purchase Agreement. In addition, the Employer Match
Contribution of a
27
Participant who is a "Continued Employee" (as that term is defined in
Section 1.1 of the Asset Purchase Agreement dated May 22, 1998 between
the Company and Emerson Electric Co. ("Purchase Agreement")) shall
become one hundred percent (100%) vested on the date that the assets
are transferred to the Purchaser's 401(k) plan pursuant to the Purchase
Agreement. In addition, the Employer Match Contribution of a
Participant who is a "Business Employee" (as that term is defined in
Section 1.1 of Asset Purchase Agreements dated as of June 25, 1998
between the Company and WGNH Acquisition, LLC ("Purchase Agreements"))
or, pursuant to the Purchase Agreements, deemed to be an employee of
the Purchaser as of April 1, 1999 shall become one hundred percent
(100%) vested on the date of the transfer of account balances to the
Purchaser's plan under the Purchase Agreements. In addition, the
Employer Match Contribution of a Participant who is a "Continued
Employee" (as that term is defined in Section 1.1 of the Asset Purchase
Agreement dated April 28, 1999 between the Company and Bechtel
National, Inc. ("Purchase Agreement")) shall become one hundred percent
(100%) vested on the date that the assets are transferred to the
Purchaser's 401(k) plan pursuant to the Purchase Agreement.
3. If a Participant terminates employment prior to becoming a Vested
Participant, the current value of his Employer Match Contribution
Account will be forfeited. If the Terminated Participant is
subsequently re-employed by an Employer or an Affiliated Entity, the
dollar value of the forfeited amount shall be restored to his Employer
Match Contribution Account without adjustment for gains or losses since
the date of forfeiture.
4. Any forfeited amounts that are restored pursuant to Article V.3 shall
be invested in accordance with the investment election in effect at the
time of restoration. In
28
the event the Participant does not have a current investment election
in effect, the restored amount will be invested in the Fixed Income
Fund.
29
ARTICLE VI
DISTRIBUTION OF ACCOUNTS UPON TERMINATION, RETIREMENT, OR DEATH
1. In the event a Participant becomes a Terminated Participant, the
following shall apply:
a. If the total value of vested Accounts is $3,500 or less, a total
distribution shall be made automatically to a Terminated
Participant. A Terminated Participant shall be entitled to receive
cash in lieu of Viacom Inc. Common Stock. Distributions of all
other Investment Funds shall be made in cash. If no direction is
provided to the Plan Administrator within a reasonable time on or
after termination of employment, amounts invested in the Company
Stock Fund, if any, shall be paid in Viacom Inc. Common Stock.
b. If the total value of vested Accounts exceeds $3,500, the
Terminated Participant may elect a total distribution (in
Securities and/or cash) or may elect to leave his vested Accounts
in the Plan. If he elects to leave his vested Accounts in the
Plan, all of his Accounts shall continue to be invested as they
were immediately prior to his becoming a Terminated Participant,
unless he elects to transfer such investments to any other
available investment option in the Plan. Amounts that remain in
the Plan must be withdrawn (in one lump sum only) by the
Terminated Participant's Normal Retirement Date; no partial
distributions shall be permitted. Participants will be entitled to
receive an amount equivalent to the value of the vested Accounts
on the first Valuation Date after the distribution has been
approved by the Plan Administrator. If no direction is provided by
the Participant on or prior to the Terminated Participant's Normal
Retirement
30
Date, amounts invested in the Company Stock Fund shall be paid in
Viacom Inc. Common Stock. Distributions of all other Investment
Funds shall be made in cash.
2. In the event a Participant becomes a Retired Participant, the following
shall apply:
a. The Retired Participant may elect an immediate distribution of all
of his Accounts in the form of Securities and/or cash. If he
elects an immediate distribution, such Accounts shall be
distributed to him as soon as practicable after his retirement. A
Retired Participant shall be entitled to receive cash in lieu of
Viacom Inc. Common Stock. Distributions of all other Investment
Funds shall be made in cash.
b. The Retired Participant may elect to have his Accounts distributed
in accordance with one of the following options:
(1) He may elect to receive monthly or annual installments, the
amount of which is determined by the Retired Participant at
retirement. Installments will begin as soon as practicable
after the request is received from the Retired Participant
and approved by the Plan Administrator. Each subsequent
annual installment will be processed as soon as practicable
on the annual anniversary of the first payment. Monthly
installments shall be processed as of the last Valuation Date
in each month.
Effective October 1, 1994, all payments under this option
will be in cash and will be derived from the available
Accounts of the Retired Participant based upon the following
hierarchy:
31
(i) After-Tax Account (including rollover amounts);
(ii) Employer Match Contribution Account;
(iii) Pre-Tax Account.
Within each Account, the payments will be prorated across all
Investment Funds in that Account.
A Retired Participant who elects to receive monthly or annual
installments pursuant to this Article VI.2.b(1) may cancel or
change such election at any time. He may also elect a partial
distribution as described in Article VI.2.b(2).
Notwithstanding the above, payments under this option must be
at least equivalent to the amount required under section
401(a)(9) of the Code and regulations issued thereunder as
described in Paragraph 6 of this Article VI.
(2) He may elect to defer receipt of his Accounts until such time
as he instructs the Plan Administrator that he wishes to
receive his Accounts in whole or in part. In no event,
however, may he defer receipt of his first payment beyond
April 1 following the calendar year in which he attains age
70-1/2, and such first payment and all subsequent payments
must be at least equal to the amounts required under section
401(a)(9) of the Code and regulations issued thereunder as
described in Paragraph 6 of this Article VI. A Retired
Participant may request a distribution at any time. Effective
October 1, 1994, the distribution may be either (a) prorated
across all
32
Investment Funds in which the Retired Participant is invested
or (b) directed against specific funds based upon the
Participant's request. Distributions from the Company Stock
Fund may be either in cash or Securities at the election of
the Participant. All other Investment Funds shall be
distributed in cash. The distribution shall be derived from
the available Accounts of the Retired Participant based upon
the following hierarchy:
(i) After-Tax Account (including rollover amounts);
(ii) Employer Match Contribution Account;
(iii) Pre-Tax Account.
3. A Participant who becomes a Totally Disabled Participant as defined in
Article XVII.57 shall be treated for the purpose of this Article VI as
though he were retired on the date he is declared a Totally Disabled
Participant, and he shall be entitled to the same options set forth
above in Paragraph 2 of this Article VI.
4. In the event of the death of a Participant who is not a Terminated
Participant, the following shall apply:
a. If the total value of Accounts is $3,500 or less, a total
distribution shall be made automatically to the designated
Beneficiary.
b. If the total value of Accounts exceeds $3,500 and the designated
Beneficiary is not the Surviving Spouse, a total distribution
shall be made automatically to the designated Beneficiary.
c. If the total value of Accounts exceeds $3,500 and the designated
Beneficiary is the Surviving Spouse, the Surviving Spouse may
elect a total
33
distribution or may elect to leave his Accounts in the Plan. If
the Surviving Spouse elects to leave his Accounts in the Plan, he
shall be treated as a Retired Participant and the investment and
payment options which are available to Retired Participants shall
be available to the Surviving Spouse.
d. Upon direction to the Plan Administrator by the Beneficiary, cash
shall be paid in lieu of Viacom Inc. Common Stock. Distributions
of all other Investment Funds shall be made in cash.
5. In the event of the death of a Terminated Participant, a total
distribution shall be made automatically to the designated Beneficiary.
Upon direction to the Plan Administrator by the Beneficiary, cash shall
be paid in lieu of Viacom Inc. Common Stock. Distributions of all other
Investment Funds shall be made in cash.
6. In no event shall a Participant (or Beneficiary, if applicable) receive
less than the minimum annual payment as required by section 401(a)(9)
of the Code and regulations thereunder, including regulation section
1.401(a)(9)-2. The provisions of this Paragraph 6 override any
distribution options in the Plan which are inconsistent with section
401(a)(9) of the Code. The first minimum payment for a Participant who
has attained age 70 1/2 shall be determined by dividing (i) the
Participant's total Account balance at the beginning of the year in
which he attains age 70 1/2 by (ii) the joint life expectancy factor
set forth in the Code for the lives of that Participant and his
designated Beneficiary, if any. The first minimum payment must be made
by April 1 of the year following the year during which the Participant
attains age 70-1/2. The second minimum payment uses the Participant's
total Account balance at the end of the year during which he attains
age 70-1/2 (reduced by the first payment if such payment is not made
during the
34
year in which he attains age 70-1/2) and the original joint life
expectancy factor decreased by one (1) year. This second minimum
payment is due by the end of the year following the year during which
he attains age 70-1/2. All subsequent minimum payments are required to
be made by the end of each year using the total balance in the
Participant's Accounts at the end of the previous year and the previous
joint life expectancy factor decreased by one (1) year.
If the Participant dies before the time when distributions are
considered to have commenced in accordance with Code section 401(a)(9),
distributions will satisfy Code section 401(a)(9) as follows: (i) any
remaining portion of the Participant's Accounts that is not payable to
a Beneficiary will be distributed within five years after the
Participant's death; and (ii) any portion of the Participant's interest
that is payable to a Beneficiary will be distributed either (a) if the
Beneficiary elects, within five years after the Participant's death, or
(b) over the life of the Beneficiary or over a period certain not
extending beyond the life expectancy of the Beneficiary, commencing no
later than the end of the calendar year following the calendar year in
which the Participant died (or, if the Beneficiary is the Participant's
surviving spouse, commencing not later than the end of the calendar
year following the calendar year in which the Participant would have
attained age 70-1/2). If the Participant dies after the time when
distributions are considered to have commenced in accordance with Code
section 401(a)(9), any remaining portion of the Participant's Accounts
will be distributed at least as rapidly as under the distribution
method being used under Code section 401(a)(9)(A)(ii) as of the
Participant's death.
7. Unless the Alternate Payee is an Employee or a Retired Participant, any
amounts segregated under this Plan for the benefit of the Alternate
Payee pursuant to a QDRO shall be distributed to the Alternate Payee as
soon as practicable following
35
the qualification of the QDRO by the Plan Administrator.
8. Each Participant shall keep the Plan Administrator informed of his
current address and the current address of his Beneficiary(ies).
Neither the Plan Administrator, the Company, the Administrative
Managers, the Financial Managers nor the Trustee shall be obligated to
search for the whereabouts of any person. If the location of a
Participant is not made known to the Plan Administrator and after
diligent efforts to ascertain the whereabouts of the Participant or
Beneficiary(ies) prove unsuccessful, the balance in the Participant's
Accounts shall be deemed a forfeiture and shall be used to reduce the
amount of Employer Match Contributions required to be made by the
Employer to the Plan for the Plan Year next following the year in which
the forfeiture occurs; provided, however, that in the event that the
Participant or a Beneficiary makes a claim for any amount that has been
forfeited, the Accounts which have been forfeited shall be reinstated
without adjustment for gains or losses.
9. Subject to the provisions of Article VI.6, unless otherwise elected by
a Participant, distribution of Plan benefits will begin not later than
sixty (60) days after the close of the Plan Year in which the latest of
the following occurs:
a. the Participant attains age 65;
b. the 10th anniversary of the date the Participant commenced
participation in the Plan; or
c. the date the Participant terminates service with an Employer.
10. Rollovers Out of the Plan. Notwithstanding any provision of the Plan to
the
36
contrary that would otherwise limit a Distributee's election under this
Article, a "Distributee" (as defined in Article VI.11) may elect, at
the time and in the manner prescribed by the Plan Administrator, to
have any portion of an "Eligible Rollover Distribution" (as defined in
Article VI.12) paid directly to an "Eligible Retirement Plan" (as
defined in Article VI.13) specified by the Distributee in a "Direct
Rollover" (as defined in Article VI.14).
11. Distributee. A Distributee includes an Employee or former Employee. In
addition, the Employee's or former Employee's Surviving Spouse and the
Employee's or former Employee's spouse or former spouse who is the
Alternate Payee under a QDRO, as defined in section 414(p) of the Code,
are Distributees with regard to the interest of the spouse or former
spouse.
12. Eligible Rollover Distribution. An Eligible Rollover Distribution is
any distribution of all or any portion of the balance to the credit of
the Distributee, except that an Eligible Rollover Distribution does not
include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the Distributee or the joint lives (or
joint life expectancies) of the Distributee and the Distributee's
designated Beneficiary, or for a specified period of ten (10) years or
more; any distribution to the extent such distribution is required
under section 401(a)(9) of the Code; and the portion of any
distribution that is not includable in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to
employer securities).
13. Eligible Retirement Plan. An Eligible Retirement Plan is an individual
retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of the Code,
an annuity plan described in section 403(a) of the Code, or a qualified
trust described in section 401(a) of the Code,
37
that accepts the Distributee's Eligible Rollover Distribution. However,
in the case of an Eligible Rollover Distribution to the Surviving
Spouse, an Eligible Retirement Plan is an individual retirement account
or individual retirement annuity.
14. Direct Rollover. A Direct Rollover is a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
15. A Terminated Participant or a Retired Participant may authorize the
Trustee of this Plan to transfer the entire balance to the credit of
such Participant from the Trust of this Plan to the trust of any other
qualified plan which permits such transfers. Any transfer would be in a
form acceptable to the plan to which such distribution is being
transferred subject to the terms of this Plan.
38
ARTICLE VII
IN-SERVICE WITHDRAWALS
1. A Vested Participant shall be permitted to make a withdrawal for any
reason from his After-Tax Account. A Non-Vested Participant shall be
permitted to make a withdrawal for any reason from that portion of his
After-Tax Account which represents contributions that were not matched
by contributions in the Employer Match Contribution Account. A
Non-Vested Participant shall be permitted to make a withdrawal from
that portion of his After-Tax Account which represents contributions
that were matched by contributions in the Employer Match Contribution
Account only in the case of a hardship as defined in Paragraph 2 of
this Article VII. This hardship withdrawal is available to a Non-Vested
Participant only after he has withdrawn the total amount available
under the terms of this Article VII.
2. A Non-Vested Participant shall be permitted to make a withdrawal from
his Pre-Tax Account only in the case of a hardship. A Vested
Participant shall be permitted to make a withdrawal for any reason from
his Pre-Tax Account upon the attainment of age 59 1/2. A Vested
Participant shall be permitted to make a withdrawal from his Pre-Tax
Account before attaining age 59 1/2 only in the case of hardship.
Hardship withdrawals from the Pre-Tax Account are limited to the amount
contributed by the Participant to the Pre-Tax Account or the value of
the Account, whichever is less. The following situations are considered
to constitute a hardship for purposes of this Plan:
a. medical expenses (described in section 213(d) of the Code)
incurred by the Participant, his spouse, his children, or his
dependents;
39
b. purchase of a principal residence of the Participant (excluding
mortgage payments);
c. payment of tuition for the next twelve (12) months of
post-secondary education for the Participant, his spouse, his
children, or his dependents;
d. the need to prevent eviction of the Participant from his principal
residence or foreclosure on the mortgage of the Participant's
principal residence; or
e. an immediate and heavy financial need as determined in a uniform
and nondiscriminatory manner by the Plan Administrator based upon
the facts and circumstances of a particular situation.
3. Each time a Participant applies for a hardship withdrawal, he must
submit documentation to substantiate the withdrawal as required by the
Plan Administrator. A hardship withdrawal shall not be permitted from
the Pre-Tax Account and/or the After-Tax Account (matched portion) if
the Participant has other resources available to meet the financial
need. In order to qualify for a hardship withdrawal from his Pre-Tax
Account and/or the After-Tax Account (matched portion), a Participant
must withdraw the total amount available for withdrawal absent hardship
from his After-Tax Account and Employer Match Contribution Account and
submit a statement that acknowledges that his situation cannot be
relieved by any of the following:
a. the proceeds from an insurance policy;
b. the reasonable liquidation of the Participant's assets;
40
c. the discontinuance of the Participant's contributions under the
Plan; or
d. a loan from his Pre-Tax Account, a distribution or loan from any
other plan, or a commercial loan.
If a loan is available from this Plan in the amount that would satisfy
the hardship request, a Pre-Tax Account hardship withdrawal will not be
permitted.
4. A Vested Participant shall be permitted to make a withdrawal for any
reason from his Employer Match Contribution Account. A Non-Vested
Participant shall not be permitted to make a withdrawal from his
Employer Match Contribution Account.
5. To the extent permitted in Paragraphs 1, 2, 3 and 4 of this Article
VII, in-service withdrawals will be permitted at any time. A request
for an in-service withdrawal must be made to the Plan Administrator.
Effective October 1, 1994, all withdrawals, with the exception of
hardship withdrawals, may be either (a) prorated across all Investments
Funds in which the Participant is invested or (b) directed against
specific Funds based upon the Participant's request. The Participant
may elect to receive Viacom Inc. Common Stock in the form of cash or
Securities. Distributions of all other Investment Funds shall be made
in cash. All non-hardship withdrawals will be derived from the
available Accounts of each Participant based upon the following
hierarchy:
a. Vested Participants:
(1) After-Tax Account (including rollover amounts);
(2) Employer Match Contribution Account;
(3) Pre-Tax Account.
b. Non-Vested Participants:
41
(1) Unmatched After-Tax Account (including rollover amounts).
Hardship withdrawals will be derived from the Account from which
the hardship is being taken and will be prorated across all
Investment Funds in which the Participant is invested in that
Account. Hardship withdrawals shall be paid in cash only.
42
ARTICLE VIII
LOANS
A Participant, other than a Terminated Participant, a Retired Participant, a
Totally Disabled Participant or a Surviving Spouse, may request a loan from his
Accounts in the Plan (excluding the Employer Match Contribution Account if he is
a Non-Vested Participant) in accordance with the following:
a. Loans must be requested in multiples of $100 with a minimum amount of
$1,000. The maximum loan amount is limited by law to be fifty percent
(50%) of the vested balance in his Accounts, with an overall maximum of
$50,000 reduced by the highest outstanding loan balance during the
preceding twelve (12) months. If a Participant requests a loan that
exceeds the balance in his available Accounts, the loan will be issued
for the maximum amount available.
b. The Plan Administrator shall determine whether the application for a
loan is to be approved. All applications for loans shall be evaluated
in a uniform and nondiscriminatory manner. A Participant who takes a
loan from the Plan shall be subject to, and will be required to comply
with the specific terms and conditions of any loans made under the
Plan, as established by the Plan Administrator.
c. To the extent permitted in this Article VIII, a Participant will be
permitted to have up to two (2) outstanding loans at any given time.
Loans may be either (i) prorated across all Investment Funds in which
the Participant is invested or (ii) directed against specific Funds
based upon the Participant's request. All loans will be derived from
the available Accounts of each
43
Participant based upon the following hierarchy:
(1) Vested Participants:
(i) Pre-Tax Account;
(ii) Employer Match Account;
(iii) After-Tax Account (including rollover amounts).
(2) Non-Vested Participants:
(i) Pre-Tax Account;
(ii) After-Tax Account (including rollover amounts).
d. Loans shall be made to the Participant in cash and shall be derived
from the Participant's Investment Funds based upon the Value as of the
first Valuation Date after the loan has been approved by the Plan
Administrator.
e. Loan repayments shall be made by payroll deductions. The Participant
may elect repayment periods of six (6) to sixty (60) months in
increments of six (6) months. At any time prior to the due date of the
final loan payment, the Participant may elect to partially repay the
loan or make repayment in full. During the repayment period, loan
repayments shall be allocated to the Accounts of Participants in
reverse order from which the loan was derived. Repayments shall be
invested in the investment options in effect for current contributions
at the time the repayments are made. In the event the Participant does
not have a current election in effect for either his Pre-Tax
Contributions or his After-Tax Contributions, the current election in
effect
44
for his Employer Match Contribution Account shall be used. If a current
election does not exist for his Employer Match Contribution Account,
then the repayments shall be invested in the Fixed Income Fund.
Repayments to the Company Stock Fund and the Fixed Income Fund shall
purchase Units based upon the Value of each Unit on the Valuation Date
in which the Accounts of Participants are credited. Repayments to each
of the Mutual Funds will be credited with shares based upon the closing
price of the Mutual Fund on the Valuation Date in which the Accounts of
Participants are credited.
f. For each Calendar Month, the interest rate to be charged for the term
of the loans initiated in the Calendar Month shall be the Bankers Trust
prime interest rate at the close of business on the last business day
of the preceding Calendar Month plus one percent (1%).
g. A Participant shall be required to continue to meet his loan repayment
obligation for any period during which he is not receiving pay due to
disability, layoff, furlough or leave of absence. In such event, the
Participant shall be required to make his scheduled loan repayments by
check or money order. Retired Participants and Totally Disabled
Participants may elect to continue to make repayments by check or money
order. A Terminated Participant or Surviving Spouse may repay his total
outstanding loan balance in a single payment within sixty (60) days of
his termination only if the total value of his vested Accounts plus his
outstanding loan balance exceed $3,500. If such a Terminated
Participant or Surviving Spouse does not repay the loan within 60 days
after termination, the outstanding loan balance will be treated as a
distribution.
45
h. Any loans made, renewed, renegotiated, modified, or extended on or
after October 1, 1994 shall be subject to the provisions of this
Article VIII. All loans previously made shall be subject to the rules
in effect under the Plan at the time the loan was made.
Notwithstanding any other provisions of this Article VIII, effective at the
beginning of the day (00:00:00 a.m.) on January 1, 2000, no individual shall be
entitled to obtain a new loan from the Plan. In addition, effective as of the
same time, repayment of any outstanding loan shall be made by personal check,
and not by payroll deductions, in accordance with procedures established by the
Plan Administrator.
46
ARTICLE IX
DESIGNATION OF BENEFICIARY
1. Each Participant shall file with the Plan Administrator a written
designation of Beneficiary which shall be effective when received by
the Plan Administrator. A Beneficiary designation may be changed by the
Participant at any time upon written notice to the Plan Administrator,
subject to the rules below for married Participants.
2. The Beneficiary of a married Participant must be the Participant's
spouse unless the Participant's spouse has given written consent to the
designation of some other person or persons as a Beneficiary. Such
consent must be witnessed by a notary public. Notwithstanding the
foregoing, if a Participant establishes to the satisfaction of the Plan
Administrator that a written consent cannot be obtained because the
spouse cannot be located, or because of such other circumstances as may
be permitted by law, spousal consent shall not be required. Any consent
(or establishment that consent is not required) necessary under this
provision will be valid only with respect to such spouse, but may not
be revoked by such spouse. A revocation of a prior waiver may be made
by a Participant without the consent of the spouse at any time before
the Participant's retirement date. The number of revocations by a
Participant shall not be limited. Any new waiver or change of
Beneficiary will require a new spousal consent.
3. An unmarried Participant may designate any person or persons as a
Beneficiary without restriction. However, an unmarried Participant who
later marries must at that time obtain spousal consent (as described in
Paragraph 2) in order for the Participant's existing Beneficiary
designation to remain valid. If a divorced Participant later remarries,
the Participant must obtain the consent of the
47
Participant's new spouse to the Beneficiary designation, even if the
Participant obtained the consent of the Participant's former spouse to
the Beneficiary designation.
4. In the absence of spousal consent to the designation of some other
person or persons as a Beneficiary, the Participant's interest in the
Plan shall be distributed to the Surviving Spouse at the time of such
Participant's death in accordance with the provisions of Paragraphs 4
or 5 of Article VI. Notwithstanding the fact that a Participant has
obtained spousal consent to the designation of some other person or
persons as a Beneficiary, if the validly designated Beneficiary is not
living at the time of such Participant's death, or if such designation
is not effective for any reason, then the death benefit shall be
payable to the deceased Participant's Spouse. If there is no Surviving
Spouse, distribution shall be made to the legal representative of the
Participant.
5. No Beneficiary shall, prior to the death of the Participant by whom he
has been designated, acquire any interest in the Participant's Accounts
in the Plan or in the assets of the Trust.
48
ARTICLE X
VOTING OF STOCK
1. Prior to each meeting of stockholders of Viacom, each Participant will
be furnished any proxy material relating to such meeting, together with
a form to be sent to the Trustee on which may be set forth the
Participant's instructions as to the manner of voting the shares of
Viacom Inc. Common Stock then held by the Trustee under the Plan to the
extent of his proportionate interest therein. Upon receipt of such
instructions, the Trustee shall vote such shares in accordance
therewith.
2. With respect to shares for which the Trustee receives no Participant
instructions, the Trustee shall not vote such shares.
49
ARTICLE XI
TENDER OFFERS
As soon as practicable after the commencement of a tender offer or exchange
offer ("Offer") for shares of Viacom Inc. Common Stock, Viacom shall use
reasonable best efforts to cause each Participant, whose Participant's Account
has credited to it a proportionate share of the Viacom Inc. Common Stock in the
Trust, to be advised in writing of the terms of the Offer, together with forms
by which the Participant may instruct the Trustee, or revoke such instruction,
to tender his proportionate shares credited to the Trust, to the extent
permitted under the terms of any such Offer. The Trustee shall follow the
directions of each Participant but the Trustee shall not tender such
proportionate share of shares for which no instructions are received. The number
of shares of Viacom Inc. Common Stock with respect to which a Participant may
provide instructions shall be the total number of shares of Viacom Inc. Common
Stock credited to the Trust, whether or not the shares are vested, as of the
last day of the month preceding the month during which the Offer commenced or
such other date which may be designated by Viacom, in its sole discretion, as it
deems appropriate for reasons of administrative convenience. The giving of the
instructions to the Trustee to tender shares and the tender thereof shall not be
deemed a withdrawal or suspension from the Trust or a forfeiture of any portion
of the Participant's interest in the Trust. Any securities received by the
Trustee as a result of a tender of shares of Viacom Inc. Common Stock hereunder
shall be held, and any cash so received shall be invested in short-term
investments, for the account of each Participant with respect to whom shares of
Viacom Inc. Common Stock were tendered pending any reinvestment by the Trustee,
as it may deem appropriate, consistent with the purposes of the Plan or in any
investment option of the Plan as the Participant may direct.
50
ARTICLE XII
EFFECTIVE DATE OF THE PLAN
Effective on January 1, 1994, the Westinghouse Personal Savings Plan
and the Westinghouse Personal Investment Plan were merged into one plan, the
Westinghouse Savings program.
The Westinghouse Personal Savings Plan and the Westinghouse Personal
Investment Plan, having first become effective on July 3, 1967, and having
thereafter been amended from time to time, are hereby again amended and
restated, subject to the approval of the Board and to compliance with such laws
and other governmental regulations and receipt of such rulings as Viacom shall
deem necessary or advisable with respect to the Plans and the Trust. Except as
otherwise indicated, all amendments become effective January 1, 1994. To the
extent an effective date other than January 1, 1994 is indicated, prior versions
of the Plans should be consulted for the application of specific provisions.
Additionally, prior versions of the Plans apply to any Participant who received
his distribution on or before December 31, 1993. This restated and amended Plan
is conditioned upon and subject to obtaining and retaining such approval of the
Commissioner of Internal Revenue as may be necessary to establish the
deductibility for income tax purposes of any and all contributions hereunder,
other than Employee After-Tax Contributions.
51
ARTICLE XIII
TERMINATION OR SUSPENSION OF THE PLAN
1. Viacom, acting by written resolution of the Board, may at any time, and
from time to time amend, in whole or in part, any and all of the
provisions of the Plan, suspend the Plan or terminate the Plan. The
Administrative Managers and the Financial Managers may also adopt
certain Plan amendments in accordance with Article XV.2 and Article
XV.3. Notwithstanding the above, no amendment, suspension or
termination shall adversely affect any rights of a Participant to
amounts credited to his Accounts prior to the date of amendment,
suspension or termination. Furthermore, if the vesting schedule of the
Plan is amended, in the case of an Employee who is a Participant as of
the later of the date such amendment is adopted or the date it becomes
effective, the nonforfeitable percentage (determined as of such date)
of such Employee's Employer Match Contribution Account will not be less
than the percentage computed under the Plan without regard to such
amendment.
2. In the event of the termination or partial termination of the Plan or
upon complete discontinuation of contributions to the Plan, there shall
automatically vest in each Participant affected by such termination or
partial termination all rights to the entire amount credited to his
Employer Match Contribution Account, and all amounts then credited to
all Accounts for each Participant affected by such termination or
partial termination shall be distributed to him in accordance with
ERISA and the Code.
3. If the Plan's vesting schedule is amended, or the Plan is amended in
any way that directly or indirectly affects the computation of the
nonforfeitable percentage of Participants' Employer Match Contribution
Accounts, or if the Plan is deemed
52
amended by an automatic change to or from a top-heavy vesting schedule,
each Participant with at least 3 years of Eligibility Service may
elect, within a reasonable period after the adoption of the amendment
or change, to have the nonforfeitable percentage computed without
regard to such amendment or change.
53
ARTICLE XIV
TRUSTEE
1. The Board on behalf of Viacom shall appoint one or more individuals or
corporations to act as Trustee under the Plan and may at any time
remove any Trustee and appoint a successor Trustee.
2. The Company and the Trustee shall enter into a trust agreement
providing for the Trust. The Company may also from time to time enter
into such further agreements with the Trustee or other parties, make
such amendments to such trust agreement or further agreements, and take
such other steps and execute such other instruments as it, in its sole
discretion, may deem necessary or desirable to carry the Plan into
effect or to facilitate its administration.
54
ARTICLE XV
ADMINISTRATION
1. Viacom.
Viacom is the sponsor and "named fiduciary" of the Plan within the
meaning of section 402(a)(2) of ERISA. Viacom has all powers and
responsibilities not otherwise assigned to the Trustee or the
Investment Manager(s).
2. Administrative Managers.
Acting on behalf of Viacom, and subject to the terms of the Plan,
the Trust Agreement and applicable resolutions of the Board, the
Administrative Managers have full and absolute discretion and
authority to control and manage the operation and administration
of the Plan, and to interpret and apply the terms of the Plan and
the Trust Agreement. This full and absolute discretion and
authority includes, but is not limited to, the power to:
a. interpret, construe, and apply the provisions of the Plan and
Trust Agreement, and any construction adopted by the
Administrative Managers in good faith shall be final and
binding;
b. adopt Plan amendments that (1) are required by ERISA or other
applicable law or regulation governing qualification of
employee benefit plans, or are necessary for Plan
administration, and which do not materially increase costs to
the Plan or Viacom, (2) implement special rules in Article
XVI.5 for acquisitions, sales, and other dispositions, or (3)
clarify ambiguous or unclear Plan provisions; provided that
such amendments will be made in writing, will be
55
made according to procedures established by the
Administrative Managers, and, with respect to amendments made
pursuant to paragraphs (1) and (2) of this Article XV.2.b,
will be subject to the approval of the Financial Managers;
c. review appeals from the denial of benefits.
The Administrative Managers may employ, appoint, and dismiss
advisors as the Administrative Managers deem necessary to carry
out the provisions of the Plan and the Trust Agreement, including
attorneys, accountants, actuaries, clerks, or other agents, and
may delegate any of their authority and duties to such persons.
3. Financial Managers.
Acting on behalf of Viacom, and subject to the terms of the Plan,
the Trust Agreement and applicable resolutions of the Board, the
Financial Managers shall have full and absolute discretion and
authority to:
a. change or terminate the existing Investment Fund options
offered under the Plan or establish additional Investment
Fund options;
b. appoint and dismiss Investment Managers (as described by
section 3(38) of ERISA) and the Trustee;
c. provide guidelines and directions to, and monitor the
performance of, Investment Managers and the Trustee;
d. manage the cost and financial aspects of the Plan; and
56
e. adopt Plan amendments that (1) are required by ERISA or other
applicable law or regulation governing qualification of
employee benefit plans and which do not materially increase
costs to the Plan or Viacom, or (2) implement special rules
in Article XVI.5 for acquisitions, sales, and other
dispositions; provided that such amendments will be made in
writing, will be made according to procedures established by
the Financial Managers, and will be subject to the approval
of the Administrative Managers.
The Financial Managers may employ, appoint, and dismiss advisors
as the Financial Managers deem necessary to carry out the
provisions of the Plan and the Trust Agreement, including
attorneys, accountants, actuaries, clerks, or other agents, and
may delegate any of their authority and duties to such persons.
4. Plan Administrator.
Viacom shall be the Administrator. The Plan Administrator is
responsible for, and has authority to:
a. adopt reasonable and uniform rules and procedures as
necessary or appropriate for Plan administration and the
processing of claims for benefits;
b. make all initial determinations regarding claims for
benefits, including authority to interpret and apply any
applicable Plan provisions to the facts involved in each
benefits claim, and provide notice described in Article XV.8
to any claimant whose claim is denied;
57
c. direct the Trustee regarding: (1) payment of benefits to
Participants, and (2) payment of the reasonable and necessary
expenses of the Plan from Plan assets;
d. obtain fidelity bonds and fiduciary insurance coverage, in
accordance with applicable provisions of ERISA; and
e. comply with and monitor the Plan's continued compliance with
all governmental laws and regulations relating to
recordkeeping and reporting of Participants' benefits, other
notifications to Participants, registration with the Internal
Revenue Service, and reports to the Department of Labor.
5. Trustee.
The Trustee has exclusive responsibility for control and
management of Plan assets, in accordance with the Trust Agreement.
The Trustee is responsible for, and has authority to:
a. invest, manage, and control Plan assets, subject to the
direction of the Financial Managers and Investment Manager(s)
appointed by the Financial Managers;
b. maintain records and accounts of all contributions, receipts,
investments, distributions, expenses, disbursements, and all
other transactions; and
58
c. prepare records, reports, statements, tax returns, and forms
required to be furnished to Participants or filed with the
Secretary of Labor or Treasury, as required by the Trust
Agreement, or the directions of the Administrative Managers.
6. Allocation of Fiduciary Authority.
Viacom, the Trustee and the Investment Manager(s), and any other
person having fiduciary responsibility, as described by section
3121 of ERISA, with respect to the Plan (collectively, the "Plan
Fiduciaries") each have individual responsibility for the prudent
execution of their responsibilities assigned under this Plan, and
are not responsible for acts or failures by another Fiduciary,
unless the Plan provides for shared fiduciary responsibility. Plan
Fiduciaries are obligated to discharge their duties with respect
to the Plan solely and exclusively in the interest of Plan
Participants and their Beneficiaries, and with the care, skill,
prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with
such matters would use in the conduct of an enterprise of like
character and with like aims.
Whenever the Plan or Trust Agreement requires one Fiduciary to
provide information or direct the activities of another Fiduciary,
the two may not be deemed to have shared fiduciary responsibility
-- rather, the Fiduciary giving directions or providing
information is solely responsible for prudently directing or
informing the other, and the Fiduciary receiving the direction or
information is entitled to rely on that direction or information
as proper under the Plan, the Trust Agreement, and applicable law.
Any individual may serve in more than one capacity, e.g. the same
59
individual may serve as an Administrative Manager and as an agent
of Viacom or the Plan Administrator.
7. Indemnification.
a. To the extent permitted by applicable law, the Board, the
Administrative Managers, the Financial Managers, the Plan
Administrator, the Trustee and any person to whom duties and
responsibilities have been allocated or delegated under this
Plan and Trust ("Covered Persons") shall be indemnified and
saved harmless by the Plan and Trust from and against any and
all claims of liability arising in connection with the
exercise of the Covered Person's duties and responsibilities
with respect to the Plan and Trust by reason of any act or
omission, including all expenses reasonably incurred in the
defense of such act or omission, unless
(1) it will be established by final judgment of a court of
competent jurisdiction that such act or omission,
including all expenses reasonably incurred in the
defense of such act or omission, involved a violation of
the duties imposed by Part 4 of Subtitle B of Title I of
ERISA on the part of such Covered Person, or
(2) in the event of settlement or other disposition of such
claim involving the Plan and Trust, it is determined by
written opinion of independent counsel that such act or
omission involved a violation of the duties imposed by
Part 4 of Subtitle B of Title I of ERISA on the part of
such Covered Person.
60
b. To the extent permitted by applicable law, the Trust will pay
expenses (including reasonable attorneys' fees and
disbursements), judgments, fines, and amounts paid in
settlement incurred by the Covered Person in connection with
any of the proceedings described above, provided that:
(1) the Covered Person will repay such advanced expenses to
the Trust, plus reasonable interest, if it is
established by a final judgment of a court of competent
jurisdiction, or by written opinion of independent
counsel under the circumstances described above, that
the Covered Person violated duties under Part 4 of
Subtitle B of Title I of ERISA; and
(2) the Covered Person will make appropriate arrangements
for repayment of advanced expenses.
Notwithstanding the foregoing, no such advanced expenses will
be made in connection with any claim against a Covered Person
that is made by the Plan, provided that upon final
disposition of such claim, the expenses (including reasonable
attorneys' fees and disbursements), judgments, fines, and
amounts paid in settlement incurred by the Covered Person
will be reimbursed by the Plan to the extent provided above.
8. Claims for Benefits.
Each person (including any Employee, former Employee, Surviving
Spouse, or other Plan Beneficiary) must file a written claim with
the Plan Administrator for any benefit to which that person
believes he is entitled
61
under this Plan, in accordance with reasonable procedures
established by the Plan Administrator.
Generally, the Plan Administrator is required to decide each claim
within ninety (90) days of the date on which the claim is filed.
If special circumstances require a longer period for adjudication,
the Plan Administrator must notify the claimant in writing of the
reasons for an extension of time, and the date by which the
Administrator will decide the claim, before the ninety (90) day
period expires. Extensions beyond ninety (90) days after the
expiration of the initial ninety (90) day period are not
permitted. If the Administrator does not notify the claimant of
its decision to grant or deny a claim within the time specified by
this section, the claim will be deemed to have been denied and the
appeal procedure described in Article XV.9 below will become
available to the claimant.
9. Notice of Denial.
If the Plan Administrator denies a claim for benefits under the
Plan, the claimant will receive a written notice that explains:
a. the specific reason for the denial, including specific
reference to pertinent Plan provisions on which the denial is
based;
b. any additional information or material necessary to perfect a
claim, with an explanation of why such material is necessary,
if any information would be helpful or appropriate to further
consideration of the claim; and
c. the steps to be taken if the claimant wishes to appeal,
including the time available for appeal.
62
10. Appeal of Denied Claims for Benefits.
Claimants must submit a written request appealing the denial of a
claim within sixty (60) days after receipt of notice described by
Article XV.8. Claimants may review all pertinent documents, and
submit issues and comments in writing. The Administrative Managers
(or their delegate) will provide a full and fair review of all
appeals from denial of a claim for benefits, and their decision
will be final and binding.
The decision of the Administrative Mangers (or their delegate)
ordinarily will be given within sixty (60) days after receipt of a
written request for appeal, unless special circumstances require
an extension (such as for a hearing). If an extension of time for
appeal is necessary, the claimant will receive written notice of
the extension before the sixty (60) day period expires. The
decision may not be delayed beyond one-hundred twenty (120) days
after receipt of the written request for appeal. Notice of the
decision on appeal will be provided in writing, and will explain
the basis for the decision, including reference to applicable
provisions of the Plan, in a manner calculated to be understood by
the person who appealed the denial of a claim.
11. Exhaustion of Remedies.
No legal action for benefits under the Plan may be brought unless
and until the following steps have occurred:
a. the claimant has submitted a written application for benefits
in accordance with Article XV.7;
63
b. the claimant has been notified that the claim has been
denied, as provided by Article XV.8;
c. the claimant has filed a written request appealing the denial
in accordance with Article XV.9; and
d. the claimant has been notified in writing that the
Administrative Managers (or their delegate) have denied the
claimant's appeal, or the Administrative Managers have failed
to act on the appeal within the time prescribed by Article
XV.9.
12. Spendthrift Provision.
No Plan benefit will be subject in any manner to anticipation,
pledge, encumbrance, alienation, levy, or assignment, nor to
seizure, attachment, or other legal process for the debts of any
Employee, former Employee, or other Plan Beneficiary, except
pursuant to a Qualified Domestic Relations Order under section
414(p) of the Code or a domestic relations order entered before
January 1, 1985, that the Plan Administrator treats as a Qualified
Domestic Relations Order.
13. Payment in Event of Incapacity.
If the Plan Administrator determines that a person entitled to
receive any Plan benefit is under a legal disability or is
incapacitated in any way so as to be unable to manage his
financial affairs, the Plan Administrator may direct that payments
be made to such person's legal representative, or to a relative or
other individual for such person's benefit, or to otherwise apply
the payment for the benefit of such person, subject to such
conditions as the Plan Administrator deems appropriate. Any
payment of a benefit in
64
accordance with the provisions of this Section will be a complete
discharge of any liability by the Plan to make such payment.
14. Expenses of the Plan.
Reasonable expenses of the Plan may be paid from Plan assets,
unless paid by Viacom. Viacom is entitled to reimbursement of
direct expenses properly and actually incurred in providing
services to the Plan, in accordance with applicable provisions of
ERISA.
15. Governing Law.
The Plan will be construed, interpreted, and enforced according to
the laws of Pennsylvania, to the extent such laws are not
inconsistent with and preempted by ERISA.
65
ARTICLE XVI
GENERAL PROVISIONS
1. The act of establishing the Plan, any provision hereof or any action
taken hereunder shall not be construed as giving any Participant the
right to be retained as an Employee of an Employer, and the right of an
Employer to terminate the employment of any Employee is specifically
reserved.
2. An Employer may require compliance with or satisfaction of any legal
requirement which may be deemed by it necessary as a condition for
participation in the Plan or for distribution of interests or benefits
hereunder.
3. By participating in the Plan or accepting any benefits hereunder, a
Participant and any person claiming under or through him shall thereby
be conclusively deemed to have accepted and consented to the
application to him of the provisions of the Plan as interpreted by the
Administrative Managers, as set forth in Article XV.
4. In the case of any merger or consolidation with, or transfer of assets
or liabilities to any other plan, each Participant in this Plan shall
(if the Plan then terminated) receive a benefit immediately after the
merger, consolidation or transfer, which is equal to or greater than
the benefit he would have been entitled to receive immediately before
the merger, consolidation or transfer (if this Plan had then
terminated).
5. Any provisions in this Plan to the contrary notwithstanding, in the
event an Employee transfers directly to any other corporation or
affiliate thereof in connection with the transfer to such other
corporation maintained or operated under contract by an Employer, or
who may be transferred by any such other
66
corporation or affiliate thereof to another affiliate thereof
subsequent to his transfer from an Employer, the Administrative
Managers and the Financial Managers may, for legitimate business
reasons including a reciprocal service agreement, treat service with
any such other corporations as service with an Employer for purposes of
vesting and for determining eligibility for any account balance to the
date of such transfer or any other benefits under this Plan which are
dependent on a service-eligibility requirement.
6. SEG Transaction.
On August 4, 1997, the account balance of SEG Carlsbad participants in
the SEG 401(k) plan were transferred from the Principal Group to the
Westinghouse Savings Program. Certain of these account balances were
subsequently transferred from the Westinghouse Savings Program to this
Plan on or about April 1, 1999. These account balances while with the
Principal Group were subject to, and continue to be subject to, the
following optional forms of distribution to former SEG Carlsbad
participants and beneficiaries, in addition to being subject to the
normal forms of distribution and optional forms of distribution set out
in Article VI:
a. Straight life annuity;
b. Single life annuity with certain periods of 5, 10 or 15
years;
c. Single life annuity with installment refund;
d. Survivorship life annuity with installment refund and
survivorship percentages of 50, 66-2/3 (limited to
67
distributions commencing prior to January 1, 2000), or 100;
or
e. Fixed period annuity for a period which is not less than 60
months and does not exceed the life expectancy of the
participant and the named beneficiary.
A married former SEG Carlsbad participant who elects an annuity under
one of the above options must obtain the consent of his spouse
according to the rules described below. If such consent is not properly
obtained, the participant's benefit will be paid in the form of a
survivorship life annuity with installment refund and survivorship
percentages of 50, and with the participant's spouse as beneficiary (a
qualified joint and survivor annuity). The Plan Administrator will
provide each participant who elects an annuity under one of the above
options, within no less than 30 days and no more than 90 days prior to
the date payments begin under this Plan, a written explanation of: (i)
the terms and conditions of the qualified joint and survivor annuity
option; (ii) the participant's right to make (and the effect of) an
election to waive the qualified joint and survivor annuity; (iii) the
rights of a participant's spouse; and (iv) the right to make (and the
effect of) a revocation of a previous election to waive the qualified
joint and survivor annuity. Within the above 90-day period ending on
the date payments begin, the participant must submit a written waiver
of the qualified joint and survivor annuity option containing the
consent of the participant's spouse. The spouse's consent must
acknowledge the effect of the waiver and must be witnessed by a notary
public. A revocation of a prior waiver may be made by a participant
without the consent of the spouse at any time before the commencement
of payments under the distribution option.
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ARTICLE XVII
DEFINITIONS
For purposes of the Plan, masculine pronouns include both men and women unless
the context indicates otherwise. The following words and phrases shall have the
meanings set forth below:
1. "Accounts" shall mean the After-Tax Account, the Pre-Tax Account, the
Employer Match Contribution Account, Additional Contribution Account,
and Top-Heavy Contribution Account.
2. "Actual Contribution Ratio (ACR)" shall mean, with respect to any
Participant for a Plan Year, a fraction the numerator of which equals
the Employer Match Contributions and After-Tax Contributions paid to
the Trust for a Plan Year on behalf of such Participant and the
denominator of which equals the Participant's Compensation (as defined
in Article XVII.19) for the Plan Year.
3. "Actual Deferral Ratio (ADR)" shall mean, with respect to any
Participant for a Plan Year, a fraction the numerator of which equals
the Pre-Tax Contributions paid to the Trust for the Plan Year on behalf
of such Participant and the denominator of which equals the
Participant's Compensation (as defined in Article XVII.19) for the Plan
Year.
4. "Additional Contribution" shall mean a qualified non-elective
contribution as defined in Treasury Regulation section
1.401(k)-1(g)(13)(ii) (which imposes an immediate forfeiture
requirement and distribution restrictions described in Article
XVII.47).
69
5. "Additional Contribution Account" shall mean an account established and
maintained on behalf of an Employee to which his Additional
Contributions are allocated.
6. "Administrative Managers" shall mean the person(s) appointed by Viacom,
by written action of the Chief Operating Officer of Viacom, to act on
behalf of Viacom as the sponsor and "named fiduciary" (within the
meaning of section 402(a)(2) of ERISA), as appropriate, with respect to
Plan administrative matters. When performing any activity or exercising
any authority under the provisions of the Plan, the Administrative
Managers shall be deemed to act solely on behalf of Viacom, and not in
an individual capacity.
7. "Affiliated Entity" shall mean a subsidiary which is at least 50% owned
by the Company or a partnership or joint venture in which the Company
is at least a fifty percent (50%) owner that has not been designated as
an Employer. The term Affiliated Entity shall include all entities in
the Controlled Group of each Employer.
8. "After-Tax Account" shall mean the Savings, Voluntary, and Lay-Away
Accounts (as defined in the August 1, 1985 Plan document) as of
December 31, 1988 and all After-Tax Contributions made to the Plan by
the Participant after December 31, 1988, with earnings thereon.
9. "After-Tax Contribution" shall mean a contribution to the Plan deducted
from a Participant's Compensation on an after-tax basis in accordance
with the Participant's election made under Article II.
10. "Alternate Payee" shall mean the recipient or recipients of payments
made
70
pursuant to a Qualified Domestic Relations Order.
11. "Annual Addition" shall mean the total for the Limitation Year of the
items listed below allocated to the account of an Employee under all
defined contribution plans sponsored by the Employer or the Employer's
Controlled Group (except that, for the purpose of this definition,
"more than fifty percent (50%)" shall be substituted for "eighty
percent (80%)" each place it appears in section 1563(a)(1) of the
Code):
a. employer contributions;
b. forfeitures;
c. employee contributions (other than rollovers); and
d. amounts described in section 415(l)(1) or 419A(d)(2) of the
Code.
12. "Beneficiary" shall mean the person, or persons or entity named by a
Participant by written designation to receive benefits in the event of
the Participant's death as described in Article IX.
13. "Board" shall mean the Board of Directors of Viacom.
14. "Calendar Month" shall mean, with respect to Employees paid on a weekly
basis, the number of weekly payroll periods included by an Employer in
a particular calendar month for accounting purposes and, with respect
to Employees paid on a monthly basis, the particular calendar month.
15. "Casual Employee" shall mean a person who is hired either:
a. For a predetermined limited period of time not to exceed
three (3) months, or
71
b. For the purpose of completing a specific task that is
anticipated not to exceed five (5) months and who has no
expectation of continued employment beyond the completion of
that task.
The determination of who is a Casual Employee shall be made on a
uniform and nondiscriminatory basis.
16. Reserved.
17. "Code" means the Internal Revenue Code of 1986, as amended.
18. "Company" shall mean Viacom Services Inc., VI Services Corporation, and
Westinghouse CBS Holding Company, Inc. Prior to the date of the close
of the CBS / Viacom merger, the "Company" was Westinghouse Electric
Corporation.
18A. "Company Stock Fund" shall mean a fund primarily invested in the Viacom
Inc. Common Stock.
19. "Compensation" shall mean wages within the meaning of Code section
3401(a) and all other payments of compensation to an Employee by the
Employer (in the course of the Employers' trade or business) for which
the Employer is required to furnish the Employee a written statement on
Form W-2 under sections 6041(d), 6051(a)(3) and 6052 of the Code, and
amounts contributed by the Employer pursuant to a salary reduction
agreement that are not includible in the gross income of the Employee
under sections 125, 402(e)(3) or 402(h) of the Code. Notwithstanding
the preceding sentence, the term Compensation shall not include
72
reimbursements or other expense allowances; fringe benefits (cash and
noncash); moving expenses; deferred compensation; welfare benefits; and
100% of an annual incentive award, under a management incentive
program, if paid to a Highly Compensated Employee.
For Plan Years beginning on or after January 1, 1994, the Compensation,
expressed on an annualized basis, taken into account under the Plan
shall not exceed $150,000, as adjusted by the Commissioner for
increases in the cost-of-living in accordance with section
401(a)(17)(B) of the Code.
In determining the Compensation of an Employee for purposes of this
limit, the rules of section 414(q)(6) of the Code shall apply, except
in applying such rules, the term "family" shall include only the spouse
of the Employee and any lineal descendants of the Employee who have not
attained age 19 before the close of the year. If, as a result of the
application of such rules the adjusted annual compensation limit is
exceeded, then the limitation shall be prorated among the affected
individuals in proportion to each such individual's Compensation
determined under this Article XVII.19 prior to the application of this
limitation.
20. "Controlled Group" means with respect to an Employer:
a. any corporation which is a member of a controlled group of
corporations within the meaning of section 1563(a) of the
Code, determined without regard to sections 1563(a)(4) and
(e)(3)(C), including the Employer;
b. any trade or business under common control with such
Employer, within the meaning of section 414(c) of the Code;
73
c. any employer which is included with such Employer in an
affiliated service group, within the meaning of section
414(m) of the Code; or
d. any other entity required to be aggregated with the Employer
pursuant to regulations under section 414(o) of the Code.
21. "Dollar Limit" shall mean the dollar limitation under section 402(g) of
the Code in effect for a calendar year.
22. "Eligibility Service" shall mean service determined as follows:
a. For all Employees except part-time Employees who are
regularly scheduled to work less than twenty-four (24) hours
per week:
(1) Subject to the qualifications and limitations stated
below in Article XVII.22.a(2) and 22.a(3), Eligibility
Service means all periods of service as an Employee with
the Employer for which the Employee is directly or
indirectly paid, or entitled to payment, by the Employer
for the performance of duties, and time spent on any of
the following:
(a) furlough;
(b) disability up to a maximum continuous period of two
(2) years;
(c) leaves of absence (other than military leaves and
74
leaves for personal reasons including educational
leaves) up to a maximum of two (2) years, or up to a
maximum of four (4) years if such leave began prior
to January 1, 1995;
(d) military leaves of absence up to a maximum equal to
that period of time during which reemployment is
required under applicable Federal statutes; or
(e) layoffs up to a continuous period of one year.
If while an Employee is on disability leave of absence
under Article XVII.22.a(1)(b) above he is laid off, he
shall begin to accrue service only under Article
XVII.22.a(1)(e) above from that time and shall continue
to be credited with Eligibility Service under
subparagraph (e) for up to one (1) year, but in no event
shall the combined service in such situation under (b)
and (e) exceed two (2) years. Eligibility Service shall
be expressed in whole years and fractions thereof. Any
fraction of a year shall be expressed as a decimal ratio
of actual calendar days of service to the number of days
in that year.
(2) Periods of employment in an Excluded Unit, with an
Affiliated Entity, or as a leased employee (as defined in
section 414(n)(2) of the Code) of an Employer or a member
of the Employer's Controlled Group shall count as
Eligibility Service.
75
(3) Effective on and after January 1, 1976:
(a) If the Employee is absent from service for any
reason which does not otherwise qualify him for
Eligibility Service under the Plan, and such absence
is not due to quit, discharge, release, retirement
or death, he shall receive Eligibility Service of up
to one (1) year for any continuous period of
absence.
(b) If the Employee is separated from service by reason
of a quit, discharge, release or retirement, and
then is reemployed within twelve (12) months of the
date he was separated, the Employee's Eligibility
Service shall include the period between the date he
was separated and the date he was reemployed.
(c) Notwithstanding the provisions of (i) and (ii)
above, if the Employee is separated from service by
reason of a quit, discharge, release or retirement
during an absence from service of twelve (12) months
or less for any reason other than a quit, discharge,
release or retirement and then is reemployed within
twelve (12) months of the date on which he was first
absent from service, the Employee's Eligibility
Service shall include the period between his last
day worked and the date he returns to work.
b. For part-time Employees who are regularly scheduled to
work less
76
than twenty-four (24) hours per week and, beginning
October 1, 1997, Casual Employees, with respect to any
calendar year beginning on or after January 1, 1989, an
Employee shall receive one (1) full year of Eligibility
Service for any calendar year in which he works at least
1,000 hours. If such Employee works less than 1,000 hours
in any calendar year, he shall receive Eligibility
Service which shall be determined by dividing the number
of hours worked by 2,000, subject to a maximum of one (1)
full year. For the purposes of this Article XVII.22.b,
hours worked shall mean: (i) each hour for which an
Employee is paid, or entitled to payment, for the
performance of duties for the Employer (which hours will
be credited to the calendar year in which the duties are
performed); (ii) each hour for which an employee is paid,
or entitled to payment, by the Employer on account of a
period of time during which no duties are performed due
to vacation, holiday, illness, incapacity (including
disability), layoff, jury duty, military duty or leave of
absence (provided that no more than 501 hours will be
credited for any single continuous period whether or not
such period occurs in a single calendar year, and that
hours will be calculated and credited pursuant to 29 Code
of Federal Regulations, section 2530.200b-2, as
promulgated by the United States Department of Labor);
and (iii) each hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by
the Employer (which hours will be credited to the
calendar year to which the award or agreement pertains
rather than the calendar year in which the award,
agreement, or payment is made), excluding any hours
credited under (i) or (ii) above.
77
For any Plan Year in which an Employee falls into both
categories a and b described above, he shall receive
Eligibility Service under the category which is most
advantageous to him.
c. For periods before October 1, 1997, in the case of a
Casual Employee who later becomes an Employee, such
person shall receive one (1) full year of Eligibility
Service for any calendar year in which he worked at least
1,000 hours as a Casual Employee.
23. "Employee" shall mean: a person who is either not represented or who is
employed in a unit represented by a labor organization or other
representative which is recognized by an Employer as the representative
of such unit for the purpose of collective bargaining and has entered
into a written agreement with an Employer providing for participation
in the Plan by the Employees in such unit, provided:
(a) such person is in the regular service of an Employer and is
neither employed in an Excluded Unit, a Casual Employee prior
to October 1, 1997, nor a leased employee (as defined in
section 414(n)(2) of the Code); or
(b) such person is a citizen of the United States or a resident
alien (as defined in section 7701(b) of the Code) who is an
Employee of either a domestic subsidiary (as defined in
section 407 of the Code) or of a foreign subsidiary as to
which an Employer has entered into an agreement under section
3121(1) of the Code and with respect to whom contributions
under a funded plan of deferred compensation (whether or not
described in sections 401(a), 403(a) or 405(a) of the
78
Code) are not provided by any person or company other than
the Employer with respect to the remuneration paid to the
citizens by the domestic or foreign subsidiary.
24. "Employer" shall mean (a) the Company, (b) a subsidiary company which
has been designated by the Administrative Managers on behalf of the
Company as eligible to participate in the Plan, or (c) a joint venture
in which the Company is participating which has been designated by the
Administrative Managers on behalf of the Company as eligible to
participate in the Plan, and which has entered into an agreement to
participate in this Plan.
25. "Employer Match Contribution Account" shall mean the Booster Account
(as defined in the August 1, 1985 Plan text) as of December 31, 1988
and all Employer Match Contributions made to the Plan by the Employer
after December 31, 1988 with earnings thereon.
26. "Employer Match Contribution" shall mean a contribution made by the
Employer pursuant to Article II of the Plan.
27. "ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended.
28. "Excluded Unit" shall mean a group of employees who have been
designated by the Administrative Managers as not eligible to
participate in this Plan.
29. "Family Member" shall mean an individual who is the spouse, lineal
ascendant or lineal descendant of an Employee or former Employee, or
the spouse of such lineal ascendant or descendant.
79
30. "Financial Managers" shall mean the person(s) appointed by Viacom, by
written action of the Chief Operating Officer of Viacom, to act on
behalf of Viacom as the sponsor and "named fiduciary" of the Plan
(within the meaning of section 402(a)(2) of ERISA), as appropriate,
with respect to Plan financial matters. When performing any activity or
exercising any authority under the provisions of the Plan, the
Financial Managers shall be deemed to act solely on behalf of Viacom,
and not in an individual capacity.
31. "Fixed Income Fund" shall mean an Investment Fund designed to preserve
capital and to provide a relatively stable and predictable rate of
interest.
32. "Highly Compensated Employee" shall mean any active or former Employee
of an Employer who performs service during the determination year and
is described in one or more of the following groups:
a. (1) An individual employed by an Employer or an entity in
the Employer's Controlled Group who is a five percent
(5%) owner as defined in section 416(i)(1)(B)(i) of the
Code at any time during the determination year or
look-back year;
(2) An individual employed by an Employer or an entity in
the Employer's Controlled Group who receives
compensation in excess of $75,000 during the look-back
year;
(3) An individual employed by an Employer or an entity in
the Employer's Controlled Group who receives
compensation in excess of $50,000 during the look-back
year and is a member
80
of the top-paid group, as defined in section 414(q)(4)
of the Code, for the look-back year;
(4) An individual employed by an Employer or an entity in
the Employer's Controlled Group who is an officer, as
defined in section 416(i) of the Code, during the
look-back year and who receives compensation in the
look-back year greater than fifty percent (50%) of the
dollar limitation in effect under section 415(b)(1)(A)
of the Code for the calendar year in which the look-back
year begins; or
(5) An individual employed by an Employer or an entity in
the Employer's Controlled Group who both is described in
paragraph a.(2), (3), or (4) above when these paragraphs
are modified to substitute the determination year for
the look-back year and is one of the one hundred (100)
Employees who receive the most compensation from the
Employer or the entity during the determination year.
b. The terms "determination year" and "look-back year" shall
mean respectively, the Plan Year and the twelve (12) month
period immediately preceding the determination year.
c. The $75,000 and $50,000 amounts set forth in paragraphs a.(2)
and (3) above shall be indexed for changes in the cost of
living in accordance with section 415(d) of the Code.
d. If no officer satisfies the requirements of paragraph a.(4)
above
81
during a look-back year, then the highest paid officer for
such year shall be treated as a Highly Compensated Employee.
In addition, no more than 50 individuals (or, if lesser, the
greater of three individuals or 10 percent of employees
without regard to any exclusions) shall be treated as
officers for purposes of paragraph a.(4) above in determining
the group of highly compensated employees for any
determination year or look-back year.
e. If the Employee is, during a determination or look-back year,
a Family Member (as defined in section 414(q)(c) of the Code)
of either an active or former five percent (5%)
owner-Employee or one (1) of the ten (10) most Highly
Compensated Employees during such year, then the compensation
of the Family Member and that Employee shall be aggregated.
The Family Member and Employee shall be treated as a single
Employee receiving compensation and Plan contributions or
benefits equal to the sum of such compensation and
contributions or benefits of the Family Member and Employee.
f. A Highly Compensated Former Employee includes any Employee
who separated or was deemed to have separated from service
prior to the determination year, performs no service for the
Employer during the determination year, and was an active
Highly Compensated Employee for either the separation year or
any determination year ending on or after the Employee's 55th
birthday.
g. For purposes of this definition, the term "compensation"
shall mean compensation as defined in section 415(c)(3) of
the Code. The determination of who is a Highly Compensated
Employee shall be
82
made in accordance with section 414(q) of the Code and the
regulations thereunder.
33. "Investment Fund" shall mean an investment option, selected by the
Financial Managers, subject to the approval of the Administrative
Managers, under Article III.1 of the Plan, to which Participants may
direct investment of amounts in their Accounts. Investment Funds may
include the Fixed Income Fund, the Company Stock Fund, the Mutual Funds
and any other investment option selected by the Financial Managers,
subject to the approval of the Administrative Managers.
34. "Investment Manager" shall mean a fiduciary appointed by the Financial
Managers to manage the investment of any portion of the assets of the
Plan. Each Investment Manager shall either (a) satisfy the conditions
to be an "Investment Manager," as described by section 3(38) of ERISA,
or (b) be a "named fiduciary" of the Plan.
35. "Layoff" shall mean the termination of the employment of an Employee
with an Employer or Affiliated Entity through no fault of the Employee
for lack of work for reasons associated with the business where the
Employer or Affiliated Entity determines there is a reasonable
expectation of recall within one year. Notwithstanding the foregoing, a
person who would otherwise be considered to be on Layoff may take
certain actions which would result in the severance of his relationship
with the Employer. At the time such action is taken, that person shall
become a voluntary quit and shall no longer be considered on Layoff.
36. "Limitation Year" shall mean the Plan Year.
37. "Mutual Fund" shall mean an open-end investment company registered
under
83
the Investment Company Act of 1940 that is selected by the Financial
Managers, subject to the approval of the Administrative Managers, as an
Investment Fund under Article III.1 of the Plan.
38. "NAV" shall mean the net asset value of a share or Unit of a mutual
fund. Net asset value is the price or market value of an individual
share of a mutual fund. Generally, net asset value is calculated daily
and is determined by adding up the value of all the securities and cash
in a fund's portfolio, subtracting liabilities if there are any, and
dividing that number by the number of shares the fund has issued.
Except for money market funds, the share value will usually change
daily.
39. "Non-Highly Compensated Employee" shall mean any Employee who is
neither a Highly Compensated Employee nor a Family Member of a Highly
Compensated Employee.
40. "Non-Vested Participant" shall mean an Active Participant who does not
have a nonforfeitable right to his Employer Match Contribution Account.
41. "Normal Retirement Date" shall mean the first of the month following
the later of the month during which the Participant's 65th birthday
occurs or the month during which the Participant completes five (5)
years of Eligibility Service.
42. "NYSE" shall mean the New York Stock Exchange.
43. "Participant" shall mean any person who has an Account in the Plan.
44. "Plan" shall mean the Westinghouse Savings Program as set forth in this
document or as amended from time to time, which is intended to be a
multiple
84
employer plan subject to the provisions of section 413(c) of the Code
and to be qualified under section 401(a) and section 401(k) of the
Code. The portion of the Plan which covers represented Employees is
intended to be a collectively bargained plan subject to section 413 of
the Code.
45. "Plan Administrator" shall mean Viacom.
46. "Plan Year" shall mean the calendar year.
47. "Pre-Tax Account" shall mean the Sure and Matured Sure Accounts (as
defined in the August 1, 1985 Plan document) as of December 31, 1988
and all Pre-Tax Contributions made to the Plan by the Participants
after December 31, 1988, with earnings thereon. Pre-Tax Accounts are
subject to the distribution restrictions set out in section
1.401(k)-1(d)(1) of the Treasury regulations (which permits
distributions only after one of the following events: (i) an employee's
retirement, death, disability, or separation from service; (ii) the
termination of a plan without establishment or maintenance of another
defined contribution plan other than an ESOP or SEP (but only with
respect to lump sum distributions); (iii) an employee's attainment of
age 59 1/2 or hardship (but only with respect to a profit-sharing or
stock bonus plan); (iv) the sale or other disposition to an unrelated
corporation of substantially all of the assets used in a trade or
business (but only with respect to lump sum distributions to employees
who continue employment with the acquiring corporation and where the
acquiring corporation does not maintain the plan after the disposition;
and (iv) the sale or other disposition of a subsidiary to an unrelated
entity (but only with respect to lump sum distributions to employees
who continue employment with the subsidiary where the acquiring entity
does not maintain the plan after the disposition)).
85
48. "Pre-Tax Contribution" shall mean a contribution to the Plan deducted
from a Participant's Compensation on a pre-tax basis in accordance with
the Participant's election made under Article II.
49. "Qualified Domestic Relations Order" or "QDRO" shall mean a court order
as defined in section 414(p) of the Code.
50. "Retired Participant" shall mean a Participant who is no longer an
Employee and who has retired under an Employer pension plan. This term
does not refer to a Participant who has terminated with a right to a
vested pension under an Employer pension plan.
51. "Rollover Distribution" shall mean one or more distributions which,
under section 402 of the Code, are eligible for rollover to this Plan.
52. "Securities" as used in Articles VI and VII, shall mean the full shares
of Viacom Inc. Common Stock, including cash with respect to any
fractional shares to which the Units in a Participant's Accounts can be
converted.
53. "Surviving Spouse" shall mean the spouse of a Participant on the date
of his death.
54. "Terminated Participant" shall mean a Participant (not including a
Participant who has been on Layoff for twelve (12) months or less or is
employed at an Affiliated Entity or employed in an Excluded Unit) who
is no longer an Employee and is not a Retired Participant as defined in
this Article XVII.50.
55. "Top-Heavy Contribution" shall mean a contribution made by the Employer
86
pursuant to Appendix B of the Plan.
56. "Top-Heavy Contribution Account" shall mean an account established and
maintained on behalf of a Participant to which his Top-Heavy
Contributions, if any, are allocated.
57. "Totally Disabled Participant" shall mean a Participant who at the time
he stops accruing Eligibility Service is not able, because of injury or
sickness, to engage in any gainful occupation for which he is
reasonably fitted by education, training or experience provided he has
completed at least ten (10) years of Eligibility Service.
58. "Trading Day" shall mean any day on which the NYSE is open for
business.
59. "Trust" shall mean the Westinghouse Savings Program Trust established
pursuant to the Plan.
60. "Trustee" shall mean the trustee(s) from time to time in office
pursuant to appointments made in accordance with the Plan.
61. "Unit" shall mean the equitable share interest of a Participant within
the Company Stock Fund and the Fixed Income Fund.
62. "Valuation Date" shall mean any Trading Day. For valuations made prior
to October 1, 1994, the term "Valuation Date" shall mean the last day
of each Calendar Month.
63. "Value - Value with respect to the Company Stock Fund" shall be
determined as of each Valuation Date based upon the closing price of
Viacom Inc. Common
87
Stock as reported on the NYSE and the value of other investments within
the Fund including accrued dividends or interest on such date, if any.
64. "Value - Value with respect to the Fixed Income Fund" shall be
determined as of each Valuation Date based upon the amounts invested
including accrued interest.
65. "Value - Value with respect to each Mutual Fund" shall be determined as
of each Valuation Date and shall be based upon the published NAV of the
Mutual Fund on such date.
66. "Vested Participant" shall mean a Participant who has a nonforfeitable
right to his Employer Match Contribution Account under the requirements
of Article V.
66A. "Viacom" means Viacom Inc., a Delaware Corporation.
67. "Viacom Inc. Common Stock" shall mean the Class B common stock of
Viacom Inc.
88
APPENDIX A
SECTION 415 LIMITATIONS
In the event the provisions contained in this Appendix A are inconsistent with
the terms contained in the remainder of the Plan, the provisions of this
Appendix A shall take precedence.
A. Overall Limits on Contributions. Contributions made on behalf of any
Participant during any Plan Year shall be subject to the following:
1. In no event shall the Annual Addition for a Participant exceed the
lesser of:
a. Twenty-five percent (25%) of the Participant's compensation
(as defined in section 415(c)(3) of the Code) for the
Limitation Year; or
b. The "defined contribution dollar limitation," which shall
mean $30,000 or, if greater, one-fourth of the defined
benefit dollar limitation under section 415(b)(1) of the Code
for the Limitation Year.
2. Contributions made on behalf of a Participant during a payroll
period which begins in one Plan Year but ends in the next
succeeding Plan Year shall be deemed an Annual Addition for the
next succeeding Plan Year.
3. If an Employee is or was a Participant in one or more defined
benefit plans and one or more defined contribution plans
maintained or ever maintained by the Employer:
89
a. The sum of the defined benefit plan fraction and the defined
contribution plan fraction for any Limitation Year may not
exceed 1.0. The "defined benefit plan fraction" for any year
is a fraction the numerator of which equals the projected
annual benefit of the Participant under the Plan (determined
as of the close of the Plan Year), and the denominator of
which equals the lesser of:
(1) The product of 1.25 multiplied by $90,000 or the
applicable dollar limit which is in effect for such
year; or
(2) The product of 1.4 multiplied by 100 percent of the
Participant's average compensation (as defined in
section 415(c)(3) of the Code) for his high three
consecutive calendar years of active participation.
Notwithstanding the above, if the Employee was a participant
as of the first day of the first Limitation Year beginning
after December 31, 1986, in one or more defined benefit plans
maintained by the Employer in existence on May 6, 1986, the
denominator of this fraction shall not be less than 125
percent of the sum of the annual benefits under such plans
which the Participant had accrued as of the close of the last
Limitation year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the
Plan after May 5, 1986. The preceding sentence applies only
if the defined benefit plan individually and in the aggregate
satisfied the requirements of section 415 of the Code for all
Limitation Years beginning before January 1, 1987.
90
b. The defined contribution plan fraction for any year is a
fraction the numerator of which equals the sum of the Annual
Additions to the Participant's Accounts as of the close of
the plan year, and the denominator of which equals the sum of
the lesser of the following amounts determined for such year
and for each prior year:
(1) The product of 1.25 multiplied by $30,000 or the
applicable dollar limit which is in effect for such plan
year; or
(2) The product of 1.4 multiplied by 25 percent of the
Participant's compensation (as defined in section
415(c)(3) of the Code).
Notwithstanding the above, if the Employee was a Participant as of
the end of the first day of the first Limitation Year beginning
after December 31, 1986, in one or more defined contribution plans
maintained by the Employer which were in existence on May 6, 1986,
the numerator of this fraction shall be adjusted if the sum of
this fraction and the defined benefit fraction would otherwise
exceed 1.0 under the terms of this Plan. Under the adjustment, an
amount equal to the product of (i) the excess of the sum of the
fractions over 1.0 times (ii) the denominator of this fraction,
will be permanently subtracted from the numerator of this
fraction. The adjustment is calculated using the fractions as they
would be computed as of the end of the last Limitation Year
beginning before January 1, 1987, and disregarding any changes in
the terms and conditions of the Plan made after May 6, 1986, but
using the limitation of section 415 of the Code applicable to the
first Limitation Year beginning on or after January 1, 1987.
91
5. The limitations of this Appendix A shall be applied to this Plan
after they are applied to any other defined contribution plan of
the Employer or Employer's Controlled Group. This Appendix A shall
be satisfied prior to satisfying the ADP test.
6. If an Employer or the Employer's Controlled Group maintains or
maintained a defined benefit plan and the amount contributed to
the Trust in respect of any Plan Year would cause the amount
allocated to any Participant under all defined contribution plans
maintained by the Employer or the Employer's Controlled Group to
exceed the maximum allocation as determined in paragraph A.5, then
the allocation with respect to such Participant shall be reduced
by the amount of such excess. To the extent administratively
feasible, the limitation of this paragraph shall be applied to the
Participant's benefit payable from the defined benefit plan prior
to reduction of the Participant's Annual Addition under this Plan.
The excess allocation shall be treated in accordance with
paragraph A.3 or A.4, as applicable.
B. Distributions Of Excessive Annual Additions
1. If, as a result of a reasonable error in estimating a
Participant's compensation (as defined in section 415(c)(3) of the
Code), a reasonable error in determining the amount of Participant
Pre-Tax Contributions (within the meaning of section 402(g)(3) of
the Code) that may be made with respect to any Participant under
the limits of Section A.1 of this Appendix A or other facts and
circumstances to which Regulation 1.415-6(b)(6) shall be
applicable, the Annual Additions under this Plan would cause the
maximum Annual Additions to be exceeded for any Participant,
92
the Administrator may return any Participant After-Tax
Contributions credited for the year or may distribute any
Participant Pre-Tax Contributions (within the meaning of section
402(g)(3) of the Code) necessary to eliminate the "excess amount."
2. For purposes of this Section, "excess amount" for any Participant
for a year means the excess, if any, of the Annual Additions which
would be credited to his Accounts under the terms of the Plan
without regard to the limitations of section 415 of the Code over
the maximum Annual Additions determined pursuant to Section A.1 of
this Appendix A.
3. The Company retains the right to adjust both Participant's Pre-Tax
and After-Tax Contributions to ensure compliance with Code section
415(c) limits.
4. If the Annual Addition must be limited for any Participant after
application of the above in order to comply with section 415 of
the Code, the excess amounts in the Participant's account in the
next Limitation Year must be held unallocated in a suspense
account for the Limitation Year and allocated and reallocated to
all the Participants in the Plan. The excess amounts must be used
to reduce Employer contributions for the next Limitation Year (and
succeeding Limitation years, as necessary) for all of the
Participants in the Plan. Furthermore, the excess amounts will be
used to reduce Employer contributions for the next Limitation Year
(and succeeding Limitation years, as necessary) for all of the
remaining Participants in the Plan. Excess amounts may not be
distributed to Participants or former Participants except as
provided in paragraph B.1.
93
5. Excess amounts refunded under this Subsection shall not be
considered Pre-Tax Contributions for purposes of the annual Dollar
Limit in section 402(g) of the Code and the ADP test in Article
II, nor After-Tax Contributions for the purpose of the ACP test in
Article II and shall not be considered as an eligible rollover
distribution for purposes of Article VI.12.
6. Distributions of Participant After-Tax Contributions and
Participant Pre-Tax Contributions pursuant to this Section shall
include investment gains and losses attributable thereon.
7. Determinations whether to distribute Participant After-Tax
Contributions or Participant Pre-Tax Contributions, determinations
of the investment alternative(s) from which the distribution is to
be made, and computations of attributable investment gains and
losses shall be made by the Plan Administrator in its discretion
pursuant to reasonable and uniform procedures.
94
APPENDIX B
TOP HEAVY PROVISIONS
A. Top-Heavy Preemption. During any Plan Year in which this Plan is
Top-Heavy, as defined in Appendix B Paragraph B below, the Plan shall
be governed in accordance with this Appendix, which shall control over
other provisions.
B. Top-Heavy Definitions. For purposes of this Appendix, the following
definitions shall apply:
1. "Compensation" shall mean Compensation as defined in section
415(c)(3) of the Code.
2. "Contribution Rate" shall mean the sum of contributions made by
the Employer under this Plan, excluding, effective January 1,
1989, salary deferral contributions made under this or any other
plan maintained by the Employer, plus forfeitures allocated to the
Participant's Accounts for the Plan Year, divided by the
Participant's Compensation for the Plan Year. To determine the
Contribution Rate, the Plan Administrator shall consider all
qualified defined contribution plans (within the meaning of the
Code) maintained by the Employer, as a single plan.
3. "Determination Date" shall mean the last day of the preceding Plan
Year, except that in the initial Plan Year, Determination Date
shall mean the last day of such Plan Year. For the purposes of
testing the Top-Heavy status of Required and Permissive
Aggregation Groups, Determination Date shall mean the last day of
each respective plan's Plan Year which occurs in the calendar year
coincident with the Determination Date of this Plan.
95
4. "Key Employee" shall mean any Employee or former Employee (and the
Beneficiaries of such Employee) who at any time during the
"Determination Period" was an officer of the Employer if such
individual's annual Compensation exceeds 50 percent of the dollar
limitation under section 415(b)(1)(A) of the Code, an owner (or
considered an owner under section 318 of the Code) of one of the
ten largest interests in the Employer if such individual's
Compensation exceeds 100 percent of the dollar limitation under
section 415(c)(1)(A) of the Code, a 5 percent owner of the
Employer, or a 1 percent owner of the Employer who has an annual
Compensation of more than $150,000. The "Determination Period" is
the Plan Year containing the determination date and the four
preceding Plan Years.
The determination of who is a Key Employee will be made in
accordance with section 416(i)(1) of the Code and the regulations
thereunder.
5. "Non-Key Employee" shall mean any Employee currently eligible to
participate in the Plan who is not a Key Employee.
6. "Permissive Aggregation Group" shall mean the Required Aggregation
Group plus any other qualified plans maintained by the Employer or
the Employer's Controlled Group, but only if such resultant group
would satisfy, in the aggregate, the requirements of section
401(a)(4) and 410 of the Code. The Plan Administrator shall
determine which plans to take into account in determining the
Permissive Aggregation Group.
7. Required Aggregation Group" shall mean:
96
a. Each qualified plan of the Employer or the Employer's
Controlled Group (including any terminated plan that covered
a Key Employee and was maintained within the five-year period
ending on the Determination Date) in which at least one Key
Employee participates during the Plan Year containing the
Determination Date or any of the four preceding Plan Years;
and
b. Any other qualified plan of the Employer or the Employer's
Controlled Group which enables a plan described in a. above,
to meet the requirements of section 401(a)(4) or 410 of the
Code.
8. "Top-Heavy" shall describe the status of the Plan in any Plan Year
if the "Top-Heavy Ratio" as of the Determination Date exceeds 60
percent.
a. "Top-Heavy Ratio" is a fraction as of the Determination Date
as follows:
Accrued Benefit of all Key Employees
------------------------------------
Accrued Benefits of all Employees
b. Notwithstanding a above, the Top-Heavy Ratio shall be
computed pursuant to section 416(g) of the Code, and any
regulations issued thereunder.
c. Solely for the purpose of determining if the Plan, or any
other plan included in a Required Aggregation Group of which
this Plan is a part, is Top-Heavy (within the meaning of
section 416(g) of the
97
Code), the accrued benefit of an Employee other than a Key
Employee (within the meaning of section 416(i)(1) of the
Code) shall be determined (a) under the method, if any, that
uniformly applies for accrual purposes under all plans
maintained by the Employer or the Employer's Controlled Group
or, if there is no such method, then (b) as if such benefit
accrued not more rapidly than the slowest accrual rate
permitted under the fractional rule accrual of section
411(b)(1)(C) of the Code.
d. For purposes of this Appendix only, "Accrued Benefit" shall
include or exclude rollovers as determined under Treasury
regulation 1.416-1,T-32.
e. If an individual is not a Key Employee but was a Key Employee
in a prior year or if any individual has not performed
services for the Employer at any time during the five-year
period ending on the Determination Date, any Accrued Benefit
for any such individual shall not be taken into account in
determining the Top-Heavy status of the Plan.
f. The value of Account balances and the present value of
Accrued Benefits will be determined as of the most recent
Valuation Date that falls within or ends with the
twelve-month period ending on the Determination Date, except
as provided in section 416 of the Code and the regulations
thereunder for the first and second plan years of a defined
benefit plan.
g. The Accrued Benefit shall include any part of any Account
balance
98
distributed in the five-year period ending on the
Determination Date.
h. The present value shall be based only on the interest rate
and mortality rates specified in the defined benefit plan.
C. Aggregation of Plans. All Required Aggregation Groups shall be
considered (pursuant to section 416(g) of the Code) with this Plan in
determining whether this Plan is Top-Heavy.
1. If such aggregation constitutes a Top-Heavy group, each plan so
aggregated shall be considered Top-Heavy.
2. If such aggregation does not constitute a Top-Heavy group, none of
the plans so aggregated shall be considered Top-Heavy.
At the direction of the Plan Administrator and subject to the
restrictions of sections 401(a)(4) and 410 of the Code, Permissive
Aggregation Groups may be considered with this Plan plus any Required
Aggregation Groups to determine whether such group is Top-Heavy. If
such aggregation does not constitute a Top-Heavy group, none of the
plans so aggregated shall be considered Top-Heavy.
D. Minimum Contribution Rate. Subject to Paragraph G below, for any Plan
Year in which this Plan is Top-Heavy, a minimum contribution shall be
made for each Non-Key Employee as of the last day of the Plan Year
which shall equal the lesser of:
1. Three percent (3%) of Compensation; or
99
2. The highest Contribution Rate (calculated, for this purpose only,
by including salary deferral contributions made under this or any
other plan maintained by the Employer) received by a Key Employee
in that Plan Year.
This Top-Heavy Contribution shall be made irrespective of such Non-Key
Employee's hours of service, Compensation or failure to make
contributions, as applicable hereunder.
E. Deposit of Minimum Contribution. The Plan Administrator shall deposit
any minimum contribution made under this Appendix to a "Top-Heavy
Contribution Account" for each Non-Key Employee. Such account shall
become part of his Accrued Benefit and shall vest pursuant to Appendix
B Paragraph F hereof.
F. Top-Heavy Vesting Schedule. In any Plan Year in which this Plan is
Top-Heavy, any Participant who is credited with at least one hour of
service during such Plan Year shall vest in accordance with Article V
or the following schedule, whichever produces the greater benefit:
During any Plan Year in which this Plan is not Top-Heavy, vesting shall
be determined pursuant to Article V, except that non-forfeitable rights
obtained under the Top-Heavy vesting schedule shall be preserved.
In any Top Heavy Plan Year, with respect to an Employer, the accrued
benefit under the Plan of each Employee of such Employer shall be fully
vested and nonforfeitable if he has credit for three years of
Eligibility Service. In the event the Plan, with respect to an
Employer, ceases to be a Top Heavy Plan for any Plan Year subsequent to
a Top Heavy Plan Year, the accrued benefit of any Employee
100
of such Employer that has been fully vested in accordance with the
preceding section shall remain fully vested.
G. Combined Defined Benefit and Defined Contribution Plans. In the event
that the Employer maintains a defined benefit and a defined
contribution plan, and
1. The defined benefit plan benefits a Key Employee and depends on
this Plan to satisfy sections 401(a)(4) and 410 of the Code, the
minimum Contribution Rate for Non- Key Employees hereunder shall
be five percent (5%), irrespective of the Contribution Rate for
Key Employees (unless the Employee provides for the minimum
required Top-Heavy benefit accrual for the Plan Year under the
defined benefit plan); and
2. The figure "1.0" shall be substituted for the figure "1.25" as it
applies in Appendix A if:
a. The Top-Heavy Ratio exceeds 90 percent, or
b. The Plan is Top-Heavy for the Plan Year, and the Contribution
Rate under Appendix B Paragraph D is less than seven and
one-half percent (7 1/2%) (unless the Employer provides for
the minimum required Top-Heavy benefit accrual for the Plan
Year under the defined benefit plan).
101
EXHIBIT 4.16
CBS EMPLOYEE INVESTMENT FUND
FOR ELIGIBLE EMPLOYEES OF CBS BROADCASTING, INC. AND
CERTAIN OF ITS SUBSIDIARIES AND AFFILIATES
AS RESTATED EFFECTIVE JANUARY 1, 1998
WORKING COPY
(INCLUDING AMENDMENTS ADOPTED
THROUGH THE DATE OF THE CLOSE OF THE
CBS / VIACOM MERGER)
(Changes Are Subject to IRS Review
and Contingent Upon IRS Approval)
CBS EMPLOYEE INVESTMENT FUND
Contents
I. The Purpose of the Plan; the Trust...................................1
II Participation........................................................2
III. Accounts.............................................................4
IV. Employee Contributions; Contribution Elections; Investment
Directions; Conversion Directions; Rollover Contributions..........8
V. Employer's Matching Contributions...................................25
VI. Termination of Participation; Withdrawals; Determination
and Payment of Benefits...........................................28
VII. The Managers........................................................47
VIII. Administration......................................................48
IX. Definitions; Construction...........................................54
X. Adoption by Subsidiaries............................................69
XI. Amendment; Termination..............................................70
XII. Limitations.........................................................73
XIII. Interpretation......................................................77
XIV. Top-Heavy Plan......................................................78
XV. Midwest Communications, Inc. Transaction............................82
XVI. Merger of Radford Studio Center Inc. 401(k) Tax
Sheltered Savings Plan and Trust....................................86
XVII. Direct Rollover of Amounts from Plans in Which Employees
of WPRI-TV Participated.............................................87
XVIII. Direct Rollover of Amounts from Plans in Which Employees
of TNN/CMT Cable Networks Participated..............................89
XIX. Account Transfers...................................................91
APPENDIX A...................................................................96
CBS EMPLOYEE INVESTMENT FUND
I. The Purpose of the Plan; the Trust
----------------------------------
A. The purpose of the Investment Fund, the plan embodied herein, is to
provide Employees of CBS and certain of its subsidiaries and affiliates who are
eligible to participate therein a convenient way to save for their retirement.
It is intended that at all times the Investment Fund and the related Trust will
constitute a plan qualified under Section 401(a) and exempt under Section 501(a)
of the Internal Revenue Code, as amended ("the Code"), and will comply with the
requirements of Section 401(k) of the Code and of the Employee Retirement Income
Security Act of 1974 ("ERISA"). The Investment Fund embodied herein constitutes
an amendment to and restatement of the Investment Fund in effect on December 31,
1997, and is effective January 1, 1998, or such other date as provided in a
resolution of the Board of Directors (or such other corporate body as shall have
amendment authority) or in the Plan or as required (and to the extent required)
by applicable law. Nothing in this amendment and restatement shall have the
effect of reducing any participant's rights to accrued benefits (including
optional forms of benefit) under the terms of the Investment Fund in effect on
December 31, 1997.
B. As a part of the Investment Fund, and solely to aid in the proper
execution thereof, CBS and the other Employers have entered into the Trust
Agreement. The Trust has been created solely to aid in the proper execution of
the Investment Fund and shall be availed of solely for such purpose. Each
provision of the Trust Agreement shall be deemed to be a provision hereof as
fully as if it were set forth herein.
C. The Investment Fund, as amended to December 31, 1997, shall continue
to be applicable to all former Employees whose employment (and participation)
terminated prior to January 1, 1998, except as otherwise provided herein. The
Investment Fund, as amended as of January 1, 1998 and as may be amended
thereafter, shall be applicable to all Employees who are or become eligible to
participate therein on or after such date.
D. Certain terms used herein and in the Trust Agreement are defined and
set forth in alphabetical order in Paragraph A of Article IX hereof.
II Participation.
--------------
A. This Section II.A applies to Employees employed on other than a
full-time basis. Each such person who, on January 1, 1997 or on the first day of
any monthly accounting period commencing subsequent to such date,
(1) is an Employee of one or more of the Employers and
either (a) during the 12-month period preceding such date or, in the
case of an Employee employed on other than a full-time basis, during
any 12-month period subsequent to December 31, 1975 preceding such date
has been such an Employee, or (b) is included in a group determined by
the Board to be eligible to participate in the Investment Fund after
employment by one or more of the Employers during such period of less
than one year as the Board has determined, and during such period has
continuously been such an Employee, and
(2) has completed a year of service,
shall become eligible to participate in the Investment Fund on the
first day of his earliest payroll period commencing with or within such
monthly accounting period. Any participant and any Employee eligible to
participate in the Investment Fund whose employment terminated or who
incurs a break in service and who shall again become an Employee shall
be eligible to participate in the Investment Fund on the date he is
reemployed or returns from a break in service, as the case may be.
Solely for the purpose of determining whether an Employee has completed
a year of service in accordance with clause (2) of Section A., an Employee who
was employed by WPRI-TV or WGPR-TV on the date the assets of those two stations
were acquired by CBS (the "Acquisition Date") shall be credited with a year of
service for each year of the Employee's employment with the seller of WPRI-TV
and WGPR-TV.
Solely for the purpose of determining whether an Employee has completed
a year of service in accordance with clause (2) of Section A., an Employee who
was employed by the seller of TNN/CMT Cable Networks prior to the date the
assets related to that network were acquired by CBS (the "Gaylord Acquisition
Date") and became an Employee of CBS on the Gaylord Acquisition Date shall be
credited with a year of service for each year of the Employee's employment with
the seller of TNN/CMT Cable Networks.
2
B. This Section II.B applies to Employees employed on a full-time
basis. Each such person who is an Employee of one or more of the Employers shall
immediately become eligible to participate in the Investment Fund.
C. Any person described in Section II.A or II.B who is eligible to
participate in the CBS News Special Projects Inc. Employee Investment Fund shall
be excluded from participation in this Investment Fund as of the date such
person becomes eligible to participate in the CBS News Special Projects Inc.
Employee Investment Fund. Any person who was eligible to participate in the CBS
News Special Projects Inc. Employee Investment Fund and is subsequently employed
or reemployed by CBS shall be immediately eligible to participate in this
Investment Fund upon such date of employment or reemployment.
D. Each new Employee described in Section II.A or II.B. who shall
become eligible to participate in the Investment Fund and who shall file with
CBS his election to do so shall become a participant therein on the first day of
the first payroll period after the enrollment election has been processed by
CBS. Such election shall be processed as quickly as reasonably practicable, but
under no circumstances shall contributions be made retroactive to a period
preceding completion of the election and enrollment process. A participant may
be such by reason of his concurrent employment by two or more Employers. Any
such participant shall be entitled to participate in the Investment Fund as an
Employee of each such Employer.
E. In no event, however, shall a "leased employee," as defined in
Section 414(n) of the Code, be entitled to participate in the Investment Fund.
3
III. Accounts.
---------
A. CBS shall cause to be established a separate (i) Stable Value Fund
account, (ii) S&P 500 Index Fund account, (iii) Value U.S. Equity Fund account,
(iv) Small Cap U.S. Equity Fund account, (v) International Equity Index Fund
account, (vi) Short Term Life Cycle Fund account, (vii) Medium Term Life Cycle
Fund account, (viii) Long Term Life Cycle Fund, and (ix) Self Directed Fund
account for each participant, and within each such account a separate after-tax
subaccount, a separate before-tax subaccount, a separate Employer matching
contributions subaccount, and a separate rollover contributions subaccount to
account respectively for contributions to the account made on an after-tax
basis, a before-tax basis, a matching basis, and a rollover basis, which shall
be used in connection with the investment by the Trustee of specified portions
(if any) of such participant's contributions, Employer matching contributions,
and rollover contributions in securities and other properties.
B. 1. CBS shall cause to be established a separate Company Stock Fund
account for each participant, and within each such account a separate after-tax
subaccount, a separate before-tax subaccount, a separate Employer matching
contributions subaccount, and a separate rollover contributions subaccount to
account respectively for contributions to the account made on an after-tax
basis, a before-tax basis, a matching basis, and a rollover basis, which shall
be used in connection with the investment by the Trustee of specified portions
(if any) of such participant's contributions, Employer matching contributions,
and rollover contributions in Viacom Inc. Stock.
When a tender or exchange offer or other offer to purchase Viacom Inc.
Stock (other than on an all-cash basis) is made, CBS shall cause to be
established a separate, numerically designated Company Stock Fund account for
each participant who shall have instructed the Trustee, pursuant to subparagraph
2 of Paragraph L of Article VIII, to tender or sell shares of Viacom Inc. Stock
representing Company Stock Fund units credited to such participant's Company
Stock Fund account. Such newly established, numerically designated Company Stock
Fund accounts shall be used only in connection with the investment by the
Trustee of the securities or other property received by the Trustee with respect
to such participant's Company Stock Fund units, and held by the Trustee in
separate, numerically designated Company Stock Fund accounts, as a consequence
of the closing of such a transaction. Such numerically designated Company Stock
Fund account of a participant shall be respectively credited with numerically
designated Company Stock Fund units representing such participant's proportional
share of the Company Stock Fund, as initially valued and as periodically
thereafter valued on a valuation date.
4
2. CBS shall cause to be established a separate Infinity Stock Fund
account for each participant, and within each such account a separate after-tax
subaccount, a separate before-tax subaccount, a separate Employer matching
contributions subaccount, and a separate rollover contributions subaccount to
account respectively for contributions to account made on an after-tax basis, a
before-tax basis, a matching basis, and a rollover basis, which shall be used in
connection with the investment by the Trustee of specified portions (if any) of
such participant's contributions, Employer matching contributions in Infinity
Stock.
When a tender or exchange offer or other offer to purchase Infinity
Stock (other than on an all-cash basis) is made, CBS shall cause to be
established a separate, numerically designed Infinity Stock Fund account for
each participant who shall have instructed the Trustee, pursuant to subparagraph
2 of Paragraph M of Article VIII, to tender or sell shares of Infinity Stock
representing Infinity Stock Fund units credited to such participant's Infinity
Stock Fund account. Such newly established, numerically designated Infinity
Stock Fund accounts shall be used only in connection with the investment by the
Trustee of the securities or other property received by the Trustee with respect
to such participant's Infinity Stock Fund units, and held by the Trustee in
separate, numerically designated Infinity Stock Fund accounts, as a consequence
of the closing of such a transaction. Such numerically designated Infinity Stock
Fund account of a participant shall be respectively credited with numerically
designated Infinity Stock Fund units representing such participant's
proportional share of the Infinity Stock Fund, as initially valued and as
periodically thereafter on a valuation date.
C. Effective March 1, 1996, at any time that the value of a
participant's interest in each fund of the Investment Fund is measured in units,
the number of units credited to each participant's fund accounts due to a
participant's contributions, Employer matching contributions, or rollover
contributions shall be determined by dividing the amount of such contributions
by the unit value of the fund as of the valuation date concurrent with or
immediately preceding the date that such contributions are transferred to the
Trustee. Earnings and losses are allocated within each fund as of each valuation
date (but not less frequently than annually) to determine the unit value of each
fund. Each participant's share of such earnings and losses will be determined as
of each valuation date by multiplying the number of units in the participant's
account by the unit value on the valuation date. The net value of a
participant's account shall be the value of a participant's account in all funds
as of a valuation date, and shall be equal to the sum of the products obtained
by multiplying the number of units credited to a participant in each fund by
each fund's unit value as of the applicable valuation date. At any time that the
method of valuation under the Investment Fund changes from dollar valuation
(described below) to this method, the value of a participant's account on such
transition date shall be
5
determined by dividing the dollar value of the participant's account by the unit
value assigned to each unit on such transition date. Effective January 1, 1998,
a participant's interest in the following Funds will be measured in units:
Stable Value Fund; S&P 500 Index Fund; Value U.S. Equity Fund; International
Equity Index Fund; Company Stock Fund; and Infinity Stock Fund.
Effective for the period January 1, 1996 through February 29, 1996, the
above method shall be used to value a participant's account, provided however,
that the number of units credited to each participant's fund accounts due to a
participant's contributions, Employer matching contributions, or rollover
contributions shall be determined by dividing the amount of such contributions
by the unit value of the fund as of the last valuation date of the month in
which such contributions are transferred to the Trustee, and each participant's
share of earnings and losses will be determined as of each valuation date by
multiplying the number of units in the participant's account as of the last day
of the month (reduced by the number of units attributable to contributions for
such month) by the unit value on the last valuation date of the month.
For periods prior to January 1, 1996 and at any time that the value of
the Investment Fund is not measured in units, as of each valuation date, the
earnings, losses, appreciation and depreciation of each fund account in the
Investment Fund since the last preceding valuation date shall be allocated among
the accounts of participants in the proportion that the adjusted value of each
participant's account in such fund account bore to the value of all
participant's accounts in such fund account on the last valuation date. The net
value of a participant's account shall be the value of a participant's account
in all funds as of a valuation date. The adjusted value of each participant's
account shall be determined by reducing the participant's account balance as of
the immediately prior valuation date by any distributions, forfeitures, and
withdrawals made since such valuation date. At any time that the method of
valuation under the Investment Fund changes from unit valuation to this method,
the value of each fund account under a participant's account shall be determined
as of the transition date by multiplying the number of units in each fund
account under the participant's account by the unit value on the transition
date. Effective January 1, 1998, a participant's interest in the following Funds
will not be measured in units: Small Cap U.S. Equity Fund; Short Term Life Cycle
Fund; Medium Term Life Cycle Fund; Long Term Life Cycle Fund; and Self Directed
Fund.
If any participant's account is credited with an incorrect amount of
before-tax contributions, after-tax contributions, Employer matching
contributions, or rollover contributions, or earnings on any such contributions,
or if an error is made with respect to the investment of the assets of the
Investment Fund which error results in an error in the
6
amount credited to a participant's account, and either such failure is due to
administrative error in determining or allocating the proper amount of such
contributions or earnings, the Employer may make additional contributions to the
account of any affected participant or re-allocate contributions and earnings
within the Investment Fund to place the affected participants' accounts in the
position that would have existed if the error(s) had not been made.
D. Quarterly account fees associated with a participant's balance in a
Self Directed Fund account during the quarter will be charged to the
participant's non-Self Directed Fund accounts. Commissions, special handling
fees, and other transaction charges associated with transactions in a
participant's Self Directed Fund account will be charged to the participant's
Self Directed Fund account; and investment management fees, brokerage fees, and
other transfer taxes and expenses relating to the purchase or sale of securities
associated with a particular non-Self Directed Fund account will be charged to
such Fund. Trustee fees from Boston Safe Deposit and Trust Company, or a
successor Trustee, will be charged on a pro rata basis to all participant
accounts.
E. Amounts in the Employer's matching contributions forfeiture account
may, as determined by the Administrative Managers, be used to pay the reasonable
and necessary expenses of the Investment Fund (to the extent that they are not
charged to participant accounts pursuant to paragraph D above), or to reduce
future Employer matching contributions required to be made by the Employer.
7
IV. Employee Contributions; Contribution Elections; Investment
Directions; Conversion Directions; Rollover Contributions
----------------------------------------------------------
Three methods of making contributions to the Investment Fund are
provided: the required basic contribution and the voluntary supplemental
contribution (both pursuant to contribution elections), and the periodic special
contribution.
Each contribution election of a participant with respect to the
required basic contribution and the voluntary supplemental contribution shall be
made in such manner (including telephonic notice) as the Administrative Managers
may from time to time prescribe and shall specify the participant's: (i)
designation of the percent of his salary to constitute the contribution amount;
(ii) investment direction as to the mode of investment of such contribution; and
(iii) election (a) to have such contribution amount (or, with respect to the
voluntary supplemental contribution and to Part A and Part C participants, a
portion thereof) treated as an "after-tax" contribution and his authorization to
his Employer to withhold from his salary and pay to the Trustee the contribution
amount to his after-tax subaccount(s) and/or (b) to have such contribution
amount (or, with respect to the voluntary supplemental contribution and to Part
A and Part C participants, a portion thereof) treated as a "before-tax"
contribution and his salary deferral agreement with his Employer to defer
payment to him of, and to pay to the Trustee, the contribution amount to his
before-tax subaccount(s). For purposes of Section 401(k) of the Code only, all
amounts designated by a participant as before-tax contributions and credited to
his before-tax subaccounts shall be considered Employer contributions made
pursuant to a participant's election. For purposes of this Article IV, an
employee or participant shall be deemed to have filed the necessary elections or
modifications described in the following paragraphs by providing telephonic
notice in the manner prescribed by the Administrative Managers.
Contributions, benefits and service credit with respect to qualified
military service will be provided in accordance with Section 414(u) of the Code.
8
(i) The required basic contribution and the voluntary
supplemental contribution:
A.1. As a part of, or concurrently with, his participation election,
each Employee who is a Part B participant shall file with CBS a contribution
election, with respect to such Employee's required basic contribution for and
during those of such Employee's payroll periods for which such contribution
election shall be in effect, which shall designate either 1, 1-1/2, 2, 2-1/2,
or, if applicable, 3 or 4 percent of such Employee's salary from his Employer
during such periods as such contribution and which shall include an election to
have all of such contribution amount treated either as an after-tax or as a
before-tax contribution. At any time after filing a contribution election with
respect to a required basic contribution, except as otherwise provided in
Paragraph A of Article VI hereof, a participant may file a modification thereof
either to designate a different permitted percent of his salary as his required
basic contribution, or to change his election as to the after-tax or before-tax
treatment of such contribution amount, or both; provided that, after December
31, 1997, a contribution designation may not be changed from a full percentage
election to a half percentage election.
Employees who are Part A participants may not make required basic
contribution elections.
As a part of, or concurrently with, his participation election, each
Employee who is a Part C participant shall file with CBS a contribution
election, with respect to such Employee's required basic contribution for and
during those of such Employee's payroll periods for which such contribution
election shall be in effect, which shall designate either 2, 3, 4, 5, or 6
percent of such Employee's salary from his Employer during such periods as such
contribution and which shall include an election to have all or a portion of
such contribution amount treated as an after-tax or as a before-tax
contribution. At any time after filing a contribution election with respect to a
required basic contribution, except as otherwise provided in Paragraph A of
Article VI hereof, a participant may file a modification thereof either to
designate a different permitted percent of his salary as his required basic
contribution, or to change his election as to the after-tax or before-tax
treatment of such contribution amount, or both. A participant, in filing a
contribution election (or modification thereof) with respect to his required
basic contribution, shall designate which portion (which may be all, or none, or
any percentage thereof divisible by five) of the amount of his salary so
designated shall be treated as an after-tax contribution and which portion
treated as a before-tax contribution, the total of such portions to equal 100
percent of the required basic contribution amount.
9
2. At the time of his participation election, or at any time
thereafter (except during any period when a suspension of his contribution
election for his required basic contribution is in effect), a participant whose
required basic contribution is the maximum basic contribution (or who is a Part
A participant) may also file with CBS a contribution election providing for his
Employer to pay to the Trustee as such Employee's voluntary supplemental
contribution to the Investment Fund the percentage therein specified, which may
be any whole number of such Employee's salary from such Employer for those of
such Employee's payroll periods for which contribution elections for his
required basic contribution and for a voluntary supplemental contribution shall
be in effect. Notwithstanding the foregoing, in no event shall the participant's
voluntary supplemental contributions when added to the participant's required
basic contributions exceed 15 percent of the Employee's salary. Any participant
who has filed a contribution election for a voluntary supplemental contribution
may at any time thereafter file with CBS a modification of such contribution
election for his voluntary supplemental contribution as then in effect which
shall provide that his Employer shall pay to the Trustee as such participant's
voluntary supplemental contribution to the Investment Fund a specified
percentage of such participant's salary from such Employer different from the
percentage provided in such participant's voluntary supplemental contribution
election as then in effect. The percentage specified in such a modification
shall be any whole number that does not cause contributions to exceed the 15
percent limitation. A participant, in filing a contribution election (or
modification thereof) with respect to his voluntary supplemental contribution,
shall designate which portion (which may be all, or none, or any percentage
thereof divisible by five) of the amount of his salary so designated shall be
treated as an after-tax contribution and which portion treated as a before-tax
contribution, the total of such portions to equal 100 percent of the voluntary
supplemental contribution amount.
3. Any participant may also at any time file with CBS a suspension
of such participant's contribution election for his required basic contribution
as then in effect which shall provide that his Employer shall not pay to the
Trustee as such participant's required basic contribution to the Investment Fund
any portion of such participant's salary from such Employer. Such a suspension
of a participant's contribution election for his required basic contribution
shall automatically cause a suspension of his contribution election, if any,
then in effect for a voluntary supplemental contribution. Except as otherwise
provided in Paragraph A of Article VI hereof, any such participant may at any
time file a new contribution election with CBS.
B.1. As a part of every contribution election each Employee shall also
file with CBS such Employee's direction with respect to the portion of such
Employee's required basic contribution (and voluntary supplemental contribution,
if any)
10
for each of his payroll periods for which such investment direction shall be in
effect which is to be contributed to any one or more of the available Funds (not
including the Self Directed Fund), and credited to such Employee's account in
each such Fund. Up to 100 percent of the total of an Employee's required basic
contribution and, if any, voluntary supplemental contribution may be directed to
be contributed to any of the available Funds (not including the Self Directed
Fund). All contributions under the Investment Fund shall be effected in
accordance with the provisions of subparagraph 5 of Paragraph B of Article IX
hereof.
2. Subject to such conditions as the Administrative Managers shall
prescribe on a uniform basis, any participant may from time to time file with
CBS a modification of such participant's investment direction as made in
connection with a contribution election or elections then in effect. Such
modification shall become effective on the next date (of which there shall be
not fewer than two in any calendar year) which the Administrative Managers shall
specify for the effective date of such modifications.
C. Each Employer shall withhold and/or defer from the payment of the
salary of each participant for each payroll period with respect to which there
shall be a contribution election or elections of such participant in effect the
percentage of the salary of such participant specified in such election or
elections and, as promptly as shall be practicable after such payroll period,
(1) such Employer shall pay to the Trustee the aggregate amount of such
Employer's said withholdings and/or deferrals for such payroll period, and (2)
CBS or its designee shall contribute the amounts so paid to it into the
available Funds (not including the Self Directed Fund), credit such
contributions to the various Fund accounts of the respective participants whose
contributions are so paid to it and credit such amounts to the various available
Funds, all in conformity with the respective investment directions of such
participants for such payroll periods. Such credits as result from contributions
elected to be made on an after-tax basis shall be credited to the after-tax
subaccounts of the Fund accounts of the respective participants, and such
credits as result from contributions elected to be made on a before-tax basis
shall be credited to the before-tax subaccounts of the Fund accounts of the
respective participants.
(ii) the periodic special contribution:
---------------------------------
A.1. At such intervals and subject to such conditions as the
Administrative Managers shall prescribe on a uniform basis, each participant who
at that time has in effect a contribution election for a required basic
contribution (or is a Part A
11
participant) shall be provided the opportunity to make a periodic special
contribution, on an after-tax basis, by a cash payment to the Investment Fund.
2. The amount of any periodic special contribution of a
participant may be in such amount as such participant shall elect but not in
excess of:
(a) 140 percent of the total of all his actual contributions,
if any, made by him to the Investment Fund through payroll
authorizations at any time from the date he first became a participant
in the Investment Fund to June 30, 1977 (which amount shall be
described as a participant's "past frozen credit"), plus
(b) the difference, if any, between (i) the total of (y) the
aggregate amount he could have contributed to the Investment Fund as
required basic contributions and voluntary supplemental contributions
subsequent to June 30, 1977 if at all times subsequent to that date he
had had in effect payroll authorizations (throughout the period ended
December 31, 1983) and contribution elections (throughout the period
commencing January 1, 1984) for the required basic contribution and the
voluntary supplemental contribution for the maximum percentage of base
salary permitted plus (z) the withdrawals made by him subsequent to
June 30, 1977, and (ii) the total of all his actual contributions made
as required basic contributions, voluntary supplemental contributions
and periodic special contributions to the Investment Fund subsequent to
June 30, 1977.
3. Periodic special contributions shall be allocated to available
Funds (not including the Self Directed Fund) pursuant to elections applicable to
required basic contributions and voluntary supplemental contributions.
(iii) limitations:
-----------
A. Notwithstanding anything contained in the foregoing provisions of
this Article IV, the following rules and limitations shall apply to a
participant's before-tax basic required contributions and, if applicable,
before-tax voluntary supplemental contributions. If the Administrative Managers
shall at any time determine that the spread between the then-current percentage
of salary being contributed to the Investment Fund by means of before-tax
contributions for (i) "highly compensated eligible Employees" and (ii) the
remaining eligible Employees, is such that before-tax contributions under the
Investment Fund would fail to satisfy either of the "actual deferral percentage
tests" for the current plan year (assuming such percentages had been and would
continue in
12
constant effect for the entire plan year), the Administrative Managers, in their
sole discretion, may unilaterally reduce, on a prospective basis, the maximum
percentage of salary with respect to which such "highly compensated eligible
Employees" elected to defer as before-tax contributions under the Investment
Fund. The participant's salary deferral agreement incorporated in his
contribution election shall be automatically adjusted, without any further
action on the part of such participant or his Employer, to conform to the new
limitation imposed by the Administrative Managers and unless such participant
otherwise instructs CBS in a written notice or such other form of notice
(including telephonic notice) as may be prescribed by the Administrative
Managers, his after-tax contribution agreement incorporated in his contribution
election (if one is then in effect) also shall be automatically adjusted so as
to increase the percentage of his salary which shall be contributed pursuant
thereto by the amount of such automatic adjustment. The Administrative Managers,
in their sole discretion, may at any time remove any limitation imposed by them
under this provision and any modifications to the participant's contribution
election resulting from such limitation shall automatically cease to be
effective and such contribution election shall continue in effect under the
terms that existed immediately prior to such modifications.
For purposes of this Paragraph A, the following terms shall have the
following meanings:
"Actual deferral percentage tests" shall mean either of the following:
1. the "actual deferral percentage" for the group of "highly
compensated eligible Employees" is not more than the "actual
deferral percentage" for all other eligible Employees for the
preceding plan year multiplied by 1.25; or
2. the excess of the "actual deferral percentage" for the group of
"highly compensated eligible Employees" over the "actual deferral
percentage" for all other eligible Employees for the preceding
plan year is not more than two percentage points, and the "actual
deferral percentage" for the group of "highly compensated eligible
Employees" is not more than the "actual deferral percentage" of
all other eligible Employees for the preceding plan year
multiplied by 2.0.
"Actual deferral percentage" with respect to any group of active
eligible Employees for a plan year shall mean the average of the ratios
(calculated separately for each eligible Employee in the group) of
13
1. the amount of before-tax contributions authorized by the eligible
Employee to be paid to the Investment Fund for such plan year, to
2. the eligible Employee's salary for such plan year.
For purposes of determining "actual deferral percentages", any eligible
Employee who is suspended from participation shall be treated as an eligible
Employee. For purposes of determining the actual deferral percentage, any plans
which are treated as one plan for purposes of section 410(b) shall be treated as
one plan. If a highly compensated eligible Employee participates in two or more
plans of an Employer, all contributions under those plans shall be aggregated
for purposes of determining the actual contribution percentage of such highly
compensated eligible Employee.
The term "highly compensated eligible Employees" includes those
participants who meet the definition of "highly compensated Employee" as
determined under Section 414(q) of the Code and the regulations issued
thereunder. The term "highly compensated Employee" includes highly compensated
active Employees and highly compensated former Employees. A highly compensated
active Employee means an Employee of the Employer or an affiliated company who
performs services for the Employer or an affiliated company during the current
plan year (the "determination year") and who, during the preceding plan year
(the "look-back year"), was an Employee who received compensation in excess of
$80,000 (adjusted for plan years after 1997 at the same time and in the same
manner as under Section 415(d) of the Code). A "highly compensated active
Employee" also includes an Employee who was at any time during the determination
year or the look-back year a five-percent owner of the Employer as defined in
Section 416(i)(1) of the Code.
A "highly compensated former Employee" means an Employee who separated
from service prior to the determination year, who performed no services for an
Employer during the determination year, and who was a highly compensated active
Employee for either such Employee's separation year or any determination year
ending on or after the Employee's 55th birthday. An Employee who separated from
service before January 1, 1987 will be a highly compensated former Employee only
if the Employee was a five-percent owner or received compensation in excess of
$50,000 during the Employee's separation year (or the year preceding such
separation year) or any year ending on or after such Employee's 55th birthday
(or the last year ending before such Employee's 55th birthday).
For purposes of determining highly compensated Employees,
"compensation" shall be determined in the same manner as "annual compensation"
in Article XII of the
14
Plan, increased by before-tax contributions under a cafeteria plan (as defined
in Section 125 of the Code) maintained by the Employer or an affiliated company.
The determination of highly compensated eligible Employees may be made
by the Administrative Managers on the basis of the "top-paid group" election or
the substantiation guidelines in accordance with such regulations, notices or
other guidance issued under Section 414(q) of the Code.
Notwithstanding the foregoing, the Administrative Managers may elect to
determine the permissible actual deferral percentage for highly compensated
eligible Employees for any plan year beginning on or after January 1, 1997 on
the basis of the actual deferral percentage of the group of non-highly
compensated employees for the current plan year rather than the preceding plan
year, in accordance with such regulations, notices or other guidance issued
under Section 401(k) of the Code.
If after the close of any plan year the Administrative Managers shall
determine that the Investment Fund failed to satisfy either of the "actual
deferral percentage tests", the Administrative Managers may utilize any
combination of the following methods to assure that the Investment Fund complies
with one or both of the "actual deferral percentage tests":
1. The "excess deferrals" and the income allocable thereto shall be
distributed to the applicable "highly compensated eligible
Employees" as soon as practicable after the end of such plan year,
but no later than 12 months after the close of such plan year; the
amount of income allocable to each affected highly compensated
eligible Employee's excess deferrals shall be determined by
multiplying the income for the plan year allocable to the eligible
Employee's before-tax contributions (defined below) by a fraction,
the numerator of which is the highly compensated eligible
Employee's excess deferrals for the plan year and the denominator
of which is the sum of: (A) the eligible Employee's account
balance attributable to before-tax contributions as of the first
day of the plan year, plus (B) the eligible Employee's before-tax
contributions for the plan year. The income for the plan year
allocable to each affected highly compensated eligible Employee's
before-tax contributions shall be determined by subtracting the
amount in the denominator of the above-described fraction from the
account balance attributable to before-tax contributions
determined as of the last day of the plan year. The amount of
excess deferrals that may be distributed under this Paragraph A
with respect to any participant for any plan year shall be
15
reduced by the amount of any excess before-tax contributions
previously distributed pursuant to Paragraph C, if any, for such
plan year; or
2. The "excess deferrals" shall be recharacterized as after-tax
contributions in accordance with regulations issued under Section
401(k)(3) of the Code to the extent required to comply with either
of the "actual deferral percentage tests". Such recharacterized
amounts shall continue to be treated as before-tax contributions
for all other purposes under the Code, in accordance with Reg. ss.
1.401(k)-1(f)(3)(ii)(B).
"Excess deferrals" shall mean, with respect to each "highly compensated
eligible Employee", the amount equal to total before-tax contributions made on
behalf of the eligible Employee (determined prior to the application of the
leveling procedure described below) minus the product of the eligible Employee's
"actual deferral percentage" (determined after application of the leveling
procedure described below) multiplied by the eligible Employee's salary. In
accordance with the regulations issued under Section 401(k) of the Code, "excess
deferrals" shall be determined by a leveling procedure under which the "actual
deferral percentage" of the "highly compensated eligible Employee" with the
highest such percentage shall be reduced to the extent required to satisfy
either of the "actual deferral percentage tests" or, if it results in a lower
reduction, to the extent required to cause such "highly compensated eligible
Employee's" "actual deferral percentage" to equal the "actual deferral
percentage" of the "highly compensated eligible Employee" with the next highest
"actual deferral percentage". This leveling procedure shall be repeated until
the requirements of either of the "actual deferral percentage tests" are first
satisfied. Once the leveling procedure has been completed, the total dollar
amount of excess deferrals shall be determined. This amount shall be distributed
in accordance with a leveling procedure under which the dollar amount of
before-tax contributions of the highly compensated eligible Employee with the
highest dollar amount of before-tax contributions shall be reduced to the extent
required to distribute the total amount of excess deferrals or, if it results in
a lower reduction, to the extent required to cause such highly compensated
eligible Employee's dollar amount of before-tax contributions to equal the
dollar amount of before-tax contributions of the highly compensated eligible
Employee with the next highest dollar amount of before-tax contributions. This
distribution procedure shall be repeated until all excess deferrals have been
distributed.
B. Notwithstanding anything contained in the foregoing provisions of
this Article IV or in the provisions of Article V, the provisions on limitations
set forth in Article XII shall apply to limit Employee and Employer matching
contributions in any calendar year which exceed those specified in Article XII.
16
C. Notwithstanding anything contained in the foregoing provisions of
this Article IV or in the provisions of Article V, in no event may the amount of
an eligible Employee's before-tax contributions to the Plan, in addition to all
such before-tax contributions under all other cash or deferred arrangements (as
defined in Section 401(k) of the Code) in which an eligible Employee
participates, exceed $7,000 (adjusted for increases in the cost-of-living under
Section 402(g) of the Code) in any calendar year. If in any calendar year an
eligible Employee's total before-tax contributions under the Investment Fund, in
addition to all such salary reduction contributions under all other qualified
cash or deferred arrangements (as defined in Section 401(k) of the Code)
maintained by the Employer or an affiliated company in which the eligible
Employee participates, exceed $7,000 (as adjusted), the excess before-tax
contributions (before-tax contributions in excess of $7,000 (as adjusted))
together with earnings thereon shall be distributed to the eligible Employee as
soon as practicable after the Administrative Managers determine that the excess
before-tax contribution was made, but no later than April 15 of the calendar
year following the calendar year in which the excess before-tax contribution was
made. If an eligible Employee participates in another cash or deferred
arrangement which is not maintained by an Employer or an affiliated company in
any calendar year and his total before-tax contributions under the Investment
Fund and such other plan exceed $7,000 (as adjusted) in a calendar year, he may
request to receive a distribution of the amount of the excess before-tax
contributions (a deferral in excess of $7,000 (as adjusted)) that is
attributable to before-tax contributions in the Investment Fund together with
earnings thereon, notwithstanding any limitations on distributions contained in
the Investment Fund. Such distribution shall be made by the April 15 following
the plan year of the excess before-tax contributions provided that the eligible
Employee notifies the Administrative Managers of the amount of the excess
before-tax contributions that is attributable to before-tax contributions to the
Investment Fund and requests such a distribution. The eligible Employee's notice
must be received by CBS no later than the March 1 following the plan year of the
excess before-tax contributions. In the absence of such notice, the amount of
such excess before-tax contributions attributable to before-tax contributions to
the Investment Fund shall be subject to all requirements on withdrawals and
distributions in the Investment Fund. The amount of excess before-tax
contributions that may be distributed under this Paragraph C with respect to any
eligible Employee for any calendar year shall be reduced by the amount of any
excess deferrals previously distributed pursuant to Paragraph A of this Article
IV, if any, for such year. The amount of earnings allocable to each affected
Employee's excess before-tax contributions shall be determined by multiplying
the income for the plan year allocable to the Employee's before-tax
contributions by a fraction, the numerator of which is the Employee's excess
before-tax contributions for the calendar year, and the denominator of which is
the sum of: (A) the Employee's account balance attributable to
17
before-tax contributions as of the first day of the calendar year, plus (B) the
Employee's before-tax contributions for the calendar year. The earnings for the
calendar year allocable to each affected Employee's before-tax contributions
shall be determined by subtracting the amount in the denominator of the
above-described fraction from the account balance attributable to before-tax
contributions determined as of the last day of the calendar year.
D. Notwithstanding anything contained in the foregoing provisions of
this Article IV or in the provisions of Article V, the following rules and
limitations shall apply to a participant's after-tax basic required
contributions, after-tax voluntary supplemental contributions, Employers'
matching contributions, and, if applicable, after-tax periodic special
contributions. If the Administrative Managers shall at any time determine that
the spread between the Employers' matching contributions and the then current
percentage of salary being contributed to the Investment Fund by means of
after-tax contributions for (1) "highly compensated eligible Employees" of the
Employers, and (2) the remaining eligible Employees is such that Employers'
matching contributions and after-tax contributions under the Investment Fund
would fail to satisfy either of the "actual contribution percentage tests" or
the "multiple use test" for the current plan year (assuming such percentages had
been and would continue in constant effect for the plan year), the
Administrative Managers, in their sole discretion, may unilaterally reduce, on a
prospective basis, the maximum percentage of salary with respect to which
"highly compensated eligible Employees" elected to contribute as after-tax
contributions under the Investment Fund. The participant's after-tax
contribution agreement incorporated in his contribution election shall be
automatically adjusted, without any further action on the part of such
participant or his Employer, to conform to the new limitation imposed by the
Administrative Managers. The Administrative Managers, in their sole discretion,
may at any time remove any limitation imposed by it under this provision and any
modifications to the participant's contribution election resulting from such
limitation shall automatically cease to be effective and such contribution
election shall continue in effect under the terms that existed immediately prior
to such modifications.
For purposes of this Paragraph D, the following terms shall have the
following meanings:
"Actual contribution percentage test" shall mean either of the
following:
1. The "actual contribution percentage" for the group of "highly
compensated eligible Employees" is not more than the "actual
contribution percentage"
18
for all other eligible Employees for the preceding plan year
multiplied by 1.25; or
2. The excess of the "actual contribution percentage" for the group
of "highly compensated eligible Employees" over the "actual
contribution percentage" of all other eligible Employees for the
preceding plan year is not more than two percentage points, and
the "actual contribution percentage" for the group of "highly
compensated eligible Employees" is not more than the "actual
contribution percentage" of all other eligible Employees for the
preceding plan year multiplied by 2.0.
"Actual contribution percentage" with respect to any specified group of
active eligible Employees for a plan year shall mean the average of the ratios
(calculated separately for each eligible Employee in the group) of:
1. the amount of Employers' matching contributions and after-tax
contributions, plus the amount of any before-tax contributions
recharacterized pursuant to Article IV, the amount of any
before-tax contributions treated as Employers' matching
contributions for purposes of the "actual contribution percentage
test", contributed to the Investment Fund on behalf of each such
eligible Employee for such plan year, to
2. the eligible Employee's salary for such plan year.
For purposes of determining "actual contribution percentages", any
eligible Employee who is suspended from participation shall be treated as an
eligible Employee. In all events, "actual contribution percentages" will be
determined in accordance with all of the applicable requirements of Section
401(m) of the Code and the regulations issued thereunder. For purposes of
determining the actual contribution percentage, any plans which are treated as
one plan for purposes of section 410(b) shall be treated as one plan. If a
highly compensated eligible Employee participates in two or more plans of an
employer, all contributions under those plans shall be aggregated for purposes
of determining the actual contribution percentage of such highly compensated
eligible Employee.
Notwithstanding the foregoing, the Administrative Managers may elect to
determine the permissible actual contribution percentage for highly compensated
eligible Employees for any plan year beginning on or after January 1, 1997 on
the basis of the actual contribution percentage of the group of non-highly
compensated employees for the
19
current plan year rather than the preceding plan year, in accordance with such
regulations, notices or other guidance issued under Section 401(m) of the Code.
The term "highly compensated eligible Employee" shall have the same
meaning as in Article IV, Paragraph A.
The term "multiple use test" shall mean the rules prohibiting the
multiple use of the alternative limitation described in Section
401(k)(3)(A)(ii)(II) and Section 401(m)(2)(A)(ii) of the Code, and the
provisions of Treas. Reg. Section 1.401(m)-2(b) and any further guidance issued
thereunder.
If after the close of any plan year the Administrative Managers shall
determine that the Investment Fund failed to satisfy either of the "actual
contribution percentage tests", the Administrative Managers may utilize any
combination of the following methods to assure that the Investment Fund complies
with one or more of the "actual contribution percentage tests":
1. The "excess aggregate contributions" made with respect to "highly
compensated eligible Employees" with respect to such plan year,
and any income allocable thereto, determined in accordance with
regulations issued under Section 401(m) of the Code, shall be
distributed to the applicable "highly compensated eligible
Employees" in an amount equal to each such Employee's after-tax
contributions (including recharacterized before-tax contribution)
as soon as practicable after the end of such plan year, but no
later than 12 months after the close of such plan year.
2. If the Investment Fund fails to satisfy either of the "actual
contribution percentage tests" following the distribution of
after-tax contributions and income described under (1) above, the
remaining "excess aggregate contributions" made on behalf of
"highly compensated eligible Employees" with respect to such plan
year, and the income allocable thereto, determined in accordance
with regulations under Section 401(m) of the Code shall be
distributed to the applicable "highly compensated eligible
Employees" as soon as practicable after the end of such plan year,
but no later than 12 months after the close of such plan year.
3. Before-tax contributions may be treated as Employer matching
contributions solely for the purposes of satisfying either of the
"actual contribution percentage tests".
20
"Excess aggregate contributions" shall mean with respect to each
"highly compensated eligible Employee," the amount equal to the total Employer
matching contributions made on his behalf and his after-tax contributions
(including the amount of any before-tax contributions recharacterized pursuant
to Article IV) determined prior to the application of the leveling procedure
described below minus the product of the eligible Employee's contribution
percentage, determined after the application of the leveling procedure described
below, multiplied by the eligible Employee's compensation. Under the leveling
procedure, the contribution percentage of the "highly compensated eligible
Employee" with the highest such percentage is reduced to the extent required to
enable the Plan to satisfy either of the "actual contribution percentage tests",
or it results in a lower reduction, to the extent required to cause such
eligible Employee's contribution percentage to equal that of the "highly
compensated eligible Employee" with the next highest contribution percentage.
This leveling procedure is repeated until the Plan complies with either of the
"actual contribution percentage tests". Once the leveling procedure has been
completed, the total dollar amount of excess aggregate contributions shall be
determined. This amount shall be distributed in accordance with a leveling
procedure under which the dollar amount of after-tax contributions of the highly
compensated eligible Employee with the highest dollar amount of after-tax and
matching Employer contributions shall be reduced to the extent required to
distribute the total amount of excess aggregate contributions or, if it results
in a lower reduction, to the extent required to cause such highly compensated
eligible Employee's dollar amount of after-tax and matching Employer
contributions to equal the dollar amount of after-tax and matching Employer
contributions of the highly compensated eligible Employee with the next highest
dollar amount of after-tax and Employer matching contributions. This
distribution procedure shall be repeated until all excess aggregate
contributions have been distributed. In no case shall the amount of "excess
aggregate contributions" with respect to any "highly compensated eligible
Employee" exceed the after-tax contributions and Employer matching contributions
made on behalf of such eligible Employee in any plan year.
E. Notwithstanding anything to the contrary in this Article IV,
Employer matching contributions, before-tax contributions and after-tax
contributions may not be made to this Investment Fund in violation of the
"multiple use test." If such multiple use occurs, the actual contribution
percentages for all "highly compensated eligible Employees" (determined after
applying the "actual deferral percentage" and "actual contribution percentage"
tests) shall be reduced in accordance with Treas. Reg. Section 1.401(m)-2(c) and
any further guidance issued thereunder in order to prevent such multiple use of
the alternative limitation.
21
F. Notwithstanding anything in the Investment Fund to the contrary, if
the rate of the Employers' matching contributions (determined after application
of the corrective mechanisms described in Paragraph A, Paragraph C and Paragraph
D) discriminates in favor of "highly compensated eligible Employees," the
Employer matching contribution attributable to any excess deferrals, excess
before-tax contributions of each affected "highly compensated eligible Employee"
shall be charged to the participant's Employer matching contributions subaccount
and credited to his Employer's matching contributions forfeiture account so that
the rate of Employer matching contributions is nondiscriminatory. Any such
charges shall be made no later than the end of the plan year following the plan
year for which the Employer's matching contribution was made.
(iv) reallocation directions:
-----------------------
Subject to such conditions as the Administrative Managers shall
prescribe on a uniform basis, any participant may from time to time reallocate
in whole percentages his various Fund account balances among the various
available Funds, including to and from a Self Directed Fund account. The
following restrictions shall apply, however, to reallocations into the Self
Directed Fund: (I) in order for an amount to be reallocated to a participant's
Self Directed Fund account, the amount in the participant's Self Directed Fund
account immediately following the reallocation may not exceed 50 percent of the
participant's entire Investment Fund account balance (net of any participant
loans); (II) the initial reallocation of amounts into a participant's Self
Directed Fund account may not be in an amount less than $2,500; (III) any
subsequent reallocation of amounts into a participant's Self Directed Fund
account may not be in an amount less than $1,000; (IV) a participant must
complete such application and disclosure documents as are required by the
Administrative Managers to open a Self Directed Fund account; and (V) amounts
reallocated to a participant's Self Directed Fund account may not have been in
the participant's Stable Value Fund account during the 90-day period prior to
the reallocation into the Self Directed Fund account.
Following a reallocation, amounts that have been transferred shall
retain the after-tax, before-tax, matching, or rollover character which was
attributable to such amounts immediately prior to the reallocation. For
investment reallocation directions filed effective with commencement of daily
valuation under the Investment Fund, any such reallocation direction shall
become effective on the valuation date coincident with or next following the
date on which such investment reallocation direction was made. A participant may
elect to make unlimited reallocations with respect to his accounts in any
calendar quarter.
22
A participant's reallocation request (as well as other requests and
elections permitted under this Section IV) may be made on such forms and in such
manner as permitted by the Administrative Managers, including through telephonic
notice procedures.
(v) rollover contributions:
----------------------
A. Any Employee who receives an "eligible rollover distribution" from
any qualified plan (or a conduit IRA that satisfies the conditions of Code
Section 408(d)(3)(A)(ii)) shall be eligible to make a rollover contribution of
such "eligible rollover distribution" to the Investment Fund. The Trustee shall
credit the amount of any rollover contribution to the participant's rollover
contributions account, in accordance with the participant's designation, as of
the date the rollover contribution is made.
B. The term rollover contribution means the contribution of an
"eligible rollover distribution" to the Trustee by the Employee or the trustee
of another "eligible retirement plan" (as defined in Section 402(c)(8)(B) of the
Code).
C. For purposes of this Section IV.(v), the term "eligible rollover
distribution" means:
1. part or all of the amount (other than nondeductible employee
contributions) received by such Employee or distributed
directly to this Plan on such Employee's behalf from an
employee plan and trust described in Code Section 401(a) which
is exempt from tax under Code Section 501(a) (or a conduit IRA
that satisfies the conditions of Code Section
408(d)(3)(A)(ii)).
In all events, such amount shall constitute an "eligible rollover distribution"
only if such amount qualifies as such under Code Section 402(c) and the
regulations and other guidance thereunder and is a distribution of all or any
portion of the balance to the credit of the Employee from the distributing plan
or conduit IRA other than any distribution: (1) that is one of a series of
substantially equal periodic payments (not less frequently than annually) made
for the life (or life expectancy) of the distributee or for a specified period
of ten years or more; (2) to the extent such distribution is required under Code
Section 401(a)(9); (3) to the extent such distribution is not includible in
gross income (determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities); or (4) that is made to a
non-spouse beneficiary.
23
2. Once accepted by the Trust, an amount rolled over pursuant to
this Section IV.(v) shall be credited to the participant's
accounts, and invested in the funds in accordance with the
participant's directions for such amounts. Thereafter, such
rolled over amounts shall be administered and invested in
accordance with Article IV and subject to the distribution
provisions set forth in Article VI. For purposes of Article VI,
except as otherwise provided in Paragraph G of Article VI,
rolled over amounts shall be subject to the same provisions as
a participant's before-tax subaccount. The limitations of
Article IV, Section (iii) and Article XII shall not apply to
rollover contributions. All rollover contributions shall be
made in cash and shall be fully vested. No Employer's matching
contributions shall be made with respect to rollover
contributions.
24
V. Employer's Matching Contributions
---------------------------------
A. Part A Participants. This Section V.A shall apply to Part A
participants and only to Part A participants. Such Part A participants who are
employed on the last day of a plan year (or who retire or experience a
disability during the plan year) or such other Part A participants as are
established by the Administrative Managers as eligible to receive a
discretionary Employer matching contribution may be eligible to receive a
discretionary Employer matching contribution based on their before-tax
contributions up to as much as 5% of salary. Whether such a discretionary
matching contribution shall be made, which Part A participants shall be eligible
to receive the discretionary matching contribution, how much of a Part A
participant's before-tax contributions (not exceeding 5% of salary) shall be
eligible for matching, how much the Employer shall contribute for each dollar of
before-tax contributions that are eligible for matching, and the other terms of
such a discretionary matching contribution, are entirely within the discretion
of the Administrative Managers, to be determined on an annual basis.
B. Part B Participants. This Section V.B shall apply to Part B
participants and only to Part B participants. Except as otherwise provided in
the last sentence of this paragraph, as of and as promptly as shall be
practicable after the close of each pay period, (a) each Employer shall pay to
the Trustee, as such Employer's matching contribution, the amount which will
enable CBS or its designee to effect the credits hereinafter in this Article V
referred to in the Employer matching contribution subaccounts of those Part B
participants whose required basic contributions shall be or shall have been paid
to the Trustee by such Employer as of such valuation date, and (b) CBS or its
designee shall credit such matching contributions to Part B participants'
Employer matching contributions subaccounts. Notwithstanding the foregoing
provisions of this Article V, no Employer shall make a matching contribution as
of any valuation date in excess of whichever shall be greater of the amount of
such Employer's earnings and profits for such Employer's taxable year in which
such valuation date shall occur or the amount of such Employer's earnings and
profits as of the end of such taxable year, prior, in either case, to any charge
for such contribution; if and to the extent that any Employer shall not be able
to make such a matching contribution because it shall have insufficient such
earnings and profits, the other Employers shall, in such proportions as the
Administrative Managers shall determine and subject to the same limitations
based upon their earnings and profits, make such matching contribution on behalf
of such first-mentioned Employer. With respect to a Part B participant for whom
the numerical total of his or her attained years of age plus the full years of
his or her continuous employment period is less than 55, the Employer's matching
contribution to be credited to such Part B participant's Employer matching
contribution subaccount shall be of a value equal to 100% of his or her required
basic contribution. With respect to a Part B participant whose required basic
contribution
25
is the maximum permitted amount of 2-1/2 percent of his or her salary and for
whom the numerical total of his or her attained years of age plus the full years
of his or her continuous employment period equals 55 or greater, the Employer's
matching contribution to be credited to such Part B participant's Employer
matching contribution subaccount shall be increased to be of a value equal to
(i) 120 percent of his or her required basic contribution if the Part B
participant has not attained age 50 or (ii) 160 percent of his or her required
basic contribution if the Part B participant has attained age 50. Such increased
rate of Employer's matching contribution shall become effective as of and as
promptly as shall be practicable after January 1 of the year in which a Part B
participant shall satisfy the one or several requirements for entitlement
thereto, but shall be made only if the total of the Part B participant's
required basic contribution election and voluntary supplemental contribution
election as then in effect, as a percentage of the Part B participant's salary,
equals or exceeds such increased rate. The manner for payment, conversion,
charging and crediting of Employer's matching contributions at such increased
rates shall be identical to that provided in the first sentence of this Article,
and the making thereof shall not be deemed to contravene the final sentence of
this paragraph. No Employer matching contributions shall be made with respect to
voluntary supplemental contributions or periodic special contributions of a Part
B participant.
C. Part C Participants. This Section V.C shall apply to Part C
participants and only to Part C participants. Effective as of the last business
day of each calendar month, for each dollar of required basic contributions a
Part C participant contributes on either an after-tax basis or a pre-tax basis,
his Employer shall contribute fifty cents (50(cent)) into the Part C
participant's Employer matching contributions account; provided that such
Employer Match Contribution may, at the discretion of the Administrative
Managers, be made in the form of shares of Viacom Inc. Stock equal in value to
the Employer matching contribution as determined based on the closing price of
Viacom Inc. Stock on the New York Stock Exchange as of the last business day of
such calendar month, rather than in cash, with respect to each Part C
participant (i) who is not represented by a labor organization or other
representative which is recognized by an Employer as a representative for the
purpose of collective bargaining, or (ii) who is represented by a labor
organization or other representative which is recognized by an Employer as
representative for the purpose of collective bargaining, to the extent that such
labor organization or other representative makes a request that represented Part
C participants be eligible for Employer matching contributions in the form of
shares of Viacom Inc. Stock and the Administrative Managers designated such
represented Part C participants as eligible for Employer matching contributions
in the form of shares of Viacom Inc. Stock.
26
D. Employer matching contributions and service credit with respect to
qualified military service will be provided in accordance with Section 414(u) of
the Code.
E. Effective January 1, 1997, Employer matching contributions which are
credited to a participant's Employer matching contributions subaccount shall be
invested in the Company Stock Fund. At any time following the date on which such
Employer matching contributions are credited to a participant's Employer
matching contributions subaccount, the participant may elect, in accordance with
Paragraph (iv) of Article IV to reallocate the amount of such Employer matching
contributions held in the Company Stock Fund to other investment alternatives
available under the Plan.
27
VI. Termination of Participation; Withdrawals;
Determination and Payment of Benefits
------------------------------------------
A.1. Nothing contained herein shall require any Employer to continue
any participant in its employ, or require any participant to continue in the
employ of any Employer, or require any Employer to continue to pay compensation
to any participant during a leave of absence, or require any Employer to pay
compensation to any participant during a leave of absence at the same rate as
prior to the commencement thereof. Except as otherwise provided in the next
sentence of this Paragraph A, if the employment of any participant by an
Employer shall terminate for any reason whatever, including his death, his
participation in the Investment Fund shall terminate as of the date of such
termination of employment. In any event, (a) if, concurrently with the
termination of the employment of a participant by any of the Employers, such
participant shall become an employee of a non-Fund subsidiary, or (b) if a
participant shall either (i) be transferred to a group of employees not
determined by the Board to be eligible to participate in the Investment Fund or
(ii) become an employee whose principal terms and conditions of employment are
subject to the terms of a collective bargaining agreement which does not provide
for eligibility for participation in the Investment Fund, his participation in
the Investment Fund shall not terminate until the business day on which he shall
no longer be an Employee of any of the Employers or an employee of any non-Fund
subsidiary and he shall be deemed to have suspended his contribution election as
then in effect for those of his consecutive payroll periods which shall be
co-extensive with the period during which he shall be an employee of a non-Fund
subsidiary or any employee included in such an ineligible group or an employee
whose principal employment terms and conditions are subject to such a collective
bargaining agreement, as the case may be, and such contribution election shall
not be subject to renewal during such payroll periods.
Notwithstanding the preceding paragraph or any other provisions of
the Plan to the contrary, if a participant's employment with an Employer is
terminated due to the transfer by CBS of certain in-house functions to a
corporation or other service provider which is not an affiliated company of CBS,
such participant shall be treated as having "separated from service" for
purposes of section 401(k)(2)(B)(i)(I) of the Code and shall be eligible for a
termination benefit in accordance with Paragraph C.
B.1. A participant may file with CBS or its designee a request to have
paid to him the amount equal to whichever shall be the lesser of (a) the amount
specified in, or computed in accordance with, such request, or (b) the amount
equal to the sum of the value as of the most recent valuation date following
receipt by CBS or its designee of the participant's request (in accordance with
the Administrative Managers' processing rules)
28
of the participant's after-tax subaccounts (but excluding amounts in the
participant's Self Directed Fund account). Such request shall specify the
extent, if any, to which after-tax subaccount amounts in each of the Funds (not
including the Self Directed Fund) shall respectively be charged to effect such
withdrawal. The Administrative Managers shall, as of and as promptly as shall be
practicable after such valuation date, effect the charges so specified to such
accounts, and make such payment to such participant. After a participant has
attained age 59-1/2, the foregoing provisions limiting the right of withdrawal
to the amount of the after-tax subaccounts shall lapse, and the withdrawal may
be requested and effected of amounts which include the value of the
participant's before-tax, vested Employer matching contributions, and rollover
contributions subaccounts as well as his after-tax subaccounts then credited to
such participant's accounts. A participant's Self Directed Fund account is not
available as a source of withdrawals.
For purposes of this Paragraph B.1 of Article VI, a participant's
withdrawal request may be made solely through the telephonic notice procedures
(including with participants' consents through endorsement or deposit of the
distributed amounts) in the manner prescribed by the Administrative Managers.
Notwithstanding the foregoing, if a participant's request is made pursuant to
such telephonic notice, the amount payable to such participant shall be based on
the value of the participant's subaccounts as of the valuation date determined
in accordance with the valuation procedures established by the Administrative
Managers and the Trustee for processing such requests. The amount withdrawn
shall be charged on a pro rata basis to each fund in the participant's account
if the participant's request is made pursuant to telephonic notice, unless the
participant separately provides notice to the Administrative Managers or its
designee that the amount withdrawn is to be charged to a specific fund or funds.
A participant may make no more than two withdrawal requests under
this Paragraph B.1 in any calendar year.
2. Prior to his attainment of age 59-1/2, a participant who has
already withdrawn the maximum amount allowable under this Article VI may, in
accordance with the foregoing procedures, request a withdrawal, to meet a bona
fide financial emergency, of amounts in the participant's before-tax, vested
Employer matching contributions, and rollover contributions subaccounts thereof.
Any such withdrawal request may be made on such forms and in such manner as
prescribed by the Administrative Managers, including through telephonic notice
procedures (which shall include participants' consents through endorsement or
deposit of the withdrawn amounts). Any withdrawal request granted under this
Paragraph B.2 shall be deemed to be one of the two withdrawal requests under
Paragraph B.1 for the calendar year. In considering and making
29
determinations upon such hardship requests, the Administrative Managers will act
on the basis of positive evidence which the participant will be required to
furnish, and will make its determinations on a uniform and nondiscriminatory
basis. Consent for such hardship withdrawals will be granted if and only to the
extent that the Administrative Managers determine that (i) the distribution is
necessary in light of immediate and heavy financial needs of the participant,
(ii) the distribution will not exceed the amount required to meet such financial
needs, and (iii) funds to meet such financial needs are not reasonably available
from other resources of the participant. Such determination shall be made in
accordance with the following guidelines:
(a) Demonstration of Need. The participant must establish an
immediate and heavy financial need for a withdrawal of funds pursuant
to this section. The Administrative Managers shall determine, in a
nondiscriminatory manner and in accordance with the provisions of
Section 401(k) of the Code, whether a participant has a financial
hardship. For this purpose, the term "financial hardship" shall be
determined in accordance with the regulations issued pursuant to
Section 401(k) of the Code and any other notices or rulings of general
applicability issued under Section 401(k) of the Code and, to the
extent permitted by such regulations, shall be limited to any financial
need arising from: (1) medical expenses previously incurred or expenses
necessary to obtain medical care not covered by insurance and arising
from serious illness, accident or total disability of the participant
or any member of his family, (2) expenses relating to the payment of
tuition for the next 12 months of post-secondary education of a
participant, his spouse or dependent, (3) the expenses (excluding
mortgage payments) required for the purchase of a primary residence for
the participant, or (4) expenses relating to the need to prevent the
eviction of the participant from his principal residence or foreclosure
on the mortgage of the participant's principal residence.
(b) Amount of Hardship Withdrawal. The amount of any
withdrawal by a participant under subsection (a) above shall not exceed
the amount required to meet the immediate financial need created by the
hardship. In no event may the amount of any withdrawal exceed the
lesser of: (1) the total value of the participant's before-tax
contributions determined as of December 31, 1988 (taking into account
earnings and losses attributable to such amounts), plus the total
amount of the participant's before-tax contributions that are made
after December 31, 1988, or (2) the value of all before-tax
contributions made to the Plan (taking into account earnings and losses
attributable to such amounts).
30
(c) Availability of Other Resources. In order to make a
withdrawal under this paragraph, the participant must establish that he
cannot relieve the financial hardship with assets that are reasonably
available to the participant from other resources of the participant.
For this purpose, the Administrative Managers may reasonably rely upon
a participant's representation that the financial hardship cannot be
relieved through: (i) reimbursement or compensation by insurance or
otherwise, (ii) reasonable liquidation of the participant's assets, to
the extent such liquidation would not itself cause an immediate and
heavy financial need, (iii) cessation of before-tax contributions and
after-tax contributions under the Investment Fund, or (iv) nontaxable
(at the time of the loan) loans from plans maintained by the Employer
or by any other employer or by borrowing from commercial sources on
reasonable commercial terms (except to the extent any such borrowing
would fail to alleviate the hardship or the repayment of such borrowing
would cause a financial hardship). A participant's resources shall be
deemed to include those assets of his spouse and minor children that
are reasonably available to the participant. In the absence of such
representations, a participant shall be deemed to have no other
resources reasonably available if: (i) the participant has obtained all
withdrawals, distributions and loans currently available to the
participant under the Investment Fund and all other plans maintained by
the Employer or an affiliated company (except to the extent any such
borrowing would fail to alleviate the hardship or the repayment of such
borrowing would cause a financial hardship); and (ii) the amount of the
participant's before-tax contributions under the Investment Fund and
under all plans maintained by the Employer or an affiliated company for
the year following the year of the withdrawal are limited to the
applicable limit under Section 402(g) of the Code for such year minus
the participant's before-tax contributions for the year of the hardship
withdrawal.
C.1. Except as otherwise provided in Paragraph E of this Article VI,
each participant whose employment (and participation) shall terminate at any
time for any reason whatever shall be entitled to receive as a termination
benefit the amount equal to the value on the valuation date immediately
following or coincident with his termination date of the amounts credited to his
before-tax subaccounts, after-tax subaccounts, and rollover contribution
subaccounts, all as of such termination date; provided that, amounts must have
been reallocated from his Self Directed Fund account to another available Fund
before such amounts are available for distribution.
2. Except as otherwise provided in Paragraph E of this Article VI,
each participant whose employment (and participation) shall terminate either (a)
for any reason on or subsequent to his 65th birthday or (b) at any time by
reason of his death or his
31
disability or (c) at any time prior to his 65th birthday when his continuous
employment period shall be three or more years, shall be entitled to receive as
a termination benefit the amount equal to the value on the valuation date
immediately following or coincident with his termination date of the amounts
credited to his Employer matching contributions subaccounts; provided that,
amounts must have been reallocated from his Self Directed Fund account to
another available Fund before such amounts are available for distribution.
3. Except as otherwise provided in Paragraph E of this Article VI,
each participant whose employment (and participation) shall terminate, other
than by reason of his death or his disability, at any time prior to his 65th
birthday when his continuous employment period shall be less than three years,
shall be entitled to receive as a termination benefit the amount equal to the
value on the valuation date immediately following or coincident with his
termination date of the vested amounts credited to his Employer matching
contributions subaccounts as of such termination date. If a participant
terminates employment prior to the date on which he is fully vested in his
account and receives a distribution of such account, the Administrative Managers
shall, as of and as promptly as shall be practicable after such valuation date,
charge to such former participant's Employer matching contributions subaccount
and credit to his Employer's matching contributions forfeiture account, the
unvested Employer matching contributions units credited to such former
participant's Employer matching contributions subaccount as of such termination
date; provided, however, that if such participant returns to employment before
incurring five consecutive one-year breaks-in-service, he shall be entitled to
repay to the Investment Fund the amount of his termination benefit attributable
to his Employer matching contributions subaccount if such repayment is made
prior to the fifth anniversary of his resumption of employment. In that event,
such participant shall have credited to his Employer matching contributions
subaccount the unvested Employer matching contributions amounts which were
credited to his account as of his prior termination date and the Employer's
matching contributions forfeiture account shall be charged in an identical
amount.
D. Upon the termination of a participant's employment (and
participation) at any time for any reason whatever, and upon the termination of
a participant's employment (but not his participation) under the circumstances
referred to in the third sentence of Paragraph A of this Article VI, his
Employer shall repay to such former participant (or, in the event of his death,
to his executors or administrators) or to such participant any amounts withheld
or deferred from his salary, pursuant to a contribution election in effect prior
to such termination, which have not been transferred to the Trustee.
32
E.1. (a) Any participant may file with CBS an election to have his
termination benefit (other than a termination benefit payable by reason of his
death) paid in a single payment or in a series of monthly or annual installments
over a period not exceeding the lesser of 20 years or the life expectancy of
such participant or the life expectancy of such participant and any individual
designated as a beneficiary by such participant, provided that if the
beneficiary is not the spouse of the participant, the present value of the
installments payable to the participant shall at least equal 50 percent of the
present value of the total installments payable to the participant and his
beneficiary. Such single payment or the first such installment payment shall be
made at the time specified in such election but not later than April 1 of the
calendar year following the later of the calendar year in which such participant
attains age 70-1/2, or the year in which such participant retires. If a
participant is receiving his termination benefit in a series of installments and
dies before his entire interest has been distributed to him, the balance of his
termination benefit shall continue to be paid in such installments or, if his
beneficiary so elects, in a single payment. The value of his termination
benefit, if made in a single payment, shall be determined as of the valuation
date determined in accordance with the procedures established by the
Administrative Managers and the Trustee for processing distributions. The
valuation date for any installment payment shall be the valuation date on which
the installment payment is processed, in accordance with procedures established
by the Administrative Managers and the Trustee.
(b) Any participant may file with CBS an election to have a termination
benefit payable by reason of his death paid in a single payment to be paid to
his beneficiary at the time specified in such election but not later than five
years after the date of his death or in a series of monthly or annual
installments to an individual designated as his beneficiary over a period not
exceeding the lesser of 20 years or the life expectancy of such beneficiary and
beginning at the time specified in such election but not later than one year
after the date of his death (or if the participant's beneficiary is his
surviving spouse, the date on which the participant would have attained age
70-1/2).
(c) Any participant may also, not less than 30 days prior to his
termination date, modify or revoke any distribution election theretofore made by
him. If any participant shall not have a distribution election in effect on his
termination date, his termination benefit shall be paid to him (or in the event
of his death, to his beneficiaries) in a single payment, provided, that if the
value on the valuation date coincident with or immediately following such
termination date of the amounts credited to his Fund accounts as of such
termination date (or as of the date of any prior distribution or withdrawal)
shall exceed $5,000, his termination benefit shall not be immediately
distributed without his consent. If any participant does not
33
consent to such a distribution, the termination benefit will not be paid until
the earliest of his attainment of age 70-1/2, his consent to a distribution, or
his death. Upon the earliest of such dates, his entire termination benefit shall
be paid to him or his beneficiary in accordance with the participant's
distribution election. The value of his termination benefit shall be determined
as of the earliest to occur of the valuation date coincident with or (i)
immediately following his attainment of age 70-1/2, or (ii) immediately
following the receipt by CBS of his consent to an immediate distribution, in
accordance with the procedures established by the Administrative Managers and
the Trustee for processing distributions, or (iii) immediately following his
death.
(d) Prior to July 1, 1997, for the sole purpose of determining a
participant's entitlement to a distribution under this Article VI, except as
provided below, no distribution shall be permitted upon the sale or other
business disposition by CBS or an affiliated company of a trade or business or
the sale by CBS or an affiliated company of its interest in a subsidiary, with
respect to a participant who is employed by such trade or business or subsidiary
immediately prior to such sale or disposition and who continues in the employ of
(i) the employer that acquires the assets of such trade or business or acquires
the interest of such subsidiary or (ii) any other entity related to such
employer.
Notwithstanding the preceding paragraph or any other provisions of the
Plan, for the sole purpose of determining a participant's entitlement to a
distribution of his entire account under this Article VI, a distribution may be
made on account of the disposition of WCAU-TV, WCIX-TV (provided, however, that
this provision shall not apply to any employee of WCIX-TV who had not received a
distribution as of November 24, 1995 and who continues in the employ of the
corporation that acquired WCIX-TV), WPRI-TV, KTXQ-FM, KRRW-FM, KKRW-FM, or
KLOU-FM with respect to any participant whose employment with an Employer is
terminated due to such disposition and who continues in the employ of the
corporation that acquires WCAU-TV, WCIX-TV, WPRI-TV, KTXQ-FM, KRRW-FM, KKRW-FM,
or KLOU-FM.
On and after July 1, 1997, a participant shall be entitled to a
distribution upon (i) the sale or other business disposition by CBS or an
affiliated company of at least 85 percent of the assets used by CBS or the
affiliated company in a trade or business to an unrelated corporation which does
not maintain the Plan, but only if the participant continues in the employ of
the employer that acquires the assets of such trade or business or any other
entity related to such employer and only if CBS continues to maintain this Plan,
or (ii) the sale or other disposition by the employer of its interest in a
subsidiary to an unrelated entity which does not maintain the Plan, but only if
the participant continues
34
in the employ of the employer that acquires the interest of such subsidiary or
any other entity related to such employer and only if CBS continues to maintain
this Plan.
In accordance with the requirements of Code section 401(k) and the
regulations thereunder, distributions on account of the disposition of WCAU-TV,
WCIX-TV, WPRI-TV, KTXQ-FM, KRRW-FM, KKRW-FM, KLOU-FM or any disposition
described in the immediately preceding paragraph shall be only in the form of a
single sum distribution, and may not be made in the form of installments, as
described in Section E.1.(a) of this Article. In addition, in order for a
participant to receive a distribution on account of such dispositions, the
participant must properly elect to receive such distribution no later than the
end of the second calendar year after the calendar year in which the applicable
disposition occurred.
(e) To the extent distributions commence in the form of a series of
monthly or annual installments, the Self Directed Fund shall not be available
thereafter as an investment option for amounts not yet distributed.
2 . (a) A distribution election shall be set forth in a written
notice given to CBS and, if made, such notice shall be given during the 90-day
period before the date the payment of his termination benefit shall commence,
which period shall be extended, if necessary, to include at least the 90 days
after the date the information referred to in section (b) of this subparagraph 2
shall have been given to such participant; provided, however, that if such
participant shall have given notice less than 90 days before the date on which
the payment of his termination benefit shall commence of his intent to terminate
employment, such election period shall end on the later of such date or the 30th
day after the date on which such notice shall have been given, which period
shall be extended, if necessary, to include at least 30 days after the
information referred to in section (b) of this subparagraph 2 shall have been
given to such participant. Elections hereunder shall be revocable during such
election period.
Notwithstanding the foregoing, distribution of a participant's account
under the Plan may occur prior to thirty (30) days after the Administrative
Managers provide notice pursuant to section (b) of this subparagraph 2,
provided:
(i) The Administrative Managers inform the participant that he has
a right to a period of at least thirty (30) days after receiving the
notice to consider the decision of whether to receive an immediate
distribution; and
(ii) the participant, after receiving the notice, affirmatively
elects to receive an immediate distribution.
35
(b) Within seven days after the commencement of such election
period, or, if earlier, nine months prior to a participant's attainment
of age 55, such participant shall be furnished with a notice written in
non-technical terms of the availability of the distribution election.
3. Any participant may, in accordance with the provisions of section
(a) of subparagraph 2 of this Paragraph E, file with CBS an election to have
that portion of his termination benefit consisting of amounts credited to his
Company Stock Fund account paid to him (or, in the event of his death, to his
beneficiaries), to the extent possible, in shares of Viacom Inc. Stock in lieu
of in cash ("a stock election"). Any participant may also, in accordance with
such provisions of said section (a), revoke any such election theretofore made
by him.
4. Notwithstanding any other provisions of Paragraph E of this
Article VI, if a participant is married, any designation of a beneficiary other
than the participant's spouse shall be given effect only if such spouse consents
in writing to such designation and such consent acknowledges that such spouse is
thereby waiving in favor of such other beneficiary the right to receive the
amount payable hereunder upon the death of the participant and such consent is
witnessed by a notary public. The preceding sentence shall not apply to a
designation by a participant who establishes to the satisfaction of the
Administrative Managers that his spouse cannot be located. No designation of a
beneficiary made before a participant is married shall be given effect after the
participant becomes married.
5. Notwithstanding any other provision of Paragraph E of this Article
VI, a participant shall be deemed to have filed all distribution election forms
or requests and any subsequent modifications or revocations (other than the
designation of beneficiary described in subparagraph 3 of this paragraph E) by
providing telephonic notice in the manner prescribed by the Administrative
Managers (which shall include participants' consents through endorsement or
deposit of the distributed amounts). Notwithstanding the foregoing, if a
participant's request is made pursuant to such telephonic notice, the value of
such participant's termination benefit shall be based on the value of the
participant's termination benefit as of the valuation date determined in
accordance with the valuation procedures established by the Administrative
Managers and the Trustee for processing such requests.
F.1. If any former participant shall have in effect a distribution
election referred to in section (b) of subparagraph 1 of Paragraph E of this
Article VI, or if any
36
former participant shall have in effect a distribution election referred to in
section (a) of said subparagraph 1 and shall die prior to the payment of his
termination benefit in full:
(a) As of and as promptly as shall be practicable after the
valuation date immediately following or coincident with such former
participant's termination date (if such distribution election shall be
one referred to in said section (b)) or the valuation date immediately
following or coincident with the date of such former participant's
death (if such distribution election shall be one referred to in said
section (a) and such participant shall die prior to the payment of his
entire termination benefit in full), as the case may be:
(i) The Administrative Managers shall determine the value
of the amounts credited to such former participant's accounts
as of such termination date or as of the date of the death of
such former participant, as the case may be.
(ii) The Administrative Managers shall charge such
amounts, to the extent vested, to such respective accounts.
(iii) If such distribution election shall be one referred
to in said section (a) or said section (b), the Trustee shall
pay to such former participant or his beneficiaries, as the
case may be, the amounts so charged.
(b) If a stock election of such former participant shall be
in effect, as of and as promptly as shall be practicable after the
applicable valuation date referred to in section (a) of this
subparagraph 1:
(i) The Trustee shall distribute to such former
participant or his beneficiaries, as the case may be, the
largest possible number of full shares of Viacom Inc. Stock,
registered in the name of such former participant or his
beneficiaries, along with cash for fractional shares, the
total value of which shall be equal to the value of the
amounts credited to his Company Stock Fund account as of the
valuation date or as of the date of the death of such former
participant, as the case may be.
(ii) The Administrative Managers shall charge the amounts
so distributed to the Company Stock Fund account of such
former participant.
37
2. If any former participant shall have in effect a distribution
election referred to in section (a) of subparagraph 1 of Paragraph E of this
Article VI:
(a) As of and as promptly as shall be practicable after the
valuation date immediately following or coincident with such former
participant's termination date or the filing by such participant of the
aforementioned distribution election, whichever shall be the later, and
(I) if such distribution election shall be one requiring monthly
installments, as of and as promptly as shall be practicable after each
subsequent valuation date or (II) if such distribution election shall
be one requiring annual installments, as of and as promptly as shall be
practicable after each subsequent valuation occurring during the same
calendar month as such first-mentioned valuation date, and in either
case, to and including the valuation date as of which such former
participant's termination benefit shall have been paid in full, or to
and including the valuation date immediately following the date of such
former participant's death (if such former participant shall die prior
to the payment of his termination benefit in full), as the case may be:
(i) The Administrative Managers shall determine the
vested amounts then credited to such former participant's
accounts.
(ii) The Trustee shall pay to such former participant or
his beneficiaries, as the case may be, that fraction of the
respective amounts determined pursuant to the provisions of
subsection (i) of this section (a) the numerator of which
shall be one and the denominator of which shall be the total
number of installments specified to be paid in the
distribution election of such former participant minus the
number of such installments paid as of valuation dates prior
to the valuation date first referred to in this section (a).
(iii) The Administrative Managers shall charge to the
Fund accounts of such former participant the fraction
determined pursuant to the provisions of subsection (ii) of
this section (a) of the respective amounts credited to such
accounts as of the valuation date first referred to in this
section (a) and make corresponding charges (net of
applicable fees) to the Fund accounts.
(b) If a former participant's distribution election shall be
one requiring monthly or annual installments, no stock election shall
be available under this Paragraph F.
38
3. All payments made by the Trustee to any former participant (and/or
his beneficiaries) pursuant to the foregoing provisions of this Paragraph F
shall be subject to such withholding and to such other deductions as shall at
the time of such payment be required by reason of any income tax or other law,
whether of the United States or of any other jurisdiction, and, in the case of
payments to beneficiaries of former participants, the delivery to the Trustee of
all appropriate tax waivers and other documents.
4. Notwithstanding anything contained herein to the contrary, the
payment of any benefits to any former participant (and/or his beneficiaries)
shall commence, unless such former participant (and/or his beneficiaries) shall
elect otherwise hereunder, not later than the 60th day after the close of the
calendar year in which occurs his 65th birthday or his retirement in a calendar
year thereafter, whichever shall last occur.
5. Notwithstanding anything contained herein to the contrary, if a
participant shall attain age 70-1/2 on or after January 1, 1988 and prior to
January 1, 1997, whether or not such participant continues as an Employee, such
participant shall commence receiving minimum required distributions in
accordance with the requirements of Section 401(a)(9) of the Code and the
regulations and other guidance thereunder unless such participant had not
received any minimum required distributions as of December 31, 1996. If such
participant fails to request a withdrawal in accordance with the otherwise
applicable provisions of Article VI, he shall receive minimum distributions for
each year beginning no later than April 1 of the calendar year following the
year in which he attains age 70-1/2 and by each December 31 thereafter based on
the participant's life expectancy determined without recalculation. Such minimum
required distributions shall continue to be made until the participant's entire
interest has been paid. In all events, distributions will comply with the
incidental death benefits requirements of Section 401(a)(9)(G) of the Code and
the regulations issued thereunder.
If a participant shall attain age 70-1/2 on or after January 1, 1997
and/or attained age 70-1/2 on or after January 1, 1996 and has not commenced
receiving minimum required distributions in accordance with Section 401(a)(9) of
the Code prior to January 1, 1997, such participant shall commence receiving
minimum required distributions in accordance with the requirements of the Code
and the regulations and other guidance thereunder not later than the April 1
following the close of the later of (i) the calendar year in which the
participant attains age 70-1/2, or (ii) the calendar year in which the
participant terminates employment.
6. Any benefits payable to a participant or beneficiary which are not
claimed for a period of five years from the date of entitlement, as determined
by the
39
Administrative Managers and following a diligent effort to locate such
participant or beneficiary, shall with the approval of the Administrative
Managers be charged to such former participant's or beneficiary's accounts and
credited to his Employer's matching contributions forfeiture account; provided,
however, that if a claim for such forfeited benefits is made by the participant
or beneficiary, all such amounts shall be reinstated to the accounts of the
participant or beneficiary.
7. If the Administrative Managers shall determine that a participant,
terminated participant, or any other person entitled to a benefit under the
Investment Fund (the "Recipient") is unable to care for his affairs because of
illness, accident, or mental or physical incapacity, or because the Recipient is
a minor, the Administrative Managers may direct that any benefit payment due the
Recipient be paid to his duly appointed legal representative; or if no such
representative is appointed, to the Recipient's spouse, child, parent, or other
blood relative, or to a person with whom the Recipient resides or who has
incurred expense on behalf of the Recipient. Any such payment so made shall be a
complete discharge of the liabilities of the Investment Fund with respect to the
Recipient.
8. Notwithstanding any other provision of Paragraph F of this Article
VI, a participant shall be deemed to have filed all distribution election forms
or requests and any subsequent modifications or revocations by providing
telephonic notice in the manner prescribed by the Administrative Managers (which
shall include participants' consents through endorsement or deposit of the
distributed amounts). Notwithstanding the foregoing, if a participant's request
is made pursuant to such telephonic notice, or such other procedure as may be
designated by the Administrative Managers to satisfy the requirements of this
subparagraph 8, the value of such participant's termination benefit shall be
based on the value of the participant's termination benefit as of the valuation
date determined in accordance with the valuation procedures established by the
Administrative Managers and the Trustee for processing such requests.
G.1. The Administrative Managers may determine to make a loan to any
participant who then qualifies as an Employee under Article IX, Paragraph A,
subparagraph 36, or is otherwise a "party in interest" with respect to the
Investment Fund under Section 3(14) of ERISA. The total amount of each loan will
be subject to the following rules:
(a) The loan must be for a minimum of $1,000. Loans above the
minimum amount may be made only in multiples of $100.
(b) The maximum amount of the loan will be limited to the
lesser of:
40
(i) $50,000 (reduced by the highest outstanding balance
of any loan from the Investment Fund during the one-year
period ending on the date before the date such loan is
made), or
(ii) one-half of the market value of the vested portions
of all the participant's separate accounts on the valuation
date determined in accordance with the valuation procedures
established by the Administrative Managers and the Trustee
for processing loan requests.
(c) A participant may have only two outstanding loans at any
one time and may not have more than one loan per calendar year. One of
the outstanding loans must be for a primary residence.
2. Any loan to a participant shall be secured by the pledge of all
the participant's right, title and interest in the vested portion of the
participant's accounts in the Investment Fund, provided, however, that in no
event shall more than 50 percent of the vested portion of the participant's
account, determined at the time the loan is made, be pledged as collateral for
the loan. Such pledge shall be evidenced by the execution of a promissory note
by the participant, which promissory note shall provide that, in the event of
any default by the participant on a loan repayment, the Administrative Managers
shall be authorized (to the extent permitted by law) to deduct the amount of the
loan outstanding and any unpaid interest due thereon from the participant's
wages or salary to be thereafter paid by the Employer, and to take any and all
other actions necessary and appropriate to enforce collection of the unpaid
loan. Such promissory note also shall provide that, in the event that a
participant is eligible for and elects a direct rollover to a qualified plan of
another employer in accordance with Paragraph VI.H. of the Plan, the promissory
note may be assigned by the Plan's Trustee to the trustee of the qualified plan
if such qualified plan agrees to accept a direct rollover of the indebtedness
evidences by such promissory note.
3. There shall be deducted from the accounts of a participant to whom
a loan is made an amount having a value equal to the principal amount of the
loan plus any loan set-up charge implemented by the Administrative Managers. The
proceeds of any loan shall be charged against the accounts of the borrowing
participant according to the order in which items (i) and (ii) are presented, as
the amounts described in each successive paragraph are exhausted: (i) before-tax
subaccounts; (ii) rollover subaccounts; (iii) after-tax subaccounts; and (iv)
Employer matching contributions subaccounts. The loan proceeds shall be deducted
from the various investment funds in which the participant's accounts are
invested on a pro rata basis. However, the Self Directed Fund is not available
as a source for loan proceeds.
41
4. The rate of interest charged on any loan to a participant shall be
a reasonable rate of interest determined by the Administrative Managers taking
into consideration interest rates being charged under generally prevailing
market conditions. The Administrative Managers shall not discriminate among
participants in the matter of interest rates, but loans granted at different
times may bear different interest rates if, in the opinion of the Administrative
Managers, the difference in rates is justified by a change in general economic
conditions.
5. Loans shall be repaid in accordance with the following procedures:
(a) Any loan to a participant shall be repaid within five
years of the date on which the loan is made (or upon the participant's
termination of employment with Employer, if earlier), except that in
the case of a loan to a participant that is used to acquire a principal
residence of the participant, such loan may be repaid over a longer
period of time, not to exceed 15 years, as determined by the
Administrative Managers. Repayments of principal and interest on any
loan shall be made by substantially level payments (not less frequently
than quarterly) by payroll deduction and shall be applied to reduce the
principal as well as the accrued interest of the loan. Notwithstanding
the foregoing, any participant whose employment with an Employer is
terminated due to the disposition of WCAU-TV or WCIX-TV and who
continues in employment with the entity which acquires WCAU-TV or
WCIX-TV shall be permitted to continue repayment of any loan
outstanding at the time of such disposition under the loan's original
repayment schedule. Such repayment schedule may continue for so long as
the acquiring entity provides a payroll deduction system whereby such
participant can continue such repayments. In the event that such
payroll deduction becomes unavailable or the Administrative Managers
determine that any affected participant's loan will not be repaid
through substantially level payments not less frequently than
quarterly, the provisions of subparagraph 6 shall apply.
(b) If a participant is transferred from employment with an
Employer to employment with an Affiliated Company or another entity
affiliated with the Employer as the Administrative Managers in their
discretion may determine, he shall not be treated as having terminated
employment and the Administrative Managers shall make arrangements for
the loan to be repaid in accordance with the loan agreement. For this
purpose, the Administrative Managers may, but are not required to,
authorize the transfer of the loan to a qualified plan maintained by
such Affiliated Company. In the absence of such arrangements,
42
the loan shall be deemed to be in default, and shall be subject to the
provisions of subparagraph 6.
(c) The Administrative Managers shall have the sole
responsibility for assuring that a participant timely makes all loan
repayments. Each loan repayment shall be paid to the Investment Fund,
and shall be accompanied by written instructions from the
Administrative Managers that: (1) identify the participant on whose
behalf the loan repayment is being made; and (2) specify the separate
accounts of the participant to which the loan repayment should be
credited and the investment of the loan repayment in accordance with
the investment procedures of Article IV.
(d) A participant may prepay the entire outstanding loan
balance with respect to the loan at any time without penalty.
(e) The Administrative Managers may implement a reasonable
loan set-up charge for all loans.
6. In the event of a default by a participant on a loan repayment,
all remaining payments on the loan shall be immediately due and payable. In the
case of any participant who is not entitled to a distribution under Article VI,
the Administrative Managers shall, to the extent permitted by law, deduct the
total amount of the loan outstanding and any unpaid interest due thereon from
the wages or salary payable to the participant by the Employer in accordance
with the participant's promissory note. In addition, the Administrative Managers
shall take any and all other actions necessary and appropriate to enforce
collection of the unpaid loan, although foreclosure on the note and attachment
of security shall not occur until a distributable event occurs under the
Investment Fund with respect to before-tax contributions. In the case of any
participant or beneficiary who is entitled to a distribution or withdrawal under
Article VI, the Administrative Managers shall deduct the total amount of the
loan outstanding and any unpaid interest due thereon from the amounts to be
distributed from the participant's separate accounts under the Investment Fund
in order to satisfy the amount due.
7. A request by a participant for a loan shall be made in such manner
(including telephonic notice) as the Administrative Managers may prescribe and
shall specify the amount of the loan. The terms and conditions on which the
Administrative Managers shall approve loans shall be applied on a uniform and
reasonably equivalent basis with respect to all participants. Notwithstanding
the foregoing, the Administrative Managers or its representatives may apply
different terms and conditions for loans to Employees who are not actively
employed by an Employer, or for whom payroll
43
deduction is not available, based on economic and other differences affecting
the individuals' ability to repay any loan.
If a participant's request for a loan is approved by the Administrative
Managers, the Administrative Managers shall cause the loan to be made in a lump
sum payment of cash to the participant. A participant's consent to the terms of
any such loan may be evidenced by the participant's consent through endorsement
or deposit of the loan proceeds.
Effective October 1, 1999, the Administrative Managers have retained
Dreyfus Service Corporation ("Dreyfus") to administer the loan program
established in this Article VI, Paragraph G. As soon as practicable after
October 1, 1999, all participant requests for loans shall be directed to
Dreyfus. Loan administration shall be undertaken by Dreyfus as soon as
administratively practicable after October 1, 1999.
8. All loan repayments by the participant shall be credited to such
separate accounts and reinvested in accordance with the Employee's investment
directions pursuant to Article IV, Part (i), Paragraph (B).
9. Notwithstanding the foregoing, no loan shall be made to a
participant during the period in which the Administrative Managers are making a
determination of whether a domestic relations order affecting the participant's
account is a qualified domestic relations order, within the meaning of Section
414(p) of the Code. Further, if the Administrative Managers are in receipt of a
qualified domestic relations order with respect to any participant's accounts,
they may prohibit such participant from obtaining a loan until the alternate
payee's rights under such order are satisfied.
10. In the event that a payment is required to be made to a
beneficiary upon the death of a participant or an alternate payee pursuant to a
qualified domestic relations order, within the meaning of Section 414(p) of the
Code, while the participant whose account is the subject of such order has a
loan outstanding, the Administrative Managers, in their discretion, may direct
that the participant's promissory note be transferred to the beneficiary or the
alternate payee, as applicable.
44
H.1. At the request (which shall include a request made pursuant to
telephonic notice procedures established by the Administrative Managers) of a
distributee (which shall mean a participant, a surviving spouse of a
participant, or a spouse or former spouse of a participant that is an
alternative payee under a qualified domestic relations order), and upon consent
of the Administrative Managers, the Trustee shall effectuate a direct rollover
distribution of the amount requested by the distributee, in accordance with
Section 401(a)(31) of the Code, to an eligible retirement plan (as defined in
Section 402(c)(8)(B) of the Code). Such amount may constitute all or part of any
distribution otherwise to be made hereunder to the distributee, provided that
such distribution constitutes an "eligible rollover distribution," as defined in
Section 402(c) of the Code and the regulations and other guidance issued
thereunder. All direct rollover distributions shall be made in accordance with
the following subparagraphs 2 through 6. For purposes of this Paragraph H, the
following terms have the following meanings:
(a) The term "eligible rollover distribution" means any
distribution of all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does not
include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for
the life (or life expectancy) of the distributee or for a specified
period of 10 years or more; or any distribution to the extent such
distribution is required under Section 401(a)(9) of the Code; or any
distribution to the extent such distribution is not includible in gross
income (determined without regard to the exclusion for net unrealized
appreciation with respect to Employer securities).
(b) The term "eligible retirement plan" means an individual
retirement account described in Section 408(a) of the Code, an
individual retirement annuity described in Section 408(b) of the Code,
or a qualified trust described in Section 401(a) of the Code, that
accepts the distributee's eligible rollover distribution. However, in
the case of an eligible rollover distribution to a surviving spouse, an
eligible retirement plan is an individual retirement account or
individual retirement annuity.
2. A direct rollover distribution shall only be made to one
eligible retirement plan; a distributee may not elect to have a direct rollover
distribution apportioned between or among more than one eligible retirement
plan.
3. Direct rollover distributions shall be made in cash in the
form of a check made out to the trustee of the eligible retirement plan, in
accordance with procedures established by the Administrative Managers, plus
shares of Viacom Inc. Stock otherwise distributable hereunder to the
distributee, which shares shall be registered in a manner
45
necessary to effectuate a direct rollover under Section 401(a)(31) of the Code.
In addition, if a participant's employment with an Employer is terminated due to
the transfer by CBS of certain in-house functions to a corporation or other
service provider which is not an affiliated company of CBS and if the direct
rollover is to be made to a qualified trust described in Section 401(a) of the
Code, a direct rollover distribution may include a promissory note evidencing
the distributee's indebtedness under the provisions of Paragraph VI.G. of the
Plan.
4. Amounts attributable to after-tax Employee contributions shall be
distributed directly to the distributee and may not be distributed in a direct
rollover distribution.
5. No direct rollover distribution shall be made unless the
distributee furnishes CBS with such information as the Administrative Managers
shall require, including but not limited to: the name of the recipient eligible
retirement plan, a representation from a representative of the recipient plan
that it is an eligible retirement plan, and any account number or other
identifying information.
6. If a distributee's distribution is otherwise to be paid in the
form of installment payments, the distributee must make a separate direct
rollover distribution request with respect to each calendar year during which
installment payments are made.
7. If a distributee does not elect a direct rollover distribution
within 60 days following the date that such amounts first become available for
distribution, and the participant's account balance is not greater than $5,000,
the participant's account balance shall be paid to such distributee, reduced by
any applicable income tax withholding, as soon as practicable thereafter.
46
VII. The Managers
---------
A. The Financial Managers may at any time or from time to time appoint
one or more investment managers, each of which shall in its sole discretion
direct the Trustee in the investment or reinvestment of all or part of the Trust
Fund under the Trust Agreement as designated by such Financial Managers.
B. Reserved.
C. In the event of any disagreement among the Administrative Managers
or Financial Managers at any time acting hereunder and authorized to act with
respect to any matter, the decision of a majority of such Administrative
Managers or Financial Managers authorized to act upon such matter shall be
controlling and shall be binding and conclusive upon all persons, including,
without in any manner limiting the generality of the foregoing, the Employers,
the other Administrative Managers or Financial Managers, the Trustee, all
persons at any time in the employ of any of the Employers and the participants,
the former participants and their respective beneficiaries, and upon the
respective successors, assigns, executors and administrators of all of the
foregoing.
D. Each additional and each successor Administrative Manager or
Financial Manager at any time acting hereunder shall have all of the rights and
powers (including discretionary rights and powers) and all of the privileges and
immunities hereby conferred upon the original Administrative Managers or
Financial Managers, and all of the duties and obligations so imposed upon the
original Administrative Managers or Financial Managers.
E. In the event an Administrative Manager or Financial Manager at any
time acting hereunder shall be required to give any bond or other security for
the faithful performance of his duties as an Administrative Manager or Financial
Manager, the cost of such bond or other security shall be paid by CBS.
47
VIII. Administration.
---------------
A. CBS shall be the "administrator" of the Investment Fund within the
meaning of Section 3(16)(A) of the Act and shall have the power in its
discretion to administer and construe the Investment Fund, determine questions
of fact and law arising under the Investment Fund, direct disbursements by the
Trustee and exercise the other rights and powers specified herein. The rights,
powers, authority, duties, and obligations of CBS as the administrator of the
Investment Fund are delegated to the Administrative Managers.
B. CBS, the Administrative Managers, and the Financial Managers may
each retain auditors, accountants and legal counsel selected by them, and CBS,
the Administrative Managers, and the Financial Managers may each retain such
other persons as they deem appropriate in connection with administering the
Investment Fund. Any Administrative or Financial Manager may himself act in any
such capacity, and any such auditors, accountants and legal counsel may be
persons acting in a similar capacity for any Employer and may be Employees of
any Employer. To the extent permitted by law, the opinion of any such auditor,
accountant or legal counsel shall be full and complete authority and protection
in respect of any action taken, suffered or omitted by the Administrative
Managers or Financial Managers in good faith and in accordance with such
opinion.
C. The Administrative Managers or Financial Managers may allocate
responsibility among themselves, and the Administrative Managers or Financial
Managers may designate other persons to carry out their fiduciary
responsibilities under the Investment Fund, and, without in any manner limiting
the generality of the foregoing, may, by a written instrument, (1) designate
each or any of the Administrative Managers or Financial Managers and/or any
other person or persons, severally or jointly, to execute, on behalf of the
Administrative Managers or Financial Managers, all documents and other
instruments proper, necessary or desirable in order to effectuate the purposes
of the Investment Fund, and (2) revoke or change any such designation
theretofore made. Any Administrative Manager or Financial Manager, acting by
himself, may similarly revoke any such designation theretofore made. Any third
party may rely upon the continued effectiveness of any such designation until
such third party shall have notice of the change or revocation thereof. The
Administrative Managers and Financial Managers may also employ, appoint, and
dismiss advisors and administrators as they deem necessary to carry out the
provisions of the Plan, including attorneys, accountants, actuaries, clerks,
committees, or other agents, and may delegate any of their authority and duties
to such persons.
48
D. Each Administrative Manager or Financial Manager who shall not be an
Employee shall be entitled to receive, as compensation for his services
hereunder, such fees as he and CBS may from time to time agree. CBS shall pay
such compensation and shall also pay (and/or reimburse the Administrative
Managers and Financial Managers for) the reasonable expenses incurred by them in
the administration of the Investment Fund, including the fees and compensation
of the persons referred to in Paragraphs A and B of this Article VIII.
E. To the extent that the Employers and/or the Administrative Managers
shall prescribe forms for use by the participants, the former participants and
their respective beneficiaries in communicating with any Employer, the
Administrative Managers, or the Trustee, the Administrative Managers shall
establish periods during which communications may be received or shall designate
representatives to whom communications shall be delivered, and the Employer, the
Administrative Managers and the Trustee shall respectively be protected in
disregarding any notice or communication for which a form shall so have been
prescribed and which shall not be made in such form, and any notice or
communication for the receipt of which a period shall so have been established
and which shall not be received during such period, and any notice or
communication for the receipt of which a representative shall have been
designated and which shall not be received by such representative. Each
Employer, the Administrative Managers, and the Trustee shall respectively also
be protected in acting upon any notice or other communication purporting to be
signed by any person and reasonably believed to be genuine and accurate.
F. To the extent permitted by law, all determinations hereunder by an
Employer or the Administrative Managers shall be made in the sole and absolute
discretion of such Employer or of the Administrative Managers, as the case may
be. Neither any Employer nor the Administrative Managers, in making any
determination, or in taking any action, in connection with the administration of
the Investment Fund, shall discriminate in favor of Employees who are officers
or shareholders of any Employer or persons whose principal duties consist of
supervising the work of other Employees or persons who are highly compensated
Employees.
G. Subject to the applicable provisions of paragraph H of this Article
VIII, in the event that any disputed matter shall arise hereunder, including,
without in any manner limiting the generality of the foregoing, any matter
relating to the eligibility of any person to participate in the Investment Fund,
the participation of any person therein, the amounts payable to any person
hereunder and the applicability and interpretation of the provisions hereof, the
decision of the Administrative Managers upon such matter shall be binding and
conclusive upon all persons, including, without in any manner limiting the
generality
49
of the foregoing, the Employers, the Trustee, all persons at any time in the
employ of any of the Employers and the participants, the former participants and
their respective beneficiaries, and upon the respective successors, assigns,
executors and administrators of all of the foregoing.
H. All claims for benefits under the Investment Fund by a participant
or his beneficiary shall be made in writing to a person designated by the
Administrative Managers for such purpose. If the designated person receiving a
claim for benefits believes that the claim should be denied, he shall notify the
claimant in writing of the denial of the claim within 90 days after his receipt
thereof unless he shall prior to the end of such 90-day period notify the
claimant of any special circumstances requiring an extension of time, not to
exceed an additional 90-day period, to respond to such claim and the date by
which it is expected a decision will be rendered. Such notice shall (1) set
forth the specific reason or reasons for the denial, making reference to the
pertinent provisions of the Investment Fund or of Investment Fund documents on
which the denial is based, (2) describe any additional material or information
that must be received before the claim request may be reconsidered and explain
the reason why such material or information, if any, is needed and (3) inform
the claimant of his right pursuant to this Paragraph H to request review of the
decision by the Administrative Managers (as the delegate of the
"administrator"). A claimant who believes that he has submitted all available
and relevant information may appeal the denial of a claim to the Administrative
Managers by submitting a written request for review to the Administrative
Managers within 60 days after the date on which such denial is received. Such
period may be extended by the Administrative Managers for good cause shown. The
person making the request for review may examine pertinent Investment Fund
documents and the request for review may discuss any issues relevant to the
claim. The Administrative Managers shall decide whether or not to grant the
claim within 60 days after receipt of the request for review, but this period
may be extended by the Administrative Managers for up to an additional 60 days
in special circumstances. The Administrative Managers' decision shall be in
writing, shall include specific reasons for the decision and shall refer to
pertinent provisions of the Investment Fund or of Investment Fund documents on
which the decision is based.
I. Notwithstanding anything in the Trust Agreement to the contrary, the
Financial Managers shall have the sole power to (1) appoint the Trustee, (2)
remove any Trustee then acting hereunder by giving written notice of such
removal to such Trustee, to the other Employers and to the Administrative
Managers, and (3) approve or disapprove the accounting by a retiring Trustee
referred to in the Trust Agreement. The Trustee shall have sole responsibility
for the Trust Fund, except as may otherwise be designated by the Financial
Managers in accordance with law.
50
J. Each fiduciary under the Investment Fund shall discharge his duties
with respect to the Investment Fund solely in the interests of the participants
and their beneficiaries with the care, skill, prudence and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of a like
character and with like aims. No fiduciary under the Investment Fund shall be
liable for an act or omission of another person in carrying out any fiduciary
responsibility where such fiduciary responsibility is allocated to such other
person by the Investment Fund or pursuant to a procedure established in the
Investment Fund except as otherwise provided in Section 405 of the Act. CBS
hereby indemnifies each Administrative Manager, each Financial Manager, each
officer, and each Employee of the Employers against any liabilities or expenses,
including attorneys' fees, reasonably incurred by him in connection with any
actual or threatened legal action to which he might become a party by reason of
being a fiduciary with respect to the Investment Fund except to the extent that
he shall be adjudged in such action to be liable for gross negligence or willful
misconduct in the performance of his duties as a fiduciary. Any person or group
of persons may serve in more than one fiduciary capacity with respect to the
Investment Fund.
K. The sole interest of each participant, each former participant and
each beneficiary of a participant or former participant hereunder shall be to
receive the benefits provided for herein as and when the same shall become due
and payable in accordance with the terms hereof, and neither any participant nor
any former participant nor any beneficiary of a participant or former
participant shall have any right, title or interest in or to the Trust Fund or
to any other monies or other properties at any time held by or receivable by the
Trustee. The right of any participant or any former participant and of any
beneficiary of any participant or former participant to receive or have applied
to his use any payment becoming due hereunder shall not be subject to alienation
or assignment, and, if any such participant or former participant or beneficiary
shall attempt to assign, transfer or otherwise dispose of any such right, or if
any such right shall be subjected to attachment, execution, garnishment,
sequestration or other seizure under any legal, equitable or other process, it
shall, if and to the extent that the Administrative Managers shall so determine,
pass and be transferred to such one or more as may be appointed by the
Administrative Managers from among the beneficiaries of such participant or
former participant and the spouse and blood relatives of such participant,
former participant or beneficiary, and in such proportions as the Administrative
Managers shall determine.
Nothing contained in the foregoing paragraph shall prohibit the
payment of benefits to an 'alternate payee' pursuant to a 'qualified domestic
relations order,' as said
51
quoted terms are defined in, and in accordance with, Section 206(d) of the Act.
Distributions pursuant to a 'qualified domestic relations order' may be made
prior to the participant's attainment of 'earliest retirement age.' The
Administrative Managers is authorized and directed to develop procedures for the
administration of 'qualified domestic relations orders' including procedures
authorizing a suspension of activity in a participant's account pending a final
determination as to whether such an order will be submitted for review by the
Administrative Managers and whether any such submitted order is qualified.
L.1. All Viacom Inc. Stock (including fractional shares) representing
amounts credited to a participant's Company Stock Fund account as of the
valuation date preceding by the shortest practicable interval a record date
established generally for fixing the right of holders of Viacom Inc. Stock to
vote shall be voted by the Trustee in accordance with instructions from such
participant. CBS shall provide participants with notices and proxy or
information statements when voting rights are to be exercised, the content of
which must be generally the same as that provided to record holders of Viacom
Inc. Stock. Fractional shares shall be voted by the Trustee on a combined basis,
so as to reflect the instructions of the participants with respect to such
shares. The Trustee shall vote all Viacom Inc. Stock for which it has not
received participants' instructions, including all Viacom Inc. Stock held by it
as of such record date but which is not as of that date allocated to
participants' accounts, in the same manner as a majority of the Viacom Inc.
Stock representing all of the amounts credited to the Common Stock Fund accounts
of participants who have submitted voting instructions is voted.
2. In the event that a tender or exchange offer or other offer to
purchase Viacom Inc. Stock is made by an individual or entity for all or a
portion of the outstanding Viacom Inc. Stock or the Viacom Inc. Stock held in
the Trust Fund, the Trustee shall not tender or sell any Viacom Inc. Stock held
by it in the Company Stock Fund except upon specific written instructions from
each participant directing that the Viacom Inc. Stock representing amounts
credited to the participant's Company Stock Fund account be so tendered or sold.
CBS shall provide participants with notices and information with respect to any
such offer in a timely fashion so as to permit each participant an opportunity
to submit instructions to the Trustee with respect to his tendering or not
tendering the Viacom Inc. Stock representing such amounts credited to such
participant's Company Stock Fund account.
M.1. All Infinity Stock (including fractional shares) representing
amounts credited to a participant's Infinity Stock Fund account as of the
valuation date preceding by the shortest practical interval a record date
established generally for fixing the right of holders of Infinity Stock to vote
shall be voted by the Trustee in accordance with
52
instructions from such participant. CBS shall provide participants with notices
and proxy or information statements when voting rights are to be exercised, the
content of which must be generally the same as that provided to record holders
of Infinity Stock. Fractional shares shall be voted by the Trustee on a combined
basis, so as to reflect the instructions of the participants with respect to
such shares. The Trustee shall vote all Infinity Stock for which it has not
received participants' instructions, including all Infinity Stock held by it as
of such record date but which is not as of that date allocated to participants'
accounts, in the same manner as a majority of the Infinity Stock representing
all of the amounts credited to the Common Stock Fund accounts of participants
who have submitted voting instructions is voted.
2. In the event that a tender or exchange offer or other offer to
purchase Infinity Stock is made by an individual or entity for all or a portion
of the outstanding Infinity Stock or the Infinity Stock held in the Trust Fund,
the Trustee shall not tender or sell any Infinity held in the Trust Fund except
upon specific written instructions from each participant directing that the
Infinity Stock representing amounts credited to the participant's Infinity Stock
Fund account be so tendered or sold. CBS shall provide participants with notices
and information with respect to any such offer in a timely fashion so as to
permit each participant an opportunity to submit instructions to the Trustee
with respect to his tendering or not tendering the Infinity Stock representing
such amounts credited to such participant's Infinity Stock Fund account.
53
IX. Definitions; Construction.
--------------------------
A. As used herein and in the Trust Agreement, the following terms shall
have the following respective meanings:
1. Reserved.
2. "Account", as used with respect to a participant, shall mean each
of his Stable Value Fund account, S&P 500 Index Fund account, Value
U.S. Equity Fund account, Small Cap U.S. Equity Fund account,
International Equity Index Fund account, Short Term Life Cycle Fund
account, Medium Term Life Cycle Fund account, Long Term Life Cycle Fund
account, Company Stock Fund account, Infinity Stock Fund account, and
Self Directed Fund account, including any loans made to the participant
under Article VI, Paragraph G, the funds of which are attributable to
such accounts, and, as used with respect to an Employer, shall mean its
Employer's matching contributions forfeiture account.
3. "Act" shall mean the Employee Retirement Income Security Act of
1974, as it may be amended from time to time.
3A. "Administrative Managers" shall mean the person(s) appointed by
Viacom, by written action of the Chief Operating Officer of Viacom, to
act on behalf of Viacom as the sponsor and "named fiduciary" (within
the meaning of section 402(a)(2) of ERISA), as appropriate, with
respect to Plan administrative matters. When performing any activity or
exercising any authority under the provisions of the Plan, the
Administrative Managers shall be deemed to act solely on behalf of
Viacom, and not in an individual capacity.
4. "Affiliated company" shall mean a corporation or other entity that
is required to be aggregated with CBS pursuant to Code sections 414(b),
(c), (m), or (o) of the Code but only to the extent so required.
5. "After-tax subaccount", as used with respect to a participant,
shall mean the subaccount established within such Fund accounts, to
account for contributions thereto made as after-tax contributions.
6. Reserved.
54
7. "Anniversary year". The anniversary year of any Employee shall be
each 12-month period commencing on the first day of the calendar month
in which his employment commences.
8. Reserved.
9. Reserved.
10. "Before-tax subaccount", as used with respect to a participant,
shall mean the subaccount established within such participant's Fund
accounts, to account for contributions thereto made as before-tax
contributions.
11. "Beneficiaries", as used with respect to a participant or a
former participant, shall mean the surviving spouse of such participant
or, if such participant has no spouse or if the spouse of such
participant shall have consented thereto in a writing acknowledging
that such spouse is thereby waiving in favor of such other
beneficiaries the right to receive the amount payable hereunder upon
the death of such participant, and such consent is witnessed by a
notary public, the person or persons designated by such participant or
former participant to receive any payments provided for in Paragraph F
of Article VI hereof, and, if and to the extent that such a designation
shall not be in force at the time of such payment, his spouse, or if he
has no spouse, his executors or administrators.
12. Reserved.
13. "Board" shall mean both the Board of Directors of CBS and any
committee which shall be designated by said Board of Directors from
among its members and which shall have the authority of said Board of
Directors with respect to the Investment Fund and the Trust.
14. "Break in service", as used with respect to an Employee, shall
mean any anniversary year in which he completes less than 501 hours of
service.
Solely for purposes of determining whether a break in service has
occurred, if an Employee is absent from work by reason of her
pregnancy, the birth of a child of the Employee, or the placement of a
child with the Employee in connection with the adoption of such child
by the Employee or for purposes of caring for such child for a period
beginning immediately following such birth or placement, the Employee
shall be credited with the hours of service which otherwise would
normally have been credited to the Employee but for such absence, but
in no event less than eight hours of service per day of such absence
and more than 501 hours with respect to any
55
one such pregnancy, birth or placement. Such hours of service shall be
credited to the calendar year in which the absence from work begins
only if the effect of so doing would be to prevent the occurrence of a
break in service in such calendar year, and in any other case to the
immediately following calendar year.
15. Reserved.
16. "Business day" shall mean any day on which the New York Stock
Exchange or any successor to its business is open for trading.
17. "CBS" shall mean CBS Broadcasting, Inc. and its successors.
18. "CBS fiscal year" shall mean the period of 12 consecutive monthly
accounting periods used by CBS in the maintenance of its accounts.
19. "CBS Combined Pension Plan" shall mean the pension plan adopted
by CBS on December 16, 1942, as amended prior to December 26, 1968, and
the pension plan adopted by CBS stockholders on April 20, 1960, as
amended prior to December 26, 1968, as said pension plans were further
amended and combined, effective December 26, 1968, and as said pension
plan was further amended, as in effect at the time with respect to
which said term is used.
20. "Code" shall mean the Internal Revenue Code of 1986 as in effect
at the time with respect to which such term is used.
21. Reserved.
22. "Continuous employment period", as used with respect to a
participant, shall mean such participant's total years of service. For
purposes of determining a participant's continuous employment period
under Article VI, Sections C.2 or C.3., if a participant's employment
with the Employers ceased on account of the disposition of WCIX-TV and
the participant was not fully vested in his benefit under the Plan on
the date of such disposition, such participant's years of service shall
include the participant's years of service in continuous employment
with the purchaser of WCIX-TV on and after the date of such
disposition.
For purposes of determining a participant's continuous employment
period under Article VI, Sections C.2 or C.3, the continuous employment
period of a participant who was employed by WPRI-TV or WGPR-TV on the
date the assets of
56
WPRI-TV and WGPR-TV were acquired by CBS shall be deemed to include the
participant's period of employment with the seller of WPRI-TV and
WGPR-TV.
For purposes of determining a participant's continuous employment
period under Article VI, Sections C.2 or C.3, the continuous employment
period of a participant who was employed by the Corporation and who
transfers employment directly from the Corporation to an Employer shall
be deemed to include the participant's period of employment with the
Corporation.
For purposes of determining a participant's continuous employment
period under Article VI, Sections C.2 or C.3, the continuous employment
period of a participant who was employed by the seller of TNN/CMT Cable
Networks prior to the Gaylord Acquisition Date and became an Employee
of CBS on the Gaylord Acquisition Date shall be deemed to include the
participant's period of employment with the seller of TNN/CMT Cable
Networks.
23. "Contribution" shall mean, unless the context shall otherwise
clearly require, each of (a) a participant's contribution in any
category, (b) an Employer contribution, (c) an Employer's matching
contribution, and (d) a rollover contribution. In particular, a
participant's "required basic contribution" shall mean that
contribution described in subparagraph 1 of Paragraph A of Part (i) of
Article IV hereof; a participant's "voluntary supplemental
contribution" shall mean that contribution described in subparagraph 2
of Paragraph A of Part (i) of Article IV hereof; and a participant's
"periodic special contribution" shall mean that contribution described
in Part (ii) of Article IV hereof.
24. "Contribution election", as used with respect to a participant
and with respect to any time, shall mean such participant's election
referred to in Article IV hereof.
25. "Corporation" shall mean Viacom Services Inc., VI Services
Corporation, and Westinghouse CBS Holding Company, Inc. Prior to the
date of the close of the CBS / Viacom merger, the "Corporation" was CBS
Corporation.
26. Reserved.
27. Reserved.
28. Reserved.
57
29. "Disability" shall mean a state of physical or mental incapacity
of a participant such that, in the opinion of the Administrative
Managers based upon a certificate from a physician or physicians
satisfactory to the Administrative Managers, such participant, by
reason of injury, illness or disease, is unable to fulfill the
requirements of his position as an Employee of his Employer.
30. "Distribution election", as used with respect to a participant,
shall mean such participant's election referred to in subparagraph 1 of
Paragraph E of Article VI hereof or a determination of the
Administrative Managers not inconsistent with law in lieu thereof.
31. Reserved.
32. Reserved.
33. Reserved.
34. "Earnings and profits" shall have the same meaning as when used
in Section 316(a) of the Code.
35. Reserved.
36. "Employee" shall mean a person who (a) is principally employed in
the United States and/or is a citizen of the United States, (b) is not
included in a group determined by the Board not to be eligible for
participation in the Investment Fund and (c) is either (i) employed by
one or more of the Employers as an executive or an office employee or
as an employee in a classification of hourly employees specified by the
Board whose terms and conditions of employment are not subject to the
provisions of a collective bargaining agreement and who (in any such
category of employment) is a participant under the CBS Pension Plan
Document component of the CBS Combined Pension Plan or would have been
such but for his failure to meet the age requirements thereof or (ii)
employed by one or more of the Employers as an employee whose principal
terms and conditions of employment are subject to the provisions of a
collective bargaining agreement which provides for eligibility for
participation in the Investment Fund or (iii) employed by one or more
of the Employers in a group determined by the Board to be eligible for
participation in the Investment Fund. "Employee" shall also mean a
person (i) who is employed by any foreign subsidiary of CBS to which
U.S. Social Security coverage has been extended by an agreement entered
into by CBS under Section 3121(1) of the Code, (ii) as to whom no
contributions under any other funded plan of deferred compensation are
58
being provided by any other person with respect to the remuneration
paid to such individual by the foreign subsidiary and (iii) who is a
citizen of the United States; for the purposes of the Investment Fund
only, CBS shall be deemed to be the Employer of such Employees,
provided, however, that "Employee" shall not include "leased
employees". A "leased employee" shall mean any person (other than an
employee of CBS) who pursuant to an agreement between CBS and any other
person has performed services for CBS on a substantially full time
basis for a period of at least one year, and such services are
performed under the primary direction or control of CBS; provided,
however, that a leased employee shall not be considered an employee of
CBS if (i) such employee is covered by a money purchase plan providing:
(1) a nonintegrated employer contribution rate of at least 10 percent
of compensation, as defined in section 415(c)(3) of the Code, but
including amounts contributed pursuant to a salary reduction agreement
which are excludable from the employee's gross income under section
125, section 402(a)(8), section 402(h) or section 403(b) of the Code,
(2) immediate participation, and (3) full and immediate vesting; (ii)
leased employees do not constitute more than 20 percent of the CBS
non-highly compensated workforce.
In addition, "Employee" shall not include any individual who is
receiving compensation solely from, or who is on the payroll of, an
Affiliated Company that is not a participating Employer under the Plan.
Notwithstanding the foregoing, any individual who is receiving
compensation solely from, or who is on the payroll of, CBS and is an
employee of an Affiliated Company that is not a participating Employer
under the Plan shall be deemed to be an Employee hereunder if such
individual would be an Employee if the individual were rendering
services to CBS.
"Employee" shall not include any individual who is employed by
Infinity Broadcasting Corporation or Infinity Media Corporation, except
to the extent such individual is covered by a collective bargaining
agreement that provides for continued eligibility for such individuals
in the Investment Fund or is the General Counsel of Infinity
Broadcasting Corporation as of the day following the date of the close
of the CBS / Viacom merger. Effective January 1, 1999, through the date
of the close of the CBS / Viacom merger, "Employee" also shall not
include those individuals who, as of January 1, 1999, are the Chief
Executive Officer of CBS Corporation and the Senior Vice President -
Finance of CBS Corporation. Effective as of the day following the date
of the close of the CBS / Viacom merger, "Employee" also shall not
include the individual who, as of such date, is the Chief Financial
Officer of Infinity Broadcasting Corporation.
59
37. "Employer" shall mean each of (a) CBS, (b) each subsidiary which
executes the Trust Agreement as of June 29, 1969 and (c) each
subsidiary which adopts the Investment Fund and becomes a party to the
Trust Agreement as provided in Paragraphs A and B of Article X hereof.
38. "Employer contributions", as used with respect to a participant,
shall mean those contributions made to such participant's Fund accounts
on a before-tax basis pursuant to a salary deferral agreement with his
Employer forming part of his contribution election as in effect from
time to time.
39. "Employer matching contributions subaccount", as used with
respect to a participant, shall mean the separate subaccount which is
required to be established with respect to such participant as provided
in Article III hereof.
40. Reserved.
41. "Employer's matching contribution" shall mean a payment made to
the Trustee by an Employer as provided in Article V hereof.
42. "Employer's matching contributions forfeiture account" shall mean
the separate account established for purposes of receiving forfeitures
from participants' accounts pursuant to Sections IV.(iii)F., VI.C.3,
VI.F.6., and IX.76.d.
43. "Fiduciary" shall mean any person to the extent that he (a)
exercises any discretionary authority or discretionary control
respecting management of the Investment Fund or exercises any authority
or control respecting management or disposition of its assets, (b)
renders investment advice for a fee or other compensation, direct or
indirect, with respect to any moneys or other property of the
Investment Fund, or has any authority or responsibility to do so, or
(c) has any discretionary authority or discretionary responsibility in
the administration of the Investment Fund.
43A. "Financial Managers" shall mean the person(s) appointed by
Viacom, by written action of the Chief Operating Officer of Viacom, to
act on behalf of Viacom as the sponsor and "named fiduciary" of the
Plan (within the meaning of section 402(a)(2) of ERISA), as
appropriate, with respect to Plan financial matters. When performing
any activity or exercising any authority under the provisions of the
Plan, the Financial Managers shall be deemed to act solely on behalf of
Viacom, and not in an individual capacity.
60
44. "Former participant" shall mean a person whose participation in
the Investment Fund shall have terminated as provided in Paragraph A of
Article VI hereof.
45. "Fund" shall mean each of the Stable Value Fund, the S&P 500
Index Fund, the Value U.S. Equity Fund, the Small Cap U.S. Equity Fund,
the International Index Equity Fund, the Short Term Life Cycle Fund,
the Medium Term Life Cycle Fund, the Long Term Life Cycle Fund, the
Company Stock Fund, the Infinity Stock Fund, and the Self Directed
Fund.
46. "Hour of service", as used with respect to any person employed in
regularly scheduled part-time employment, shall mean each hour for
which he shall be directly or indirectly paid or entitled to payment
(a) for services he performs for CBS; or,
(b) except as expressly provided in the Investment Fund,
solely for purposes of determining eligibility to participate therein
and the extent to which his Employer matching contributions shall have
vested, and subject to the provisions of this Section 36, for services
he performs for any affiliated company, or any predecessor corporation
of CBS, or corporation merged, consolidated, or liquidated into CBS or
its predecessor, or a corporation substantially all of the assets of
which were acquired by CBS to the extent the Administrative Managers so
direct consistent with Regulations issued by the Secretary of the
Treasury.
With respect to every person employed on a full-time basis, 190 hours
of service shall be credited for each calendar month in which he has
actually performed at least one hour of service.
In addition to the foregoing, the following provisions shall apply,
where appropriate, to the computation of hours of service. Any Employee
may be credited with hours of service for each calendar month in which
he has a leave of absence of at least one calendar day. Any Employee
may be credited with years of service for any period for which back
pay, irrespective of mitigation of damages, may be awarded or agreed to
by CBS or an affiliated company, in which event such hours of service
shall be credited to each anniversary year to which each such award
pertains. An Employee shall be credited with hours of service for any
period for which he is directly or indirectly paid or entitled to
payment by CBS or any affiliated company for reasons (such as
vacations, sickness or disability) other than for his performance of
services, and such hours of service and the computation period or
periods to which
61
such hours shall be credited shall be determined in accordance with
Section 2530.200b-2 of the Regulations prescribed by the Secretary of
Labor. Notwithstanding any other provision of the Investment Fund, in
no event shall any person be credited with hours of service for any
period prior to January 1, 1976 during which he was employed on other
than a full-time basis.
Notwithstanding the foregoing to the extent that records for a
computation period do not accurately reflect the actual number of hours
of service required to be credited to a contract employee (i.e., an
employee who is not classified as a full-time employee or a regularly
scheduled part-time employee), 45 hours of service shall be credited
for each calendar week in which a weekly contract employee has actually
performed at least one hour of service, and 10 hours of service shall
be credited for each day on which a daily contract employee has
actually performed at least one hour of service.
46A. "Infinity Stock" shall mean the Class A common stock of Infinity
Broadcasting Corporation, or any other common stock which Infinity
Broadcasting Corporation is authorized to issue at the time with
respect to which such a term is used.
47. "Investment direction", as used with respect to a participant and
with respect to any time, shall mean such participant's direction
referred to in subparagraph 1 of Paragraph B of Part (i) or in
subparagraph 3 of Paragraph A of Part (ii) of Article IV hereof, as
modified prior to the time with respect to which such term is used.
48. "Investment Fund" or "Plan" shall mean the plan embodied herein.
49. "Investment manager" shall mean a fiduciary appointed by the
Financial Managers who (a) has the authority to direct the investment
and reinvestment of all or any part of the Trust Fund under the Trust
Agreement; (b) is registered as an investment adviser under the
Investment Advisers Act of 1940, is a bank as defined in the Investment
Advisers Act of 1940 or is an insurance company qualified to perform
services described in clause (a) above under the laws of more than one
state; and (c) has acknowledged in writing that it is a fiduciary with
respect to the Investment Fund.
50. "Leave of absence" shall mean a leave of absence from the employ
of one or more of the Employers granted, prospectively or
retroactively, to an Employee at any time for a specific purpose.
62
51. "Monthly accounting period" shall mean each calendar month.
52. "Non-Fund subsidiary" shall mean a subsidiary or affiliate which
is not an Employer.
52A. "Part A participants" shall mean all participants except Part B
participants, if any, and Part C participants, if any.
52B. "Part B participants" shall mean participants who are not
employees of the Corporation and are described as follows: no
participants are Part B participants.
52C. "Part C participants" shall mean participants who are employees
of the Corporation and are described as follows: no participants are
Part C participants.
53. "Participant", as used with respect to the Investment Fund, shall
mean an Employee of one or more of the Employers who shall have become
a participant in the Investment Fund as provided in Paragraph B of
Article II hereof and whose participation shall not have terminated as
provided in Paragraph A of Article VI hereof. Such term shall, if the
context shall permit, include a former participant.
54. "Participant's contributions", as used with respect to a
participant, shall mean the amount of such participant's salary
withheld and/or deferred by his Employer pursuant to such participant's
contribution election and paid to the Trustee by such Employer as
provided in Paragraph C of Part (i) of Article IV hereof.
55. "Participation election" shall mean the election of an Employee
to become a participant.
56. "Participation period", as used with respect to a participant,
shall mean the period during which such participant shall be a
participant in the Investment Fund.
57. "Payroll period", as used with respect to a participant, shall
mean the regular period (whether weekly or biweekly or semimonthly or
otherwise) on the basis of which such participant's Employer pays such
participant's salary.
58. "Plan year" shall mean a calendar year.
63
59. "Salary", as used with respect to a participant, with respect to
an Employer and with respect to a payroll period, shall mean the
regular compensation paid by such Employer to such participant for such
payroll period, inclusive of all amounts of regular compensation
deferred by such participant in accordance with his contribution
election which are contributed to such participant's Fund accounts on a
before-tax basis as Employer contributions, but excluding bonus
payments, overtime compensation, deferred compensation and additional
compensation of every other kind so paid, or, in the case of certain
categories of Employees whose regular compensation is not payable
entirely on a weekly or biweekly or semimonthly salary basis, such
other compensation as, and to the extent that, the Board shall
determine, as described in Appendix A. Notwithstanding any provision in
the Investment Fund to the contrary, in no event may the contributions
made to the Investment Fund by or on behalf of any participant in any
plan year exceed the maximum percentage allowed under subparagraphs 1
and 2 of Paragraph (i)A of Article IV and Article V multiplied by the
Employee's salary not in excess of $200,000 for any plan year beginning
after December 31, 1988, and prior to January 1, 1994, or $150,000 for
any plan year beginning after December 31, 1993 (or, with respect to
either such dollar amount, such larger amount as the Secretary of the
Treasury may determine for such plan year under Section 401(a)(17) of
the Code). Such dollar limitation on the amount of salary taken into
account shall also be applied for purposes of the limitations of
Paragraph (iii) of Article IV. For purposes of this dollar limitation
only, in determining the salary of any Employee, the rules of Section
414(q)(6) of the Code shall apply, except that in applying such rules,
the term "family" shall include only the spouse of the Employee and any
lineal descendants of the Employee who have not attained age 19 before
the close of the year. In applying the dollar limitation to each family
member of a group subject to Code section 414(q)(6), the compensation
limitation shall be allocated among the family members in proportion to
the salary of each family member (prior to such dollar limitation) that
is combined to determine the dollar limitation.
60. "Subsidiary" shall mean a corporation which is controlled by CBS,
directly or indirectly.
61. "Taxable year" shall have the same meaning as when used in
Section 441(b) of the Code.
62. "Termination benefit", as used with respect to a participant,
shall mean the benefit which such participant shall be entitled to
receive by reason of the termination of his participation (as provided
in Paragraphs C, E and F of Article VI
64
hereof). Notwithstanding the foregoing, if a participant's employment
with the Employers ceased on account of the disposition of WCAU-TV and
the participant was not fully vested in his benefit under the Plan on
the date of such disposition, such participant shall become fully
vested in his Employer match subaccount on the date of such
disposition.
63. "Termination date", as used with respect to a participant, shall
mean the date of the termination of such participant's participation as
provided in Paragraph A of Article VI hereof.
64. "Trust" shall mean the trust created by and under the Trust
Agreement.
65. "Trust Agreement" shall mean the trust agreement by and among the
Employers and the Trustee, dated as of June 29, 1969, including the
successor Trust Agreement dated September 1, 1986, as the same may at
any time and from time to time be amended.
66. "Trustee", as used with respect to any time, shall mean the
Trustee acting under the Trust Agreement at such time.
67. "Trust Fund" shall mean all property which shall be held by the
Trustee, as trustee under the Trust Agreement, at the time with respect
to which such term is used.
68. Reserved.
69. "Unvested Employer matching contributions", as used with respect
to a participant and with respect to any time, shall mean those of the
Employer matching contributions credited to such participant's Employer
matching contributions subaccount as of such time which shall not be
vested Employer matching contributions.
70. "Valuation date" shall mean the last business day of a calendar
month or such other day or dates established by the Administrative
Managers and the Trustee for purposes of valuing contributions,
distributions, withdrawals, loans, and/or participant investment
election changes.
71. "Value", as used generally, shall mean fair market value, as used
with respect to a unit and as of July 31, 1969, shall mean $1.00 and as
used with 65
65
respect to a unit and as of a date subsequent to July 31, 1969,
shall mean the value of the Fund in which such unit is held at such
date divided by the number of units which are then held in said Fund.
As of January 2, 1996, "value" shall mean $10.00 and, as used with
respect to any valuation date subsequent to January 2, 1996, `Value'
shall mean the total market value of the Fund in which the unit is held
at such date divided by the number of units which are then held in said
Fund.
72. "Vested Employer matching contributions", as used as of a
valuation date or a termination date with respect to (a) a participant
whose continuous employment period on such date is three or more years
of service or (b) a participant whose 65th birthday is not subsequent
to such date or (c) a former participant whose participation shall have
terminated by reason of his death or his disability, shall mean all of
the Employer matching contributions credited to such participant's
Employer matching contributions subaccount as of such date; said term,
as so used with respect to a participant whose continuous employment
period on such date is less than three full years, whose 65th birthday
is subsequent to such date and whose participation shall not have
terminated by reason of his death or his disability, shall mean 33-1/3
percent of the Employer matching contributions credited to such
participant's Employer matching contributions subaccount as of such
date multiplied by the number of years of service included in his
continuous employment period on such date.
73. "Viacom" shall mean Viacom Inc., a Delaware Corporation.
73A. "Viacom Inc. Stock" shall mean the Class B common stock of
Viacom.
74. "Withdrawal" shall mean a payment made to a participant as
provided in subparagraph 1 of Paragraph B of Article VI hereof.
75. "Year" shall mean any period of 12 consecutive monthly accounting
periods.
76. "Year of service", as used with respect to an Employee or a
participant, as the case may be, shall mean each anniversary year in
which he shall complete at least 1,000 hours of service, subject,
however, to the following:
(a) Solely with respect to eligibility of an Employee
employed on other than a full-time basis, such Employee shall be
credited with a year of service if
66
he completes 1,000 hours of service in his first anniversary year
following December 31, 1975.
(b) Solely for the purpose of determining the extent to which
such participant shall have a vested interest in the Employer matching
contribution units, if such participant shall not have completed a year
of service in the anniversary year in which he became a participant, or
in the preceding plan year, he shall nevertheless be credited with one
year of service for the anniversary year in which he became a
participant.
(c) The period in which services shall have been performed by
an Employee prior to a break in service shall not be included in
determining his years of service unless
(i) such services shall have been performed prior to January
1, 1976, in which event the period in which such services shall
have been performed shall be included in determining such
Employee's years of service in accordance with the break in
service rules under the Investment Fund in effect prior to such
date or
(ii) such services shall have been performed after December
31, 1975 by an Employee who shall have a vested interest in the
Employer matching contributions prior to such break in service,
or, if no Employer matching contributions shall have vested, the
number of consecutive anniversary years during which such break in
service shall have continued shall be less than the greater of
five or the number of years of service that shall have been
accumulated immediately preceding such break in service.
(d) The period in which services shall have been performed by
an Employee after five or more consecutive one-year breaks in service
shall not be included in determining years of service for the purpose
of causing his vested interest in the Employer matching contributions,
as of the date immediately preceding such a break in service, to be
increased; accordingly, any such pre-break Employer matching
contributions not previously forfeited shall be forfeited into the
Employer's matching contributions forfeiture account after five or more
consecutive one-year breaks in service.
(e) For purposes of applying the requirement of Section
II.A.(2) that a non-full-time Employee complete a year of service in
order to be eligible to
67
participate in the Investment Fund, the term "anniversary year" shall
be deemed to mean the first 12-month period commencing on the first day
of the calendar month in which his employment commences, and then each
calendar year commencing after the commencement of the first
anniversary year.
B. For the purposes hereof:
1. To the extent that the context shall permit, any masculine pronoun
used herein shall be construed to include also the similar feminine
pronoun, any singular word so used shall be construed to include also
the similar plural word and any plural word so used shall be construed
to include also the similar singular word.
2. Any reference herein to any date or day shall be deemed to be a
reference to the close of business on such date or day.
3. Terms used herein with respect to a participant which are defined
in Paragraph A of this Article IX shall have the same respective
meanings when used with respect to an Employee.
4. If any Employer shall at any time grant (or shall at any time have
granted) to an Employee a leave of absence from his employment by such
Employer, whether such leave shall commence (or shall have commenced)
and/or shall be granted (or shall have been granted) prior to, at the
time of, or subsequent to such Employee's having become a participant,
such Employee shall be deemed to be (or to have been) in the employ of
such Employer during such leave of absence. That portion of the period
of such leave of absence which shall commence on the actual
commencement of such leave of absence shall not be deemed to interrupt
the continuity of such participant's participation period, but shall
not be included therein unless such Employee shall receive a salary
from his Employer during all or a portion of such leave of absence and
shall make contributions during such period.
5. In order to convert an amount to a number of units as of any date,
such amount shall be divided by the value of one such unit on such
date, in order to convert a number of units to an amount as of any
date, such number shall be multiplied by the value of one such unit on
such date, and in order to convert a number of units of one
classification into a number of units of another classification as of
any date, such first-mentioned number shall be multiplied by the value
of one unit of such classification first referred to on such date and
the product thus determined shall be divided by the value of one unit
of such other classification on such date.
68
X. Adoption by Subsidiaries.
------------------------
A. Any subsidiary or affiliate may, pursuant to a resolution of its
board of directors, with the consent of the Administrative Managers, adopt the
Investment Fund for the exclusive benefit of its employees eligible to
participate therein. Such adoption shall be effective as of the first day of any
monthly accounting period specified by such subsidiary and consented to by the
Board.
B. Each subsidiary adopting the Investment Fund as provided in
Paragraph A of this Article X shall enter into an agreement with the other
Employers and the Trustee pursuant to which such subsidiary shall become a party
to the Trust Agreement.
69
XI. Amendment; Termination.
-----------------------
A. CBS may, at any time and from time to time, amend the Investment
Fund pursuant to a resolution or written instrument of the Board (or its duly
authorized designees), delivered to the Trustee and to the other Employers; CBS
may also, at any time and from time to time, amend the Investment Fund pursuant
to a joint resolution or written instrument of the Administrative Managers and
Financial Managers, delivered to the Trustee and to the other Employers, but
only with respect to amendments that (i) are required by ERISA or other
applicable law or regulation governing qualification of employee benefit plans,
(ii) are necessary for Plan administration and do not materially increase costs
to the Investment Fund or the Employers, or (iii) clarify ambiguous or unclear
Investment Fund provisions. However, (1) no such amendment or termination shall
adversely affect amounts credited to any participant's or former participant's
accounts on the date of such amendment or termination, nor shall, to the extent
prohibited under Section 411(d)(6) of the Code, any amendment result in
depriving a participant of the right to elect an optional form of benefit which,
but for the provisions of such amendment, such participant (or his or her
beneficiaries) would have been entitled to elect with respect to his or her
vested benefit, (2) no such amendment shall adversely affect any participant's
or former participant's interest in those of the Employer matching contributions
credited to his Employer matching contributions subaccount on the date of such
amendment which would be vested Employer matching contributions if the date of
such amendment were his termination date, (3) no such amendment shall result in
a change in the substance of Paragraph B of this Article XI with respect to
participants who are such on the date of such amendment, (4) notwithstanding any
such amendment and notwithstanding any such termination, it shall be impossible,
whether by operation or natural termination of the Trust or pursuant to the
provisions of this Paragraph A, or by the happening of a contingency or by
arrangement or by any other means, for any part of the corpus of or the income
from the Trust to be used for, or diverted to, purposes other than the exclusive
benefit of the participants, the former participants and their respective
beneficiaries, (5) no such amendment shall increase the duties, responsibilities
or obligations of any Administrative Manager or Financial Manager unless he
shall consent thereto, (6) no such amendment shall increase the duties,
responsibilities or obligations of the Trustee unless it shall consent thereto,
and (7) no such amendment shall increase the duties, responsibilities or
obligations of an Employer unless it shall consent thereto. In addition, any
Employer may, pursuant to a resolution of its board of directors, by a written
instrument delivered to the Trustee and to the other Employers, terminate the
Investment Fund with respect to its Employees.
B. In the event of, and upon, an Employer's termination of the
Investment Fund or permanent discontinuance of contributions other than by
reason of being merged
70
into, or consolidated with, another Employer, whether or not the Trust shall
also terminate concurrently therewith, (1) the interest in his Employer matching
contributions subaccount of each participant who shall be or shall have been an
Employee of such Employer shall vest and the Administrative Managers shall, as
of and as promptly as shall be practicable after the valuation date concurrent
with, or next succeeding, the date of such termination or permanent
discontinuance, allocate unallocated Employer matching contributions pro rata to
the Employer matching contributions in the Employer matching contributions
subaccounts of the participants who shall have been Employees of such Employer
on the date of such termination or permanent discontinuance, and (2) the Trustee
shall, as of and as promptly as shall be practicable after the valuation date
next succeeding whichever shall occur first of such participant ceasing to be an
Employee of CBS and all subsidiaries and the termination of the Trust, pay or
distribute to such participant (or his beneficiaries) in the manner provided in
Paragraph F of Article VI hereof the benefits to which he is (or they are)
entitled. In the event of, and upon, the termination of the Investment Fund by
an Employer with respect to some but less than all of the Employees of such
Employer (a "partial termination"), (1) the interest in the Employer matching
contributions subaccount of each participant affected by such partial
termination shall vest and (2) as of and as promptly as shall be practicable
after the valuation date concurrent with, or next succeeding, the date of such
partial termination, (a) the Administrative Managers shall allocate any
unallocated Employer matching contributions pro rata to the Employer matching
contributions in the Employer matching contributions subaccounts of the
participants affected by such partial termination and (b) the Trustee shall pay
or distribute to each such participant (or his beneficiaries) in the manner
provided in Paragraph F of Article VI hereof the benefits to which he is (or
they are) entitled. In the event of the complete or partial termination of the
Investment Fund, or the complete discontinuance of contributions thereto, the
account balances of all affected participants shall become fully vested.
C. In the event of any merger or consolidation of the Investment Fund
and/or the Trust hereunder with, or transfer of the assets or liabilities of the
Investment Fund and/or Trust to, any other plan, the terms of such merger,
consolidation or transfer shall be such that each participant would receive (in
the event of termination of the Investment Fund or its successor immediately
thereafter) a benefit which is no less than he would have received in the event
of termination of the Investment Fund immediately prior to such merger,
consolidation or transfer.
1. Anything herein to the contrary notwithstanding, the Administrator
shall direct the Trustee to transfer, as of January 1, 1991, to the trustee of
the trust established under the CBS News Special Projects Inc. Employee
Investment Fund maintained by CBS News Special Projects Inc. for the benefit of
employees of CBS News
71
Special Projects Inc. who were Employees of CBS participating in the Investment
Fund immediately prior to employ with CBS News Special Projects Inc. an amount
from the Trust equal to the balance in such participants' accounts determined as
of the transfer date. After December 31, 1990, the former CBS Employees
described above shall be entitled to no further allocations under this
Investment Fund.
2. Anything herein to the contrary notwithstanding, the Administrator
shall direct the Trustee to transfer, as of the transfer date, to the trustee of
the trust established under the CBS News Special Projects Inc. Employee
Investment Fund maintained by CBS News Special Projects Inc. for the benefit of
employees of CBS News Special Projects Inc. who were Employees of CBS
participating in the Investment Fund immediately prior to employ with CBS News
Special Projects Inc., an amount from the Trust equal to the balance in such
participants' accounts determined as of the transfer date. Effective with the
transfer date, the former CBS Employees described above shall be entitled to no
further allocations under this Investment Fund.
3. Subject to the approval of the Administrative Managers, the
Trustee shall accept a transfer of assets and liabilities accrued by a
participant under any other plan which transfer shall be in accordance with the
requirements of Section 414(1) of the Code. In no event shall the accrued
benefit of any such participant under this Investment Fund immediately after
such transfer be less than the accrued benefit of such participant under the
transferor plan immediately prior to such transfer. In addition, any
distribution, withdrawal, or other rights available to each affected participant
under the terms of the transferor plan as of the date of such transfer which are
protected under Section 411(d)(6) of the Code shall continue to be available
with respect to such transferred account balances.
D. Notwithstanding anything hereinbefore to the contrary, a matching
contribution hereunder by any Employer which (1) was made under a mistake of
fact or (2) was conditioned upon deduction of such contribution under Section
404 of the Code and such deduction is disallowed, shall be returned to the
Employer within one year after the payment of the contribution or the
disallowance of the deduction (to the extent disallowed), whichever may be
applicable.
72
XII. Limitations.
------------
A. Subject to the adjustments hereinafter set forth, the maximum annual
addition to a participant's account shall in no event exceed the lesser of (1)
$30,000 (adjusted annually, effective January 1, 1988, to reflect increases in
the cost of living, in accordance with Regulations issued by the Secretary of
the Treasury under Section 415 of the Code) or (2) 25 percent of his annual
compensation.
B. For the purpose of Paragraph A of this Article XII:
1. "Annual addition" shall mean, as used with respect to a
participant, the sum for any calendar year of (1) the Employer's contributions
(including before-tax required basic contributions, before-tax voluntary
supplemental contributions and Employer matching contributions); (2) any
forfeitures under the applicable terms, if any, of the Investment Fund; (3) the
participant's after-tax contributions; and (4) amounts described in Section
415(l)(1) and Section 419A(d)(2) of the Code. Notwithstanding the foregoing,
annual additions for any calendar year beginning before January 1, 1987 shall
include a participant's after-tax contributions only to the extent greater than
the lesser of (a) such participant's after-tax contributions in excess of six
percent of his compensation or (b) one-half of such participant's after-tax
contributions; provided, however, with respect to calendar years prior to
January 1, 1976, the amount of a participant's contributions for each year shall
be deemed to be an amount equal to the excess of the aggregate of the
participant's contributions prior to January 1, 1976 (without regard to such
contributions made on or after October 1, 1973 under the terms of the Investment
Fund in effect as of such date) over 10 percent of his compensation for each
calendar year of his participation in the Investment Fund prior to such date,
multiplied by a fraction, the numerator of which shall be 1 and the denominator
of which shall be the number of calendar years during which he was a participant
prior to January 1, 1976.
2. "Annual compensation" shall mean a participant's wages within the
meaning of Section 3401(a) of the Code and all other payments of compensation to
an Employee by his Employer (in the course of the Employer's trade or business)
for which the Employer is required to furnish the Employee a written statement
under Section 6041(d), Section 6051(a)(3) and Section 6052 of the Code,
determined without regard to any rules under Section 3401(a) of the Code that
limit the remuneration included in wages based on the nature or location of the
employment or the services performed (such as the exception for agricultural
labor in Section 3401(a)(2) of the Code), and including amounts paid or
reimbursed by the Employer for moving expenses incurred by the Employee.
73
C. The limitations set forth in this Article with respect to any
participant who at any time participates in any other defined contribution plan
maintained by the Employer or in more than one defined benefit plan maintained
by the Employer shall apply as if the total annual addition allocated to the
participant under all such defined contribution plans in which the participant
so participates are allocated under a single plan and as if the total benefits
payable to the participant under all defined benefit plans maintained by the
Employer are payable from a single plan.
For purposes of this Article, the term "Employer" shall include any
affiliated company as defined in Paragraph 4 of Article IX hereof and modified
by Section 415(h) of the Code.
D. In the case of a person who is a participant both in the Investment
Fund and the CBS Combined Pension Plan or any other applicable defined plan, the
sum of the defined benefit plan fraction and the defined contribution plan
fraction (as each such term is hereinafter defined) for any calendar year shall
not exceed 1.0.
E. For the purpose of determining the sum referred to in Paragraph D of
this Article XII, the following shall apply:
(1) "Defined benefit plan fraction" shall mean a fraction, (i) the
numerator of which shall be the annual benefit payable with respect to a
participant under the CBS Combined Pension Plan and any other applicable defined
benefit plan determined without regard to the limitation provisions required by
Section 415(b) of the Code and (ii) the denominator of which shall be the
maximum benefit payable under such Section, increased as provided by Section
415(e)(2)(B) of the Code as amended by the Tax Equity and Fiscal Responsibility
Act of 1982 ("TEFRA"); provided, however, that in the case of any participant in
the CBS Combined Pension Plan whose benefit is described in Section 6.04C
thereof prior to increasing the denominator of the fraction pursuant to Section
415(e)(2)(B) of the Code, the numerator of the defined benefit plan fraction
shall be deemed not to exceed the denominator of such fraction.
(2) "Defined contribution plan fraction" shall mean a fraction, (i)
the numerator of which shall be the aggregate annual additions (as hereinafter
defined), with respect to a participant in the Investment Fund or any other
defined contribution plan maintained by an Employer, determined as of the close
of the calendar year in which such additions accrued, determined without regard
to the limitation provisions required by Section 415(c) of the Code, and (ii)
the denominator of which shall be the aggregate maximum annual additions
determined by applying the provisions of said Section 415(c) for each calendar
year of the participant's service, taking into account the transition rules
74
for years ending prior to January 1, 1983 prescribed under the Investment Fund
or other applicable plans and under the Act and TEFRA, including the rules of
Section 415(e)(3) of the Code as amended by TEFRA, unless the Administrative
Managers elect to apply the rules of Section 415(e)(6) of the Code, as added by
TEFRA; provided, however, that in the case of calendar years prior to January 1,
1976 prior to increasing the denominator of the fraction pursuant to Section
415(e)(3)(B) or Section 415(e)(6)(B) of the Code, the numerator of the defined
contribution plan factor shall be deemed not to exceed the denominator of such
fraction.
F. The limitation referred to in Paragraph D of this Article XII shall
not apply with respect to any participant who on September 2, 1974 was a
participant both in the Investment Fund and the CBS Combined Pension Plan if the
defined benefit fraction with respect to such a person shall not be increased,
by amendment or otherwise, after September 2, 1974 and no contributions to his
account are made under the Investment Fund after such date.
G. If, prior to the allocation of contributions on behalf of any
participant, it is determined that the limitation on annual additions prescribed
under Paragraph A hereof or the limitation applicable to a combination of plans
prescribed under Paragraph D hereof would be exceeded in any year, contributions
shall be reduced, in the following order, but only to the extent necessary to
satisfy the limitations:
(1) First, periodic special contributions shall be reduced;
(2) Second, after-tax voluntary supplemental contributions shall be
reduced;
(3) Third, before-tax voluntary supplemental contributions shall be
reduced;
(4) Fourth, after-tax required basic contributions shall be reduced;
(5) Fifth, before-tax required basic contributions shall be reduced;
(6) Sixth, Employer matching contributions shall be reduced.
Any amount which may not be allocated to the account of a
participant by reason of (2), (3), (4) or (5) hereof shall not be withheld
and/or deferred from his salary but shall be paid to him. Any amount which may
not be allocated to the account of a participant by reason of (6) hereof shall
be retained in the general assets of the Employer,
75
if the Administrative Managers so direct, or paid to such participant upon such
terms and conditions as the Administrative Managers may from time to time
prescribe.
H. Notwithstanding the provisions of Paragraph G, in the event that the
limitations prescribed under Paragraph D would be exceeded with respect to any
participant who participates in the Investment Fund and the CBS Combined Pension
Plan or any other applicable defined benefit plan, the benefits under the
defined benefit plan shall be reduced or frozen prior to making any adjustments
under the Investment Fund.
I. In the event that, notwithstanding Paragraph G hereof, the
limitations with respect to annual additions prescribed hereunder are exceeded
with respect to any participant and such excess arises as a consequence of the
crediting of forfeitures to the participant's account or a reasonable error in
estimating the participant's compensation or a reasonable error in determining
the amount of before-tax contributions that may be made with respect to any
individual within the limits of Section 415 of the Code, such excess shall be
disposed of by returning to the participant his after-tax contributions, if any,
for the year in which the excess arose, together with the earnings thereon, but
only to the extent necessary to cause the annual additions to the participant's
account to equal, but not exceed, the limitations prescribed hereunder. In the
event that after such contributions and earnings are returned there remains an
excess, before-tax contributions, if any, for the year in which the excess
arose, shall be returned to the participant, but only to the extent necessary to
cause the annual additions to the participant's account to equal, but not
exceed, the limitations prescribed hereunder. In the event that after such
contributions are returned there remains an excess, such excess shall be held in
a suspense account and allocated to the account of the participant in succeeding
years or, if his employment has terminated and there remains an amount standing
to his credit in a suspense account, among the accounts of all participants. Any
before-tax or after-tax contributions that are returned to the participant in
accordance with this Paragraph shall not be taken into account in applying the
limitations of Paragraphs (iii)(A), (iii)(C) and (iii)(D) of Article IV.
76
XIII. Interpretation.
---------------
Anything in the Investment Fund or the Trust Agreement to the contrary
notwithstanding, no provision thereof shall be so construed as to violate the
requirements of the Act. To the extent that state law shall not be preempted by
the provisions of the Act or any other laws of the United States heretofore or
hereafter enacted, as the same may be amended from time to time, the Investment
Fund shall be administered, construed and enforced according to the laws of the
State of New York.
77
XIV. Top-Heavy Plan.
---------------
A. Effective January 1, 1984, the Investment Fund shall meet the
requirements of this Article XIV in the event that the Investment Fund is or
becomes a top-heavy plan.
B. 1. Subject to the aggregation rules set forth in subparagraph 2 of
this Paragraph B, the Investment Fund shall be considered a top-heavy plan
pursuant to Section 416(g) of the Code in any plan year beginning after December
31, 1983 if, as of the determination date, the present value of the cumulative
accrued benefits of all Key Employees exceeds 60 percent of the present value of
the cumulative accrued benefits of all of the Employees as of such date,
excluding former Key Employees and, except for the plan year beginning January
1, 1984, excluding any Employee who has not performed services for the Employer
during the five consecutive plan year period ending on the determination date,
but taking into account in computing the ratio any distributions made during the
five consecutive plan year period ending on the determination date. For purposes
of the above ratio, the present value of a Key Employee's accrued benefit shall
be counted only once each plan year, notwithstanding the fact that an individual
may be considered a Key Employee for more than one reason in any plan year.
2. For purposes of determining whether the Investment Fund is a
top-heavy plan and for purposes of meeting the requirements of this Article XIV,
the Investment Fund shall be aggregated and coordinated with other qualified
plans in a required aggregation group and may be aggregated or coordinated with
other qualified plans in a permissive aggregation group. If such required
aggregation group is top-heavy, this Investment Fund shall be considered a
top-heavy plan. If such permissive aggregation group is not top-heavy, this
Investment Fund shall not be a top-heavy plan.
C. For the purpose of determining whether the Investment Fund is
top-heavy, the following definitions shall be applicable:
1. Determination and Valuation Dates. The term "determination date"
shall mean, in the case of any plan year, the last day of the preceding plan
year. The amount of an individual's accrued benefit and the present value
thereof shall be determined as of the valuation date and shall include any
contribution actually made after such valuation date but on or before the
determination date. The term "valuation date" means the most recent value
determination date defined in subparagraph 70 of Paragraph A of Article IX
hereof occurring within a 12-month period ending on the determination date.
78
2. Key Employee. An individual shall be considered a Key Employee if
he is an Employee or former Employee who at any time during the current plan
year or any of the four preceding plan years:
(a) was an officer of the Employer who has annual compensation
from the Employer in the applicable plan year in excess of 50 percent
of the amount in effect under Section 415(b)(1)(A) of the Code;
provided, however, that the number of individuals treated as Key
Employees by reason of being officers hereunder shall not exceed the
lesser of 50 or 10 percent of all Employees, and provided further that
if the number of Employees treated as officers is limited to 50
hereunder, the individuals treated as Key Employees shall be those who,
while officers, received the greatest annual compensation in the
applicable plan year and any of the four preceding plan years (without
regard to the limitation set forth in Section 416(d) of the Code); or
(b) was one of the 10 Employees owning or considered as owning the
largest interests in the Employer who has annual compensation from the
Employer in the applicable plan year in excess of the dollar limitation
under Section 415(c)(1)(A) of the Code as increased under Section
415(d) of the Code; or
(c) was a more than five percent owner of the Employer; or
(d) was a more than one percent owner of the Employer whose annual
compensation from the Employer in the applicable plan year exceeded
$150,000.
For purposes of determining who is a Key Employee, ownership shall mean
ownership of the outstanding stock of the Employer or of the total combined
voting power of all stock of the Employer, taking into account the constructive
ownership rules of Section 318 of the Code, as modified by Section 416(i)(1) of
the Code.
For purposes of section (a) of this subparagraph but not for purposes
of sections (b), (c) and (d) of this subparagraph (except for purposes of
determining compensation under section (d) of this subparagraph), the term
"Employer" shall include any entity aggregated with an Employer pursuant to
Section 414(b), (c) or (m) of the Code.
For purposes of section (b) of this subparagraph, an Employee (or
former Employee) who has some ownership interest is considered to be one of the
top 10 owners unless at least 10 other Employees (or former Employees) own a
greater interest than such Employee (or former Employee); provided that if an
Employee has the same
79
ownership interest as another Employee, the Employee having greater annual
compensation from the Employer is considered to have the larger ownership
interest.
3. Non-Key Employee. The term "Non-Key Employee" shall mean any
Employee who is a participant and who is not a Key Employee.
4. Beneficiary. Whenever the term "Key Employee", "former Key
Employee", or "Non-Key Employee" is used herein, it includes the beneficiary or
beneficiaries of such individual. If an individual is a Key Employee by reason
of the foregoing sentence as well as a Key Employee in his own right, both the
present value of his inherited accrued benefit and the present value of his own
accrued benefit will be considered his accrued benefit for purposes of
determining whether the Investment Fund is a top-heavy plan.
5. Compensation and Compensation Limitation. For purposes of this
Article XIV, except as otherwise specifically provided, the term "compensation"
means the amount stated on an Employee's Form W-2 for the calendar year that
ends with or within the plan year; provided that the annual compensation of a
Key Employee taken into account under the Investment Fund shall not exceed
$200,000, for plan years beginning before January 1, 1994, or $150,000, for plan
years beginning after December 31, 1993, and in either case adjusted for
increases in the cost of living pursuant to regulations issued under Section
401(a)(17) of the Code.
6. Required Aggregation Group. The term "required aggregation group"
shall mean all other qualified defined benefit and defined contribution plans,
(including terminated plans which were maintained within the last five years
ending on the determination date for the plan year in question and which would,
but for the fact that the plan is terminated, be part of the required
aggregation group), maintained by the Employer in which a Key Employee
participates, and each other plan of the Employer which enables any plan in
which a Key Employee participates to meet the requirements of Section 401(a)(4)
or 410 of the Code.
7. Permissive Aggregation Group. The term "permissive aggregation
group" shall mean all other qualified defined benefit and defined contribution
plans maintained by the Employer that meet the requirements of Sections
401(a)(4) and 410 of the Code when considered with a required aggregation group.
8. Present Value of Accrued Benefit. The present value of an
individual's accrued benefit shall mean the sum of the value as of the most
recent valuation date of the
80
amounts credited to his Fund accounts as of the determination date and
contributions due as of the determination date.
D. In the event the Investment Fund is determined to be top-heavy for
any plan year, the following requirements shall be applicable.
1. Minimum Allocation. (a) In the case of a Non-Key Employee who is
covered under this Investment Fund but does not participate in any qualified
defined benefit plan maintained by the Employer, the minimum allocation of
contributions (not including before-tax contributions) plus forfeitures
allocated to the account of each such Non-Key Employee who has not separated
from service at the end of a plan year in which the Investment Fund is top-heavy
shall equal the lesser of three percent of compensation for such plan year or
the largest percentage of compensation provided on behalf of any Key Employee
for such plan year. For purposes of determining the minimum required
contribution, the before-tax contributions made on behalf of key employees shall
be taken into account. The minimum allocation provided hereunder may not be
suspended or forfeited under Sections 411(a)(3)(B) or 411(a)(3)(D) of the Code.
The minimum allocation shall be made for a Non-Key Employee for each plan year
in which the Investment Fund is top-heavy, even if he has not completed a year
of service in such plan year or if he has declined to elect to have salary
reduction contributions made on his behalf.
(b) A Non-Key Employee who is covered under this Investment Fund
and under a qualified defined benefit plan maintained by the Employer shall not
be entitled to the minimum allocation under this Investment Fund but shall
receive the minimum benefit provided under the terms of the qualified defined
benefit plan.
2. Limitations on Annual Additions and Benefits. For purposes of
computing the defined benefit plan fraction and defined contribution plan
fraction as set forth in Sections 415(e)(2)(B) and 415(e)(3)(B) of the Code, the
dollar limitations on benefits and annual additions applicable to a limitation
year shall be multiplied by 1.0 rather than by 1.25.
81
XV. Midwest Communications, Inc. Transaction.
-----------------------------------------
A. Transfer of Accounts from the Midwest Communications,
Inc. Retirement Savings Plan to Investment Fund:
-----------------------------------------------------
1. All individuals who were salaried, nonunion employees of Midwest
Communications, Inc. and who were eligible to participate in the Midwest
Communications, Inc. Retirement Savings Plan as of February 5, 1992, shall be
eligible to participate in the Investment Fund with respect to compensation
earned after April 5, 1992. Amounts credited to the accounts of such
Participants of the Midwest Communications, Inc. Retirement Savings Plan who are
participants under the Investment Fund shall be transferred to the Investment
Fund effective April 30, 1992 ("Transferred Amount(s)").
2. All individuals who were union employees of Midwest
Communications, Inc. and who were eligible to participate in the Midwest
Communications, Inc. Retirement Savings Plan shall be eligible to participate in
the Investment Fund as of the date specified by the individual collective
bargaining agreement with respect to compensation earned after the date
specified in such agreement. Amounts credited to the accounts of such
Participants of the Midwest Communications, Inc. Retirement Savings Plan who are
participants under the Investment Fund shall be transferred to the Investment
Fund effective as of the valuation date following the date specified in the
particular collective bargaining agreement for their eligibility to participate
in the Investment Fund ("Transferred Amount(s)").
3. Transferred Amounts shall be subject to the following procedures:
(i) Allocation and Accounting for Transferred Amounts: The
portion of a participant's Transferred Amount representing before-tax
contributions shall be allocated to his before-tax subaccount; the
portion representing rollover contributions shall be allocated to his
Rollover Contribution Account; and the remaining portion shall be
allocated to the participant's Employer matching contribution
subaccount.
(ii) Investment of Transferred Amounts: Transferred Amounts shall
be invested in Funds A, B, D and E as directed by the participant in
accordance with the investment provisions of Article III and IV. In the
event the participant fails to issue an investment direction, the
Transferred Amounts shall be invested in Fund B.
(iii) Vesting in Transferred Amounts: A participant's vested
interest in his Transferred Amount shall be determined in accordance
with the rules of
82
subparagraph 72 of Paragraph A of Article IX hereof, provided that all
prior service credit with Midwest Communications, Inc. shall be treated
as service with CBS, and further provided that a participant's vested
interest in the Transferred Amounts under the Investment Fund shall be
no less than his vested interest under the Transferor Plan determined
as of the date such amounts are transferred to this Investment Fund.
(iv) Distribution and Withdrawals of Transferred Amounts: The
requirements of Article VI shall govern the withdrawal and distribution
of Transferred Amounts in the same manner as if such amounts were
originally contributed to this Investment Fund, provided that in the
event former Participants in the Midwest Communications, Inc.
Retirement Savings Plan had Rollover Contribution Accounts thereunder,
these amounts will be available for withdrawal under the withdrawal
rules of Section 7.1 of that Plan, to wit:
"Withdrawals from Rollover Account: A Participant may withdraw from his
Rollover Account an amount not less than the lesser of One Thousand
Dollars or the balance of such Account and not in excess of the amount
of such Account balance as of the Valuation Date that next follows by
at least thirty days (or such shorter period as the Administrator may
by uniform rule allow) the date on which the Administrator receives a
complete and accurate written withdrawal application from the
Participant in form prescribed by the Administrator. Such withdrawal
distribution shall be made by the Trustee as soon as administratively
practicable following such Valuation Date." Section 2.28 of the Midwest
Communications, Inc. Retirement Savings Plan provides that the
Valuation Date is the last day of each calendar month and such interim
dates as the Administrator may from time to time specify pursuant to
Section 5.2(B).
B. Merger of WCCO Television, Inc. AFTRA 401(k) Plan into Investment
Fund:
-----------------------------------------------------------------
1. All individuals who were Participants in the WCCO Television,
Inc. AFTRA 401(k) Plan as of August 21, 1992 shall be eligible to participate in
the Investment Fund with respect to compensation earned after August 23, 1992.
Amounts credited to the accounts of such Participants of the WCCO Television,
Inc. AFTRA 401(k) Plan who are participants under the Investment Fund shall be
transferred to the Investment Fund effective September 2, 1992 ("Transferred
Amount(s)").
Effective August 31, 1992, the participants shall direct the Trustee
of the CBS Employee Investment Fund to transfer the total of their account
balance(s) in the WCCO Television, Inc. AFTRA 401(k) Plan to the designated Fund
account(s) under the Investment Fund.
83
2. Transferred Amounts shall be subject to the following procedures:
(i) Allocation and Accounting for Transferred Amounts: The
portion of a participant's Transferred Amount representing
before-tax contributions shall be allocated to his Before-Tax
Account; the portion representing rollover contributions shall be
allocated to his Rollover Contribution Account.
(ii) Investment of Transferred Amounts: Transferred Amounts
shall be invested in Funds A, B and D as directed by the
participant in accordance with the investment provisions of
Article III and IV. In the event the participant fails to issue an
investment direction, the Transferred Amounts shall be invested in
Fund B.
(iii) Vesting in Transferred Amounts: A participant's vested
interest in his Transferred Amount shall be determined in
accordance with the rules of subparagraph 62 of Paragraph A of
Article IX hereof, provided that all prior service credit with
Midwest Communications, Inc. shall be treated as service with CBS,
and further provided that a participant's vested interest in the
Transferred Amounts under the Investment Fund shall be no less
than his vested interest under the Transferor Plan determined as
of the date such amounts are transferred to this Investment Fund.
(iv) Distribution and Withdrawals of Transferred Amounts: The
requirements of Article VI shall govern the withdrawal and
distribution of Transferred Amounts in the same manner as if such
amounts were originally contributed to this Investment Fund,
provided that in the event former Participants in the WCCO
Television, Inc. AFTRA 401(k) Plan had Rollover Contribution
Accounts thereunder, these amounts will be available for
withdrawal under the withdrawal rules of Section 7.1 of that Plan,
to wit:
"Withdrawals from Rollover Account: A Participant may withdraw
from his Rollover Account an amount not less than the lesser of
One Thousand Dollars or the balance of such Account and not in
excess of the amount of such Account balance as of the Valuation
Date that next follows by at least thirty days (or such shorter
period as the Administrator may by uniform rule allow) the date on
which the Administrator receives a complete and accurate written
withdrawal application from the Participant in form prescribed by
the Administrator. Such withdrawal distribution shall be made by
the Trustee as soon as administratively practicable following such
Valuation Date." Section 2.27 of the WCCO Television, Inc. AFTRA
401(k) Plan provides that the Valuation Date is the last day of
each calendar month and such interim dates as the Administrator
may from time to time specify pursuant to Section 5.2(B).
84
XVI. Merger of Radford Studio Center Inc. 401(k) Tax
Sheltered Savings Plan and Trust.
-----------------------------------------------
1. All individuals who were employees of Radford Studio Center Inc. and
who were eligible to participate in the Radford Studio Center Inc. 401(k) Tax
Sheltered Savings Plan and Trust as of November 30, 1994, shall be eligible to
participate in the Investment Fund with respect to compensation earned after
November 30, 1994. Amounts credited to the accounts of such participants of the
Radford Studio Center Inc. 401(k) Tax Sheltered Savings Plan who are
participants under the Investment Fund shall be transferred to the Investment
Fund effective as of December 1, 1994 ("Radford Transferred Amount(s)").
2. Radford Transferred Amounts shall be subject to the following
procedures:
(i) Allocation and Accounting for Radford Transferred Amounts: The
portion of a participant's Radford Transferred Amount representing
before-tax contributions shall be allocated to his Before-Tax Account.
(ii) Investment of Radford Transferred Amounts: Radford Transferred
Amounts shall be invested in Funds A, B, D, and E as directed by the
participant in accordance with provisions of Article III and IV. In the
event the participant fails to issue an investment direction, the
Radford Transferred Amounts shall be invested in Fund B.
(iii) Vesting in Radford Transferred Amounts: A participant shall be
fully vested in his interest in the Radford Transferred Amount.
(iv) Distribution and Withdrawals of Radford Transferred Amounts:
The requirements of Article VI shall govern the withdrawal and
distribution of Radford Transferred Amounts in the same manner as if
such amounts were originally contributed to this Investment Fund.
85
XVII. Direct Rollover of Amounts from Plans in Which Employees
of WPRI-TV Participated.
--------------------------------------------------------
1. Any Employee who:
(i) was an employee of the seller of WPRI-TV and prior to the date
the assets related to that station were acquired by CBS (the
"Acquisition Date");
(ii) became an Employee of CBS on the Acquisition Date; and
(iii) receives an "eligible rollover distribution" from any
qualified plan sponsored by the seller
shall be eligible to make a direct rollover contribution of such
"eligible rollover distribution" to the Investment Fund. The Trustee
shall credit the amount of any direct rollover contribution to the
participant's Rollover Account, in accordance with the participant's
designation, as of the date the direct rollover contribution is made.
2. The term direct rollover contribution means the contribution of an
"eligible rollover distribution" to the Trustee by the Employee or the trustee
of another "eligible retirement plan" (as defined in Section 402(c)(8)(B) of the
Code) in the form of a direct transfer under Section 401(a)(31) of the Code.
3. For purposes of this Article XVII, the term "eligible rollover
distribution" means:
A. part or all of the amount (other than nondeductible employee
contributions) received by such Employee or distributed directly to
this Plan on such Employee's behalf from an employee plan and trust
described in Code Section 401(a) which is exempt from tax under Code
Section 501(a) and which is sponsored by the seller of WPRI-TV.
In all events, such amount shall constitute an "eligible rollover
distribution" only if such amount qualifies as such under Code Section
402(c) and the regulations and other guidance thereunder and is a
distribution of all or any portion of the balance to the credit of the
Employee from the distributing plan other than any distribution: (1)
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy)
of the distributee or for a specified period of ten years or more; (2)
to the extent such distribution is required under Code Section
401(a)(9); (3) to the extent such distribution is not
86
includible in gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); or (4) that is
made to a non-spouse beneficiary.
B. Once accepted by the Trust, an amount rolled over pursuant to this
Article XVII shall be credited to the participant's accounts, and invested in
the funds in accordance with the participant's directions for such amounts.
Thereafter, such rolled over amounts shall be administered and invested in
accordance with Article IV and subject to the distribution provisions set forth
in Article VI. For purposes of Article VI, rolled over amounts shall be subject
to the same provisions as a participant's after-tax subaccount; provided,
however, that such amounts shall not be available for withdrawal under Paragraph
B.1 of Article VI. The limitations of Article IV, Section (iii) and Article XII
shall not apply to rollover contributions. All rollover contributions shall be
made in cash and shall be fully vested. No Employer's matching contributions
shall be made with respect to rollover contributions.
87
XVIII. Direct Rollover of Amounts from Plans in Which Employees
of TNN/CMT Cable Networks Participated.
--------------------------------------------------------
1. Any Employee who:
(i) was an employee of the seller of TNN/CMT Cable Networks prior to
the date the assets related to that network were acquired by CBS (the
"Gaylord Acquisition Date");
(ii) became an Employee of CBS on the Gaylord Acquisition Date; and
(iii) receives an "eligible rollover distribution" from any
qualified plan sponsored by the seller in connection with such sale no
later than December 31, 1999.
shall be eligible to make a direct rollover contribution of such "eligible
rollover distribution" to the Investment Fund. The Trustee shall credit the
amount of any direct rollover contribution to the participant's Rollover
Account, in accordance with the participant's designation, as of the date the
direct rollover contribution is made.
2. The term direct rollover contribution means the contribution of an
"eligible rollover distribution" to the Trustee by the Employee or the trustee
of another "eligible retirement plan" (as defined in Section 402(c)(8)(B) of the
Code) in the form of a direct transfer under Section 401(a)(31) of the Code.
3. For purposes of this Article XVIII, the term "eligible rollover
distribution" means:
A. part or all of the amount (other than nondeductible employee
contributions) received by such Employee or distributed directly to
this Plan on such Employee's behalf from an employee plan and trust
described in Code Section 401(a) which is exempt from tax under Code
Section 501(a) and which is sponsored by the seller of the TNN/CMT
Cable Networks. An eligible rollover distribution which is a direct
rollover contribution shall include, pursuant to procedures established
by the Administrator, promissory notes reflecting a loan issued by the
seller's plan described in the preceding sentence; provided, however,
that an election to directly roll over such notes to the EIF shall be
effective only if made by a date to be specified by the Administrator
and communicated to eligible Employees at least two weeks prior to such
date.
88
In all events, such amount shall constitute an "eligible rollover
distribution" only if such amount qualifies as such under Code Section
402(c) and the regulations and other guidance thereunder and is a
distribution of all or any portion of the balance to the credit of the
Employee from the distributing plan other than any distribution: (1)
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy)
of the distributee or for a specified period of ten years or more; (2)
to the extent such distribution is required under Code Section
401(a)(9); (3) to the extent such distribution is not includible in
gross income (determined without regard to the exclusion for net
unrealized appreciation with respect to employer securities); or (4)
that is made to a non-spouse beneficiary.
If all or any portion of a direct rollover contribution is received
in the form of a promissory note described in the first paragraph of
this subsection A, the participant making such a direct rollover
contribution shall execute a new payroll withholding agreement and, to
the extent required to permit the continued enforcement and
administration of such note and loan, a new loan agreement that is
consistent with the provisions of Article VII of this Plan and the
Plan's procedures regarding loans, including the repayment period for
the remaining loan balance. The interest rate applicable to the new
loan agreement shall be the interest rate in effect for the loan
immediately prior to rollover.
B. Once accepted by the Trust, an amount rolled over pursuant to this
Article XVIII shall be credited to the participant's accounts, and
invested in the funds in accordance with the participant's directions
for such amounts. Thereafter, such rolled over amounts shall be
administered and invested in accordance with Article IV and subject to
the distribution provisions set forth in Article VI. For purposes of
Article VI, except as otherwise provided in Paragraph G of Article VI,
rolled over amounts shall be subject to the same provisions as a
participant's before-tax subaccount. The limitations of Article IV,
Section (iii) and Article XII shall not apply to rollover
contributions. All rollover contributions (other than those made in the
form of a promissory note as described above) shall be made in cash and
shall be fully vested. No Employer's matching contributions shall be
made with respect to rollover contributions.
89
XIX. Account Transfers.
------------------
A. 1998 Transfer of Accounts from the Westinghouse Savings Program to
the Investment Fund.
------------------------------------------------------------------
1. All individuals who, as of December 31, 1997, were employees of
the Corporation (i) primarily providing services to a subsidiary or division of
the Corporation that was part of Westinghouse Electric Corporation prior to
November 24, 1995 and engaged in the business of radio and/or television
broadcasting, cable operations, satellite operations, or related businesses, or
(ii) providing management services in a position that had been moved or
identified as being moved from Pittsburgh to New York City, and who were
eligible to participate in the Westinghouse Savings Program, shall be eligible
to participate in the Investment Fund with respect to compensation earned after
December 31, 1997. Amounts credited to the accounts of such Participants in the
Westinghouse Savings Program who are participants under the Investment Fund
shall be transferred to the Investment Fund effective January 2, 1998
("Transferred Amount(s)").
2. Transferred Amounts shall be subject to the following
procedures:
(i) Allocation and Accounting for Transferred Amounts: The
portion of a participant's Transferred Amount representing before-tax
contributions shall be allocated to his before-tax subaccount; the portion
representing after-tax contributions shall be allocated to his after-tax
subaccount; the portion representing rollover contributions shall be allocated
to his rollover contributions account; and the remaining portion shall be
allocated to the participant's Employer matching contribution subaccount. To the
extent a participant described in this Section XV.A has an election in place for
contributions in excess of 15% of the Employee's salary, contributions will be
reduced to 15% of the Employee's salary, first through a reduction to after-tax
contributions, then through a reduction to before-tax contributions.
(ii) Investment of Transferred Amounts: Transferred Amounts
shall be invested in available Funds as directed by the participant in
accordance with the investment provisions of Article III and IV. In the event
the participant fails to issue an investment direction, the Transferred Amounts
shall be invested in the Stable Value Fund.
(iii) Vesting in Transferred Amounts: A participant's vested
interest in his Transferred Amount shall be determined in accordance with the
rules of
90
subparagraph 72 of Paragraph A of Article IX hereof, provided that all
prior service credit taken into account under the Westinghouse Savings Program
shall be treated as service with CBS, and further provided that a participant's
vested interest in the Transferred Amounts under the Investment Fund shall be no
less than his vested interest under the Westinghouse Savings Program determined
as of the date such amounts are transferred to this Investment Fund.
(iv) Distribution and Withdrawals of Transferred Amounts: The
requirements of Article VI shall govern the withdrawal and distribution of
Transferred Amounts in the same manner as if such amounts were originally
contributed to this Investment Fund. In addition, (a) to the extent that a
distribution or withdrawal (other than on account of hardship) consists of
amounts in the Company Stock Fund, the participant may, with respect to
Transferred Amounts in such Company Stock Fund, elect to receive such amounts in
cash or Viacom Inc. Stock, (b) a participant may withdraw at any time the
Transferred Amounts credited to his rollover contributions subaccount, (c) a
participant who is 100% vested in his Employer matching contributions subaccount
may elect at any time to withdraw Transferred Amounts credited to such
subaccount, and (d) a retired participant (a participant who has retired under
an Employer pension plan or who suffers a disability) may elect to have his
accounts distributed in cash, in automatic monthly or annual installments,
specified by the participant at retirement, without regard to the limitation in
Article VI.E.1(a) that the period over which such payments may be made may not
exceed 20 years. A retired participant who elects to receive monthly or annual
installments may cancel or change such election at any time. A retired
participant may elect a total or partial distribution of his accounts.
(v) Loans: A participant's Transferred Amount may include,
pursuant to procedures established by the Administrative Managers, as many as
two loans, without regard to whether one of the loans is for a primary
residence. Such loans may be reamortized to reflect different payroll periods.
B. 2000 Transfer of Accounts from the Westinghouse Savings Program to
the Investment Fund
-------------------------------------------------------------------
1. Any employee of the Corporation who was a participant in the
Westinghouse Savings Program at the end of the day on December 31, 1999 and is
an active employee of the Corporation on January 1, 2000 shall be eligible to
participate in the Investment Fund, effective January 1, 2000, with respect to
compensation earned after December 31, 1999. Effective January 1, 2000, the
Corporation shall be treated as an Employer under the Investment Fund with
respect to such individuals ("Transferred
91
Individuals").
2. All contributions made to the Investment Fund after December 31,
1999 shall be invested in accordance with a Transferred Individual's investment
direction as in effect under the Westinghouse Savings Program on December 8,
1999, until the Transferred Individual makes a different election with respect
to such contributions in accordance with Article IV.
3. Amounts credited to accounts of participants in the Westinghouse
Savings Program who, as of December 31, 1999, are active employees of the
Corporation or an Employer and who (i) provided management services in a
position that after December 31, 1997 and before January 1, 2000 had been moved
from Pittsburgh to New York City, and whose accounts under the Westinghouse
Savings Program have not previously been spun-off and merged into the Investment
Fund, or (ii) provide services in Pittsburgh and have not been designated as
eligible for permanent job separation benefits under the Westinghouse Pension
Plan as of December 31, 1999, shall be transferred to the Investment Fund
effective January 6, 2000 ("Transferred Amount(s)").
4. Transferred Amounts shall be subject to the following procedures:
(i) Allocation and Accounting for Transferred Amounts: The
portion of a participant's Transferred Amount representing before-tax
contributions shall be allocated to his before-tax subaccount; the portion
representing after-tax contributions shall be allocated to his after-tax
subaccount; the portion representing rollover contributions shall be allocated
to his rollover contributions account; and the remaining portion shall be
allocated to the participant's Employer matching contribution subaccount. To the
extent a participant described in this Section XX.B has an election in place for
contributions in excess of 15% of the Employee's salary, contributions will be
reduced to 15% of the Employee's salary, first through a reduction to after-tax
contributions, then through a reduction to before-tax contributions.
(ii) Investment of Transferred Amounts: Transferred Amounts shall
be invested in available Funds as follows:
Investment under Westinghouse
Savings Program Fund
--------------- ----
Fixed Income Fund Stable Value Fund
92
BT LifeCycle Short Range Fund Short Term Life Cycle Fund
BT LifeCycle Mid-Range Fund Medium Term Life Cycle Fund
JPM Institutional Diversified Fund Medium Term Life Cycle Fund
BT LifeCycle Long Range Fund Long Term Life Cycle Fund
BT Equity 500 Index Fund S&P 500 Index Fund
Fidelity Growth & Income Portfolio S&P 500 Index Fund
Janus Fund S&P 500 Index Fund
American Century Ultra Fund Small Cap U.S. Equity Fund
JPM International Equity Fund International Equity Index Fund
CBS Stock Fund Company Stock Fund (CBS)
Infinity Stock Fund Infinity Stock Fund
(iii) Vesting in Transferred Amounts: A participant's vested
interest in his Transferred Amount shall be determined in accordance with the
rules of subparagraph 72 of Paragraph A of Article IX hereof, provided that all
prior service credit taken into account under the Westinghouse Savings Program
shall be treated as service with CBS, and further provided that a participant's
vested interest in the Transferred Amounts under the Investment Fund shall be no
less than his vested interest under the Westinghouse Savings Program determined
as of the date such amounts are transferred to this Investment Fund.
(iv) Distribution and Withdrawals of Transferred Amounts: The
requirements of Article VI shall govern the withdrawal and distribution of
Transferred Amounts in the same manner as if such amounts were originally
contributed to this Investment Fund. In addition, (a) to the extent that a
distribution or withdrawal (other than account of hardship) consists of amounts
in the Company Stock Fund, the participant may, with respect to Transferred
Amounts in such Company Stock Fund, elect to receive such amounts in cash or
Viacom Inc. Stock, (b) a participant may withdraw at any time the Transferred
Amounts credited to his rollover contributions subaccount, (c) a participant who
is 100% vested in his Employer matching contributions subaccount may elect at
any time to withdraw Transferred Amounts credited to such subaccount, and (d) a
retired participant (a participant who has retired under an Employer pension
plan or who suffers a disability) may elect to have his accounts distributed in
cash, in automatic monthly or annual installments, specified by the participant
at retirement, without regard to the limitation in Article VI.E.1(a) that the
period over which such payments may be made may not exceed 20 years. A retired
participant who elects to receive monthly or annual installments may cancel or
change such election at any time. A retired participant may elect a total or
partial distribution of his accounts.
93
(v) Loans: A participant's Transferred Amount may include,
pursuant to procedures established by the Administrative Managers, as many as
two loans, without regard to whether one of the loans is for a primary
residence. Such loans may be reamortized to reflect different payroll periods.
94
APPENDIX A
----------
1. Salary for Employees Not on Basic Payroll (Not Including Employees of the
Corporation Primarily Providing Services to a Subsidiary or Division of
the Corporation that was Part of Westinghouse Electric Corporation Prior
to November 24, 1995 and Engaged in the Business of Radio and/or
Television Broadcasting, Cable Operations, Satellite Operations, or
Related Businesses)
This appendix sets forth the definition of "salary" in the case of certain
categories of Employees whose regular compensation is not payable entirely on a
weekly or biweekly or semimonthly salary basis.
Salespeople on commission. The salary of a salesperson shall be equal to
the sum of:
(a) 100% of the first $40,000 (or such other amount as the Board of
Directors may determine by resolution) of base salary and
commissions earned during the previous calendar year, plus
(b) 50% of base salary and commissions exceeding $40,000 (or such other
amount as the Board of Directors may determine by resolution)
during the previous calendar year.
In no event will the salary for a salesperson be less than the
salesperson's base salary.
Talent employees. The salary of a "talent employee" shall be equal to the
sum of:
(a) 100% of the talent employee's actual compensation (excluding
bonuses, overtime, deferred compensation and additional
compensation of any kind) up to $100,000, plus
(b) 50% of the talent employee's actual compensation (excluding
bonuses, overtime, deferred compensation and additional
compensation of any kind) in excess of $100,000.
In no event shall compensation in excess of $550,000 be considered in
determining a talent employee's salary. Further, in no event shall a talent
employee's salary in any year be less than the lesser of (1) such talent
employee's salary in the prior year, or (2) such talent employee's actual
compensation for the current year.
95
2. Salary for Employees Not on Basic Payroll Who are Employees of the
Corporation Primarily Providing Services to a Subsidiary or Division of
the Corporation that was Part of Westinghouse Electric Corporation Prior
to November 24, 1995 and Engaged in the Business of Radio and/or
Television Broadcasting, Cable Operations, Satellite Operations, or
Related Businesses)
This appendix sets forth the definition of "salary" in the case of certain
categories of Employees whose regular compensation is not payable entirely on a
weekly or biweekly or semimonthly salary basis.
Salespeople on commission. The salary of a salesperson shall be equal to:
(a) for individuals employed during the period December 1, 1995 through
November 30, 1996, 100% of base salary and commissions earned
during the 12-month period of December 1, 1995 through November 30,
1996; or
(b) for individuals not employed during the period December 1, 1995
through November 30, 1996, 100% of base salary and commissions
projected to be earned during the current year.
In no event will the salary of a salesperson be less than the
salesperson's base salary.
96
EXHIBIT 4.17
INFINITY BROADCASTING CORPORATION
EMPLOYEES' 401(k) PLAN
WORKING COPY
(INCLUDING AMENDMENTS THROUGH CLOSE OF
CBS/VIACOM MERGER)
INFINITY BROADCASTING CORPORATION
EMPLOYEES' 401(k) SAVINGS PLAN
(Effective January 1, 1988)
1.01 "Account" or "Accrued Benefit" means a Member's interest in
the assets of the Trust Fund as represented by the value of his Account A,
Account B, and Account C and Rollover Account which shall be determined as of
any Valuation Date.
(a) "Account A" Those assets attributable to a Member's tax-
deferred contribution in accordance with Section 5.02.
(b) "Account B" Those assets attributable to Employer
contributions in accordance with Section 5.01 and 5.03.
(c) "Account C" Those assets attributable to a Member's after-
tax contributions in accordance with Section 4.01.
(d) "Rollover Account" Those assets attributable to a Member's
rollover contributions in accordance with Section 5.07
1.02 "Allocation Date" means December 31st of each Plan Year.
1.03 "Applicable Law" means the Code or ERISA, as hereinafter
defined.
1.04 "Beneficiary" means the person or persons (including a trust,
or the estate of the Member) designated by the Member to receive the balance, if
any, of the Member's Account upon the Member's death, either before or after
retirement. In addition to designating a primary Beneficiary, a Member may
designate a secondary Beneficiary to receive the death benefit in the event the
primary Beneficiary does not qualify or survive. If no Beneficiary has been
designated, or if for any reason no person designated qualified as a Beneficiary
at the time of the Member's death, or if no designated Beneficiary survives the
Member, any death benefit payable hereunder upon the Member's death shall be
paid in a lump sum to the spouse of the Member, and if there is no spouse, to
the Member's estate.
If the designated Beneficiary survives the Member but dies
before receiving the entire death benefit otherwise payable (and he is not
survived by a secondary Beneficiary, or the secondary Beneficiary also dies),
the remainder shall be paid in a lump sum, to the estate of the last surviving
designated Beneficiary.
2
Notwithstanding the foregoing, with respect to any
beneficiary designation the spouse of the Member shall be the primary
beneficiary unless the spouse of the Member consents to the naming of another
primary beneficiary. Such consent shall be in writing, and shall acknowledge the
effect of such consent, and shall be witnessed by a Committee Member or by a
notary public; provided, however, that if it is established to the satisfaction
of the Committee that the spouse of the Member cannot be located, such consent
will not be required. Any such consent shall only be effective with respect to
the spouse who gives the consent. Once the spouse has consented, the Member may
change his Beneficiary at any time by filing with the Committee a new
Beneficiary designation on a Prescribed Form.
1.05 "Board" means the Board of Directors of the Company.
1.06 "Break in Service" means a Break in Service as defined in
Section 3.04.
1.07 "Code" means the Internal Revenue Code of 1986 as it now
exists or may from time to time be amended.
1.08 Reserved
1.09 "Company" means Infinity Broadcasting Corporation and any
organization which is a successor thereto.
1.10 "Compensation" means, with respect to any Plan Year, the
total remuneration paid to an Employee during such Plan Year and reportable for
purposes of Federal Tax Form W-2; provided however, that for purposes of
determining the amount of contributions to Accounts A and B, Compensation shall
include contributions made to Account A during such Plan Year. In general,
Compensation shall not exceed $170,000 (as such amount may be adjusted by the
Secretary of the Treasury under Section 415(d) of the Code). However, for
purposes of Sections 4.01(a), 5.01, and 5.02 (other than the definition of
actual deferral percentage), this limit shall be applied by including only
remuneration paid to an Employee reportable for purposes of Federal Tax Form W-2
for the period during which the Employee is a Member on whose behalf
contributions are being made under Sections 4.01(a), 5.01, or 5.02 of this Plan.
1.11 "Deferred Retirement" means the continued employment of an
Active Member after his Normal Retirement Date.
1.12 "Effective Date" means January 1, 1988.
3
1.13 (a) "Employee" means any person employed by an Employer or a
Related Company.
(b) "Eligible Employee" means an Employee who is not an
Ineligible Employee.
(c) "Ineligible Employee" means an Employee who is ineligible for
membership in the Plan because:
(1) the Employee is covered under a collective
bargaining agreement entered into by his Employer and employee representatives,
between whom retirement benefits were the subject of good faith bargaining,
unless such agreement provides for the coverage of Employee under this Plan;
(2) the Employee is employed by a division, location or
operation of the Company or of a Related Company with respect to which the Plan
has not been adopted;
(3) the Employee is employed by CBS Corporation,
provided that those individuals who, as of January 1, 1999, are the Chief
Executive Officer of CBS Corporation or the Senior Vice President - Finance of
CBS Corporation shall not be Ineligible Employees, for the period from January
1, 1999, until the date of the close of the CBS / Viacom merger, unless CBS
Corporation ceases to be in a controlled group of corporations with the Company
(within the meaning of Code section 1563(a));
(4) the Employee is employed by Viacom Services Inc., VI
Services Corporation, or Westinghouse CBS Holding Company, Inc. provided that
the individual who, as of the day following the date of the close of the CBS /
Viacom merger, is the Chief Financial Officer of Infinity Broadcasting
Corporation shall not be an Ineligible Employee, unless Viacom Services Inc.
ceases to be in a controlled group of corporations with the Company (within the
meaning of Code section 1563(a)); or
(5) the Employee is the General Counsel of the Company
as of the day following the date of the close of the CBS / Viacom merger.
(d) "Highly Compensated Employee" means an Eligible Employee
who meets the requirements or Section 2.01 and who during the current or prior
Plan Year:
(i) was a 5% owner of the Company, as defined in Section
416(i)(1)(B) of the Code; or
4
(ii) received Compensation from the Company in excess of
$75,000; or
(iii) received Compensation from the Company in excess of
$50,000 and was in the "top-paid group" (the top 20% of the Company's payroll)
for the year; or
(iv) was an officer of the Company receiving Compensation
exceeding 150% of the defined contribution plan dollar limit (currently $30,000)
then in effect.
(e) "Non-Highly Compensated Employee" means any Eligible Employee
who meets the requirements of Section 2.01 and who is neither a Highly
Compensated Employee nor a "Family Member" as that term is defined in Code
Section 414(q)(6)(B).
1.14 "Employer" means each of the following business entities
(except that, in adopting the Plan for the benefit of its employees, such
business entity may limit the application of the Plan to one or more of its
divisions, locations or operations):
(a) the Company;
(b) any subsidiary, affiliated or associated corporation (or a
partnership or sole proprietorship) or other Related Company, as hereinafter
defined, which elects to participate herein pursuant to Section 12.05; and
(c) any predecessor thereof or successor thereto.
1.15 "Entry Date" means January 1, April 1, July 1, or October 1.
1.16 "ERISA" means the Employee Retirement Income Security Act of
1974 as it now exists or may from time to time be amended.
1.17 "Hour of Service" means the unit of Service with an Employer
as described in Section 3.01.
1.17.1 "Infinity Stock" means the Class A common stock of Infinity
Broadcasting Corporation, or any other common stock which Infinity Broadcasting
Corporation is authorized to issue at the time with respect to which such a term
is used.
1.18 (a) "Member" means any person who is included in the membership
of this Plan as provided in Section 2, and who is currently an Active Member,
Inactive Member, Retired Member or a Suspended Member.
5
(b) "Active Member" means a Member who is working for an Employer
and who is an Eligible Employee.
(c) "Inactive Member" means a Member whose employment has
terminated and who is entitled to, but has not commenced to receive, benefits in
accordance with the provisions of Section 6.03.
(d) "Retired Member" means a Member who has retired under this
Plan in accordance with its provisions and has not as yet received all of the
payments due to him from his Account, and shall include a formerly Inactive
Member from the time he commences receiving benefits. The terms "Retired Member"
shall include a Disabled Member, except where the context shall clearly indicate
to the contrary.
(e) "Disabled Member" means a Retired Member who is disabled and
who is receiving or is entitled to receive the value of his Account as provided
in Section 6.02.
(f) "Suspended Member" means a previously Active Member who is
still working for an Employer and has not incurred a Break in Service, but who
has become an Ineligible Employee.
1.19 "Military Service" means a leave of absence from active
employment of an Employer during which the Employee was in the Armed Forces of
the United States of America if, after termination of such service, the Employee
reenters the employ of an Employer during the period while his reemployment
rights are protected by law without any intervening employment elsewhere.
In the event a person in Military Service fails to return to
the employ of an Employer, as provided herein, he shall be considered as having
terminated his employment as of the commencement of such Military Service.
1.20 "Named Fiduciary" means:
(a) with respect to the administration of the terms of this Plan,
other than the review procedure described in Section 10.02(c) and the
administration of the Trust Fund, the Committee;
(b) with respect to the review procedure detailed in Section
10.02(c), the reviewer appointed pursuant thereto; and
(c) with respect to the administration of the Trust Fund, the
Trustee.
6
1.21 "Normal Retirement Date" means the first day of the month
coinciding with or next following the Member's 65th birthday.
"Normal Retirement Age" means the Member's 65th birthday.
1.22 "Permitted Leave" means any leave of absence approved by an
Employer, for a period which shall not be in excess of two years, provided that
upon termination of such leave of absence the Employee promptly returns to the
employ of an Employer, without intervening employment (other than Military
Service), except with the consent of an Employer. In the granting of any such
leave, an Employer shall act in a uniform and nondiscriminatory manner with
respect to all Employees similarly situated.
In the event a person on Permitted Leave fails to return to
the employ of an Employer, as provided herein, he shall be considered as having
terminated his employment as of the commencement of the Permitted Leave.
1.23 "Plan" means the Employees' 401(k) Savings Plan of the
Company as described herein as of the Effective Date hereof, and as it may from
time to time be amended, which Plan is intended to be a profit sharing plan
pursuant to relevant provisions of the Code.
1.24 "Plan Administrator" means the Company.
1.25 "Plan Year" means a calendar year. The Plan Year shall be
the limitation year for purposes of Section 415 of the Code and Section 5.04
hereof.
1.26 "Prescribed Form" means an administrative form prepared and
made available by the Committee, which is prescribed by the Committee for use in
applying for a benefit or in filing an election with respect to a benefit under
this Plan.
1.27 "Related Company" means any business entity which, together
with the Employer is:
(a) Included within a "Controlled Group of Corporations", under
Section 414 (b) of the Code;
(b) Included within a commonly controlled group, under Section
414 (c) of the Code;
(c) Included in an affiliated service group under Section 414(m)
of the Code;
7
"Related Company" includes any division, location or operation of any Employer
not included in Exhibit A.
1.28 "Service" and all terms related thereto shall have the
meanings described in Section 3.
1.29 "Trust Fund" or "Fund" means all the assets which are held by
the Trustee for the purposes of this Plan.
1.30 "Trustee" means the Trustee or Trustees named in the Trust
Agreement referred to in Section 11 hereof and any additional or successor
Trustee or Trustees from time to time acting as Trustee of the Trust Fund as
provided in Section 11.02. "Trustee" shall be deemed to refer to the plural as
well as to the singular, except where the context otherwise requires.
1.31 "Valuation Date" means the last day of each calendar quarter
or such other day or dates established by the Committee and the Trustee for
purposes of valuing contributions, distributions, withdrawals, loans, and/or
Member investment election changes.
1.32 "Year of Service" means a period of Service with the Company,
as described in Section 3.01(c).
1.33 "Administrative Managers" means the person(s) appointed by
the Company, by written action of the Chief Executive Officer of the Company, as
Administrative Managers, who are "named fiduciaries" of the Plan, within the
meaning of section 402(a)(2) of ERISA, with respect to Plan administrative
matters.
1.34 "Financial Managers" means the person(s) appointed by the
Company, by written action of the Chief Executive Officer of the Company, as
Financial Managers, who are "named fiduciaries" of the Plan, within the meaning
of section 402(a)(2) of ERISA, with respect to Plan investments.
8
SECTION 2 MEMBERSHIP
2.01 Eligibility Requirements:
Each Eligible Employee who has attained age 21 as of January
1, 1988 shall be eligible to become a Member on such date.
On and after January 1, 1988, each Eligible Employee shall be
eligible to become a Member on the Entry Date coinciding with or next following
his attainment of age 21.
On and after April 1, 1998 (i) each Eligible Employee who has
attained age 21 and is employed on a full-time basis by an Employer shall become
a Member on the Entry Date which coincides with or next follows such Eligible
Employee's commencement of such full-time employment, and (ii) each Eligible
Employee who has attained age 21 and is employed on a part-time basis by an
Employer shall become a Member on the Entry Date which coincides with or next
follows such Eligible Employee's completion of one Year of Service (as described
in Section 3.01(e)(1)(B)).
Each Eligible Employee upon becoming a Member shall be deemed
conclusively, and for all purposes, to have assented to the terms and provisions
of this Plan and shall be bound thereby.
Every Eligible Employee shall be notified of his eligibility
by his Employer and shall designate in writing, on a Prescribed Form filed with
the Committee, a Beneficiary or Beneficiaries to receive the balance in the
Member's Account, if any, in the event that the death of the Member should occur
before such entire balance has been paid to the Member.
2.02 Change in Employment Status:
(a) Change From Eligible to Ineligible Status. If an Active
Member becomes an Ineligible Employee because of a change in his employment
status (including a transfer to the employ of a Related Company which is not an
Employer), he shall not be deemed to have incurred a Break in Service, but shall
become and shall remain a Suspended Member for so long as he remains in such
status, and
(1) While he is a Suspended Member, he shall retain credit
for Vesting Service prior to becoming a Suspended Member and his continued
employment while a Suspended Member shall be counted as part of his Vesting
Service to the extent that the requirements of Section 3.02 are satisfied.
9
(2) His Account shall continue to be revalued in accordance
with Section 7.03 but he shall no longer share in the allocation of Employer
contributions or forfeitures unless and until he again becomes an Active Member.
(3) When a Suspended Member's employment terminates for any
reason, including retirement or death, he (or, in the event of his death, his
Beneficiary) shall be entitled to the benefits provided under the applicable
provisions of Section 6.
(b) Chance from Ineligible to Eligible Status. If a person who
has been an Ineligible Employee becomes an Eligible Employee because of a change
in his employment status (including a transfer to the employ of a Related
Company which is an Employer), his prior period of employment while an
Ineligible Employee shall be counted as part of his Vesting Service to the
extent that the requirements of Section 3.02 are satisfied.
(c) Transfer From One Employer To Another. In the event that a
Member leaves the employ of one Employer to enter directly into the employ of
another Employer he shall not be deemed to have terminated his membership
hereunder but shall be considered for all purposes of this Plan thereafter as an
Employee of the succeeding Employer from the date of such transfer. Any such
transferred Member shall receive credit for his aggregate Service with all his
Employers.
10
SECTION 3 CREDITING OF SERVICE
3.01 Service in General:
(a) The term "Service" means employment with an Employer.
However, the determination of whether and to what extent "Service" includes
employment with any business entity prior to the date on which it became part of
the Company or a Related Company shall be made by reference to the portion of
Exhibit A hereof applicable to such entity.
(b) Terms such as "employment with an Employer", "Service with an
Employer" and "working for an Employer" shall include employment with a Related
Company which is not an Employer, but only for the purpose of determing his
eligibility for membership in the Plan, or his eligibility for benefits under
the Plan, under the limited circumstances described in Section 2.02.
(c) The term "Year of Service" means a 12-month computation
period during which an Employee completes not less than 1,000 Hours of Service
for an Employer. For eligibility determination purposes, the computation period
shall be the 12-month period beginning on the date the Employee begins
employment with an Employer and any plan Year beginning after the date the
Employee begins employment with the Employer; for purposes of determining a
Member's vested percentage under Section 6.03(a), the computation period shall
be the Plan Year.
(d) In determining whether an Employee has a sufficient number
of Hours of Service to be eligible for a benefit under any provision hereof, the
Employee will be credited with one Hour of Service for each hour for which
either:
(1) he is paid or entitled to payment by an Employer, for
the performance of duties during the applicable Plan Year in which the duties
were performed, or
(2) he is paid or entitled to payment by an Employer for
reasons (such as vacation, holiday, sickness, temporary disability, lay-off,
jury duty or Permitted Leave) other than for the performance of duties, during
the applicable Plan Year, with the particular Hour of Service to be counted in
the Plan Year in which the period during which no duties are performed occurs,
subject to the provisions of paragraph (e) below, or
(3) back pay (irrespective of mitigation of damages) is
awarded or agreed to by the Employer, with the particular hour (which is not
included in (1) or (2) above) to be counted in the Plan Year to which the award
for back pay pertains.
11
(e) Notwithstanding the provisions of (d) above:
(1) If an Employee's work records are not kept on an
hourly basis, then his actual number of hours worked need not be determined but,
in lieu thereof, a determination shall be made as follows:
(A) He shall be credited with one week of Service
for each week in which he would have been credited with at least one Hour of
Service pursuant to (d) above.
(B) He shall be credited with one Year of Service
for each 12 month computation period in which he is credited with a least 23
weeks of Service under (A) above (with such completion of 23 weeks' service
being the equivalent of having completed 1,000 Hours of Service during such
year). The term "computation period" for this purpose shall have the same
meaning provided in Section 3.01(c).
(C) He shall be deemed to have incurred a Break in
Service if, during any Plan Year, he is not credited with at least 12 weeks of
Service under (A) above (with such completion of 12 weeks' Service being the
equivalent of having completed 501 Hours of Service during such year).
(2) For the purpose of determining the number of hours
to be credited under paragraph (d) (2) above, an Employee shall be credited with
the number of hours determined under Labor Department Regulations $2530.200b-2
(b) and (c). However, he shall not be credited with any Hours of Service for any
hours compensated under a program run or required solely for the purpose of
complying with applicable workman's compensation, unemployment compensation or
disability insurance laws and in any event, he shall not be credited with more
than 501 Hours of Service under paragraph (d) (2) above during any continuous
period in which no duties are performed.
(3) The determination of an Employee's period of Service
prior to the Effective Date shall be based on the records maintained with
respect to this Plan and any other related records and need not be based on
hours actually worked.
(f) Periods of employment with two or more Employers (or, if
applicable, with an Employer and a Related Company which is not an Employer) at
the same time shall not create more than one period of Service for purposes of
this Section 3.
(g) Any special provisions applicable to the determination of
Service with a particular Employer shall be set forth in Exhibit A hereof.
12
3.02 Eligibility Service:
Service requirements for eligibility are set out in Section
2.01.
3.03 Vesting Service:
For purposes of determining whether a Member has completed a
sufficient period of Vesting Service to be eligible for a Vested Benefit
pursuant to Section 6.03, or eligible for a benefit under any other provision
hereof, his period of Vesting Service shall be equal to the sum of (a) and (b):
(a) A Member shall be credited with one year of Vesting Service
for each Year of Service after the Effective Date and after he first completes
an Hour of Service (or since his return to Service following his last Break in
Service, if any); and
(b) any other such period of Service after the Effective Date and
prior to a Break in Service, if any, to the extent that credit for such Service
has been restored pursuant to Section 3.05.
3.04 Break in Service:
An Employee will be deemed to have incurred a "Break in
Service" as of the first day of each computation period in which he fails to
complete at least 501 Hours of Service (or its 12-week equivalent determined
under Section 3.01(e)) after the ERISA Compliance Date whether such failure is
the result of his absence from the employ of an Employer (other than for
Military Service or a Permitted Leave), or of any change in the nature of his
employment. In the event a Member has a Break in Service, he will forfeit all
benefits accrued under the Plan, except to the extent vested pursuant to Section
6.03, subject to Section 3.05.
Solely for purposes of determining whether a Break in Service
for vesting purposes has occurred, an Employee who is absent from work for
maternity or paternity reasons shall receive credit for the Hours of Service
which would otherwise have been credited to such Employee, but for such absence,
or in any case in which such hours cannot be determined, 8 Hours of Service per
each day of such absence. For purpose of this paragraph, an absence from work
for maternity or paternity reasons means an absence (1) by reason of the
pregnancy of the Employee, (2) by reason of a birth of a child of the Employee,
(3) by reason of the placement of a child with the Employee in connection with
the adoption of such child by such Employee, or (4) for purposes of caring for
such child for a period beginning immediately following such birth or placement.
The Hours
13
of Service credited under this paragraph shall be credited (1) in the
computation period in which the absence begins if the crediting is necessary to
prevent a Break in Service in that period, or (2) in all other cases, in the
following computation period. Hours of Service shall not be credited to an
Employee under this paragraph unless such Employee furnishes to the Committee
such timely information as the Committee may require to establish that the
absence from employment is for the reasons described above and to establish the
number of days for which there was such an absence. No more than 501 Hours of
Service shall count for any such absence.
3.05 Restoration of Vesting Service
(a) Except as otherwise provided in (b) below, if an Employee
returns to Service following a Break in Service, his Vesting Service for the
period of Service prior to the Break in Service shall be restored as soon as he
has completed one Year of Service. However, Vesting Service rendered after five
consecutive one year Breaks in Service will not be counted in determining his
vested interest under Section 6.03 in the portion of his Account attributable to
Employer contributions made prior to such consecutive Breaks.
(b) The Vesting Service for such period of Service prior to a
Break in Service shall not be restored upon a return to Service if (A) the
Employee had no vested interest under Section 6.03 at the time of the Break in
Service and (B) the number of consecutive Breaks in Service equals or exceeds
the greater of five or the period of his aggregate Vesting Service prior to such
Breaks in Service.
14
SECTION 4 VOLUNTARY CONTRIBUTIONS
4.01 (a) Voluntary Contributions:
A member may elect, by filing a Prescribed Form with the
Committee, to contribute to his Account C for any Plan Year an amount equal to
any whole percentage up to a percentage that, when combined with the Employer
contributions allocated to the Accounts A and B of such Member, does not exceed
the maximum annual addition provided in Sections 5.04A and 5.04B. Such
contributions may be made (i) by a single cash payment at any time during the
Plan Year or within 30 days thereafter on the basis of projected compensation
for such Plan Year, with any amount of contribution in excess of the maximum
annual addition determined under Sections 5.04A and 5.04B for such Plan Year or
within 30 days thereafter on the basis of projected compensation for such Plan
Year to be returned to him, or (ii) by means of periodic payroll deductions; or
(iii) by a combination of methods under (i) and (ii) above.
(b) Election to Contribute to Account C by Payroll Deductions
Any election to contribute to Account C by means of periodic
payroll deduction shall be made to the Committee on a Prescribed Form. Any
change in such elections may be made in the same way prior to any subsequent
January 1, April 1, July 1 or October 1, but no more than one such change may be
made in any Plan Year with respect to any Account. The Committee may reduce
payroll deductions for any Account C to the extent necessary to prevent the
Member's contributions from exceeding the maximum allowable annual contribution
in any Plan Year.
Any Member may elect to suspend contributions to Account C at
any time during the Plan Year by filing a Prescribed Form with the Committee at
least 15 days before such suspension is to become effective, except that any
Member who is making contributions to his Account C as of September 30 of any
Plan Year may not elect to suspend contributions during October, November or
December of such Plan Year. Contributions to Account C may be resumed as of any
later January 1, April 1, July 1 or October 1 by filing a Prescribed Form with
the Committee.
(c) Additional Voluntary Contributions:
Any Member may make a contribution to his Account C in an
amount up to the excess, if any, of the amount of contributions he could have
made under this Section for all prior Plan Years over the amount of such
contributions actually made by him to this Plan, subject to the limitation set
forth in Section 5.04A and 5.04B.
15
(d) Return of Excess Contribution:
If a Member's contributions in any Plan Year to his Account C
exceed the total of the amounts permitted under (a) and (c) above, or if said
contributions would cause the Plan to fail to meet the test appearing in the
third paragraph of Section 5.02, or the limitations of Section 5.04, the
Committee shall take such stops as may be necessary to cause such excess amount
to be returned to the Member as soon as is practicable; but in any event such
amount shall be returned to the Member prior to the time of Employer is required
to make its full contribution for such Plan Year.
(e) Deposit of Contributions:
The Committee shall transfer the Member's contributions to
the Trustee as soon as practicable after such contribution is made.
4.02 Any contributions made under Section 4.01 shall be subject to
the test appearing in the third paragraph of Section 5.02 as if they were
elective deferrals.
16
SECTION 5 EMPLOYER CONTRIBUTION - MEMBERS' TAX
DEFERRED CONTRIBUTIONS
5.01 Employer Contributions:
Such Members who are employed on the last day of a Plan Year
(or who retire or experience a disability during the Plan Year) or such other
Members as are established by the Board (or its designee) as eligible to receive
a discretionary matching contribution may be eligible to receive a discretionary
matching contribution based on their tax-deferred contributions up to as much as
5% of Compensation. Whether such a discretionary matching contribution shall be
made, which Members shall be eligible to receive the discretionary matching
contribution, how much of a Member's tax-deferred contributions (not exceeding
5% of Compensation) shall be eligible for matching, how much the Employer shall
contribute for each dollar of tax-deferred contributions that are eligible for
matching, and the other terms of such a discretionary matching contribution, are
entirely within the discretion of the Board (or its designee), to be determined
on an annual basis. Any such Employer discretionary matching contribution shall
be made in the form of shares of Infinity Stock.
Except as otherwise provided in Section 5.05 and 5.06, any
and all contributions made by an Employer shall be irrevocable and shall be
transferred to the Trustee and held as provided in Section 11, to be used in
accordance with the provisions of this Plan, in providing the benefits and
paying the expenses hereof. Neither such contributions nor any income therefrom
shall be used for, or diverted to, purposes other than for the exclusive benefit
of Members or their Beneficiaries, and payment of expenses of this Plan.
5.02 Members' Tax-Deferred Contributions:
A Member may elect to defer receipt of a portion of his
Compensation, and to have contributed by the Employer on his behalf to his
Account A for any Plan Year, an amount equal to a whole percentage of his
Compensation not less than 1% nor more than 15% (in multiples of 1%); provided,
however, that in any calendar year, the total of such contributions made under
this Plan and any other plan, contract or arrangement maintained by the Employer
may not exceed $7,000 or such higher amount as is permitted under Section 402
(g)(5) of the Code. Such contributions shall be made by means of payroll
deductions in equal or unequal amounts, as designated by the Member by filing a
Prescribed Form with the Committee prior to the date such payroll deduction is
17
to be made with respect to any Plan Year. However, during October, November and
December, only a regular equal percentage of payroll may be contributed. In the
event that a contribution is made to the Plan by an Employer as a result of a
Member's deferral election, and a portion of the Compensation upon which such
contribution is determined is later required to be repaid to the Employer, the
amount of such contribution will be based on the amount of Compensation
originally paid to the member, without regard to the amount of Compensation
required to be returned.
Any election or change in such election shall be made to the
Committee on a Prescribed Form, effective as of the next January 1st, April 1st,
July 1st or October 1st, and such form must be filed with the Committee by the
first day of the month preceding the effective date of such election; provided,
however, that Members of the Plan as of January 1, 1988 may elect to commence
contributions under this Section as of February 1, 1988 or March 1, 1988. A
Member may cease contributions applicable to him at any time by notice in
writing to the Committee on a Prescribed Form, but he may not elect to have
contributions applicable to him commence until the next following January 1st,
April 1st, July 1st or October 1st; provided that no suspension of contributions
will be permitted during October, November or December of any Plan Year, and
only one suspension will be allowed in any Plan Year.
Notwithstanding the foregoing, the average actual deferral
percentage for the Highly Compensated Employees for any Plan Year shall not
exceed the greater of (A) or (B) as follows;
(A) The average actual deferral percentage for the Non-
Highly Compensated Employees times 1.25, or
(B) The average actual deferral percentage for the Non-
Highly Compensated Employees times 2.0; nor shall the average actual deferral
percentage exceed the average actual deferral percentage for the Non-Highly
Compensated Employees by more than two percentage points.
The actual deferral percentage for an Employee for a
Plan Year which is calculated separately for each Employee shall be the ratio
of:
(1) the amount of contributions deposited to
Account A on his behalf for such Plan Year, to
(2) his Compensation for such Plan Year.
18
The Committee may require any Member to reduce his
contribution to a specified rate or to suspend his contribution so that the Plan
will satisfy the requirement of either (A) or (B) above.
5.03 Allocation to Account B - Any Employer contributions for a
Plan Year not allocated to the Accounts A of the Members shall be allocated, as
of the Allocation Date at the end of such Plan Year, only among those Employees
who are Active Members on such Allocation Date and who have completed a Year of
Service during the Plan Year ending on such Allocation Date. Such contributions
shall be allocated to all such Members in the proportion that the member's
Compensation for the Plan Year bears to the Compensation of all such Members for
such Plan Year. Any such Employer discretionary maching contribution shall be
made in the form of shares of Infinity Stock.
5.04A. Maximum Annual Additions.
The maximum "annual addition", as hereinafter defined, for
any Member shall be the lesser of $30,000 (or such higher limit as permitted by
law) or 25% of the Member's total Compensation from his Employers during the
Plan Year (which shall be the limitation year for purposes of Section 415 of the
Code).
The annual addition for a Member shall be the sum of:
(1) the total Employer contributions allocated to the
Accounts A and B of such Member for the Plan Year,
(2) the Member's contributions to Account C for the Plan
Year, and
(3) any forfeitures allocated to the Member's Account B
for such Plan Year.
The annual addition for any Member shall include all such
contributions and forfeitures under this or any other plans of any Employer and
any Related Employer which constitute "defined contribution" plans as defined in
Section 414(i) of the Code.
If a Member's contributions to Account C in any Plan Year
would cause the annual addition on his behalf to exceed the maximum permitted
annual addition under this subsection, the Committee shall take such steps as
may be necessary to cause such excess amount to be returned to the Member prior
to the time his Employer makes its full contribution for such Plan Year. Nothing
herein shall be construed to permit any Employer to reduce its contribution
determined under Section 5.01 in order to reduce the
19
annual addition on behalf of any Member unless such contribution itself would
cause the annual addition to exceed the maximum amount provided above.
The provisions of Section 415 of the Code are incorporated
herein by reference.
5.04B. Dual Plan Limitation
If a Member is also a participant of one or more defined
benefit plans of an Employer and of the Related Company, the maximum annual
addition to this plan shall be reduced so that a "combined benefit factor" in
excess of 1 shall not result. The "combined benefit factor" is the sum of the
defined benefit plan fraction as shown under (a) below and the defined
contribution plan fraction as shown under (b) below:
(a) the defined benefit plan fraction for any Plan Year is a
fraction.
(i) the numerator of which is the projected annual
benefit of the Member (determined as of the close of the Plan Year) and
(ii) the denominator of which is the lesser of
(A) the product of 1.25 multiplied by the dollar
limitation under Section 415 (b) (1) (A) of the Code for such year; or
(B) the product of
(I) 1.4 multiplied by
(II) the amount applicable to the Member
under Section 415(b)(1) of the Code above for such year.
(b) the defined contribution plan fraction for any Plan Year is a
fraction
(i) the numerator of which is the sum of the annual
additions applicable to the Member as of the close of the Plan Year; and
(ii) the denominator of which is the sum of the lesser of
the following amounts determined for such Plan Year and for each prior year of
service with Employer
(A) the product of 1.25 multiplied by the maximum
dollar amount of "annual addition" for each year as defined in Sections 415 (C)
(1) (a) and 415 (d) of the Code or
20
(B) the product of
(I) 1.4 multiplied by
(II) 25% of the Member's Compensation for
such year.
5.05 Return of Contributions to an Employer Under Certain
Circumstances:
Notwithstanding the provisions of Section 5.01, to the extent
permitted by Applicable Law, Employer contributions shall be returned to the
Employer under the following circumstances:
(a) Mistake
If and to the extent that any contribution was made by a
mistake in fact, the Committee may direct the Trustee to return the excess of
the contribution made over the amount that would have been made had there not
occurred a mistake of fact to the respective Employer at any time within one
year after the payment of such contribution, and the Account of any Member
affected shall be adjusted accordingly.
Any matching contribution under Section 5.03(a) which is
attributable to any contribution which must be returned under Section 5.06 shall
be deemed to have been made under a mistake of fact, and shall be returned to
the Employer within 2-1/2 months after the end of the applicable Plan Year or
the April 15th of the applicable calendar year, as the case may be.
(b) Nondeductibility
If and to the extent that the Internal Revenue Service
determines that a contribution is not deductible under Section 404 of the Code,
the Committee may direct the Funding Agent to return the contribution made by a
mistake in determining the amount of the deduction to the Employer, or by a good
faith mistake in determining the deductibility of the contribution, in an amount
equal to the excess of the money contributed over the amount that would have
been contributed had there not occurred a mistake in determining the amount of
the deduction or the deductibility of the contribution, at any time within one
year after the date of disallowance, and the Account of any Member affected
shall be adjusted accordingly.
(c) Adjustments
21
Any excess contribution returned pursuant to this Section
5.05 shall be adjusted to reflect its proportionate share of the Fund's losses,
if any, attributable to such excess contribution. Any earnings attributable to
such excess contribution may not be returned to the Employer.
(d) Limitation on Rights
Notwithstanding any provision of this Plan to the contrary,
the right or claim of any Member or Beneficiary to any asset of the Fund or to
any benefit under the Plan shall be subject to and limited by the provisions of
this Section 5.05.
(e) Failure to Qualify Initially
If and to the extent that the Internal Revenue Service
determines that the Plan does not initially qualify under Section 401(a) of the
Code, either in its entirety or with respect to any Employer, all contributions
made by such Employer on or after the date as of which the failure to qualify
initially is determined to have occurred shall be returned to the Employer by
the Trustees, upon the direction given by the Committee to the Trustees within
one year after the date of denial of qualification. The Plan thereupon shall
terminate with respect to such Employer, and any assets in the Trust which are
attributable to such Employer shall be returned to such Employer. Upon the
return of all contributions to such Employer as provided herein, the Trust shall
terminate and the Trustees, the affected Employer and the Committee shall be
discharged from all obligations under the Plan and Trust.
5.06 Return of Contributions to a Member
(a) Return of Excess Deferrals
In the event that any Member's Tax-Deferred Contributions for
a given taxable year, made pursuant to Section 5.02 of this Plan or to any other
Plan described in Sections 401(k) or 403(b) of the Code exceed $7,000 (or such
higher amount as is permitted under Section 402(g)(5) of the Code), the Member
may, prior to March lst of the following calendar year, allocate the amount of
such excess deferral among the plans under which such deferrals were made and
notify the Committee of the amount of such allocation. Following such
notification, the Committee shall, prior to the April 15th of the calendar year
following the year of the excess deferral, distribute to such Member the amount
of such excess deferral plus the earnings or minus the losses thereon.
(b) Return of Disqualifying Contributions
22
In the event that any Member's contributions under this Plan
would subject to the Employer to the tax imposed by Section 4979 of the Code,
such contributions plus earnings or minus losses shall be distributed to the
Member no later than two and one-half months after the close of the applicable
Plan Year.
The amount of any distribution required to be made under this
Section 5.06(b) shall be made to Highly Compensated Employees on the basis of
the respective portion of the excess contributions applicable to each of such
Employees.
5.07 Rollovers
An Eligible Employee may, with the consent of the Committee,
contribute to this Plan any amount received as a distribution from a plan which
is a qualified plan under Section 401(a) of the Code or a qualified rollover
Individual Retirement Account under Section 408(d)(3)(A)(ii) of the Code and
which distribution is an eligible rollover distribution pursuant to Section
402(c)(4) of the Code; provided such contributions made to this Plan within 60
days after it is received from the other plan or rollover Individual Retirement
Account.
Such amount shall be held in a separate Member's Rollover
Account which shall always be fully vested and non-forfeitable. The Member shall
separately designate how his Rollover Account is to be invested, in accordance
with Section 7. In all other respects, said Rollover Account shall be treated as
provided for the Member's Account under this Plan.
Any contribution to a Rollover Account shall not be
considered an Annual Addition for purposes of Section 5.04A or 5.04B, nor shall
it be considered in determining top-heaviness under Exhibit B hereof unless such
amount was distributed from a qualified plan maintained by an Employer or a
Related Company.
23
SECTION 6 BENEFITS
6.01 Normal and Deferred Retirement; Early Retirement:
Upon a Member's retirement on or after Normal Retirement
Date, there shall be payable to such Member the value of his Accounts, in the
manner and at the time specified in Section 9. Upon a Member's termination of
employment after attainment of age 55 and completion of 10 Years of Service, a
Member may retire early and there shall be payable the full value of his
Accounts, in the manner specified in Section 9.
6.02 Disability Retirement:
Upon a Member's retirement by virtue of his having become
totally and permanently disabled, as determined by a physician satisfactory to
the Committee, to such a degree that he is unable to perform his duties for any
Employer, the Member shall be fully vested in the value of his Accounts. The
Member's Account shall be paid to him in the manner and at the time specified in
Section 9.
6.03 Termination of Employment:
(a) A Member's interest in his Accounts A and C and Rollover
Account shall always be vested and non-forfeitable. If a Member completes an
Hour of Service on or after January 1, 2000, he shall have a vested interest in
his Account B determined as of the date termination of employment occurs, by
multiplying the balance in his Account B by the Vested Percentage determined in
accordance with the following schedule:
Completed Years of Vesting Vested Percentage
Service at Termination In Account B
-------------------------- -----------------
Less than 1 year 0%
1 year but less than 2 years 33 1/3 %
2 years but less than 3 years 66 2/3 %
3 years or more 100%
If a Member does not complete an Hour of Service on or after
January 1, 2000, he shall have a vested interest in his Account B determined as
of the date termination of employment occurs, by multiplying the balance in his
Account B by the Vested Percentage determined in accordance with the following
schedule:
Completed Years of Vesting Vested Percentage
Service at Termination In Account B
-------------------------- -----------------
24
Less than 1 year 0%
1 year but less than 2 years 33%
2 years but less than 3 years 66%
3 years or more 100%
A Member will be fully vested upon attaining Normal
Retirement Age.
Upon the termination of employment of a Member for any reason
other than death or retirement, the Vested Percentage of his Account B shall be
determined as of his date of termination of employment, such Vested Percentage
to be based on the Member's Years of Vesting Service as of such date.
Payments shall be made in the manner and at the time
specified in Section 9.
(b) If a distribution is made at a time when a Member has a
nonforfeitable right to less than 100 percent of the account balance derived
from employer contributions and the Member may increase the nonforfeitable
percentage in the account:
(1) A separate account will be established for the
Member's non-vested interest in the plan as of the time of the distribution, and
(2) At any relevant time the Members' nonforfeitable
portion of the separate account will be equal to an amount ("X") determined by
the formula:
X = P (AB + (RXD)) - (R X D)
For purpose of applying the formula: P is the nonforfeitable percentage at the
relevant time, AB is the account balance at the relevant time, D is the amount
of the distribution, and R is the ratio of the account balance at the relevant
time to the account balance after distribution.
The provision described in (b) (2) above will apply only upon the re-employment
of a former Member prior to the date the balance of the separate account is
forfeited pursuant to Section 6.05.
6.04 Death
25
Upon the death of an Active or Suspended Member, there shall
be payable to his Beneficiary the value of the Member's Accounts, and such
amounts shall be payable in a lump sum.
Upon the death of a Retired Member who has elected to receive
his Account in the form of a lump sum or in installments there shall be paid to
his Beneficiary in a lump sum the remaining balance, if any, in the Member's
Accounts.
Upon the death of an Inactive Member, there shall be paid to
his Beneficiary the value of that portion of the Member's Accounts which vested
pursuant to Section 6.03 as of the date his employment terminated.
Payment shall be made in the manner and at the time specified
in Section 9.
A Member may change his designated Beneficiary at any time by
filing a Prescribed Form with the Committee, subject to the consent of the
spouse, if any. In the event that there is no designated Beneficiary living at
the time of the Member's death, the balance of the Member's Account shall be
paid as determined in Section 1.04.
6.05 Forfeitures:
If a Member terminates employment, before his Account has
become vested pursuant to Section 6.03, his Account shall be forfeited effective
as of the Allocation Date occurring on the first day of the Plan Year in which
the termination of employment occurs. The amount forfeited shall, at the
discretion of the Plan Administrator, be used to reduce the Employer's
contribution obligations (either in the Plan Year ending on such Allocation Date
or in a future Plan Year), used to pay the administrative costs of this Plan,
reallocated to the accounts of other Members in a nondiscriminatory manner, or
utilized in any other manner permissible under the Code.
26
SECTION 7 INVESTMENT AND VALUATION OF ACCOUNTS
7.01 Election of Investments:
(a) Accounts A and C and Rollover Account:
A Member shall, by electing in a manner prescribed by the
Committee on a uniform basis, elect to have a whole percentage of his Accounts A
and C and Rollover Account invested in one or more of the funds (provided that
the total of such investments must equal 100% of such Accounts) made available
by the Committee, including, beginning on July 1, 1998, the Viacom Inc. Stock
Fund and, effective on April 1, 1999, the Infinity Stock Fund.
(b) Account B:
Any Employer Contribution that is allocated to a Member's
Account B (under Section 5.03) shall be invested in Infinity Stock.
7.02 Change of Investments:
Subject to such conditions as the Committee shall prescribe
on a uniform basis, a Member may from time to time reallocate in whole
percentages his various fund account balances among the various available funds.
Following a reallocation, amounts that have been transferred
shall retain the after-tax, before-tax, matching, or rollover character which
was attributable to such amounts immediately prior to the reallocation. For
investment reallocation directions filed effective with commencement of daily
valuation under the Plan, any such reallocation direction shall become effective
on the valuation date coincident with or next following the date on which such
investment reallocation direction was made. A Member may elect to make unlimited
reallocations with respect to his accounts in any calendar quarter.
A Member's reallocation request (as well as other requests
and elections permitted under this Section 7) may be made on such forms and in
such manner as permitted by the Committee, including through telephonic notice
procedures.
7.03 Valuation:
As soon as practicable after each Valuation Date, the
Trustees or their agent shall cause separate determinations to be made of the
net value of the assets of each of
27
the Funds as of the Valuation Date. With respect to each Fund described in
Section 7.01, the income earned since the last Valuation Date shall allocated in
proportion to the average market value of the Fund's assets for each Plan Member
participating in such Fund. The average market value shall be determined as the
dollar-weighted average by time of receipt or disbursement of the market value
at the beginning of the valuation period, contributions, disbursements,
transfers and individually allocated expenses. For purposes hereof, "valuation
period" means any calendar quarter; and "income earned" means the net of
interest, dividends, unrealized appreciation and depreciation, capital gains and
losses, and investment expenses.
The Trust shall be valued at least annually. All valuations
shall be made at fair market value.
7.04 Statement of Accounts:
The Plan Administrator shall furnish to each Member, as of
each March 31, June 30, September 30 and December 31 a statement of his Account;
provided, however, that the initial statement shall be furnished as of March 31,
1988.
28
SECTION 8 WITHDRAWALS
8.01 Withdrawals from Account A and Rollover Account:
No withdrawals may be made from a Member's Account A or
Rollover Account prior to the date the Member attains age 59-1/2; provided,
however, that a Member may make such a withdrawal prior to the date he attains
age 59-1/2 if such withdrawal is necessary because of immediate and heavy
financial needs of the Member, which needs the Member is unable to meet from any
other resource available to him. The amount of such withdrawal may not exceed
the amount required to meet the immediate and heavy financial need. Such
withdrawal also may not include earnings on contributions to Account A. The
Committee shall determine the existence of such need, applying the same rules in
the same or similar circumstances.
Upon attainment of age 59-1/2, a Member may withdraw any or
all of his Account A and Rollover Account, but only one such withdrawal may be
made in any calendar quarter.
Any withdrawal permitted under this Section 8.01 on account
of the immediate and heavy financial needs of a Member will be paid entirely in
cash. Other withdrawals of Accounts invested in either the Viacom Inc. Stock
Fund or the Infinity Broadcasting Corporation Common Stock Fund may be
distributed in-kind in Viacom Class B common stock or Infinity Broadcasting
Corporation Class A common stock, respectively.
8.02 Withdrawals from Account B:
Withdrawals from Account B shall be subject to the
limitations provided in Section 8.01, provided that such withdrawals shall be
limited to the vested balance of the Member's Account B.
8.03 Withdrawals from Account C:
A Member may elect, on a Prescribed Form filed with the
Committee, to withdraw all or a portion of the balance of his Account C (as of
the Valuation Date following the date of his filing his election to withdraw).
Such election to withdraw may not be made more often than once in any calendar
quarter.
Any withdrawal permitted under this Section 8.03 of Accounts
invested in either the Viacom Inc. Stock Fund or the Infinity Broadcasting
Corporation Common
29
Stock Fund may be distributed in-kind in Viacom Class B common stock or Infinity
Broadcasting Corporation Class A common stock, respectively.
30
SECTION 9 MANNER OF PAYMENT
9.01 Retirement and Termination:
Upon a Member's retirement or termination of employment,
there shall be payable to such Member his vested interest in the value of his
Accounts (as of the Valuation Date preceding the date of distribution plus any
contributions made under Section 4 and Section 5.02 since that date) in
accordance with (a), (b), or (c) below by filing a prescribed form with the
Committee.
(a) as a single cash distribution of the full amount payable;
(b) as a single cash distribution of the full amount payable,
except that the portion of the Accounts invested in either the Viacom Inc. Stock
Fund or the Infinity Broadcasting Corporation Stock Fund shall be distributed
in-kind in Viacom Class B common stock or Infinity Broadcasting Corporation
Class A common stock, respectively;
(c) in annual, semi-annual, quarterly or monthly installments of
substantially equal amounts over a fixed period of time not to exceed the joint
life expectancies of the Member and his Beneficiary.
The amount of each annual installment under (c) above shall
be determined by dividing the amount balance at the Valuation Date immediately
preceding the initial distribution by the number of annual installments
remaining to be paid. If payments are to be made under (c) above in other than
annual installments, the amount of the annual installment determined under the
preceding sentence shall be divided by the number of payments to be made within
the year to determine the amount of each installment; provided, however, that
the last installment will include any remaining balance of the Member's Account.
If distribution of benefits is made in installment payments, the portion of the
credit balance in the Member's Accounts which was not previously distributed to
him shall be valued in accordance with Section 7.03.
Notwithstanding anything to the contrary herein contained,
any distributions under (c) above shall be subject to the following limitations:
(1) If the Beneficiary is someone other than the
Member's Spouse, the Member must anticipate receiving more than fifty percent of
the value of his Account.
(2) If benefits are being paid under (c) above, the
Member may make an irrevocable election of (i) or (ii) below, but if no election
is made prior to the date payments commence, (ii) below will be deemed to have
been elected:
31
(i) If the Beneficiary is the Member's Spouse
their joint life expectancies shall be redetermined annually; if the Beneficiary
is not the Member's Spouse, the Member's life expectancy shall be redetermined
annually.
(ii) The Member's life expectancy, or the joint
life expectancies of the Member and the Member's spouse (if the spouse is the
Beneficiary) shall not be redetermined after payments commence.
(3) No balance to be paid on the death of a Member prior
to the commencement of the Member's benefits or upon the death of the spouse
shall be paid in installments over a period longer than five years from the date
of death unless:
(a) Payments are being made to the spouse of a
Member and begin no later than the later of one year after the Member's death or
the date on which the Member would have reached age 70-1/2, and are to be paid
over a period not longer than the lifetime (or life expectancy) of the spouse;
or
(b) Payments are being made to a non-spouse
designated Beneficiary over a period no longer than the life (or life
expectancy) of the Beneficiary, and distribution to the Beneficiary commences no
later than one year after the Member's death (or spouse's death, where
Applicable).
(4) If distribution has started before the Member's
death, the remaining interest will be distributed at least as rapidly as under
the method being used as of the date of the Member's death.
9.02 Death:
Upon the death of a Member, there shall be payable to his
Beneficiary the value of the Member's Accounts and payment shall be in a lump
sum in cash no later than one year after the Member's death. A Member may elect,
by filing a Prescribed Form with the Committee, that the value of the Member's
Accounts shall be paid in a lump sum in cash, except that the portion of the
Accounts invested in either the Viacom Inc. Stock Fund or the Infinity
Broadcasting Corporation Stock Fund shall be distributed in-kind in Viacom Class
B common stock or Infinity Broadcasting Corporation Class A common stock,
respectively.
A Member may change his designated Beneficiary at any time by
filing a Prescribed Form with the Committee, subject to Section 1.04. In the
event that there is no
32
designated beneficiary living at the time of the Member's death, the balance of
the Member's Accounts shall be paid as determined in Section 1.04.
9.03 Termination or Disability Benefits:
The benefits of an Inactive or Disabled Member will be paid
in the manner provided in Section 9.01. Such benefits will commence on what
would have been his Normal Retirement Date, unless the Member requests an
earlier payment date.
9.04 Requests as to Manner and Time of Payment:
(a) If the value of the member's Account is $5,000 or less
payment under this Plan shall be made as soon as practicable after the Member' s
retirement or termination of employment in a lump sum.
If the value of the Member's Account is more than $5,000,
payment shall be made at the date requested by the Member, on a Prescribed Form
filed with the Committee.
Notwithstanding the foregoing, if a Member's termination of
employment is for any reason other than retirement, and the Member does not
elect a distribution at the earliest possible time, the Member's Accounts shall
be transferred to interest bearing bank accounts. If termination of employment
is because of retirement and the Member elects to defer distribution beyond
Normal Retirement Date, the Member's Accounts shall be transferred as of his
Normal Retirement Date to interest bearing bank accounts.
(b) Payment of benefits will begin not later than 60 days after
the close of the Plan Year in which the later of the following shall occur, but
in no event later than the April 1st following the calendar year in which the
Member attains age 70-1/2:
(1) the Member's Normal Retirement Date, or
(2) the date on which he actually retires or terminates
employment.
and such benefit shall commence at that time even if no application therefor has
been filed. If an application is denied, the procedure described in Section
10.02 shall be applicable. If the amount prescribed by this Section cannot be
ascertained by such date, a payment retroactive to such date may be made no
later than 60 days after the earliest date on which the amount of such payment
can be ascertained under the Plan.
33
9.05 Indirect Payment of Benefits:
If any Member or Beneficiary is, in the judgment of the
Committee, legally, physically or mentally incapable of personally receiving and
receipting for any payment due hereunder, payment may be made to the guardian or
other legal representative of such Member or Beneficiary or, if none, to such
other person or institution that, in the opinion of the Committee, is then
maintaining or has custody of such Member or Beneficiary. Such payment shall
constitute a full discharge with respect thereto.
9.06 Qualified Domestic Relations Order (QDRO):
Unless the Alternate Payee is an Employee or a Retired
Member, any amounts segregated under this Plan for the benefit of the Alternate
Payee pursuant to a QDRO shall be distributed to the Alternate Payee as soon as
practicable following the qualification of the QDRO by the Plan Administrator.
9.07 Distribution Upon the Sale of a Subsidiary or of
Substantially All of the Assets of a Trade or Business:
(a) In the event of the sale by the Company or a Related
Company of its interest in a subsidiary (within the meaning of Section 409(d)(3)
of the Code), a Member who continues employment with the acquirer of such
subsidiary will be treated as having terminated employment, upon the sale of
such interest in the subsidiary and, if the applicable requirements of Section
401(k)(10) of the Code are satisfied, may receive a distribution of his total
Account from the Plan, including his tax-deferred contributions in Account A.
(b) In the event of the sale by the Company or a Related
Company of substantially all of the assets of a trade or business, a Member who
continues employment with the acquirer of such assets will be treated as having
terminated employment, upon the sale of such assets and, if the applicable
requirements of Section 401(k)(10) of the Code are satisfied, may receive a
distribution of his total Account from the Plan, including his tax-deferred
contributions in Account A. For purposes of this Section 9.07(b), whether
substantially all of the assets of a trade or business have been sold shall be
determined based on the facts and circumstances, provided that a television or
radio station can constitute a separate trade or business without regard to
whether the Company or a Related Company continues to operate one or more
additional stations in the same market.
34
SECTION 10 ADMINISTRATION OF PLAN
10.01 Company:
The Company is the "plan sponsor" of the Plan, as described
by section 3(16)(B) of ERISA, and is a "named fiduciary" of the Plan, within the
meaning of section 402(a)(2) of ERISA. The Company has all responsibilities not
otherwise delegated to the Administrative Managers, the Financial Managers, the
Trustee, the Plan Administrator (including delegatees of the Company), or the
Investment Managers, including:
(a) making contributions to the Plan;
(b) amending the Plan by written resolution of the Board as provided
in Section 14; and
(c) appointing and dismissing, by written action of the Chief
Executive Officer of the Company, the Administrative Managers and the Financial
Managers.
In no event shall the Company or any other person or entity function or be
deemed to function as a fiduciary in connection with the actions described in
10.01(a) or 10.01(b) above.
10.02 Administrative Managers:
The Company, acting by written action of the Chief Executive
Officer of the Company, has appointed the Administrative Managers who are "named
fiduciaries" of the Plan, within the meaning of section 402(a)(2) of ERISA, with
respect to Plan administrative matters. Subject to the terms of the Plan, the
Trust Agreement and applicable resolutions of the Board, the Administrative
Managers have full and absolute discretion and authority to control and manage
the operation and administration of the Plan, and to interpret and apply the
terms of the Plan and the Trust Agreement. This full and absolute discretion and
authority includes, but is not limited to, the power to:
(a) interpret, construe, and apply the provisions of the Plan and
Trust Agreement, and any construction adopted by the Administrative Managers in
good faith shall be final and binding;
(b) adopt Plan amendments that do not materially increase costs
of the Plan to the Company, provided that such amendments will be made in
writing, will be made according to procedures established by the Administrative
Managers, and will be subject to the approval of the Financial Managers; and
35
(c) review appeals from the denial of benefits.
The Administrative Managers may employ, appoint, and dismiss advisors as the
Administrative Managers deem necessary to carry out the provisions of the Plan
and the Trust Agreement, including attorneys, accountants, actuaries, clerks, or
other agents, and may delegate any of their authority and duties to such
persons.
10.03 Financial Managers:
The Company, acting by written action of the Chief Executive
Officer of the Company, has appointed the Financial Managers who are "named
fiduciaries" of the Plan, within the meaning of section 402(a)(2) of ERISA, with
respect to Plan investments. Subject to the terms of the Plan, the Trust
Agreement and applicable resolutions of the Board, the Financial Managers shall
have full and absolute discretion and authority to:
(a) change or terminate the existing investment Fund
options offered under the Plan or establish additional investment Fund options;
(b) appoint and dismiss Investment Managers (as
described by section 3(38) of ERISA) and the Trustee;
(c) provide guidelines and directions to, and monitor
the performance of, Investment Managers and the Trustee;
(d) manage the funding, cost, and financial aspects of
the Plan; and
(e) adopt Plan amendments that do not materially
increase costs of the Plan to the Company, provided that such amendments will be
made in writing, will be made according to procedures established by the
Financial Managers, and will be subject to the approval of the Administrative
Managers.
The Financial Managers may employ, appoint, and dismiss advisors as the
Financial Managers deem necessary to carry out the provisions of the Plan and
the Trust Agreement, including attorneys, accountants, actuaries, clerks, or
other agents, and may delegate any of their authority and duties to such
persons.
10.04 Plan Administrator:
The Plan Administrator is responsible for, and has authority
to:
36
(a) adopt rules and procedures as necessary or appropriate for
Plan administration and the processing of claims for benefits;
(b) make all initial determinations regarding claims for
benefits, including authority to interpret and apply any applicable Plan
provisions to the facts involved in each benefits claim, and provide notice
described in Section 10.10 to any claimant whose claim is denied;
(c) subject to guidelines provided by the Administrative
Managers, direct the Trustee regarding: (i) payment of benefits to participants,
and (ii) payment of the reasonable and necessary expenses of the Plan from Plan
assets;
(d) obtain fidelity bonds and fiduciary insurance coverage, in
accordance with applicable provisions of ERISA; and
(e) comply with and monitor the Plan's continued compliance with
all governmental laws and regulations relating to recordkeeping and reporting of
participants' benefits, other notifications to participants, registration with
the Internal Revenue Service, and reports to the Department of Labor.
The Company, as the Plan Administrator, may delegate any or all of these
functions to any person or persons as it deems appropriate. Such delegation need
not be in writing.
10.05 Trustee:
The Trustee has exclusive responsibility for control and
management of Plan assets, in accordance with the Trust Agreement. The Trustee
is responsible for, and has authority to:
(a) invest, manage, and control Plan assets, subject to the
direction of the Financial Managers and Investment Managers appointed by the
Financial Managers;
(b) maintain records and accounts of all contributions, receipts,
investments, distributions, expenses, disbursements, and all other transactions;
and
(c) prepare records, reports, statements, tax returns, and forms
required to be furnished to participants or filed with the Secretary of Labor or
Treasury, as required by the Trust Agreement, or the directions of the
Administrative Managers.
10.06 Investment Managers:
37
Investment Managers manage and invest Plan assets subject to
the Plan, the Trust Agreement, and guidelines and directions provided by the
Financial Managers.
10.07 Allocation of Fiduciary Authority:
The Company, other Employers, the Administrative Managers,
the Financial Managers, the Plan Administrator, the Trustee, and the Investment
Managers (collectively, the "Plan Fiduciaries") each have individual
responsibility for the prudent execution of their responsibilities assigned
under this Plan, and are not responsible for acts or failures by another
Fiduciary, unless the Plan provides for shared fiduciary responsibility. Plan
Fiduciaries are obligated to discharge their duties with respect to the Plan
solely and exclusively in the interest of Plan participants and their
beneficiaries, and with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
Whenever the Plan or Trust Agreement requires one Fiduciary
to provide information or direct the activities of another Fiduciary, the two
may not be deemed to have shared Fiduciary responsibility. Instead, the
Fiduciary giving directions or providing information is solely responsible for
prudently directing or informing the other, and the Fiduciary receiving the
direction or information is entitled to rely on that direction or information as
proper under the Plan, the Trust Agreement, and applicable law.
Any individual may serve in more than one capacity. For
example, the same individual may serve as an Administrative Manager and as an
agent of the Company or the Plan Administrator. However, no Plan Fiduciary who
is employed by an Employer or an entity in the Controlled Group of an Employer
may be compensated for services to the Plan from Plan assets.
10.08 Indemnification of Fiduciaries:
(a) To the extent permitted by applicable law, the
Board, the Administrative Managers, the Financial Managers, the Plan
Administrator, the Trustee and any person to whom duties and responsibilities
have been allocated or delegated under this Plan and Trust ("Covered Persons")
shall be indemnified and saved harmless by the Plan and Trust from and against
any and all claims of liability arising in connection with the exercise of the
Covered Person's duties and responsibilities with respect to the Plan and Trust
by reason of any act or omission, including all expenses reasonably incurred in
the defense of such act or omission, unless:
38
(i) it will be established by final judgment of a court of
competent jurisdiction that such act or omission, including all expenses
reasonably incurred in the defense of such act or omission, involved a violation
of the duties imposed by Part 4 of Subtitle B of Title I of ERISA on the part of
such Covered Person; or
(ii) in the event of settlement or other disposition of such claim
involving the Plan and Trust, it is determined by written opinion of independent
counsel that such act or omission involved a violation of the duties imposed by
Part 4 of Subtitle B of Title I of ERISA on the part of such Covered Person.
(b) To the extent permitted by applicable law, the Trust
will pay expenses (including reasonable attorneys' fees and disbursements),
judgments, fines, and amounts paid in settlement incurred by the Covered Person
in connection with any of the proceedings described above, provided that:
(i) the Covered Person will repay such advanced expenses to the
Trust, plus reasonable interest, if it is established by a final judgment of a
court of competent jurisdiction, or by written opinion of independent counsel
under the circumstances described above, that the Covered Person violated duties
under Part 4 of Subtitle B of Title I of ERISA; and
(ii) the Covered Person will make appropriate arrangements for
repayment of advanced expenses.
Notwithstanding the foregoing, no such advanced expenses will be made in
connection with any claim against a Covered Person that is made by the Plan,
provided that upon final disposition of such claim, the expenses (including
reasonable attorneys' fees and disbursements), judgments, fines, and amounts
paid in settlement incurred by the Covered Person will be reimbursed by the Plan
to the extent provided above.
10.09 Claims for Benefits:
Each Member (or Beneficiary) must file a claim with the Plan
Administrator for any benefit to which that person believes he is entitled under
this Plan, in accordance with procedures established by the Plan Administrator.
Generally, the Plan Administrator is required to decide each
claim within ninety (90) days of the date on which the claim is filed. If
special circumstances require a longer period for adjudication, the Plan
Administrator must notify the claimant in writing of the reasons for an
extension of time, and the date by which the Plan Administrator will decide the
claim, before the ninety (90) day period expires. Extensions beyond ninety
39
(90) days after the expiration of the initial ninety (90) day period are not
permitted. If the Plan Administrator does not notify the claimant of its
decision to grant or deny a claim within the time specified by this section, the
claim will be deemed to have been denied and the appeal procedure described in
Section 10.11 below will become available to the claimant.
10.10 Notice of Denial:
If the Plan Administrator denies a claim for benefits under
the Plan, the claimant will receive a written notice that explains:
(a) the specific reason for the denial, including specific
eference to pertinent Plan provisions on which the denial is based;
(b) any additional information or material necessary to perfect a
claim, with an explanation of why such material is necessary, if any information
would be helpful or appropriate to further consideration of the claim; and
(c) the steps to be taken if the claimant wishes to appeal,
including the time available for appeal.
10.11 Appeal of Denied Claims for Benefits:
Claimants must submit a written request appealing the denial
of a claim within sixty (60) days after receipt of notice described by
Section 10.10. Claimants may review all pertinent documents, and submit issues
and comments in writing. The Administrative Managers (or their delegate) will
provide a full and fair review of all appeals from denial of a claim for
benefits, and their decision will be final and binding.
The decision of the Administrative Managers (or their
delegate) ordinarily will be given within sixty (60) days after receipt of a
written request for appeal, unless special circumstances require an extension
(such as for a hearing). If an extension of time for appeal is necessary, the
claimant will receive written notice of the extension before the sixty (60) day
period expires. The decision may not be delayed beyond one-hundred twenty (120)
days after receipt of the written request for appeal. Notice of the decision on
appeal will be provided in writing, and will explain the basis for the decision,
including reference to applicable provisions of the Plan, in a manner calculated
to be understood by the person who appealed the denial of a claim.
10.12 Exhaustion of Remedies:
40
No legal action for benefits under the Plan may be brought
unless and until the following steps have occurred:
(a) the claimant has submitted a written application for benefits
in accordance with Section 10.09;
(b) the claimant has been notified that the claim has been
denied, as provided by Section 10.10;
(c) the claimant has filed a written request appealing the denial
in accordance with Section 10.11; and
(d) the claimant has been notified in writing that the
Administrative Managers (or their delegate) have denied the claimant's appeal,
or the Administrative Managers have failed to act on the appeal within the time
prescribed by Section 10.11.
10.13 Legal Action for Benefits:
No legal action for benefits under the Plan may be brought
more than one year after the time described in Subsection 10.12(d) above.
41
SECTION 11 MANAGEMENT OF TRUST FUND
11.01 Trustee:
The Trust Fund shall be held in trust by a Trustee or
Trustees appointed from time to time by the Board with such powers and duties in
the Trustee or Trustees as shall be provided in the Trust Agreement between the
Trustee or Trustees and the Company.
11.02 Investments:
The investment of the Trust Fund shall be in accordance with
the provisions of the Trust Agreement between the Trustee or Trustees and the
Company.
11.03 Payment of Expenses:
The administrative and all other expenses of the Plan shall
be paid out of the Trust Fund unless paid by the Employers.
42
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 Disclaimer of Liability:
(a) It is the intention of each Employer to continue this Plan
and make contributions regularly each year, but nothing contained in this Plan
or the Trust Agreement by which it is implemented shall be deemed to require any
Employer to make contributions under this Plan and no Employer shall be under
any legal obligation to contribute to this Plan after the Plan has been
terminated as herein provided.
(b) Once a contribution has been made to the Trustee, no
liability shall attach to any Employer for any payment of any benefit or claims
hereunder and Members and their Beneficiaries, and all persons claiming under or
through them, shall have recourse only to the Trust Fund for payment of any
benefit hereunder.
(c) The rights of the Members, their Beneficiaries and other
persons are hereby expressly limited and shall be only in accordance with the
provisions of the Plan.
12.02 Termination:
The Company reserves the right to terminate this Plan with
respect to all Employers or may direct that any individual Employer withdraw
from the Plan. In addition, any Employer may elect to discontinue contributions
to the Plan or to terminate its participation in the Plan completely or with
respect to one or more of its divisions, locations, or operations. In the event
that the Plan is terminated (either wholly or partially) or if there is a
complete discontinuance of contributions by any participating Employer, the
amount of the Trust Fund allocable to the Account of each Employee with respect
to which the Plan is being terminated shall be determined promptly and, if not
already fully vested, shall become fully vested and nonforfeitable. (For this
purpose a suspension of contributions which is merely a temporary cessation of
contributions by any Employer shall not be deemed a complete discontinuance).
Distribution to the Members thereafter shall be made in one of the manners
described in Section 9 on the appropriate date or dates described in Section 6.
In the sole discretion of the Committee, a Member's Account may be distributed
to the Member in any manner described in Section 9.01 on any date prior to the
date which otherwise would be applicable under the preceding sentence. Until
fully distributed, each Account shall continue to be revalued in accordance with
Section 7.03.
43
12.03 Employer-Employee Relationship:
The establishment of this plan shall not be construed as
conferring any legal or other rights upon any Employee or any person for a
continuation of employment, nor shall it interfere with the rights of any
Employer to discharge any Employee or otherwise act in relation to him. Each
Employer may take any action (including discharge) with respect to any Employee
or other person and may treat him without regard to the effect which such action
or treatment might have upon him as a Member of this Plan.
12.04 Merger:
The merger or consolidation of any Employer with another
organization shall not of itself cause the termination of this Plan or be deemed
a termination of employment as to any Employee. The merger of this Plan with
another retirement plan shall not of itself cause the termination of this Plan.
In the case of any merger or consolidation of the Plan with, or in the case of
any transfer of assets or liabilities of the Plan to, any other plan, each
Member will (if the Plan then terminates) be entitled to receive a benefit
immediately after the merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately
before the merger, consolidation or transfer (if the Plan had then terminated).
12.05 Inclusion and Withdrawal of Participating Employers:
Any subsidiary, affiliated or associated corporation (or a
partnership or sole proprietorship) or other Related Company which is authorized
by the Board to participate herein may elect to participate herein by action of
its own Board of Directors (or other managing body). Each Employee of an
Employer which commences to participate in this Plan after the Effective Date
shall become a Member on the subsequent Entry Date coinciding with or next
following such association or later completion of the eligibility requirements
of Section 2.01. His period of Vesting Service shall be based upon his
employment from the date of membership only, unless otherwise specifically
provided in the authorizing resolution adopted by the Board and found in Exhibit
A hereof.
The Company at any time in its discretion may determine that
an Employer shall no longer participate in this Plan and may direct that such
Employer withdraw from this Plan. Any Employer may similarly elect to terminate
its participation in this Plan at any time.
44
12.06 Joint Employment:
Any Employee employed by more than one Employer shall be
considered to be an Employee of each such Employer for purposes of membership in
this Plan and for benefits under this Plan.
12.07 Receipt and Release:
Any final payment or distribution to any Member, Retired
Member or his Beneficiary or his legal representative or other person to whom
payment is made in accordance with this Plan shall be in full satisfaction of
all claims against the Trust Fund, the Trustee, the Committee and any Employer.
The Trustee, any Employer, the Committee or any of them may require a Member,
Retired member or his Beneficiary or his legal representative to execute a
receipt and release of all claims under this Plan upon a final payment or
distribution or a receipt to the extent of any partial payment or distribution.
The form of any such receipt and release shall be determined by the Trustee, the
Company, the Committee or any of them that are concerned with the payment or
distribution to which the receipt and release is applicable.
45
SECTION 13 NON-ALIENATION OF BENEFITS
13.01 Provisions with Respect to Assignment and Levy:
No benefit under this Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, levy
or charge, and any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber, levy upon or charge the same shall be void; nor shall any such
benefit be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person entitled to such benefit.
Notwithstanding the foregoing, the Plan shall pay benefits pursuant to a
qualified domestic relations order, as defined in Section 414(p) of the Code.
13.02 Alternate Application:
If any Member or Beneficiary under this Plan becomes bankrupt
or attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any benefit under this Plan, except as specifically provided herein, or
if any benefit shall be levied upon, garnisheed or attached, then such benefit
shall, in the discretion of the Committee, cease and terminate, and in that
event the Committee may hold or apply the same or any part thereof to or for the
benefit of such Member or Beneficiary, his spouse, children or other dependents
or any of them in such manner and in such proportion as the Committee may deem
proper.
46
SECTION 14 PLAN MERGERS AND TRANSFERS
14.01 Merger of Granum Communications, Inc. 401(k) Plan with and
into the Plan
(a) All individuals who were participants in the Granum
Communications, Inc. 401(k) Plan ("Granum Plan") as of the end of the day on
March 31, 1998, shall be eligible to participate in the Plan with respect to
compensation earned on or after April 1, 1998. Employers participating in the
Granum Plan shall be treated as participating Employers under Section 12.05 of
the Plan. The Granum Plan shall be merged with and into the Plan, effective
April 1, 1998. Amounts credited to the accounts of participants in the Granum
Plan shall be transferred to the Plan, effective April 1, 1998 ("Transferred
Amounts").
(b) Transferred Amounts shall be subject to the following
procedures:
(1) Allocation and Accounting for Transferred Amounts:
The portion of a participant's Transferred Amount representing before-tax
contributions shall be allocated to his Account A; the portion representing
after-tax contributions shall be allocated to his Account C; the portion
representing rollover contributions shall be allocated to his Rollover Account;
and the remaining portion, if any, shall be allocated to the participant's
Account B.
(2) Investment of Transferred Amounts: Transferred
Amounts shall initially be invested as follows:
Granum Plan Accounts Plan Accounts
-------------------- -------------
Schwab Money Market Fund Federated Capital Pres. Fund
Warburg Pincus Interm. Gov. Fund MFS Bond Fund
Invesco Industrial Income Fund MFS MIT Fund
Founders Balanced Fund George Putnam Fund of Boston
Warburg Pincus Internal Fund MFS World Equity Fund
Kaufman Aggr. Growth Fund MFS Emerging Growth Fund
Transferred Amounts may be reallocated among investments as provided in Section
7.02.
(3) Vesting in Transferred Amounts: A participant's
vested interest in his Transferred Amount shall be determined in accordance with
the rules of Section 6.03, provided that all prior service credited under the
Granum Plan shall be treated as service under the Plan, and further provided
that a participant's vested interest in the Transferred
47
Amounts under the Plan shall be no less than his vested interest under the
transferor plan determined as of the date such amounts are transferred to this
Plan.
(4) Distribution and Withdrawals of Transferred Amounts:
The requirements of Sections 6, 8 and 9 shall govern the withdrawal and
distribution of Transferred Amounts in the same manner as if such amounts were
originally contributed to this Plan, except that with respect to Transferred
Amounts, participants may elect a combination of the distribution options
available under Section 9.01(a) and Section 9.01(b).
14.02 Merger of American Radio Systems, Corp. Retirement Savings
Plan ("ARS Plan") with and into the Plan
(a) The ARS Plan shall be merged with and into the Plan,
effective April 1, 1999. Amounts credited to the accounts to participants in the
ARS Plan shall be transferred to the Plan, effective April 1, 1999 ("Transferred
Amounts").
(b) Transferred Amounts shall be subject to the
following procedures:
(1) Allocating Accounting for Transferred
Amounts: The portion of a participant's Transferred Amount representing
before-tax contributions shall be allocated to his Account A; the
portion representing rollover contributions shall be allocated to his
Rollover Account; and the remaining portion, if any, shall be allocated
to the participant's Account B
(2) Investment of Transferred Amounts:
Transferred Amounts shall initially be invested as follows:
ARS Plan Accounts Plan Accounts
----------------- -------------
Fidelity Retirement Money Federated Capital Preservation
Market Portfolio
Fidelity Puritan Fund The George Putnam Fund of Boston
Fidelity Growth & Income MFS Massachusetts Investors Trust
Fidelity Growth Company Fidelity Advisor Equity Growth
Fidelity Magellan Fidelity Advisor Growth
Opportunities
Transferred Amount may be reallocated among investments as provided in
Section 7.02.
48
(3) Vesting in Transferred Amounts: A
participant's vested interest in his Transferred Amount shall be
determined in accordance with the rules of Section 3.01 and 6.03,
provided that all prior service credited under the ARS Plan shall be
treated as service under the Plan, and further provided that a
participant's vested interest in the Transferred Amounts under the Plan
shall be no less than his vested interest under the ARS Plan determined
as of the date such amounts are transferred to this Plan.
Notwithstanding the foregoing, to the extent required under section
1.410(a)-7(g) of the Treasury Regulations, a participant's total Years
of Service for purposes of vesting in the Transferred Amounts shall not
be less than the number of Years of Service calculated by adding (i)
the number of twelve-month Periods of Service calculated through April
1, 1999 under the ARS Plan, plus (ii) the number of Years of Service
during all of 1999 and thereafter calculated under Section 3.1 of the
Plan.
(4) Withdrawal of Transferred Amounts: The
requirements of Section 8 shall govern the withdrawal of Transferred
Amounts in the same manner as if such amounts were originally
contributed to this Plan, except that, with respect to Transferred
Amounts, the following special rules apply: (a) participants are not
limited to one withdrawal per Plan Year for post age 59 1/2 withdrawals
described in Section 8.01 or 8.02; (b) the portion of the Transferred
Amount allocated to the Rollover Account can be withdrawn at any time,
without restrictions; and (c) any withdraw of a portion of the
Transferred Amount that represents amounts transferred from the Henry
Broadcasting Company 401(k) Profit Sharing Plan may be made in the form
of a qualified joint and survivor annuity.
(5) Distribution of Transferred Amounts: The
requirements of Sections 6 and 9 shall govern the distribution of
Transferred Amounts in the same manner as if such amounts were
originally contributed to this Plan, except that with respect to
Transferred Amounts, the following special rules apply: (a)
participants may elect an in-kind distribution option (other than
employer stock); and (b) participants may also elect (with spousal
consent, to the extent an annuity option other than a joint and 50%
survivor annuity is elected)) the following distribution options to the
extent that the Transferred Amount represents amounts transferred to
the ARS Plan from the Henry Broadcasting Company 401(k) Profit Sharing
Plan:
(i) In-kind installment payments (except not in
employer stock);
(ii) Single life annuity;
49
(iii) Joint and 50% survivor annuity; and
(iv) Other qualifying annuity contract
14.03 Merger of Alta Broadcasting Employee Savings & Protection
Plan ("Alta Plan") with and into the Plan
(a) The Alta Plan shall be merged with and into the
Plan, effective January 4, 2000. Amounts credited to the accounts of
participants in the Alta Plan shall be transferred to the Plan,
effective January 4, 2000 ("Alta Transferred Amounts"), based on Alta
Plan account balances as of the end of the day on January 3, 2000.
(b) Alta Transferred Amounts shall be subject to the
following procedures:
(1) Allocating and Accounting for Alta
Transferred Amounts: The portion of a participant's Alta
Transferred Amount representing before-tax contributions shall
be allocated to his Account A; the portion representing
rollover contributions shall be allocated to his Rollover
Account; and the remaining portion, if any, shall be allocated
to his Account B.
(2) Investment of Alta Transferred Amounts:
Alta Transferred Amounts shall initially be invested as
follows:
Alta Plan Accounts Plan Accounts
------------------ -------------
Mass Mutual Destiny Aggressive Fund MFS MIT Fund
Mass Mutual Destiny Conservative Fund Fleet Stable Asset
Fund
Mass Mutual Destiny International Equity MFS World Equity
Fund
Mass Mutual Destiny Moderate Fund The George Putnam
Fund of Boston
Alta Transferred Amounts may be reallocated among investments
as provided in Section 7.02.
50
(3) Vesting in Alta Transferred Amounts: A
participant's vested interest in his Alta Transferred Amount
shall be determined in accordance with the rules of Sections
3.01 and 6.03, provided that all prior service credited under
the Alta Plan shall be treated as service under the Plan, and
further provided that a participant's vested interest under
the Plan shall be no less than his vested interest under the
Alta Plan determined as of the date the Alta Transferred
Amounts are transferred to this Plan.
(4) Withdrawal of Alta Transferred Amounts: The
requirements of Section 8 shall govern the withdrawal of Alta
Transferred Amounts in the same manner as if such amounts were
originally contributed to this Plan, except that, with respect
to Alta Transferred Amounts, participants are not limited to
one withdrawal per calendar quarter for post age 59 1/2
withdrawals described in Section 8.01 or 8.02.
(5) Distribution of Alta Transferred Amounts:
The requirements of Sections 6 and 9 shall govern the
distribution of Alta Transferred Amounts in the same manner as
if such amounts were originally contributed to this Plan,
except that with respect to the complete Account (including
the Alta Transferred Amounts) participants who have attained
age 55 on or before January 4, 2000 are not required to
complete any Years of Service to be eligible for the early
retirement benefit under Section 6.01.
14.04 Trust-to-Trust Transfer of Accounts from the CBS Employee
Investment Fund ("EIF") into the Plan
(a) Accounts under the EIF of individuals who became
Eligible Employees effective January 1, 2000, pursuant to Plan
amendment, and who, on December 31, 1999, were eligible to participate
in the EIF ("EIF Transferred Employees"), shall be transferred into the
Plan, pursuant to a trust-to-trust transfer, effective January 14, 2000
(the "EIF Transferred Amounts"), based on EIF account balances as of
the end of the day on January 13, 2000.
(b) EIF Transferred Amounts shall be subject to the
following procedures:
(1) Allocating and Accounting for Transferred
Amounts: The portion of a participant's EIF Transferred Amount
representing before-tax contributions shall be allocated to
his Account A; the portion representing rollover contributions
shall be allocated to his Rollover Account; and the remaining
portion, if any, shall be allocated to his Account B.
51
(2) Investment of EIF Transferred Amounts:
EIF Transferred Amounts shall initially be invested as
follows:
EIF Accounts Plan Accounts
------------ -------------
Company Stock Fund CBS Corporation Stock
Fund
International Equity Index Fund MFS World Equity Fund
Infinity Broadcasting Corporation Infinity Broadcasting
Stock Fund Corporation Stock Fund
Long-Term Life Cycle Fund The George Putnam Fund
of Boston
Medium-Term Life Cycle Fund The George Putnam Fund
of Boston
Short-Term Life Cycle Fund The George Putnam Fund
of Boston
Small Cap U.S. Equity Fund S&P 500 Index Fund
Stable Value Fund Fleet Stable Asset Fund
S&P 500 Index Fund S&P 500 Index Fund
Value U.S. Equity Fund S&P 500 Index Fund
EIF Transferred Amounts may be reallocated among investments
as provided in Section 7.02.
(3) Vesting in EIF Transferred Amounts: An EIF
Transferred Employee's vested interest in his EIF Transferred
Amount shall be determined in accordance with the rules of
Sections 3.01 and 6.03, provided that all prior vesting
service credited under the EIF shall be treated as Years of
Service under the Plan, and further provided that (i) an EIF
Transferred Employee's vested interest under the Plan shall be
no less than his vested interest under the EIF determined as
of the date the EIF Transferred Amounts are transferred to
this Plan, and (ii) an EIF Transferred Employee whose first
vesting computation period under the Plan begins before the
last day of the preceding vesting computation period under the
EIF, and is credited with 1,000 hours of service in both such
vesting computation period under the EIF and such vesting
computation period under the Plan will be credited with two
Years of Service for these vesting computation periods.
(4) Grandfathered Rights: To the extent EIF
Transferred Amounts include amounts transferred to the EIF
prior to January 1, 2000
52
from other qualified plans pursuant to trust-to-trust
transfers, described below, such amounts are subject to the
following special grandfather rules:
(i) Midwest. Rollover account amounts
transferred from the Midwest Communications, Inc.
Retirement Savings Plan to the EIF, effective April
30, 1992, are available for in-service distributions
at any time (in amounts not less than $1000).
(ii) WCCO. Rollover account amounts
transferred from the WCCO Television, Inc. AFTRA
401(k) Plan to the EIF, effective September 2, 1992,
are available for in-service distributions at any
time (in amounts not less than $1000).
(iii) WSP. With respect to amounts
transferred from the Westinghouse Savings Program to
the EIF, effective January 2, 1998, (I) a vested
participant may make in-service withdrawals for any
reason and at any time from his or her after-tax and
matching contribution accounts and (II) a participant
who has retired under a CBS Corporation (or
affiliate) pension plan, or who suffers a disability,
may elect total or partial distributions.
53
SECTION 15 AMENDMENTS
15.01 Company's Rights:
The Company reserves the right, acting by written resolution
of the Board or its delegates, at any time, and from time to time, to amend, in
whole or in part, any and all of the provisions of the Plan. The Administrative
Managers and Financial Managers may also adopt certain Plan amendments in
accordance with Subsections 10.02(b) and 10.03(e). Notwithstanding the above, no
part of the assets of the Plan shall, by reason of any amendment, be used for or
diverted to purposes other than for the exclusive benefit of the Members and
their Beneficiaries under the Plan and to pay Plan expenses. In addition,
subject to Sections 5.05 and 5.06, (a) no amendment shall eliminate or reduce
benefits that have already accrued and that are protected under section
411(d)(6) of the Internal Revenue Code, and (b) if the vesting schedule of the
Plan is amended, in the case of an Employee who is a Member as of the later of
the date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such Employee's
benefit will not be less than the percentage computed under the Plan without
regard to such amendment. Any amendments to the Plan, whether made by the
Company, the Administrative Managers, the Financial Mangers, or persons to whom
they have delegated authority, shall be made by such persons in their capacities
as agents of the Company and not in their capacities as fiduciaries of the Plan.
54
SECTION 16 CONSTRUCTION
16.01 The provision of this Plan shall be construed, regulated and
administered according to the laws of the State of New York and any other
Applicable Law.
Wherever applicable, the masculine pronoun as used herein
shall be deemed to include the feminine pronoun, and the singular shall be
deemed to include the plural.
55
SECTION 17 TRUST AGREEMENT AND EXHIBITS
17.01 The Trust Agreement, and Exhibits attached hereto are hereby
made a part of this Plan.
56
SECTION 18 ELIGIBLE ROLLOVER DISTRIBUTIONS
18.01 This Article applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the contrary that
would otherwise limit a distributee's election under this Article, a distributee
may elect, at the time and in the manner prescribed by the Plan Administrator,
to have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
18.02 Definitions:
(a) Eligible rollover distribution: An eligible
rollover distribution is any distribution of all or any portion of the balance
to the credit of the distributee, except that an eligible rollover distribution
does not include: any distribution that is one of a series of substantially
equal periodic payments (not less frequently than annually) made for the life
(or life expectancy) of the distributee or the joint lives (or joint life
expectancies) of the distributee and the distributee's designated beneficiary,
or for a specified period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the Code; and the
portion of any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation with respect to
employer securities).
(b) Eligible retirement plan: An eligible retirement
plan is an individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b) of the Code,
an annuity plan described in section 403(a) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(c) Distributee: A distributee includes an employee or
former employee. In addition, the employee's or former employee's surviving
spouse and the employee's or former employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as defined in
section 414(p) of the Code, are distributees with regard to the interest of the
spouse or former spouse.
(d) Direct Rollover: A direct rollover is a payment by
the Plan to the eligible retirement plan specified by the distributee.
57
Executed this _____ day of _________________, _____.
BY _______________________________
58
EXHIBIT A
RESERVED
59
EXHIBIT B
TOP-HEAVY
1. Effective Date - The provisions of this Exhibit B shall
become effective for the first Plan Year after 1983 in which this Plan is
Top-Heavy.
2. Definitions
(a) "Key Employee" shall mean any employee or former employee
(and the beneficiaries of such employee) who at any time during the
determination period was an officer of the Employer if such individual's annual
compensation for a Plan Year exceeds 150 percent of the dollar limitation under
section 415(c) (1) (A) of the Code, an owner (or considered an owner under
section 318 of the Code) of one of the ten largest interests in the Employer if
such individual's compensation for a Plan Year exceeds 100 percent of such
dollar limitation, a 5-percent owner of the Employer, or a 1-percent owner of
the Employer who has an annual compensation for a Plan Year of more than
$150,000. The determination period is the Plan Year containing the Determination
Date and the 4 preceding Plan Years. The determination of who is a Key Employee
will be made in accordance with Section 416 of the Code and the Regulations
issued thereunder. For purposes hereof "compensation" means the total pay for
purposes of Federal Tax Form W-2 paid to an Employee during a Plan Year.
(b) "Top-Heavy Plan Year" means, with respect to any Plan Year
that begins after 1983, any such year in which the Top-Heavy Ratio exceeds 60%.
(c) "Compensation" means that term as defined in Section 1.10,
subject to the limitation that, the maximum Compensation for an Employee shall
be $200,000 or such higher amount as is permitted for such Plan Year under
Section 416(d) of the Code and the Regulations issued thereunder.
(d) "Top-Heavy Ratio" means, as of the Determination Date for a
Plan Year (last day of the preceding Plan Year), the ratio of (i) below to (ii)
below:
(i) the sum of (A) and (B)
(A) the aggregate present values of accrued
benefits for all Key Employees under this Plan, plus
60
(B) the aggregate account values and the
aggregate present values of accrued benefits for all Key Employees under all
other plans in the Aggregation Group in which this Plan is included,
(ii) all such aggregate values for all individuals under
all plans in such Aggregation Group.
In determining the value of any individual's account or the present value of his
accrued benefit under this Plan or any other plan in the Aggregation Group:
(1) the value of such account or the present
value of such accrued benefit shall be increased by the aggregate distributions
made with respect to such individual from such plan during the five (5) year
period ending on the Determination Date;
(2) rollover contributions and transfers from
other plans shall not be taken into account to the extent provided under Section
416 of the Code and the regulations thereunder;
(3) for Plan Years beginning after December 31,
1984, if any person has not period services for the Employer or any Related
Company at any time during the five (5) year period ending on the Determination
Date, then the present value of the Member's accrued benefits and account
balances shall not be taken into account; and
(4) in the case of a defined benefit plan, the
present value of such accrued benefit shall be determined by using actuarial
assumptions set forth for such purpose in such Plan.
(e) "Aggregation Group" means all plans of the Employer and any
Related Company (including terminated Plans) in which one or more Key Employees
are participants, and all other plans maintained by the Employer or any Related
Company that enable any plan in which a Key Employee is a participant to comply
with the coverage and nondiscrimination requirements of Section 401 (a) (4) or
410 of the Code; and all plans of the Employer and any Related Company that the
Employer designates as part of the Aggregation Group provided the resulting
Aggregation Group meets the coverage and nondiscrimination requirements of
Sections 401 (a) (4) and 410 of the Code.
3. Determination of Top-Heaviness - For the purpose of making a
determination as to the top-heaviness of this Plan under Section 416(g) of the
Code, this Plan will be aggregated with any other plan maintained by the
Employer and/or a Related
61
Employer in the Aggregation Group. Pursuant to Section 416(g), the Top-Heavy
Ratio for Key Employees for any Plan Year shall be determined as of the last day
of the preceding Plan Year ("Determination Date") based on the actuarial
assumptions set forth in the defined benefit plan for the purpose of
determination of top-heavy, and the present value of Accrued Benefits determined
by such assumption as of the Valuation Date, under the defined benefit plan, and
the value of Accounts under this Plan. The Valuation Date shall be the first day
of the Plan Year in which such Determination Date occurs for a defined benefit
plan, and shall be the last day of the Plan Year for a defined contribution
plan. The Determination Date for the first Plan Year shall be December 31, 1988.
Any Employee who is eligible to under this Plan pursuant to
Section 2.01 and who does not receive a minimum benefit under the defined
benefit plan maintained by the Employer, and who is in the employ of the
Employer on the last day of a Plan Year, shall receive a contribution equal, to
(a) minus (b) below:
(a) 5% of total compensation for purposes of Federal Tax Form W-2
for the Plan Year
(b) Any contribution made pursuant to Sections 5.02 and 5.03.
5. In a Top-Heavy Plan Year, the figure "l.25" appearing in
Section 5.04B shall be deemed to read "1.0", unless the defined benefit plan of
the Employer and any Related Employer is amended with respect to such Plan Year
by changing the figures "2%" and "20%" appearing in Section 4 above to read "3%"
and "30%" respectively. In any Super Top-Heavy Plan Year, the figure "1.25"
appearing in Section 5.04B shall be deemed to read "1.0".
62
EXHIBIT C
LOANS
1. Subject to the conditions and limitations of this Section, a Member
who has no loans outstanding from the Plan, by a request in writing filed with
the Committee at least 30 days in advance, may request a loan as of the end of
any calendar quarter from his Accounts A and C and Rollover Account, and the
vested portion of his Account B (after all adjustments, credits and charges
required as of the date have been made), subject to the limitation of Section
(5) below.
The Committee shall grant loans on a uniform and non-discriminatory basis.
The Committee shall determine whether the facts presented to it justify granting
an individual Member a loan and the portion of his Account to be loaned. The
Committee may require the Member to submit to it any facts it deems necessary to
substantiate a member's request. All decisions of the Committee shall be final.
If approved by the Committee, the portion of the Account loaned shall be paid to
the Member as soon as is practicable thereafter.
In no event may more than one loan be made to a Member during any Plan Year. In
addition, no Member shall have more than one loan outstanding at any time. All
loans initiated prior to January 1, 2000, and any loans transferred to the Plan
pursuant to a plan merger or trust-to-trust transfer shall be considered a
single loan for purposes of this one-loan limitation. The loan shall be deemed
to be an investment of the Account of the Member to whom the loan is made.
2. Each loan shall bear interest at a rate equal to the Prime Rate set by
Chase Manhattan Bank, N.A. as of the first day of the Plan Year in which the
loan is made. The interest rate charged shall not violate any applicable usury
laws.
3. The terms of the loan shall be arrived at by mutual agreement between
the Committee and the Member, but in no event shall such loan be outstanding for
a period that exceeds five (5) years, unless the loan is used to acquire any
dwelling unit which, within a reasonable time, is to be used (determined at the
time the loan is made) as a principal residence of the Member, in which event
the loan may be over a period not to exceed 10 years. Every loan applicant shall
receive a clear statement of the charges involved on each loan transaction. This
statement shall include the dollar amount and annual interest rate of the
finance charge. The loan agreement shall provide that the Member (and the
Member's spouse, if any) agree that distribution of the Member's Account shall
be made in a lump sum at the time of retirement, death or termination of
63
employment if any balance of the loan remains unpaid at the date of
distribution, and such distribution shall be reduced by the unpaid balance of
the loan.
4. Any such loan or loans shall be repaid by the Member in level
installments at least quarterly through payroll deductions, and shall be
adequately secured either by the Account of the Member or some other security
deemed by the Committee to be adequate. Prepayment of the entire outstanding
balance will be permitted at any time; otherwise no prepayment will be
permitted. In the case of a Member who is no longer employed by the Employer,
but who continues to be employed by a Related Company, repayment may be made by
check or money order, and such a Member remains eligible to take out loans
pursuant to this Exhibit C.
5. Loans made pursuant to this Exhibit C shall be limited to the amount
under (i) or (ii) below, whichever is smaller: (i) $50,000 reduced by the
highest outstanding balance of loans from the Plan during the one-year period
ending on the day before the date such loan is made, or (ii) 50% of the vested
Account balance of the Member's Accounts under this Plan. The $50,000 maximum in
(i) above applies to the total loans outstanding from this Plan and any and all
other plans maintained by the Employer. No loan of less than $1,000 will be
permitted.
6. For each loan that is initiated by a Participant, there will be a one-
time loan initiation fee charged to the Participant.
64
EXHIBIT 4.18
INFINITY BROADCASTING CORPORATION
UNION EMPLOYEES' 401(k) PLAN
(INCLUDING AMENDMENTS THROUGH CLOSE OF
CBS/VIACOM MERGER)
INFINITY BROADCASTING CORPORATION
UNION EMPLOYEES' 401(k) SAVINGS PLAN
(Effective January 1, 1988)
1.01 "Account" or "Accrued Benefit" means a Member's interest in the
assets of the Trust Fund represented by the value of his Account A, Account B,
Account C, and Rollover Account which shall be determined as of any Valuation
Date.
1.02 "Allocation Date" means December 31st of each Plan Year.
1.03 "Applicable Law" means the Code or ERISA, as hereinafter defined.
1.04 "Beneficiary" means the person or persons (including a trust, or
the estate or the Member) designated by the Member to receive the balance, if
any, of the Member's Account upon the Member's death, either before or after
retirement. In addition to designating a primary Beneficiary, a Member may
designate a secondary Beneficiary to receive the death benefit in the event the
primary Beneficiary does not qualify or survive. If no Beneficiary has been
designated, or if for any reason no person designated qualified as a Beneficiary
at the time of the Member's death, or if no designated Beneficiary survives the
Member, any death benefit payable hereunder upon the Member's death shall be
paid in a lump sum to the spouse of the Member, and if there is no spouse, to
the Member's estate.
If the designated Beneficiary survives the Member but dies before
receiving the entire death benefit otherwise payable (and he is not survived by
a secondary Beneficiary, or the secondary Beneficiary also dies), the remainder
shall be paid in a lump sum, to the estate of the last surviving designated
Beneficiary.
Notwithstanding the foregoing, with respect to any beneficiary
designation the spouse of the Member shall be the primary beneficiary unless the
spouse of the Member consents to the naming of another primary beneficiary. Such
consent shall be in writing, and shall acknowledge the effect of such consent,
and shall be witnessed by a Committee Member or by a notary public; provided,
however, that if it is established to the satisfaction of the Committee that the
spouse of the Member cannot be located, such consent will not be required. Any
such consent shall only be effective with respect to the spouse who gives the
consent. The Member may change his Beneficiary at any time by filing with the
Committee a new Beneficiary designation on a Prescribed Form, subject to the
consent of the spouse as aforesaid.
1.05 "Board" means the Board of Directors of the Company.
-2-
1.06 "Break in Service" means a Break in Service as defined in
Section 3.04.
1.07 "Code" means the Internal Revenue Code of 1986 as it now exists
or may from time to time be amended.
1.08 Reserved.
1.09 "Company" means Infinity Broadcasting Corporation and any
organization which is a successor thereto.
1.10 "Compensation" means, with respect to any Plan Year, the total
remuneration paid to an Employee during such Plan Year and reportable for
purposes of Federal Tax Form W-2; provided however, that for purposes of
determining the amount of contributions to Accounts A and B, "Compensation"
shall include contributions made to Account A during such Plan Year.
On and after January 1, 1989, Compensation shall not exceed
$200,000 or such higher amount as is permitted under Section 401(a)(17) of the
Code.
In addition to other applicable limitations set forth in the
Plan, and notwithstanding any other provision of the Plan to the contrary, for
Plan Years beginning on or after January 1, 1994, the annual compensation of
each employee taken into account under the Plan shall not exceed the OBRA '93
annual compensation limit. The OBRA '93 annual compensation limit is $150,000,
as adjusted by the Commissioner for increases in the cost of living in
accordance with section 401(a)(17)(B) of the Internal Revenue Code. The
cost-of-living adjustment in effect for a calendar year applies to any period,
not exceeding 12 months, over which compensation is determined (determination
period) beginning in such calendar year. If a determination period consists of
fewer than 12 months, the OBRA '93 annual compensation limit will be multiplied
by a fraction, the numerator of which is the number of months in the
determination period, and the denominator of which is 12.
For Plan Years beginning on or after January 1, 1994, any
reference in this Plan to the limitation under section 401(a) (17) of the Code
shall mean the OBRA '93 annual compensation limit set forth in this provision.
If compensation for any prior determination period is taken into
account in determining an employee's benefits accruing in the current Plan Year,
the compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods
-3-
beginning before the first day of the first Plan Year beginning on or after
January 1, 1994, the OBRA '93 annual compensation limit is $150,000.
1.11 "Deferred Retirement" means the continued employment of an Active
Member after his Normal Retirement Date.
1.12 "Effective Date" means January 1, 1988.
1.13 (a) "Employee" means any person employed by an Employer or a
Related Company.
(b) "Eligible Employee" means an Employee who is not an
Ineligible Employee.
(c) "Ineligible Employee" means an Employee who is ineligible for
membership in the Plan because:
(1) the Employee is not covered under the collective bargaining
agreement entered into by the Employer and the Union; or
(2) the Employee is employed by a division, location or operation
of the Company or of a Related Company with respect to which the Plan has not
been adopted.
(3) the Employee is employed by an Employer in a business unit
that was covered by the CBS Employee Investment Fund on December 31, 1998.
(d) "Highly Compensated Employee" means, for purposes of the test
in Section 5.02, an Eligible Employee of the Employer or any Related Company who
meets (or met, with respect to a prior Plan Year) the requirements of Section
2.01 and who falls under either (i) or (ii) below:
(i) during the Plan Year prior to the current Plan Year
(A) was a 5% owner of the Company, as defined in Section
416(i)(1)(B)(i); or
(B) received compensation from the Company in excess of
$75,000 (or such higher amount as is specified in
Section 414(q) of the Code and the regulations issued
thereunder); or
(C) received compensation from the Company in excess of
$50,000 (or such higher amount as is specified in
Section 414(q) of the Code and the
-4-
regulations issued thereunder) and was in the
"top-paid group" (the top 20% of the Company's
payroll) for the year; or
(D) was an officer of the Company receiving Compensation
exceeding 150% ___ of the defined contribution plan
dollar limit (currently $30,000) then in _____ effect.
(ii) for the current Plan Year
(A) is a 5% owner of the Company; or
(B) both
(1) falls under (B), (C) or (D) of (i) above or the
current Plan Year, and
(2) is one of the 100 Eligible Employees of the
Employer who receive the highest compensation for
the current Plan Year.
For purposes of this Section 1.13(d) "compensation" means the
total remuneration paid to an Employee during a Plan Year and reportable for
purpose of Federal Tax Form W-2, plus any contributions made under Section 5.02.
(e) "Non-Highly Compensated Employee" means any Eligible Employee
who meets the requirements of Section 2.01 and who is neither a Highly
Compensated Employee nor a "Family Member" as that term is defined in Code
Section 414(q)(6)(B).
1.14 "Employer" means each of the following business entities (except
that, in adopting the Plan for the benefit of its employees, such business
entity may limit the application of the Plan to one or more of its divisions,
locations or operations):
(a) the Company;
(b) any subsidiary, affiliated or associated corporation (or a
partnership or sole proprietorship) or other Related Company, as hereinafter
defined, which elects to participate herein pursuant to Section 12.05; and
(c) any predecessor thereof or successor thereto.
1.15 "Entry Date" means any January 1 and July 1 on and after
January 1, 1988.
-5-
1.16 "ERISA" means the Employee Retirement Income Security Act of 1974
as it now exists or may from time to time be amended.
1.17 "Fund" means any Fund which may be authorized for use under this
Plan by the Committee.
1.18 "Hour of Service" means the unit of Service with an Employer as
described in Section 3.01.
1.19 (a) "Member" means any person who is included in the membership
of this Plan as provided in Section 2, and who is currently an Active Member,
Inactive Member, Retired Member or a Suspended Member.
(b) "Active Member" means a Member who is working for an Employer
and who is an Eligible Employee.
(c) "Inactive Member" means a Member whose employment has
terminated and who is entitled to, but has not commenced to receive, benefits in
accordance with the provisions of Section 6.03.
(d) "Retired Member" means a Member who has retired under this
Plan in accordance with its provisions and has not as yet received all of the
payments due to him from his Account, and shall include a formerly Inactive
Member from the time he commences receiving benefits. The terms "Retired Member"
shall include a Disabled Member, except where the context shall clearly indicate
to the contrary.
(e) "Disabled Member" means a Retired Member who is disabled and
who is receiving or is entitled to receive the value of his Account as provided
in Section 6.02.
(f) "Suspended Member" means a previously Active Member who is
still working or an Employer and has not incurred a Break in Service, but who
has become an Ineligible Employee.
1.20 "Military Service" means a leave of absence from active
employment of an Employer during which the Employee was in the Armed Forces of
the United States of America if, after termination of such service, the Employee
reenters the employ of an Employer during the period while his reemployment
rights are protected by law without any intervening employment elsewhere.
-6-
In the event a person in Military Service fails to return to the
employ of an Employer, as provided herein, he shall be considered as having
terminated his employment as of the commencement of such Military Service.
1.21 "Named Fiduciary" means
(a) with respect to the administration of the terms of this Plan,
other than the review procedure described in Section 10.02(c) and the
administration of the Trust Fund, the Committee;
(b) with respect to the review procedure detailed in Section
10.02(c), the reviewer appointed pursuant thereto; and
(c) with respect to the administration of the Trust Fund, the
Trustee.
1.22 "Normal Retirement Date" means the first day of the month
coinciding with or next following the Member's 65th birthday.
"Normal Retirement Age" means the Member's 65th birthday.
1.23 "Permitted Leave" means any leave of absence approved by an
Employer, for a period which shall not be in excess of two years, provided that
upon termination of such leave of absence the Employee promptly returns to the
employ of an Employer, without intervening employment (other than Military
Service), except with the consent of an Employer. In the granting of any such
leave, an Employer shall act in a uniform and nondiscriminatory manner with
respect to all Employees similarly situated.
In the event a person on Permitted Leave fails to return to the
employ of an Employer, as provided herein, he shall be considered as having
terminated his employment as of the commencement of the Permitted Leave.
1.24 "Plan" means the Union Employees' 401(k) Savings Plan of the
Company as described herein as of the Effective Date hereof, and as it may from
time to time be amended, which Plan is intended to be a profit sharing plan
pursuant to relevant provisions of the Code.
1.25 "Plan Administrator" means the Company.
1.26 "Plan Year" means a calendar year. The Plan Year shall be the
limitation year for purposes of Section 415 of the Code and Section 5.04 hereof.
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1.27 "Prescribed Form" means an administrative form prepared and made
available by the Committee, which is prescribed by the Committee for use in
applying for a benefit or in filing an election with respect to a benefit under
this Plan.
1.28 "Related Company" means any business entity which, together with
the Employer is:
(a) Included within a "Controlled Group of Corporations", under
Section 414(b) of the Code;
(b) Included within a commonly controlled group, under Section
414(c) of the Code;
(c) Included in an affiliated service group under Section 414(m)
of the Code;
"Related Company" includes any division, location or operation of any Employer
not included in Exhibit A.
1.29 "Service" and all terms related thereto shall have the meanings
described in Section 3.
1.30 "Trust Fund" or "Fund" means all the assets which are held by the
Trustee for the purposes of this Plan.
1.31 "Trustee" means the Trustee or Trustees named in the Trust
Agreement referred to in Section 11 hereof and any additional or successor
Trustee or Trustees from time to time acting as Trustee of the Trust Fund as
provided in Section 11.02. "Trustee" shall be deemed to refer to the plural as
well as to the singular, except where the context otherwise requires.
1.32 "Union" means United Electrical, Radio and Machine Workers of
America and its Local 262.
1.33 "Valuation Date" means the last day of each calendar quarter or
such other day or dates established by the Committee and the Trustee for
purposes of valuing contributions, distributions, withdrawals, loans, and/or
Member investment election changes.
1.34 "Year of Service" means a period of Service with the Company, as
described in Section 3.01(c).
-8-
1.35 "Administrative Managers" means the person(s) appointed by the
Company, by written action of the Chief Executive Officer of the Company, as
Administrative Managers, who are "named fiduciaries" of the Plan, within the
meaning of section 402(a)(2) of ERISA, with respect to Plan administrative
matters.
1.36 "Financial Managers" means the person(s) appointed by the
Company, by written action of the Chief Executive Officer of the Company, as
Financial Managers, who are "named fiduciaries" of the Plan, within the meaning
of section 402(a)(2) of ERISA, with respect to Plan investments.
-9-
SECTION 2 MEMBERSHIP
2.01 Eligibility Requirements
(a) Eligibility for Contributions to Account A
An Eligible Employee shall be eligible to become a Member for
purposes of contributions to Account A on the first day of the month coinciding
with or next following his completion of his probationary period. For purposes
hereof, an Employee's probationary period shall begin on the date he first
completes an Hour of Service and end 60 days thereafter, provided he is then
still in the employ of the Employer.
(b) Eligibility for Contributions to Account B
On and after January 1, 1988, each Eligible Employee shall
become a Member, for purposes of contributions to Account B, on the Entry Date
coinciding with or next following his attainment of age 21 and completion of one
Year of Service.
(c) Each Eligible Employee upon becoming a Member shall be deemed
conclusively, and for all purposes, to have assented to the terms and provisions
of this Plan and shall be bound thereby.
Every Eligible Employee shall be notified of his eligibility by
his Employer and shall designate in writing, on a Prescribed Form filed with the
Committee, a Beneficiary or Beneficiaries to receive the balance in the Member's
Account, if any, in the event that the death of the Member should occur before
such entire balance has been paid to the Member, subject to Section 1.04.
2.02 Change in Employment Status:
(a) Change From Eligible to Ineligible Status. If an Active
Member becomes an Ineligible Employee because of a change in his employment
status (including a transfer to the employ of a Related Company which is not an
Employer), he shall not be deemed to have incurred a Break in Service, but shall
become and shall remain a Suspended Member for so long as he remains in such
status, and
(1) While he is a Suspended Member, he shall retain credit for
Vesting Service prior to becoming a Suspended Member and his continued
employment while a Suspended Member shall be counted as part of his Vesting
Service to the extent that the requirements of Section 3.03 are satisfied.
-10-
(2) His Account shall continue to be revalued in accordance with
Section 7.03 but he shall no longer share in the allocation of Employer
contributions or forfeitures unless and until he again becomes an Active Member.
(3) When a Suspended Member's employment terminates for any
reason, including retirement or death, he (or, in the event of his death, his
Beneficiary) shall be entitled to the benefits provided under the applicable
provisions of Section 6.
(b) Change from Ineligible to Eligible Status. If a person who has
been an Ineligible Employee becomes an Eligible Employee because of a change in
his employment status (including a transfer to the employ of a Related Company
which is an Employer), his prior period of employment while an Ineligible
Employee shall be counted as part of his Eligibility Service and Vesting Service
to the extent that the requirements of Sections 3.02 and 3.03 are satisfied.
(c) Transfer From One Employer To Another. In the event that a Member
leaves the employ of one Employer to enter directly into the employ of another
Employer he shall not be deemed to have terminated his membership hereunder but
shall be considered for all purposes of this Plan thereafter as an Employee of
the succeeding Employer from the date of such transfer. Any such transferred
Member shall receive credit for his aggregate Service with all his Employers.
-11-
SECTION 3 CREDITING OF SERVICE
3.01 Service in General:
(a) The term "Service" means employment with an Employer. However,
the determination of whether and to what extent "Service" includes employment
with any business entity prior to the date on which it became part of the
Company or a Related Company shall be made by reference to the portion of
Exhibit A hereof applicable to such entity.
(b) Terms such as "employment with an Employer", "Service with an
Employer" and "working for an Employer" shall include employment with a Related
Company which is not an Employer, but only for the purpose of determining his
eligibility for membership in the Plan, or his eligibility for benefits under
the Plan, under the limited circumstances described in Section 2.02.
(c) The term "Year of Service" means a 12-month computation period
during which an Employee completes not less than 1,000 Hours of Service for an
Employer. For all purposes of this Plan the computation period shall be the Plan
Year, except as otherwise specifically provided in Section 3.02.
(d) In determining whether an Employee has a sufficient number of
Hours of Service to be eligible for a benefit under any provision hereof, the
Employee will be credited with one Hour of Service for each hour for which
either:
(1) he is paid or entitled to payment by an Employer, for the
performance of duties during the applicable Plan Year in which the duties were
performed, or
(2) he is paid or entitled to payment by an Employer for reasons
(such as vacation, holiday, sickness, temporary disability, lay-off, jury duty
or Permitted Leave) other than for the performance of duties, during the
applicable Plan Year, with the particular Hour of Service to be counted in the
Plan Year in which the period during which no duties are performed occurs,
subject to the provisions of paragraph (e) below, or
(3) back pay (irrespective of mitigation of damages) is awarded
or agreed to by the Employer, with the particular hour (which is not included in
(1) or (2) above) to be counted in the Plan Year to which the award for back pay
pertains.
(e) Notwithstanding the provisions of (d) above:
-12-
(1) If an Employee's work records are not kept on an hourly
basis, then his actual number of hours worked need not be determined but, in
lieu thereof, a determination shall be made as follows -
(A) He shall be credited with one week of Service for each
week in which he would have been credited with at least one Hour of Service
pursuant to (d) above.
(B) He shall be credited with one Year of Service for each
Plan Year in which he is credited with at least 23 weeks of Service under (A)
above (with such completion of 23 weeks of Service being the equivalent of
having completed 1,000 Hours of Service during such year).
(C) He shall be deemed to have incurred a Break in Service
if, during any Plan Year, he is not credited with at least 12 weeks of Service
under (A) above (with such completion of 12 weeks of Service being the
equivalent of having completed 501 Hours of Service during such year).
(2) For the purpose of determining the number of hours to be
credited under paragraph (d)(2) above, an Employee shall be credited with the
number of hours determined under Labor Department Regulations ss. 2530.200b-2(b)
and (c). However, he shall not be credited with any Hours of Service for any
hours compensated under a program run or required solely for the purpose of
complying with applicable workman's compensation, unemployment compensation or
disability insurance laws and in any event, he shall not be credited with more
than 501 Hours of Service under paragraph (d)(2) above during any continuous
period in which no duties are performed.
(3) The determination of an Employee's period of Service prior to
the Effective Date shall be based on the records maintained with respect to this
Plan and any other related records and need not be based on hours actually
worked.
(f) Periods of employment with two or more Employers (or, if
applicable, with an Employer and a Related Company which is not an Employer) at
the same time shall not create more than one period of Service for purposes of
this Section 3.
(g) Any special provisions applicable to the determination of Service
with a particular Employer shall be set forth in Exhibit A hereof.
3.02 Eligibility Service:
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(a) For the purpose of determining whether an Employee has completed
a Year of Service to be eligible for membership in the Plan pursuant to Section
2.01(b):
(1) Initial Period. The term "one Year of Service" means the
period of 12 consecutive months of Service with an Employer beginning with the
date the Employee first performs an Hour of Service (or returns to Service
following a Break in Service) during which he has not less than 1,000 Hours of
Service.
(2) Subsequent Period. In the event that an Employee fails to
complete 1,000 Hours of Service during that initial period, then the term "one
Year of Service" means the first Plan Year beginning after the date he first
performs an Hour of Service (or returns to Service following a Break in Service)
during which he has not less than 1,000 Hours of Service for an Employer.
(b) For the purpose of determining whether an Employee is
entitled to become an Active Member for purposes of contributions to Account B
immediately upon his return to the employ of an Employer subsequent to a Break
in Service pursuant to Section 3.05(a) a Member's years of Eligibility Service
will be credited as follows:
(1) Initial Period. The period of 12 consecutive months of
Service with an Employer beginning with the date the Employee first performs an
Hour of Service during which he has not less than 1,000 Hours of Service, plus
(2) Subsequent Period. Each Plan Year beginning after his date of
hire during which he has not less than 1,000 Hours of Service for an Employer.
3.03 Vesting Service:
For purposes of determining whether a Member has completed a
sufficient period of Vesting Service to be eligible for a Vested Pension
pursuant to Section 6.03, or eligible for a benefit under any other provision
hereof, his period of Vesting Service shall be equal to the sum of (a) and (b),
subject to (c), below.
(a)(1) Service prior to Effective Date - As of the Effective Date a
Member's completed years and months of Service shall be determined. To the
extent that a Member has been credited with a period of Service which includes
completed months totaling six or more, such period of months shall be rounded up
to a full year. If his Service includes a period of less than six completed
months, said period of months thereafter shall be disregarded.
-14-
(2) Service After Effective Date - After the Effective Date a
Member shall be credited with one year of Vesting Service for each Year of
Service after such date (or since his return to Service following his last Break
in Service, if any); and
(b) any other such period of Service prior to a Break in Service,
if any, to the extent that credit for such Service has been restored pursuant to
Section 3.05
(c) but in no event shall such period of Service include any
period prior to the applicable date referred to in Section 3.01(a) above.
3.04 Break in Service:
An Employee will be deemed to have incurred a "Break in Service"
as of the first day of each computation period in which he fails to complete at
least 501 Hours of Service (or its 12-week equivalent determined under Section
3.01(e)) after the ERISA Compliance Date whether such failure is the result of
his absence from the employ of an Employer (other than for Military Service or a
Permitted Leave), or of any change in the nature of his employment. In the event
a Member has a Break in Service, he will forfeit all benefits accrued under the
Plan, except to the extent vested pursuant to Section 6.03, subject to Section
3.05.
Solely for purposes of determining whether a Break in Service for
eligibility and vesting purposes has occurred, an Employee who is absent from
work for maternity or paternity reasons shall receive credit for the Hours of
Service which would otherwise have been credited to such Employee, but for such
absence, or in any case in which such hours cannot be determined, 8 Hours of
Service per each day of such absence. For purpose of this paragraph, an absence
from work for maternity or paternity reasons means an absence (1) by reason of
the pregnancy of the Employee, (2) by reason of a birth of a child of the
Employee, (3) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or (4) for purposes
of caring for such child for a period beginning immediately following such birth
or placement. The Hours of Service credited under this paragraph shall be
credited (1) in the computation period in which the absence begins if the
crediting is necessary to prevent a Break in Service in that period, or (2) in
all other cases, in the following computation period. Hours of Service shall not
be credited to an Employee under this paragraph unless such Employee furnishes
to the Committee such timely information as the Committee may require to
establish that the absence from employment is for the reasons described above
and to establish the number of days for which there was such an absence. No more
than 501 Hours of Service shall count for any such absence.
3.05 Restoration of Eligibility and Service
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(a) Eligibility for Contributions to Account B:
(1) A Prior Member who has five or more consecutive one year
Breaks in Service shall become an Active Member immediately upon his return to
the employ of the Employer only if (A) such Prior Member had a non-forfeitable
right under Section 6.03 to all or a portion of his Account B at the time of his
termination or (B) the Prior Member's years of Eligibility Service before his
termination of Service exceed the number of consecutive one year Breaks in
Service after such termination. A Prior Member who has less than five
consecutive one year Breaks in Service shall become an Active Member
immediately.
(2) A Prior Member who did not have a non-forfeitable right to
any portion of his Account B at the time of his termination shall be considered
a new Employee, for eligibility purposes, if the number of consecutive one year
Breaks in Service equals or exceeds the greater of five or the aggregate number
of years of Eligibility Service before such Break in Service.
(3) A former Employee who has incurred a Break in Service shall
become an Active Member upon his return to the employ of the Employer if the
greater of such Employee's years of Eligibility Service before his termination
or five, exceeds the number of consecutive one year Breaks in Service after such
termination and if such Employee has satisfied the requirements for entry into
the Plan described in Section 2.0l(b) as of the date he returns to the employ of
an Employer.
(4) A former Employee who has incurred a Break in Service shall
be considered a new Employee for eligibility purposes if the number of
consecutive one year Breaks in Service equals or exceeds the greater of five or
the aggregate number of years of Eligibility Service before such Breaks in
Service.
(b) Vesting and Benefit Service:
(1) Except as otherwise provided in (2) below, if an Employee
returns to Service following a Break in Service, his Vesting Service for the
period of Service prior to the Break in Service shall be restored as soon as he
has completed one Year of Service.
(2) The Vesting Service for such period of Service prior to a
Break in Service shall not be restored upon a return to Service if (A) the
Employee had no vested interest in his Account B under Section 6.03 at the time
of the Break in Service and (B) the number of consecutive Breaks in Service
equals or exceeds the greater of five or the period of his aggregate Vesting
Service prior to such Breaks in Service.
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SECTION 4 VOLUNTARY CONTRIBUTIONS
4.01(a) Voluntary Contributions:
A member may elect, by filing a Prescribed Form with the
Committee, to contribute to his Account C for any Plan Year an amount equal to
any whole percentage of his Compensation applicable to such Plan Year. Such
contributions may be made (i) by a single cash payment at any time during the
Plan Year or within 30 days thereafter on the basis of projected compensation
for such Plan Year, (ii) by payment of a lump sum to the Trustee; or (iii) by
means of periodic payroll deductions; or (iv) by a combination of methods under
(i), (ii) and (iii) above.
(b) Election to Contribute to Account C by Payroll Deductions
Any election to contribute to Account C by means of periodic
payroll deduction shall be made to the Committee on a Prescribed Form. Any
chance in such elections may be made in the same way prior to any subsequent
January 1, April 1, July 1 or October 1, but no more than one such change may be
made in any Plan Year with respect to any Account.
Any Member may elect to suspend contributions to Account C at any
time during the Plan Year by filing a Prescribed Form with the Committee at
least 15 days before such suspension is to become effective. Contributions to
Account C may be resumed as of any later January 1, April 1, July 1 or October 1
by filing a Prescribed Form with the Committee.
(c) Return of Excess Contribution:
If a Member's contributions in any Plan Year to his Account C
would cause the Plan to fail to meet the test referred to in Section 4.02, or
the limitations of Section 5.04, the Committee shall take such steps as may be
necessary to cause such excess amount to be returned to the Member as soon as is
practicable; but in no event later than 2-1/2 months after the close of the
applicable Plan Year (plus any earnings or minus any losses or such money).
(d) RESERVED
(e) Deposit of Contributions:
The Committee shall transfer the Member's contributions to the
Trustee as soon as practicable after such contribution is made.
-17-
4.02 Any contributions made under Section 4.01 shall be subject to the test
appearing in Section 401(m) of the Code and the regulations issued thereunder.
-18-
SECTION 5 EMPLOYER CONTRIBUTION - MEMBERS' TAX
DEFERRED CONTRIBUTIONS
5.01 Employer Contributions:
The Employer shall contribute to the Plan for each Plan Year the
sum of the elections under Section 5.02, and the Employer contributions under
Section 5.03, but not in excess of the maximum amount deductible under the
applicable provisions of the Code. Contributions under Section 5.02 shall be
transferred to the Trustees as soon as practicable, but in no event later than
the earlier of 90 days from the date such amount was withheld from the Member's
pay. Contributions under Section 5.03 shall be made not later than the due date
of the Employer's Federal Tax return (including extensions) for the fiscal year
in which the Plan Year begins.
Except as otherwise provided in Section 5.05 and 5.06, any and
all contributions made by an Employer shall be irrevocable and shall be
transferred to the Trustee and held as provided in Section 11, to be used in
accordance with the provisions of this Plan, in providing the benefits and
paying the expenses hereof. Neither such contributions nor any income therefrom
shall be used for, or diverted to, purposes other than for the exclusive benefit
members or their Beneficiaries, and payment of expenses of this Plan.
5.02 Members' Tax-Deferred Contributions:
Beginning August 1, 1988, an Eligible Employee eligible under
Section 2.01(a) may elect to defer receipt of a portion of his Compensation, and
to have contributed by the Employer on his behalf to his Account A for any Plan
Year, an amount equal to a whole percentage of his Compensation not less than 2%
nor more than 20% (in multiples of 2%); provided, however, that in any calendar
year, the total of such contributions made under this Plan and any other plan,
contract or arrangement maintained by the Employer may not exceed $7,000 or such
higher amount as is permitted under Section 402(g)(5) of the Code. Such
contributions shall be made by means of payroll deductions in equal amounts, as
designated by the Member by filing a Prescribed Form with the Committee prior to
the date such payroll deduction is to be made with respect to any Plan Year. For
the first Plan Year, only Compensation earned on or after August 1, 1988 shall
be taken into account.
Any election or change in such election shall be made to the
Committee on a Prescribed Form, effective as of the next January 1st, April 1st,
July 1st or October 1st, and such form must be filed with the Committee by the
first day of the month preceding the effective date of such election; provided,
however, that Members of the Plan as of
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January 1, 1988 may elect to commence contributions under this Section as of
February 1, 1988 or March 1, 1988. A Member may cease contributions applicable
to him at any time by notice in writing to the Committee on a Prescribed Form,
but he may not elect to have contributions applicable to him commence until the
next following January 1st, April 1st, July 1st or October 1st; provided that
only one suspension will be allowed in any Plan Year.
Notwithstanding the foregoing, the average actual deferral
percentage for the Highly Compensated Employees for any Plan Year shall not
exceed the greater of (A) or (B) as follows;
(A) The average actual deferral percentage for the Non-Highly
Compensated Employees times 1.25, or
(B) The average actual deferral percentage for the Non-Highly
Compensated Employees times 2.0; nor shall the average actual deferral
percentage exceed the average actual deferral percentage for the Non-Highly
Compensated Employees by more than two percentage points.
The actual deferral percentage for an Employee for a Plan
Year which is calculated separately for each Employee shall be the ratio of:
(1) The amount of contributions deposited to Account A on his
behalf for such Plan Year, to
(2) his Compensation for such Plan Year.
For purpose of the preceding sentence, the Compensation of any Employee for a
Plan Year shall be the amount of his Compensation which is taken into account
under the Plan in calculating the contribution which may be made on his behalf
for such Plan Year.
The Committee may require any Member to reduce his contribution
to a specified rate or to suspend his contribution so that the Plan will satisfy
the requirement of either (A) or (B) above.
5.03 Allocations to Account B Any Employer contributions for a Plan
Year not allocated to the Accounts A of the Members shall be combined with
forfeitures determined pursuant to Section 6.05 and allocated, as of the
Allocation Date at the end of such Plan Year, only among those Employees who
are Active Members under Section 2.01(b) on such Allocation Date and who have
completed a Year of Service during the Plan Year ending on such Allocation Date.
Such contribution shall be allocated to all
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such Members who have contributed to Account A by matching such Member's
contribution to Account A up to $1,000 in any Plan Year. The amount of such
matching contribution shall be subject to the test appearing in Section 401(m)
of the Code and the regulations issued thereunder.
5.04A. Maximum Annual Additions
The maximum "annual addition", as hereinafter defined, for any
Member shall be the lesser of $30,000 (or such higher limit as permitted by law)
or 25% of the Member's total Compensation from his Employers during the Plan
Year (which shall be the limitation year for purposes of Section 415 of the
Code).
The annual addition for a Member shall be the sum of
(1) the total Employer contributions allocated to the Accounts A
and B of such Member for the Plan Year,
(2) the Member's contributions to Account C for the Plan Year,
and
(3) any forfeitures allocated to the Member's Account B for such
Plan Year.
The annual addition for any Member shall include all such
contributions and forfeiture's under this or any other plans of any Employer and
any Related Employer which constitute "defined contribution" plans as defined in
Section 414(i) of the Code.
If a Member's contributions to Account C in any Plan Year would
cause the annual addition on his behalf to exceed the maximum permitted annual
addition under this subsection, the Committee shall take such steps as may be
necessary to cause such excess amount to be returned to the Member prior to the
time his Employer makes its full contribution for such Plan Year. Nothing herein
shall be construed to permit any Employer to reduce its contribution determined
under Section 5.01 in order to reduce the annual addition on behalf of any
Member unless such contribution itself would cause the annual addition to exceed
the maximum amount provided above.
The provisions of Section 415 of the Code are incorporated herein
by reference.
5.04B. Dual Plan Limitation
If a Member is also a participant of one or more defined benefit
plans of an Employer and of the Related Company, the maximum annual addition to
this plan shall
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be reduced so that a "combined benefit factor" in excess of 1 shall not result.
The "combined benefit factor" is the sum of the defined benefit plan fraction as
shown under (a) below and the defined contribution plan fraction as shown under
(b) below:
(a) the defined benefit plan fraction for any Plan Year is a fraction
(i) the numerator of which is the projected annual benefit of
the Member (determined as of the close of the Plan Year) and
(ii) the denominator of which is the lesser of
(A) the product of 1.25 multiplied by the dollar limitation
under Section 415 (b) (1) (A) of the Code for such year; or
(B) the product of
(I) 1.4 multiplied by
(II) the amount applicable to the Member under Section
415(b)(1) of the Code above for such year.
(b) the defined contribution plan fraction for any Plan Year is a
fraction
(i) the numerator of which is the sum of the annual additions
applicable to the Member as of the close of the Plan Year; and
(ii) the denominator of which is the sum of the lesser of the
following amounts determined for such Plan Year year and for each prior year of
service with Employer
(A) the product of 1.25 multiplied by the maximum dollar
amount of "annual addition" for each year as defined in Sections 415(C)(1)(a)
and 415(d) of the Code or
(B) the product of
(I) 1.4 multiplied by
(II) 25% of the Member's Compensation for such year.
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5.05 Return of Contributions to an Employer Under
Certain Circumstances:
Notwithstanding the provisions of Section 5.01, to the extent
permitted by Applicable Law, Employer contributions shall be returned to the
Employer under the following circumstances:
(a) Mistake
If and to the extent that any contribution was made by a mistake
in fact, the Committee may direct the Trustee to return the excess of the
contribution made over the amount that would have been made had there not
occurred a mistake of fact to the respective Employer at any time within one
year after the payment of such contribution, and the Account of any Member
affected shall be adjusted accordingly.
Any matching contribution under Section 5.03(a) which is
attributable to any contribution which must be returned under Section 5.06 shall
be deemed to have been made under a mistake of fact, and shall be returned to
the Employer within 2-1/2 months after the end of the applicable Plan Year or
the April 15th of the applicable calendar year, as the case may be.
(b) Nondeductibility
If and to the extent that the Internal Revenue Service
determines that a contribution is not deductible under Section 404 of the Code,
the Committee may direct the Funding Agent to return the contribution made by a
mistake in determining the amount of the deduction to the Employer, or by a good
faith mistake in determining the deductibility of the contribution, in an amount
equal to the excess of the money contributed over the amount that would have
been contributed had there not occurred a mistake in determining the amount of
the deduction or the deductibility of the contribution, at any time within one
year after the date of disallowance, and the Account of any Member affected
shall be adjusted accordingly.
(c) Adjustments
Any excess contribution returned pursuant to this Section 5.05 shall be adjusted
to reflect its proportionate share of the Fund's losses, if any, attributable to
such excess contribution. Any earnings attributable to such excess contribution
may not be returned to the Employer.
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(d) Limitation on Rights
Notwithstanding any provision of this Plan to the contrary, the
right or claim of any Member or Beneficiary to any asset of the Fund or to any
benefit under the Plan shall be subject to and limited by the provisions of this
Section 5.05.
(e) Failure to Qualify Initially.
If and to the extent that the Internal Revenue Service
determines that the Plan does not initially qualify under Section 401(a) of the
Code, either in its entirety or with respect to any Employer, all contributions
made by such Employer on or after the date as of which the failure to qualify
initially is determined to have occurred shall be returned to the Employer by
the Trustees, upon the direction given by the Committee to the Trustees within
one year after the date of denial of qualification. The Plan thereupon shall
terminate with respect to such Employer, and any assets in the Trust which are
attributable to such Employer shall be returned to such Employer. Upon the
return of all contributions to such Employer as provided herein, the Trust shall
terminate and the Trustees, the affected Employer and the Committee shall be
discharged from all obligations under the Plan and Trust.
5.06 Return of Contributions to a Member
(a) Return of Excess Deferrals
In the event that any Member's Tax-Deferred Contributions for a
given taxable year, made pursuant to Section 5.02 of this Plan or to any other
Plan described in Sections 401(k) or 403(b) of the Code exceed $7,000 (or such
higher amount as is permitted under Section 402(g)(5) of the Code), the Member
may, prior to March lst of the following calendar year, allocate the amount of
such excess deferral among the plans under which such deferrals were made and
notify the Committee of the amount of such allocation. Following such
notification, the Committee shall, prior to the April 15th of the calendar year
following the year of the excess deferral, distribute to such Member the amount
of such excess deferral plus the earnings or minus the losses thereon.
(b) Return of Disqualifying Contributions
In the event that any Member's contributions under this Plan
would subject to the Employer to the tax imposed by Section 4979 of the Code,
such contributions plus earnings or minus losses shall be distributed to the
Member no later than two and one-half months after the close of the applicable
Plan Year.
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The amount of any distribution required to be made under this
Section 5.06(b) shall be made to Highly Compensated Employees on the basis of
the respective portion of the excess contributions applicable to each of such
Employees.
5.07 Rollovers
An Eligible Employee may, with the consent of the Committee,
contribute to this Plan any amount received as a distribution from a plan which
is a qualified plan under Section 401(a) of the Code or a qualified rollover
Individual Retirement Account under Section 408 (d) (3) (A) (ii) of the Code and
which distribution is a qualified rollover amount pursuant to Section 402 (a)
(5) of the Code; provided such contribution is made to this Plan within 60 days
after it is received from the other plan or rollover Individual Retirement
Account.
Such amount shall be held in a separate Member's Rollover Account
which shall always be fully vested and nonforfeitable. The Member shall
separately designate how his Rollover Account is to be invested, in accordance
with Section 7. In all other respects said Rollover Account shall be treated in
the same manner as the Member's Account under this Plan.
Any contribution to a Rollover Account shall not be considered an
Annual Addition for purposes of Section 5.04, nor shall it be considered in
determining top-heaviness under Exhibit B hereof unless such amount was
distributed from any qualified plan maintained by an Employer or a Related
Company.
SECTION 6 BENEFITS
6.01 Normal and Deferred Retirement: Early Retirement:
Upon a Member's retirement on or after Normal Retirement Date,
there shall be payable to such Member the value of his Accounts, in the manner
and at the time specified in Section 9. Upon a Member's termination of
employment after attainment of age 55 and completion of 10 Years of Service, a
Member may retire early and there shall be payable the full value of his
Accounts, in the manner specified in Section 9.
6.02 Disability Retirement:
Upon a Member's retirement by virtue of his having become totally
and permanently disabled, as determined by a physician satisfactory to the
Committee, to such a degree that he is unable to perform his duties for any
Employer, the Member shall be
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fully vested in the value of his Accounts. The Member Account shall be paid to
him in the manner and at the time specified in Section 9.
6.03 Termination of Employment:
(a) A Member's interest in his Accounts A and C and Rollover
Account shall always be fully vested and non-forfeitable. A Member shall have a
vested interest in his Account B determined as of the date termination of
employment occurs, by multiplying the balance in his Account B by the Vested
Percentage determined in accordance with the following schedule:
Completed Years of Vesting Vested Percentage
Service at Termination In Account B
-------------------------- -----------------
Less than 1 years 0%
1 years but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 years or more 100%
A Member will be fully vested upon attaining Normal Retirement
Age.
Upon the termination of employment of a Member for any reason
other than death or retirement, the Vested Percentage of his Account B shall be
determined as of his date of termination of employment, such Vested Percentage
to be based on the Member's Years of Vesting Service as of such date.
Payments shall be made in the manner and at the time specified in
Section 9.
(b) If a distribution is made at a time when a Member has a
nonforfeitable right to less than 100 percent of the account balance derived
from employer contributions and the Member may increase the nonforfeitable
percentage in the account:
(1) A separate account will be established for the member's
non-vested interest in the plan as of the time of the distribution, and
(2) At any relevant time the Members' nonforfeitable portion of
the separate account will be equal to an amount ("X") determined by the formula:
X = P (AB + (R x D)) - (R X D)
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For purpose of applying the formula: P is the nonforfeitable percentage at the
relevant time, AB is the account balance at the relevant time, D is the amount
of the distribution, and R is the ratio of the account balance at the relevant
time to the account balance after distribution.
The provision described in (b) (2) above will apply only upon the re-employment
of a former Member prior to the date the balance of the separate account is
forfeited pursuant to Section 6.05.
6.04 Death
Upon the death of an Active or Suspended Member, there shall be
payable to his Beneficiary the value of the Member's Accounts, and such amounts
shall be payable in a lump sum.
Upon the death of a Retired Member who has elected to receive his
Account in the form of a lump sum or in installments there shall be paid to his
Beneficiary in a lump sum the remaining balance, if any, in the Member's
Accounts.
Upon the death of an Inactive Member, there shall be paid to his
Beneficiary the value of that portion of the Member's Accounts which vested
pursuant to Section 6.03 as of the date his employment terminated.
Payment shall be made in the manner and at the time specified in
Section 9.
A Member may change his designated Beneficiary at any time by
filing a Prescribed Form with the Committee, subject to the consent of the
spouse, if any. In the event that there is no designated Beneficiary living at
the time of the Member's death, the balance of the Member's Account shall be
paid as determined in Section 1.04.
6.05 Forfeitures:
If a Member terminates employment, before his Account has become
vested pursuant to Section 6.03, his Account shall be forfeited effective as of
the Allocation Date occurring on the last day of the Plan Year in which the
termination of employment occurs. Until such allocation Date, the account shall
continue to be revalued in accordance with Section 5.03 and, upon such
Allocation Date, the amount forfeited shall be used to reduce the Employer's
contribution applicable to the Plan Year ending on such Allocation Date.
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If the Member is rehired before he has 5 consecutive one year
Breaks in Service, the forfeited amount shall be reinstated as follows:
(a) First, from forfeitures for the Plan Year in which his rehire
occurs;
(b) Second, if the amounts under (a) are insufficient for such
reinstatement, from an additional Employer contribution.
SECTION 7 INVESTMENT AND VALUATION OF ACCOUNTS
7.01 Election of Investments:
(a) Accounts A and C and Rollover Account:
A Member shall, by electing in a manner prescribed by the
Committee on a uniform basis, elect to have a whole percentage of his Accounts A
and C and Rollover Account invested in one or more of the funds (provided that
the total of such investments must equal 100% of such Accounts) made available
by the Committee, including, beginning on July 1, 1998, the Viacom Inc. Stock
Fund, and beginnning on April 1, 1999, the Infinity Corporation Common Stock
Fund, which consists primarily of Infinity Broadcasting Corporation Class A
common stock.
(b) Account B:
Any Employer Contribution that is allocated to a Member's Account
B (under Section 5.03) shall be invested in the same proportion as his Account
A.
7.02 Change of Investments:
Subject to such conditions as the Committee shall prescribe on a
uniform basis, a Member may from time to time reallocate in whole percentages
his various fund account balances among the various available funds.
Following a reallocation, amounts that have been transferred
shall retain the after-tax, before-tax, matching, or rollover character which
was attributable to such amounts immediately prior to the reallocation. For
investment reallocation directions filed effective with commencement of daily
valuation under the Plan, any such reallocation direction shall become effective
on the valuation date coincident with or next following
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the date on which such investment reallocation direction was made. A Member may
elect to make unlimited reallocations with respect to his accounts in any
calendar quarter.
A Member's reallocation request (as well as other requests and
elections permitted under this Section 7) may be made on such forms and in such
manner as permitted by the Committee, including through telephonic notice
procedures.
7.03 Valuation:
As soon as practicable after each Valuation Date, the Trustees or
their agent shall cause separate determinations to be made of the net value of
the assets of each of the Funds as of the Valuation Date. With respect to each
Fund described in Section 7.01, the income earned since the last Valuation Date
shall be allocated in proportion to the average market value of the Fund's
assets for each Plan Member participating in such Fund. The average market value
shall be determined as the dollar-weighted average by time of receipt or
disbursement of the market value at the beginning of the valuation period,
contributions, disbursements, transfers and individually allocated expenses. For
purposes hereof, "valuation period" means any calendar quarter; and "income
earned" means the net of interest, dividends, unrealized appreciation and
depreciation, capital gains and losses, and investment expenses.
The Trust shall be valued at least annually. All valuations shall
be made at fair market value.
7.04 Statement of Accounts:
The Plan Administrator shall furnish to each Member, as of each
March 31, June 30, September 30 and December 31 a statement of his Account;
provided, however, that the initial statement shall be furnished as of December
31, 1988.
SECTION 8 WITHDRAWALS
8.01 Withdrawals from Account A:
(a) No withdrawals may be made from Account A prior to the date the
Member attains age 59-1/2; provided, however, that a member may make a
withdrawal from his Account A prior to the date he attains age 59-1/2 if such
withdrawal is necessary because of immediate and heavy financial needs of the
Member, which needs the Member is unable to meet from any other resource
available to him. The amount of such withdrawal may not exceed the amount
required to meet the immediate and heavy financial need.
-29-
The Committee shall determine the existence of such need, applying the same
rules in the same or similar circumstances.
On and after January 1, 1989, any such withdrawal shall be
limited to contributions made to Account A, and no withdrawal may be made from
earnings on such contributions.
Upon attainment of age 59-1/2, a Member may withdraw any or all
of his Account A, but only one such withdrawal may be made in any Plan Year.
(b) Deemed immediate and heavy financial need. For purposes of this
Section 8.01, a distribution will be deemed to be made on account of an
immediate and heavy financial need of the Member if the distribution is an
account of;
(1) Medical expenses described in Section 213(d) of the Code
incurred by the Member, the Member's spouse, or any dependents of the Member (as
defined in Section 152);
(2) Purchase (excluding mortgage payments) of a principal
residence for the Member; or
(3) Payment of tuition for the next semester or quarter of
post-secondary education for the Member, his or her spouse, children, or
dependents.
(4) The need to prevent the eviction of the Member from his
principal residence or foreclosure on the mortgage of the Member's principal
residence.
This list of deemed immediate and heavy financial needs shall also include any
additional reasons hereafter permitted by the Commissioner of Internal Revenue.
(c) Distribution deemed necessary to satisfy financial need. A
distribution will be deemed to be necessary to satisfy an immediate and heavy
financial need of a Member if all of the following requirements are satisfied:
(1) The distribution is not in excess of the amount of the
immediate and heavy financial need of the Member,
(2) The Member has obtained all distributions, other than
hardship distributions, and all nontaxable loans currently available under all
plans maintained by the Employer,
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(3) The plan, and all other plans maintained by the Employer,
provide that the Member's elective contributions and employee contributions will
be suspended until the first day of the calendar quarter next following 12
months after receipt of the hardship distribution, and
(4) The plan, and all other plans maintained by the Employer,
provide that the Member may not make elective contributions for the Member's
taxable year immediately following the taxable year of the hardship distribution
in excess of the applicable limit under Section 402(g) of the Code for such next
taxable year less the amount of such Member's elective contributions for the
taxable year of the hardship distribution.
8.02 Withdrawals from Account B:
No withdrawals shall be permitted from Account B.
8.03 Withdrawals from Account C:
A Member may elect, on a Prescribed Form filed with the
Committee, to withdraw all or a portion of the balance of his Account C (as of
the Valuation Date following the date of his filing his election to withdraw).
Such election to withdraw may not be made more often than once in any calendar
quarter.
SECTION 9 MANNER OF PAYMENT
9.01 Retirement and Termination:
Upon a Member's retirement or termination of employment, there
shall be payable to such Member his vested interest in the value of his Accounts
(as of the Valuation Date preceding the date of distribution in accordance with
(a) below. However, if payments to the Member begin under Section 9.04 (b) while
the Member is still in the employ of the Employer or if the Member has retired
in accordance with Section 6.01, the Member may elect to receive benefits under
(a) or (b) below by filing a prescribed form with the Committee.
(a) as a single cash distribution of the full amount payable;
(b) in annual, semi-annual, quarterly or monthly installments of
substantially equal amounts over a fixed period of time not to exceed the joint
life expectancies of the Member and his Beneficiary.
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The amount of each annual installment under (b) above shall be
determined by dividing the amount balance at the Valuation Date immediately
preceding the initial distribution by the number of annual installments
remaining to be paid. If payments are to be made under (b) above in other than
annual installments, the amount of the annual installment determined under the
preceding sentence shall be divided by the number of payments to be made within
the year to determine the amount of each installment; provided, however, that
the last installment will include any remaining balance of the Member's Account.
If distribution of benefits is made in installment payments, the portion of the
credit balance in the Member's Accounts which was not previously distributed to
him shall be valued in accordance with Section 7.03.
Notwithstanding anything to the contrary herein contained, any
distributions under (b) above shall be subject to the following limitations:
(1) If the Beneficiary is someone other than the Member's Spouse,
the Member must anticipate receiving more than fifty percent of the value of his
Account.
(2) If benefits are being paid under (b) above, the Member may
make an irrevocable election of (i) or (ii) below, but if no election is made
prior to the date payments commence, (ii) below will be deemed to have been
elected:
(i) If the Beneficiary is the Member's Spouse their joint
life expectancies shall be redetermined annually; if the Beneficiary is not the
Member's Spouse, the Member's life expectancy shall be redetermined annually.
(ii) The Member's life expectancy, or the joint life
expectancies of the Member and the Member's spouse (if the spouse is the
Beneficiary) shall not be redetermined after payments commence.
(3) No balance to be paid on the death of a Member prior to the
commencement of the Member's benefits or upon the death of the spouse shall be
paid in installments over a period longer than five years from the date of death
unless:
(a) Payments are being made to the spouse of a Member and
begin no later than the later of one year after the Member's death or the date
on which the Member would have reached age 70-1/2, and are to be paid over a
period not longer than the lifetime (or life expectancy) of the spouse; or
(b) Payments are being made to a non-spouse designated
Beneficiary over a period no longer than the life (or life expectancy) of the
Beneficiary, and
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distribution to the Beneficiary commences no later than one year after the
Member's death (or spouse's death, where applicable).
(4) If distribution has started before the Member's death, the
remaining interest will be distributed at least as rapidly as under the method
being used as of the date of the Member's death.
(5) Distributions will be made in accordance with Section
401(a)(9) of the Code and the regulations issued thereunder including Section
1.401(a)(9)-2 of such regulations, and the provisions reflecting Code Section
401(a)(9) shall override any distribution options in the Plan inconsistent
with Section 401(a)(9).
9.02 Death:
Upon the death of a Member, there shall be payable to his
Beneficiary the value of the Member's Accounts and payment shall be in a lump
sum no later than one year after the Member's death.
A Member may change his designated Beneficiary at any time by
filing a Prescribed Form with the Committee, subject to Section 1.04. In the
event that there is no designated beneficiary living at the time of the Member's
death, the balance of the Member's Accounts shall be paid as determined in
Section 1.04.
9.03 Termination or Disability Benefits:
The benefits of an Inactive or Disabled Member will be paid in
the manner provided in Section 9.01. Such benefits will commence on what would
have been his Normal Retirement Date, unless the Member requests an earlier
payment date.
9.04 Requests as to Manner and Time of Payment:
(a) If the value of the Member's Account is $3,500 or less payment
under this Plan shall be made as soon as practicable after the Member's
retirement or termination or employment in a lump sum.
If the value of the Member's Account is more than $3,500, payment
shall be made at the date requested by the Member, on a Prescribed Form filed
with the Committee.
In no event shall any distribution be made before the Valuation
Date following retirement, death or termination of employment.
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Notwithstanding the foregoing, if a Member's termination of
employment is for any reason other than retirement, and the Member does not
elect a distribution at the earliest possible time, the Member's Accounts shall
be transferred to interest bearing bank accounts. If termination of employment
is because of retirement and the Member elects to defer distribution beyond
Normal Retirement Date, the Member's Accounts shall be transferred as of his
Normal Retirement Date to interest bearing bank accounts.
(b) Payment of benefits will begin not later than 60 days after the
close of the Plan Year in which the later of the following shall occur, but in
no event later than the April lst following the calendar year in which the
Member attains age 70-1/2:
(1) the Member's Normal Retirement Date, or
(2) the date on which he actually retires or terminates
employment.
and such benefit shall commence at that time even if no application therefor has
been filed. If an application is denied, the procedure described in Section
10.02 shall be applicable. If the amount prescribed by this Section cannot be
ascertained by such date, a payment retroactive to such date may be made no
later than 60 days after the earliest date on which the amount of such payment
can be ascertained under the Plan.
9.05 Indirect Payment of Benefits:
If any Member or Beneficiary is, in the judgment of the
Committee, legally, physically or mentally incapable of personally receiving and
receipting for any payment due hereunder, payment may be made to the guardian or
other legal representative of such Member or Beneficiary or, if none, to such
other person or institution that, in the opinion of the Committee, is then
maintaining or has custody of such Member or Beneficiary. Such payment shall
constitute a full discharge with respect thereto.
9.06 Qualified Domestic Relations Order (QDRO):
Unless the Alternate Payee is an Employee or a Retired Member,
any amounts segregated under this Plan for the benefit of the Alternate Payee
pursuant to a QDRO shall be distributed to the Alternate Payee as soon as
practicable following the qualification of the QDRO by the Plan Administrator.
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9.07 Distribution Upon the Sale of a Subsidiary or of Substantially
All of the Assets of a Trade or Business:
(a) In the event of the sale by the Company or a Related Company of
its interest in a subsidiary (within the meaning of Section 409(d)(3) of the
Code), a Member who continues employment with the acquirer of such subsidiary
will be treated as having terminated employment, upon the sale of such interest
in the subsidiary and, if the applicable requirements of Section 401(k)(10) of
the Code are satisfied, may receive a distribution of his total Account from the
Plan, including his tax-deferred contributions in Account A.
(b) In the event of the sale by the Company or a Related Company of
substantially all of the assets of a trade or business, a Member who continues
employment with the acquirer of such assets will be treated as having terminated
employment, upon the sale of such assets and, if the applicable requirements of
Section 401(k)(10) of the Code are satisfied, may receive a distribution of his
total Account from the Plan, including his tax-deferred contributions in Account
A. For purposes of this Section 9.07(b), whether substantially all of the assets
of a trade or business have been sold shall be determined based on the facts and
circumstances, provided that a television or radio station can constitute a
separate trade or business without regard to whether the Company or a Related
Company continues to operate one or more additional stations in the same market.
SECTION 10 ADMINISTRATION OF PLAN
10.01 Company:
The Company is the "plan sponsor" of the Plan, as described by
section 3(16)(B) of ERISA, and is a "named fiduciary" of the Plan, within the
meaning of section 402(a)(2) of ERISA. The Company has all responsibilities not
otherwise delegated to the Administrative Managers, the Financial Managers, the
Trustee, the Plan Administrator (including delegatees of the Company), or the
Investment Managers, including:
(a) making contributions to the Plan;
(b) amending the Plan by written resolution of the Board as provided
in Section 14; and
(c) appointing and dismissing, by written action of the Chief
Executive Officer of the Company, the Administrative Managers and the Financial
Managers.
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In no event shall the Company or any other person or entity function or be
deemed to function as a fiduciary in connection with the actions described in
10.01(a) or 10.01(b) above.
10.02 Administrative Managers:
The Company, acting by written action of the Chief Executive
Officer of the Company, has appointed the Administrative Managers who are "named
fiduciaries" of the Plan, within the meaning of section 402(a)(2) of ERISA, with
respect to Plan administrative matters. Subject to the terms of the Plan, the
Trust Agreement and applicable resolutions of the Board, the Administrative
Managers have full and absolute discretion and authority to control and manage
the operation and administration of the Plan, and to interpret and apply the
terms of the Plan and the Trust Agreement. This full and absolute discretion and
authority includes, but is not limited to, the power to:
(a) interpret, construe, and apply the provisions of the Plan and
Trust Agreement, and any construction adopted by the Administrative Managers in
good faith shall be final and binding;
(b) adopt Plan amendments that do not materially increase costs
of the Plan to the Company, provided that such amendments will be made in
writing, will be made according to procedures established by the Administrative
Managers, and will be subject to the approval of the Financial Managers; and
(c) review appeals from the denial of benefits.
The Administrative Managers may employ, appoint, and dismiss advisors as the
Administrative Managers deem necessary to carry out the provisions of the Plan
and the Trust Agreement, including attorneys, accountants, actuaries, clerks, or
other agents, and may delegate any of their authority and duties to such
persons.
10.03 Financial Managers:
The Company, acting by written action of the Chief Executive
Officer of the Company, has appointed the Financial Managers who are "named
fiduciaries" of the Plan, within the meaning of section 402(a)(2) of ERISA, with
respect to Plan investments. Subject to the terms of the Plan, the Trust
Agreement and applicable resolutions of the Board, the Financial Managers shall
have full and absolute discretion and authority to:
(a) change or terminate the existing investment Fund options offered
under the Plan or establish additional investment Fund options;
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(b) appoint and dismiss Investment Managers (as described by section
3(38) of ERISA) and the Trustee;
(c) provide guidelines and directions to, and monitor the performance
of, Investment Managers and the Trustee;
(d) manage the funding, cost, and financial aspects of the Plan; and
(e) adopt Plan amendments that do not materially increase costs of
the Plan to the Company, provided that such amendments will be made in writing,
will be made according to procedures established by the Financial Managers, and
will be subject to the approval of the Administrative Managers.
The Financial Managers may employ, appoint, and dismiss advisors as the
Financial Managers deem necessary to carry out the provisions of the Plan and
the Trust Agreement, including attorneys, accountants, actuaries, clerks, or
other agents, and may delegate any of their authority and duties to such
persons.
10.04 Plan Administrator:
The Plan Administrator is responsible for, and has authority to:
(a) adopt rules and procedures as necessary or appropriate for Plan
administration and the processing of claims for benefits;
(b) make all initial determinations regarding claims for benefits,
including authority to interpret and apply any applicable Plan provisions to the
facts involved in each benefits claim, and provide notice described in Section
10.10 to any claimant whose claim is denied;
(c) subject to guidelines provided by the Administrative Managers,
direct the Trustee regarding: (i) payment of benefits to participants, and (ii)
payment of the reasonable and necessary expenses of the Plan from Plan assets;
(d) obtain fidelity bonds and fiduciary insurance coverage, in
accordance with applicable provisions of ERISA; and
(e) comply with and monitor the Plan's continued compliance with
all governmental laws and regulations relating to recordkeeping and reporting of
participants' benefits, other notifications to participants, registration with
the Internal Revenue Service, and reports to the Department of Labor.
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The Company, as the Plan Administrator, may delegate any or all of these
functions to any person or persons as it deems appropriate. Such delegation need
not be in writing.
10.05 Trustee:
The Trustee has exclusive responsibility for control and
management of Plan assets, in accordance with the Trust Agreement. The Trustee
is responsible for, and has authority to:
(a) invest, manage, and control Plan assets, subject to the
direction of the Financial Managers and Investment Managers appointed by the
Financial Managers;
(b) maintain records and accounts of all contributions, receipts,
investments, distributions, expenses, disbursements, and all other transactions;
and
(c) prepare records, reports, statements, tax returns, and
forms required to be furnished to participants or filed with the Secretary of
Labor or Treasury, as required by the Trust Agreement, or the directions of the
Administrative Managers.
10.06 Investment Managers:
Investment Managers manage and invest Plan assets subject to the
Plan, the Trust Agreement, and guidelines and directions provided by the
Financial Managers.
10.07 Allocation of Fiduciary Authority:
The Company, other Employers, the Administrative Managers, the
Financial Managers, the Plan Administrator, the Trustee, and the Investment
Managers (collectively, the "Plan Fiduciaries") each have individual
responsibility for the prudent execution of their responsibilities assigned
under this Plan, and are not responsible for acts or failures by another
Fiduciary, unless the Plan provides for shared fiduciary responsibility. Plan
Fiduciaries are obligated to discharge their duties with respect to the Plan
solely and exclusively in the interest of Plan participants and their
beneficiaries, and with the care, skill, prudence, and diligence under the
circumstances then prevailing that a prudent man acting in a like capacity and
familiar with such matters would use in the conduct of an enterprise of like
character and with like aims.
Whenever the Plan or Trust Agreement requires one Fiduciary to
provide information or direct the activities of another Fiduciary, the two may
not be deemed to have shared Fiduciary responsibility. Instead, the Fiduciary
giving directions or
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providing information is solely responsible for prudently directing or informing
the other, and the Fiduciary receiving the direction or information is entitled
to rely on that direction or information as proper under the Plan, the Trust
Agreement, and applicable law.
Any individual may serve in more than one capacity. For example,
the same individual may serve as an Administrative Manager and as an agent of
the Company or the Plan Administrator. However, no Plan Fiduciary who is
employed by an Employer or an entity in the Controlled Group of an Employer may
be compensated for services to the Plan from Plan assets.
10.08 Indemnification of Fiduciaries:
(a) To the extent permitted by applicable law, the Board, the
Administrative Managers, the Financial Managers, the Plan Administrator, the
Trustee and any person to whom duties and responsibilities have been allocated
or delegated under this Plan and Trust ("Covered Persons") shall be indemnified
and saved harmless by the Plan and Trust from and against any and all claims of
liability arising in connection with the exercise of the Covered Person's duties
and responsibilities with respect to the Plan and Trust by reason of any act or
omission, including all expenses reasonably incurred in the defense of such act
or omission, unless:
(i) it will be established by final judgment of a court of
competent jurisdiction that such act or omission, including all expenses
reasonably incurred in the defense of such act or omission, involved a violation
of the duties imposed by Part 4 of Subtitle B of Title I of ERISA on the part of
such Covered Person; or
(ii) in the event of settlement or other disposition of such
claim involving the Plan and Trust, it is determined by written opinion of
independent counsel that such act or omission involved a violation of the duties
imposed by Part 4 of Subtitle B of Title I of ERISA on the part of such Covered
Person.
(b) To the extent permitted by applicable law, the Trust will
pay expenses (including reasonable attorneys' fees and disbursements),
judgments, fines, and amounts paid in settlement incurred by the Covered Person
in connection with any of the proceedings described above, provided that:
(i) the Covered Person will repay such advanced expenses to
the Trust, plus reasonable interest, if it is established by a final judgment of
a court of competent jurisdiction, or by written opinion of independent counsel
under the circumstances described above, that the Covered Person violated duties
under Part 4 of Subtitle B of Title I of ERISA; and
-39-
(ii) the Covered Person will make appropriate arrangements
for repayment of advanced expenses.
Notwithstanding the foregoing, no such advanced expenses will be made in
connection with any claim against a Covered Person that is made by the Plan,
provided that upon final disposition of such claim, the expenses (including
reasonable attorneys' fees and disbursements), judgments, fines, and amounts
paid in settlement incurred by the Covered Person will be reimbursed by the Plan
to the extent provided above.
10.09 Claims for Benefits:
Each Member (or Beneficiary) must file a claim with the Plan
Administrator for any benefit to which that person believes he is entitled under
this Plan, in accordance with procedures established by the Plan Administrator.
Generally, the Plan Administrator is required to decide each
claim within ninety (90) days of the date on which the claim is filed. If
special circumstances require a longer period for adjudication, the Plan
Administrator must notify the claimant in writing of the reasons for an
extension of time, and the date by which the Plan Administrator will decide the
claim, before the ninety (90) day period expires. Extensions beyond ninety (90)
days after the expiration of the initial ninety (90) day period are not
permitted. If the Plan Administrator does not notify the claimant of its
decision to grant or deny a claim within the time specified by this section, the
claim will be deemed to have been denied and the appeal procedure described in
Section 10.11 below will become available to the claimant.
10.10 Notice of Denial:
If the Plan Administrator denies a claim for benefits under the
Plan, the claimant will receive a written notice that explains:
(a) the specific reason for the denial, including specific reference
to pertinent Plan provisions on which the denial is based;
(b) any additional information or material necessary to perfect a
claim, with an explanation of why such material is necessary, if any information
would be helpful or appropriate to further consideration of the claim; and
(c) the steps to be taken if the claimant wishes to appeal, including
the time available for appeal.
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10.11 Appeal of Denied Claims for Benefits:
Claimants must submit a written request appealing the denial of a
claim within sixty (60) days after receipt of notice described by Section 10.10.
Claimants may review all pertinent documents, and submit issues and comments in
writing. The Administrative Managers (or their delegate) will provide a full and
fair review of all appeals from denial of a claim for benefits, and their
decision will be final and binding.
The decision of the Administrative Managers (or their delegate)
ordinarily will be given within sixty (60) days after receipt of a written
request for appeal, unless special circumstances require an extension (such as
for a hearing). If an extension of time for appeal is necessary, the claimant
will receive written notice of the extension before the sixty (60) day period
expires. The decision may not be delayed beyond one-hundred twenty (120) days
after receipt of the written request for appeal. Notice of the decision on
appeal will be provided in writing, and will explain the basis for the decision,
including reference to applicable provisions of the Plan, in a manner calculated
to be understood by the person who appealed the denial of a claim.
10.12 Exhaustion of Remedies:
No legal action for benefits under the Plan may be brought unless
and until the following steps have occurred:
(a) the claimant has submitted a written application for benefits in
accordance with Section 10.09;
(b) the claimant has been notified that the claim has been denied, as
provided by Section 10.10;
(c) the claimant has filed a written request appealing the denial in
accordance with Section 10.11; and
(d) the claimant has been notified in writing that the Administrative
Managers (or their delegate) have denied the claimant's appeal, or the
Administrative Managers have failed to act on the appeal within the time
prescribed by Section 10.11.
10.13 Legal Action for Benefits:
No legal action for benefits under the Plan may be brought more
than one year after the time described in Subsection 10.12(d) above.
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SECTION 11 MANAGEMENT OF TRUST FUND
11.01 Trustee:
The Trust Fund shall be held in trust by a Trustee or Trustees
appointed from time to time by the Board with such powers and duties in the
Trustee or Trustees as shall be provided in the Trust Agreement between the
Trustee or Trustees and the Company.
11.02 Investments:
The investment of the Trust Fund shall be in accordance with the
provisions of the Trust Agreement between the Trustee or Trustees and the
Company.
11.03 Payment of Expenses:
The administrative and all other expenses of the Plan shall be
paid out of the Trust Fund unless paid by the Employers.
SECTION 12 MISCELLANEOUS PROVISIONS
12.01 Disclaimer of Liability:
(a) It is the intention of each Employer to continue this Plan and
make contributions regularly each year, but nothing contained in this Plan or
the Trust Agreement by which it is implemented shall be deemed to require any
Employer to make contributions under this Plan and no Employer shall be under
any legal obligation to contribute to this Plan after the Plan has been
terminated as herein provided.
(b) Once a contribution has been made to the Trustee, no liability
shall attach to any Employer for any payment of any benefit or claims hereunder
and Members and their Beneficiaries, and all persons claiming under or through
them, shall have recourse only to the Trust Fund for payment of any benefit
hereunder.
(c) The rights of the Members, their Beneficiaries and other persons
are hereby expressly limited and shall be only in accordance with the provisions
of the Plan.
12.02 Termination:
The Company reserves the right to terminate this Plan with
respect to all Employers or may direct that any individual Employer withdraw
from the Plan. In addition, any Employer may elect to discontinue contributions
to the Plan or to terminate
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its participation in the Plan completely or with respect to one or more of its
divisions, locations, or operations. In the event that the Plan is terminated
(either wholly or partially) or if there is a complete discontinuance of
contributions by any participating Employer, the amount of the Trust Fund
allocable to the Account of each Employee with respect to which the Plan is
being terminated shall be determined promptly and, if not already fully vested,
shall become fully vested and nonforfeitable. (For this purpose a suspension of
contributions which is merely a temporary cessation of contributions by any
Employer shall not be deemed a complete discontinuance). Distribution to the
Members thereafter shall be made in one of the manners described in Section 9 on
the appropriate date or dates described in Section 6. In the sole discretion of
the Committee, a Member's Account may be distributed to the Member in any manner
described in Section 9.01 on any date prior to the date which otherwise would be
applicable under the preceding sentence. Until fully distributed, each Account
shall continue to be revalued in accordance with Section 7.03.
12.03 Employer-Employee Relationship:
The establishment of this Plan shall not be construed as conferring any legal or
other rights upon any Employee or any person for a continuation of employment,
nor shall it interfere with the rights of any Employer to discharge any Employee
or otherwise act in relation to him. Each Employer may take any action
(including discharge) with respect to any Employee or other person and may treat
him without regard to the effect which such action or treatment might have upon
him as a Member of this Plan.
12.04 Merger:
The merger or consolidation of any Employer with another
organization shall not of itself cause the termination of this Plan or be deemed
a termination of employment as to any Employee. The merger of this Plan with
another retirement plan shall not of itself cause the termination of this Plan.
In the case of any merger or consolidation of the Plan with, or in the case of
any transfer of assets or liabilities of the Plan to, any other plan, each
Member will (if the Plan then terminates) be entitled to receive a benefit
immediately after the merger, consolidation or transfer which is equal to or
greater than the benefit he would have been entitled to receive immediately
before the merger, consolidation or transfer (if the Plan had then terminated).
12.05 Inclusion and Withdrawal of Participating Employers:
Any subsidiary, affiliated or associated corporation (or a
partnership or sole proprietorship) or other Related Company which is authorized
by the Board to participate herein may elect to participate herein by action of
its own Board of Directors (or other
-43-
managing body). Each Employee of an Employer which commences to participate in
this Plan after the Effective Date shall become a Member on the subsequent Entry
Date coinciding with or next following such association or later completion of
the eligibility requirements of Section 2.01. His period of Vesting Service
shall be based upon his employment from the date of membership only, unless
otherwise specifically provided in the authorizing resolution adopted by the
Board.
The Company at any time in its discretion may determine that an
Employer shall no longer participate in this Plan and may direct that such
Employer withdraw from this Plan. Any Employer may similarly elect to terminate
its participation in this Plan at any time.
12.06 Joint Employment:
Any Employee employed by more than one Employer shall be
considered to be an Employee of each such Employer for purposes of membership in
this Plan and for benefits under this Plan.
12.07 Receipt and Release:
Any final payment or distribution to any Member, Retired Member
or his Beneficiary or his legal representative or other person to whom payment
is made in accordance with this Plan shall be in full satisfaction of all claims
against the Trust Fund, the Trustee, the Committee and any Employer. The
Trustee, any Employer, the Committee or any of them may require a Member,
Retired Member or his Beneficiary or his legal representative to execute a
receipt and release of all claims under this Plan upon a final payment or
distribution or a receipt to the extent of any partial payment or distribution.
The form of any such receipt and release shall be determined by the Trustee, the
Company, the Committee or any of them that are concerned with the payment or
distribution to which the receipt and release is applicable.
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SECTION 13 NON-ALIENATION OF BENEFITS
13.01 Provisions with Respect to Assignment and Levy:
No benefit under this Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, levy
or charge, and any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber, levy upon or charge the same shall be void; nor shall any such
benefit be in any manner liable for or subject to the debts, contracts,
liabilities, engagements or torts of the person entitled to such benefit.
Notwithstanding the foregoing, the Plan shall pay benefits pursuant to a
qualified domestic relations order, as defined in Section 414(p) of the Code.
13.02 Alternate Application:
If any Member or Beneficiary under this Plan becomes bankrupt or
attempts to anticipate, alienate, sell, transfer, assign, pledge, encumber or
charge any benefit under this Plan, except as specifically provided herein, or
if any benefit shall be levied upon, garnisheed or attached, then such benefit
shall, in the discretion of the Committee, cease and terminate, and in that
event the Committee may hold or apply the same or any part thereof to or for the
benefit of such Member or Beneficiary, his spouse, children or other dependents
or any of them in such manner and in such proportion as the Committee may deem
proper.
SECTION 14 AMENDMENTS
14.01 Company's Rights:
The Company reserves the right, acting by written resolution of
the Board or its delegates, at any time, and from time to time, to amend, in
whole or in part, any and all of the provisions of the Plan. The Administrative
Managers and Financial Managers may also adopt certain Plan amendments in
accordance with Subsections 10.02(b) and 10.03(e). Notwithstanding the above, no
part of the assets of the Plan shall, by reason of any amendment, be used for or
diverted to purposes other than for the exclusive benefit of the Members and
their Beneficiaries under the Plan and to pay Plan expenses. In addition,
subject to Sections 5.05 and 5.06, (a) no amendment shall eliminate or reduce
benefits that have already accrued and that are protected under section
411(d)(6) of the Internal Revenue Code, and (b) if the vesting schedule of the
Plan is amended, in the case of an Employee who is a Member as of the later of
the date such amendment is adopted or the date it becomes effective, the
nonforfeitable percentage (determined as of such date) of such Employee's
benefit will not be less than the percentage computed under the Plan without
regard to such amendment. Any amendments to the Plan,
-45-
whether made by the Company, the Administrative Managers, the Financial Mangers,
or persons to whom they have delegated authority, shall be made by such persons
in their capacities as agents of the Company and not in their capacities as
fiduciaries of the Plan.
SECTION 15 CONSTRUCTION
15.01 The provision of this Plan shall be construed, regulated and
administered according to the laws of the State of New York and any other
Applicable Law.
Wherever applicable, the masculine pronoun as used herein shall
be deemed to include the feminine pronoun, and the singular shall be deemed to
include the plural.
SECTION 16 TRUST AGREEMENT AND EXHIBITS
16.01 The Trust Agreement, and Exhibits attached hereto are hereby
made a part of this Plan.
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SECTION 17 ELIGIBLE ROLLOVER DISTRIBUTIONS
17.01 This Article applies to distributions made on or after January
1, 1993. Notwithstanding any provision of the Plan to the contrary that would
otherwise limit a distributee's election under this Article, a distributee may
elect, at the time and in the manner prescribed by the Plan Administrator, to
have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
17.02 Definitions:
(a) Eligible rollover distribution: An eligible rollover
distribution is any distribution of all or any portion of the balance to the
credit of the distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of substantially equal
periodic payments (not less frequently than annually) made for the life (or life
expectancy) of the distributee or the joint lives (or joint life expectancies)
of the distributee and the distributee's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent such
distribution is required under section 401(a)(9) of the Code; and the portion of
any distribution that is not includible in gross income (determined without
regard to the exclusion for net unrealized appreciation with respect to employer
securities).
(b) Eligible retirement plan: An eligible retirement plan is an
individual retirement account described in section 408(a) of the Code, an
individual retirement annuity described in section 408(b) of the Code, an
annuity plan described in section 403(a) of the Code, or a qualified trust
described in section 401(a) of the Code, that accepts the distributee's eligible
rollover distribution. However, in the case of an eligible rollover distribution
to the surviving spouse, an eligible retirement plan is an individual retirement
account or individual retirement annuity.
(c) Distributee: A distributee includes an employee or former
employee. In addition, the employee's or former employee's surviving spouse and
the employee's or former employee's spouse or former spouse who is the alternate
payee under a qualified domestic relations order, as defined in section 414(p)
of the Code, are distributees with regard to the interest of the spouse or
former spouse.
(d) Direct Rollover: A direct rollover is a payment by the Plan
to the eligible retirement plan specified by the distributee.
-47-
Executed this day of , .
----- ----------------- -----
INFINITY BROADCASTING CORPORATION
BY
-----------------------------------
-48-
EXHIBIT A
RESERVED
-49-
EXHIBIT B
LOANS
1. Subject to the conditions and limitations of this Section, a Member
who has less than two loans outstanding from the Plan, by a request in writing
filed with the Committee at least 30 days in advance, may request a loan from
his Accounts A and C and Rollover Account, and the vested portion of his Account
B (after all adjustments, credits and charges required as of the date have been
made) , subject to the limitation of Section (5) below.
The Committee shall grant loans on a uniform and non-discriminatory basis.
The Committee shall determine whether the facts presented to it justify granting
an individual Member a loan and the portion of his Account to be loaned. The
Committee may require the Member to submit to it any facts it deems necessary to
substantiate a Member's request. All decisions of the Committee shall be final.
If approved by the Committee, the portion of the Account loaned shall be paid to
the Member as soon as is practicable thereafter.
In no event may more than one loan be made to a Member during any Plan Year, nor
shall any Member have more than two outstanding loans at any time. The loan
shall be deemed to be an investment of the Account of the Member to whom the
loan is made.
2. Each loan shall bear interest at a rate equal to the Prime Rate set by
the Chase Manhattan Bank, N.A. as of the first day of the Plan Year in which the
loan is made. The interest rate charged shall not violate any applicable usury
laws.
3. The terms of the loan shall be arrived at by mutual agreement between
the Committee and the Member, but in no event shall such loan be outstanding for
a period that exceeds five (5) years, unless their loan is used to acquire any
dwelling unit which, within a reasonable time, is to be used (determined at the
time the loan is made) as a principal residence of the Member, in which event
the loan may be over a period not to exceed 10 years. Every loan applicant shall
receive a clear statement of the charges involved in each loan transaction. This
statement shall include the dollar amount and annual interest rate of the
finance charge. The loan agreement shall provide that the Member (and the
Member's spouse, if any) agree that distribution of the Member's Account shall
be made in a lump sum at the time of retirement, death or termination of
employment if any balance of the loan remains unpaid at the date of
distribution, and such distribution shall be reduced by the unpaid balance of
the loan.
-50-
Exhibit B
Page 2
4. Any such loan or loans shall be repaid by the Member in level
installments at least quarterly through payroll deductions, and shall be
adequately secured either by the Account of the Member or some other security
deemed by the Committee to be adequate. Prepayment of the entire outstanding
balance will be permitted at any time; otherwise no pre-payment will be
permitted.
5. Loans made pursuant to this Exhibit B shall be limited to the amount
under (i) or (ii) below, whichever is smaller: (i) $50,000 reduced by the
highest outstanding balance of loans from the Plan during the one-year period
ending vested day before the date such loan is made, or (ii) 50% of the vested
Account balance of the Member's Accounts under this Plan. The $50,000 maximum in
(i) above applies to the total loans outstanding from this Plan and any and all
other plans maintained by the Employer. No loan of less than $1,000 will be
permitted.
6. For each loan that is initiated by a Participant, there will be a
one-time loan initiation fee charged to the Participant.
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CONSENT OF UNION
The undersigned, being duly authorized representatives of United Electrical,
Radio and Machine Workers of America and its Local 262, have read the attached
document, "Infinity Broadcasting Corporation Union Employees' 401(k) Plan", and,
on behalf of the Union, consent to the provisions thereof.
, For the Union:
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EXHIBIT 4.19
NON-QUALIFIED STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made in the City of Pittsburgh, Pennsylvania as of
November 1, 1991, between Westinghouse Electric Corporation, a Pennsylvania
corporation (the "Corporation"), and Mr. Leo W. Yochum ("Mr. Yochum").
In consideration of the mutual covenants hereinafter set forth and intending to
be legally bound, the parties have agreed, and do hereby agree, as follows:
1. OPTION GRANT
The Corporation hereby grants Mr. Yochum the right and option (the "Option") to
purchase all or part of any aggregate of 200,000 shares of its common stock, par
value $1.00 per share ("Common Stock") from the Corporation for a purchase price
of $21.75 per share, on the terms and conditions herein set forth.
2. OPTION TERM
The term of the Option shall be a period of ten years from the date of this
Agreement, unless the Option is earlier terminated under the terms of paragraph
5 hereof.
3. EXERCISE OF OPTION
The Option will be exercisable in whole or in part after the date hereof,
subject to the terms and conditions of this Agreement, and at any time before it
terminates. During Mr. Yochum's lifetime, the Option may be exercised only by
him or a guardian or legal representative. Mr. Yochum shall have none of the
rights of a stockholder with respect to any shares of the Common Stock subject
to the Option until such shares shall be issued in his name or the name of a
designee following the exercise of the Option.
Shares of Common Stock issued upon exercise of the Option are not covered by any
registration statement filed under the Securities Act of 1933 (the "Act").
Accordingly, Mr. Yochum agrees that any such shares of Common Stock will not be
sold by him within two years after the date of any exercise unless (i) a
registration statement under the Act applicable to such shares of Common Stock
shall be in effect, or (ii) the Corporation shall have received an opinion of
its counsel that such shares of Common Stock may be sold without the
registration under the Act.
If Mr. Yochum dies prior to the exercise or expiration of the Option, the Option
shall terminate two years after Mr. Yochum's death, during which period the
Option may be exercised by the person or persons to whom Mr. Yochum's rights
shall pass by will or by the applicable law of descent and distribution.
4. METHOD OF OPTION EXERCISE
Subject to the terms of this Agreement, the Option may be exercised by written
notice to the Corporation at Westinghouse Corporate Information Services, Post
Office Box 86070, Pittsburgh, Pennsylvania 15221, attention of Executive
Compensation Services. Such notice shall state the election to exercise the
Option, the number of shares in respect of which it is being
exercised and shall be signed by the person or persons so exercising the Option.
Such notice shall be accompanied by payment of the full purchase price of said
shares in such manner as may be acceptable to the Corporation prior to delivery
of the certificate or certificates representing said shares. Notice of the
exercise of the Option to Executive Compensation Services may also be given by
FAX bearing the appropriate signature if followed promptly by a written
confirmation of such exercise. The Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable after the notice
shall be received by the Corporation. The certificate or certificates for the
shares as to which the Option have been so exercised shall not be registered
earlier than five business days after receipt of notification of the exercise of
the Option and, unless the person or persons exercising the Option shall
otherwise direct the Corporation in writing, such certificate or certificates
for the shares shall be registered in the name of the person or persons so
exercising the Option and shall be delivered as aforesaid to or upon the written
order of the person or persons exercising the Option. In the event the Option
shall be exercised by any person or persons other than Mr. Yochum, such notice
shall be accompanied by appropriate proof of the derivative right of such person
or persons to exercise the Option. The date of exercise of the Option shall be
the date on which the aforesaid notice is received. All shares that shall be
purchased upon the exercise of the Option as provided herein shall be fully paid
and non-assessable.
5. TERMINATION OF OPTION
The Option may not be exercised to any extent after termination of the Option in
one of the following ways, whichever first occurs;
(a) Upon exercise, the Option shall terminate as to the number of shares of
Common Stock with respect to which such Option was exercised.
(b) The Option and all rights and obligations thereunder shall expire ten
years after the date of this Agreement.
6. ADJUSTMENT UPON CHANGES IN STOCK
If there shall be any change in the stock subject to the Option granted
hereunder, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split or other change in the corporate structure,
appropriate adjustments may be made by the Board of Directors of the Corporation
(or if the Corporation is not the surviving corporation in any such transaction,
the Board of Directors of the surviving corporation) in the number and kind of
shares and the price per share subject to the Option.
7. LIMITED RIGHTS
The Corporation hereby grants to Mr. Yochum limited stock appreciation rights
("Limited Rights") with respect to the shares subject to the Option on the terms
and conditions herein set forth. Upon the occurrence of a Change in Control, as
defined below, the Option and Limited Rights granted herein shall become
immediately exercisable.
A Limited Right may be exercised only during the period beginning on the first
day following a Change in Control and ending on the thirtieth day following such
date. Each Limited Right shall
2
be exercisable only to the same extent the Option is exercisable, and in no
event after the termination of the Option. In no event shall a Limited Right be
exercised during the first six months after the date of grant of the Limited
Right. Limited Rights shall be exercisable only when the fair market value
(determined as of the date of exercise of the Limited Rights) of each share of
Common Stock with respect to which the Limited Rights are to be exercised shall
exceed the option price per share of Common Stock subject to the Option.
Upon the exercise of Limited Rights, the Option shall be considered to have been
exercised to the extent of the number of shares of Common Stock with respect to
which such Limited Rights are exercised. Upon the exercise or termination of the
Option, the Limited Rights with respect to such Option shall be considered to
have been exercised or terminated to the extent of the number of shares of
Common Stock with respect to which the Option was so exercised or terminated.
Upon the exercise of Limited Rights, Mr. Yochum shall receive in cash an amount
equal to the product computed by multiplying (i) the excess of (a) the higher of
(x) the Minimum Price Per Share (as hereinafter defined), or (y) the highest
reported closing sales price of a share of Common Stock on the New York Stock
Exchange at any time during the period beginning on the sixtieth day prior to
the date on which such Limited Rights are exercised, over (b) the option price
per share of Common Stock subject to the Option, by (ii) the number of shares of
Common Stock with respect to which such Limited Rights are being exercised.
For purposes of this paragraph, the term "Minimum Price Per Share" shall mean
the highest gross price (before brokerage commissions and soliciting dealers'
fees) paid or to be paid for a share of Common Stock (whether by way of
exchange, conversion, distribution upon liquidation or otherwise) in any Change
in Control which is in effect at any time during the period beginning on the
sixtieth day prior to the date on which such Limited Rights are exercised and
ending on the date on which such Limited Rights are exercised. For purposes of
this definition, if the consideration paid or to be paid in any such Change in
Control shall consist, in whole or in part, of consideration other than cash,
the Corporation shall take such action, as in its judgment it deems appropriate,
to establish the cash value of such consideration.
The term "Change in Control" means the occurrence of one or more of the
following events:
(a) there shall be consummated (i) any consolidation or merger of the
Corporation in which the Corporation is not the continuing or
surviving corporation or pursuant to which shares of the Corporation's
Common Stock would be converted into cash, securities or other
property, other than a merger of the Corporation in which the holders
of the Corporation's Common Stock immediately prior to the merger have
the same proportionate ownership of Common Stock of the surviving
corporation immediately after the merger, or (ii) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Corporation, or (b) the stockholders of the Corporation shall approve
any plan or proposal for the liquidation or dissolution of the
Corporation, or (c) (i) any person (as such term is defined in Section
13(d) of the Securities Exchange Act of 1934, as amended) (the
"Exchange Act")), corporation or other entity shall purchase any
Common Stock of the Corporation (or securities convertible into the
Corporation's Common Stock) for cash, securities or any other
consideration pursuant to a tender offer or exchange offer, unless,
prior to the
3
making of such purchase of Common Stock (or securities convertible
into Common Stock), the Board shall determine that the making of such
purchase shall not constitute a Change in Control, or (ii) any person
(as such term is defined in Section 13(d) of the Exchange Act),
corporation or other entity (other than the Corporation or any benefit
plan sponsored by the Corporation or any of its subsidiaries) shall
become the "beneficial owner" (as such term is defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Corporation representing twenty percent or more of the combined voting
power of the Corporation's then outstanding securities ordinarily (and
apart from any rights accruing under special circumstances) having the
right to vote in the election of directors (calculated as provided in
Rule 13d-3(d) in the case of rights to acquire any such securities,
unless, prior to such person so becoming such beneficial owner, the
Board shall determine that such person so becoming such beneficial
owner shall not constitute a Change in Control, or (d) at any time
during any period of two consecutive years, individuals who at the
beginning of such period constituted the entire Board shall cease for
any reason to constitute at least a majority thereof, unless the
election or nomination for election of each new director during such
two-year period was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of
such two-year period.
8. NON-TRANSFERABILITY OF OPTION
The Option shall not be transferable otherwise than by will or by the applicable
laws of descent and distribution. More particularly (but without limiting the
generality of the foregoing), the Option may not be assigned, transferred
(except as aforesaid), pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment or
similar process. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the levy
of any execution, attachment or similar process upon the Option, shall be null
and void and without effect.
9. This Agreement shall be governed in all respects by the laws of the
Commonwealth of Pennsylvania.
WESTINGHOUSE ELECTRIC CORPORATION
By:
------------------------------------
ATTEST
- -----------------------------
Assistant Secretary
By:
------------------------------------
Leo W. Yochum
(Legal Signature)
4
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 on Form S-8 to Form S-4
registration statement of our report dated November 18, 1999 with respect to the
consolidated balance sheet of King World Productions, Inc. as of August 31, 1999
and 1998, and the related consolidated statements of income, stockholders'
equity and cash flows for each of the years in the three year period ended
August 31, 1999, which report appears in the Form 8-K of CBS Corporation, and to
all references to our Firm included in this registration statement.
/s/ Arthur Anderson LLP
New York, New York
May 5, 2000
EXHIBIT 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Post-Effective
Amendment No. 1 on Form S-8 to Form S-4 Registration Statement of our report
dated February 10, 2000, except for the second and third paragraphs of Note 2,
which are as of March 21, 2000, relating to the financial statements and
financial statement schedule, which appears in Viacom Inc.'s Annual Report on
Form 10-K for the year ended December 31,1999.
/s/ PricewaterhouseCoopers LLP
New York, New York
May 3, 2000
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our reports: dated January 25, 2000, except as to note
20, which is as of March 21, 2000, appearing on page 30 of CBS Corporation's
Form 10-K for the year ended December 31, 1999; dated March 21, 2000, appearing
on page 67 of CBS Corporation's Form 10-K for the year ended December 31, 1999;
dated June 8, 1999, appearing on page 1 of the Westinghouse Savings Program's
Form 11-K for the year ended December 31, 1998; dated June 18, 1999, appearing
on page 1 of Infinity Broadcasting Corporation Employees' 401(k) Plan's Form
11-K for the year ended December 31, 1998; and dated June 18, 1999, appearing on
page 1 of Infinity Broadcasting Corporation Employees' 401(k) Union Plan's Form
11-K for the year ended December 31, 1998, incorporated by reference in this
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 registration statement of
Viacom Inc.
/s/ KPMG LLP
New York, New York
May 4, 2000
EXHIBIT 23.4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 1 on Form S-8 to Form S-4
Registration Statement of our report dated June 4, 1999 included in CBS
Corporation's Form 11-K for the CBS Employee Investment Fund for the year ended
December 31, 1998 and to all references to our Firm in this Registration
Statement.
/s/ MITCHELL & TITUS, LLP
New York, New York
May 3, 2000
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned directors of Viacom Inc. (the "Company") hereby
constitute and appoint Michael D. Fricklas our true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for and in the
name, place and stead of the undersigned, in any and all capacities, to sign and
file with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), (1) the Company's
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 Registration Statement
relating to the Stock Option Plans and Investment Plans listed below (the
"Plans"), (2) any and all post-effective amendments to the registration
statement on Form S-8, and any and all instruments and documents filed as a part
of or in connection with said registration statement or amendments thereto,
covering the shares of the Company's Class B Common Stock issued in connection
with the Plans, and (3) any registration statements, reports and applications
relating to such securities filed by the Company with the Commission and/or any
national securities exchanges under the Securities Exchange Act of 1934, as
amended, and any and all amendments thereto, and any and all instruments and
documents filed as part of or in connection with such registration statements or
reports or amendments thereto; granting unto said attorney-in-fact and agent,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully for all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that the said
attorney-in-fact and agent, shall do or cause to be done by virtue hereof.
Investment Plans
o The Westinghouse Savings Program
o CBS Employee Investment Fund
o Infinity Broadcasting Corporation Employees' 401(k) Plan
o Infinity Broadcasting Corporation Employees' 401(k) Union Plan
Stock Option Plans
o Amended and Restated Infinity Broadcasting Corporation Stock
Option Plan
o Infinity Broadcasting Corporation Warrant Certificate No. 3 to
Mel Karmazin
o King World 1998 Stock Option and Restricted Stock Purchase
Plan
o King World 1996 Amended and Restated Stock Option and
Restricted Stock Purchase Plan
o King World Salesforce Bonus Plan
o Gaylord Entertainment Company Amended and Restated 1993 Stock
Option and Incentive Plan
o Gaylord Entertainment Company Amended and Restated 1991 Stock
Option and Incentive Plan
o CBS Corporation Deferred Compensation and Stock Plan for
Directors o CBS 1991 Long-Term Incentive Plan o CBS 1993
Long-Term Incentive Plan o Westinghouse 1984 Long-Term
Incentive Plan o Non-Qualified Stock Option Agreement for Leo
Yochum
Signature Capacity Date
/s/ George S. Abrams Director May 5, 2000
- --------------------------------------
George S. Abrams
/s/ George H. Conrades Director May 5, 2000
- --------------------------------------
George H. Conrades
/s/ Philippe P. Dauman Director May 5, 2000
- --------------------------------------
Philippe P. Dauman
/s/ Thomas E. Dooley Director May 5, 2000
- --------------------------------------
Thomas E. Dooley
/s/ William H. Gray III Director May 5, 2000
- --------------------------------------
William H. Gray III
/s/ Mel Karmazin Director, President May 5, 2000
- --------------------------------------
Mel Karmazin and Chief Operating
Officer
/s/ Jan Leschly Director May 5, 2000
- --------------------------------------
Jan Leschly
/s/ David T. McLaughlin Director May 5, 2000
- --------------------------------------
David T. McLaughlin
/s/ Director May 5, 2000
- --------------------------------------
Leslie Moonves
/s/ Ken Miller Director May 5, 2000
- --------------------------------------
Ken Miller
/s/ Brent D. Redstone Director May 5, 2000
- --------------------------------------
Brent D. Redstone
/s/ Shari Redstone Director May 5, 2000
- --------------------------------------
Shari Redstone
/s/ Sumner M. Redstone Director May 5, 2000
- --------------------------------------
Sumner M. Redstone Chairman of the Board,
and Chief Executive Officer
(Principal Executive Officer)
/s/ Fredric G. Reynolds Executive Vice President May 5, 2000
- --------------------------------------
Fredric G. Reynolds and Chief Financial Officer
(Principal Financial Officer)
/s/ Frederic V. Salerno Director May 5, 2000
- --------------------------------------
Frederic V. Salerno
/s/ William Schwartz Director May 5, 2000
- --------------------------------------
William Schwartz
/s/ Ivan Seidenberg Director May 5, 2000
- --------------------------------------
Ivan Seidenberg
/s/ Patty Stonesifer Director May 5, 2000
- --------------------------------------
Patty Stonesifer
/s/ Robert D. Walter Director May 5, 2000
- --------------------------------------
Robert D. Walter
/s/ Susan C. Gordon Vice President, May 5, 2000
- --------------------------------------
Susan C. Gordon Controller and
Chief Accounting Officer
(Principal Accounting Officer)
