As filed with the Securities and Exchange Commission on February 21, 2001
Registration No. 333-__________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
POST-EFFECTIVE AMENDMENT NO. 3 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 No.)
1515 Broadway
New York, New York 10036
(212) 258-6000
(Address and phone number of principal executive offices, including zip code)
-----------------------------
Infinity Broadcasting Corporation Employees' 401(k) Plan
Infinity Broadcasting Corporation Union Employees' 401(k) Plan
Outdoor Systems, Inc. 401(k) Plan
CBS Employee Investment Fund
Infinity Broadcasting Corporation Stock Plan for Directors
Infinity Broadcasting Corporation 1998 Long-Term Incentive Plan
Infinity Broadcasting Corporation 1999 Long-Term Incentive Plan
Outdoor Systems, Inc. 1996 Non-Employee Directors Stock Option Plan
Outdoor Systems, Inc. 1996 Omnibus Plan
(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 and telephone number of agent for service)
-------------------------
This Post-Effective Amendment on Form S-8 to Form S-4 Registration Statement
relates to 12,432,000 shares of Class B Common Stock, par value $.01 per share,
(the "Viacom Class B Common Stock") of Viacom Inc. ( the "Registrant"). Such
shares are issuable (i) to holders of outstanding options to purchase shares of
Class A Common Stock, par value $.01 per share, of Infinity Broadcasting
Corporation ("Infinity"), which options were assumed by the Registrant pursuant
to the Agreement and Plan of Merger dated as of October 30, 2000, under the
Infinity Broadcasting Corporation Stock Plan for Directors, Infinity
Broadcasting Corporation 1998 Long-Term Incentive Plan, Infinity Broadcasting
Corporation 1999 Long-Term Incentive Plan, Outdoor Systems, Inc. 1996
Non-Employee Directors Stock Option Plan and Outdoor Systems, Inc. 1996 Omnibus
Plan (the "Infinity Option Plans") and (ii) under the Infinity Broadcasting
Corporation Employees' 401(k) Plan, Infinity Broadcasting Corporation Union
Employees' 401(k) Plan, the Outdoor Systems, Inc. 401(k) Plan and the CBS
Employee Investment Fund (the "Infinity Investment Plans") which will contain a
Registrant stock fund. These shares of the Viacom Class B Common Stock
originally were registered on the Registrant's Registration Statement on Form
S-4 (Registration No. 333-50452), to which this is an amendment; accordingly,
the registration fee in respect of such Viacom Class B Common Stock was paid at
the time of the original filing of the Registration Statement relating to such
Viacom Class B Common Stock. Pursuant to Rule 416(e) 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 Infinity Investment Plans.
Page 1 of 14
EXPLANATORY STATEMENT
Pursuant to an Agreement and Plan of Merger, dated as of
October 30, 2000 (the "Merger Agreement"), among the Registrant, IBC Merger
Corp., a Delaware company ("IBC Merger Corp.") and Infinity Broadcasting
Corporation, a Delaware company ("Infinity"), among other things, (i) each share
of Class A common stock, par value $.01 per share, of Infinity (the "Infinity
Common Stock") issued and outstanding immediately prior to the effective time of
the merger (the "Effective Time") (other than any shares of Infinity Common
Stock held in Infinity's treasury) was converted, into the right to receive
0.592 of a share (the "Exchange Ratio") of Viacom Class B Common Stock and (ii)
at the Effective Time, shares of Viacom Class B Common Stock, rather than shares
of Infinity Common Stock, became issuable pursuant to the following plans:
Infinity Investment Plans
o Infinity Broadcasting Corporation Employees' 401(k) Plan
o Infinity Broadcasting Corporation Union Employees' 401(k) Plan
o Outdoor Systems, Inc. 401(k) Plan
o CBS Employee Investment Fund
Infinity Option Plans
o Infinity Broadcasting Corporation Stock Plan for Directors
o Infinity Broadcasting Corporation 1998 Long-Term Incentive Plan
o Infinity Broadcasting Corporation 1999 Long-Term Incentive Plan
o Outdoor Systems, Inc. 1996 Non-Employee Directors Stock Option Plan
o Outdoor Systems, Inc. 1996 Omnibus Plan
The Registrant hereby amends its Registration Statement (the
"Registration Statement") on Form S-4 (No. 333-50452), filed with the Securities
and Exchange Commission on November 22, 2000, as amended by Amendment No. 1 to
Form S-4 filed on January 9, 2001, and Amendment No. 2 to Form S-4 filed on
January 12, 2001, by filing this Post-Effective Amendment No. 3 on Form S-8 (the
"Post-Effective Amendment") relating to 12,432,000 shares of Viacom Class B
Common Stock (i) issuable upon the exercise of options under the Infinity Option
Plans and (ii) available for issuance under the Infinity Investment Plans.
Pursuant to Rule 416(c) under the Securities Act, this Post-Effective Amendment
also covers an indeterminate amount of interests to be offered or sold pursuant
to the Infinity Investment Plans.
Page 2 of 14
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.
Page 3 of 14
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with or
furnished to the Securities and Exchange Commission (the "Commission") by the
Registrant are incorporated herein by reference and made part of this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the 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) The Registrant's Quarterly Reports on Form 10-Q for the
periods ending March 31, 2000, June 30, 2000 and September 30, 2000;
(c) The Registrant's Current Reports on Form 8-K or Form 8-K/A
filed May 4, 2000, July 17, 2000, August 3, 2000, August 15, 2000,
October 31, 2000, November 3, 2000, December 4, 2000, January 5,
2001, January 8, 2001 and February 15, 2001;
(d) The description of Viacom's Class B Common Stock contained
in the Registrant's Proxy Statement filed on November 24, 1999; and
(e) Annual Report on Form 11-K for the CBS Employee Investment
Fund for the fiscal year ended December 31, 1999.
The following documents filed with the Commission by Infinity
are hereby incorporated by reference into this Registration Statement:
(a) Annual Report on Form 10-K for the year ended December 31,
1999;
(b) Quarterly Reports on Form 10-Q for the periods ended March
31, 2000, June 30, 2000 and September 30, 2000;
(c) Current Reports on Form 8-K filed January 14, 2000, May
30, 2000, August 15, 2000, October 31, 2000, January 8, 2001 and
February 15, 2001;
(d) Annual Report on Form 11-K for the Outdoor Systems, Inc.
401(k) Plan for the fiscal year ended December 31, 1999;
(e) Annual Report on Form 11-K for the Infinity Broadcasting
Corporation Employees' 401(k) Plan for the fiscal year ended
December 31, 1999; and
(f) Annual Report on Form 11-K for the Infinity Broadcasting
Corporation Union Employees' 401(k) Plan for the fiscal year ended
December 31, 1999.
In addition, all documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities and Exchange Act of 1934
(the "Exchange Act") subsequent to the effective
Page 4 of 14
date of this Registration Statement, prior to the filing of a post-effective
amendment to this Registration Statement indicating that all securities offered
hereby have been sold or deregistering all securities then remaining unsold,
shall be deemed to be incorporated by reference herein and to be a part hereof
from the date of filing of such documents. Any statement contained herein or in
any document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part of this
Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
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 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 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.
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 is or was a director, officer, employee or agent of the
Registrant, or is or was serving at
Page 5 of 14
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 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.
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.
Page 6 of 14
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index.
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:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of 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,
Page 7 of 14
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.
Page 8 of 14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Post-Effective Amendment No. 3 on Form S-8
to Form S-4 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on this 21st day of
February, 2001.
VIACOM INC.
By: /s/ Michael D. Fricklas
--------------------------------
Michael D. Fricklas
Executive Vice President,
General Counsel and Secretary
Pursuant to the requirements of the Securities Act of 1933,
this Post-Effective Amendment No. 3 on Form S-8 to Form S-4 has been signed by
the following persons in the capacities indicated on the 21st day of February,
2001.
SIGNATURE TITLE
--------- -----
* Director
- ---------------------------
George S. Abrams
Director
*
- ---------------------------
David R. Andelman
* Director
- ---------------------------
George H. Conrades
* Director
- ---------------------------
Philippe P. Dauman
/s/ Susan C. Gordon Vice President, Controller and Chief
- --------------------------- Accounting Officer (Principal
Susan C. Gordon Accounting Officer)
* Director
- ---------------------------
William H. Gray III
/s/ Mel Karmazin Director, President and Chief
- --------------------------- Operating Officer
Mel Karmazin
* Director
- ---------------------------
Jan Leschly
Page 9 of 14
* Director
- ---------------------------
David T. McLaughlin
* Director
- ---------------------------
Leslie Moonves
* Director
- ---------------------------
Ken Miller
* Director
- ---------------------------
Brent D. Redstone
* Director
- ---------------------------
Shari Redstone
/s/ Sumner M. Redstone Director, Chairman of the Board
- --------------------------- and Chief Executive Officer
Sumner M. Redstone (Principal Executive Officer)
/s/ Fredric G. Reynolds Executive Vice President and
- --------------------------- Chief Financial Officer (Principal
Fredric G. Reynolds Financial Officer)
* Director
- ---------------------------
Frederic V. Salerno
* Director
- ---------------------------
William Schwartz
* Director
- ---------------------------
Ivan Seidenberg
* Director
- ---------------------------
Patty Stonesifer
* Director
- ---------------------------
Robert D. Walter
/s/ Michael D. Fricklas
- ---------------------------
*By Michael D. Fricklas
as Power of Attorney
Page 10 of 14
Outdoor Systems, Inc. 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 21st day of February, 2001.
OUTDOOR SYSTEMS, INC. 401(K) PLAN
By: /s/ William A. Roskin
----------------------------------------
Name: William A. Roskin
Title: Senior 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 21st day of February, 2001.
CBS EMPLOYEE INVESTMENT FUND
By: /s/ William A. Roskin
----------------------------------------
Name: William A. Roskin
Title: Senior 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
21st day of February, 2001.
INFINITY BROADCASTING CORPORATION
EMPLOYEES' 401(k) PLAN
By: /s/ William A. Roskin
----------------------------------------
Name: William A. Roskin
Title: Senior Vice President, Human
Resources and Administration,
Viacom Inc.
Page 11 of 14
Infinity Broadcasting Corporation Union 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
21st day of February, 2001.
INFINITY BROADCASTING CORPORATION
UNION EMPLOYEES' 401(k) PLAN
By: /s/ William A. Roskin
----------------------------------------
Name: William A. Roskin
Title: Senior Vice President, Human
Resources and Administration,
Viacom Inc.
Page 12 of 14
Exhibit Index
Exhibit No. Description of Document
4.1 Restated Certificate of Incorporation of Viacom Inc.
(incorporated by reference to Exhibit 3(a) to the Annual
Report on Form 10-K of the Registrant for the fiscal year
ended December 31, 1999 (File No. 1-578600)).
4.2 By-laws of Viacom Inc. (incorporated by reference to Exhibit
3.3 to the Registrant's Registration Statement on Form S-4
filed by the Registrant (Registration No. 33-13812)).
4.3 Agreement and Plan of Merger, dated as of October 30, 2000,
among Viacom Inc., IBC Merger Corp. and Infinity
Broadcasting Corporation (incorporated by reference to the
Registration Statement on Form S-4 filed by the Registrant
on November 22, 2000 (Registration No. 333-50452), as
amended by Amendment No. 1 to Form S-4 filed by the
Registrant on January 1, 2001 and Amendment No. 2 to Form
S-4 filed by the Registrant on January 12, 2001)).
4.4 Infinity Broadcasting Corporation Stock Plan for Directors
(incorporated by reference to Exhibit 10.25 to Form 10-K filed
by Infinity for the year ended December 31, 1998 (File No.
1-14599)).
4.5* Infinity Broadcasting Corporation 1999 Long-Term Incentive
Plan.
4.6 Infinity Broadcasting Corporation 1998 Long-Term Incentive
Plan (incorporated by reference to Exhibit 10.16 to Form 10-K
filed by Infinity for the year ended December 31, 1999 (File
No. 1-14599)).
4.7 Outdoor Systems, Inc. 1996 Non-Employee Directors Stock Option
Plan (incorporated by reference to Exhibit 99.3 to Form S-8
filed by Outdoor Systems, Inc. on October 23, 1997
(Registration No. 333-38589)).
4.8 Outdoor Systems, Inc. 1996 Omnibus Plan (incorporated by
reference to Exhibit 10.16 to Form S-1 filed by Outdoor
Systems, Inc. on February 22, 1996 (Registration No.
333-1582).
4.9* Outdoor Systems, Inc. 401(k) Plan.
4.10 CBS Employee Investment Fund (incorporated by reference to
Exhibit 4.16 of the Registrant's Post-Effective Amendment No.
1 on Form S-8 to Form S-4 filed by the Registrant on May 5,
2000 (Registration No. 333-88613)).
4.11 Infinity Broadcasting Corporation Employees' 401(k) Plan
(incorporated by reference to Exhibit 4.17 of the Registrant's
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 filed
by the Registrant on May 5, 2000 (Registration No.
333-88613)).
4.12 Infinity Broadcasting Corporation Union Employees' 401(k) Plan
(incorporated by reference to Exhibit 4.18 of the Registrant's
Post-Effective Amendment No. 1 on Form S-8 to Form S-4 filed
by the Registrant on May 5, 2000 (Registration No.
333-88613)).
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 (incorporated by
reference to the Registration Statement on Form S-4 filed by
the Registrant on November 22, 2000 (Registration No.
333-50452), as amended by Amendment No. 1 to Form S-4 filed by
the Registrant on January 9, 2001 and Amendment No. 2 to Form
S-4 filed by the Registrant on January 12, 2001)).
23.1* Consent of PricewaterhouseCoopers LLP.
Page 13 of 14
23.2* Consent of KPMG LLP.
23.3* Consent of Mitchell & Titus, LLP.
23.4 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.
Page 14 of 14
EXHIBIT 4.5
INFINITY BROADCASTING CORPORATION
1999 LONG-TERM INCENTIVE PLAN
(As amended March 20, 2000)
ARTICLE I
GENERAL
1.1 Purpose
The purposes of the 1999 Long-Term Incentive Plan, as amended from time
to time (the "Plan") for eligible employees of Infinity Broadcasting 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.
(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 from time to
time 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 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,
unless otherwise provided in the Plan, take any action to amend any outstanding
Option under the Plan in order to decrease the Option Price under such Option;
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 or its parent corporation(s) or their subsidiaries
("Employee" or "Employees"). 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 such other factors as the
Committee deems relevant.
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 Participant
Limited Stock Appreciation Rights ("Participant Limited Rights"), as described
in Article II; (iii) Performance Awards ("Performance Awards") as described in
Article IV; and (iv) Restricted Stock ("Restricted Stock") and Restricted Units
("Restricted Units"), each 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 Class A Common
Stock, par value $0.01 per share ("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 7,500,000, plus such additional shares as the
Board of Directors or the Committee or their respective delegee 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 any shares having
been issued pursuant thereto 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
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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 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. The Committee may also at any time
and from time to time provide for the deferral of delivery of any shares for
which the Option may be exercisable until a specified date or dates and subject
to terms and conditions determined by the Committee.
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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.
2.6 Company Limited Rights
If so provided in the Stock Option Agreement, as it may be amended from
time to time, in the event of a Change in Control (as defined in Article VII of
the Plan), the Company will have the right to cancel any portion of the Option
(whether vested or nonvested) that remains unexercised on the date the Company
exercises its Company Limited Right pursuant to this Section 2.6 (or the entire
Option if no part of the Option has yet been exercised) in exchange for a
payment in cash of an amount equal to the number of shares of Common Stock as to
which the Option remains unexercised at the time the Company exercises such
right multiplied by the excess of (a) the higher of (x) the Minimum Price Per
Share (as defined below), or (y) the highest reported closing sale price of a
share of the Common Stock on the New York Stock Exchange at any time during the
period beginning on the sixtieth (60th) day prior to the date on which the
Company exercises such right and ending on the date on which the Company
exercises such right, over (b) the Option Price per share.
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For purposes of this Section 2.6, unless otherwise provided in the
relevant Stock Option Agreement, 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 (60th) day prior to the date on which the Company exercises such right
and ending on the date on which the Company exercises such right. For purposes
of this definition, if the consideration paid or to be paid in any such Change
in Control consists, in whole or in part, of consideration other than cash, then
the Board will take such action as in its judgment it deems appropriate to
establish the cash value of such consideration.
The Company's right to cancel an Option pursuant to Section 2.6 may be
exercised at any time until the end of the thirtieth (30th) day following the
occurrence of the Change in Control.
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, 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, 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.
5
(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, 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 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. The Committee may also at any time and from time to time
provide for the deferral of delivery of any shares and/or cash for which the SAR
may be exercisable until a specified date or dates and subject to terms and
conditions determined by the Committee.
(k) Unless otherwise determined by the Committee, each SAR will expire
on the first to occur of the first of the following: (i) the expiration date set
by the Committee at the time of an award of an SAR, (ii) in the case of a Tandem
SAR, termination of the related Option, (iii) 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 (iv) the Participant
ceasing to be an Eligible Person for any other reason.
3.2 Participant Limited Rights
(a) The Committee may award Participant 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
6
"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 Article
VII of the Plan, and ending on the thirtieth (30th) day following such date.
Each Participant 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. Participant Limited Rights will be exercisable only when the
Fair Market Value (determined as of the date of exercise of the Participant
Limited Rights) of each share of Common Stock with respect to which the
Participant 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 Participant 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 Participant Limited Rights are
exercised. Upon the exercise or termination of the Related Option, the
Participant 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 (60th) day prior to the date on which such Participant Limited
Rights are exercised and ending on the date on which such Participant 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 Participant 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 (60th) day prior to the date on which such
Participant Limited Rights are exercised and ending on the date on which such
Participant 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.
7
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 or may be related to the occurrence of any triggering event or events
that the Committee may deem appropriate. The Committee will determine the
Performance Goals, the period or periods during which performance is to be
measured or otherwise determined 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.
ARTICLE V
RESTRICTED STOCK AND RESTRICTED UNITS
5.1 Awards of Restricted Stock and Restricted Units
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.
The Committee may also award to any Participant Restricted Units
subject to this Article V and such other terms and conditions as the Committee
may prescribe. For purposes hereof, a "Restricted Unit" will mean any award of a
contractual right granted under this Article V to receive Stock (or, at the
discretion of the Committee, cash in an amount based on the Fair Market Value of
the Stock, or a combination of Stock and cash) which would become vested and
nonforfeitable, in whole or in part, upon the completion of such period of
service as may be determined by the Committee.
5.2 Restricted Stock/Restricted Unit Agreement
Awards of Restricted Stock and Restricted Units under the Plan will be
evidenced by a written agreement in such form and containing such terms and
conditions as the Committee may determine.
8
5.3 Restriction Period; Dividend Equivalents
At the time of award of Restricted Stock or Restricted Units, 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 and Restricted Units may not be sold,
assigned, transferred, pledged or otherwise encumbered, except as hereinafter
provided.
Subject to such restrictions 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 with respect to such Stock during
the Restriction Period will be accumulated and held by the Company and will be
subject to the same forfeiture provisions and the same restrictions on transfer
as apply to the shares of Restricted Stock with respect to which they were paid.
Upon the expiration or waiver by the Committee of the Restriction
Period and the satisfaction (as determined by the Committee) of any other
conditions determined by the Committee, restrictions applicable to the
Restricted Stock or Restricted Units will lapse and the Corporation will, in the
case of Restricted Stock, redeliver to the Participant (or his or her legal
representative or designated beneficiary) the shares deposited pursuant to
Section 5.1 free and clear of all restrictions except as may be imposed by law
and, in the case of Restricted Units, will pay out such units as provided in the
Restricted Unit Agreement.
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 of
Restricted Stock and with respect to such number of Restricted Units previously
awarded to him or her as may be determined by the Committee. All other shares of
Restricted Stock and Restricted Units 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 in the case of Restricted Stock, 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 and all Restricted Units previously awarded to him or her which
are still subject to restrictions, along with any dividend or other
distributions on Restricted Stock that have been accumulated and held by the
Company, will be forfeited, and, in the case of Restricted Stock, the
Corporation will have the right to complete the blank stock power.
5.5 Dividend Equivalents
The Committee will determine whether and to what extent, if any, to
credit to the account of, or to pay currently to, each recipient of Restricted
Units, an amount equal to any dividends or other distributions paid during the
Restriction Period with respect to the corresponding number of shares of Stock
covered thereby ("Dividend Equivalent"). To the extent provided by the Committee
at or after the date of grant, any Dividend Equivalents with respect to cash
dividends on the Stock credited to a
9
Participant's account will be deemed to have been invested in shares of Stock on
the record date established for the related dividend and, accordingly, a number
of additional Restricted Units shall be credited to such Participant's account
equal to the greatest whole number which may be obtained by dividing (x) the
value of such Dividend Equivalent on the record date by (y) the Fair Market
Value of a share of Stock on such date.
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 Payment of Deferred Amounts
Payment of Deferred Amounts will be made on such terms and conditions
as the Committee may determine and 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 in
its sole discretion may from time to time determine.
ARTICLE VII
CHANGES IN CONTROL
7.1 Effect of Change in Control
Upon the occurrence of a change in control (a) as defined in the
relevant agreement for an Award or (b) as may be determined by the Committee
(each of (a) and (b) a "Change of Control"), then notwithstanding any other
provision of the Plan:
(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, Participant
Limited Rights, but not SARs,
10
outstanding and unexercised on the date of the Change in Control
will become immediately exercisable;
(ii) if so provided in the respective Stock Option Agreements, as they
may be amended from time to time, Company Limited Rights will
become immediately exercisable;
(iii) Performance Awards will be deemed to have been earned if so
determined by the Committee and may be paid on such basis as the
Committee may prescribe;
(iv) Restricted Stock and Restricted Units may be deemed to be earned
and the Restriction Period may be deemed to be expired on such
terms and conditions as the Committee may determine; and
(v) amounts deferred under this Plan may be paid on such terms as the
Committee determines.
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ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Transferability
No Option, Limited Right, SAR, Performance Award, Restricted Unit 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, Participant Limited Right, SAR, Performance Award, Restricted Unit
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 and/or the corporate structure 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,
including modifications of performance targets and changes in the length of
Performance Periods.
8.4 Conditions of Awards
(a) Unless the Committee determines otherwise, either by waiving the
conditions(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
12
phases of the business with which he or she is or was actively connected during
the time he or she was an employee or independent contractor, 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 Participant 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 collect, through withholding or otherwise, an amount
sufficient to satisfy any applicable statutory federal, state and local
withholding tax requirements (the "withholding requirements") with respect to
payments made pursuant to the Plan.
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 any
applicable 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 any 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
13
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 in 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 Eligible Person; 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
Eligible Person 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.
8.10 Effective Date
The Plan is effective April 1, 1999, as amended.
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.
14
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 or the Committee 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) The terms "retirement" and "disability" as used under the Plan will
have the meanings determined from time to time by the Committee.
(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) "subsidiary" means any corporation, partnership or other entity of
which shares of voting stock sufficient to elect a majority of the Board of
Directors, or other persons performing similar functions, is owned by the
Corporation, either directly or indirectly through one or more subsidiaries.
(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.
8.13 Governing Law
The Plan and all agreements or other documents relating to the Plan
will be construed in accordance with and governed by the laws of the State of
Delaware, without regard to the principles of conflict of laws.
15
EXHIBIT 4.9
OUTDOOR SYSTEMS, INC.
401(K) PLAN
TABLE OF CONTENTS
Article I
DEFINITIONS
Article II
TOP HEAVY AND ADMINISTRATION
2.1 TOP HEAVY PLAN REQUIREMENTS.............................................17
2.2 DETERMINATION OF TOP HEAVY STATUS.......................................17
2.3 POWERS AND RESPONSIBILITIES OF THE EMPLOYER.............................20
2.4 DESIGNATION OF ADMINISTRATIVE AUTHORITY.................................21
2.5 ALLOCATION AND DELEGATION OF RESPONSIBILITIES...........................21
2.6 POWERS AND DUTIES OF THE ADMINISTRATOR..................................21
2.7 RECORDS AND REPORTS.....................................................22
2.8 APPOINTMENT OF ADVISERS.................................................22
2.9 INFORMATION FROM EMPLOYER...............................................22
2.10 PAYMENT OF EXPENSES.....................................................23
2.11 MAJORITY ACTIONS........................................................23
2.12 CLAIMS PROCEDURE........................................................23
2.13 CLAIMS REVIEW PROCEDURE.................................................23
Article III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY...............................................24
3.2 APPLICATION FOR PARTICIPATION...........................................24
3.3 EFFECTIVE DATE OF PARTICIPATION.........................................24
3.4 DETERMINATION OF ELIGIBILITY............................................25
3.5 TERMINATION OF ELIGIBILITY..............................................25
3.6 OMISSION OF ELIGIBLE EMPLOYEE...........................................25
3.7 INCLUSION OF INELIGIBLE EMPLOYEE........................................25
3.8 ELECTION NOT TO PARTICIPATE.............................................25
Article IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION.........................26
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION.................................26
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION..............................30
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS....................30
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS........................................35
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS..........................38
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS....................................39
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS......................42
4.9 MAXIMUM ANNUAL ADDITIONS................................................44
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS...............................47
4.11 TRANSFERS FROM QUALIFIED PLANS..........................................48
4.12 DIRECTED INVESTMENT ACCOUNT.............................................50
Article V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND.............................................50
5.2 METHOD OF VALUATION.....................................................50
Article VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT...............................51
6.2 DETERMINATION OF BENEFITS UPON DEATH....................................51
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY........................52
6.4 DETERMINATION OF BENEFITS UPON TERMINATION..............................52
6.5 DISTRIBUTION OF BENEFITS................................................56
6.6 DISTRIBUTION OF BENEFITS UPON DEATH.....................................58
6.7 TIME OF SEGREGATION OR DISTRIBUTION.....................................60
6.8 DISTRIBUTION FOR MINOR BENEFICIARY......................................60
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN..........................60
6.10 PRE-RETIREMENT DISTRIBUTION.............................................61
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP.......................................61
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION.........................62
Article VII
TRUSTEE
7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE...................................63
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE.............................63
7.3 OTHER POWERS OF THE TRUSTEE.............................................64
7.4 LOANS TO PARTICIPANTS...................................................66
7.5 DUTIES OF THE TRUSTEE REGARDING PAYMENTS................................68
7.6 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES...........................68
7.7 ANNUAL REPORT OF THE TRUSTEE............................................68
7.8 AUDIT...................................................................69
7.9 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE..........................69
7.10 TRANSFER OF INTEREST....................................................70
7.11 DIRECT ROLLOVER.........................................................70
Article VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 AMENDMENT...............................................................71
8.2 TERMINATION.............................................................72
8.3 MERGER OR CONSOLIDATION.................................................72
Article IX
MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS....................................................73
9.2 ALIENATION..............................................................73
9.3 CONSTRUCTION OF PLAN....................................................74
9.4 GENDER AND NUMBER.......................................................74
9.5 LEGAL ACTION............................................................74
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS..................................74
9.7 BONDING.................................................................74
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE..............................75
9.9 INSURER'S PROTECTIVE CLAUSE.............................................75
9.10 RECEIPT AND RELEASE FOR PAYMENTS........................................75
9.11 ACTION BY THE EMPLOYER..................................................75
9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY......................76
9.13 HEADINGS................................................................76
9.14 APPROVAL BY INTERNAL REVENUE SERVICE....................................76
9.15 UNIFORMITY..............................................................77
Article X
PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS.............................................77
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS.................................77
10.3 DESIGNATION OF AGENT....................................................78
10.4 EMPLOYEE TRANSFERS......................................................78
10.5 PARTICIPATING EMPLOYER'S CONTRIBUTION...................................78
10.6 AMENDMENT...............................................................79
10.7 DISCONTINUANCE OF PARTICIPATION.........................................79
10.8 ADMINISTRATOR'S AUTHORITY...............................................79
OUTDOOR SYSTEMS, INC.
401(K) PLAN
THIS AGREEMENT, hereby made and entered into this 21st day of
November, 1994, by and between Outdoor Systems, Inc. (herein referred to as the
"Employer") and William S. Levine, Wally Kelly and Don Canalia (herein referred
to as the "Trustee").
W I T N E S S E T H:
WHEREAS, the Employer heretofore established a Profit Sharing Plan
and Trust effective January 1, 1987, (hereinafter called the "Effective Date")
known as Outdoor Systems, Inc. 401(k) Plan (herein referred to as the "Plan") in
recognition of the contribution made to its successful operation by its
employees and for the exclusive benefit of its eligible employees; and
WHEREAS, under the terms of the Plan, the Employer has the ability
to amend the Plan, provided the Trustee joins in such amendment if the
provisions of the Plan affecting the Trustee are amended;
WHEREAS, the Employer desires to conform the Plan to all of the
requirements of the Tax Reform Act of 1986 and subsequent legislation;
NOW, THEREFORE, effective January 1, 1989, except as otherwise
provided, the Employer and the Trustee in accordance with the provisions of the
Plan pertaining to amendments thereof, hereby amend the Plan in its entirety and
restate the Plan to provide as follows:
Article I
DEFINITIONS
1.1 "Act" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.2 "Administrator" means the person or entity designated by the
Employer pursuant to Section 2.4 to administer the Plan on behalf of the
Employer.
1.3 "Affiliated Employer" means any corporation which is a member of a
controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which
is under common control (as defined in Code Section 414(c)) with the Employer;
any organization (whether or not incorporated) which is a member of an
affiliated service group (as defined in Code Section 414(m)) which includes the
Employer; and any other entity required to be aggregated with the Employer
pursuant to Regulations under Code Section 414(o).
1.4 "Aggregate Account" means, with respect to each Participant, the
value of all accounts maintained on behalf of a Participant, whether
attributable to Employer or Employee contributions, subject to the provisions of
Section 2.2.
1.5 "Anniversary Date" means December 31st.
1
1.6 "Beneficiary" means the person to whom the share of a deceased
Participant's total account is payable, subject to the restrictions of Sections
6.2 and 6.6.
1.7 "Code" means the Internal Revenue Code of 1986, as amended or
replaced from time to time.
1.8 "Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 6051(a)(3) and 6052. Compensation
must be determined without regard to any rules under Code Section 3401(a) 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 Code Section 3401(a)(2)).
For purposes of this Section, the determination of Compensation
shall be made by:
(a) including amounts which are contributed by the Employer
pursuant to a salary reduction agreement and which are not
includible in the gross income of the Participant under Code
Sections 125, 402(e)(3), 402(h)(1)(B), 403(b) or 457, and Employee
contributions described in Code Section 414(h)(2) that are treated
as Employer contributions.
For a Participant's initial year of participation, Compensation
shall be recognized as of such Employee's effective date of participation
pursuant to Section 3.3.
Compensation in excess of $200,000 shall be disregarded. Such
amount shall be adjusted at the same time and in such manner as permitted under
Code Section 415(d), except that the dollar increase in effect on January 1 of
any calendar year shall be effective for the Plan Year beginning with or within
such calendar year and the first adjustment to the $200,000 limitation shall be
effective on January 1, 1990. For any short Plan Year the Compensation limit
shall be an amount equal to the Compensation limit for the calendar year in
which the Plan Year begins multiplied by the ratio obtained by dividing the
number of full months in the short Plan Year by twelve (12). In applying this
limitation, the family group of a Highly Compensated Participant who is subject
to the Family Member aggregation rules of Code Section 414(q)(6) because such
Participant is either a "five percent owner" of the Employer or one of the ten
(10) Highly Compensated Employees paid the greatest "415 Compensation" during
the year, shall be treated as a single Participant, except that for this purpose
Family Members shall include only the affected Participant's spouse and any
lineal descendants who have not attained age nineteen (19) before the close of
the year. If, as a result of the application of such rules the adjusted $200,000
limitation is exceeded, then the limitation shall be prorated among the affected
Family Members in proportion to each such Family Member's Compensation prior to
the application of this limitation, or the limitation shall be adjusted in
accordance with any other method permitted by Regulation.
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,
2
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 Code Section 401(a)(17)(B). 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 Code Section 401(a)(17) shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994, the OBRA '93 annual
compensation limit is $150,000.
If, as a result of such rules, the maximum "annual addition" limit
of Section 4.9(a) would be exceeded for one or more of the affected Family
Members, the prorated Compensation of all affected Family Members shall be
adjusted to avoid or reduce any excess. The prorated Compensation of any
affected Family Member whose allocation would exceed the limit shall be adjusted
downward to the level needed to provide an allocation equal to such limit. The
prorated Compensation of affected Family Members not affected by such limit
shall then be adjusted upward on a pro rata basis not to exceed each such
affected Family Member's Compensation as determined prior to application of the
Family Member rule. The resulting allocation shall not exceed such individual's
maximum "annual addition" limit. If, after these adjustments, an "excess amount"
still results, such "excess amount" shall be disposed of in the manner described
in Section 4.10(a) pro rata among all affected Family Members.
For purposes of this Section, if the Plan is a plan described in
Code Section 413(c) or 414(f) (a plan maintained by more than one Employer), the
$200,000 limitation applies separately with respect to the Compensation of any
Participant from each Employer maintaining the Plan.
If, in connection with the adoption of this amendment and
restatement, the definition of Compensation has been modified, then, for Plan
Years prior to the Plan Year which includes the adoption date of this amendment
and restatement, Compensation means compensation determined pursuant to the Plan
then in effect.
For Plan Years beginning prior to January 1, 19$9, the $200,000
limit (without regard to Family Member aggregation) shall apply only for Top
Heavy Plan Years and shall not be adjusted.
3
1.9 "Contract" or "Policy" means any life insurance policy, retirement
income or annuity policy, or annuity contract (group or individual) issued
pursuant to the terms of the Plan.
1.10 "Deferred Compensation" with respect to any Participant means the
amount of the Participant's total Compensation which has been contributed to the
Plan in accordance with the Participant's deferral election pursuant to Section
4.2 excluding any such amounts distributed as excess "annual additions" pursuant
to Section 4.10(a).
1.11 "Early Retirement Date." This Plan does not provide for a
retirement date prior to Normal Retirement Date.
1.12 "Elective Contribution" means the Employer's contributions to the
Plan of Deferred Compensation excluding any such amounts distributed as excess
"annual additions" pursuant to Section 4.10(a). In addition, any Employer
Qualified Non-Elective Contribution made pursuant to Section 4.1(c) and Section
4.6 shall be considered an Elective Contribution for purposes of the Plan. Any
such contributions deemed to be Elective Contributions shall be subject to the
requirements of Sections 4.2(b) and 4.2(c) and shall further be required to
satisfy the discrimination requirements of Regulation 1.401(k)-1(b)(5), the
provisions of which are specifically incorporated herein by reference.
1.13 "Eligible Employee" means any Employee.
Employees whose employment is governed by the terms of a
collective bargaining agreement between Employee representatives (within the
meaning of Code Section 7701(a)(46)) and the Employer under which retirement
benefits were the subject of good faith bargaining between the parties will not
be eligible to participate in this Plan unless such agreement expressly provides
for coverage in this Plan or two percent or more of the Employees of the
Employer who are covered pursuant to that agreement are professionals as defined
in Regulation 1.410(b)-9.
Notwithstanding the above, Eligible Employees of Gannett Outdoor,
Inc. of Phoenix who are covered by a collective bargaining agreement shall be
eligible to participate in this Plan.
Notwithstanding anything to the contrary, Employees of Affiliated
Employers shall be eligible to participate in this Plan, and such Affiliated
Employers shall automatically be deemed to have made application and shall be
bound by the terms of the Plan as outlined in Article X.
1.14 "Employee" means any person who is employed by the Employer or
Affiliated Employer, but excludes any person who is an independent contractor.
Employee shall include Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) unless such Leased Employees are covered by a plan
described in Code Section 414(n)(5) and such Leased Employees do not constitute
more than 20% of the recipient's non-highly compensated work force.
1.15 "Employer" means Outdoor Systems, Inc. and any Affiliated Employer
(as defined in Section 1.3) and any Participating Employer (as defined in
Section 10.1) which shall
4
adopt this Plan; any successor which shall maintain this Plan; and any
predecessor which has maintained this Plan. The Employer is a corporation, with
principal offices in the State of Arizona.
1.16 "Excess Aggregate Contributions" means, with respect to any Plan
Year, the excess of the aggregate amount of the Employer matching contributions
made pursuant to Section 4.1(b) and any qualified non-elective contributions or
elective deferrals taken into account pursuant to Section 4.7(c) on behalf of
Highly Compensated Participants for such Plan Year, over the maximum amount of
such contributions permitted under the limitations of Section 4.7(a).
1.17 "Excess Contributions" means, with respect to a Plan Year, the
excess of Elective Contributions made on behalf of Highly Compensated
Participants for the Plan Year over the maximum amount of such contributions
permitted under Section 4.5(a). Excess Contributions shall be treated as an
"annual addition" pursuant to Section 4.9(b).
1.18 "Excess Deferred Compensation" means, with respect to any taxable
year of a Participant, the excess of the aggregate amount of such Participant's
Deferred Compensation and the elective deferrals pursuant to Section 4.2(f)
actually made on behalf of such Participant for such taxable year, over the
dollar limitation provided for in Code Section 402(g), which is incorporated
herein by reference. Excess Deferred Compensation shall be treated as an "annual
addition" pursuant to Section 4.9(b) when contributed to the Plan unless
distributed to the affected Participant not later than the first April 15th
following the close of the Participant's taxable year. Additionally, for
purposes of Sections 2.2 and 4.4(h), Excess Deferred Compensation shall continue
to be treated as Employer contributions even if distributed pursuant to Section
4.2(f). However, Excess Deferred Compensation of Non-Highly Compensated
Participants is not taken into account for purposes of Section 4.5(a) to the
extent such Excess Deferred Compensation occurs pursuant to Section 4.2(d).
1.19 "Family Member" means, with respect to an affected Participant,
such Participant's spouse and such Participant's lineal descendants and
ascendants and their spouses, all as described in Code Section 414(q)(6)(B).
1.20 "Fiduciary" means any person who (a) exercises any discretionary
authority or discretionary control respecting management of the Plan or
exercises any authority or control respecting management or disposition of its
assets, (b) renders investment advice for a fee or other compensation, direct or
indirect, with respect to any monies or other property of the Plan or has any
authority or responsibility to do so, or (c) has any discretionary authority or
discretionary responsibility in the administration of the Plan, including, but
not limited to, the Trustee, the Employer and its representative body, and the
Administrator.
1.21 "Fiscal Year" means the Employer's accounting year of 12 months
commencing on January 1st of each year and ending the following December 31st.
1.22 "Forfeiture" means that portion of a Participant's Account that is
not Vested, and occurs on the earlier of:
5
(a) the distribution of the entire Vested portion of a
Terminated Participant's Account, or
(b) the last day of the Plan Year in which the Participant
incurs five (5) consecutive 1-Year Breaks in Service.
Furthermore, for purposes of paragraph (a) above, in the case of a
Terminated Participant whose Vested benefit is zero, such Terminated Participant
shall be deemed to have received a distribution of his Vested benefit upon his
termination of employment. Restoration of such amounts shall occur pursuant to
Section 6.4(f)(2). In addition, the term Forfeiture shall also include amounts
deemed to be Forfeitures pursuant to any other provision of this Plan.
1.23 "Former Participant" means a person who has been a Participant,
but who has ceased to be a Participant for any reason.
1.24 "415 Compensation" with respect to any Participant means such
Participant's wages as defined in Code Section 3401(a) and all other payments of
compensation by the Employer (in the course of the Employer's trade or business)
for a Plan Year for which the Employer is required to furnish the Participant a
written statement under Code Sections 6041(d), 6051(a)(3) and 6052. "415
Compensation" must be determined without regard to any rules under Code Section
3401(a) 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 Code Section 3401(a)(2)).
If, in connection with the adoption of this amendment and
restatement, the definition of "415 Compensation" has been modified, then, for
Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "415 Compensation" means compensation determined
pursuant to the Plan then in effect.
1.25 "414(s) Compensation" with respect to any Participant means such
Participant's "415 Compensation" paid during a Plan Year. The amount of "414(s)
Compensation" with respect to any Participant shall include "414(s)
Compensation" for the entire twelve (12) month period ending on the last day of
such Plan Year, except that "414(s) Compensation" shall only be recognized for
that portion of the Plan Year during which an Employee was a Participant in the
Plan.
For purposes of this Section, the determination of "414(s)
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457, and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
"414(s) Compensation" in excess of $200,000 shall be disregarded.
Such amount shall be adjusted at the same time and in such manner as permitted
under Code Section 415(d), except that the dollar increase in effect on January
1 of any calendar year shall be effective for the Plan Year beginning with or
within such calendar year and the first adjustment to the $200,000 limitation
shall be effective on January 1, 1990. For any short Plan Year the "414(s)
Compensation" limit shall be an amount equal to the "414(s) Compensation" limit
for the
6
calendar year in which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by twelve (12). In
applying this limitation, the family group of a Highly Compensated Participant
who is subject to the Family Member aggregation rules of Code Section 414(q)(6)
because such Participant is either a "five percent owner" of the Employer or one
of the ten (10) Highly Compensated Employees paid the greatest "415
Compensation" during the year, shall be treated as a single Participant, except
that for this purpose Family Members shall include only the affected
Participant's spouse and any lineal descendants who have not attained age
nineteen (l9) before the close of the year.
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 Code Section 401(a)(17)(B). 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 Code Section 401(a)(l7) shall
mean the OBRA '93 annual compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the OBRA '93
annual compensation limit in effect for that prior determination period. For
this purpose, for determination periods beginning before the first day of the
first Plan Year beginning on or after January 1, 1994,, the OBRA '93 annual
compensation limit is $150,000.
If, in connection with the adoption of this amendment and
restatement, the definition of "414(s) Compensation" has been modified, then,
for Plan Years prior to the Plan Year which includes the adoption date of this
amendment and restatement, "414(s) Compensation" means compensation determined
pursuant to the Plan then in effect.
1.26 "Highly Compensated Employee" means an Employee described in Code
Section 414(q) and the Regulations thereunder, and generally means an Employee
who performed services for the Employer during the "determination year" and is
in one or more of the following groups:
(a) Employees who at any time during the "determination year"
or "look-back year" were "five percent owners" as defined in
Section 1.32(c).
(b) Employees who received "415 Compensation" during the
"look-back year" from the Employer in excess of $75,000.
7
(c) Employees who received "415 Compensation" during the
"look-back year" from the Employer in excess of $50,000 and were
in the Top Paid Group of Employees for the Plan Year.
(d) Employees who during the "look-back year" were officers
of the Employer (as that term is defined within the meaning of the
Regulations under Code Section 416) and received "415
Compensation" during the "look-back year" from the Employer
greater than 50 percent of the limit in effect under Code Section
415(b)(1)(A) for any such Plan Year. The number of officers shall
be limited to the lesser of (i) 50 employees; or (ii) the greater
of 3 employees or 10 percent of all employees. For the purpose of
determining the number of officers, Employees described in Section
1.55(a), (b), (c) and (d) shall be excluded, but such Employees
shall still be considered for the purpose of identifying the
particular Employees who are officers. If the Employer does not
have at least one officer whose annual "415 Compensation" is in
excess of 50 percent of the Code Section 415(b)(1)(A) limit, then
the highest paid officer of the Employer will be treated as a
Highly Compensated Employee.
(e) Employees who are in the group consisting of the 100
Employees paid the greatest "415 Compensation" during the
"determination year" and are also described in (b), (c) or (d)
above when these paragraphs are modified to substitute
"determination year" for "look-back year."
The "look-back year" shall be the calendar year ending with or
within the Plan Year for which testing is being performed, and the
"determination year" (if applicable) shall be the period of time, if any, which
extends beyond the "look-back year" and ends on the last day of the Plan Year
for which testing is being performed (the "lag period"). If the "lag period" is
less than twelve months long, the dollar threshold amounts specified in (b), (c)
and (d) above shall be prorated based upon the number of months in the "lag
period. "
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457, and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions. Additionally, the
dollar threshold amounts specified in (b) and (c) above shall be adjusted at
such time and in such manner as is provided in Regulations. In the case of such
an adjustment, the dollar limits which shall be applied are those for the
calendar year in which the "determination year" or "look-back year" begins.
In determining who is a Highly Compensated Employee, Employees who
are non-resident aliens and who received no earned income (within the meaning of
Code Section 911(d)(2)) from the Employer constituting United States source
income within the meaning of Code Section 861(a)(3) shall not be treated as
Employees. Additionally, all Affiliated Employers shall be taken into account as
a single employer and Leased Employees within the meaning of Code Sections
414(n)(2) and 414(o)(2) shall be considered Employees unless such Leased
Employees are covered by a plan described in Code Section 414(n)(5) and are not
8
covered in any qualified plan maintained by the Employer. The exclusion of
Leased Employees for this purpose shall be applied on a uniform and consistent
basis for all of the Employer's retirement plans. Highly Compensated Former
Employees shall be treated as Highly Compensated Employees without regard to
whether they performed services during the "determination year."
1.27 "Highly Compensated Former Employee" means a former Employee who
had a separation year prior to the "determination year" and was a Highly
Compensated Employee in the year of separation from service or in any
"determination year" after attaining age 55. Notwithstanding the foregoing, an
Employee who separated from service prior to 1987 will be treated as a Highly
Compensated Former Employee only if during the separation year (or year
preceding the separation year) or any year after the Employee attains age 55 (or
the last year ending before the Employee's 55th birthday), the Employee either
received "415 Compensation" in excess of $50,000 or was a "five percent owner."
For purposes of this Section, "determination year," "415 Compensation" and "five
percent owner" shall be determined in accordance with Section 1.26. Highly
Compensated Former Employees shall be treated as Highly Compensated Employees.
The method set forth in this Section for determining who is a "Highly
Compensated Former Employee" shall be applied on a uniform and consistent basis
for all purposes for which the Code Section 414(q) definition is applicable.
1.28 "Highly Compensated Participant" means any Highly Compensated
Employee who is eligible to participate in the Plan.
1.29 "Hour of Service" means (1) each hour for which an Employee is
directly or indirectly compensated or entitled to compensation by the Employer
for the performance of duties during the applicable computation period; (2) each
hour for which an Employee is directly or indirectly compensated or entitled to
compensation by the Employer (irrespective of whether the employment
relationship has terminated) for reasons other than performance of duties (such
as vacation, holidays, sickness, jury duty, disability, lay-off, military duty
or leave of absence) during the applicable computation period; (3) each hour for
which back pay is awarded or agreed to by the Employer without regard to
mitigation of damages. These hours will be credited to the Employee for the
computation period or periods to which the award or agreement pertains rather
than the computation period in which the award, agreement or payment is made.
The same Hours of Service shall not be credited both under (1) or (2), as the
case may be, and under (3).
Notwithstanding the above, (i) no more than 501 Hours of Service
are required to be credited to an Employee on account of any single continuous
period during which the Employee performs no duties (whether or not such period
occurs in a single computation period); (ii) an hour for which an Employee is
directly or indirectly paid, or entitled to payment, on account of a period
during which no duties are performed is not required to be credited to the
Employee if such payment is made or due under a plan maintained solely for the
purpose of complying with applicable worker's compensation, or unemployment
compensation or disability insurance laws; and (iii) Hours of Service are not
required to be credited for a payment which solely reimburses an Employee for
medical or medically related expenses incurred by the Employee.
9
For purposes of this Section, a payment shall be deemed to be made
by or due from the Employer regardless of whether such payment is made by or due
from the Employer directly, or indirectly through, among others, a trust fund,
or insurer, to which the Employer contributes or pays premiums and regardless of
whether contributions made or due to the trust fund, insurer, or other entity
are for the benefit of particular Employees or are on behalf of a group of
Employees in the aggregate.
An Hour of Service must be counted for the purpose of determining
a Year of Service, a year of participation for purposes of accrued benefits, a
1-Year Break in Service, and employment commencement date (or reemployment
commencement date). In addition, Hours of Service will be credited for
employment with other Affiliated Employers. The provisions of Department of
Labor regulations 2530.200b-2(b) and (c) are incorporated herein by reference.
1.30 "Income" means the income or losses allocable to "excess amounts"
which shall equal the allocable gain or loss for the "applicable computation
period". The income allocable to "excess amounts" for the "applicable
computation period" is determined by multiplying the income for the "applicable
computation period" by a fraction. The numerator of the fraction is the "excess
amount" for the "applicable computation period." The denominator of the fraction
is the total "account balance" attributable to "Employer contributions" as of
the end of the "applicable computation period", reduced by the gain allocable to
such total amount for the "applicable computation period" and increased by the
loss allocable to such total amount for the "applicable computation period". The
provisions of this Section shall be applied:
(a) For purposes of Section 4.2(f), by substituting:
(1) "Excess Deferred Compensation" for "excess amounts";
(2) "taxable year of the Participant" for "applicable
computation period";
(3) "Deferred Compensation" for "Employer
contributions"; and
(4) "Participant's Elective Account" for "account
balance."
(b) For purposes of Section 4.6(a), by substituting:
(1) "Excess Contributions" for "excess amounts";
(2) "Plan Year" for "applicable computation period";
(3) "Elective Contributions" for "Employer
contributions"; and
(4) "Participant's Elective Account" for "account
balance."
(c) For purposes of Section 4.8(a), by substituting:
(1) "Excess Aggregate Contributions" for "excess
amounts;"
10
(2) "Plan Year" for "applicable computation period;"
(3) "Employer matching contributions made pursuant to
Section 4.1 (b) and any qualified non-elective contributions
or elective deferrals taken into account pursuant to Section
4.7(c)" for "Employer contributions;" and
(4) "Participant's Account" for "account balance."
Income allocable to any distribution of Excess Deferred
Compensation on or before the last day of the taxable year of the Participant
shall be calculated from the first day of the taxable year of the Participant to
the date on which the distribution is made pursuant to either the "fractional
method" or the "safe harbor method." Under such "safe harbor method," allocable
Income for such period shall be deemed to equal ten percent (10%) of the Income
allocable to such Excess Deferred Compensation multiplied by the number of
calendar months in such period. For purposes of determining the number of
calendar months in such period, a distribution occurring on or before the
fifteenth day of the month shall be treated as having been made on the last day
of the preceding month and a distribution occurring after such fifteenth day
shall be treated as having been made on the first day of the next subsequent
month.
Notwithstanding the above, for "applicable computation periods"
which began in 1987, Income during the "gap period" shall not be taken into
account.
1.31 "Investment Manager" means an entity that (a) has the power to
manage, acquire, or dispose of Plan assets and (b) acknowledges fiduciary
responsibility to the Plan in writing. Such entity must be a person, firm, or
corporation registered as an investment adviser under the Investment Advisers
Act of 1940, a bank, or an insurance company.
1.32 "Key Employee" means an Employee as defined in Code Section 416(i)
and the Regulations thereunder. Generally, any Employee or former Employee (as
well as each of his Beneficiaries) is considered a Key Employee if he, at any
time during the Plan Year that contains the "Determination Date" or any of the
preceding four (4) Plan Years, has been included in one of the following
categories:
(a) an officer of the Employer (as that term is defined
within the meaning of the Regulations under Code Section 416)
having annual "415 Compensation" greater than 50 percent of the
amount in effect under Code Section 415(b)(1)(A) for any such Plan
Year.
(b) one of the ten employees having annual "415 Compensation"
from the Employer for a Plan Year greater than the dollar
limitation in effect under Code Section 415(c)(1)(A) for the
calendar year in which such Plan Year ends and owning (or
considered as owning within the meaning of Code Section 318) both
more than one-half percent interest and the largest interests in
the Employer.
(c) a "five percent owner" of the Employer. "Five percent
owner" means any person who owns (or is considered as owning
within the meaning of Code Section 318) more than five percent
(5%) of the outstanding stock of the
11
Employer or stock possessing more than five percent (5%) of the
total combined voting power of all stock of the Employer or, in
the case of an unincorporated business, any person who owns more
than five percent (5%) of the capital or profits interest in the
Employer. In determining percentage ownership hereunder, employers
that would otherwise be aggregated under Code Sections 414(b),
(c), (m) and (o) shall be treated as separate employers.
(d) a "one percent owner" of the Employer having an annual
"415 Compensation" from the Employer of more than $150,000." One
percent owner" means any person who owns (or is considered as
owning within the meaning of Code Section 318) more than one
percent (1%) of the outstanding stock of the Employer or stock
possessing more than one percent (1%) of the total combined voting
power of all stock of the Employer or, in the case of an
unincorporated business, any person who owns more than one percent
(1%) of the capital or profits interest in the Employer. In
determining percentage ownership hereunder, employers that would
otherwise be aggregated under Code Sections 414(b), (c), (m) and
(o) shall be treated as separate employers. However, in
determining whether an individual has "415 Compensation" of more
than $150,000, "415 Compensation" from each employer required to
be aggregated under Code Sections 414(b), (c), (m) and (o) shall
be taken into account.
For purposes of this Section, the determination of "415
Compensation" shall be made by including amounts which are contributed by the
Employer pursuant to a salary reduction agreement and which are not includible
in the gross income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457, and Employee contributions described in Code
Section 414(h)(2) that are treated as Employer contributions.
1.33 "Late Retirement Date" means the first day of the month coinciding
with or next following a Participant's actual Retirement Date after having
reached his Normal Retirement Date.
1.34 "Leased Employee" means any person (other than an Employee of the
recipient) who pursuant to an agreement between the recipient and any other
person ("leasing organization") has performed services for the recipient (or for
the recipient and related persons determined in accordance with Code Section
414(n)(6)) on a substantially full time basis for a period of at least one year,
and such services are of a type historically performed by employees in the
business field of the recipient employer. Contributions or benefits provided a
Leased Employee by the leasing organization which are attributable to services
performed for the recipient employer shall be treated as provided by the
recipient employer. A Leased Employee shall not be considered an Employee of the
recipient:
(a) if such employee is covered by a money purchase pension
plan providing:
(1) a non-integrated employer contribution rate of at
least 10% of compensation, as defined in Code Section
415(c)(3), but including amounts which are contributed by the
Employer pursuant to a salary
12
reduction agreement and which are not includible in the gross
income of the Participant under Code Sections 125, 402(e)(3),
402(h)(1)(B), 403(b) or 457, and Employee contributions
described in Code Section 414(h)(2) that are treated as
Employer contributions.
(2) immediate participation; and
(3) full and immediate vesting; and
(b) if Leased Employees do not constitute more than 20% of
the recipient's non-highly compensated work force.
1.35 "Non-Elective Contribution" means the Employer's contributions to
the Plan excluding, however, contributions made pursuant to the Participant's
deferral election provided for in Section 4.2 and any Qualified Non-Elective
Contribution.
1.36 "Non-Highly Compensated Participant" means any Participant who is
neither a Highly Compensated Employee nor a Family Member.
1.37 "Non-Key Employee" means any Employee or former Employee (and his
Beneficiaries) who is not a Key Employee.
1.38 "Normal Retirement Age" means the Participant's 65th birthday. A
Participant shall become fully Vested in his Participant's Account upon
attaining his Normal Retirement Age.
Notwithstanding the foregoing, with respect to Participants who
first commenced participation prior to the first day of the Plan Year beginning
after December 31, 1987, Normal Retirement Age shall not be earlier than the
earlier of (a) the 10th anniversary of joining the Plan, or (b) the 5th
anniversary of the first day of the Plan Year beginning after December 31, 1987.
1.39 "Normal Retirement Date" means the first day of the month
coinciding with or next following the Participant's Normal Retirement Age.
1.40 "1-Year Break in Service" means the applicable computation period
during which an Employee has not completed more than 500 Hours of Service with
the Employer. Further, solely for the purpose of determining whether a
Participant has incurred a 1-Year Break in Service, Hours of Service shall be
recognized for "authorized leaves of absence" and "maternity and paternity
leaves of absence." Years of Service and 1-Year Breaks in Service shall be
measured on the same computation period.
"Authorized leave of absence" means an unpaid, temporary cessation
from active employment with the Employer pursuant to an established
nondiscriminatory policy, whether occasioned by illness, military service, or
any other reason.
A "maternity or paternity leave of absence" means, for Plan Years
beginning after December 31, 1984, an absence from work for any period by reason
of the Employee's
13
pregnancy, birth of the Employee's child, placement of a child with the Employee
in connection with the adoption of such child, or any absence for the purpose of
caring for such child for a period immediately following such birth or
placement. For this purpose, Hours of Service shall be credited for the
computation period in which the absence from work begins, only if credit
therefore is necessary to prevent the Employee from incurring a 1-Year Break in
Service, or, in any other case, in the immediately following computation period.
The Hours of Service credited for a "maternity or paternity leave of absence"
shall be those which would normally have been credited but for such absence, or,
in any case in which the Administrator is unable to determine such hours
normally credited, eight (8) Hours of Service per day. The total Hours of
Service required to be credited for a "maternity or paternity leave of absence"
shall not exceed 501.
1.41 "Participant" means any Eligible Employee who participates in the
Plan as provided in Sections 3.2 and 3.3, and has not for any reason become
ineligible to participate further in the Plan.
1.42 "Participant's Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer's Non-Elective
Contributions.
A separate accounting shall be maintained with respect to that
portion of the Participant's Account attributable to Employer matching
contributions made pursuant to Section 4.1(b) and Employer discretionary
contributions made pursuant to Section 4.1(d).
1.43 "Participant's Combined Account" means the total aggregate amount
of each Participant's Elective Account and Participant's Account.
1.44 "Participant's Elective Account" means the account established and
maintained by the Administrator for each Participant with respect to his total
interest in the Plan and Trust resulting from the Employer's Elective
Contributions. A separate accounting shall be maintained with respect to that
portion of the Participant's Elective Account attributable to Elective
Contributions pursuant to Section 4.2 and any Employer Qualified Non-Elective
Contributions.
1.45 "Plan" means this instrument, including all amendments thereto.
1.46 "Plan Year" means the Plan's accounting year of twelve (12) months
commencing on January 1st of each year and ending the following December 31st.
1.47 "Qualified Non-Elective Contribution" means the Employer's
contributions to the Plan that are made pursuant to Section 4.1(c) and Section
4.6. Such contributions shall be considered an Elective Contribution for the
purposes of the Plan and used to satisfy the "Actual Deferral Percentage" tests.
In addition, the Employer's contributions to the Plan that are
made pursuant to Section 4.8(h) which are used to satisfy the "Actual
Contribution Percentage" tests shall be considered Qualified Non-Elective
Contributions and be subject to the provisions of Sections 4.2(b) and 4.2(c).
14
1.48 "Regulation" means the Income Tax Regulations as promulgated by
the Secretary of the Treasury or his delegate, and as amended from time to time.
1.49 "Retired Participant" means a person who has been a Participant,
but who has become entitled to retirement benefits under the Plan.
1.50 "Retirement Date" means the date as of which a Participant retires
for reasons other than Total and Permanent Disability, whether such retirement
occurs on a Participant's Normal Retirement Date or Late Retirement Date (see
Section 6.1).
1.51 "Super Top Heavy Plan" means a plan described in Section 2.2(b).
1.52 "Terminated Participant" means a person who has been a
Participant, but whose employment has been terminated other than by death, Total
and Permanent Disability or retirement.
1.53 "Top Heavy Plan" means a plan described in Section 2.2(a).
1.54 "Top Heavy Plan Year" means a Plan Year during which the Plan is a
Top Heavy Plan.
1.55 "Top Paid Group" means the top 20 percent of Employees who
performed services for the Employer during the applicable year, ranked according
to the amount of "415 Compensation" (determined for this purpose in accordance
with Section 1.26) received from the Employer during such year. All Affiliated
Employers shall be taken into account as a single employer, and leased Employees
within the meaning of Code Sections 414(n)(2) and 414(o)(2) shall be considered
Employees unless such Leased Employees are covered by a plan described in Code
Section 414(n)(5) and are not covered in any qualified plan maintained by the
Employer. Employees who are non-resident aliens and who received no earned
income (within the meaning of Code Section 911(d)(2)) from the Employer
constituting United States source income within the meaning of Code Section
861(a)(3) shall not be treated as Employees. Additionally, for the purpose of
determining the number of active Employees in any year, the following additional
Employees shall also be excluded; however, such Employees shall still be
considered for the purpose of identifying the particular Employees in the Top
Paid Group:
(a) Employees with less than six (6) months of service;
(b) Employees who normally work less than 17 1/2 hours per
week;
(c) Employees who normally work less than six (6) months
during a year; and
(d) Employees who have not yet attained age 21.
In addition, if 90 percent or more of the Employees of the
Employer are covered under agreements the Secretary of Labor finds to be
collective bargaining agreements between Employee representatives and the
Employer, and the Plan covers only Employees who are not covered under such
agreements, then Employees covered by such agreements shall be excluded
15
from both the total number of active Employees as well as from the
identification of particular Employees in the Top Paid Group.
The foregoing exclusions set forth in this Section shall be
applied on a uniform and consistent basis for all purposes for which the Code
Section 414(q) definition is applicable.
1.56 "Total and Permanent Disability" means a physical or mental
condition of a Participant resulting from bodily injury, disease, or mental
disorder which renders him incapable of continuing his usual and customary
employment with the Employer. The disability of a Participant shall be
determined by a licensed physician chosen by the Administrator. The
determination shall be applied uniformly to all Participants.
1.57 "Trustee" means the person or entity named as trustee herein or in
any separate trust forming a part of this Plan, and any successors.
1.58 "Trust Fund" means the assets of the Plan and Trust as the same
shall exist from time to time.
1.59 "Vested" means the nonforfeitable portion of any account
maintained on behalf of a Participant.
1.60 "Year of Service" means the computation period of twelve (12)
consecutive months, herein set forth, during which an Employee has at least 1000
Hours of Service.
For purposes of eligibility for participation, the initial
computation period shall begin with the date on which the Employee first
performs an Hour of Service. The participation computation period beginning
after a 1-Year Break in Service shall be measured from the date on which an
Employee again performs an Hour of Service. The participation computation period
shall shift to the Plan Year which includes the anniversary of the date on which
the Employee first performed an Hour of Service. An Employee who is credited
with the required Hours of Service in both the initial computation period (or
the computation period beginning after a 1-Year Break in Service) and the Plan
Year which includes the anniversary of the date on which the Employee first
performed an Hour of Service, shall be credited with two (2) Years of Service
for purposes of eligibility to participate.
For vesting purposes, the computation period shall be the Plan
Year, including periods prior to the Effective Date of the Plan.
For all other purposes, the computation period shall be the Plan
Year.
Notwithstanding the foregoing, for any short Plan Year, the
determination of whether an Employee has completed a Year of Service shall be
made in accordance with Department of Labor regulation 2530.203-2(c). However,
in determining whether an Employee has completed a Year of Service for benefit
accrual purposes in the short Plan Year, the number of the Hours of Service
required shall be proportionately reduced based on the number of full months in
the short Plan Year.
16
Years of Service with Naegle Outdoor Advertising, Outdoor Today,
Inc. and Gannett Outdoor, Inc. of Phoenix shall be recognized.
Years of Service with any Affiliated Employer shall be recognized.
Article II
TOP HEAVY AND ADMINISTRATION
2.1 TOP HEAVY PLAN REQUIREMENTS
For any Top Heavy Plan Year, the Plan shall provide the special
vesting requirements of Code Section 416(b) pursuant to Section 6.4 of the Plan
and the special minimum allocation requirements of Code Section 416(c) pursuant
to Section 4,4 of the Plan.
2.2 DETERMINATION OF TOP HEAVY STATUS
(a) This Plan shall be a Top Heavy Plan for any Plan Year in
which, as of the Determination Date, (1) the Present Value of
Accrued Benefits of Key Employees and (2) the sum of the Aggregate
Accounts of Key Employees under this Plan and all plans of an
Aggregation Group, exceeds sixty percent (60%) of the Present
Value of Accrued Benefits and the Aggregate Accounts of all Key
and Non-Key Employees under this Plan and all plans of an
Aggregation Group.
If any Participant is a Non-Key Employee for any Plan
Year, but such Participant was a Key Employee for any prior Plan
Year, such Participant's Present Value of Accrued Benefit and/or
Aggregate Account balance shall not be taken into account for
purposes of determining whether this Plan is a Top Heavy or Super
Top Heavy Plan (or whether any Aggregation Group which includes
this Plan is a Top Heavy Group). In addition, if a Participant or
Former Participant has not performed any services for any Employer
maintaining the Plan at any time during the five year period
ending on the Determination Date, any accrued benefit for such
Participant or Former Participant shall not be taken into account
for the purposes of determining whether this Plan is a Top Heavy
or Super Top Heavy Plan.
(b) This Plan shall be a Super Top Heavy Plan for any Plan
Year in which, as of the Determination Date, (1) the Present Value
of Accrued Benefits of Key Employees and (2) the sum of the
Aggregate Accounts of Key Employees under this Plan and all plans
of an Aggregation Group, exceeds ninety percent (90%) of the
Present Value of Accrued Benefits and the Aggregate Accounts of
all Key and Non-Key Employees under this Plan and all plans of an
Aggregation Group.
(c) Aggregate Account: A Participant's Aggregate Account as
of the Determination Date is the sum of:
(1) his Participant's Combined Account balance as of the
most recent valuation occurring within a twelve (12) month
period ending on the Determination Date;
17
(2) an adjustment for any contributions due as of the
Determination Date. Such adjustment shall be the amount of
any contributions actually made after the valuation date but
due on or before the Determination Date, except for the first
Plan Year when such adjustment shall also reflect the amount
of any contributions made after the Determination Date that
are allocated as of a date in that first Plan Year.
(3) any Plan distributions made within the Plan Year that
includes the Determination Date or within the four (4)
preceding Plan Years. However, in the case of distributions
made after the valuation date and prior to the Determination
Date, such distributions are not included as distributions
for top heavy purposes to the extent that such distributions
are already included in the Participant's Aggregate Account
balance as of the valuation date. Notwithstanding anything
herein to the contrary, all distributions, including
distributions made prior to January 1, 1984, and
distributions under a terminated plan which if it had not
been terminated would have been required to be included in an
Aggregation Group, will be counted. Further, distributions
from the Plan (including the cash value of life insurance
policies) of a Participant's account balance because of death
shall be treated as a distribution for the purposes of this
paragraph.
(4) any Employee contributions, whether voluntary or
mandatory. However, amounts attributable to tax deductible
qualified voluntary employee contributions shall not be
considered to be a part of the Participant's Aggregate
Account balance.
(5) with respect to unrelated rollovers and plan-to-plan
transfers (ones which are both initiated by the Employee and
made from a plan maintained by one employer to a plan
maintained by another employer), if this Plan provides the
rollovers or plan-to-plan transfers, it shall always consider
such rollovers or plan-to-plan transfers as a distribution
for the purposes of this Section. If this Plan is the plan
accepting such rollovers or plan-to-plan transfers, it shall
not consider such rollovers or plan-to-plan transfers as part
of the Participant's Aggregate Account balance.
(6) with respect to related rollovers and plan-to-plan
transfers (ones either not initiated by the Employee or made
to a plan maintained by the same employer), if this, Plan
provides the rollover or plan-to-plan transfer, it shall not
be counted as a distribution for purposes of this Section. If
this Plan is the plan accepting such rollover or plan-to-plan
transfer, it shall consider such rollover or plan-to-plan
transfer as part of the Participant's Aggregate Account
balance, irrespective of the date on which such rollover or
plan-to-plan transfer is accepted.
18
(7) For the purposes of determining whether two employers
are to be treated as the same employer in (5) and (6) above,
all employers aggregated under Code Section 414(b), (c), (m)
and (o) are treated as the same employer.
(d) "Aggregation Group" means either a Required Aggregation
Group or a Permissive Aggregation Group as hereinafter determined.
(1) Required Aggregation Group: In determining a Required
Aggregation Group hereunder, each plan of the Employer in
which a Key Employee is a participant in the Plan Year
containing the Determination Date or any of the four
preceding Plan Years, and each other plan of the Employer
which enables any plan in which a Key Employee participates
to meet the requirements of Code Sections 401(a)(4) or 410,
will be required to be aggregated. Such group shall be known
as a Required Aggregation Group.
In the case of a Required Aggregation Group, each plan in the
group will be considered a Top Heavy Plan if the Required
Aggregation Group is a Top Heavy Group. No plan in the
Required Aggregation Group will be considered a Top Heavy
Plan if the Required Aggregation Group is not a Top Heavy
Group.
(2) Permissive Aggregation Group: The Employer may also
include any other plan not required to be included in the
Required Aggregation Group, provided the resulting group,
taken as a whole, would continue to satisfy the provisions of
Code Sections 401(a)(4) and 410. Such group shall be known as
a Permissive Aggregation Group.
In the case of a Permissive Aggregation Group, only a plan
that is part of the Required Aggregation Group will be
considered a Top Heavy Plan if the Permissive Aggregation
Group is a Top Heavy Group. No plan in the Permissive
Aggregation Group will be considered a Top Heavy Plan if the
Permissive Aggregation Group is not a Top Heavy Group.
(3) Only those plans of the Employer in which the
Determination Dates fall within the same calendar year shall
be aggregated in order to determine whether such plans are
Top Heavy Plans.
(4) An Aggregation Group shall include any terminated
plan of the Employer if it was maintained within the last
five (5) years ending on the Determination Date.
(e) "Determination Date" means (a) the last day of the
preceding Plan Year, or (b) in the case of the first Plan Year,
the last day of such Plan Year.
(f) Present Value of Accrued Benefit: In the case of a
defined benefit plan, the Present Value of Accrued Benefit for a
Participant other than a Key
19
Employee, shall be as determined using the single accrual method
used for all plans of the Employer and Affiliated Employers, or if
no such single method exists, using a method which results in
benefits accruing not more rapidly than the slowest accrual rate
permitted under Code Section 411(b)(1)(C). The determination of
the Present Value of Accrued Benefit shall be determined as of the
most recent valuation date that falls within or ends with the
12-month period ending on the Determination Date except as
provided in Code Section 416 and the Regulations thereunder for
the first and second plan years of a defined benefit plan.
(g) "Top Heavy Group" means an Aggregation Group in which, as
of the Determination Date, the sum of:
(1) the Present Value of Accrued Benefits of Key
Employees under all defined benefit plans included in the
group, and
(2) the Aggregate Accounts of Key Employees under all
defined contribution plans included in the group,
exceeds sixty percent (60%) of a similar sum determined
for all Participants.
2.3 POWERS AND RESPONSIBILITIES OF THE EMPLOYER
(a) The Employer shall be empowered to appoint and remove the
Trustee and the Administrator from time to time as it deems
necessary for the proper administration of the Plan to assure that
the Plan is being operated for the exclusive benefit of the
Participants and their Beneficiaries in accordance with the terms
of the Plan, the Code, and the Act.
(b) The Employer shall establish a "funding policy and
method," i.e., it shall determine whether the Plan has a short run
need for liquidity (e.g., to pay benefits) or whether liquidity is
a long run goal and investment growth (and stability of same) is a
more current need, or shall appoint a qualified person to do so.
The Employer or its delegate shall communicate such needs and
goals to the Trustee, who shall coordinate such Plan needs with
its investment policy. The communication of such a "funding policy
and method" shall not, however, constitute a directive to the
Trustee as to investment of the Trust Funds. Such "funding policy
and method" shall be consistent with the objectives of this Plan
and with the requirements of Title I of the Act.
(c) The Employer shall periodically review the performance of
any Fiduciary or other person to whom duties have been delegated
or allocated by it under the provisions of this Plan or pursuant
to procedures established hereunder. This requirement may be
satisfied by formal periodic review by the Employer or by a
qualified person specifically designated by the Employer, through
day-to-day conduct and evaluation, or through other appropriate
ways.
20
2.4 DESIGNATION OF ADMINISTRATIVE AUTHORITY
The Employer shall appoint one or more Administrators. Any person,
including, but not limited to, the Employees of the Employer, shall be eligible
to serve as an Administrator. Any person so appointed shall signify his
acceptance by filing written acceptance with the Employer. An Administrator may
resign by delivering his written resignation to the Employer or be removed by
the Employer by delivery of written notice of removal, to take effect at a date
specified therein, or upon delivery to the Administrator if no date is
specified.
The Employer, upon the resignation or removal of an Administrator,
shall promptly designate in writing a successor to this position. If the
Employer does not appoint an Administrator, the Employer will function as the
Administrator.
2.5 ALLOCATION AND DELEGATION OF RESPONSIBILITIES
If more than one person is appointed as Administrator, the
responsibilities of each Administrator may be specified by the Employer and
accepted in writing by each Administrator. In the event that no such delegation
is made by the Employer, the Administrators may allocate the responsibilities
among themselves, in which event the Administrators shall notify the Employer
and the Trustee in writing of such action and specify the responsibilities of
each Administrator. The Trustee thereafter shall accept and rely upon any
documents executed by the appropriate Administrator until such time as the
Employer or the Administrators file with the Trustee a written revocation of
such designation.
2.6 POWERS AND DUTIES OF THE ADMINISTRATOR
The primary responsibility of the Administrator is to administer
the Plan for the exclusive benefit of the Participants and their Beneficiaries,
subject to the specific terms of the Plan. The Administrator shall administer
the Plan in accordance with its terms and shall have the power and discretion to
construe the terms of the Plan and to determine all questions arising in
connection with the administration, interpretation, and application of the Plan.
Any such determination by the Administrator shall be conclusive and binding upon
all persons. The Administrator may establish procedures, correct any defect,
supply any information, or reconcile any inconsistency in such manner and to
such extent as shall be deemed necessary or advisable to carry out the purpose
of the Plan; provided, however, that any procedure, discretionary act,
interpretation or construction shall be done in a nondiscriminatory manner based
upon uniform principles consistently applied and shall be consistent with the
intent that the Plan shall continue to be deemed a qualified plan under the
terms of Code Section 401(a), and shall comply with the terms of the Act and all
regulations issued pursuant thereto. The Administrator shall have all powers
necessary or appropriate to accomplish his duties under this Plan.
The Administrator shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) the discretion to determine all questions relating to the
eligibility of Employees to participate or remain a Participant
hereunder and to receive benefits under the Plan;
21
(b) to compute, certify, and direct the Trustee with respect
to the amount and the kind of benefits to which any Participant
shall be entitled hereunder;
(c) to authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from the
Trust;
(d) to maintain all necessary records for the administration
of the Plan;
(e) to interpret the provisions of the Plan and to make and
publish such rules for regulation of the Plan as are consistent
with the terms hereof;
(f) to determine the size and type of any Contract to be
purchased from any insurer, and to designate the insurer from
which such Contract shall be purchased;
(g) to compute and certify to the Employer and to the Trustee
from time to time the sums of money necessary or desirable to be
contributed to the Plan;
(h) to consult with the Employer and the Trustee regarding
the short and long-term liquidity needs of the Plan in order that
the Trustee can exercise any investment discretion in a manner
designed to accomplish specific objectives;
(i) to prepare and implement a procedure to notify Eligible
Employees that they may elect to have a portion of their
Compensation deferred or paid to them in cash;
(j) to assist any Participant regarding his rights, benefits,
or elections available under the Plan.
2.7 RECORDS AND REPORTS
The Administrator shall keep a record of all actions taken and
shall keep all other books of account, records, and other data that may be
necessary for proper administration of the Plan and shall be responsible for
supplying all information and reports to the Internal Revenue Service,
Department of Labor, Participants, Beneficiaries and others as required by law.
2.8 APPOINTMENT OF ADVISERS
The Administrator, or the Trustee with the consent of the
Administrator, may appoint counsel, specialists, advisers, and other persons as
the Administrator or the Trustee deems necessary or desirable in connection with
the administration of this Plan.
2.9 INFORMATION FROM EMPLOYER
To enable the Administrator to perform his functions, the Employer
shall supply full and timely information to the Administrator on all matters
relating to the Compensation of
22
all Participants, their Hours of Service, their Years of Service, their
retirement, death, disability, or termination of employment, and such other
pertinent facts as the Administrator may require; and the Administrator shall
advise the Trustee of such of the foregoing facts as may be pertinent to the
Trustee's duties under the Plan. The Administrator may rely upon such
information as is supplied by the Employer and shall have no duty or
responsibility to verify such information.
2.10 PAYMENT OF EXPENSES
All expenses of administration may be paid out of the Trust Fund
unless paid by the Employer. Such expenses shall include any expenses incident
to the functioning of the Administrator, including, but not limited to, fees of
accountants, counsel, and other specialists and their agents, and other costs of
administering the Plan. Until paid, the expenses shall constitute a liability of
the Trust Fund. However, the Employer may reimburse the Trust Fund for any
administration expense incurred.
2.11 MAJORITY ACTIONS
Except where there has been an allocation and delegation of
administrative authority pursuant to Section 2.5, if there shall be more than
one Administrator, they shall act by a majority of their number, but may
authorize one or more of them to sign all papers on their behalf.
2.12 CLAIMS PROCEDURE
Claims for benefits under the Plan may be filed in writing with
the Administrator. Written notice of the disposition of a claim shall be
furnished to the claimant within 90 days after the application is filed. In the
event the claim is denied, the reasons for the denial shall be specifically set
forth in the notice in language calculated to be understood by the claimant,
pertinent provisions of the Plan shall be cited, and, where appropriate, an
explanation as to how the claimant can perfect the claim will be provided. In
addition, the claimant shall be furnished with an explanation of the Plan's
claims review procedure.
2.13 CLAIMS REVIEW PROCEDURE
Any Employee, former Employee, or Beneficiary of either, who has
been denied a benefit by a decision of the Administrator pursuant to Section
2.12 shall be entitled to request the Administrator to give further
consideration to his claim by filing with the Administrator (on a form which may
be obtained from the Administrator) a request for a hearing. Such request,
together with a written statement of the reasons why the claimant believes his
claim should be allowed, shall be filed with the Administrator no later than 60
days after receipt of the written notification provided for in Section 2.12. The
Administrator shall then conduct a hearing within the next 60 days, at which the
claimant may be represented by an attorney or any other representative of his
choosing and at which the claimant shall have an opportunity to submit written
and oral evidence and arguments in support of his claim. At the hearing (or
prior thereto upon 5 business days written notice to the Administrator) the
claimant or his representative shall have an opportunity to review all documents
in the possession of the Administrator which are pertinent to the claim at issue
and its disallowance. Either the claimant or the Administrator may cause a court
reporter to attend the hearing and record the proceedings. In such event, a
23
complete written transcript of the proceedings shall be furnished to both
parties by the court reporter. The full expense of any such court reporter and
such transcripts shall be borne by the party causing the court reporter to
attend the hearing. A final decision as to the allowance of the claim shall be
made by the Administrator within 60 days of receipt of the appeal (unless there
has been an extension of 60 days due to special circumstances, provided the
delay and the special circumstances occasioning it are communicated to the
claimant within the 60 day period). Such communication shall be written in a
manner calculated to be understood by the claimant and shall include specific
reasons for the decision and specific references to the pertinent Plan
provisions on which the decision is based.
Article III
ELIGIBILITY
3.1 CONDITIONS OF ELIGIBILITY
Any Eligible Employee who has completed one (1) Year of Service
and has attained age 21 shall be eligible to participate hereunder as of the
date he has satisfied such requirements. However, any Employee who was a
Participant in the Plan prior to the effective date of this amendment and
restatement shall continue to participate in the Plan. The Employer shall give
each prospective Eligible Employee written notice of his eligibility to
participate in the Plan prior to the close of the Plan Year in which he first
becomes an Eligible Employee.
3.2 APPLICATION FOR PARTICIPATION
In order to become a Participant hereunder, each Eligible Employee
shall make application to the Employer for participation in the Plan and agree
to the terms hereof. Upon the acceptance of any benefits under this Plan, such
Employee shall automatically be deemed to have made application and shall be
bound by the terms and conditions of the Plan and all amendments hereto.
3.3 EFFECTIVE DATE OF PARTICIPATION
For Plan Years prior to January 1, 1991, an Eligible Employee
shall become a Participant effective as of the earlier of the first day of the
Plan Year or the first day of the seventh month of such Plan Year coinciding
with or next following the date such Employee met the eligibility requirements
of Section 3.1, provided said Employee was still employed as of such date.
For Plan Years beginning subsequent to December 31, 1990, an
Eligible Employee shall become a Participant effective as of the first day of
the Plan Year quarter coinciding with or next following the date such Employee
met the eligibility requirements of Section 3.1, provided said Employee was
still employed as of such date.
In the event an Employee who is not a member of an eligible class
of Employees becomes a member of an eligible class, such Employee will
participate immediately if such Employee has satisfied the minimum age and
service requirements and would have otherwise previously become a Participant.
24
3.4 DETERMINATION OF ELIGIBILITY
The Administrator shall determine the eligibility of each Employee
for participation in the Plan based upon information furnished by the Employer.
Such determination shall be conclusive and binding upon all persons, as long as
the same is made pursuant to the Plan and the Act. Such determination shall be
subject to review per Section 2.13.
3.5 TERMINATION OF ELIGIBILITY
(a) In the event a Participant shall go from a classification
of an Eligible Employee to an ineligible Employee, such Former
Participant shall continue to vest in his interest in the Plan for
each Year of Service completed while a noneligible Employee, until
such time as his Participant's Account shall be forfeited or
distributed pursuant to the terms of the Plan. Additionally, his
interest in the Plan shall continue to share in the earnings of
the Trust Fund.
(b) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to participate
but has not incurred a 1-Year Break in Service, such Employee will
participate immediately upon returning to an eligible class of
Employees. If such Participant incurs a 1-Year Break in Service,
eligibility will be determined under the break in service rules of
the Plan.
3.6 OMISSION OF ELIGIBLE EMPLOYEE
If, in any Plan Year, any Employee who should be included as a
Participant in the Plan is erroneously omitted and discovery of such omission is
not made until after a contribution by his Employer for the year has been made,
the Employer shall make a subsequent contribution with respect to the omitted
Employee in the amount which the said Employer would have contributed with
respect to him had he not been omitted. Such contribution shall be made
regardless of whether or not it is deductible in whole or in part in any taxable
year under applicable provisions of the Code.
3.7 INCLUSION OF INELIGIBLE EMPLOYEE
If, in any Plan Year, any person who should not have been included
as a Participant in the Plan is erroneously included and discovery of such
incorrect inclusion is not made until after a contribution for the year has been
made, the Employer shall not be entitled to recover the contribution made with
respect to the ineligible person regardless of whether or not a deduction is
allowable with respect to such contribution. In such event, the amount
contributed with respect to the ineligible person shall constitute a Forfeiture
(except for Deferred Compensation which shall be distributed to the ineligible
person) for the Plan Year in which the discovery is made.
3.8 ELECTION NOT TO PARTICIPATE
An Employee may, subject to the approval of the Employer, elect
voluntarily not to participate in the Plan. The election not to participate must
be communicated to the Employer, in writing, at least thirty (30) days before
the beginning of a Plan Year.
25
Article IV
CONTRIBUTION AND ALLOCATION
4.1 FORMULA FOR DETERMINING EMPLOYER'S CONTRIBUTION
For each Plan Year, the Employer shall contribute to the Plan:
(a) The amount of the total salary reduction elections of all
Participants made pursuant to Section 4.2(a), which amount shall
be deemed an Employer's Elective Contribution.
(b) On behalf of each Participant who is eligible to share in
matching contributions for the Plan Year, a discretionary matching
contribution equal to a percentage of each such Participant's
Deferred Compensation, the exact percentage to be determined each
year by the Employer, which amount shall be deemed an Employer's
Non-Elective Contribution.
Except, however, in applying the matching percentage
specified above, only salary reductions up to a discretionary
amount shall be considered.
(c) On behalf of each Non-Highly Compensated Participant and
Non-Key Employee who is eligible to share in the Qualified
Non-Elective Contribution for the Plan Year, a discretionary
Qualified Non-Elective Contribution equal to a percentage of each
eligible individual's Compensation, the exact percentage to be
determined each year by the Employer. The Employer's Qualified
Non-Elective Contribution shall be deemed an Employer's Elective
Contribution.
(d) A discretionary amount, which amount shall be deemed an
Employer's Non-Elective Contribution.
(e) Notwithstanding the foregoing, however, the Employer's
contributions for any Plan Year shall not exceed the maximum
amount allowable as a deduction to the Employer under the
provisions of Code Section 404. All contributions by the Employer
shall be made in cash or in such property as is acceptable to the
Trustee.
(f) Except, however, to the extent necessary to provide the
top heavy minimum allocations, the Employer shall make a
contribution even if it exceeds the amount which is deductible
under Code Section 404.
4.2 PARTICIPANT'S SALARY REDUCTION ELECTION
(a) Each Participant may elect to defer a portion of his
Compensation which would have been received in the Plan Year
(except for the deferral election) by up to the maximum amount
which will not cause the Plan to violate the provisions of
Sections 4.5(a) and 4.9, or cause the Plan to exceed the maximum
amount allowable as a deduction to the Employer under Code Section
404. A deferral election (or modification of an earlier election)
may not be made
26
with respect to Compensation which is currently available on or
before the date the Participant executed such election.
The amount by which Compensation is reduced shall be that
Participant's Deferred Compensation and be treated as an Employer
Elective Contribution and allocated to that Participant's Elective
Account.
(b) The balance in each Participant's Elective Account shall
be fully Vested at all times and shall not be subject to
Forfeiture for any reason.
(c) Amounts held in the Participant's Elective Account may
not be distributable earlier than:
(1) a Participant's termination of employment, Total and
Permanent Disability, or death;
(2) a Participant's attainment of age 59 1/2;
(3) the termination of the Plan without the establishment
or existence of a "successor plan," as that term is described
in Regulation 1.401(k)-1(d)(3);
(4) the date of disposition by the Employer to an entity
that is not an Affiliated Employer of substantially all of
the assets (within the meaning of Code Section 409(d)(2))
used in a trade or business of such corporation if such
corporation continues to maintain this Plan after the
disposition with respect to a Participant who continues
employment with the corporation acquiring such assets;
(5) the date of disposition by the Employer or an
Affiliated Employer who maintains the Plan of its interest in
a subsidiary (within the meaning of Code Section 409(d)(3))
to an entity which is not an Affiliated Employer but only
with respect to a Participant who continues employment with
such subsidiary; or
(6) the proven financial hardship of a Participant,
subject to the limitations of Section 6.11.
(d) For each Plan Year beginning after December 31, 1987, a
Participant's Deferred Compensation made under this Plan and all
other plans, contracts or arrangements of the Employer maintaining
this Plan shall not exceed, during any taxable year of the
Participant, the limitation imposed by Code Section 402(g), as in
effect at the beginning of such taxable year. If such dollar
limitation is exceeded, a Participant will be deemed to have
notified the Administrator of such excess amount which shall be
distributed in a manner consistent with Section 4.2(f). The dollar
limitation shall be adjusted annually pursuant to the method
provided in Code Section 415(d) in accordance with Regulations.
27
(e) In the event a Participant has received a hardship
distribution from his Participant's Elective Account pursuant to
Section 6.11 or pursuant to Regulation 1.401(k)-1(d)(2)(iv)(B)
from any other plan maintained by the Employer, then such
Participant shall not be permitted to elect to have Deferred
Compensation contributed to the Plan on his behalf for a period of
twelve (12) months following the receipt of the distribution.
Furthermore, the dollar limitation under Code Section 402(g) shall
be reduced, with respect to the Participant's taxable year
following the taxable year in which the hardship distribution was
made, by the amount of such Participant's Deferred Compensation,
if any, pursuant to this Plan (and any other plan maintained by
the Employer) for the taxable year of the hardship distribution.
(f) If a Participant's Deferred Compensation under this Plan
together with any elective deferrals (as defined in Regulation
1.402(g)-1(b)) under another qualified cash or deferred
arrangement (as defined in Code Section 401(k)), a simplified
employee pension (as defined in Code Section 408(k)), a salary
reduction arrangement (within the meaning of Code Section
3121(a)(5)(D)), a deferred compensation plan under Code Section
457, or a trust described in Code Section 501(c)(18) cumulatively
exceed the limitation imposed by Code Section 402(g) (as adjusted
annually in accordance with the method provided in Code Section
415(d) pursuant to Regulations) for such Participant's taxable
year, the Participant may, not later than March 1 following the
close of the Participant's taxable year, notify the Administrator
in writing of such excess and request that his Deferred
Compensation under this Plan be reduced by an amount specified by
the Participant. In such event, the Administrator may direct the
Trustee to distribute such excess amount (and any Income allocable
to such excess amount) to the Participant not later than the first
April 15th following the close of the Participant's taxable year.
Distributions in accordance with this paragraph may be made for
any taxable year of the Participant which begins after December
31, 1986. Any distribution of less than the entire amount of
Excess Deferred Compensation and Income shall be treated as a pro
rata distribution of Excess Deferred Compensation and Income. The
amount distributed shall not exceed the Participant's Deferred
Compensation under the Plan for the taxable year. Any distribution
on or before the last day of the Participant's taxable year must
satisfy each of the following conditions:
(1) the distribution must be made after the date on which
the Plan received the Excess Deferred Compensation;
(2) the Participant shall designate the distribution as
Excess Deferred Compensation; and
(3) the Plan must designate the distribution as a
distribution of Excess Deferred Compensation.
Any distribution made pursuant to this Section 4.2(f)
shall be made first from unmatched Deferred Compensation and,
thereafter, from Deferred
28
Compensation which is matched. Matching contributions which relate
to such Deferred Compensation shall be forfeited.
(g) Notwithstanding Section 4.2(f) above, a Participant's
Excess Deferred Compensation shall be reduced, but not below zero,
by any distribution of Excess Contributions pursuant to Section
4.6(a) for the Plan Year beginning with or within the taxable year
of the Participant.
(h) At Normal Retirement Date, or such other date when the
Participant shall be entitled to receive benefits, the fair market
value of the Participant's Elective Account shall be used to
provide additional benefits to the Participant or his Beneficiary.
(i) All amounts allocated to a Participant's Elective Account
may be treated as a Directed Investment Account pursuant to
Section 4.12.
(j) Employer Elective Contributions made pursuant to this
Section may be segregated into a separate account for each
Participant in a federally insured savings account, certificate of
deposit in a bank or savings and loan association, money market
certificate, or other short-term debt security acceptable to the
Trustee until such time as the allocations pursuant to Section 4.4
have been made.
(k) The Employer and the Administrator shall implement the
salary reduction elections provided for herein in accordance with
the following:
(1) A Participant may commence making elective deferrals
to the Plan only after first satisfying the eligibility and
participation requirements specified in Article III. However,
the Participant must make his initial salary deferral
election within a reasonable time, not to exceed thirty (30)
days, after entering the Plan pursuant to Section 3.3. If the
Participant fails to make an initial salary deferral election
within such time, then such Participant may thereafter make
an election in accordance with the rules governing
modifications. The Participant shall make such an election by
entering into a written salary reduction agreement with the
Employer and filing such agreement with the Administrator.
Such election shall initially be effective beginning with the
pay period following the acceptance of the salary reduction
agreement by the Administrator, shall not have retroactive
effect and shall remain in force until revoked.
(2) A Participant may modify a prior election during the
Plan Year and concurrently make a new election by filing a
written notice with the Administrator within a reasonable
time before the pay period for which such modification is to
be effective. However, modifications to a salary deferral
election shall only be permitted quarterly, during election
periods established by the Administrator prior to the first
day of each Plan
29
Year quarter. Any modification shall not have retroactive
effect and shall remain in force until revoked.
Notwithstanding the above, a Participant may elect to
make an additional salary deferral election during November
or December of each Plan Year.
(3) A Participant may elect to prospectively revoke his
salary reduction agreement in its entirety at any time during
the Plan Year by providing the Administrator with thirty (30)
days written notice of such revocation (or upon such shorter
notice period as may be acceptable to the Administrator).
Such revocation shall become effective as of the beginning of
the first pay period coincident with or next following the
expiration of the notice period. Furthermore, the termination
of the Participant's employment, or the cessation of
participation for any reason, shall be deemed to revoke any
salary reduction agreement then in effect, effective
immediately following the close of the pay period within
which such termination or cessation occurs.
4.3 TIME OF PAYMENT OF EMPLOYER'S CONTRIBUTION
The Employer shall generally pay to the Trustee its contribution
to the Plan for each Plan Year within the time prescribed by law, including
extensions of time, for the filing of the Employer's federal income tax return
for the Fiscal Year.
However, Employer Elective Contributions accumulated through
payroll deductions shall be paid to the Trustee as of the earliest date on which
such contributions can reasonably be segregated from the Employer's general
assets, but in any event within ninety (90) days from the date on which such
amounts would otherwise have been payable to the Participant in cash. The
provisions of Department of Labor regulations 2510.3-102 are incorporated herein
by reference. Furthermore, any additional Employer contributions which are
allocable to the Participant's Elective Account for a Plan Year shall be paid to
the Plan no later than the twelve-month period immediately following the close
of such Plan Year.
4.4 ALLOCATION OF CONTRIBUTION, FORFEITURES AND EARNINGS
(a) The Administrator shall establish and maintain an account
in the name of each Participant to which the Administrator shall
credit as of each Anniversary Date all amounts allocated to each
such Participant as set forth herein.
(b) The Employer shall provide the Administrator with all
information required by the Administrator to make a proper
allocation of the Employer's contributions for each Plan Year.
Within a reasonable period of time after the date of receipt by
the Administrator of such information, the Administrator shall
allocate such contribution as follows:
30
(1) With respect to the Employer's Elective Contribution
made pursuant to Section 4.1(a), to each Participant's
Elective Account in an amount equal to each such
Participant's Deferred Compensation for the year.
(2) With respect to the Employer's Non-Elective
Contribution made pursuant to Section 4.1(b), to each
Participant's Account in accordance with Section 4.1(b).
Only Participants who have completed a Year of Service during
the Plan Year and are actively employed on the last day of
the Plan Year shall be eligible to share in the matching
contribution for the year.
(3) With respect to the Employer's Qualified Non-Elective
Contribution made pursuant to Section 4.1(c), to each
Participant's Elective Account in accordance with Section
4.1(c).
Only Non-Highly Compensated Participants and Non-Key
Employees who have completed a Year of Service during the
Plan Year and are actively employed on the last day of the
Plan Year shall be eligible to share in the Qualified
Non-Elective Contribution for the year.
(4) With respect to the Employer's Non-Elective
Contribution made pursuant to Section 4.1(d), to each
Participant's Account in the same proportion that each such
Participant's Compensation for the year bears to the total
Compensation of all Participants for such year.
Only Participants who have completed a Year of Service during
the Plan Year and are actively employed on the last day of
the Plan Year shall be eligible to share in the discretionary
contribution for the year.
(c) As of each Anniversary Date any amounts which became
Forfeitures since the last Anniversary Date shall first be made
available to reinstate previously forfeited account balances of
Former Participants, if any, in accordance with Section 6.4(f)(2).
The remaining Forfeitures, if any, shall be allocated to
Participants' Accounts and used to reduce the contribution of the
Employer hereunder for the Plan Year in which such Forfeitures
occur in the following manner:
(1) Forfeitures attributable to Employer matching
contributions made pursuant to Section 4.1(b) shall be used
to reduce the Employer's contribution for the Plan Year in
which such Forfeitures occur.
(2) Forfeitures attributable to Employer discretionary
contributions made pursuant to Section 4.1(d) shall be added
to the Employer's discretionary contribution for the Plan
Year in which such Forfeitures occur and allocated among the
Participants' Accounts in the same manner as the Employer's
discretionary contributions.
31
Provided, however, that in the event the allocation of
Forfeitures provided herein shall cause the "annual addition" (as
defined in Section 4.9) to any Participant's Account to exceed the
amount allowable by the Code, the excess shall be reallocated in
accordance with Section 4.10.
(d) For any Top Heavy Plan Year, Non-Key Employees not
otherwise eligible to share in the allocation of contributions and
Forfeitures as provided above, shall receive the minimum
allocation provided for in Section 4.4(h) if eligible pursuant to
the provisions of Section 4.4(j).
(e) Notwithstanding the foregoing, Participants who are not
actively employed on the last day of the Plan Year due to
Retirement (Normal or Late), Total and Permanent Disability or
death shall share in the allocation of contributions and
Forfeitures for that Plan Year.
(f) As of each Anniversary Date or other valuation date, any
earnings or losses (net appreciation or net depreciation) of the
Trust Fund shall be allocated in the same proportion that each
Participant's and Former Participant's nonsegregated accounts bear
to the total of all Participants' and Former Participants'
nonsegregated accounts as of such date. Such discretionary profit
sharing allocations shall occur before the current valuation
period allocation of Employer contributions and such 401(k)
allocations shall occur before the allocation of one-half of the
report period Employer contribution.
Participants' transfers from other qualified plans
deposited in the general Trust Fund shall share in any earnings
and losses (net appreciation or net depreciation) of the Trust
Fund in the same manner provided above. Each segregated account
maintained on behalf of a Participant shall be credited or charged
with its separate earnings and losses.
(g) Participants' accounts shall be debited for any insurance
or annuity premiums paid, if any, and credited with any dividends
received on insurance contracts.
(h) Minimum Allocations Required for Top Heavy Plan Years:
Notwithstanding the foregoing, for any Top Heavy Plan Year, the
sum of the Employer's contributions and Forfeitures allocated to
the Participant's Combined Account of each Non-Key Employee shall
be equal to at least three percent (3%) of such Non-Key Employee's
"415 Compensation" (reduced by contributions and forfeitures, if
any, allocated to each Non-Key Employee in any defined
contribution plan included with this plan in a Required
Aggregation Group). However, if (1) the sum of the Employer's
contributions and Forfeitures allocated to the Participant's
Combined Account of each Key Employee for such Top Heavy Plan Year
is less than three percent (3%) of each Key Employee's "415
Compensation" and (2) this Plan is not required to be included in
an Aggregation Group to enable a defined benefit plan to meet the
requirements of Code Section 401(a)(4) or 410, the sum of the
Employer's contributions and Forfeitures
32
allocated to the Participant's Combined Account of each Non-Key
Employee shall be equal to the largest percentage allocated to the
Participant's Combined Account of any Key Employee. However, in
determining whether a Non-Key Employee has received the required
minimum allocation, such Non-Key Employee's Deferred Compensation
and matching contributions needed to satisfy the "Actual
Contribution Percentage" tests pursuant to Section 4.7(a) shall
not be taken into account.
However, no such minimum allocation shall be required in
this Plan for any Non-Key Employee who participates in another
defined contribution plan subject to Code Section 412 providing
such benefits included with this Plan in a Required Aggregation
Group.
(i) For purposes of the minimum allocations set forth above,
the percentage allocated to the Participant's Combined Account of
any Key Employee shall be equal to the ratio of the sum of the
Employer's contributions and Forfeitures allocated on behalf of
such Key Employee divided by the "415 Compensation" for such Key
Employee.
(j) For any Top Heavy Plan Year, the minimum allocations set
forth above shall be allocated to the Participant's Combined
Account of all Non-Key Employees who are Participants and who are
employed by the Employer on the last day of the Plan Year,
including Non-Key Employees who have (1) failed to complete a Year
of Service; and (2) declined to make mandatory contributions (if
required) or, in the case of a cash or deferred arrangement,
elective contributions to the Plan.
(k) For the purposes of this Section, "415 Compensation"
shall be limited to $200,000. Such amount shall be adjusted at the
same time and in the same manner as permitted under Code Section
415(d), except that the dollar increase in effect on January 1 of
any calendar year shall be effective for the Plan Year beginning
with or within such calendar year and the first adjustment to the
$200,000 limitation shall be effective on January 1, 1990. For any
short Plan Year the "415 Compensation" limit shall be an amount
equal to the "415 Compensation" limit for the calendar year in
which the Plan Year begins multiplied by the ratio obtained by
dividing the number of full months in the short Plan Year by
twelve (12). However, for Plan Years beginning prior to January 1,
1989, the $200,000 limit shall apply only for Top Heavy Plan Years
and shall not be adjusted.
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 Code Section 401(a)(17)(B). The cost of living
adjustment in
33
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 Code Section
401(a)(17) shall mean the OBRA '93 annual compensation limit set
forth in this provision.
If Compensation for any prior determination period is
taken into account in determining an Employee's benefits accruing
in the current Plan Year, the Compensation for that prior
determination period is subject to the OBRA '93 annual
compensation limit in effect for that prior determination period.
For this purpose, for determination periods beginning before the
first day of the first Plan Year beginning on or after January 1,
1994, the OBRA '93 annual compensation limit is $150,000.
(l) Notwithstanding anything herein to the contrary,
Participants who terminated employment for any reason during the
Plan Year shall share in the salary reduction contributions made
by the Employer for the year of termination without regard to the
Hours of Service credited.
(m) If a Former Participant is reemployed after five (5)
consecutive 1-Year Breaks in Service, then separate accounts shall
be maintained as follows:
(1) one account for nonforfeitable benefits attributable
to pre-break service; and
(2) one account representing his status in the Plan
attributable to post-break service.
(n) Notwithstanding anything to the contrary, for Plan Years
beginning after December 31, 1989, if this is a Plan that would
otherwise fail to meet the requirements of Code Sections
401(a)(26), 410(b)(1) or 410(b)(2)(A)(i) and the Regulations
thereunder because Employer contributions would not be allocated
to a sufficient number or percentage of Participants for a Plan
Year, then the following rules shall apply:
(1) The group of Participants eligible to share in the
Employer's contribution and Forfeitures for the Plan Year
shall be expanded to include the minimum number of
Participants who would not otherwise be eligible as are
necessary to satisfy the applicable test specified above. The
specific Participants who shall become eligible under the
terms of this paragraph shall be those who are actively
employed on the last day of the Plan Year and, when compared
to similarly situated
34
Participants, have completed the greatest number of Hours of
Service in the Plan Year.
(2) If after application of paragraph (1) above, the
applicable test is still not satisfied, then the group of
Participants eligible to share in the Employer's contribution
and Forfeitures for the Plan Year shall be further expanded
to include the minimum number of Participants who are not
actively employed on the last day of the Plan Year as are
necessary to satisfy the applicable test. The specific
Participants who shall become eligible to share shall be
those Participants, when compared to similarly situated
Participants, who have completed the greatest number of Hours
of Service in the Plan Year before terminating employment.
(3) Nothing in this Section shall permit the reduction of
a Participant's accrued benefit. Therefore any amounts that
have previously been allocated to Participants may not be
reallocated to satisfy these requirements. In such event, the
Employer shall make an additional contribution equal to the
amount such affected Participants would have received had
they been included in the allocations, even if it exceeds the
amount which would be deductible under Code Section 404. Any
adjustment to the allocations pursuant to this paragraph
shall be considered a retroactive amendment adopted by the
last day of the Plan Year.
(4) Notwithstanding the foregoing, for any Top Heavy Plan
Year beginning after December 31, 1992, if the portion of the
Plan which is not a Code Section 401(k) or 401(m) plan would
fail to satisfy Code Section 410(b) if the coverage tests
were applied by treating those Participants whose only
allocation (under such portion of the Plan) would otherwise
be provided under the top heavy formula as if they were not
currently benefiting under the Plan, then, for purposes of
this Section 4.4(n), such Participants shall be treated as
not benefiting and shall therefore be eligible to be included
in the expanded class of Participants who will share in the
allocation provided under the Plan's non top heavy formula.
4.5 ACTUAL DEFERRAL PERCENTAGE TESTS
(a) Maximum Annual Allocation: For each Plan Year beginning
after December 31, 1986, the annual allocation derived from
Employer Elective Contributions to a Participant's Elective
Account shall satisfy one of the following tests:
(1) The "Actual Deferral Percentage" for the Highly
Compensated Participant group shall not be more than the
"Actual Deferral Percentage" of the Non-Highly Compensated
Participant group multiplied by 1.25, or
35
(2) The excess of the "Actual Deferral Percentage" for
the Highly Compensated Participant group over the "Actual
Deferral Percentage" for the Non-Highly Compensated
Participant group shall not be more than two percentage
points. Additionally, the "Actual Deferral Percentage" for
the Highly Compensated Participant group shall not exceed the
"Actual Deferral Percentage" for the Non-Highly Compensated
Participant group multiplied by 2. The provisions of Code
Section 401(k)(3) and Regulation 1.401(k)-1(b) are
incorporated herein by reference.
However, for Plan Years beginning after December 31, 1988, in
order to prevent the multiple use of the alternative method
described in (2) above and in Code Section 401(m)(9)(A), any
Highly Compensated Participant eligible to make elective
deferrals pursuant to Section 4.2 and to make Employee
contributions or to receive matching contributions under this
Plan or under any other plan maintained by the Employer or an
Affiliated Employer shall have his actual contribution ratio
reduced pursuant to Regulation 1.401(m)-2, the provisions of
which are incorporated herein by reference.
(b) For the purposes of this Section "Actual Deferral
Percentage" means, with respect to the Highly Compensated
Participant group and Non-Highly Compensated Participant group for
a Plan Year, the average of the ratios, calculated separately for
each Participant in such group, of the amount of Employer Elective
Contributions allocated to each Participant's Elective Account for
such Plan Year, to such Participant's "414(s) Compensation" for
such Plan Year. The actual deferral ratio for each Participant and
the "Actual Deferral Percentage" for each group shall be
calculated to the nearest one-hundredth of one percent for Plan
Years beginning after December 31, 1988. Employer Elective
Contributions allocated to each Non-Highly Compensated
Participant's Elective Account shall be reduced by Excess Deferred
Compensation to the extent such excess amounts are made under this
Plan or any other plan maintained by the Employer.
(c) For the purpose of determining the actual deferral ratio
of a Highly Compensated Employee who is subject to the Family
Member aggregation rules of Code Section 414(q)(6) because such
Participant is either a "five percent owner" of the Employer or
one of the ten (10) Highly Compensated Employees paid the greatest
"415 Compensation" during the year, the following shall apply:
(1) The combined actual deferral ratio for the family
group (which shall be treated as one Highly Compensated
Participant) shall be determined by aggregating Employer
Elective Contributions and "414(s) Compensation" of all
eligible Family Members (including Highly Compensated
Participants). However, in applying the $200,000 limit to
"414(s) Compensation," for Plan Years beginning after
December 31, 1988, Family Members shall include only the
affected Employee's spouse
36
and any lineal descendants who have not attained age 19
before the close of the Plan Year. Notwithstanding the
foregoing, with respect to Plan Years beginning prior to
January 1, 1990, compliance with the Regulations then in
effect shall be deemed to be compliance with this paragraph.
(2) The Employer Elective Contributions and "414(s)
Compensation" of all Family Members shall be disregarded for
purposes of determining the "Actual Deferral Percentage" of
the Non-Highly Compensated Participant group except to the
extent taken into account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a
member of more than one family group in a plan, all
Participants who are members of those family groups that
include the Participant are aggregated as one family group in
accordance with paragraphs (1) and (2) above.
(d) For the purposes of Sections 4.5(a) and 4.6, a Highly
Compensated Participant and a Non-Highly Compensated Participant
shall include any Employee eligible to make a deferral election
pursuant to Section 4.2, whether or not such deferral election was
made or suspended pursuant to Section 4.2.
(e) For the purposes of this Section and Code Sections
401(a)(4), 410(b) and 401(k), if two or more plans which include
cash or deferred arrangements are considered one plan for the
purposes of Code Section 401(a)(4) or 410(b) (other than Code
Section 410(b)(2)(A)(ii) as in effect for Plan Years beginning
after December 31, 1988), the cash or deferred arrangements
included in such plans shall be treated as one arrangement. In
addition, two or more cash or deferred arrangements may be
considered as a single arrangement for purposes of determining
whether or not such arrangements satisfy Code Sections 401(a)(4),
410(b) and 401(k). In such a case, the cash or deferred
arrangements included in such plans and the plans including such
arrangements shall be treated as one arrangement and as one plan
for purposes of this Section and Code Sections 401(a)(4), 410(b)
and 401(k). Plans may be aggregated under this paragraph (e) for
Plan Years beginning after December 31, 1989 only if they have the
same plan year.
Notwithstanding the above, for Plan Years beginning after
December 31, 1988, an employee stock ownership plan described in
Code Section 4975(e)(7) or 409 may not be combined with this Plan
for purposes of determining whether the employee stock ownership
plan or this Plan satisfies this Section and Code Sections
401(a)(4), 410(b) and 401(k).
(f) For the purposes of this Section, if a Highly Compensated
Participant is a Participant under two or more cash or deferred
arrangements (other than a cash or deferred arrangement which is
part of an employee stock ownership plan as defined in Code
Section 4975(e)(7) or 409 for Plan Years
37
beginning after December 31, 1988) of the Employer or an
Affiliated Employer, all such cash or deferred arrangements shall
be treated as one cash or deferred arrangement for the purpose of
determining the actual deferral ratio with respect to such Highly
Compensated Participant. However, for Plan Years beginning after
December 31, 1988, if the cash or deferred arrangements have
different plan years, this paragraph shall be applied by treating
all cash or deferred arrangements ending with or within the same
calendar year as a single arrangement.
4.6 ADJUSTMENT TO ACTUAL DEFERRAL PERCENTAGE TESTS
In the event that the initial allocations of the Employer's
Elective Contributions made pursuant to Section 4.4 do not satisfy one of the
tests set forth in Section 4.5(a) for Plan Years beginning after December 31,
1986, the Administrator shall adjust Excess Contributions pursuant to the
options set forth below:
(a) On or before the fifteenth day of the third month
following the end of each Plan Year, the Highly Compensated
Participant having the highest actual deferral ratio shall have
his portion of Excess Contributions distributed to him until one
of the tests set forth in Section 4.5(a) is satisfied, or until
his actual deferral ratio equals the actual deferral ratio of the
Highly Compensated Participant having the second highest actual
deferral ratio. This process shall continue until one of the tests
set forth in Section 4.5(a) is satisfied. For each Highly
Compensated Participant, the amount of Excess Contributions is
equal to the Elective Contributions on behalf of such Highly
Compensated Participant (determined prior to the application of
this paragraph) minus the amount determined by multiplying the
Highly Compensated Participant's actual deferral ratio (determined
after application of this paragraph) by his "414(s) Compensation."
However, in determining the amount of Excess Contributions to be
distributed with respect to an affected Highly Compensated
Participant as determined herein, such amount shall be reduced by
any Excess Deferred Compensation previously distributed to such
affected Highly Compensated Participant for his taxable year
ending with or within such Plan Year.
(1) With respect to the distribution of Excess
Contributions pursuant to (a) above, such distribution:
(i) may be postponed but not later than the close of
the Plan Year following the Plan Year to which they are
allocable;
(ii) shall be made first from unmatched Deferred
Compensation and, thereafter, from Deferred Compensation
which is matched. Matching contributions which relate to
such Deferred Compensation shall be forfeited;
(iii) shall be adjusted for Income; and
(iv) shall be designated by the Employer as a
distribution of Excess Contributions (and Income).
38
(2) Any distribution of less than the entire amount of
Excess Contributions shall be treated as a pro rata
distribution of Excess Contributions and Income.
(3) The determination and correction of Excess
Contributions of a Highly Compensated Participant whose
actual deferral ratio is determined under the family
aggregation rules shall be accomplished by reducing the
actual deferral ratio as required herein, and the Excess
Contributions for the family unit shall then be allocated
among the Family Members in proportion to the Elective
Contributions of each Family Member that were combined to
determine the group actual deferral ratio. Notwithstanding
the foregoing, with respect to Plan Years beginning prior to
January 1, 1990, compliance with the Regulations then in
effect shall be deemed to be compliance with this paragraph.
(b) Within twelve (12) months after the end of the Plan Year,
the Employer may make a special Qualified Non-Elective
Contribution on behalf of Non-Highly Compensated Participants in
an amount sufficient to satisfy one of the tests set forth in
Section 4.5(a). Such contribution shall be allocated to the
Participant's Elective Account of each Non-Highly Compensated
Participant in the same proportion that each Non-Highly
Compensated Participant's Compensation for the year bears to the
total Compensation of all Non-Highly Compensated Participants.
(c) If during a Plan Year the projected aggregate amount of
Elective Contributions to be allocated to all Highly Compensated
Participants under this Plan would, by virtue of the tests set
forth in Section 4.5(a), cause the Plan to fail such tests, then
the Administrator may automatically reduce proportionately or in
the order provided in Section 4.6(a) each affected Highly
Compensated Participant's deferral election made pursuant to
Section 4.2 by an amount necessary to satisfy one of the tests set
forth in Section 4.5(a).
4.7 ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) The "Actual Contribution Percentage" for Plan Years
beginning after December 31, 1986 for the Highly Compensated
Participant group shall not exceed the greater of:
(1) 125 percent of such percentage for the Non Highly
Compensated Participant group; or
(2) the lesser of 200 percent of such percentage for the
Non-Highly Compensated Participant group, or such percentage
for the Non-Highly Compensated Participant group plus 2
percentage points. However, for Plan Years beginning after
December 31, 1988, to prevent the multiple use of the
alternative method described in this paragraph and Code
Section 401(m)(9)(A), any Highly Compensated Participant
eligible
39
to make elective deferrals pursuant to Section 4.2 or any
other cash or deferred arrangement maintained by the Employer
or an Affiliated Employer and to make Employee contributions
or to receive matching contributions under this Plan or under
any other plan maintained by the Employer or an Affiliated
Employer shall have his actual contribution ratio reduced
pursuant to Regulation 1.401(m)-2. The provisions of Code
Section 401(m) and Regulations 1.401(m)-1(b) and 1.401(m)-2
are incorporated herein by reference.
(b) For the purposes of this Section and Section 4.8, "Actual
Contribution Percentage" for a Plan Year means, with respect to
the Highly Compensated Participant group and Non-Highly
Compensated Participant group, the average of the ratios
(calculated separately for each Participant in each group) of:
(1) the sum of Employer matching contributions made
pursuant to Section 4.1 (b) on behalf of each such
Participant for such Plan Year; to
(2) the Participant's "414(s) Compensation" for such Plan
Year.
(c) For purposes of determining the "Actual Contribution
Percentage" and the amount of Excess Aggregate Contributions
pursuant to Section 4.8(d), only Employer matching contributions
(excluding Employer matching contributions forfeited pursuant to
Sections 4.2(f) and 4.6(a)(1) or forfeited pursuant to Section
4.8(a)) contributed to the Plan prior to the end of the succeeding
Plan Year shall be considered. In addition, the Administrator may
elect to take into account, with respect to Employees eligible to
have Employer matching contributions pursuant to Section 4.1(b)
allocated to their accounts, elective deferrals (as defined in
Regulation 1.402(g)-1(b)) and qualified non-elective contributions
(as defined in Code Section 401(m)(4)(C)) contributed to any plan
maintained by the Employer. Such elective deferrals and qualified
non-elective contributions shall be treated as Employer matching
contributions subject to Regulation 1.401(m)-1(b)(5) which is
incorporated herein by reference. However, for Plan Years
beginning after December 31, 1988, the Plan Year must be the same
as the plan year of the plan to which the elective deferrals and
the qualified non elective contributions are made.
(d) For the purpose of determining the actual contribution
ratio of a Highly Compensated Employee who is subject to the
Family Member aggregation rules of Code Section 414(q)(6) because
such Employee is either a "five percent owner" of the Employer or
one of the ten (10) Highly Compensated Employees paid the greatest
"415 Compensation" during the year, the following shall apply:
(1) The combined actual contribution ratio for the family
group (which shall be treated as one Highly Compensated
Participant) shall be determined by aggregating Employer
matching contributions made
40
pursuant to Section 4.1(b) and "414(s) Compensation" of all
eligible Family Members (including Highly Compensated
Participants). However, in applying the $200,000 limit to
"414(s) Compensation" for Plan Years beginning after December
31, 1988, Family Members shall include only the affected
Employee's spouse and any lineal descendants who have not
attained age 19 before the close of the Plan Year.
Notwithstanding the foregoing, with respect to Plan Years
beginning prior to January 1, 1990, compliance with the
Regulations then in effect shall be deemed to be compliance
with this paragraph.
(2) The Employer matching contributions made pursuant to
Section 4.1(b) and "414(s) Compensation" of all Family
Members shall be disregarded for purposes of determining the
"Actual Contribution Percentage" of the Non-Highly
Compensated Participant group except to the extent taken into
account in paragraph (1) above.
(3) If a Participant is required to be aggregated as a
member of more than one family group in a plan, all
Participants who are members of those family groups that
include the Participant are aggregated as one family group in
accordance with paragraphs (1) and (2) above.
(e) For purposes of this Section and Code Sections 401(a)(4),
410(b) and 401(m), if two or more plans of the Employer to which
matching contributions, Employee contributions, or both, are made
are treated as one plan for purposes of Code Sections 401(a)(4) or
410(b) (other than the average benefits test under Code Section
410(b)(2)(A)(ii) as in effect for Plan Years beginning after
December 31, 1988), such plans shall be treated as one plan. In
addition, two or more plans of the Employer to which matching
contributions, Employee contributions, or both, are made may be
considered as a single plan for purposes of determining whether or
not such plans satisfy Code Sections 401(a)(4), 410(b) and 401(m).
In such a case, the aggregated plans must satisfy this Section and
Code Sections 401(a)(4), 410(b) and 401(m) as though such
aggregated plans were a single plan. Plans may be aggregated under
this paragraph (e) for Plan Years beginning after December 31,
1988, only if they have the same plan year.
Notwithstanding the above, for Plan Years beginning after
December 31, 1988, an employee stock ownership plan described in
Code Section 4975(e)(7) or 409 may not be aggregated with this
Plan for purposes of determining whether the employee stock
ownership plan or this Plan satisfies this Section and Code
Sections 401(a)(4), 410(b) and 401(m).
(f) If a Highly Compensated Participant is a Participant
under two or more plans (other than an employee stock ownership
plan as defined in Code Section 4975(e)(7) or 409 for Plan Years
beginning after December 31, 1988) which are maintained by the
Employer or an Affiliated Employer to which matching
contributions, Employee contributions, or both, are made, all such
contributions on behalf of such Highly Compensated Participant
shall be
41
aggregated for purposes of determining such Highly Compensated
Participant's actual contribution ratio. However, for Plan Years
beginning after December 31, 1988, if the plans have different
plan years, this paragraph shall be applied by treating all plans
ending with or within the same calendar year as a single plan.
(g) For purposes of Sections 4.7(a) and 4.8, a Highly
Compensated Participant and Non-Highly Compensated Participant
shall include any Employee eligible to have Employer matching
contributions pursuant to Section 4.1(b) (whether or not a
deferral election was made or suspended pursuant to Section
4.2(e)) allocated to his account for the Plan Year.
4.8 ADJUSTMENT TO ACTUAL CONTRIBUTION PERCENTAGE TESTS
(a) In the event that, for Plan Years beginning after
December 31, 1986, the "Actual Contribution Percentage" for the
Highly Compensated Participant group exceeds the "Actual
Contribution Percentage" for the Non-Highly Compensated
Participant group pursuant to Section 4.7(a), the Administrator
(on or before the fifteenth day of the third month following the
end of the Plan Year, but in no event later than the close of the
following Plan Year) shall direct the Trustee to distribute to the
Highly Compensated Participant having the highest actual
contribution ratio, his Vested portion of Excess Aggregate
Contributions (and Income allocable to such contributions) and, if
forfeitable, forfeit such non-Vested Excess Aggregate
Contributions attributable to Employer matching contributions (and
Income allocable to such forfeitures) until either one of the
tests set forth in Section 4.7(a) is satisfied, or until his
actual contribution ratio equals the actual contribution ratio of
the Highly Compensated Participant having the second highest
actual contribution ratio. This process shall continue until one
of the tests set forth in Section 4.7(a) is satisfied.
(b) Any distribution and/or forfeiture of less than the
entire amount of Excess Aggregate Contributions (and Income) shall
be treated as a pro rata distribution and/or forfeiture of Excess
Aggregate Contributions and Income. Distribution of Excess
Aggregate Contributions shall be designated by the Employer as a
distribution of Excess Aggregate Contributions (and Income).
Forfeitures of Excess Aggregate Contributions shall be treated in
accordance with Section 4.4.
(c) Excess Aggregate Contributions, including forfeited
matching contributions, shall be treated as Employer contributions
for purposes of Code Sections 404 and 415 even if distributed from
the Plan.
Forfeited matching contributions that are reallocated to
Participants' Accounts for the Plan Year in which the forfeiture
occurs shall be treated as an "annual addition" pursuant to
Section 4.9(b) for the Participants to whose Accounts they are
reallocated and for the Participants from whose Accounts they are
forfeited.
42
(d) For each Highly Compensated Participant, the amount of
Excess Aggregate Contributions is equal to the Employer matching
contributions made pursuant to Section 4.1(b) and any qualified
non-elective contributions or elective deferrals taken into
account pursuant to Section 4.7(c) on behalf of the Highly
Compensated Participant (determined prior to the application of
this paragraph) minus the amount determined by multiplying the
Highly Compensated Participant's actual contribution ratio
(determined after application of this paragraph) by his "414(s)
Compensation." The actual contribution ratio must be rounded to
the nearest one-hundredth of one percent for Plan Years beginning
after December 31, 1988. In no case shall the amount of Excess
Aggregate Contribution with respect to any Highly Compensated
Participant exceed the amount of Employer matching contributions
made pursuant to Section 4.1(b) and any qualified non-elective
contributions or elective deferrals taken into account pursuant to
Section 4.7(c) on behalf of such Highly Compensated Participant
for such Plan Year.
(e) The determination of the amount of Excess Aggregate
Contributions with respect to any Plan Year shall be made after
first determining the Excess Contributions, if any, to be treated
as voluntary Employee contributions due to recharacterization for
the plan year of any other qualified cash or deferred arrangement
(as defined in Code Section 401(k)) maintained by the Employer
that ends with or within the Plan Year.
(f) If the determination and correction of Excess Aggregate
Contributions of a Highly Compensated Participant whose actual
contribution ratio is determined under the family aggregation
rules, then the actual contribution ratio shall be reduced and the
Excess Aggregate Contributions for the family unit shall be
allocated among the Family Members in proportion to the sum of
Employer matching contributions made pursuant to Section 4.1(b)
and any qualified non-elective contributions or elective deferrals
taken into account pursuant to Section 4.7(c) of each Family
Member that were combined to determine the group actual
contribution ratio. Notwithstanding the foregoing, with respect to
Plan Years beginning prior to January 1, 1990, compliance with the
Regulations then in effect shall be deemed to be compliance with
this paragraph.
(g) If during a Plan Year the projected aggregate amount of
Employer matching contributions to be allocated to all Highly
Compensated Participants under this Plan would, by virtue of the
tests set forth in Section 4.7(a), cause the Plan to fail such
tests, then the Administrator may automatically reduce
proportionately or in the order provided in Section 4.8(a) each
affected Highly Compensated Participant's projected share of such
contributions by an amount necessary to satisfy one of the tests
set forth in Section 4.7(a).
(h) Notwithstanding the above, within twelve (12) months
after the end of the Plan Year, the Employer may make a special
Qualified Non-Elective Contribution on behalf of Non-Highly
Compensated Participants in an amount
43
sufficient to satisfy one of the tests set forth in Section
4.7(a). Such contribution shall be allocated to the Participant's
Elective Account of each Non-Highly Compensated Participant in the
same proportion that each Non-Highly Compensated Participant's
Compensation for the year bears to the total Compensation of all
Non-Highly Compensated Participants. A separate accounting shall
be maintained for the purpose of excluding such contributions from
the "Actual Deferral Percentage" tests pursuant to Section 4.5(a).
4.9 MAXIMUM ANNUAL ADDITIONS
(a) Notwithstanding the foregoing, the maximum "annual
additions" credited to a Participant's accounts for any
"limitation year" shall equal the lesser of: (1) $30,000 (or, if
greater, one-fourth of the dollar limitation in effect under Code
Section 415(b)(1)(A)) or (2) twenty-five percent (25%) of the
Participant's "415 Compensation" for such "limitation year." For
any short "limitation year," the dollar limitation in (1) above
shall be reduced by a fraction, the numerator of which is the
number of full months in the short "limitation year" and the
denominator of which is twelve (12).
(b) For purposes of applying the limitations of Code Section
415, "annual additions" means the sum credited to a Participant's
accounts for any "limitation year" of (1) Employer contributions,
(2) Employee contributions, (3) forfeitures, (4) amounts
allocated, after March 31, 1984, to an individual medical account,
as defined in Code Section 415(1)(2) which is part of a pension or
annuity plan maintained by the Employer and (5) amounts derived
from contributions paid or accrued after December 31, 1985, in
taxable years ending after such date, which are attributable to
post-retirement medical benefits allocated to the separate account
of a key employee (as defined in Code Section 419A(d)(3)) under a
welfare benefit plan (as defined in Code Section 419(e))
maintained by the Employer. Except, however, the "415
Compensation" percentage limitation referred to in paragraph
(a)(2) above shall not apply to: (1) any contribution for medical
benefits (within the meaning of Code Section 419A(f)(2)) after
separation from service which is otherwise treated as an "annual
addition," or (2) any amount otherwise treated as an "annual
addition" under Code Section 415(1)(1).
(c) For purposes of applying the limitations of Code Section
415, the transfer of funds from one qualified plan to another is
not an "annual addition." In addition, the following are not
Employee contributions for the purposes of Section 4.9(b)(2): (1)
rollover contributions (as defined in Code Sections 402(a)(5),
403(a)(4), 403(b)(8) and 408(d)(3)); (2) repayments of loans made
to a Participant from the Plan; (3) repayments of distributions
received by an Employee pursuant to Code Section 411(a)(7)(B)
(cash-outs); (4) repayments of distributions received by an
Employee pursuant to Code Section 411(a)(3)(D) (mandatory
contributions); and (5) Employee contributions to a simplified
employee pension excludable from gross income under Code Section
408(k)(6).
44
(d) For purposes of applying the limitations of Code Section
415, the "limitation year" shall be the Plan Year.
(e) The dollar limitation under Code Section 415(b)(1)(A)
stated in paragraph (a)(1) above shall be adjusted annually as
provided in Code Section 415(d) pursuant to the Regulations. The
adjusted limitation is effective as of January 1st of each
calendar year and is applicable to "limitation years" ending with
or within that calendar year.
(f) For the purpose of this Section, all qualified defined
benefit plans (whether terminated or not) ever maintained by the
Employer shall be treated as one defined benefit plan, and all
qualified defined contribution plans (whether terminated or not)
ever maintained by the Employer shall be treated as one defined
contribution plan.
(g) For the purpose of this Section, if the Employer is a
member of a controlled group of corporations, trades or businesses
under common control (as defined by Code Section 1563(a) or Code
Section 414(b) and (c) as modified by Code Section 415(h)), is a
member of an affiliated service group (as defined by Code Section
414(m)), or is a member of a group of entities required to be
aggregated pursuant to Regulations under Code Section 414(o), all
Employees of such Employers shall be considered to be employed by
a single Employer.
(h) For the purpose of this Section, if this Plan is a Code
Section 413(c) plan, all Employers of a Participant who maintain
this Plan will be considered to be a single Employer.
(i) (1) If a Participant participates in more than one
defined contribution plan maintained by the Employer which have
different Anniversary Dates, the maximum "annual additions" under
this Plan shall equal the maximum "annual additions" for the
"limitation year" minus any "annual additions" previously credited
to such Participant's accounts during the "limitation year."
(2) If a Participant participates in both a defined
contribution plan subject to Code Section 412 and a defined
contribution plan not subject to Code Section 412 maintained
by the Employer which have the same Anniversary Date, "annual
additions" will be credited to the Participant's accounts
under the defined contribution plan subject to Code Section
412 prior to crediting "annual additions" to the
Participant's accounts under the defined contribution plan
not subject to Code Section 412.
(3) If a Participant participates in more than one
defined contribution plan not subject to Code Section 412
maintained by the Employer which have the same Anniversary
Date, the maximum "annual additions" under this Plan shall
equal the product of (A) the maximum "annual additions" for
the "limitation year" minus any "annual additions"
45
previously credited under subparagraphs (i) or (2) above,
multiplied by (B) a fraction (i) the numerator of which is
the "annual additions" which would be credited to such
Participant's accounts under this Plan without regard to the
limitations of Code Section 415 and (ii) the denominator of
which is such "annual additions" for all plans described in
this subparagraph.
(j) If an Employee is (or has been) a Participant in one or
more defined benefit plans and one or more defined contribution
plans maintained by the Employer, the sum of the defined benefit
plan fraction and the defined contribution plan fraction for any
"limitation year" may not exceed 1.0.
(k) The defined benefit plan fraction for any "limitation
year" is a fraction, the numerator of which is the sum of the
Participant's projected annual benefits under all the defined
benefit plans (whether or not terminated) maintained by the
Employer, and the denominator of which is the lesser of 125
percent of the dollar limitation determined for the "limitation
year" under Code Sections 415(b) and (d) or 140 percent of the
highest average compensation, including any adjustments under Code
Section 415(b).
Notwithstanding the above, if the Participant was a
Participant as of the first day of the first "limitation year"
beginning after December 31, 1986, in one or more defined benefit
plans maintained by the Employer which were in existence on May 6,
1986, the denominator of this fraction will 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
plans individually and in the aggregate satisfied the requirements
of Code Section 415 for all "limitation years" beginning before
January 1, 1987.
(l) The defined contribution plan fraction for any
"limitation year" is a fraction, the numerator of which is the sum
of the annual additions to the Participant's Account under all the
defined contribution plans (whether or not terminated) maintained
by the Employer for the current and all prior "limitation years"
(including the annual additions attributable to the Participant's
nondeductible Employee contributions to all defined benefit plans,
whether or not terminated, maintained by the Employer, and the
annual additions attributable to all welfare benefit funds, as
defined in Code Section 419(e), and individual medical accounts,
as defined in Code Section 415(1)(2), maintained by the Employer),
and the denominator of which is the sum of the maximum aggregate
amounts for the current and all prior "limitation years" of
service with the Employer (regardless of whether a defined
contribution plan was maintained by the Employer). The maximum
aggregate amount in any "limitation year" is the lesser of 125
percent of the dollar limitation determined under Code Sections
415(b) and (d) in effect under Code Section 415(c)(1)(A) or 35
percent of the Participant's Compensation for such year.
46
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 will be adjusted if the sum of this fraction and
the defined benefit fraction would otherwise exceed 1.0 under the
terms of this Plan. Under the adjustment, an amount equal to the
product of (1) the excess of the sum of the fractions over 1.0
times (2) the denominator of 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 5, 1986, but using the Code Section 415
limitation applicable to the first "limitation year" beginning on
or after January 1, 1987. The annual addition for any "limitation
year" beginning before January 1, 1987 shall not be recomputed to
treat all Employee contributions as annual additions.
(m) Notwithstanding the foregoing, for any "limitation year"
in which the Plan is a Top Heavy Plan, 100 percent shall be
substituted for 125 percent in Sections 4.9(k) and 4.9(1) unless
the extra minimum allocation is being provided pursuant to Section
4.4. However, for any "limitation year" in which the Plan is a
Super Top Heavy Plan, 100 percent shall be substituted for 125
percent in any event.
(n) Notwithstanding anything contained in this Section to the
contrary, the limitations, adjustments and other requirements
prescribed in this Section shall at all times comply with the
provisions of Code Section 415 and the Regulations thereunder, the
terms of which are specifically incorporated herein by reference.
4.10 ADJUSTMENT FOR EXCESSIVE ANNUAL ADDITIONS
(a) If, as a result of the allocation of Forfeitures, a
reasonable error in estimating a Participant's Compensation, a
reasonable error in determining the amount of elective deferrals
(within the meaning of Code Section 402(g)(3)) that may be made
with respect to any Participant under the limits of Section 4.9 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, the Administrator shall (1) distribute any elective
deferrals (within the meaning of Code Section 402(g)(3)) or return
any voluntary Employee contributions credited for the "limitation
year" to the extent that the return would reduce the "excess
amount" in the Participant's accounts (2) hold any "excess amount"
remaining after the return of any elective deferrals or voluntary
Employee contributions in a "Section 415 suspense account" (3) use
the "Section 415 suspense account" in the next "limitation year"
(and succeeding "limitation years" if necessary) to reduce
Employer contributions for that Participant if that Participant is
covered by the Plan as of the end of the "limitation year," or if
the Participant is not so covered, allocate and reallocate the
47
"Section 415 suspense account" in the next "limitation year" (and
succeeding "limitation years" if necessary) to all Participants in
the Plan before any Employer or Employee contributions which would
constitute "annual additions" are made to the Plan for such
"limitation year" (4) reduce Employer contributions to the Plan
for such "limitation year" by the amount of the "Section 415
suspense account" allocated and reallocated during such
"limitation year."
(b) For purposes of this Article, "excess amount" for any
Participant for a "limitation year" shall mean the excess, if any,
of (1) the "annual additions" which would be credited to his
account under the terms of the Plan without regard to the
limitations of Code Section 415 over (2) the maximum "annual
additions" determined pursuant to Section 4.9.
(c) For purposes of this Section, "Section 415 suspense
account" shall mean an unallocated account equal to the sum of
"excess amounts" for all Participants in the Plan during the
"limitation year." The "Section 415 suspense account" shall not
share in any earnings or losses of the Trust Fund.
4.11 TRANSFERS FROM QUALIFIED PLANS
(a) With the consent of the Administrator, amounts may be
transferred from other qualified plans by Employees, provided that
the trust from which such funds are transferred permits the
transfer to be made and the transfer will not jeopardize the tax
exempt status of the Plan or Trust or create adverse tax
consequences for the Employer. The amounts transferred shall be
set up in a separate account herein referred to as a
"Participant's Rollover Account." Such account shall be fully
Vested at all times and shall not be subject to Forfeiture for any
reason.
(b) Amounts in a Participant's Rollover Account shall be held
by the Trustee pursuant to the provisions of this Plan and may not
be withdrawn by, or distributed to the Participant, in whole or in
part, except as provided in paragraphs (c) and (d) of this
Section.
(c) Except as permitted by Regulations (including Regulation
1.411(d)-4), amounts attributable to elective contributions (as
defined in Regulation 1.401(k)-1(g)(3)), including amounts treated
as elective contributions, which are transferred from another
qualified plan in a plan-to-plan transfer shall be subject to the
distribution limitations provided for in Regulation 1.401(k)-1(d).
(d) At Normal Retirement Date, or such other date when the
Participant or his Beneficiary shall be entitled to receive
benefits, the fair market value of the Participant's Rollover
Account shall be used to provide additional benefits to the
Participant or his Beneficiary. Any distributions of amounts held
in a Participant's Rollover Account shall be made in a manner
which is consistent with and satisfies the provisions of Section
6.5, including, but not limited to, all notice and consent
requirements of Code Section 411(a)(11) and the Regulations
48
thereunder. Furthermore, such amounts shall be considered as part
of a Participant's benefit in determining whether an involuntary
cash-out of benefits without Participant consent may be made.
(e) The Administrator may direct that employee transfers made
after a valuation date be segregated into a separate account for
each Participant in a federally insured savings account,
certificate of deposit in a bank or savings and loan association,
money market certificate, or other short term debt security
acceptable to the Trustee until such time as the allocations
pursuant to this Plan have been made, at which time they may
remain segregated or be invested as part of the general Trust
Fund, to be determined by the Administrator.
(f) All amounts allocated to a Participant's Rollover Account
may be treated as a Directed Investment Account pursuant to
Section 4.12.
(g) For purposes of this Section, the term "qualified plan"
shall mean any tax qualified plan under Code Section 401(a). The
term "amounts transferred from other qualified plans" shall mean:
(i) amounts transferred to this Plan directly from another
qualified plan; (ii) distributions from another qualified plan
which are eligible rollover distributions and which are either
transferred by the Employee to this Plan within sixty (60) days
following his receipt thereof or are transferred pursuant to a
direct rollover; (iii) amounts transferred to this Plan from a
conduit individual retirement account provided that the conduit
individual retirement account has no assets other than assets
which (A) were previously distributed to the Employee by another
qualified plan as a lump-sum distribution, (B) were eligible for
tax-free rollover to a qualified plan and (C) were deposited in
such conduit individual retirement account within sixty (60) days
of receipt thereof and other than earnings on said assets; and
(iv) amounts distributed to the Employee from a conduit individual
retirement account meeting the requirements of clause (iii) above,
and transferred by the Employee to this Plan within sixty (60)
days of his receipt thereof from such conduit individual
retirement account.
(h) Prior to accepting any transfers to which this Section
applies, the Administrator may require the Employee to establish
that the amounts to be transferred to this Plan meet the
requirements of this Section and may also require the Employee to
provide an opinion of counsel satisfactory to the Employer that
the amounts to be transferred meet the requirements of this
Section.
(i) This Plan shall not accept any direct or indirect
transfers (as that term is defined and interpreted under Code
Section 401(a)(11) and the Regulations thereunder) from a defined
benefit plan, money purchase plan (including a target benefit
plan), stock bonus or profit sharing plan which would otherwise
have provided for a life annuity form of payment to the
Participant.
(j) Notwithstanding anything herein to the contrary, a
transfer directly to this Plan from another qualified plan (or a
transaction having the effect of such
49
a transfer) shall only be permitted if it will not result in the
elimination or reduction of any "Section 411(d)(6) protected
benefit" as described in Section 8.1.
4.12 DIRECTED INVESTMENT ACCOUNT
(a) The Administrator, in his sole discretion, may determine
that all Participants be permitted to direct the Trustee as to the
investment of all or a portion of the interest in any one or more
of their individual account balances. If such authorization is
given, Participants may, subject to a procedure established by the
Administrator and applied in a uniform nondiscriminatory manner,
direct the Trustee in writing to invest any portion of their
account in specific assets, specific funds or other investments
permitted under the Plan and the directed investment procedure.
That portion of the account of any Participant so directing will
thereupon be considered a Directed Investment Account, which shall
not share in Trust Fund earnings.
(b) A separate Directed Investment Account shall be
established for each Participant who has directed an investment.
Transfers between the Participant's regular account and his
Directed Investment Account shall be charged and credited as the
case may be to each account. The Directed Investment Account shall
not share in Trust Fund earnings, but it shall be charged or
credited as appropriate with the net earnings, gains, losses and
expenses as well as any appreciation or depreciation in market
value during each Plan Year attributable to such account.
Article V
VALUATIONS
5.1 VALUATION OF THE TRUST FUND
The Administrator shall direct the Trustee, as of each Anniversary
Date, and at such other date or dates deemed necessary by the Administrator,
herein called "valuation date," to determine the net worth of the assets
comprising the Trust Fund as it exists on the "valuation date." In determining
such net worth, the Trustee shall value the assets comprising the Trust Fund at
their fair market value as of the "valuation date" and shall deduct all expenses
for which the Trustee has not yet obtained reimbursement from the Employer or
the Trust Fund.
5.2 METHOD OF VALUATION
In determining the fair market value of securities held in the
Trust Fund which are listed on a registered stock exchange, the Administrator
shall direct the Trustee to value the same at the prices they were last traded
on such exchange preceding the close of business on the "valuation date." If
such securities were not traded on the "valuation date," or if the exchange on
which they are traded was not open for business on the "valuation date," then
the securities shall be valued at the prices at which they were last traded
prior to the "valuation date." Any unlisted security held in the Trust Fund
shall be valued at its bid price next preceding the close of business on the
"valuation date," which bid price shall be obtained from a registered broker or
an investment banker. In determining the fair market value of assets other than
securities for which
50
trading or bid prices can be obtained, the Trustee may appraise such assets
itself, or in its discretion, employ one or more appraisers for that purpose and
rely on the values established by such appraiser or appraisers.
Article VI
DETERMINATION AND DISTRIBUTION OF BENEFITS
6.1 DETERMINATION OF BENEFITS UPON RETIREMENT
Every Participant may terminate his employment with the Employer
and retire for the purposes hereof on his Normal Retirement Date. However, a
Participant may postpone the termination of his employment with the Employer to
a later date, in which event the participation of such Participant in the Plan,
including the right to receive allocations pursuant to Section 4.4, shall
continue until his Late Retirement Date. Upon a Participant's Retirement Date or
attainment of his Normal Retirement Date without termination of employment with
the Employer, or as soon thereafter as is practicable, the Trustee shall
distribute all amounts credited to such Participant's Combined Account in
accordance with Section 6.5.
6.2 DETERMINATION OF BENEFITS UPON DEATH
(a) Upon the death of a Participant before his Retirement
Date or other termination of his employment, all amounts credited
to such Participant's Combined Account shall become fully Vested.
The Administrator shall direct the Trustee, in accordance with the
provisions of Sections 6.6 and 6.7, to distribute the value of the
deceased Participant's accounts to the Participant's Beneficiary.
(b) Upon the death of a Former Participant, the Administrator
shall direct the Trustee, in accordance with the provisions of
Sections 6.6 and 6.7, to distribute any remaining Vested amounts
credited to the accounts of a deceased Former Participant to such
Former Participant's Beneficiary.
(c) Any security interest held by the Plan by reason of an
outstanding loan to the Participant or Former Participant shall be
taken into account in determining the amount of the death benefit.
(d) The Administrator may require such proper proof of death
and such evidence of the right of any person to receive payment of
the value of the account of a deceased Participant or Former
Participant as the Administrator may deem desirable. The
Administrator's determination of death and of the right of any
person to receive payment shall be conclusive.
(e) The Beneficiary of the death benefit payable pursuant to
this Section shall be the Participant's spouse. Except, however,
the Participant may designate a Beneficiary other than his spouse
if:
(1) the spouse has waived the right to be the
Participant's Beneficiary, or
51
(2) the Participant is legally separated or has been
abandoned (within the meaning of local law) and the
Participant has a court order to such effect (and there is no
"qualified domestic relations order" as defined in Code
Section 414(p) which provides otherwise), or
(3) the Participant has no spouse, or
(4) the spouse cannot be located.
In such event, the designation of a Beneficiary shall be
made on a form satisfactory to the Administrator. A Participant
may at any time revoke his designation of a Beneficiary or change
his Beneficiary by filing written notice of such revocation or
change with the Administrator. However, the Participant's spouse
must again consent in writing to any change in Beneficiary unless
the original consent acknowledged that the spouse had the right to
limit consent only to a specific Beneficiary and that the spouse
voluntarily elected to relinquish such right. In the event no
valid designation of Beneficiary exists at the time of the
Participant's death, the death benefit shall be payable to his
estate.
(f) Any consent by the Participant's spouse to waive any
rights to the death benefit must be in writing, must acknowledge
the effect of such waiver, and be witnessed by a Plan
representative or a notary public. Further, the spouse's consent
must be irrevocable and must acknowledge the specific nonspouse
Beneficiary.
6.3 DETERMINATION OF BENEFITS IN EVENT OF DISABILITY
In the event of a Participant's Total and Permanent Disability
prior to his Retirement Date or other termination of his employment, all amounts
credited to such Participant's Combined Account shall become fully Vested. In
the event of a Participant's Total and Permanent Disability, the Trustee, in
accordance with the provisions of Sections 6.5 and 6.7, shall distribute to such
Participant all amounts credited to such Participant's Combined Account as
though he had retired.
6.4 DETERMINATION OF BENEFITS UPON TERMINATION
(a) On or before the Anniversary Date coinciding with or
subsequent to the termination of a Participant's employment for
any reason other than death, Total and Permanent Disability or
retirement, the Administrator may direct the Trustee to segregate
the amount of the Vested portion of such Terminated Participant's
Combined Account and invest the aggregate amount thereof in a
separate, federally insured savings account, certificate of
deposit, common or collective trust fund of a bank or a deferred
annuity. In the event the Vested portion of a Participant's
Combined Account is not segregated, the amount shall remain in a
separate account for the Terminated Participant and share in
allocations pursuant to Section 4.4 until such time as a
distribution is made to the Terminated Participant.
52
In the event that the amount of the Vested portion of the
Terminated Participant's Combined Account equals or exceeds the
fair market, value of any insurance Contracts, the Trustee, when
so directed by the Administrator and agreed to by the Terminated
Participant, shall assign, transfer, and set over to such
Terminated Participant all Contracts on his life in such form or
with such endorsements so that the settlement options and forms of
payment are consistent with the provisions of Section 6.5. In the
event that the Terminated Participant's Vested portion does not at
least equal the fair market value of the Contracts, if any, the
Terminated Participant may pay over to the Trustee the sum needed
to make the distribution equal to the value of the Contracts being
assigned or transferred, or the Trustee, pursuant to the
Participant's election, may borrow the cash value of the Contracts
from the insurer so that the value of the Contracts is equal to
the Vested portion of the Terminated Participant's Account and
then assign the Contracts to the Terminated Participant.
Distribution of the funds due to a Terminated Participant
shall be made on the occurrence of an event which would result in
the distribution had the Terminated Participant remained in the
employ of the Employer (upon the Participant's death, Total and
Permanent Disability or Normal Retirement). However, at the
election of the Participant, the Administrator shall direct the
Trustee to cause the entire Vested portion of the Terminated
Participant's Combined Account to be payable to such Terminated
Participant. Any distribution under this paragraph shall be made
in a manner which is consistent with and satisfies the provisions
of Section 6.5, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the
Regulations thereunder.
If the value of a Terminated Participant's Vested benefit
derived from Employer and Employee contributions does not exceed
$3,500 and has never exceeded $3,500 at the time of any prior
distribution, the Administrator shall direct the Trustee to cause
the entire Vested benefit to be paid to such Participant in a
single lump sum.
For purposes of this Section 6.4, if the value of a
Terminated Participant's Vested benefit is zero, the Terminated
Participant shall be deemed to have received a distribution of
such Vested benefit.
(b) The Vested portion of any Participant's Account shall be
a percentage of the total amount credited to his Participant's
Account determined on the basis of the Participant's number of
Years of Service according to the following schedule:
53
Vesting Schedule
--------------------------------------------------
Years of Service Percentage
---------------- ----------
Less than 2 0%
2 100%
(c) Notwithstanding the vesting schedule above, the Vested
percentage of a Participant's Account shall not be less than the
Vested percentage attained as of the later of the effective date
or adoption date of this amendment and restatement.
(d) Notwithstanding the vesting schedule above, upon the
complete discontinuance of the Employer's contributions to the
Plan or upon any full or partial termination of the Plan, all
amounts credited to the account of any affected Participant shall
become 100% Vested and shall not thereafter be subject to
Forfeiture.
(e) The computation of a Participant's nonforfeitable
percentage of his interest in the Plan shall not be reduced as the
result of any direct or indirect amendment to this Plan. For this
purpose, the Plan shall be treated as having been amended if the
Plan provides for an automatic change in vesting due to a change
in top heavy status. In the event that the Plan is amended to
change or modify any vesting schedule, a Participant with at least
three (3) Years of Service as of the expiration date of the
election period may elect to have his nonforfeitable percentage
computed under the Plan without regard to such amendment. If a
Participant fails to make such election, then such Participant
shall be subject to the new vesting schedule. The Participant's
election period shall commence on the adoption date of the
amendment and shall end 60 days after the latest of:
(1) the adoption date of the amendment,
(2) the effective date of the amendment, or
(3) the date the Participant receives written notice of
the amendment from the Employer or Administrator.
(f) (1) If any Former Participant shall be reemployed by the
Employer before a 1-Year Break in Service occurs, he shall
continue to participate in the Plan in the same manner as if such
termination had not occurred.
(2) If any Former Participant shall be reemployed by the
Employer before five (5) consecutive 1-Year Breaks in
Service, and such Former Participant had received, or was
deemed to have received, a distribution of his entire Vested
interest prior to his reemployment, his forfeited account
shall be reinstated only if he repays the full amount
distributed to him before the earlier of five (5) years after
the first date on which the Participant is subsequently
reemployed by the Employer or the
54
close of the first period of five (5) consecutive 1-Year
Breaks in Service commencing after the distribution, or in
the event of a deemed distribution, upon the reemployment of
such Former Participant. In the event the Former Participant
does repay the full amount distributed to him, or in the
event of a deemed distribution, the undistributed portion of
the Participant's Account must be restored in full,
unadjusted by any gains or losses occurring subsequent to the
Anniversary Date or other valuation date coinciding with or
preceding his termination. The source for such reinstatement
shall first be any Forfeitures occurring during the year. If
such source is insufficient, then the Employer shall
contribute an amount which is sufficient to restore any such
forfeited Accounts provided, however, that if a discretionary
contribution is made for such year pursuant to Section
4.1(d), such contribution shall first be applied to restore
any such Accounts and the remainder shall be allocated in
accordance with Section 4.4.
(3) If any Former Participant is reemployed after a
1-Year Break in Service has occurred, Years of Service shall
include Years of Service prior to his 1-Year Break in Service
subject to the following rules:
(i) If a Former Participant has a 1-Year Break in
Service, his pre-break and post-break service shall be
used for computing Years of Service for eligibility and
for vesting purposes only after he has been employed for
one (1) Year of Service following the date of his
reemployment with the Employer;
(ii) Any Former Participant who under the Plan does
not have a nonforfeitable right to any interest in the
Plan resulting from Employer contributions shall lose
credits otherwise allowable under (i) above if his
consecutive 1-Year Breaks in Service equal or exceed the
greater of (A) five (5) or (B) the aggregate number of
his pre-break Years of Service;
(iii) After five (5) consecutive 1-Year Breaks in
Service, a Former Participant's Vested Account balance
attributable to pre-break service shall not be increased
as a result of post-break service;
(iv) If a Former Participant who has not had his
Years of Service before a 1-Year Break in Service
disregarded pursuant to (ii) above completes one (1) Year
of Service for eligibility purposes following his
reemployment with the Employer, he shall participate in
the Plan retroactively from his date of reemployment;
(v) If a Former Participant who has not had his Years
of Service before a 1-Year Break in Service disregarded
pursuant to (ii) above completes a Year of Service (a
1-Year Break in Service
55
previously occurred, but employment had not terminated),
he shall participate in the Plan retroactively from the
first day of the Plan Year during which he completes one
(1) Year of Service.
6.5 DISTRIBUTION OF BENEFITS
(a) The Administrator, pursuant to the election of the
Participant, shall direct the Trustee to distribute to a
Participant or his Beneficiary any amount to which he is entitled
under the Plan in one or more of the following methods
(1) One lump-sum payment in cash or in property;
(2) Payments over a period certain in monthly, quarterly,
semiannual, or annual cash installments. In order to provide
such installment payments, the Administrator may (A)
segregate the aggregate amount thereof in a separate,
federally insured savings account, certificate of deposit in
a bank or savings and loan association, money market
certificate or other liquid short-term security or (B)
purchase a nontransferable annuity contract for a term
certain (with no life contingencies) providing for such
payment. The period over which such payment is to be made
shall not extend beyond the Participant's life expectancy (or
the life expectancy of the Participant and his designated
Beneficiary).
(b) Any distribution to a Participant who has a benefit which
exceeds, or has ever exceeded, $3,500 at the time of any prior
distribution shall require such Participant's consent if such
distribution commences prior to the later of his Normal Retirement
Age or age 62. With regard to this required consent:
(1) The Participant must be informed of his right to
defer receipt of the distribution. If a Participant fails to
consent, it shall be deemed an election to defer the
commencement of payment of any benefit. However, any election
to defer the receipt of benefits shall not apply with respect
to distributions which are required under Section 6.5(c).
(2) Notice of the rights specified under this paragraph
shall be provided no less than 30 days and no more than 90
days before the first day on which all events have occurred
which entitle the Participant to such benefit.
(3) Written consent of the Participant to the
distribution must not be made before the Participant receives
the notice and must not be made more than 90 days before the
first day on which all events have occurred which entitle the
Participant to such benefit.
(4) No consent shall be valid if a significant detriment
is imposed under the Plan on any Participant who does not
consent to the distribution.
56
If a distribution is one to which Code Sections 401(a)
(11) and 417 do not apply, such distribution may commence less
than 30 days after the notice required under Regulation
1.411(a)-11(c) is given, provided that: (1) the Administrator
clearly informs the Participant that the Participant has a right
to a period of at least 30 days after receiving the notice to
consider the decision of whether or not to elect a distribution
(and, if applicable, a particular distribution option), and (2)
the Participant, after receiving the notice, affirmatively elects
a distribution.
(c) Notwithstanding any provision in the Plan to the
contrary, the distribution of a Participant's benefits shall be
made in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the Regulations
thereunder (including Regulation 1.401(a)(9)-2), the provisions of
which are incorporated herein by reference:
(1) A Participant's benefits shall be distributed to him
not later than April 1st of the calendar year following 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 retires, provided, however, that this clause (ii)
shall not apply in the case of a Participant who is a "five
(5) percent owner" at any time during the five (5) Plan Year
period ending in the calendar year in which he attains age 70
1/2 or, in the case of a Participant who becomes a "five (5)
percent owner" during any subsequent Plan Year, clause (ii)
shall no longer apply and the required beginning date shall
be the April 1st of the calendar year following the calendar
year in which such subsequent Plan Year ends. Alternatively,
distributions to a Participant must begin no later than the
applicable April 1st as determined under the preceding
sentence and must be made over a period certain measured by
the life expectancy of the Participant (or the life
expectancies of the Participant and his designated
Beneficiary) in accordance with Regulations. Notwithstanding
the foregoing, clause (ii) above shall not apply to any
Participant unless the Participant had attained age 70 1/2
before January 1, 1988 and was not a "five (5) percent owner"
at any time during the Plan Year ending with or within the
calendar year in which the Participant attained age 66 1/2 or
any subsequent Plan Year.
(2) Distributions to a Participant and his Beneficiaries
shall only be made in accordance with the incidental death
benefit requirements of Code Section 401(a)(9)(G) and the
Regulations thereunder.
Additionally, for calendar years beginning before 1989,
distributions may also be made under an alternative method
which provides that the then present value of the payments to
be made over the period of the Participant's life expectancy
exceeds fifty percent (50%) of the then present value of the
total payments to be made to the Participant and his
Beneficiaries.
57
(d) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the election of the
Participant or the Participant's spouse, be redetermined in
accordance with Regulations. The election, once made, shall be
irrevocable. If no election is made by the time distributions must
commence, then the life expectancy of the Participant and the
Participant's spouse shall not be subject to recalculation. Life
expectancy and joint and last survivor expectancy shall be
computed using the return multiples in Tables V and VI of
Regulation 1.72-9.
(e) All annuity Contracts under this Plan shall be
non-transferable when distributed. Furthermore, the terms of any
annuity Contract purchased and distributed to a Participant or
spouse shall comply with all of the requirements of the Plan.
(f) If a distribution is made at a time when a Participant is
not fully Vested in his Participant's Account (employment has not
terminated) and the Participant may increase the Vested percentage
in such account:
(1) a separate account shall be established for the
Participant's interest in the Plan as of the time of the
distribution; and
(2) at any relevant time, the Participant's Vested
portion of the separate account shall be equal to an amount
("X") determined by the formula:
X equals P(AB plus (R x D)) - (R x D)
For purposes of applying the formula: P is the Vested
percentage at the relevant time, AB is the account balance at
the relevant time, D is the amount of distribution, and R is
the ratio of the account balance at the relevant time to the
account balance after distribution.
6.6 DISTRIBUTION OF BENEFITS UPON DEATH
(a) (1) The death benefit payable pursuant to Section 6.2
shall be paid to the Participant's Beneficiary within a reasonable
time after the Participant's death by either of the following
methods, as elected by the Participant (or if no election has been
made prior to the Participant's death, by his Beneficiary)
subject, however, to the rules specified in Section 6.6(b):
(i) One lump-sum payment in cash or in property;
(ii) Payment in monthly, quarterly, semi-annual, or
annual cash installments over a period to be determined by
the Participant or his Beneficiary. After periodic
installments commence, the Beneficiary shall have the right
to direct the Trustee to reduce the period over which such
periodic installments
58
shall be made, and the Trustee shall adjust the cash amount
of such periodic installments accordingly.
(2) In the event the death benefit payable pursuant to
Section 6.2 is payable in installments, then, upon the death of
the Participant, the Administrator may direct the Trustee to
segregate the death benefit into a separate account, and the
Trustee shall invest such segregated account separately, and the
funds accumulated in such account shall be used for the payment of
the installments.
(b) Notwithstanding any provision in the Plan to the
contrary, distributions upon the death of a Participant shall be
made in accordance with the following requirements and shall
otherwise comply with Code Section 401(a)(9) and the Regulations
thereunder. If it is determined pursuant to Regulations that the
distribution of a Participant's interest has begun and the
Participant dies before his entire interest has been distributed
to him, the remaining portion of such interest shall be
distributed at least as rapidly as under the method of
distribution selected pursuant to Section 6.5 as of his date of
death. If a Participant dies before he has begun to receive any
distributions of his interest under the Plan or before
distributions are deemed to have begun pursuant to Regulations,
then his death benefit shall be distributed to his Beneficiaries
by December 31st of the calendar year in which the fifth
anniversary of his date of death occurs.
However, the 5-year distribution requirement of the preceding
paragraph shall not apply to any portion of the deceased
Participant's interest which is payable to or for the benefit of a
designated Beneficiary. In such event, such portion may, at the
election of the Participant (or the Participant's designated
Beneficiary), be distributed over a period not extending beyond
the life expectancy of such designated Beneficiary provided such
distribution begins not later than December 31st of the calendar
year immediately following the calendar year in which the
Participant died. However, in the event the Participant's spouse
(determined as of the date of the Participant's death) is his
Beneficiary, the requirement that distributions commence within
one year of a Participant's death shall not apply. In lieu
thereof, distributions must commence on or before the later of:
(1) December 31st of the calendar year immediately following the
calendar year in which the Participant died; or (2) December 31st
of the calendar year in which the Participant would have attained
age 70 1/2. If the surviving spouse dies before distributions to
such spouse begin, then the 5-year distribution requirement of
this Section shall apply as if the spouse was the Participant.
(c) For purposes of Section 6.6(b), the election by a
designated Beneficiary to be excepted from the 5-year distribution
requirement must be made no later than December 31st of the
calendar year following the calendar year of the Participant's
death. Except, however, with respect to a designated Beneficiary
who is the Participant's surviving spouse, the election must be
made by the earlier of: (1) December 31st of the calendar year
immediately following the calendar year in which the Participant
died or, if later, the calendar year in which the
59
Participant would have attained age 70 1/2; or (2) December 31st
of the calendar year which contains the fifth anniversary of the
date of the Participant's death. An election by a designated
Beneficiary must be in writing and shall be irrevocable as of the
last day of the election period stated herein. In the absence of
an election by the Participant or a designated Beneficiary, the
5-year distribution requirement shall apply.
(d) For purposes of this Section, the life expectancy of a
Participant and a Participant's spouse may, at the election of the
Participant or the Participant's spouse, be redetermined in
accordance with Regulations. The election, once made, shall be
irrevocable. If no election is made by the time distributions must
commence, then the life expectancy of the Participant and the
Participant's spouse shall not be subject to recalculation. Life
expectancy and joint and last survivor expectancy shall be
computed using the return multiples in Tables V and VI of
Regulation 1.72-9.
6.7 TIME OF SEGREGATION OR DISTRIBUTION
Except as limited by Sections 6.5 and 6.6, whenever the Trustee is
to make a distribution or to commence a series of payments on or as of an
Anniversary Date, the distribution or series of payments may be made or begun on
such date or as soon thereafter as is practicable. However, unless a Former
Participant elects in writing to defer the receipt of benefits (such election
may not result in a death benefit that is more than incidental), the payment of
benefits shall begin not later than the 60th day after the close of the Plan
Year in which the latest of the following events occurs: (a) the date on which
the Participant attains the earlier of age 65 or the Normal Retirement Age
specified herein; (b) the 10th anniversary of the year in which the Participant
commenced participation in the Plan; or (c) the date the Participant terminates
his service with the Employer.
6.8 DISTRIBUTION FOR MINOR BENEFICIARY
In the event a distribution is to be made to a minor, then the
Administrator may direct that such distribution be paid to the legal guardian,
or if none, to a parent of such Beneficiary or a responsible adult with whom the
Beneficiary maintains his residence, or to the custodian for such Beneficiary
under the Uniform Gift to Minors Act or Gift to Minors Act, if such is permitted
by the laws of the state in which said Beneficiary resides. Such a payment to
the legal guardian, custodian or parent of a minor Beneficiary shall fully
discharge the Trustee, Employer, and Plan from further liability on account
thereof.
6.9 LOCATION OF PARTICIPANT OR BENEFICIARY UNKNOWN
In the event that all, or any portion, of the distribution payable
to a Participant or his Beneficiary hereunder shall, at the later of the
Participant's attainment of age 62 or his Normal Retirement Age, remain unpaid
solely by reason of the inability of the Administrator, after sending a
registered letter, return receipt requested, to the last known address, and
after further diligent effort, to ascertain the whereabouts of such Participant
or his Beneficiary, the amount so distributable shall be treated as a Forfeiture
pursuant to the Plan. In the event a
60
Participant or Beneficiary is located subsequent to his benefit being
reallocated, such benefit shall be restored.
6.10 PRE-RETIREMENT DISTRIBUTION
At such time as a Participant shall have attained the age of 59
1/2 years, the Administrator, at the election of the Participant, shall direct
the Trustee to distribute all or a portion of the amount then credited to the
accounts maintained on behalf of the Participant. However, no distribution from
the Participant's Account shall occur prior to 100% vesting. In the event that
the Administrator makes such a distribution, the Participant shall continue to
be eligible to participate in the Plan on the same basis as any other Employee.
Any distribution made pursuant to this Section shall be made in a manner
consistent with Section 6.5, including, but not limited to, all notice and
consent requirements of Code Section 411(a)(11) and the Regulations thereunder.
Notwithstanding the above, pre-retirement distributions from a
Participant's Elective Account shall not be permitted prior to the Participant
attaining age 59 1/2 except as otherwise permitted under the terms of the Plan.
6.11 ADVANCE DISTRIBUTION FOR HARDSHIP
(a) The Administrator, at the election of the Participant,
shall direct the Trustee to distribute to any Participant in any
one Plan Year up to the lesser of 100% of his Participant's
Elective Account valued as of the last Anniversary Date or other
valuation date or the amount necessary to satisfy the immediate
and heavy financial need of the Participant. Any distribution made
pursuant to this Section shall be deemed to be made as of the
first day of the Plan Year or, if later, the valuation date
immediately preceding the date of distribution, and the
Participant's Elective Account shall be reduced accordingly.
Withdrawal under this Section shall be authorized only if the
distribution is on account of:
(1) Expenses for medical care described in Code Section
213(d) previously incurred by the Participant, his spouse, or
any of his dependents (as defined in Code Section 152) or
necessary for these persons to obtain medical care;
(2) The costs directly related to the purchase of a
principal residence for the Participant (excluding mortgage
payments);
(3) Payment of tuition and related educational fees for
the next twelve (12) months of post-secondary education for
the Participant, his spouse, children, or dependents; or
(4) Payments necessary to prevent the eviction of the
Participant from his principal residence or foreclosure on
the mortgage of the Participant's principal residence.
61
(b) No distribution shall be made pursuant to this Section
unless the Administrator, based upon the Participant's
representation and such other facts as are known to the
Administrator, determines that all of the following conditions are
satisfied:
(1) The distribution is not in excess of the amount of
the immediate and heavy financial need of the Participant.
The amount of the immediate and heavy financial need may
include any amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to
result from the distribution;
(2) The Participant has obtained all distributions, other
than hardship distributions, and all nontaxable (at the time
of the loan) loans currently available under all plans
maintained by the Employer;
(3) The Plan, and all other plans maintained by the
Employer, provide that the Participant's elective deferrals
and voluntary Employee contributions will be suspended for at
least twelve (12) months after receipt of the hardship
distribution or, the Participant, pursuant to a legally
enforceable agreement, will suspend his elective deferrals
and voluntary Employee contributions to the Plan and all
other plans maintained by the Employer for at least twelve
(12) months after receipt of the hardship distribution; and
(4) The Plan, and all other plans maintained by the
Employer, provide that the Participant may not make elective
deferrals for the Participant's taxable year immediately
following the taxable year of the hardship distribution in
excess of the applicable limit under Code Section 402(g) for
such next taxable year less the amount of such Participant's
elective deferrals for the taxable year of the hardship
distribution.
(c) Notwithstanding the above, for Plan Years beginning after
December 31, 1988, distributions from the Participant's Elective
Account pursuant to this Section shall be limited, as of the date
of distribution, to the Participant's Elective Account as of the
end of the last Plan Year ending before July 1, 1989, plus the
total Participant's Deferred Compensation after such date, reduced
by the amount of any previous distributions pursuant to this
Section and Section 6.10.
(d) Any distribution made pursuant to this Section shall be
made in a manner which is consistent with and satisfies the
provisions of Section 6.5, including, but not limited to, all
notice and consent requirements of Code Section 411(a)(11) and the
Regulations thereunder.
6.12 QUALIFIED DOMESTIC RELATIONS ORDER DISTRIBUTION
All rights and benefits, including elections, provided to a
Participant in this Plan shall be subject to the rights afforded to any
"alternate payee" under a "qualified domestic
62
relations order." Furthermore, a distribution to an "alternate payee" shall be
permitted if such distribution is authorized by a "qualified domestic relations
order," even if the affected Participant has not separated from service and has
not reached the "earliest retirement age" under the Plan. For the purposes of
this Section, "alternate payee," "qualified domestic relations order" and
"earliest retirement age" shall have the meaning set forth under Code Section
414(p).
Article VII
TRUSTEE
7.1 BASIC RESPONSIBILITIES OF THE TRUSTEE
The Trustee shall have the following categories of
responsibilities:
(a) Consistent with the "funding policy and method"
determined by the Employer, to invest, manage, and control the
Plan assets subject, however, to the direction of an Investment
Manager if the Trustee should appoint such manager as to all or a
portion of the assets of the Plan;
(b) At the direction of the Administrator, to pay benefits
required under the Plan to be paid to Participants, or, in the
event of their death, to their Beneficiaries;
(c) To maintain records of receipts and disbursements and
furnish to the Employer and/or Administrator for each Plan Year a
written annual report per Section 7.7; and
(d) If there shall be more than one Trustee, they shall act
by a majority of their number, but may authorize one or more of
them to sign papers on their behalf.
7.2 INVESTMENT POWERS AND DUTIES OF THE TRUSTEE
(a) The Trustee shall invest and reinvest the Trust Fund to
keep the Trust Fund invested without distinction between principal
and income and in such securities or property, real or personal,
wherever situated, as the Trustee shall deem advisable, including,
but not limited to, stocks, common or preferred, bonds and other
evidences of indebtedness or ownership, and real estate or any
interest therein. The Trustee shall at all times in making
investments of the Trust Fund consider, among other factors, the
short and long-term financial needs of the Plan on the basis of
information furnished by the Employer. In making such investments,
the Trustee shall not be restricted to securities or other
property of the character expressly authorized by the applicable
law for trust investments; however, the Trustee shall give due
regard to any limitations imposed by the Code or the Act so that
at all times the Plan may qualify as a qualified Profit Sharing
Plan and Trust.
(b) The Trustee may employ a bank or trust company pursuant
to the terms of its usual and customary bank agency agreement,
under which the duties
63
of such bank or trust company shall be of a custodial, clerical
and record-keeping nature.
(c) The Trustee, at the direction of the Administrator, shall
ratably apply for, own, and pay premiums on Contracts on the lives
of the Participants. If a life insurance policy is to be purchased
for a Participant, the aggregate premium for ordinary life
insurance for each Participant must be less than 50% of the
aggregate of the contributions and Forfeitures to the credit of
the Participant at any particular time. If term insurance is
purchased with such contributions, the aggregate premium must be
less than 25% of the aggregate contributions and Forfeitures
allocated to a Participant's Combined Account. If both term
insurance and ordinary life insurance are purchased with such
contributions, the amount expended for term insurance plus
one-half of the premium for ordinary life insurance may not in the
aggregate exceed 25% of the aggregate contributions and
Forfeitures allocated to a Participant's Combined Account. The
Trustee must convert the entire value of the life insurance
contracts at or before retirement into cash or provide for a
periodic income so that no portion of such value may be used to
continue life insurance protection beyond retirement, or
distribute the Contracts to the Participant. In the event of any
conflict between the terms of this Plan and the terms of any
insurance Contract purchased hereunder, the Plan provisions shall
control.
7.3 OTHER POWERS OF THE TRUSTEE
The Trustee, in addition to all powers and authorities under
common law, statutory authority, including the Act, and other provisions of the
Plan, shall have the following powers and authorities, to be exercised in the
Trustee's sole discretion:
(a) To purchase, or subscribe for, any securities or other
property and to retain the same. In conjunction with the purchase
of securities, margin accounts may be opened and maintained;
(b) To sell, exchange, convey, transfer, grant options to
purchase, or otherwise dispose of any securities or other property
held by the Trustee, by private contract or at public auction. No
person dealing with the Trustee shall be bound to see to the
application of the purchase money or to inquire into the validity,
expediency, or propriety of any such sale or other disposition,
with or without advertisement;
(c) To vote upon any stocks, bonds, or other securities; to
give general or special proxies or powers of attorney with or
without power of substitution; to exercise any conversion
privileges, subscription rights or other options, and to make any
payments incidental thereto; to oppose, or to consent to, or
otherwise participate in, corporate reorganizations or other
changes affecting corporate securities, and to delegate
discretionary powers, and to pay any assessments or charges in
connection therewith; and generally to exercise any of the powers
of an owner with respect to stocks, bonds, securities, or other
property;
64
(d) To cause any securities or other property to be
registered in the Trustee's own name or in the name of one or more
of the Trustee's nominees, and to hold any investments in bearer
form, but the books and records of the Trustee shall at all times
show that all such investments are part of the Trust Fund;
(e) To borrow or raise money for the purposes of the Plan in
such amount, and upon such terms and conditions, as the Trustee
shall deem advisable; and for any sum so borrowed, to issue a
promissory note as Trustee, and to secure the repayment thereof by
pledging all, or any part, of the Trust Fund; and no person
lending money to the Trustee shall be bound to see to the
application of the money lent or to inquire into the validity,
expediency, or propriety of any borrowing;
(f) To keep such portion of the Trust Fund in cash or cash
balances as the Trustee may, from time to time, deem to be in the
best interests of the Plan, without liability for interest
thereon; (g) To accept and retain for such time as the Trustee may
deem advisable any securities or other property received or
acquired as Trustee hereunder, whether or not such securities or
other property would normally be purchased as investments
hereunder;
(h) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
(i) To settle, compromise, or submit to arbitration any
claims, debts, or damages due or owing to or from the Plan, to
commence or defend suits or legal or administrative proceedings,
and to represent the Plan in all suits and legal and
administrative proceedings;
(j) To employ suitable agents and counsel and to pay their
reasonable expenses and compensation, and such agent or counsel
may or may not be agent or counsel for the Employer;
(k) To apply for and procure from responsible insurance
companies, to be selected by the Administrator, as an investment
of the Trust Fund such annuity, or other Contracts (on the life of
any Participant) as the Administrator shall deem proper; to
exercise, at any time or from time to time, whatever rights and
privileges may be granted under such annuity, or other Contracts;
to collect, receive, and settle for the proceeds of all such
annuity or other Contracts as and when entitled to do so under the
provisions thereof;
(l) To invest funds of the Trust in time deposits or savings
accounts bearing a reasonable rate of interest in the Trustee's
bank;
(m) To invest in Treasury Bills and other forms of United
States government obligations;
65
(n) To invest in shares of investment companies registered
under the Investment Company Act of 1940;
(o) To sell, purchase and acquire put or call options if the
options are traded on and purchased through a national securities
exchange registered under the Securities Exchange Act of 1934, as
amended, or, if the options are not traded on a national
securities exchange, are guaranteed by a member firm of the New
York Stock Exchange;
(p) To deposit monies in federally insured savings accounts
or certificates of deposit in banks or savings and loan
associations;
(q) To pool all or any of the Trust Fund, from time to time,
with assets belonging to any other qualified employee pension
benefit trust created by the Employer or an affiliated company of
the Employer, and to commingle such assets and make joint or
common investments and carry joint accounts on behalf of this Plan
and such other trust or trusts, allocating undivided shares or
interests in such investments or accounts or any pooled assets of
the two or more trusts in accordance with their respective
interests;
(r) To do all such acts and exercise all such rights and
privileges, although not specifically mentioned herein, as the
Trustee may deem necessary to carry out the purposes of the Plan.
(s) Directed Investment Account. The powers granted to the
Trustee shall be exercised in the sole fiduciary discretion of the
Trustee. However, if Participants are so empowered by the
Administrator, each Participant may direct the Trustee to separate
and keep separate all or a portion of his account; and further
each Participant is authorized and empowered, in his sole and
absolute discretion, to give directions to the Trustee pursuant to
the procedure established by the Administrator and in such form as
the Trustee may require concerning the investment of the
Participant's Directed Investment Account. The Trustee shall
comply as promptly as practicable with directions given by the
Participant hereunder. The Trustee may refuse to comply with any
direction from the Participant in the event the Trustee, in its
sole and absolute discretion, deems such directions improper by
virtue of applicable law. The Trustee shall not be responsible or
liable for any loss or expense which may result from the Trustee's
refusal or failure to comply with any directions from the
Participant. Any costs and expenses related to compliance with the
Participant's directions shall be borne by the Participant's
Directed Investment Account.
7.4 LOANS TO PARTICIPANTS
(a) The Trustee may, in the Trustee's discretion, make loans
to Participants and Beneficiaries under the following
circumstances: (1) loans shall be made available to all
Participants and Beneficiaries on a reasonably equivalent basis;
(2) loans shall not be made available to Highly Compensated
Employees in
66
an amount greater than the amount made available to other
Participants and Beneficiaries; (3) loans shall bear a reasonable
rate of interest; (4) loans shall be adequately secured; and (5)
shall provide for repayment over a reasonable period of time.
(b) Loans made pursuant to this Section (when added to the
outstanding balance of all other loans made by the Plan to the
Participant) shall be limited to the lesser of:
(1) $50,000 reduced by the excess (if any) of the highest
outstanding balance of loans from the Plan to the Participant
during the one year period ending on the day before the date
on which such loan is made, over the outstanding balance of
loans from the Plan to the Participant on the date on which
such loan was made, or
(2) one-half (1/2) of the present value of the
non-forfeitable accrued benefit of the Participant under the
Plan.
For purposes of this limit, all plans of the Employer shall
be considered one plan.
(c) Loans shall provide for level amortization with payments
to be made not less frequently than quarterly over a period not to
exceed five (5) years. However, loans 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
Participant shall provide for periodic repayment over a reasonable
period of time that may exceed five (5) years.
(d) Any loans granted or renewed on or after the last day of
the first Plan Year beginning after December 31, 1988 shall be
made pursuant to a Participant loan program. Such loan program
shall be established in writing and must include, but need not be
limited to, the following:
(1) the identity of the person or positions authorized to
administer the Participant loan program;
(2) a procedure for applying for loans;
(3) the basis on which loans will be approved or denied;
(4) limitations, if any, on the types and amounts of
loans offered;
(5) the procedure under the program for determining a
reasonable rate of interest;
(6) the types of collateral which may secure a
Participant loan; and
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(7) the events constituting default and the steps that
will be taken to preserve Plan assets.
Such Participant loan program shall be contained in a
separate written document which, when properly executed, is hereby
incorporated by reference and made a part of the Plan.
Furthermore, such Participant loan program may be modified or
amended in writing from time to time without the necessity of
amending this Section.
7.5 DUTIES OF THE TRUSTEE REGARDING PAYMENTS
At the direction of the Administrator, the Trustee shall, from
time to time, in accordance with the terms of the Plan, make payments out of the
Trust Fund. The Trustee shall not be responsible in any way for the application
of such payments.
7.6 TRUSTEE'S COMPENSATION AND EXPENSES AND TAXES
The Trustee shall be paid such reasonable compensation as shall
from time to time be agreed upon in writing by the Employer and the Trustee. An
individual serving as Trustee who already receives full-time pay from the
Employer shall not receive compensation from the Plan. In addition, the Trustee
shall be reimbursed for any reasonable expenses, including reasonable counsel
fees incurred by it as Trustee. Such compensation and expenses shall be paid
from the Trust Fund unless paid or advanced by the Employer. All taxes of any
kind and all kinds whatsoever that may be levied or assessed under existing or
future laws upon, or in respect of, the Trust Fund or the income thereof, shall
be paid from the Trust Fund.
7.7 ANNUAL REPORT OF THE TRUSTEE
Within a reasonable period of time after the later of the
Anniversary Date or receipt of the Employer's contribution for each Plan Year,
the Trustee shall furnish to the Employer and Administrator a written statement
of account with respect to the Plan Year for which such contribution was made
setting forth:
(a) the net income, or loss, of the Trust Fund;
(b) the gains, or losses, realized by the Trust Fund upon
sales or other disposition of the assets;
(c) the increase, or decrease, in the value of the Trust
Fund;
(d) all payments and distributions made from the Trust Fund;
and
(e) such further information as the Trustee and/or
Administrator deems appropriate. The Employer, forthwith upon its
receipt of each such statement of account, shall acknowledge
receipt thereof in writing and advise the Trustee and/or
Administrator of its approval or disapproval thereof. Failure by
the Employer to disapprove any such statement of account within
thirty (30) days
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after its receipt thereof shall be deemed an approval thereof. The
approval by the Employer of any statement of account shall be
binding as to all matters embraced therein as between the Employer
and the Trustee to the same extent as if the account of the
Trustee had been settled by judgment or decree in an action for a
judicial settlement of its account in a court of competent
jurisdiction in which the Trustee, the Employer and all persons
having or claiming an interest in the Plan were parties; provided,
however, that nothing herein contained shall deprive the Trustee
of its right to have its accounts judicially settled if the
Trustee so desires.
7.8 AUDIT
(a) If an audit of the Plan's records shall be required by
the Act and the regulations thereunder for any Plan Year, the
Administrator shall direct the Trustee to engage on behalf of all
Participants an independent qualified public accountant for that
purpose. Such accountant shall, after an audit of the books and
records of the Plan in accordance with generally accepted auditing
standards, within a reasonable period after the close of the Plan
Year, furnish to the Administrator and the Trustee a report of his
audit setting forth his opinion as to whether any statements,
schedules or lists that are required by Act Section 103 or the
Secretary of Labor to be filed with the Plan's annual report, are
presented fairly in conformity with generally accepted accounting
principles applied consistently. All auditing and accounting fees
shall be an expense of and may, at the election of the
Administrator, be paid from the Trust Fund.
(b) If some or all of the information necessary to enable the
Administrator to comply with Act Section 103 is maintained by a
bank, insurance company, or similar institution, regulated and
supervised and subject to periodic examination by a state or
federal agency, it shall transmit and certify the accuracy of that
information to the Administrator as provided in Act Section 103(b)
within one hundred twenty (120) days after the end of the Plan
Year or by such other date as may be prescribed under regulations
of the Secretary of Labor.
7.9 RESIGNATION, REMOVAL AND SUCCESSION OF TRUSTEE
(a) The Trustee may resign at any time by delivering to the
Employer, at least thirty (30) days before its effective date, a
written notice of his resignation.
(b) The Employer may remove the Trustee by mailing by
registered or certified mail, addressed to such Trustee at his
last known address, at least thirty (30) days before its effective
date, a written notice of his removal.
(c) Upon the death, resignation, incapacity, or removal of
any Trustee, a successor may be appointed by the Employer; and
such successor, upon accepting such appointment in writing and
delivering same to the Employer, shall, without further act,
become vested with all the estate, rights, powers, discretions,
and duties of his predecessor with like respect as if he were
originally named as a
69
Trustee herein. Until such a successor is appointed, the remaining
Trustee or Trustees shall have full authority to act under the
terms of the Plan.
(d) The Employer may designate one or more successors prior
to the death, resignation, incapacity, or removal of a Trustee. In
the event a successor is so designated by the Employer and accepts
such designation, the successor shall, without further act, become
vested with all the estate, rights, powers, discretions, and
duties of his predecessor with the like effect as if he were
originally named as Trustee herein immediately upon the death,
resignation, incapacity, or removal of his predecessor.
(e) Whenever any Trustee hereunder ceases to serve as such,
he shall furnish to the Employer and Administrator a written
statement of account with respect to the portion of the Plan Year
during which he served as Trustee. This statement shall be either
(i) included as part of the annual statement of account for the
Plan Year required under Section 7.7 or (ii) set forth in a
special statement. Any such special statement of account should be
rendered to the Employer no later than the due date of the annual
statement of account for the Plan Year. The procedures set forth
in Section 7.7 for the approval by the Employer of annual
statements of account shall apply to any special statement of
account rendered hereunder and approval by the Employer of any
such special statement in the manner provided in Section 7.7 shall
have the same effect upon the statement as the Employer's approval
of an annual statement of account. No successor to the Trustee
shall have any duty or responsibility to investigate the acts or
transactions of any predecessor who has rendered all statements of
account required by Section 7.7 and this subparagraph.
7.10 TRANSFER OF INTEREST
Notwithstanding any other provision contained in this Plan, the
Trustee at the direction of the Administrator shall transfer the Vested
interest, if any, of such Participant in his account to another trust forming
part of a pension, profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by said employer in writing as
meeting the requirements of Code Section 401(a), provided that the trust to
which such transfers are made permits the transfer to be made.
7.11 DIRECT ROLLOVER
(a) This Section applies to distributions made on or after
January 1, 1993. Notwithstanding any provision of the Plan to the
contrary that would otherwise limit a distributee's election under
this Section, a distributee may elect, at the time and in the
manner prescribed by the 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.
(b) For purposes of this Section the following definitions
shall apply:
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(1) 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 Code Section 401(a)(9); 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).
(2) An eligible retirement plan is an individual
retirement account described in Code Section 408(a), an
individual retirement annuity described in Code Section
408(b), an annuity plan described in Code Section 403(a), or
a qualified trust described in Code Section 401(a), that
accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to
the surviving spouse, an eligible retirement plan is an
individual retirement account or individual retirement
annuity.
(3) 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 Code
Section 414(p), are distributees with regard to the interest
of the spouse or former spouse.
(4) A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
Article VIII
AMENDMENT, TERMINATION AND MERGERS
8.1 AMENDMENT
(a) The Employer shall have the right at any time to amend
the Plan, subject to the limitations of this Section. Any such
amendment shall be adopted by formal action of the Employer's
board of directors and executed by an officer authorized to act on
behalf of the Employer. However, any amendment which affects the
rights, duties or responsibilities of the Trustee and
Administrator may only be made with the Trustee's and
Administrator's written consent. Any such amendment shall become
effective as provided therein upon its execution. The Trustee
shall not be required to execute any such amendment unless the
Trust provisions contained herein are a part of the Plan and the
amendment affects the duties of the Trustee hereunder.
71
(b) No amendment to the Plan shall be effective if it
authorizes or permits any part of the Trust Fund (other than such
part as is required to pay taxes and administration expenses) to
be used for or diverted to any purpose other than for the
exclusive benefit of the Participants or their Beneficiaries or
estates; or causes any reduction in the amount credited to the
account of any Participant; or causes or permits any portion of
the Trust Fund to revert to or become property of the Employer.
(c) Except as permitted by Regulations, no Plan amendment or
transaction having the effect of a Plan amendment (such as a
merger, plan transfer or similar transaction) shall be effective
to the extent it eliminates or reduces any "Section 411(d)(6)
protected benefit" or adds or modifies conditions relating to
"Section 411(d)(6) protected benefits" the result of which is a
further restriction on such benefit unless such protected benefits
are preserved with respect to benefits accrued as of the later of
the adoption date or effective date of the amendment. "Section
411(d)(6) protected benefits" are benefits described in Code
Section 411(d)(6)(A), early retirement benefits and
retirement-type subsidies, and optional forms of benefit.
8.2 TERMINATION
(a) The Employer shall have the right at any time to
terminate the Plan by delivering to the Trustee and Administrator
written notice of such termination. Upon any full or partial
termination, all amounts credited to the affected Participants'
Combined Accounts shall become 100% Vested as provided in Section
6.4 and shall not thereafter be subject to forfeiture, and all
unallocated amounts shall be allocated to the accounts of all
Participants in accordance with the provisions hereof.
(b) Upon the full termination of the Plan, the Employer shall
direct the distribution of the assets of the Trust Fund to
Participants in a manner which is consistent with and satisfies
the provisions of Section 6.5. Distributions to a Participant
shall be made in cash or in property or through the purchase of
irrevocable nontransferable deferred commitments from an insurer.
Except as permitted by Regulations, the termination of the Plan
shall not result in the reduction of "Section 411(d)(6) protected
benefits" in accordance with Section 8.1(c).
8.3 MERGER OR CONSOLIDATION
This Plan and Trust may be merged or consolidated with, or its
assets and/or liabilities may be transferred to any other plan and trust only if
the benefits which would be received by a Participant of this Plan, in the event
of a termination of the plan immediately after such transfer, merger or
consolidation, are at least equal to the benefits the Participant would have
received if the Plan had terminated immediately before the transfer, merger or
consolidation, and such transfer, merger or consolidation does not otherwise
result in the
72
elimination or reduction of any "Section 411(d)(6) protected benefits" in
accordance with Section 8.1(c).
Article IX
MISCELLANEOUS
9.1 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute a contract between the
Employer and any Participant or to be a consideration or an inducement for the
employment of any Participant or Employee. Nothing contained in this Plan shall
be deemed to give any Participant or Employee the right to be retained in the
service of the Employer or to interfere with the right of the Employer to
discharge any Participant or Employee at any time regardless of the effect which
such discharge shall have upon him as a Participant of this Plan.
9.2 ALIENATION
(a) Subject to the exceptions provided below, no benefit
which shall be payable out of the Trust Fund to any person
(including a Participant or his Beneficiary) shall be subject in
any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber, or
charge the same shall be void; and no such benefit shall in any
manner be liable for, or subject to, the debts, contracts,
liabilities, engagements, or torts of any such person, nor shall
it be subject to attachment or legal process for or against such
person, and the same shall not be recognized by the Trustee,
except to such extent as may be required by law.
(b) This provision shall not apply to the extent a
Participant or Beneficiary is indebted to the Plan, as a result of
a loan from the Plan. At the time a distribution is to be made to
or for a Participant's or Beneficiary's benefit, such proportion
of the amount distributed as shall equal such loan indebtedness
shall be paid by the Trustee to the Trustee or the Administrator,
at the direction of the Administrator, to apply against or
discharge such loan indebtedness. Prior to making a payment,
however, the Participant or Beneficiary must be given written
notice by the Administrator that such loan indebtedness is to be
so paid in whole or part from his Participant's Combined Account.
If the Participant or Beneficiary does not agree that the loan
indebtedness is a valid claim against his Vested Participant's
Combined Account, he shall be entitled to a review of the validity
of the claim in accordance with procedures provided in Sections
2.12 and 2.13.
(c) This provision shall not apply to a "qualified domestic
relations order" defined in Code Section 414(p), and those other
domestic relations orders permitted to be so treated by the
Administrator under the provisions of the Retirement Equity Act of
1984. The Administrator shall establish a written procedure to
determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to
the extent
73
provided under a "qualified domestic relations order," a former
spouse of a Participant shall be treated as the spouse or
surviving spouse for all purposes under the Plan.
9.3 CONSTRUCTION OF PLAN
This Plan and Trust shall be construed and enforced according to
the Act and the laws of the State of Arizona, other than its laws respecting
choice of law, to the extent not preempted by the Act.
9.4 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or
neuter gender, they shall be construed as though they were also used in another
gender in all cases where they would so apply, and whenever any words are used
herein in the singular or plural form, they shall be construed as though they
were also used in the other form in all cases where they would so apply.
9.5 LEGAL ACTION
In the event any claim, suit, or proceeding is brought regarding
the Trust and/or Plan established hereunder to which the Trustee or the
Administrator may be a party, and such claim, suit, or proceeding is resolved in
favor of the Trustee or Administrator, they shall be entitled to be reimbursed
from the Trust Fund for any and all costs, attorney's fees, and other expenses
pertaining thereto incurred by them for which they shall have become liable.
9.6 PROHIBITION AGAINST DIVERSION OF FUNDS
(a) Except as provided below and otherwise specifically
permitted by law, it shall be impossible by operation of the Plan
or of the Trust, by termination of either, by power of revocation
or amendment, by the happening of any contingency, by collateral
arrangement or by any other means, for any part of the corpus or
income of any trust fund maintained pursuant to the Plan or any
funds contributed thereto to be used for, or diverted to, purposes
other than the exclusive benefit of Participants, Retired
Participants, or their Beneficiaries.
(b) In the event the Employer shall make an excessive
contribution under a mistake of fact pursuant to Act Section
403(c)(2)(A), the Employer may demand repayment of such excessive
contribution at any time within one (1) year following the time of
payment and the Trustees shall return such amount to the Employer
within the one (1) year period. Earnings of the Plan attributable
to the excess contributions may not be returned to the Employer
but any losses attributable thereto must reduce the amount so
returned.
9.7 BONDING
Every Fiduciary, except a bank or an insurance company, unless
exempted by the Act and regulations thereunder, shall be bonded in an amount not
less than 10% of the amount of
74
the funds such Fiduciary handles; provided, however, that the minimum bond shall
be $1,000 and the maximum bond, $500,000. The amount of funds handled shall be
determined at the beginning of each Plan Year by the amount of funds handled by
such person, group, or class to be covered and their predecessors, if any,
during the preceding Plan Year, or if there is no preceding Plan Year, then by
the amount of the funds to be handled during the then current year. The bond
shall provide protection to the Plan against any loss by reason of acts of fraud
or dishonesty by the Fiduciary alone or in connivance with others. The surety
shall be a corporate surety company (as such term is used in Act Section
412(a)(2)), and the bond shall be in a form approved by the Secretary of Labor.
Notwithstanding anything in the Plan to the contrary, the cost of such bonds
shall be an expense of and may, at the election of the Administrator, be paid
from the Trust Fund or by the Employer.
9.8 EMPLOYER'S AND TRUSTEE'S PROTECTIVE CLAUSE
Neither the Employer nor the Trustee, nor their successors, shall
be responsible for the validity of any Contract issued hereunder or for the
failure on the part of the insurer to make payments provided by any such
Contract, or for the action of any person which may delay payment or render a
Contract null and void or unenforceable in whole or in part.
9.9 INSURER'S PROTECTIVE CLAUSE
Any insurer who shall issue Contracts hereunder shall not have any
responsibility for the validity of this Plan or for the tax or legal aspects of
this Plan. The insurer shall be protected and held harmless in acting in
accordance with any written direction of the Trustee, and shall have no duty to
see to the application of any funds paid to the Trustee, nor be required to
question any actions directed by the Trustee. Regardless of any provision of
this Plan, the insurer shall not be required to take or permit any action or
allow any benefit or privilege contrary to the terms of any Contract which it
issues hereunder, or the rules of the insurer.
9.10 RECEIPT AND RELEASE FOR PAYMENTS
Any payment to any Participant, his legal representative,
Beneficiary, or to any guardian or committee appointed for such Participant or
Beneficiary in accordance with the provisions of the Plan, shall, to the extent
thereof, be in full satisfaction of all claims hereunder against the Trustee and
the Employer, either of whom may require such Participant, legal representative,
Beneficiary, guardian or committee, as a condition precedent to such payment, to
execute a receipt and release thereof in such form as shall be determined by the
Trustee or Employer.
9.11 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or
required to do or perform any act or matter or thing, it shall be done and
performed by a person duly authorized by its legally constituted authority.
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9.12 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
The "named Fiduciaries" of this Plan are (1) the Employer, (2) the
Administrator and (3) the Trustee. The named Fiduciaries shall have only those
specific powers, duties, responsibilities, and obligations as are specifically
given them under the Plan. In general, the Employer shall have the sole
responsibility for making the contributions provided for under Section 4.1; and
shall have the sole authority to appoint and remove the Trustee and the
Administrator; to formulate the Plan's "funding policy and method"; and to amend
or terminate, in whole or in part, the Plan. The Administrator shall have the
sole responsibility for the administration of the Plan, which responsibility is
specifically described in the Plan. The Trustee shall have the sole
responsibility of management of the assets held under the Trust, except those
assets, the management of which has been assigned to an Investment Manager, who
shall be solely responsible for the management of the assets assigned to it, all
as specifically provided in the Plan. Each named Fiduciary warrants that any
directions given, information furnished, or action taken by it shall be in
accordance with the provisions of the Plan, authorizing or providing for such
direction, information or action. Furthermore, each named Fiduciary may rely
upon any such direction, information or action of another named Fiduciary as
being proper under the Plan, and is not required under the Plan to inquire into
the propriety of any such direction, information or action. It is intended under
the Plan that each named Fiduciary shall be responsible for the proper exercise
of its own powers, duties, responsibilities and obligations under the Plan. No
named Fiduciary shall guarantee the Trust Fund in any manner against investment
loss or depreciation in asset value. Any person or group may serve in more than
one Fiduciary capacity. In the furtherance of their responsibilities hereunder,
the "named Fiduciaries" shall be empowered to interpret the Plan and Trust and
to resolve ambiguities, inconsistencies and omissions, which findings shall be
binding, final and conclusive.
9.13 HEADINGS
The headings and subheadings of this Plan have been inserted for
convenience of reference and are to be ignored in any construction of the
provisions hereof.
9.14 APPROVAL BY INTERNAL REVENUE SERVICE
(a) Notwithstanding anything herein to the contrary,
contributions to this Plan are conditioned upon the initial
qualification of the Plan under Code Section 401. If the Plan
receives an adverse determination with respect to its initial
qualification, then the Plan may return such contributions to the
Employer within one year after such determination, provided the
application for the determination is made by the time prescribed
by law for filing the Employer's return for the taxable year in
which the Plan was adopted, or such later date as the Secretary of
the Treasury may prescribe.
(b) Notwithstanding any provisions to the contrary, except
Sections 3.6, 3.7, and 4.1(f), any contribution by the Employer to
the Trust Fund is conditioned upon the deductibility of the
contribution by the Employer under the Code and, to the extent any
such deduction is disallowed, the Employer may, within one (1)
year following the disallowance of the deduction, demand
76
repayment of such disallowed contribution and the Trustee shall
return such contribution within one (1) year following the
disallowance. Earnings of the Plan attributable to the excess
contribution may not be returned to the Employer, but any losses
attributable thereto must reduce the amount so returned.
9.15 UNIFORMITY
All provisions of this Plan shall be interpreted and applied in a
uniform, nondiscriminatory manner. In the event of any conflict between the
terms of this Plan and any Contract purchased hereunder, the Plan provisions
shall control.
Article X
PARTICIPATING EMPLOYERS
10.1 ADOPTION BY OTHER EMPLOYERS
Notwithstanding anything herein to the contrary, with the consent
of the Employer and Trustee, any other corporation or entity, whether an
affiliate or subsidiary or not, may adopt this Plan and all of the provisions
hereof, and participate herein and be known as a Participating Employer.
Any corporation or entity which is not an Affiliated Employer must
indicate intent to adopt the Plan as a Participating Employer by a properly
executed document.
10.2 REQUIREMENTS OF PARTICIPATING EMPLOYERS
(a) Each such Participating Employer shall be required to use
the same Trustee as provided in this Plan.
(b) The Trustee may, but shall not be required to, commingle,
hold and invest as one Trust Fund all contributions made by
Participating Employers, as well as all increments thereof.
However, the assets of the Plan shall, on an ongoing basis, be
available to pay benefits to all Participants and Beneficiaries
under the Plan without regard to the Employer or Participating
Employer who contributed such assets.
(c) The transfer of any Participant from or to an Employer
participating in this Plan, whether he be an Employee of the
Employer or a Participating Employer, shall not affect such
Participant's rights under the Plan, and all amounts credited to
such Participant's Combined Account as well as his accumulated
service time with the transferor or predecessor, and his length of
participation in the Plan, shall continue to his credit.
(d) All rights and values forfeited by termination of
employment shall inure only to the benefit of the Participants of
the Employer or Participating Employer by which the forfeiting
Participant was employed, except if the Forfeiture is for an
Employee whose Employer is an Affiliated Employer, then said
Forfeiture shall inure to the benefit of the Participants of those
Employers
77
who are Affiliated Employers. Should an Employee of one ("First")
Employer be transferred to an associated ("Second") Employer which
is an Affiliated Employer, such transfer shall not cause his
account balance (generated while an Employee of "First" Employer)
in any manner, or by any amount to be forfeited. Such Employee's
Participant Combined Account balance for all purposes of the Plan,
including length of service, shall be considered as though he had
always been employed by the "Second" Employer and as such had
received contributions, forfeitures, earnings or losses, and
appreciation or depreciation in value of assets totaling the
amount so transferred.
(e) Any expenses of the Trust which are to be paid by the
Employer or borne by the Trust Fund shall be paid by each
Participating Employer in the same proportion that the total
amount standing to the credit of all Participants employed by such
Employer bears to the total standing to the credit of all
Participants.
10.3 DESIGNATION OF AGENT
Each Participating Employer shall be deemed to be a party to this
Plan; provided, however, that with respect to all of its relations with the
Trustee and Administrator for the purpose of this Plan, each Participating
Employer shall be deemed to have designated irrevocably the Employer as its
agent. Unless the context of the Plan clearly indicates the contrary, the word
"Employer" shall be deemed to include each Participating Employer as related to
its adoption of the Plan.
10.4 EMPLOYEE TRANSFERS
It is anticipated that an Employee may be transferred between
Participating Employers, and in the event of any such transfer, the Employee
involved shall carry with him his accumulated service and eligibility. No such
transfer shall effect a termination of employment hereunder, and the
Participating Employer to which the Employee is transferred shall thereupon
become obligated hereunder with respect to such Employee in the same manner as
was the Participating Employer from whom the Employee was transferred.
10.5 PARTICIPATING EMPLOYER'S CONTRIBUTION
Any contribution subject to allocation during each Plan Year shall
be allocated only among those Participants of the Employer or Participating
Employer making the contribution, except if the contribution is made by an
Affiliated Employer, in which event such contribution shall be allocated among
all Participants of all Participating Employers who are Affiliated Employers in
accordance with the provisions of this Plan. On the basis of the information
furnished by the Administrator, the Trustee shall keep separate books and
records concerning the affairs of each Participating Employer hereunder and as
to the accounts and credits of the Employees of each Participating Employer. The
Trustee may, but need not, register Contracts so as to evidence that a
particular Participating Employer is the interested Employer hereunder, but in
the event of an Employee transfer from one Participating Employer to another,
the employing Employer shall immediately notify the Trustee thereof.
78
10.6 AMENDMENT
Amendment of this Plan by the Employer at any time when there
shall be a Participating Employer hereunder shall only be by the written action
of each and every Participating Employer and with the consent of the Trustee
where such consent is necessary in accordance with the terms of this Plan.
Notwithstanding the above, the written action requirement referred
to in the above paragraph shall be waived when the Participating Employer is an
Affiliated Employer, as defined in Section 1.3.
10.7 DISCONTINUANCE OF PARTICIPATION
Any Participating Employer shall be permitted to discontinue or
revoke its participation in the Plan. At the time of any such discontinuance or
revocation, satisfactory evidence thereof and of any applicable conditions
imposed shall be delivered to the Trustee. The Trustee shall thereafter
transfer, deliver and assign Contracts and other Trust Fund assets allocable to
the Participants of such Participating Employer to such new Trustee as shall
have been designated by such Participating Employer, in the event that it has
established a separate pension plan for its Employees, provided, however, that
no such transfer shall be made if the result is the elimination or reduction of
any "Section 411(d)(6) protected benefits" in accordance with Section 8.1(c). If
no successor is designated, the Trustee shall retain such assets for the
Employees of said Participating Employer pursuant to the provisions of Article
VII hereof. In no such event shall any part of the corpus or income of the Trust
as it relates to such Participating Employer be used for or diverted to purposes
other than for the exclusive benefit of the Employees of such Participating
Employer.
10.8 ADMINISTRATOR'S AUTHORITY
The Administrator shall have authority to make any and all
necessary rules or regulations, binding upon all Participating Employers and all
Participants, to effectuate the purpose of this Article.
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IN WITNESS WHEREOF, this Plan has been executed the day and year
first above written.
Outdoor Systems, Inc.
By: /s/ Arthur Moreno
-----------------------------------
EMPLOYER - Arthur Moreno
/s/ William Levine
---------------------------------------
TRUSTEE - William Levine
/s/ Wally Kelly
---------------------------------------
TRUSTEE - Wally Kelly
/s/ Don Canalia
---------------------------------------
TRUSTEE - Don Canalia
80
FIRST AMENDMENT TO THE
OUTDOOR SYSTEMS, INC.
401(K) PLAN
THIS FIRST AMENDMENT is made on this 20th day of December, 1996, by
OUTDOOR SYSTEMS, INC., a corporation duly organized and existing under the laws
of the State of Delaware (the "Employer(degree)).
W I T N E S S E T H:
-------------------
WHEREAS, the Employer established by indenture originally effective
January 1, 1987, the Outdoor Systems, Inc. 401(k) Plan (the "Plan"), which was
last amended and restated by indenture generally effective as of January 1,
1989; and
WHEREAS, the Employer desires to amend the Plan to reflect the
preservation of optional forms of benefit, within the meaning of Section
411(d)(6) of the Internal Revenue Code of 1986, as a result of the receipt of a
direct transfer of assets from the Gannett C o., Inc. 401(k) Savings Plan;
NOW, THEREFORE, the Employer does hereby amend the Plan; effective as
of October 1, 1996, as follows:
1. By deleting the sixth paragraph of Section 1.60 in its entirety and
by substituting therefor the following:
"Years of Service with Naegle Outdoor Advertising, Outdoor
Today, Inc. and Gannett Outdoor, Inc. of Phoenix shall be recognized.
In addition, Years of Service shall include whole and partial 'Years of
Service' earned by an Eligible Employee under the Gannett Co., Inc.
401(k) Savings Plan on or prior to July 9, 1996."
2. By adding a new final paragraph to Section 3.3, as follows:
"Notwithstanding the foregoing, Eligible Employees who became
Employees pursuant to the terms of that certain Asset Purchase
Agreement, dated July 9, 1996, by and among Gannett Co., Inc., et al.,
and Outdoor Systems, Inc. shall become Participants as soon as
practicable following their respective dates of hire."
3. By deleting paragraph (i) from Section 4.11 and by redesignating
paragraph (j) thereof as new paragraph (i).
4. By adding the following language at the end of paragraph (a) of
Section 6.5:
"In addition, the interest of a Participant or his
beneficiaries, if any, attributable to amounts transferred to the Trust
Fund from the Gannett Co., Inc. 401(k) Savings Plan that were treated
as amounts attributable to participation in the Gannett Employee
Savings Plan may also be made by the Trustee in any form of immediate
or deferred annuity selected by the Participant, to the extent such
form of annuity is then reasonably available in the commercial annuity
market; provided, however, if the Participant selects
a form of annuity payment and is married, the annuity shall be paid as
a Qualified Joint and Survivor Annuity, unless the Participant, with
the consent of his spouse, has elected otherwise during the 90-day
period ending on the date benefit payments are to commence. For
purposes of the preceding sentence, the term 'Qualified Joint and
Survivor Annuity' shall mean an actuarially equivalent annuity payable
for the life of the Participant with a survivor annuity payable for the
life of the Participant's spouse, should the spouse survive the
Participant, in an amount equal to 50% of the amount of the annuity
payable during the joint lives of the Participant and spouse."
5. By adding a new final paragraph to Section 6.10, as follows:
"Any Participant who was a participant in the Gannett, Co.,
Inc. 401(k) Savings Plan on or prior to July 9, 1996 and whose interest
in that plan was transferred in a direct trust-to-trust transfer to the
Trust Fund may withdraw at any time, but no more frequently than once
in any six-month period, amounts attributable to his 'Rollover Account'
(other than amounts constituting or treated as elective contributions)
and 'After-Tax Contribution Account' under the Gannett Co., Inc. 401(k)
Savings Plan. To the extent any such amounts were originally
attributable to participation in The Gannett Employee Savings Plan, any
such withdrawal request shall require the consent of the spouse of the
Participant, if the Participant is married at the time of the
withdrawal request."
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Employer has caused this First Amendment to be
executed on the day and year first above written.
OUTDOOR SYSTEMS, INC.
By:
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Title:
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[CORPORATE SEAL]
ATTEST:
By:
-----------------------------------
Title:
----------------------------
2
SECOND AMENDMENT TO THE
OUTDOOR SYSTEMS, INC.
401(K) PLAN
THIS SECOND AMENDMENT is made on this 30th day of May, 1997, by OUTDOOR
SYSTEMS, INC., a corporation duly organized and existing under the laws of the
state of Delaware (the "Employer").
W I T N E S S E T H:
--------------------
WHEREAS, the Employer established by indenture originally effective
January 1, 1987 the Outdoor Systems, Inc. 401(k) Plan (the "Plan"), which was
last amended by indenture effective as of October 1, 1996; and
WHEREAS, the Employer now desires to amend the Plan to reduce the
eligibility period to require 90 consecutive days of service before an employee
can become a participant in the Plan and to permit an eligible employee to
become a participant in the Plan as of the beginning of the month following the
date the eligible employee met the eligibility requirements;
NOW, THEREFORE, the Employer does hereby amend the Plan, effective as
of June 1, 1997, as follows:
1. By adding the following new Section 1.13A:
"1.13A 'Eligibility Service' means, with respect to entry
dates after May 31, 1997, the completion by an Eligible Employee of 90
consecutive days of service beginning on the date on which the Eligible
Employee first performs an Hour of Service upon his employment or
reemployment with the Employer. If the Eligible Employee is employed on
the first and last day of the consecutive 90 day period, any break in
service during that period will be disregarded for purposes of
determining Eligibility Service."
2. By deleting the first sentence of Section 3.1 in its entirety and
substituting the following:
"Any Eligible Employee who has completed his Eligibility
Service and has attained age 21 will be eligible to participate in the
Plan."
3. By deleting Section 3.3 in its entirety and substituting the
following:
"3.3 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as
of the first day of the month coinciding with or next following the
date such Eligible Employee met the eligibility requirements of Section
3.1, provided the Employee is still employed as of such date.
In the event an Employee who is not a member of an eligible
class of Employees becomes a member of an eligible class and the
Employee has satisfied the minimum age
and service requirements and would have otherwise previously become a
Participant, such a newly Eligible Employee will participate as of the
first day of the month coinciding with or next following the date the
Employee became an Eligible Employee."
3. By deleting Section 3.5(b) in its entirety and substituting the
following:
"(b) In the event a Participant is no longer a member of an
eligible class of Employees and becomes ineligible to participate, such
a former Participant may participate again as of the first day of the
month coinciding with or next following the date the Employee becomes
an Eligible Employee again."
Except as specifically amended hereby, the Plan shall remain in full
force and effect as prior to this Second Amendment.
IN WITNESS WHEREOF, the Employer has cause this Second Amendment to be
executed on the day and year first above written.
OUTDOOR SYSTEMS, INC.
By:
----------------------------------
Title:
----------------------------
ATTEST:
By:
-----------------------------------
Title:
----------------------------
2
EXHIBIT 23.1
PRICEWATERHOUSECOOPERS [LOGO]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our reports: (1) dated February 10, 2000, except for
the second and third paragraphs of note 2, which are as of March 21, 2000,
appearing on page 23 of Viacom Inc.'s Form 10-K for the year ended December 31,
1999; (2) dated June 27, 2000, appearing on page 1 of Outdoor Systems, Inc.
401(k) Plan's Form 11-K for the year ended December 31, 1999; incorporated by
reference in this Post-effective Amendment No. 3 on Form S-8 to Form S-4
registration statement of Viacom Inc.
/s/ PricewaterhouseCoopers LLP
- -------------------------------
PricewaterhouseCoopers LLP
New York, New York
February 20, 2001
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our reports: (1) 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, and dated March
21, 2000, appearing on page 67 of CBS Corporation's Form 10-K for the year ended
December 31, 1999, incorporated by reference from Viacom Inc.'s Form 8-K dated
May 4, 2000, as amended on July 17, 2000; (2) dated January 25, 2000, except as
to note 17, which is as of March 21, 2000, appearing on page 26 of Infinity
Broadcasting Corporation's Form 10-K for the year ended December 31, 1999; (3)
dated March 21, 2000, appearing on page 51 of Infinity Broadcasting
Corporation's Form 10-K for the year ended December 31,1999, (4) dated June 22,
2000, appearing on page 4 of the Infinity Broadcasting Corporation Union
Employees' 401(k) Plan's Form 11-K for the year ended December 31, 1999; and (5)
dated June 22, 2000, appearing on page 4 of Infinity Broadcasting Corporation
Employees' 401(k) Plan's Form 11-K for the year ended December 31, 1999;
incorporated by reference in this Post-effective Amendment No. 3 on Form S-8 to
Form S-4 registration statement of Viacom Inc.
/s/ KPMG LLP
- -------------------------
KPMG LLP
New York, New York
February 20, 2001
[LOGO] Mitchell & Titus, LLP
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Post-Effective Amendment No. 3 on Form S-8 to Form S-4
Registration Statement of our report dated May 26, 2000, included in CBS
Corporation's Form 11-K for the CBS Employee Investment Fund for the year ended
December 31, 2000, and to all references to our Firm in this Registration
Statement.
/s/ Mitchell & Titus, LLP
- --------------------------
Mitchell & Titus, LLP
Washington, DC
February 20, 2001
EXHIBIT 24
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ William H. Gray, III
-----------------------------------
William H. Gray, III
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ George S. Abrams
-----------------------------------
George S. Abrams
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ David R. Andelman
-----------------------------------
David R. Andelman
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ George H. Conrades
-----------------------------------
George H. Conrades
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Philippe P. Dauman
-----------------------------------
Philippe P. Dauman
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Jan Leschly
-----------------------------------
Jan Leschly
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ David T. McLaughlin
-----------------------------------
David T. McLaughlin
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Ken Miller
-----------------------------------
Ken Miller
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Leslie Moonves
-----------------------------------
Leslie Moonves
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Brent D. Redstone
-----------------------------------
Brent D. Redstone
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Shari Redstone
-----------------------------------
Shari Redstone
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Frederic V. Salerno
-----------------------------------
Frederic V. Salerno
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ William Schwartz
-----------------------------------
William Schwartz
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Ivan Seidenberg
-----------------------------------
Ivan Seidenberg
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Patty Stonesifer
-----------------------------------
Patty Stonesifer
VIACOM INC.
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned director
of VIACOM INC., (the "Company"), hereby constitutes and appoints Michael D.
Fricklas and Mark C. Morril, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign (1) a registration statement or statements on Form S-8, or
such other form as may be recommended by counsel, to be filed with the
Securities and Exchange Commission (the "Commission"), and any and all
amendments and post-effective amendments thereto, and any and all post-effective
amendments to registration statements or statements on Form S-8 previously filed
with the Commission, and any and all instruments and documents filed as a part
of or in connection with the said registration statement or amendments thereto,
with respect to the Company's benefit and incentive plans, and (2) any
registration statements, reports and applications relating thereto to be 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 or she 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.
IN WITNESS WHEREOF, I have hereunto signed my name this 20th
day of December, 2000.
/s/ Robert Walter
-----------------------------------
Robert Walter