As filed with the Securities and Exchange Commission on July 25, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
BRINKER INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 75-1914582
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6820 LBJ Freeway
Dallas, Texas 75240
(972) 980-9917
(Address of Principal Executive Offices)
____________________________
Brinker International, Inc. 401(k) Savings Plan
As Restated Effective January 1, 1999
Brinker International, Inc. Savings Plan II, As Amended
(Full Titles of the Plans)
Russell G. Owens
Executive Vice President and Chief Financial
and Strategic Officer
Brinker International, Inc.
6820 LBJ Freeway
Dallas, Texas 75240
(972) 980-9917
(Name, address and telephone number, including area code, of
agent for service)
____________________________
With Copies To:
Roger F. Thomson Stuart Bumpas, Esq.
Executive Vice President and General Counsel Locke Liddell & Sapp LLP
Brinker International, Inc. 2200 Ross Avenue, Suite 2200
6820 LBJ Freeway Dallas, Texas 75201
Dallas, Texas 75240 (214) 740-8000
(972) 980-9917
____________________________
CALCULATION OF REGISTRATION FEE
Title Proposed Proposed
Of Amount To Maximum Maximum Amount of
Securities Be Offering Aggregate Registration
To Be Registered Price Per Offering Fee
Registered Share (1) Price (1)
Common Stock,
$0.10 Par Value (3)
Brinker
International, Inc.
401(k) Savings Plan
As Restated Effective
January 1, 1999 275,000 $31.16 (2) $8,569,000.00 $2,262.22
shares (3)
Brinker
International, Inc.
Savings Plan II, as 100,000 $31.16 (2) $3,116,000.00 $822.62
amended shares (3)
TOTAL 375,000 shares $11,685,000.00 $3,084.84
(1) For the sole purpose of calculating the registration
fee, the number of shares to be registered under this
registration statement has been broken down into two
subtotals. In addition, pursuant to Rule 416 under the
Securities Act of 1933, as amended, this registration
statement also covers shares of common stock of the
registrant issuable to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
(2) Estimated in accordance with Rule 457 (c) and (h)
under the Securities Act of 1933, as amended, solely for
purposes of calculating the registration fee, based on the
average of the high and low prices of the registrant's
common stock on July 18, 2000 as reported on the New York
Stock Exchange.
(3) In addition, pursuant to Rule 416(c) under the
Securities Act of 1933, as amended, this registration
statement also covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit
plans described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified by Item 1 (Plan Information) and
Item 2 (Registrant Information and Employee Plan Annual
Information) of Part I of Form S-8 is omitted from this filing in
accordance with the provisions of Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"), and the
introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents set forth below are incorporated by reference
in this Registration Statement. All documents subsequently filed
by Brinker International, Inc. ("Brinker"), Brinker
International, Inc. 401(k) Savings Plan As Restated Effective
January 1, 1999 and Brinker International, Inc. Savings Plan II,
as amended, pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this registration statement
and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration
statement to the extent a statement contained herein or in any
other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Registration Statement.
(a) Brinker's annual report on Form 10-K for the year
ended June 30, 1999;
(b) All other reports filed with the Securities and
Exchange Commission ("Commission") pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the
fiscal year covered by the documents described in (a)
above; and
(c) The description of the common stock which is
contained in Brinker's registration statements on
Form 8-A filed with the Commission pursuant to
Section 12 of the Exchange Act, and all amendments
thereto and reports that have been filed for the
purpose of updating such description.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the
"DGCL") provides, in effect, that any person made a party to any
action by reason of the fact that he is or was a director,
officer, employee or agent of Brinker may and, in certain cases,
must be indemnified by Brinker against, in the case of a non-
derivative action, judgments, fines, amounts paid in settlement
and reasonable expenses (including attorney's fees) incurred by
him as a result of such action, and in the case of a derivative
action, against expenses (including attorney's fees), if in
either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of Brinker. This indemnification does not apply, in a derivative
action, to matters as to which it is adjudged that the director,
officer, employee or agent is liable to Brinker, unless upon
court order it is determined that, despite such adjudication of
liability but in view of all the circumstances of the case, he is
fairly and reasonably entitled to indemnity for expenses, and, in
a non-derivative action, to any criminal proceeding in which such
person had reasonable cause to believe his conduct was unlawful.
Article Ninth of Brinker's Certificate of Incorporation
provides that no director shall be liable to Brinker or its
stockholders for monetary damages for breach of fiduciary duty,
provided that the liability of a director is not limited (i) for
any breach of the director's duty of loyalty to Brinker or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or knowing violation of law,
(iii) under Section 174 of the DGCL or (iv) any transaction from
which such director derived an improper personal benefit.
Article VI, Section 2 of Brinker's bylaws provides, in
general, that Brinker shall indemnify its directors and officers
under the circumstances defined in Section 145 of the DGCL.
Brinker has obtained an insurance policy insuring the directors
and officers of Brinker against certain liabilities, if any, that
arise in connection with the performance of their duties on
behalf of Brinker and its subsidiaries.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
5.1* Opinion of Locke Liddell & Sapp LLP.
23.1* Consent of KPMG LLP.
23.2* Consent of Locke Liddell & Sapp LLP
(included in opinion filed as Exhibit 5.1).
24.1* Power of Attorney (included on the
signature pages of this Registration Statement).
99.1* Brinker International, Inc. 401(k)
Savings Plan As Restated Effective January 1, 1999.
99.2* Brinker International, Inc. Savings Plan II,
as amended.
* Filed herewith.
Brinker hereby undertakes that it will submit or has
submitted Brinker International, Inc. 401(k) Savings Plan As
Restated Effective January 1, 1999, and any amendments
thereto to the Internal Revenue Service (the "IRS") in a
timely manner and has made or will make all changes required
by the IRS in order to qualify the plan under Section 401 of
the Internal Revenue Code.
Item 9. Undertakings.
(a) Brinker 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 this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by Brinker pursuant
to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) Brinker hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of Brinker's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of Brinker pursuant to the foregoing
provisions, or otherwise, Brinker has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by Brinker of
expenses incurred or paid by a director, officer or controlling
person of Brinker 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, Brinker will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Dallas, State of Texas, on May 1, 2000.
BRINKER INTERNATIONAL, INC.
By: /s/Russell G. Owens
Russell G. Owens, Executive
Vice President and Chief Financial
Strategic Officer
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person
whose signature appears below hereby constitutes and appoints
each of Ronald A. McDougall and Russell G. Owens, and each of
them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done on and about the premises as
fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-
in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the capacities and on the dates indicated.
Signatures Title Date
/s/Ronald A. McDougall Vice Chairman, May 1, 2000
Ronald A. McDougall Chief Executive
Officer and Director
(Principal Executive Officer)
Executive Vice May 1, 2000
/s/Russell G. Owens President and
Russell G. Owens Chief Financial
and Strategic Officer
(Principal Financial
and Accounting Officer)
/s/Norman E. Brinker Chairman of the May 1, 2000
Norman E. Brinker Board and Director
/s/Douglas H. Brooks Director May 1, 2000
Douglas H. Brooks
____________________ Director ____________, 2000
Donald J. Carty
____________________ Director ____________, 2000
Dan W. Cook, III
/s/J.M. Haggar, Jr. Director May 1, 2000
J.M. Haggar, Jr.
____________________ Director ______________, 2000
Frederick S. Humphries
_____________________ Director _______________, 2000
Ronald Kirk
/s/Jeffrey A. Marcus Director May 1, 2000
Jeffrey A. Marcus
/s/James E. Oesterreicher Director May 1, 2000
James E. Oesterreicher
/s/Roger T. Staubach Director May 1, 2000
Roger T. Staubach
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee
benefit plans) of Brinker International, Inc. 401(k) Saving Plan
As Restated Effective January 1, 1999 and Brinker International,
Inc. Savings Plan II, as amended, have duly caused this
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, on the 1st day of May, 2000.
BRINKER INTERNATIONAL, INC.
401(K) SAVINGS PLAN AS RESTATED
EFFECTIVE JANUARY 1, 1999
/s/Preston Weaver
Preston Weaver, Plan Administrator
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN II, AS AMENDED
/s/Preston Weaver
Preston Weaver, Plan Administrator
INDEX TO EXHIBITS
Exhibit
Number Exhibit
5.1* Opinion of Locke Liddell & Sapp LLP.
23.1* Consent of KPMG LLP.
23.2* Consent of Locke Liddell & Sapp LLP (included in opinion filed
as Exhibit 5.1).
24.1* Power of Attorney (included on the signature pages of this
Registration Statement).
99.1* Brinker International, Inc. 401(k) Savings Plan As Restated
Effective January 1, 1999.
99.2* Brinker International, Inc. Savings Plan II, as amended.
* Filed herewith.
EXHIBIT 5.1
July 21, 2000
Brinker International, Inc.
6820 LBJ Freeway
Dallas, Texas 75240
Re: Registration of 375,000 shares of Common Stock, par value $.10
per share, pursuant to a Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Brinker International, Inc., a
Delaware corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement on Form S-
8 (the "Registration Statement"), of 375,000 shares of Common
Stock, par value $.10 per share, of the Company (the "Common
Stock") to be offered pursuant to Brinker International, Inc.
401(k) Savings Plan As Restated Effective January 1, 1999 and
Brinker International, Inc. Savings Plan II, as amended (the
"Plans").
Based on our examination of such documents and the
investigation of such matters of law as we have deemed relevant
or necessary in rendering this opinion, we hereby advise you that
we are of the opinion that:
Assuming, with respect to shares of Common Stock issued after
the date hereof, (i) the receipt of proper consideration for the
issuance thereof in excess of par value thereof, (ii) the
availability of a sufficient number of shares of Common Stock
authorized by the Company's Certificate of Incorporation then in
effect, (iii) compliance with the terms of any agreement entered
into in connection with the Plans, and (iv) that no change occurs
in the applicable law or the pertinent facts, the shares of
Common Stock purchasable or granted under the Plans will upon
issuance be duly authorized and validly issued, fully paid and
non-assessable shares of Common Stock.
We consent to the filing of this opinion as Exhibit 5.1 to
the Registration Statement filed by the Company with the
Securities and Exchange Commission for the registration under the
Securities Act of 375,000 shares of Common Stock of the Company
covered by the Plans. By so consenting, we do not thereby admit
that our firm's consent is required by Section 7 of the
Securities Act.
Very truly yours,
/s/ LOCKE LIDDELL & SAPP LLP
By: /s/ Kent Jamison
Kent Jamison
EXHIBIT 23.1
Consent of KPMG LLP
The Board of Directors
Brinker International, Inc.:
We consent to the use of our report incorporated herein by reference. Our
report refers to a change in accounting for the cost of start-up activities
in fiscal 1999.
/s/ KPMG LLP
Dallas, Texas
July 25, 2000
EXHIBIT 99.1
Brinker International, Inc. 401(k) Savings Plan
As Restated Effective January 1, 1999
BRINKER INTERNATIONAL, INC.
401(K) SAVINGS PLAN
AS RESTATED EFFECTIVE JANUARY 1, 1999
ARTICLE I
PURPOSE
On this 31st day of December, 1999, BRINKER
INTERNATIONAL, INC., a corporation organized and existing
under the laws of the State of Delaware (hereinafter, the
"Company"), hereby restates in its entirety the BRINKER
INTERNATIONAL, INC. 401(K) SAVINGS PLAN AND TRUST (the
"Prior Plan"), such restatement to be effective as of
January 1, 1999;
W I T N E S S E T H :
WHEREAS, the Company has heretofore adopted, for the
benefit of its employees, the BRINKER INTERNATIONAL, INC.
401(K) SAVINGS PLAN AND TRUST, as effective January 1, 1993
(hereinafter, the "Prior Plan"); and
WHEREAS, pursuant to the provisions of Article XIV of
the Prior Plan to the effect that the Prior Plan may be
amended by the Company, the Company wishes to, and does
hereby, amend and restate the Prior Plan as the BRINKER
INTERNATIONAL, INC. 401(K) SAVINGS PLAN AS RESTATED
EFFECTIVE JANUARY 1, 1999 (hereinafter, the "Plan"); and
WHEREAS, in order to carry out the terms of the Prior
Plan and the Plan, the Company has heretofore established a
trust fund (hereinafter, the "Trust") pursuant to the
BRINKER INTERNATIONAL, INC. 401(K) SAVINGS PLAN AND TRUST
AGREEMENT; and
WHEREAS, the following affiliate of the Company
(hereinafter, the "Participating Employer") desires hereby
to adopt the Plan and Trust for the benefit of its
employees: Brinker International Payroll Corporation; and
WHEREAS, it is intended that the Plan and the Trust
meet the requirements of Sections 401(a) and 501(a) of the
Internal Revenue Code of 1986 and the requirements of the
Employee Retirement Income Security Act of 1974;
NOW, THEREFORE, the Company, joined by the
Participating Employer, hereby agrees as follows:
ARTICLE II
DEFINITIONS, CONSTRUCTION, ADOPTION AND APPLICABILITY
2.01 Definitions
The following words and phrases, when used herein,
unless their context clearly indicates otherwise, shall
have the following respective meanings:
(a) ADDITIONS: With respect to each year, the
sum of the following amounts allocated on behalf
of a Participant for a Year: (i) all Employer
contributions; (ii) all Forfeitures; and (iii) all
Employee contributions. Except to the extent
provided in Treasury regulations, Additions
include "excess contributions" (as defined in Code
Section 401(k)(8)(B)) and "excess aggregate
contributions" (as defined in Code Section
401(m)(6)(B)), irrespective of whether the Plan
distributes or forfeits such excess amounts.
"Excess deferrals" (as defined in Code Section
402(g)) are not Additions unless distributed after
the correction period described in Code Section
402(g). Additions also include excess amounts
reapplied to reduce Employer contributions.
(b) ADMINISTRATIVE DELEGATE: An individual or
institution to which the Committee may, from time
to time, delegate certain administrative functions
pursuant to a written agreement.
(c) AFFILIATE: Any corporation (other than an
Employer) which is included within a controlled
group of corporations (as defined in Code Section
414(b)) which includes an Employer; any trade or
business (other than an Employer), whether or not
incorporated, which is under common control (as
defined in Code Section 414(c)) with an Employer;
any organization (other than an Employer), whether
or not incorporated, which is a member of an
affiliated service group (as defined in Code
Section 414(m)) which includes an Employer; and
any other entity required to be aggregated with an
Employer pursuant to regulations under Code
Section 414(o).
(d) AUTHORIZED LEAVE OF ABSENCE: Any absence
(including military leave) authorized by an
Employer under the Employer's standard personnel
practices, uniformly applied and in accordance
with applicable Federal law (other than ERISA);
provided however that no absence shall be
considered an Authorized Leave of Absence unless
the Employee returns to employment immediately (in
the case of military leave, within the 90-day
period after his discharge or release or within
the period prescribed by applicable law, whichever
is longer) upon the expiration of such absence.
An absence due to service in the Armed Forces of
the United States shall be considered an
Authorized Leave of Absence provided that the
absence is caused by war or other emergency, or
provided that the Employee is required to serve
under the laws of conscription in time of peace.
(e) BENEFICIARY: A person or persons (natural or
otherwise) designated by a Participant or Former
Participant in accordance with the provisions of
Section 6.05 to receive any death benefit which
shall be payable under this Plan.
(f) CODE: The Internal Revenue Code of 1986, as
amended from time to time.
(g) COMMITTEE: The persons appointed under the
provisions of Article VIII to administer the Plan.
(h) COMMON STOCK: The common stock of Brinker
International, Inc.
(i) COMPANY: BRINKER INTERNATIONAL, INC., a
corporation organized and existing under the laws
of the State of Delaware, or its successor or
successors.
(j) COMPANY MATCHING CONTRIBUTION ACCOUNT: The
account maintained for a Participant or Former
Participant to record his share of the
contributions of his Employer made pursuant to
Section 4.01(b) hereof and adjustments relating
thereto.
(k) COMPANY MATCHING CONTRIBUTION: Any
contribution to the Plan made by an Employer for
the Plan Year on behalf of a Participant pursuant
to Section 4.01(b) hereof.
(l) COMPENSATION: The total of all wages and
other amounts paid by the Company or any Affiliate
(in the course of its business) to or for the
benefit of an Employee, for services rendered or
labor performed which is required to be reported
on the Employee's Form W-2, excluding, however,
(i) amounts paid or reimbursed by the Company or
Affiliate for moving expenses incurred by the
Employee (but only to the extent that it is
reasonable to believe, at the time of the payment
that the moving expenses will be deductible under
Code Section 217), and (ii) tips. Except as
provided in the prior sentence, such amounts shall
be determined without regard to any rules that
limit the amount to be included in wages based on
the nature or location of the services performed.
Notwithstanding the foregoing, a Participant's
Compensation shall include amounts which he could
have received in cash in lieu of a contribution to
a cafeteria plan under Code Section 125 or a
Savings Contribution and shall exclude any income,
whether or not reportable on Form W-2, which is
attributable to any stock options issued by the
Company. However, the annual Compensation of each
Participant taken into account for determining all
benefits provided under the Plan for any Plan Year
shall not exceed $150,000, as adjusted for
increases in the cost-of-living adjustment in
effect for a calendar year as applied to any
determination period beginning in such calendar
year.
Notwithstanding the foregoing, the
Compensation of a Salaried Eligible Employee shall
be modified as follows:
(1) for purposes of computing
Savings Contributions made during the period
beginning on January 1, 1999 and ending on
July 31, 1999, Compensation shall exclude
bonus payments;
(2) for purposes of computing
Savings Contributions made on or after August
1, 1999, Compensation shall include bonus
payments;
(3) for purposes of computing Company
Matching Contributions made during the period
beginning on January 1, 1999 and ending on
July 31, 1999, Compensation shall exclude
bonus payments;
(4) for purposes of computing Company
Matching Contributions made on or after
August 1, 1999, Compensation shall include
bonus payments.
If a determination period consists of fewer
than twelve (12) months, the annual compensation
limit is an amount equal to the otherwise
applicable annual compensation limit multiplied by
a fraction, the numerator of which is the number
of months in the short determination period, and
the denominator of which is twelve (12).
(m) DISABILITY: The inability of a Participant
to perform each of the material duties of his
regular occupation because of injury or sickness
that can be expected to result in death or which
has lasted or can be expected to last for a
continuous period of not less than twelve (12)
months. The Company may accept, as evidence of
Disability and the continuation of Disability,
payment to the Participant of long-term disability
benefits under a group insurance or welfare plan
sponsored by the Company.
Upon written request by the Participant or
upon the Committee's own initiative, the Committee
shall determine whether a Participant has become
unable to perform the duties of his position due
to a physical or mental disability and shall so
notify such Participant within sixty (60) days
thereafter. A Participant shall be considered
disabled if such disability is so certified by the
Committee and, unless waived by the Committee as
unnecessary, supported by a written medical
opinion that such Participant will be permanently
incapable of performing his job for physical or
mental reasons.
(n) EFFECTIVE DATE: Except where otherwise
indicated herein, January 1, 1999, the date on
which the provisions of this amended and restated
Plan became effective.
(o) ELAPSED-TIME EMPLOYMENT: With respect to an
Employee, the period beginning on his Employment
Commencement Date (or Re-employment Commencement
Date, as the case may be) and ending on the date
of his Severance from Service. Such period shall
be determined without regard to the actual number
of Hours of Employment completed by the Employee
during such period. Except to the extent
otherwise permitted by the Committee in its sole
discretion, Elapsed-Time Employment completed with
an Affiliate or a Participating Employer prior to
the date on which such Affiliate or Employer was
included within a controlled group of corporations
(as defined in Code Section 414(b)) which includes
the Company shall not be recognized under this
Plan.
(p) EMPLOYEE: Any individual on the payroll of
an Employer whose wages from such Employer are
subject to withholding for purposes of Federal
income taxes and for purposes of the Federal
Insurance Contributions Act. Notwithstanding the
preceding, the term "Employee" shall not include
any individual who is designated as an
"independent contractor" by the Employer, even if
the status of such individual subsequently is
changed from that of an independent contractor to
that of an employee as a result of administrative
or legal proceedings.
(q) EMPLOYER or PARTICIPATING EMPLOYER: The
Company, Brinker International Payroll Corporation
or any other Affiliate of the Company that may
have adopted this Plan in accordance with the
provisions of Section 2.03 hereof.
(r) EMPLOYMENT COMMENCEMENT DATE: The first date
on which an Employee completes an Hour of
Employment.
(s) ERISA: Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended
from time to time.
(t) EXTENDED ABSENCE EMPLOYEE: An Employee who
is absent from his Employer's employment solely
because of (i) the Employee's pregnancy, (ii) the
birth of the Employee's child, (iii) the placement
of a child with the Employee in connection with
the adoption of the child by the Employee, or (iv)
the care of a child by the Employee during the
period immediately following such child's birth
to, or placement with, the Employee.
(u) FIDUCIARIES: The Employers, the Committee,
and the Trustee, but, except to the extent of an
appointment made by the Committee pursuant to
Section 8.05(g) hereof, only with respect to the
specific responsibilities of each for Plan and
Trust administration, all as described in Section
8.01. Each fiduciary under the Plan shall
discharge his duties and responsibilities with
respect to the Plan in accordance with the
provisions of ERISA. For purposes of this Plan,
the term "named fiduciary" means one or more
fiduciaries named in this Plan who jointly and
severally shall have authority to control or
manage the operation and administration of the
Plan. The Company shall be the "named fiduciary"
unless the Company designates in writing another
person.
(v) FORFEITURES: The portion of a Participant's
Company Matching Contribution Account that is
forfeited because of a Severance from Service
before full vesting.
(w) FORMER PARTICIPANT: A Participant whose
Participation has terminated but who has a vested
account balance under the Plan that has not been
paid in full.
(x) HIGHLY COMPENSATED EMPLOYEE: A Participant
or Former Participant who is a Highly Compensated
Employee, as defined in Code Section 414(q). A
Participant or Former Participant is considered a
Highly Compensated Employee if:
(1) during the Plan Year (the "Determination
Year"), during the twelve month period
immediately preceding the Determination Year
or, if the Employer elects, during the
calendar year ending with or within the
Determination Year (the "Look Back Year"),
the Participant or Former Participant was at
any time a "five percent owner" as defined in
Code Section 416(i)(1)(A)(iii); or
(2) for the preceding Plan Year, the Participant
or Former Participant had Compensation from
the Employer in excess of $80,000 (as
automatically increased in accordance with
Treasury Department regulations).
The Committee shall determine which Participants
or Former Participants are Highly Compensated
Employees in a manner consistent with Code Section
414(q) and the regulations promulgated thereunder.
The Employer may make a calendar year election to
determine the Highly Compensated Employees for the
Look Back Year, as described above and as
prescribed by the applicable Treasury Department
regulations, provided that a calendar year
election must apply to all employee pension
benefit plans of the Employer.
A Former Participant who separated from Service,
or is deemed to have separated from Service under
the applicable Treasury Department regulations,
prior to the Plan Year, who performs no Service
for the Employer during the Plan Year and who was
a Highly Compensated Employee either for the
"separation year" or any Plan Year ending on or
after such Former Participant attained age fifty-
five (55) is considered a Highly Compensated
Employee. For purposes of this paragraph (u),
"separation year" means the Plan Year during which
the Employee separates from Service with the
Employer.
(y) HOUR OF EMPLOYMENT: Each hour (i) for which
an Employee is on an Authorized Leave of Absence
or is directly or indirectly paid or entitled to
payment by his Employer for the performance of
duties or for reasons other than the performance
of duties, or (ii) for which back-pay
(irrespective of mitigation of damages) has been
either awarded or agreed to by the Employer. In
the case of clause (i) above, each such Hour of
Employment shall, in general, be credited for the
computation period in which the duties were
performed, or to which payments or entitlements to
payments relate (in cases in which Hours of
Employment are credited for periods in which
duties are not performed.) In the case of clause
(ii) above, each such Hour of Employment shall, in
general, be credited for the computation period to
which the agreement or award pertains.
Notwithstanding any provision to the contrary
herein contained, no Employee shall be credited
with an Hour of Employment under both clauses (i)
and (ii) above. In determining the number of
Hours of Employment to be credited to an Employee
in the case of a payment which is made or due to
an Employee under the provisions of clause (i)
above, for a period during which services were not
performed (including a payment made by application
of clause (ii) for a period also covered by clause
(i) during which services were not performed), and
the computation period(s) to which Hours of
Employment shall be credited, the Committee shall
apply the rules set forth in United States
Department of Labor Regulations 2530.200b-2(b)
and (c), which rules are incorporated into and
made a part of this Plan by reference. Nothing in
this paragraph shall be construed as denying an
Employee credit for an Hour of Employment that he
is required to receive under any Federal law, the
nature and extent of which credit shall be
determined by such Federal law.
Hours of Employment shall be determined from
records maintained by each Employer; provided,
however, that an Employer may elect to determine
Hours of Employment for any classification of
Employees which is reasonable, nondiscriminatory
and consistently applied, on the basis that Hours
of Employment include forty-five (45) Hours of
Employment for each week or portion thereof during
which an Employee is credited with one (1) Hour of
Employment. In determining the equivalent number
of Hours of Employment to be credited to an
Employee in the case of a payment made or due
under paragraph (1) above, when the payment is not
calculated on the basis of units of time, the
Committee shall apply the rules set forth in
United States Department of Labor Regulations
2530.200b-2(b)(2) and (3). If such a payment is
calculated on the basis of units of time, which
units are greater than the period of employment
used in this equivalency formula, the Employee
shall be credited with the number of Hours of
Employment included in the periods of employment
which, in the course of the Employee's regular
work schedule, would be included in the unit or
units of time on the basis of which the payment is
calculated.
Except to the extent otherwise permitted by
the Committee in its sole discretion, Hours of
Employment completed with an Affiliate or a
Participating Employer prior to the date on which
such Affiliate or Employer was included within a
controlled group of corporations (as defined in
Code Section 414(b)) which includes the Company
shall not be recognized under this Plan.
(z) HOURLY EMPLOYEE: Any Employee compensated on
an hourly basis.
(aa) INCOME: The net gain or loss of the Trust
Fund from investments, as reflected by interest
payments, dividends, realized and unrealized gains
and losses on securities, other investment
transactions and expenses paid from the Trust
Fund. In determining the Income of the Trust Fund
for any period, assets shall be valued on the
basis of their fair market value, as determined by
the Trustee.
(bb) KEY EMPLOYEE: An Employee who, at any time
during the Plan Year in which the determination
date occurs or any of the four preceding Plan
Years, is (i) an officer of the Employer having
annual compensation greater than 50% of the amount
in effect under Code Section 415(b)(1)(A) for any
such Year, (ii) an owner of (or considered as
owning within the meaning of Code Section 318)
both more than a one-half percent interest as well
as one of the ten largest interests in the
Employer and having annual compensation from the
Employer of more than the limitation in effect
under Code Section 415(c)(1)(A), (iii) a 5% owner
of the Employer in accordance with Code Section
416(i)(A)(iii), or (iv) a 1% owner of the Employer
having annual compensation in excess of $150,000.
(cc) LEASED EMPLOYEE: A Leased Employee is any
individual who is not an Employee of the Company
or an Affiliate, but who provides services for the
Company or an Affiliate, pursuant to an agreement,
whether oral or written, between the Company or
the Affiliate and any leasing organization,
provided that such individual has performed such
services for the Company, an Affiliate, or for
related persons (within the meaning of Code
Section 144(a)(3)) on a substantially full-time
basis for a period of at least one (1) year and
such services are performed subject to the primary
direction and control of the Company or an
Affiliate. A person will be considered to have
performed services on a substantially full-time
basis for a period of at least one (1) year if,
during any consecutive twelve (12) month period:
(i) such person has performed at least fifteen
hundred (1,500) Hours of Employment for the
Company, or (ii) such person has performed at
least five hundred and one (501) Hours of
Employment for the Company, and the number of
Hours of Employment performed equals at least
seventy-five percent (75%) of the median number of
Hours of Service credited to individuals who had
performed similar services for the recipient as
Employees of the recipient during the same period.
For this purpose, any service rendered by a Leased
Employee prior to the effective date of Code
Section 414(n) as well as any service as a common-
law Employee of the Company shall be considered.
Notwithstanding any Plan provisions to the
contrary, a Leased Employee shall not be eligible
to become a Participant of the Plan.
Solely for purposes of Code Sections
401(a)(3), (4), (7), (16), (17), and (26) and
Sections 408(k), 410, 411, 415, and 416, and not
for purposes of participation in this Plan, any
Leased Employee shall be treated as an Employee of
the recipient Company; however, contributions or
benefits provided by the leasing organization
which are attributable to services performed for
the Company shall be treated as provided by the
Company.
If twenty (20) percent or less of the
Company's "non-highly compensated work force" as
defined at Code Section 414(n)(5)(C)(ii), are
Leased Employees, then the preceding sentence
shall not apply to any leased employees who
participated in a money purchase pension plan
maintained by the leasing organization providing
terms not less favorable than: (i) a
nonintegrated company contribution at the rate of
ten (10) percent of compensation, (ii) immediate
participation, and (iii) full and immediate
vesting (the "safe harbor plan"); provided that
such preceding sentence shall in no event apply to
any Leased Employee whose compensation from the
leasing organization is less than One Thousand
Dollars ($1,000) during the Plan Year and each of
the three (3) prior Plan Years.
(dd) NON-HIGHLY COMPENSATED EMPLOYEE: An Employee
who is not a Highly Compensated Employee.
(ee) PARTICIPANT: An Employee participating in
the Plan in accordance with the provisions of
Section 3.01.
(ff) PARTICIPATION: The period commencing on the
date on which an Employee becomes a Participant
and ending on the date on which the Employee
incurs a Break in Service (as defined in Section
3.02(d)).
(gg) PLAN: Brinker International, Inc. 401(k)
Savings Plan As Restated Effective January 1,
1999, the Plan set forth herein, as amended from
time to time.
(hh) PRIOR PLAN: The Brinker International, Inc.
401(k) Savings Plan and Trust, effective January
1, 1993, as in effect prior to the Effective Date.
(ii) QUALIFIED DOMESTIC RELATIONS ORDER OR QDRO:
Any judgment, decree or order pursuant to a state
domestic relations or community property law which
relates to the provision of child support, alimony
payments or marital property rights, which creates
or recognizes the existence of an Alternate
Payee's right to (or assigns to an Alternate Payee
the right to) receive all or part of a
Participant's benefit, and meets the requirements
of the Company's written procedure for
administering such an order as interpreted in
accordance with Code Section 414(p) and, in
particular:
(1) specifies--
(a) the name and last known
mailing address of the Participant and
each Alternate Payee;
(b) the amount or percentage of
the Participant's benefit to be paid to
each Alternate Payee, or the manner in
which such amount or percentage is to be
determined;
(c) the number of payments or
period to which the order applies; and
(d) each plan to which the order
applies; and
(2) does not require the Plan to--
(a) provide any type or form of
benefit or option not otherwise provided
under the Plan;
(b) provide increased benefits; or
(c) pay to an Alternate Payee
amounts required to be paid to another
Alternate Payee under a prior Qualified
Domestic Relations Order.
For purposes of this Plan, an "Alternate
Payee" is a spouse, former spouse child or other
dependent of a Participant or Former Participant
who is designated as an "Alternate Payee" under
the terms of a Qualified Domestic Relations Order,
as described in Code Section 414(q).
(jj) RE-EMPLOYMENT COMMENCEMENT DATE: The first
date on which an Employee completes an Hour of
Employment upon his return to the employment of
the Employers after a Break in Service.
(kk) ROLLOVER CONTRIBUTION ACCOUNT: The account
maintained for a Participant or Former Participant
to record "qualifying rollover distributions"
contributed to the Plan pursuant to Section 4.04
hereof and adjustments relating thereto.
(mm) SALARIED ELIGIBLE EMPLOYEE: Any Non-Highly
Compensated Employee who is compensated on a
salaried basis. To the extent that a salaried
Employee is or becomes a Highly Compensated
Employee on or after January 1, 1999 and
subsequently becomes a Non-Highly Compensated
Employee, such Employee shall not become a
Salaried Eligible Employee at the time that he
becomes a Non-Highly Compensated Employee.
(nn) SAVINGS CONTRIBUTION: Any contribution to
the Plan made by an Employer for the Plan Year on
behalf of a Participant pursuant to Section
4.01(a) hereof.
(oo) SAVINGS CONTRIBUTION ACCOUNT: The account
maintained for a Participant or Former Participant
to record contributions made on his behalf by his
Employer pursuant to Section 4.01(a) hereof and
adjustments relating thereto.
(pp) SERVICE: A Participant's period of
employment with the Employers determined in
accordance with Section 3.02.
(qq) SEVERANCE FROM SERVICE: With respect to an
Employee, the later of (1) or (2), where--
(1) is the earlier of (i) the date on
which he quits, or is discharged from, the
employment of the Employers, or the date of
his retirement or death, or (ii) the first
anniversary of the first date of a period in
which he remains absent from the employment
of the Employers, with or without pay, for
any reason other than one specified in (i),
above, such as vacation, holiday, sickness,
Authorized Leave of Absence or layoff; and
(2) is, in the case of an Extended
Absence Employee, the second anniversary of
such Employee's absence.
(rr) TRUST AGREEMENT: The Brinker International,
Inc. 401(k) Savings Plan and Trust Agreement, a
separate agreement entered into between the
Company and the Trustee which establishes a trust
to hold contributions made under the Plan and from
which the benefits under the Plan will be
distributed.
(ss) TRUST OR TRUST FUND: The legal entity
established under the Trust Agreement to hold the
funds and properties for the use and benefit of
the Participants and their beneficiaries, together
with all income, profits and increments thereto.
(tt) TRUSTEE: American Express Trust Company, or
any other individual or corporation named and duly
appointed to act as an additional or successor
Trustee under the Trust Agreement at any time.
(uu) VALUATION DATE: Any business day on which
the New York Stock Exchange is open.
(vv) YEAR or PLAN YEAR: The 12-month period
ending on December 31 of each year.
(uu) YEAR OF ELIGIBILITY SERVICE. An Employee
shall have one (1) Year of Eligibility Service on
the anniversary of his Employment Commencement
Date if he has not had a Severance from Service
before such anniversary. If an Employee has
experienced a Severance from Service before the
first anniversary of his Employment Commencement
Date, he shall have one (1) Year of Eligibility
Service on the date his aggregate periods of
service equal twelve (12) months.
2.02 Construction
The masculine gender, where appearing in the Plan,
shall be deemed to include the feminine gender, unless
the context clearly indicates to the contrary. The
words "hereof," "herein," "hereunder" and other similar
compounds of the word "here" shall mean and refer to
the entire Plan and not to any particular provision or
Section.
2.03 Adoption by Others
Any Affiliate of the Company may adopt this Plan and
thereby become an Employer; provided, however, that the
Board of Directors of the Company approves such
adoption; provided, further, that the administrative
powers and control of the Company as provided herein
shall not be deemed diminished under the Plan by reason
of the adoption of the Plan by any other Employer, and
such administrative powers and control granted in
Section 8.01 hereof with respect to the appointment of
the Committee and other matters shall apply only with
respect to the Company and not to any other Employer.
2.04 Applicability
The provisions of this Plan shall apply only to an
Employee who terminates employment on or after the
Effective Date. In the case of an Employee who
terminates employment prior to the Effective Date, and
except as otherwise provided in Sections 3.01 and 9.06
hereof, the rights and benefits, if any, of such former
Employee shall be determined in accordance with the
provisions of the Prior Plan, as in effect on the date
on which his employment terminated.
ARTICLE III
PARTICIPATION AND SERVICE
3.01 Participation
Subject to the provisions of Section 3.03, an Employee,
other than an Employee who is a member of a collective
bargaining unit, the recognized representative of which
has not agreed to Participation in the Plan by its
members or a Leased Employee, shall become a
Participant in this Plan as follows:
(a) Any Employee included under the provisions of
the Prior Plan as of January 1, 1999 shall
continue to participate in accordance with the
provisions of this Plan.
(b) A Salaried Eligible Employee shall become
eligible to participate in the Plan on the first
day of the calendar month which coincides with or
next follows his attainment of age 21 and his
completion of one (1) Year of Eligibility Service
with the Employer.
(c) An Hourly Employee shall become eligible to
participate in the Plan on the first day of the
calendar month which coincides with or next
follows his attainment of age 21 and his
completion of one (1) Year of Eligibility Service
with the Employer.
An active Participant who incurs a Severance from
Service and who is subsequently re-employed by an
Employer shall immediately reenter the Plan as an
active Participant on his Re-employment Commencement
Date, with such Participant's prior salary reduction
agreement to continue to apply until amended,
terminated or suspended in accordance with the
provisions of Section 4.02 hereof, unless his prior
period of Service is disregarded under the rule of
parity described in Section 3.02(d) hereof.
In the event that a Participant shall become a member
of a collective bargaining unit, or otherwise cease to
qualify as a Salaried Eligible Employee or an Hourly
Employee, his Participation shall thereupon cease but
he shall continue to accrue Service hereunder during
the period of his continued employment with the
Employer. For purposes of this Section 3.01, an
Employee shall be credited with Service for periods of
employment with an Affiliate (determined as if such
Affiliate were an Employer), but shall not commence
Participation hereunder prior to the date on which he
commences employment with an Employer. The term
"active Participant" shall mean any Eligible Employee
currently participating in the Plan who has not
incurred a Severance from Service.
3.02 Service
The amount of benefit payable to or on behalf of a
Participant or Former Participant shall be determined
on the basis of his period of Service, in accordance
with the following:
(a) In General--Subject to the Break in Service
provisions of paragraph (d) of this Section, an
Employee's Service shall equal the total of his
Elapsed-Time Employment. Service shall be counted
in years and completed days.
(b) Transfers from Affiliates--In the event that
an Employee who at any time was employed by an
Affiliate either commences employment with a
Participating Employer, or returns to the
employment of a Participating Employer, then,
except as otherwise provided below, such Employee
shall receive Service with respect to the period
of his employment with such Affiliate (to the
extent not credited under paragraph (c) of this
Section). In applying the provisions of the
preceding sentence--
(1) except to the extent otherwise
permitted by the Committee in its sole
discretion, such Employee shall not receive
Service with respect to any period of
employment with such Affiliate completed
prior to the date on which such Affiliate
became an Affiliate;
(2) the amount of such Service shall be
determined in accordance with paragraph (a)
of this Section 3.02, as if such Affiliate
were a Participating Employer; and
(3) if such Employee incurs a Break in
Service (as defined in paragraph (d) of this
Section and determined as if such Affiliate
were a Participating Employer) prior to his
commencement of employment with the
Participating Employer or return to the
employment of the Participating Employer,
then the amount of such Employee's Service
attributable to the period of his employment
with such Affiliate shall be determined in
accordance with paragraph (d) of this
Section.
(c) Transfers to Affiliate--In the event that a
Participant who at any time was employed by a
Participating Employer either commences employment
with an Affiliate, or returns to the employment of
an Affiliate, then, except as otherwise provided
below, such Participant shall receive Service with
respect to the period of his employment with such
Affiliate (to the extent not credited under
paragraph (b) of this Section). In applying the
provisions of the preceding sentence--
(1) the amount of such Service shall be
determined in accordance with paragraph (a)
of this Section, as if such Affiliate were a
Participating Employer; and
(2) if such Participant incurs a Break
in Service (as defined in paragraph (d) of
this Section and determined as if such
Affiliate were a Participating Employer)
prior to his commencement of employment with
the Affiliate or return to the employment of
the Affiliate, then the amount of such
Participant's Service attributable to his
prior period of employment with the
Participating Employer shall be determined in
accordance with paragraph (d) of this
Section.
Except as otherwise provided in Sections
4.02, 6.07 and 12.03 hereof, such Participant
shall receive no benefits under this Plan prior to
the date on which he incurs a Severance from
Service, determined as if all Affiliates were
Participating Employers.
(d) Break in Service--An Employee who incurs a
Severance from Service and who fails to complete
at least one (1) Hour of Employment during the
twelve (12)-month period beginning on the date of
such Severance from Service shall have a Break in
Service. If, during the twelve (12)-month period
beginning on the date of an Employee's Severance
from Service, the Employee shall return to the
employment of a Participating Employer by
completing at least one (1) Hour of Employment
within such twelve (12)-month period, then such
Employee will not have a Break in Service and
shall receive Service for the period beginning on
the date of his Severance from Service and ending
on the date of his re-employment; provided,
however, that in the case of an Employee who is
absent from the employment of the Participating
Employers for a reason specified in Section
2.01(qq)(1)(ii) hereof and who, prior to the first
anniversary of the first date of such absence
incurs a Severance from Service for a reason
specified in section 2.01(qq)(1)(i) hereof, such
Employee shall receive Service only if he
completes at least one (1) Hour of Employment
within the twelve (12)-month period beginning on
the first date of such absence and shall receive
such Service only for the period beginning on the
first day of such absence and ending on the date
of his re-employment.
Upon incurring a Break in Service, an
Employee's rights and benefits under the Plan
shall be determined in accordance with his Service
at the time of the Break in Service.
Notwithstanding the foregoing, an Employee who has
never been a Participant will not receive credit
for service performed before any one-year Break-in-
Service if his consecutive one-year Breaks-in-
Service upon reemployment exceed the greater of
(i) his aggregate service before the commencement
of such consecutive one-year Breaks-in-Service, or
(ii) five (5) years. Service that has once been
disregarded under this rule shall not be required
to be counted in determining whether any future
periods of service may be disregarded after any
future period of consecutive one-year Breaks-in-
Service.
(e) Special Rule for Extended Absence Employees--
Notwithstanding the preceding provisions of this
Section 3.02, in the case of an Extended Absence
Employee, the period between the first and second
anniversaries of such Employee's absence shall,
under no circumstances, be treated as a period of
Service.
3.03 Election to Participate
In order to participate hereunder, an Employee
otherwise eligible to participate pursuant to Section
3.01 must, after having received a written explanation
of the terms of, and the benefits provided under, the
Plan, elect to participate in such Plan in accordance
with such procedures as the Committee or Trustee may
prescribe. Unless otherwise specified by the
Committee, any Eligible Employee entitled to become a
Participant may do so by effecting a telephonic
instruction through a designated telephone access
system, prior to the date he is first eligible to
become a Participant.
3.04 Transfer
An Employee who is transferred between Participating
Employers shall be as eligible for Participation and
benefits as in the absence of such transfer.
3.05 Special Rules for Former Employees of Maggiano's
Notwithstanding any provision to the contrary herein
contained, for purposes of determining the "vested
percentage" under Section 6.03 of an Employee who was
employed by the Company or an Affiliate as a result of
the acquisition by the Company of Maggiano's Old
Orchard, Inc. ("Maggiano's"), all determinations of the
Employee's vested interest under the Plan shall include
any period of service with Maggiano's.
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.01 Employer Contributions
Employers shall make contributions to the Trust Fund in
accordance with the following:
(a) Savings Contribution--For each Year, each
Employer shall contribute on behalf of each of its
Employees participating in the Plan an amount of
contribution agreed to be made by such Employer
pursuant to a salary reduction agreement under
Section 4.02 entered into between the Employer and
the Participant for such Year. Contributions made
by the Employer for a given Year pursuant to this
paragraph (a) shall be deposited in the Trust Fund
as soon as administratively feasible, but in no
event later than fifteen (15) business days after
the end of the month during which such amounts
would otherwise have been payable to the
Participant, in accordance with Department of
Labor Regulations 2510.3-102.
(b) Additional Matching Contribution--
(1) In General. For each payroll period, each
Employer shall make an additional
contribution on behalf of each Participant
who is a Salaried Eligible Employee for whom
a contribution was made pursuant to paragraph
(a) of this Section 4.01. Such contributions
shall equal an amount which will be
sufficient to credit each such Participant's
Company Matching Contribution Account with an
amount of Common Stock which, at fair market
value as of the date of contribution, when
added to the Forfeitures, if any, then
available for allocation to the Participants'
Company Matching Contribution Accounts, shall
be equal to twenty-five percent (25%) of that
portion of the Participant's Savings
Contributions for such payroll period which
does not exceed five percent (5%) of his
Compensation for such payroll period. An
Employer may satisfy such contribution
obligation by contributing treasury shares or
shares of Common Stock acquired on the open
market. Company Matching Contributions of
the Employers shall be paid to the Trustee
and payment generally shall be made following
each payroll period; provided, however, that
payments shall be made not later than the
time prescribed by law for filing the
consolidated Federal income tax return of the
Employers, including any extensions which
have been granted for the filing of such tax
return.
For any Year, the Employers may decline to
make any portion of the contribution
specified in this paragraph (b) if the
Employers determine that such action is
necessary to ensure that the discrimination
requirements of Code Section 401(a)(4), as
amended, or the discrimination tests of Code
Section 401(m), as amended, are satisfied;
or, alternatively, in the case of a violation
of the discrimination tests of Code Section
401(m), the Employers may direct the Trustee
to distribute by the last day of the
following Year "excess aggregate
contributions" (as defined in Code Section
401(m)(6)(B)) to the Participants by or on
whose behalf such contributions were made.
(2) Discrimination Tests. With respect to
Company Matching Contributions, the
discrimination tests of Code Section 401(m)
are satisfied in the following manner:
(a) the Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall
not exceed the Average Contribution
Percentage for Eligible Participants who
are Non-Highly Compensated Employees for
the prior Year multiplied by 1.25; or
(b) the Average Contribution Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall
not exceed the Average Contribution
Percentage for Eligible Participants who
are Non-Highly Compensated Employees for
the prior Year multiplied by two (2),
provided that the Average Contribution
Percentage for Eligible Participants who
are Highly Compensated Employees does
not exceed the Average Contribution
Percentage for Eligible Participants who
are Non-Highly Compensated Employees for
the prior Year by more than two (2)
percentage points.
In any year in which the Average Contribution
Percentage for Highly Compensated Employees
who are Eligible Participants does not
satisfy the limitation set forth above, the
Committee shall reduce allocations of Company
Matching Contributions to such individuals in
the manner provided in this paragraph.
First, the Committee shall calculate the
amount of "excess deferrals" and "excess
contributions," if any, under Section 4.03(d)
and shall make any required distributions
thereunder. Second, if the Committee then
determines that the Plan continues to fail
the Average Contribution Percentage Test for
the Year, it shall reduce "excess aggregate
contributions," as adjusted for allocable
income, during the next Plan Year. For
purposes of this paragraph, "excess aggregate
contributions" are the amount of aggregate
Company Matching Contributions allocated on
behalf of the Highly Compensated Employees
which causes the Plan to fail the Average
Contribution Percentage Test. The Committee
shall reduce the "excess aggregate
contributions" to the Highly Compensated
Employees in accordance with the following
steps:
(A) The Committee shall calculate total
"excess aggregate contributions" for the
Highly Compensated Employees.
(B) The Committee shall calculate the
total dollar amount by which the "excess
aggregate contributions" for the Highly
Compensated Employees must be reduced in
order to satisfy the Average
Contribution Percentage Test.
(C) The Committee shall calculate the
total dollar amount of Company Matching
Contributions for each Highly
Compensated Employee.
(D) The Committee shall reduce the
Company Matching Contributions of the
Highly Compensated Employee(s) with the
highest dollar amount of Company
Matching Contributions by reducing such
contributions in such Highly Compensated
Employee(s) Account in an amount
necessary to cause the dollar amount of
such Highly Compensated Employee(s)'
Company Matching Contributions to equal
the sum of the Company Matching
Contributions of the Highly Compensated
Employee(s) with the next highest dollar
amount of such contributions.
(E) If the total dollar amount reduced
pursuant to Step (D) above is less than
the total dollar amount of "excess
aggregate contributions," Step (D) shall
be applied to the Highly Compensated
Employee(s) with the next highest dollar
amount of Company Matching Contributions
until the total amount of reduced
Company Matching Contributions equals
the total dollar amount of "excess
aggregate contributions" calculated in
Step (B).
(F) When calculating the amount of
reduction under Step (D), if a lesser
reduction, when added to any amounts
already reduced under this paragraph,
would equal the total amount of
reductions necessary to permit the Plan
to satisfy the Average Contributions
Percentage Test under this Section
4.01(b)(2), the lesser amount shall be
reduced instead.
(G) Any Company Matching Contributions
amount reduced from a Highly Compensated
Employee's Account pursuant to Step (D)
above, which shall be treated as an
"excess aggregate contribution" (as
defined in Code Section 401(m)(6)(B) and
the regulations thereunder), together
with the income allocable thereto, shall
be distributed (or, if not vested,
forfeited) to the Participant within two
and one-half (2-1/2) months of the
beginning of the subsequent Plan Year.
For purposes of this subparagraph
(2), an Eligible Participant's "Contribution
Percentage" shall mean the ratio (expressed
as a percentage), of the sum of the Company
Matching Contributions under the Plan on
behalf of the Eligible Participant for the
Year to such Eligible Participant's
Compensation for the Year. The Contribution
Percentage of an Eligible Participant who has
no Company Matching Contributions allocated
to his Company Matching Contribution Account
for the Year shall equal zero (0). "Eligible
Participant" shall mean any Employee who is
authorized under the terms of the Plan to
have Company Matching Contributions allocated
to his Company Matching Contribution Account
for the Year, and shall include any Employee
who is eligible to make Savings Contributions
under the terms of the Plan but elects not to
make such contributions for the Year, who is
eligible to participate under the terms of
the Plan but elects not to participate
pursuant to the provisions of Section 3.03
hereof, or who is not eligible to have
Company Matching Contributions allocated to
his Company Matching Contribution Account due
to the limitation on Additions set forth in
Section 5.03 hereof. The "Average
Contribution Percentage" is the average
(expressed as a percentage) of the
Contribution Percentages of all Eligible
Participants.
In the event that this Plan
satisfies the requirements of Code Section
401(a)(4) and 410(b) only if aggregated with
one or more other plans, or if one or more
other plans satisfy the requirements of Code
Section 401(a)(4) and 410(b) only if
aggregated with this Plan, then this
subparagraph (2) shall be applied by
determining the Contribution Percentage of
Eligible Participants as if all such plans
were a single plan. If a Highly Compensated
Employee participates in two (2) or more
plans of the Employers to which matching
contributions are made then all such
contributions shall be aggregated for
purposes of this subparagraph (2).
The income allocable to an "excess
aggregate contribution" (as defined in Code
Section 401(m)(6)(B) and regulations
thereunder) shall be determined by
multiplying the income allocable to a
Participant's Company Matching Contribution
Account for the Plan Year by a fraction, the
numerator of which is the "excess aggregate
contributions" (as defined in Code Section
401(m)(6)(B) and regulations promulgated
thereunder) for the Participant, as
determined above, and the denominator of
which is the balance of the Participant's
Company Matching Contribution Account on the
last day of the Plan Year, reduced by the
income allocable to such account for the Plan
Year and increased by the loss allocable to
such account for the Plan Year.
The Committee may, in its sole
discretion, elect to take contributions to a
Participant's Savings Contribution Account
into account in computing the Average
Contribution Percentage, in the manner and to
the extent provided by Treasury Department
regulations promulgated under Code Section
401(m). However, in such a case, the Actual
Deferral Percentage tests under Section
4.02(f) must still be computed and met
separately, and in connection therewith, no
aggregation with Company Matching
Contributions shall be permitted.
Alternatively, the Employer may, in its sole
discretion, elect to make qualified
nonelective contributions, subject to the
vesting and distribution requirements under
Sections 6.03 and 6.04 hereof, and in the
manner and to the extent provided by Treasury
Department regulations under Code Section
401(m), that would, in combination with
Company Matching Contributions under the
Plan, satisfy the limitation set forth above.
In any event, said correction of the
discrimination tests described herein shall
be made within twelve (12) months of the end
of the Year.
In order to prevent the multiple
use of the alternative limitations described
in clause (ii) of the first paragraph of this
subparagraph (2) and in Section 4.02(f)(ii)
hereof, the limitation on the multiple use of
alternative limitations described in Treasury
Department regulations under Code Section
401(m) is specifically incorporated herein by
reference and shall apply to reduce the
Savings Contributions of, or Company Matching
Contributions for, those Eligible
Participants who are Highly Compensated
Employees, so that there is no multiple use
of said alternative limitations. Any "excess
contribution" (as defined in Code Section
401(k)(8)(B) and regulations thereunder)
resulting from a reduction in Savings
Contributions shall be distributed in
accordance with Section 4.02(e), and any
"excess aggregate contribution" (as defined
in Code Section 401(m)(6)(B) and regulations
thereunder) resulting from a reduction in
Company Matching Contributions shall be
distributed in accordance with this Section.
In lieu of said reduction, the Employer may
make such additional contributions as
described in this Section and Section 4.02(e)
hereof, in the manner and to the extent
provided under the Treasury Department
regulations under Code Sections 401(k) and
401(m), so as to comply with the limitation
on the multiple use of alternative
limitations.
(c) Limitations--All contributions of an Employer
shall be made from consolidated current earnings,
as computed in accordance with accepted accounting
practices, before deduction of Federal income
taxes and reserves for contingencies, if any,
other than reasonable reserves of a type or
character allowed or allowable as deductions for
Federal income tax purposes, and before deduction
of any contributions hereunder. In no event,
however, shall the Employer contributions for any
Year exceed the amount deductible for such Year
for income tax purposes (on a consolidated return
basis) as a contribution to the Trust under the
applicable provisions of the Code. Further, no
Company Matching Contributions shall be made for a
Year unless the Company's earnings per share for
such Year are sufficient to cover dividends to
stockholders; provided, however, that in no event
will a Company Matching Contribution be made if
the Company's net profits for such Year are less
than Thirty-Three and One-Third Cents ($.33-1/3)
per share.
4.02 Participant Salary Reduction
Upon commencement of Participation hereunder and in
accordance with such procedures as the Committee or
Trustee shall prescribe, a Participant shall, as
provided in Section 3.03, enter into a salary reduction
agreement with his Employer. The terms of such salary
reduction agreement shall provide that the Participant
agrees to accept a reduction in salary from the
Employer equal to (i) any whole percentage of his
Compensation per payroll period, with such percentage
to be not less than one percent (1%) and not more than
twenty percent (20%) of such Compensation, and (ii) for
a Salaried Eligible Employee, any whole percentage of
his Compensation received in the form of a bonus
payment.
In the event that the total reduction on behalf of any
Participant for any of his or her taxable years exceeds
$7,000 (or such greater amount as permitted under
Treasury Department regulations to reflect cost-of-
living adjustments), such "excess deferrals" (as
defined in Code Section 402(g)(2) and regulations
promulgated thereunder), together with income allocable
thereto, shall be distributed to the Participant on
whose behalf such reduction was made not later than
April 15 following the close of the Participant's
taxable year in which the reduction was made, in the
manner and to the extent provided under regulations
promulgated by the Secretary of Treasury; provided that
such excess deferrals shall first be reduced by any
"excess contributions" previously distributed for the
Plan Year beginning in that taxable year pursuant to
Section 4.02(e) hereof.
The income allocable to an "excess deferral" (as
defined in Code Section 402(g)(2) and regulations
promulgated thereunder) shall be determined by
multiplying the income allocable to a Participant's
Savings Contribution Account for the Plan Year by a
fraction, the numerator of which is the "excess
deferrals" (as defined in Code Section 402(g)(2) and
regulations promulgated thereunder) of the Participant,
as determined above, and the denominator of which is
the balance of the Participant's Savings Contribution
Account on the last day of the Plan Year, reduced by
the income allocable to such account for the Plan Year
and increased by the loss allocable to such account for
the Plan Year.
Amounts credited to a Participant's Savings
Contribution Account pursuant to Section 4.01(a) and
this Section shall be one hundred percent (100%) vested
and non-forfeitable at all times.
Further, salary reduction agreements shall be governed
by the following:
(a) A Participant may elect to defer a
portion of his Compensation or to change his
deferral percentage within the percentage limits
set forth in Section 4.02(a), effective as of the
first pay period commencing on or after the date
that such election is submitted to the Committee
by effecting an instruction through a designated
telephone access system.
(b) Any Eligible Employee who does not
become a Participant upon the date on which he
first becomes entitled under Section 3.01 may
become a Participant commencing with the first pay
period beginning on or after the date that he
submits an election to the Committee by making an
appropriate telephonic instruction.
(c) A Participant's election shall
remain in force and effect for all periods
following the date it is made until (i) such
election is modified or terminated, or (ii) such
Participant terminates his employment.
(d) A Participant may cancel his election
effective as of the first pay period commencing on
or after the date that such cancellation is
submitted to the Committee by effecting a
telephonic instruction through a designated
telephone access system. A Participant who so
cancels his election may resume active
participation in the Plan, effective as of the
first day of the first pay period commencing on or
after the date that such election is submitted to
the Committee by effecting an instruction through
a designated telephone access system.
(e) An Employer may amend or revoke its salary
reduction agreement with any Participant at any
time if the Employer determines that such
revocation or amendment is necessary (i) to ensure
that a Participant's Additions for any Year will
not exceed the limitation of Section 5.03 hereof,
(ii) to ensure that Employer contributions made
pursuant to Section 4.01 hereof are fully
deductible by the Employer for Federal income tax
purposes, (iii) to ensure that a Participant's
Savings Contributions do not exceed the limitation
of Section 4.02 hereof relating to "excess
deferrals" (as defined in Code Section 402(g)(2)
and regulations promulgated thereunder), or (iv)
to ensure that the discrimination tests of Code
Section 401(k) are met for such Year.
In any case in which such discrimination
tests are not met for a Year, the Employer may, in
the alternative, (i) direct the Trustee to
distribute "excess contributions" (as defined in
Code Section 401(k)(8)(B) and regulations
promulgated thereunder), together with the income
allocable thereto, but first reduced by any
"excess deferrals" (as defined in Code Section
402(g)(2) and regulations promulgated thereunder)
previously distributed pursuant to Section 4.02
hereof for the taxable year ending within the Plan
Year, to the Participant on whose behalf such
contributions were made within two and one-half (2-
1/2) months of the beginning of the subsequent
Year, or (ii) make such additional contributions,
subject to the vesting and distribution
requirements of Sections 6.03 and 6.04 hereof, and
in the manner and to the extent provided by
regulations under Code Section 401(k) promulgated
by the Secretary of Treasury, to the Savings
Contribution Accounts of Participants who are Non-
Highly Compensated Employees as to cause such
tests to be satisfied. The Plan shall forfeit
Company Matching Contributions attributable to
"excess contributions" (as defined in Code Section
401(k)(8)(B)) distributed under the foregoing
clause (i) and such amounts treated as Forfeitures
shall be applied as Forfeitures in accordance with
Section 4.03 of the Plan. In any event, said
correction of the discrimination tests described
herein shall be made within twelve (12) months of
the end of the Year. In addition, an Employer may
amend or revoke its salary reduction agreement
with any Participant at any time if the Employer
determines that such revocation or amendment is
necessary to ensure that the discrimination tests
of Code Section 401(m) are met for such Year.
The income allocable to an "excess
contribution" (as defined in Code Section
401(k)(8)(B) and regulations promulgated
thereunder) shall be determined by multiplying the
income allocable to a Participant's Savings
Contribution Account for the Plan Year by a
fraction, the numerator of which is the "excess
contributions" (as defined in Code Section
401(k)(8)(B) and regulations promulgated
thereunder) of the Participant, as determined
under Section 4.02(f), and the denominator of
which is the balance of the Participant's Savings
Contribution Account on the last day of the Plan
Year, reduced by the income allocable to such
account for the Plan Year and increased by the
loss allocable to such account for the Plan Year.
(f) The discrimination tests of Code Section
401(k) are satisfied in the following manner:
(1) The Actual Deferral Percentage for
Eligible Participants who are Highly
Compensated Employees for the Year shall bear
a relationship to the Actual Deferral
Percentage for Eligible Participants who are
Non-Highly Compensated Employees for the
prior Year whereby (i) the Actual Deferral
Percentage for the group of Eligible
Participants who are Highly Compensated
Employees for the Year is not more than the
Actual Deferral Percentage for Eligible
Participants who are Non-Highly Compensated
Employees for the prior Year multiplied by
1.25; or (ii) the excess of the Actual
Deferral Percentage for the group of Eligible
Participants who are Highly Compensated
Employees for the Year over that of all
Eligible Participants who are Non-Highly
Compensated Employees for the prior Year
shall not be more than two (2) percentage
points, and
(2) the Actual Deferral Percentage for
the group of Eligible Participants who are
Highly Compensated Employees for the prior
Year is not more than the Actual Deferral
Percentage of all Eligible Participants who
are Non-Highly Compensated Employees for the
prior Year multiplied by two (2).
If the allocations of the Participant Savings
Contributions do not satisfy the tests set forth
above, the Committee shall adjust the accounts of
the Highly Compensated Employees as provided in
this paragraph. The Committee shall distribute
excess contributions, as adjusted for allocable
income, during the next Plan Year. However, the
Employer will incur an excise tax equal to 10% of
the amount of excess contributions for a Year if
such contributions are not distributed to the
appropriate Highly Compensated Employees during
the first 2-1/2 months of the next Plan Year. For
purposes of this paragraph, "excess contributions"
are the amount of aggregate Savings Contributions
that cause the Plan to fail the Actual Deferral
Percentage Test. The Committee shall make
distributions to each Highly Compensated Employee
of his or her respective share of excess
contributions pursuant to the following steps:
(A) The Committee shall calculate
total excess contributions for the Highly
Compensated Employees.
(B) The Committee shall calculate the
total dollar amount by which the excess
contributions for the Highly Compensated
Employees must be reduced in order to satisfy
the Actual Deferral Percentage Test.
(C) The Committee shall calculate the
total dollar amount of the Savings
Contributions for each Highly Compensated
Employee.
(D) The Committee shall reduce the
Savings Contributions of the Highly
Compensated Employee(s) with the highest
dollar amount of Savings Contributions by
refunding such contributions to such Highly
Compensated Employee(s) in an amount
sufficient to cause the dollar amount of such
Highly Compensated Employee(s)' Savings
Contributions to equal the dollar amount of
the Savings Contributions of the Highly
Compensated Employee(s) with the next highest
dollar amount of Savings Contributions.
(E) If the total dollar amount
distributed pursuant to Step (D) above is
less than the total dollar amount of excess
contributions, Step (D) shall be applied to
the Highly Compensated Employee(s) with the
next highest dollar amount of Savings
Contributions until the total amount of
distributed Savings Contributions equals the
total dollar amount of excess contributions
calculated in Step (B).
(F) When calculating the amount of a
distribution under Step (D), if a lesser
reduction, when added to any amounts already
distributed under this paragraph, would equal
the total amount of distributions necessary
to permit the Plan to satisfy the Actual
Deferral Percentage Test under this paragraph
(f), the lesser amount shall be distributed
from the Plan.
For purposes of this paragraph (f), the
"Actual Deferral Percentage" for a specified group
of Eligible Participants for a Year shall be the
average of the ratios (expressed as a percentage
and calculated separately for each Eligible
Participant in such group) of (i) the amount of
each such Eligible Participant's Savings
Contributions actually paid over to the Trust on
behalf of the Participant for such Year, to (ii)
such Participant's Compensation for the Year.
Savings Contributions shall be taken into account
for the Year if such contributions (i) relate to
Compensation that would have been received during
the Year (but for the deferral election) or relate
to Compensation attributable to services performed
during the Year that would have been received
within 2-1/2 months after the close of the Year
(but for the deferral election), and (ii) are
allocated to the Participant's account as of a
date within the Year in accordance with Treasury
Department regulations under Code Section 401(k).
The Actual Deferral Percentage of an Eligible
Participant for whom no Savings Contributions are
paid to the Trust on his behalf for the Year shall
equal zero (0). "Eligible Participant" shall mean
any Employee who is authorized under the terms of
the Plan to have contributions allocated to his
Savings Contribution Account for all or a portion
of the Year, and shall include any Employee who is
eligible to make Savings Contributions under the
terms of the Plan but elects not to make such
contributions for the Year, who is eligible to
participate under the terms of the Plan but elects
not to participate pursuant to the provisions of
Section 3.03 hereof, whose right to make Savings
Contributions has been suspended under Section
4.02(h)(1) hereof, or who is not eligible to have
Savings Contributions allocated to his Savings
Contribution Account due to the limitations on
Additions set forth in Section 5.03 hereof.
In the event that this Plan satisfies
the requirements of Code Section 401(a)(4) or
410(b) only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of Code Section 401(a)(4) or 410(b)
only if aggregated with this Plan, then this
paragraph (f) shall be applied by determining the
Contribution Percentage of Eligible Participants
as if all such plans were a single plan. If a
Highly Compensated Employee participates in two
(2) or more plans of the Employers to which
Savings Contributions are made then all such
contributions shall be aggregated for purposes of
this paragraph (f).
(g) An Employer may revoke its salary reduction
agreements with all Participants or amend its
salary reduction agreements with all Participants
on a uniform basis, if it determines that it will
not have sufficient current profits to make the
contributions to the Plan required by the salary
reduction agreements.
(h) Except as provided above, a salary reduction
agreement applicable to any given Year, once made,
may not be revoked or amended by the Participant
or the Employer.
(i) No amounts may be withdrawn by a Participant
from his Savings Contribution Account prior to
termination of employment with the Employers
except to the extent of an election made in
accordance with Section 6.07.
4.03 Disposition of Forfeitures
If, upon a Severance from Service, a Participant is not
entitled to a distribution of the entire balance in his
Company Matching Contribution Account, then as of the
date on which such Severance from Service occurs, his
Account shall be divided into two portions, one
representing the nonforfeitable portion, and the other
representing the Forfeiture portion, of such Account.
His Company Matching Contribution Account shall
continue to receive Income allocations pursuant to
Section 5.02(a) until the nonforfeitable portion of
such Account is distributed. The Participant shall
receive a distribution of the nonforfeitable portion of
such Account pursuant to Section 6.04. Notwithstanding
the foregoing, prior to a Participant's sixty-fifth
(65th) birthday, written consent of the Participant is
required before commencement of the distribution of any
portion of his Account if the present value of the
nonforfeitable total interest in his Account is greater
than $5,000.
As of the date on which such payment occurs, the
Forfeiture portion of such Account shall be transferred
to a special interest-bearing "forfeiture management
account". As of the end of the calendar month in which
such transfer occurs, and except as otherwise provided
below, such forfeiture management account shall be
applied to reduce the Company Matching Contributions to
the Plan under Section 4.01(b) hereof; provided that,
to the extent that the amount in the forfeiture
management account available to reduce Company Matching
Contributions for the Year exceeds such Company
Matching Contributions and all restoration amounts
described below, such excess shall be applied in
payment of Trustee fees and other administrative
expenses of the Plan and Trust.
If the Participant returns to the employ of an Employer
before incurring five (5) consecutive one (l)-year
Breaks in Service, he shall have the right to repay to
the Trust Fund the amount of a prior lump sum payment
within the five (5)-year period beginning on his Re-
employment Commencement Date. If such repayment is
made, then, as of the end of the Year of repayment, the
amount of his prior Forfeiture shall be restored and,
together with the amount repaid, shall become the
beginning balance in his new Company Matching
Contribution Account. Such restoration shall be made
first from the forfeiture management account. To the
extent that such forfeiture management account is
insufficient for this purpose, restoration shall be
effected by the making of a special Employer
contribution for such Year of repayment.
Notwithstanding the preceding provisions of this
Section 4.03, a Participant who, upon a Severance from
Service, is entitled to no portion of his Company
Matching Contribution Account, shall be deemed to have
received a distribution of zero from such Account at
the earliest date on which a distribution could be made
under Section 6.04 hereof.
4.04 Rollover Contributions; Transfers
With the approval of the Committee, any Employee who
was a participant in another plan of deferred
compensation which is qualified under Code Section
401(a) may contribute to this Plan a portion or all of
the amount of any "eligible rollover distribution"
received by him from such other plan. Any amounts so
contributed, together with related earnings or losses,
shall be held in a separate Rollover Contribution
Account established for such Participant. Such
Rollover Contribution Account shall be one hundred
percent (100%) vested in the Participant, shall share
in Income allocations in accordance with Section
5.02(a), but shall not share in Employer contribution
or Forfeiture allocations. The total amount in such
Rollover Contribution Account shall be distributed in
accordance with Article VI. The term "eligible
rollover distribution" is herein defined as any amount
which, pursuant to Code Section 402(c)(4), may be
transferred to this Plan and thereby not be includible
in the gross income of the recipient for the taxable
year in which paid.
The Trustee, upon approval of the Committee, may accept
a transfer from the trustee of another qualified plan
or trust of all or any of the assets held by such plan
or trust for some or all participants therein;
provided, however, that no such transfer shall be
accepted for any one particular individual participant
in another qualified plan or trust. In the case of a
transfer to the Trustee of all or any of the assets of
another qualified plan or trust by the trustee of the
transferor plan, the amounts so transferred shall be
allocated to the individual accounts of each
Participant who was also a participant in such other
qualified plan. In no event shall a Participant's
vested interest in such a transferred account be less
after such transfer than it was prior to such transfer.
Furthermore, with respect to such transferred amounts,
the vesting schedule of this Plan shall be the same or
better than the vesting schedule under the transferor
plan, or, in the alternative, this Plan may provide
that the entire value of such transferred amounts shall
be fully vested and nonforfeitable in the Participant
affected.
The Trustee, upon direction from the Committee, may
transfer any amount available for distribution to a
Participant hereunder by reason of termination of
employment to another trust forming part of a pension,
profit sharing or stock bonus plan maintained by such
Participant's new employer and represented by such
employer in writing as meeting the requirements of Code
Section 401(a), provided that the trust to which such
transfer is to be made permits such transfers.
4.05 Contributions by Participants
Except as provided in Section 4.04 hereof, Participants
are neither required nor permitted to make any
contributions under this Plan.
4.06 Special Rules under USERRA
Notwithstanding any provision of this Plan to the
contrary, contributions, benefits and service credit
with respect to qualified military service will be
provided in accordance with Code Section 404(u).
ARTICLE V
ALLOCATIONS TO PARTICIPANTS' ACCOUNTS
5.01 Individual Accounts
The Committee shall create and maintain adequate
records to disclose the interest in the Trust of each
Participant, Former Participant, and Beneficiary. Such
records shall be in the form of individual accounts and
credits and charges shall be made to such accounts in
the manner herein described. When appropriate, a
Participant, Former Participant, and Beneficiary shall
have three separate accounts--a Company Matching
Contribution Account, a Savings Contribution Account,
and a Rollover Contribution Account. The accounts of
each Participant, Former Participant or Beneficiary
shall be divided into subaccounts to reflect such
Participant's, Former Participant's or Beneficiary's
investment designations in particular fund options
pursuant to Article VII. The maintenance of individual
accounts is only for accounting purposes, and a
segregation of the assets of the Trust Fund to each
account shall not be required.
5.02 Account Adjustments
The accounts of Participants, Former Participants, and
Beneficiaries shall be adjusted in accordance with the
following:
(a) Income--The Trustee shall, following the end of
each Valuation Date, value all assets of the Trust
Fund, allocate net gains and losses, and process
additions to and withdrawals from Account balances
in the following manner:
(1) The Trustee shall first compute the
fair market value of securities and/or the
other assets comprising each investment fund
designated by the Committee for direction of
investment by the Participants, Former
Participants and Beneficiaries of this Plan.
Each Account balance shall be adjusted each
business day by applying the closing market
price of the investment fund for the current
business day to the share/unit balance of the
investment fund as of the close of business
on the current business day.
(2) The Trustee shall then account for
any requests for additions or withdrawals to
be made to or from a specific designated
investment fund by any Participant, Former
Participant or Beneficiary, including
allocations of contributions and Forfeitures.
In completing the valuation procedure
described above, such adjustments in the
amounts credited to such accounts shall be
made on the business day to which the
investment activity relates. A contribution
received by the Trustee pursuant to this Plan
shall not be taken into account until the
Valuation Date coincident with or next
following the date such contribution was both
actually paid to the Trustee and allocated
among the accounts of Participants, Former
Participants and Beneficiaries.
(3) Notwithstanding subsections (1) and
(2) above, in the event a pooled investment
fund is created as a designated investment
fund for investment election in this Plan,
the valuation of the pooled investment fund
and the allocation of earnings of the pooled
investment fund shall be governed by the
Administrative Services Agreement for such
pooled investment fund.
It is intended that this paragraph (a)
operate to distribute among each account all
income of the Trust Fund and changes in the value
of the assets of the Trust Fund.
(b) Savings Contributions--Each Employer
contribution made on behalf of a Participant
pursuant to Section 4.01(a) hereof shall be
allocated to the Participant's Savings
Contribution Account as of the date such
contribution is received by the Trust and posted
to the Participant's Savings Contributions
Account.
(c) Company Matching Contributions--Each Employer
contribution made to a Participant's Company
Matching Contribution Account pursuant to Section
4.01(b) hereof, plus the Forfeitures, if any,
which are being applied to reduce such Company
Matching Contributions, shall be allocated to such
Company Matching Contribution Account as of the
date such contribution is received by the Trust
and posted to the Participant's Company Matching
Contributions Account.
5.03 Maximum Additions
(a) Notwithstanding anything contained herein to
the contrary, the total additions made to the
Salary Reduction Account and Company Matching
Contribution Account of a Participant for any Year
shall not exceed the lesser of (1) or (2), where--
(1) is the greater of $30,000 (or such
greater amount as permitted under Internal
Revenue Service rulings to reflect increases
in the cost-of-living); and
(2) is 25% of the Participant's total
compensation for such Year.
For purposes of this Section 5.03, a
Participant's "total compensation" includes earned
income, wages, salaries, fees for professional
service and other amounts received for personal
services actually rendered in the course of
employment with his Employer (including, but not
limited to, commissions paid to salesmen,
compensation for services on the basis of a
percentage of profits, commissions on insurance
premiums, tips, and bonuses) and excluding the
following: (i) Employer contributions to a plan of
deferred compensation to the extent contributions
are not included in the gross income of a
Participant for the taxable year in which
contributed, or on behalf of a Participant to a
simplified employee pension plan under Code
Section 219(b)(7), and any distributions from a
plan of deferred compensation whether or not
includible in the gross income of the Participant
when distributed, provided that a Participant's
"total compensation" shall include his Savings
Contributions and contributions to a plan
described in Code Section 125; (ii) amounts
realized from the exercise of a non-qualified
stock option, or when restricted stock (or
property) held by a Participant becomes freely
transferable or is no longer subject to a
substantial risk of forfeiture; (iii) amounts
realized from the sale, exchange or other
disposition of stock acquired under a qualified
stock option; (iv) other amounts which receive
special tax benefits, or contributions made by the
Employer (whether or not under a salary reduction
agreement) towards the purchase of an annuity
contract described in Code Section 403(b) (whether
or not the contributions are excludible from the
gross income of the Participant); and (v)
compensation in excess of $150,000 (as
automatically increased in accordance with
Treasury Department regulations to reflect cost-of-
living adjustments).
(b) If such Additions exceed the limitations set
forth in paragraph (a), above, such excess shall
be deemed to arise solely from Company Matching
Contributions described in Section 4.01(b) hereof
and the amount of such contributions constituting
the excess shall be treated as a Forfeiture for
the Year. In the event that all or any portion of
such excess cannot be treated as a Forfeiture for
such Year because of the application of paragraph
(a), above, the amount which cannot be so treated
shall be held in a suspense account until it can
be so treated in a subsequent Year, and no further
Additions shall be made to Participants' accounts
until the amount in such suspense account has been
fully disposed of. Notwithstanding any provision
to the contrary herein contained, if this Plan
terminates during any Year in which such suspense
account cannot be disposed of because of the
application of paragraph (a), above, the amount in
the suspense account shall revert to the
Employers.
(c) Notwithstanding the foregoing, the otherwise
permissible annual Additions for any Participant
under this Plan may be further reduced to the
extent necessary, as determined by the Committee,
to prevent disqualification of the Plan under Code
Section 415, which imposes the following
additional limitations on the benefits payable to
Participants who also may be participating in
another tax-qualified pension, profit-sharing,
savings or stock bonus plan maintained by an
Employer: If an individual is a Participant at any
time in both a defined benefit plan and a defined
contribution plan maintained by the Employer, the
sum of the defined benefit plan fraction and the
defined contribution plan fraction for any Plan
Year may not exceed 1.0. The defined benefit plan
fraction for any Plan Year is a fraction, the
numerator of which is the Participant's projected
annual benefit under the Plan (determined at the
close of the Plan Year) and the denominator of
which is the lesser of (i) 1.25 multiplied by
$90,000 or such greater amount permitted by
Internal Revenue Service regulations to reflect
cost-of-living adjustments, or (ii) 1.4 multiplied
by one hundred percent (100%) of the Participant's
average monthly compensation, as defined in the
applicable Treasury Department regulations under
Code Section 415, during the three consecutive
years when the total compensation paid to him was
highest. The defined contribution plan fraction
for any Plan Year is a fraction, the numerator of
which is the sum of the annual Additions to the
Participant's accounts in such Plan Year and for
all prior Plan Years and the denominator of which
is the sum of the applicable maximum amounts of
annual Additions which could have been made under
Code Section 415(c) for such Plan Year and for all
prior years of such Participant's employment
(assuming for this purpose, that said Code Section
415(c) had been in effect during such prior
years). The applicable maximum amount for any Plan
Year shall be equal to the lesser of (i) 1.25
multiplied by the dollar limitation in effect for
such Plan Year under Code Section 415(c)(1)(A), or
(ii) 1.4 multiplied by twenty five percent (25%)
of the Participant's total compensation for such
Plan Year.
(d) For purposes of this limitation, all defined
benefit plans of the Employer, whether or not
terminated, are to be treated as one defined
benefit plan and all defined contribution plans of
the Employer, whether or not terminated, are to be
treated as one defined contribution plan. The
extent to which a Participant's annual Additions
under the Plan shall be reduced as compared to the
extent to which his annual benefits or Additions
under any other plans shall be reduced in order to
achieve compliance with the limitations of Code
Section 415 shall be determined by the Committee
in such a manner as to maximize the aggregate
benefits payable to such Participant. If such
reduction is under this Plan, the Committee shall
advise the affected Participant of any additional
limitations on his annual benefits required by
this paragraph.
(e) The above limitations are intended to comply
with the provisions of Code Section 415, so that
the maximum benefits provided by plans of the
Employers shall be exactly equal to the maximum
amounts allowed under Code Section 415 and
regulations thereunder. If there is any
discrepancy between the provisions of Code Section
415 and the provisions of this Plan, such
discrepancy shall be resolved in such a way as to
give full effect to the provisions of Code Section
415.
(f) For purposes of this Plan, the "limitation
year" shall be the Plan Year.
(g) Notwithstanding the foregoing, the combined
plan limitations as defined in Code Section 415(e)
and described in paragraphs (c) and (d) above
shall not be applied to limitation years beginning
after December 31, 1999.
5.04 Top-Heavy Provisions
The following provisions shall become effective in any
Year in which the Plan is determined to be a Top-Heavy
Plan:
(a) Determination of Top-Heavy Status--The Plan
will be considered a Top-Heavy Plan for the Year
if as of the last day of the preceding Plan Year,
(the "determination date"):
(1) The value of the sum of Company Matching
Contribution Accounts and Savings
Contribution Accounts (but not including any
allocations to be made as of such last day of
the Year except contributions actually made
on or before that date and allocated pursuant
to Section 5.02(b) or (c)) of Participants
who are Key Employees and their Beneficiaries
exceeds sixty percent (60%) of the value of
the sum of Company Matching Contribution
Accounts and Savings Contribution Accounts
(but not including any allocations to be made
as of such last day of the Year, except
contributions actually made on or before that
date and allocated pursuant to Section
5.02(b) or (c)) of all Participants and their
Beneficiaries (the "60% Test") or (2) the
Plan is part of a required aggregation group
(within the meaning of Code Section
416(g)(2)) and the required aggregation group
is top-heavy. However, and notwithstanding
the results of the "60% Test", the Plan shall
not be considered a Top-Heavy Plan for any
Year in which the Plan is a part of a
required or permissive aggregation group
(within the meaning of Section 416(g)(2))
which is not top-heavy. For purposes of the
"60% Test" for any Plan Year, (i) the value
of the Employer and Savings Contribution
Accounts of individuals who are former Key
Employees shall not be taken into account,
(ii) the value of the Employer and Savings
Contribution Accounts of individuals who have
not rendered services to the Employers for
the five (5)-year period ending on the
determination date shall not be taken into
account, and (iii) any contribution of
eligible rollover contributions, or any plan-
to-plan transfer described in Section 4.05
hereof, shall not be treated as part of the
Participant's Employer or Savings
Contribution Account.
(2) Aggregation shall be determined as follows:
(A) Aggregation Group-
(i) Required
Aggregation-The term "aggregation
group" means-
(I) each plan of the Employer
in which a Key Employee is a
participant, and
(II) each other plan of the
Employer that enables any plan
described in subclause (I) to meet
the requirements of Section
401(a)(4) or 410.
(ii) Permissive
Aggregation-The Employer may treat
any plan not required to be
included in an aggregation group
under clause (i) as being part of
such group if such group would
continue to meet the requirements
of Code Sections 401(a)(4) and 410
with such plan being taken into
account.
(B) Top-Heavy Group-The term
"top-heavy group" means any aggregation
group if-
(i) the sum (as of
the determination date) of-
(I) the present value of the
cumulative accrued benefits for Key
Employees under all defined benefit
plans included in such group, and
(II) the aggregate of the
accounts of Key Employees under all
defined contribution plans included
in such group,
(ii) exceeds sixty
percent (60%) of a similar sum
determined for all Employees.
(b) Minimum Allocations--Notwithstanding the
provisions of Sections 5.02(b) and (c), for any
Year during which the Plan is deemed a Top-Heavy
Plan, the amount of Employer contribution for the
Year to be allocated to the Company Matching
Contribution Account of each Participant who is
not a Key Employee and who is employed by the
Employers on the last day of the Year shall not be
less than the lesser of (i) three percent (3%) of
the Participant's total compensation for the Year
or (ii) the percentage obtained by dividing the
amount allocated to the Savings Contribution
Account and Company Matching Contribution Account
of the most highly compensated Key Employee for
the Year by so much of the total compensation of
such Key Employee for the Year as does not exceed
$150,000 (as automatically increased in accordance
with Treasury Department regulations); provided,,
however, that an amount allocated to the Savings
Contribution Account of a Participant who is not a
Key Employee shall not be considered in
determining the minimum allocation for such
Participant hereunder; provided, further, that the
requirements of this paragraph (b) shall not apply
to the extent that the minimum allocations set
forth herein are made under another defined
contribution plan maintained by the Employer.
(c) Impact on Maximum Benefits--For any Plan Year
in which the Plan is a Top-Heavy Plan, Section
5.03 shall be read by substituting the number 1.00
for the number 1.25 wherever it appears therein;
provided, however, that where the Plan is not a
"Super" Top-Heavy Plan (as defined in Code Section
416(h)(2)(B)), no such substitution shall occur
if, for such Plan Year, the minimum allocations
determined pursuant to paragraph (b) of this
Section are determined by reference to four
percent (4%), in lieu of three percent (3%), of
total compensation.
(d) "Total Compensation" Defined--The term "total
compensation" as used in this Section 5.04 shall
have the same meaning as that set forth in Section
5.03(a) hereof.
ARTICLE VI
BENEFITS
6.01 Retirement or Disability
(a) In General--If a Participant's employment
with his Employer is terminated at or after his
normal retirement date, or if his employment is
terminated prior to his normal retirement date
because of Disability, he shall be entitled to
receive the entire amount then in each of his
accounts in accordance with Section 6.04. The
"entire amount" in a Participant's accounts at
termination of employment shall include any
Employer contribution to be made pursuant to
Section 4.01 for the Year of termination of
employment but not yet allocated. If a
Participant remains in employment after his normal
retirement date, he shall continue to be treated
as an active Participant hereunder. For purposes
of this Plan, the term "normal retirement date"
means, with respect to a Participant, the first
day of the month coincident with, or immediately
following, his attainment of age sixty-five (65).
(b) Required Beginning Date. Except to the
extent that Section 1121(d)(4) of the Tax Reform
Act of 1986 provides otherwise, a Participant or
Former Participant must commence receipt of his
benefits not later than his Required Beginning
Date. The "Required Beginning Date" of a five
percent (5%) owner, as described in Code Section
416(i)(1)(A)(iii), is the later of (i) April 1 of
the calendar year following the calendar year in
which he attains age seventy and one-half (70
1/2), or (ii) the last day of the calendar year
with or within which ends the Plan Year in which
the Participant or Former Participant becomes a
five percent (5%) owner. The "Required Beginning
Date" of a Participant or Former Participant who
is not a five percent (5%) owner is the later of
(i) April 1 of the calendar year following the
calendar year in which he attains age seventy and
one-half (70 1/2) or (ii) the calendar year in
which the Participant terminates employment with
the Company or an Affiliate. Notwithstanding the
foregoing, a Participant who is not a five percent
(5%) owner and who attained age seventy and one-
half (70 1/2) prior to calendar year 1999 shall
have the right to elect the commencement of his
benefits on April 1 of the calendar year following
the calendar year in which he attains such age and
each subsequent year.
6.02 Death
In the event that the termination of employment of a
Participant is caused by his death, the entire amount
then in each of his accounts shall be paid to his
Beneficiary in accordance with Section 6.04 after
receipt by the Committee of acceptable proof of death.
The "entire amount" in a Participant's accounts at
termination of employment shall include any Employer
contributions to be made pursuant to Section 4.01 for
the Year of termination of employment but not yet
allocated.
6.03 Termination for Other Reasons
If a Participant's employment with his Employer is
terminated before his normal retirement date for any
reason other than Disability or death, the Participant
shall be entitled to the sum of:
(a) The entire amount credited to both his
Savings Contribution Account (including any
Employer contributions to be made to such account
for the Year of termination of employment but not
yet allocated) and his Rollover Contribution
Account, plus
(b) An amount equal to the "vested percentage" of
his Company Matching Contribution Account balance
(including any Employer contributions to be made
to such account for the Year of termination of
employment but not yet allocated). Such vested
percentage shall be determined in accordance with
the following schedule:
Vested Forfeited
Years of Service Percentage Percentage
Less than 2 0% 100%
2 but less than 3 25% 75%
3 but less than 4 50% 50%
4 but less than 5 75% 25%
5 or more 100% 0%
Notwithstanding the preceding, a
Participant's Vested Percentage shall be 100% as
of the fifth (5th) anniversary of the date he
first became a Participant, if he is still
employed by the Company or an Affiliate on such
fifth (5th) anniversary.
Payment of benefits due under this Section
shall be made in accordance with Section 6.04.
Notwithstanding any provision to the contrary
herein contained, a Participant shall be fully
vested in his Company Matching Contribution
Account balance upon his attainment of age sixty-
five (65). In the event that the Plan is amended
to change the vesting schedule set forth above, a
Participant with at least three (3) years of
Service shall have the right to elect that his
vested percentage be determined pursuant to the
vesting schedule in effect prior to the amendment.
6.04 Payments of Benefits
The following provisions shall apply with respect to
the method and timing of benefit payments hereunder:
(a) In General--Payment of a Participant's or
Former Participant's benefits upon entitlement
under Sections 6.01-6.03 hereof shall commence as
soon as administratively feasible (taking into
account valuation, allocation of contributions,
liquidation of assets and other administrative
matters) following the date that the Participant
or Former Participant becomes entitled to benefits
under this Article VI; provided that:
payment prior to the date set forth in
the immediately following sentence shall be
made only upon completion by the recipient of
a distribution request in such form as may be
specified from time to time by the Committee;
the value of a Participant's or Former
Participant's (or, if applicable,
Beneficiary's) benefits shall be determined
as of the Valuation Date immediately
preceding the date of such distribution; and
in the case of a Participant or Former
Participant whose vested account balances
exceed $5,000, such account balances shall
not be distributed without the consent of the
Participant or Former Participant, unless
such Participant or Former Participant has
attained age sixty-five (65).
However, and notwithstanding anything to the
contrary herein contained, payment of his benefits
must commence no later than the earlier of (i) the
Participant's or Former Participant's Required
Beginning Date, if any, or (ii) unless the
Participant or Former Participant elects a later
date (which can be no later than the Participant's
or Former Participant's Required Beginning Date),
the 60th day after the latest of the close of the
Plan Year in which the Participant terminates
employment due to attainment of normal retirement,
disability or death or which is the fifth Plan
Year following the Plan Year in which the
Participant otherwise terminates employment; or
(iii) the 60th day after the latest of the close
of the Plan Year in which the Participant attains
age sixty-five (65), in which occurs the date ten
(10) years after the date the Participant first
commenced Participation in the Plan, or in which
the Participant incurs a Severance from Service.
The Committee shall direct the Trustee to
distribute the Participant's, Former Participant's
or Beneficiary's benefits in any one of the
following two methods, as elected by the
recipient:
(1) In a lump sum; or
(2) In periodic payments of
substantially equal monthly installments for
a specified period of time, not in excess of
the life expectancy of the Participant or
Former Participant or the joint life
expectancy of the Participant or Former
Participant and his Beneficiary designated in
accordance with Section 6.05. Within the
term certain, more than fifty percent (50%)
of the present value of the Participant's or
Former Participant's account balances shall
be paid to the Participant or Former
Participant, or to the Participant's or
Former Participant's designated Beneficiary
in the event of the Participant's or Former
Participant's death. At the election of the
Participant or Former Participant, the
accounts from which such installments are
payable may be: (i) maintained as a part of
the Trust Fund and be subject to its
proportionate share of the income, losses,
appreciation or depreciation of the Trust
Fund as a whole, but not subject to any
further contributions, or to participation in
Forfeitures; or (ii) segregated and placed on
deposit at interest in an insured depository.
In all events, the income earned thereon
shall be credited to such accounts and
distributed to such Participant or Former
Participant not less often than annually.
If benefits are being paid over a
term certain and the Participant or Former
Participant dies after benefit payments have
commenced but before his entire interest has
been distributed to him, the balance of the
interest must be distributed at least as
rapidly as under the method chosen by the
Participant or Former Participant. If a
Participant or Former Participant dies prior
to commencement of benefits his entire
interest must be distributed within five (5)
years after his death. Notwithstanding the
preceding sentence, if any portion of a
Participant's or Former Participant's
interest is payable to a designated
Beneficiary, payment of such portion may be
made over the life of such Beneficiary or
over a period certain not exceeding the life
expectancy of the Beneficiary; provided that
such payments must begin not later than one
(1) year after the Participant's or Former
Participant's death; provided, further, that
if the Participant's or Former Participant's
surviving spouse is the Beneficiary referred
to in the preceding sentence, then payments
need not commence earlier than the date on
which the Participant would have attained age
seventy and one-half (70 1/2). If the
designated Beneficiary dies before all
benefit payments have been distributed to
him, the balance of such payments shall be
payable to such designated Beneficiary's
estate.
Notwithstanding any provision of
this Section 6.04 to the contrary, a
Participant, Former Participant, or
Beneficiary who has previously elected to
receive benefits in periodic payments of
substantially equal amounts for a specified
number of years may, at any time, elect to
have the remaining balance of such benefits
paid in a lump sum as soon as practicable
following such election.
The amount which a Participant,
Former Participant, or Beneficiary is
entitled to receive at any time and from time
to time may be paid in cash, except for any
portion of such benefits which was invested
in Common Stock at the time the Participant
became entitled thereto, which portion shall
be distributed in Common Stock, with the
value of any fractional shares to be paid in
cash. In all cases, distributions from the
Plan will be made in accordance with the
requirements of Code Section 401(a)(9) and
the Treasury Department regulations
thereunder, including the minimum
distribution incidental benefit requirements.
(b) Distribution of Small Amounts--
Notwithstanding the preceding provisions of this
Section 6.04, a Participant's or Former
Participant's benefits hereunder shall in all
events be paid in a lump sum if the total of such
benefits is $5,000 or less. Such payment shall be
made as soon as administratively feasible
following the date of such Participant's or Former
Participant's Severance from Service.
(c) Direct Rollovers--Notwithstanding any
provision of the Plan to the contrary, the
recipient of all or any portion of a Participant's
or Former Participant's benefits, other than a
Beneficiary who is not a surviving spouse, may
elect, in the manner prescribed by the Committee,
to have any portion of an eligible rollover
distribution paid directly to an individual
retirement account described in 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 will accept
the eligible rollover distribution, as specified
by the recipient; provided, however, that a
recipient who is a surviving spouse may elect a
direct rollover to an individual retirement
account or individual retirement annuity only.
For purposes of this Section 6.04(c) , an
"eligible rollover distribution" shall mean any
distribution of all or any portion of the balance
to the credit of the recipient, except (i) a
distribution that is one of a series of
substantially equal periodic payments (not less
frequently than annually) made for the life (or
life expectancy) of the recipient or the joint
lives (or joint life expectancies) of the
recipient and the recipient's designated
Beneficiary, or for a specified period of ten (10)
years or more; (ii) a distribution to the extent
such distribution is required under Code Section
401(a)(9); or (iii) the portion of any
distribution that is not includible in gross
income.
(d) No less than thirty (30) days and no more
than ninety (90) days before the date of any
distribution to a Participant or Former
Participant prior to his normal retirement date,
the Participant or Former Participant must receive
(i) a general description of the material
features, and an explanation of the relative
values, of all optional forms of benefit available
under the Plan, and (ii) notice of the his right
to defer the distribution until his normal
retirement date. The notice requirement described
clause (ii) of the prior sentence shall not apply
to any distribution which commences after the
Participant's or Former Participant's normal
retirement date, and none of the requirements of
the preceding sentence shall apply if the value of
a Participant's or Former Participant's benefits
under the Plan is less than $5,000.
Notwithstanding the preceding, if Code
Sections 401(a)(11) and 417 do not apply to a
Participant's or Former Participant's
distribution, such distribution may commence less
than thirty (30) days after the notice required
under Treasury Regulation 1.411(a)-11(c) is
given, provided that:
(1) the Committee must inform the
Participant or Former Participant that he has
a right to consider the decision of whether
or not to elect to receive a distribution
(and, if applicable, a particular
distribution option) during a period of at
least thirty (30) days after such notice is
delivered, and
(2) the Participant or Former
Participant, after receiving such notice,
must affirmatively elect to receive an
immediate distribution of his account
balances under the Plan.
6.05 Designation of Beneficiary
Each Participant or Former Participant from time to
time may designate any person or persons (who may be
designated contingently or successively and who may be
an entity other than a natural person) as his
Beneficiary or Beneficiaries to whom his Plan benefits
are paid if he dies before receipt of all such
benefits. Each Beneficiary designation shall be on a
form prescribed by the Committee and will be effective
only when filed with the Committee during the
Participant's (or Former Participant's) lifetime. Each
Beneficiary designation filed with the Committee will
cancel all Beneficiary designations previously filed
with the Committee. Except as otherwise provided
below, the revocation of a Beneficiary designation, no
matter how effected, shall not require the consent of
any designated Beneficiary.
If any Participant or Former Participant fails to
designate a Beneficiary in the manner provided herein,
or if the Beneficiary designated by a deceased
Participant or Former Participant dies before him or
before complete distribution of the Participant's (or
Former Participant's) benefits, the Committee shall
direct the Trustee to distribute such Participant's (or
Former Participant's) benefits (or the balance thereof)
to his surviving spouse or, if he has no surviving
spouse, then, in the Committee's discretion, to the
executor or administrator of the estate of the
Participant or Former Participant.
Notwithstanding any provision to the contrary herein
contained, the designation, by a married Participant or
a married Former Participant, of a Beneficiary other
than his spouse shall require the written consent of
such spouse. The consent must name the designated
Beneficiary or Beneficiaries who are to be the
recipients of the Participant's (or Former
Participant's) benefits. The spouse's consent must
acknowledge the effect of the election and be witnessed
by a notary public or Plan representative.
If any amount is payable under this Plan either to a
minor or to any Beneficiary who appears to have limited
or restricted financial responsibility, the Committee
shall have the sole and absolute right to either pay
such benefits to such person or to pay such benefits to
a custodial parent or guardian or guardian ad litem of
such minor or other person or to the trustee of a
Medicare support trust for such person, or to such
other person or persons as the Committee shall
determine. The Committee shall have the right but not
the duty to delay payments under this Plan until the
Committee's receipt of a court order designating the
person to whom such payments shall be made, the cost of
which shall be born by the Beneficiary or guardian and
not the Plan.
6.06 Loans to Participants
The Committee is authorized to establish a program of
Participant loans from the Trust Fund. A loan shall be
made to a Participant for any reason.
In addition to such rules and procedures as the
Committee may adopt and establish (which rules and
procedures shall be set forth in a separate written
document, which shall however be considered as forming
a part of this Plan), all loans shall comply with the
following rules and conditions:
(a) An application for a loan by a Participant
shall be made in writing to the Committee, whose
action thereon shall be final.
(b) The period of repayment for any loan shall be
arrived at by agreement between the Committee and
the borrower, but such period in no event shall
exceed five (5) years; provided, however, that
such period may exceed five (5) years where the
Participant certifies that the proceeds of the
loan are to be used to acquire, construct,
reconstruct or substantially rehabilitate a
dwelling which is to be used within a reasonable
time as the principal residence of the Participant
or a dependent of the Participant. The loan (i)
must be in level payments, made not less
frequently than quarterly, over the term of the
loan, with privilege of prepayment, in whole or in
part, at any time, and (ii) prior to termination
of the borrowing Participant's employment, shall
be repaid by payroll deduction. Within the
limitations of the immediately preceding sentence,
the Committee shall determine the precise manner
and frequency of payments at the time that the
loan is made.
(c) Each loan made to a Participant shall be
secured by (i) an assignment and pledge of not
more than 50%, as determined immediately after the
origination of the loan as of the current
Valuation Date, of his right, title and interest
in and to his Savings Contribution Account plus
the vested portion of his Company Matching
Contribution Account and his Rollover Contribution
Account, if any, and (ii) his promissory note for
the amount of the loan, including interest,
payable to the order of the Trustee. A "default"
shall occur upon the failure by a Participant to
make payment under the loan by the end of the
calendar quarter following the calendar quarter in
which the due date of such payment occurred;
provided that in the case of a Participant who is
on an Authorized Leave of Absence for medical
reasons, no default shall occur until the end of a
twelve (12)-month period beginning on such due
date. Upon default, the entire remaining
principal balance of the loan shall be treated as
a deemed distribution to the Participant from the
Plan, and the amount of such deemed distribution
shall be reported to the Internal Revenue Service
on Form W2-P or Form 1099-R, as appropriate.
(d) Each loan shall bear a reasonable rate of
interest to be determined by the Committee.
(e) No loan shall be made in an amount less than
$1,000. In addition, with respect to a
Participant, no more than two loans may be
outstanding at any time.
(f) No amount shall be loaned to a Participant
that would cause his outstanding loan balance
under the Plan to exceed the lesser of (1) or (2),
where-
(1) is $50,000 reduced by the excess of
the highest outstanding balance of loans to
such Participant over the twelve (12)-month
period ending on the day before the loan is
made over the outstanding balance of loans to
such Participant on the date the loan is
made, and
(2) is one-half (1/2) of the value of
his Savings Contribution Account, Rollover
Contribution Account and the vested portion
of his Company Matching Contribution Account,
determined as of the immediately preceding
Valuation Date.
(g) No distribution (other than a hardship
withdrawal described in Section 6.07(a) hereof)
shall be made to any Participant or Former
Participant or to a Beneficiary of any such
Participant unless and until all unpaid loans of
such Participant have been liquidated.
Foreclosure against a Participant's Company
Matching Contribution Account, Rollover
Contribution Account and Savings Contribution
Account shall occur immediately upon default and
shall result in the reduction of such account
balances to the extent of unpaid principal;
provided that there shall be no foreclosure
against a Participant's account balances until the
occurrence hereunder of an event permitting
distribution of such account balances.
(h) Loans shall be made available to Former
Participants who are parties-in-interest only as
required by ERISA and Department of Labor
guidelines.
(i) Payments of loan principal and interest shall
be reinvested in the same manner as the
Participant's Savings Contributions are being
invested or, if no Savings Contributions are being
made currently, in the same manner as the last
investment designation received by the Participant
under Section 7.01.
(j) The Committee may from time to time
promulgate such additional procedures as it deems
necessary, in its sole discretion, for the
governance of Plan loans; provided that such
procedures shall be consistent with the foregoing
provisions of this Section 6.06 and shall be
applied in a uniform and nondiscriminatory manner.
(k) Loan repayments will be suspended under this
Plan, as permitted under Code Section 414(u)(4),
on behalf of those Participants who are on an
Authorized Leave of Absence because of "qualified
military service," as defined in Code Section
414(u).
(l) Each loan shall be treated as an investment
of the Participant's individual account under the
Plan
6.07 Hardship Distributions and QDROs.
(a) Hardship Distributions If the Participant
elects a withdrawal from his Savings Contribution
Account, such withdrawal (i) may not include any
earnings accrued after 1988 and (ii) must be made
on account financial hardship. The Committee,
either directly or through the Administrative
Delegate, will determine that the Participant has
properly demonstrated financial hardship only if
the Participant demonstrates that the purpose of
the withdrawal is to meet his immediate and heavy
financial needs, the amount of the withdrawal does
not exceed such financial needs, and the amount of
the withdrawal is not reasonably available from
other resources. The Participant will be
considered as having demonstrated that the purpose
of the withdrawal is to meet his immediate and
heavy financial needs only if he represents that
the distribution is on account of --
(1) medical expenses (as described in
Code Section 213(d)) incurred (or required to
be paid in advance to obtain medical care) by
the Participant, his spouse or any of his
dependents;
(2) the purchase (excluding mortgage
payments) of a principal residence for the
Participant;
(3) the payment of tuition and related
educational fees for the next twelve (12)
months of post-secondary education for the
Participant, his spouse, children or
dependents; or
(4) foreclosure on the mortgage of, or
eviction from, the Participant's principal
residence.
Moreover, the Participant will be considered
as having demonstrated that the amount of the
withdrawal is unavailable from his other resources
and in an amount not in excess of that necessary
to satisfy his immediate and heavy financial needs
only if each of the following requirements is
satisfied:
(I) the Participant represents that the
distribution is not in excess of the amount
of his immediate and heavy financial needs;
and
(II) the Participant has obtained all
distributions, other than hardship
distributions, and all nontaxable loans
currently available to him under all plans
currently maintained by the Employers.
In the event of any withdrawal by a
Participant pursuant to this paragraph (a), such
Participant's Savings Contributions and his
contributions under all other employee plans
maintained by the Employers shall be suspended for
a period of twelve (12) months following such
withdrawal, and the Participant may authorize no
further contributions under this paragraph (a)
until the first business day immediately following
such twelve (12)-month period of suspension.
Withdrawal elections under this paragraph may be
made at any time but not more frequently than once
each Plan Year. All withdrawals under this
subparagraph shall be made in accordance with the
provisions of Section 6.04 hereof, relating to the
form of payment. To the extent elected by a
Participant, any hardship withdrawal made pursuant
to this paragraph to such Participant shall be
increased by an amount equal to the lesser of (i)
all Federal, state and local income taxes and
associated penalties imposed with respect to such
hardship withdrawal or (ii) the amount, if any, in
such Participant's Savings Contribution Account in
excess of such hardship withdrawal.
Any withdrawal by a Participant may not
exceed the balance then credited to his Savings
Contribution Account. Withdrawal elections shall
be made on written forms supplied by the Committee
for that purpose. If the Participant is married,
his spouse must specifically consent to a
withdrawal hereunder within a period that is
ninety (90) days prior to the date on which the
withdrawal is made.
(b) Qualified Domestic Relations Orders.
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 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
purposes of this paragraph (b), "Alternate Payee,"
and "earliest retirement age" shall have the
meaning set forth in Code Section 414(p).
6.08 Sale of Assets.
Notwithstanding any other provision of the Plan to the
contrary, in the event that either the Company or an
Affiliate sells substantially all of its assets used by
it in its trade or business, an Employee who continues
employment with the entity acquiring such assets shall
be entitled to receive a distribution in an amount
equal to the vested amount in such Employee's accounts
determined as of the Valuation Date coincident with or
next preceding the date of his Severance from Service.
6.09 Unclaimed Payments.
(a) General. Each Participant, Former
Participant, Alternate Payee under any qualified
domestic relations order, and each Beneficiary of
a deceased Participant shall file with the
Committee from time to time in writing his or her
post office address and each change of post office
address. The Committee is required only to make
reasonable efforts to locate a Participant, Former
Participant, Alternate Payee or Beneficiary.
If the Committee mails by registered or
certified mail, return receipt requested, to a
Participant, Former Participant, Alternate Payee
or Beneficiary entitled to a distribution
hereunder at his last known address, a
notification that he is so entitled and said
notification is returned as being undeliverable
because the addressee cannot be located at said
address, and if, by the last day of the Plan Year
coinciding with or immediately following the fifth
(5th) anniversary of the date as of which such
person first could not be located, said person has
not informed the Committee of his or her
whereabouts, his or her entire interest in this
Plan shall become a Forfeiture and shall be
reallocated as provided in Section 4.03 for the
Plan Year in which it occurs. Thereafter such
person shall have no further right or interest
therein except as provided in paragraph (b) below.
(b) Reinstatement. If a Participant, Former
Participant, Alternate Payee or Beneficiary prior
to the Plan Year in which the Plan and Trust
terminate, duly claims and proves entitlement to a
benefit which otherwise lapsed pursuant to
paragraph (a) above, such benefits as shall then
be due, unadjusted for Trust earnings and/or
losses subsequent to the date of forfeiture, shall
be paid by the Plan as soon as administratively
feasible.
(c) Source of Reinstatement. The reinstatement
of lapsed benefits pursuant to paragraph (b) above
shall be made first from the forfeiture management
account described in Section 4.03 hereof. If the
amount in such forfeiture management account is
not sufficient for this purpose, such
reinstatement shall, to the extent necessary, next
be made from Trust earnings, and then from a
special Company contribution.
(d) Missing Participants. Each Participant,
Former Participant or Beneficiary is responsible
for informing the Company of his current mailing
address. The Committee shall not authorize a
distribution from the Plan without this
information.
During the time when a benefit hereunder is
payable to any Participant, Former Participant, or
Beneficiary, the Committee, upon request by the
Trustee, or at its own instance, shall send, by
registered letter, return receipt requested, to
such Participant, Former Participant or
Beneficiary at his current mailing address, a
written demand for his then address and for
satisfactory evidence of his continued life, or
both.
If, after reasonable efforts by the Committee
to locate a Participant, Former Participant or
Beneficiary, the Committee is unable to locate
such individual, then the amounts distributable to
such Participant, Former Participant or
Beneficiary shall, subject to applicable federal
or state laws, either (i) be treated as a
Forfeiture under the Plan and used to reduce the
Company's contribution to the Plan, or (ii) if the
Plan is joined as a party to any escheat
proceedings involving the unclaimed benefits, be
paid in accordance with the final judgment as if
the final judgment were a claim filed by the
Participant, Former Participant or Beneficiary.
If the benefits for a Participant, Former
Participant or Beneficiary are forfeited pursuant
to clause (i) of the preceding sentence, and such
Participant, Former Participant or Beneficiary
subsequently is located, the forfeited amount
shall be restored to the Plan by the Company and
shall not be treated as an Addition under Code
Section 415.
(e) Disposition of Lapsed Benefits in Year Plan
and Trust Terminate. In the event that an
individual's entire interest in the Plan is
forfeitable and lapses pursuant to paragraph (a)
above in the Plan Year in which both the Plan and
Trust terminate, if the Committee after having
complied with the notice requirements of paragraph
(a) is unable to locate such individuals by the
close of the Plan Year, the following provisions
shall apply to the exclusion of the preceding
provisions of this Section 6.09.
(1) Such individual's interest shall be
remitted to the appropriate state or
commonwealth agency responsible for unclaimed
assets and escheat (as provided below), to be
held and disposed of by such agency in
accordance with applicable law. Once so
remitted, such individual (or any person
claiming by, through or under such
individual) shall have no further claim
against this Plan and Trust, and such
individual's rights to any such funds
otherwise distributable from the Plan and
Trust shall be determined solely by reference
to such rights and legal remedies as exist
under the laws of such state or commonwealth.
(2) It is intended that this paragraph
(e) comply with the requirements of Code
Section 411 and in particular Treasury
Regulation 1.411(a)-4(b)(6) regarding
escheat of benefits to a state, thus
permitting the orderly cessation of all Plan
and Trust activity consistent with the
protection of the interests of Participants,
Former Participants and Beneficiaries.
(3) The address listed on the Plan's
records for a Participant, Former Participant
or Beneficiary shall be used for purposes of
identifying the appropriate state or
commonwealth to which assets shall be
remitted hereunder and thereafter escheat.
To the extent that more than one concurrent
address is shown on the Plan's records, the
Committee shall, in its sole discretion,
determine which address shall be used for
purposes of the preceding sentence.
6.10 De Minimis Amounts
Any amounts in the accounts of a Participant, Former
Participant or Beneficiary attributable to a
discrepancy between accrued and actual Income and which
arises after a complete distribution of such accrued
Income shall, to the extent that the aggregate of such
amounts is less than the charges imposed by the Trustee
in distributing such amounts, not be distributed but
shall instead be added to future Income items for
subsequent allocation to other accounts.
ARTICLE VII
TRUST FUND
7.01 Establishment of Trust Fund. A Trust Fund shall be
established for the purpose of receiving contributions
and paying benefits under this Plan pursuant to the
Trust Agreement. A Trustee (or Trustees) shall be
appointed under the terms of the Trust Agreement to
administer the Trust Fund in accordance with the terms
of such Trust Agreement.
7.02 Payment of Contributions to Trust Fund. All
contributions under this Plan shall be paid to the
Trustee and shall be held, invested, and reinvested by
the Trustee in accordance with the terms of the Trust
Agreement. All property and funds of the Trust Fund,
including income from investments and from all other
sources, shall be retained for the exclusive benefit of
the Participants, as provided in the Plan, and shall be
used to pay benefits to Participants or their
Beneficiaries, or to pay expenses of administration of
the Plan and Trust Fund to the extent not paid by the
Company.
All assets of the Trust Fund, including investment
income, shall be retained for the exclusive benefit of
Participants, Former Participants, and Beneficiaries
and shall be used to pay benefits to such persons or to
pay administrative expenses of the Plan and Trust Fund
to the extent not paid by the Employers and, except as
provided in Section 5.03(b) and below, shall not revert
to or inure to the benefit of the Employers.
Notwithstanding anything herein to the contrary and
pursuant to Section 403(c)(2) of ERISA, upon an
Employer's request, a contribution which was made by
reason of a mistake of fact or conditioned upon the
deductibility of such contribution under Code Section
404, shall be returned to the Employer within one year
after the payment of the contribution or the
disallowance of the deduction (to the extent
disallowed), whichever is applicable. It is hereby
acknowledged that all contributions hereunder are
expressly conditioned on the deductibility of such
contributions.
7.03 Investment of Assets.
(a) The Trustee shall generally have authority
for the management and investment of assets held
in the Trust, to the extent provided in the Trust;
provided that a Participant, Former Participant,
or Beneficiary shall have the right, in accordance
with procedures prescribed by the Committee, to
direct the Trustee as to the investment of assets
in his Accounts. Any such investment direction by
a Participant, Former Participant, or Beneficiary
shall consist solely of the right to direct the
extent to which assets shall be invested in the
investment media designated by the Company under
the Trust.
(b) The Trustee shall, at the direction of the
Committee, maintain at least four (4) investment
funds, in addition to the Common Stock Fund
described in Section 7.04 below. Such investment
funds shall be designated by the Committee and
shall include at least four (4) mutual funds
designed to permit a diversified investment
portfolio. A Participant's investments in the
Common Stock Fund and the investment options shall
be governed by the following rules:
(1) Company Matching Contributions shall
generally be invested in Common Stock.
Notwithstanding the preceding, a Participant
who has attained age fifty-five (55) may also
change his investment designation for his
future Company Matching Contributions and/or
his existing Company Matching Contribution
Account balances at the same time and in the
same manner as his Savings Contributions and
401(k) Savings Account balances.
(2) A Participant shall designate how much
of his Savings Contributions Account shall be
invested in each investment fund. Subject to
paragraph (c) below, a Participant may invest
all of his Savings Contributions in any one
investment fund or in any combination of
investment funds so long as the percentage of
contributions elected to be invested in any
one investment fund is a specified whole
percentage of his contribution. No other
type of designation will be permitted.
(c) Changes and Transfers in Investments Among
Investment Options.
A Participant may change the investment
allocation of his future Savings Contributions,
effective as of the next Valuation Date, and/or
his Savings Account balance, effective as of the
next Valuation Date, by effecting an instruction
through a designated telephone access system. Any
and all such changes in investment allocation will
be in whole percentages of his total Savings
Contributions and/or his Account balances.
Should a Participant, Former Participant, or
Beneficiary fail to provide the Trustee with the
investment directives described herein, the assets
in such individual's Accounts shall be invested as
determined by the Trustee in accordance with the
provisions of the Trust Agreement.
7.04 Common Stock
(a) General. The Trustee shall maintain a Common
Stock Fund to hold the shares of Common Stock
under the Trust.
(b) Investment of Common Stock Fund Assets. The
Trustee may, at the discretion of the Committee,
elect to hold a reasonable portion (generally not
more than five percent (5%)) of the assets
invested in the Common Stock at any time in cash
equivalents and not in Common Stock, in order to
facilitate administration of such fund.
(c) Participants' Right to Vote Common Stock.
All voting rights on shares of Common Stock held
by the Trust shall be exercised by the Trustee
only as directed by the Participants acting in
their capacity as named fiduciaries with respect
to shares allocated to their Accounts as follows:
(1) As soon as practicable before each annual or
special shareholders' meeting of the Company,
the Trustee shall furnish to each
Participant, Former Participant or
Beneficiary a copy of the proxy solicitation
material sent generally to shareholders,
together with a form requesting confidential
instructions as to the manner in which the
shares of Common Stock allocated to the
accounts of such Participant, Former
Participant or Beneficiary are to be voted.
The Company will cooperate with the Trustee
to ensure that Participants, Former
Participants and Beneficiaries receive the
requisite information in a timely manner.
Except as provided in subparagraph (2),
below, the materials furnished to the
Participants, Former Participants and
Beneficiaries shall include a notice from the
Trustee that the Trustee will not vote any
shares for which timely instructions are not
received by the Trustee. Upon timely receipt
of such instructions, the Trustee (after
combining votes of fractional shares to give
effect to the greatest extent to the
Participants', Former Participants' and
Beneficiaries' instructions) shall vote the
shares as instructed. If voting instructions
for shares of Common Stock allocated to the
accounts of any Participant, Former
Participant or Beneficiary are not timely
received by the Trustee for a particular
shareholders' meeting, such shares shall not
be voted. The instructions received by the
Trustee from Participants, Former
Participants or Beneficiaries shall be held
by the Trustee in strict confidence and shall
not be divulged or released to any person
including directors, officers or employees of
the Company, or of any other company, except
as otherwise required by law.
(2) With respect to all corporate matters
submitted to shareholders, all shares of
Common Stock allocated to the accounts of
Participants, Former Participants and
Beneficiaries shall be voted only in
accordance with the directions of such
Participants, Former Participants and
Beneficiaries as named fiduciaries and as
given to the Trustee. Each Participant,
Former Participant and Beneficiary shall be
entitled to direct the voting of shares of
Common Stock (including fractional shares to
1/1000th of a share) allocated to his
accounts. With respect to shares of Common
Stock allocated to the accounts of a deceased
Participant or deceased Former Participant,
the designated Beneficiary of such
Participant or Former Participant, if any,
shall be entitled to direct the voting with
respect to such allocated shares.
(3) In the event that any person (other than the
Employers or any Affiliate thereof) shall
make a public offer for any Common Stock, the
Company undertakes to promptly provide, or
cause to be provided, a copy of the offer,
and any other material information concerning
such offer, to each Participant, Former
Participant or Beneficiary who has shares of
Common Stock allocated to his accounts
together with a form for furnishing to the
Trustee instructions as to whether the shares
of Common Stock allocated to his accounts
should be tendered. All tender or exchange
decisions with respect to Common Stock held
by the Trust shall be made only by the
Participants, Former Participants and
Beneficiaries acting in their capacity as
named fiduciaries, with respect to both
allocated and unallocated shares in
accordance with the following provisions of
this paragraph (c).
(4) In the event that an offer shall be received
by the Trustee (including a tender offer for
shares of Common Stock subject to
Section 14(d)(1) of the Securities Exchange
Act of 1934 or subject to Rule 13e-4
promulgated under that Act, as those
provisions may from time to time be amended)
to purchase or exchange any shares of Common
Stock held by the Trust, the Trustee will
advise each Participant, Former Participant
or Beneficiary who has shares of Common Stock
credited to his accounts in writing of the
terms of the offer as soon as practicable
after its commencement and furnish each such
Participant, Former Participant or
Beneficiary with a form by which he may
instruct the Trustee confidentially whether
or not to tender or exchange the shares
allocated to his accounts and a proportionate
share of any unallocated shares (including
fractional shares to 1/1000th of a share).
The materials furnished to the Participants,
Former Participants or Beneficiaries shall
include (i) a notice from the Trustee that,
except as provided in subparagraph (3), the
Trustee will not tender or exchange any
shares for which timely instructions are not
received by the Trustee and (ii) such related
documents as are prepared by any person and
provided to the shareholders of the Company
pursuant to the Securities Exchange Act of
1934. The Company and the Trustee may also
provide Participants, Former Participants and
Beneficiaries with such other material
concerning the tender or exchange offer as
the Trustee or the Company in their
discretion determine to be appropriate;
provided, however, that prior to any
distribution of materials by the Company, the
Trustee shall be furnished with sufficient
numbers of complete copies of all such
materials. The Company will cooperate with
the Trustee to ensure that Participants,
Former Participants and Beneficiaries receive
the requisite information in a timely manner.
(5) The Trustee shall tender or not tender shares
or exchange shares of Common Stock allocated
to the accounts of any Participant, Former
Participant or Beneficiary only as, and to
the extent, instructed by the Participant,
Former Participant or Beneficiary as a named
fiduciary. With respect to shares of Common
Stock allocated to the accounts of a deceased
Participant or deceased Former Participant,
the designated Beneficiary of such
Participant or Former Participant, as a named
fiduciary, shall be entitled to direct the
Trustee whether or not to tender or exchange
such shares. If tender or exchange
instructions for shares of Common Stock
allocated to the accounts of any Participant,
Former Participant or Beneficiary are not
timely received by the Trustee, the Trustee
will treat the non-receipt as a direction not
to tender or exchange such shares. The
instructions received by the Trustee from
Participants, Former Participants or
Beneficiaries shall be held by the Trustee in
strict confidence and shall not be divulged
or released to any person, including
directors, officers or employees of the
Company, or of any other company, except as
otherwise required by law.
(6) In the event, under the terms of a tender
offer or otherwise, any shares of Common
Stock tendered for sale, exchange or transfer
pursuant to such offer may be withdrawn from
such offer, the Trustee shall follow such
instructions respecting the withdrawal of
such securities from such offer in the same
manner and the same proportion as shall be
timely received by the Trustee from the
Participants, Former Participants and
Beneficiaries, as named fiduciaries, entitled
under this paragraph (c) to give instructions
as to the voting, sale, exchange or transfer
of securities pursuant to such offer.
(7) In the event that an offer for fewer than all
of the shares of Common Stock held by the
Trustee shall be received by the Trustee,
each Participant, Former Participant or
Beneficiary who has Common Stock allocated to
his accounts shall be entitled to direct the
Trustee as to the acceptance or rejection of
such offer (as provided by subparagraphs (3)
through (6) above) with respect to a portion
of the shares of Common Stock allocated to
his accounts, which portion shall be equal to
the (i) the number of shares of Common Stock
allocated to his accounts divided by the
number of shares of Common Stock held by the
Plan, multiplied by (ii) the number of shares
of Common Stock for which an offer was
received. The Trustee shall sell, exchange
or transfer shares of Common Stock based on
the instructions received by the Trustee from
the Participants, Former Participants or
Beneficiaries who timely instruct the
Trustee, pursuant the preceding subparagraphs
of this paragraph (c), to sell, exchange or
transfer such shares pursuant to such offer,
each on a pro rata basis in accordance with
the number or amount of such shares allocated
to his accounts.
(8) In the event that an offer shall be received
by the Trustee and instructions shall be
solicited from Participants, Former
Participants or Beneficiaries pursuant to
subparagraphs (3) through (7) above regarding
such offer and, prior to termination of such
offer, another offer is received by the
Trustee for the securities subject to the
first offer, the Trustee shall use its best
efforts under the circumstances to solicit
instructions from the Participants, Former
Participants or Beneficiaries to the Trustee
(i) with respect to securities tendered for
sale, exchange or transfer pursuant to the
first offer, whether to withdraw such tender,
if possible, and, if withdrawn, whether to
tender any securities so withdrawn for sale,
exchange or transfer pursuant to the second
offer and (ii) with respect to securities not
tendered for sale, exchange or transfer
pursuant to the first offer, whether to
tender or not to tender such securities for
sale, exchange or transfer pursuant to the
second offer. The Trustee shall follow all
such instructions received in a timely manner
from Participants, Former Participants or
Beneficiaries in the same manner and in the
same proportion as provided in subparagraphs
(3) through (6) above. With respect to any
further offer for any Common Stock received
by the Trustee and subject to any earlier
offer (including successive offers from one
or more existing offerors), the Trustee shall
act in the same manner as described above.
(9) Instructions from a Participant, Former
Participant or Beneficiary to the Trustee to
tender or exchange shares of Common Stock
will not be deemed a withdrawal or suspension
from the Plan or a Forfeiture of any portion
of the Participant's, Former Participant's or
Beneficiary's interest in the Plan. Funds
received in exchange for tendered shares will
be credited to the accounts of the
Participant, Former Participant or
Beneficiary whose shares from such accounts
were tendered and any funds attributable to
the Participant's, Former Participant's or
Beneficiary's Company Matching Contribution
Account will be used by the Trustee to
purchase Common Stock, as soon as
practicable. In the interim, the Trustee
will invest such funds credited to Company
Matching Contribution Accounts in short-term
investments permitted under the Trust
Agreement.
(10) The Trustee shall, after consultation with
the Company, take all steps necessary,
including appointment of an outside
independent administrator, to maintain the
confidentiality of responses from
Participants, Former Participants and
Beneficiaries and/or to adequately discharge
their obligations as named fiduciaries.
(11) Nothing in this paragraph (c) shall be read
or construed as extending to Participants who
have experienced a termination of employment
for any reason other than death or Disability
(or their Beneficiaries) (referred to in this
subsection as "Nonvested Individuals") the
right to instruct the Trustee as to the
voting or tender of any shares of Company
Stock allocated to the accounts of such
Nonvested Individuals if and to the extent
that such shares are not a part of such
Participants' Vested Interest under the Plan
with respect to such Participants within the
meaning of Section 6.03(b) hereof (such
shares referred to herein as the "Nonvested
Shares"). The Trustee shall neither accept
nor be bound to follow any instruction from a
Nonvested Individual with respect to
Nonvested Shares allocated to the accounts of
such individual and the Trustee shall be the
"named fiduciary" for all purposes with
respect to the voting and tender of such
Nonvested Shares.
(12) In the event that the Company initiates a
tender or exchange offer, the Trustee may, in
its sole discretion, enter into an agreement
with the Company not to tender or exchange
any shares of Common Stock in such offer, in
which event, the provisions of subparagraphs
(3) through (10) shall have no effect with
respect to such offer and the Trustee shall
not tender any shares of Common Stock in such
offer.
(13) In order to effectuate the specific powers
and authority granted to the Trustee in this
paragraph (c), the Trustee may 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. The Trustee may use its own
facilities in effecting any transaction
involving assets of the Trust Fund, unless
such use is prohibited by Section 406 of
ERISA.
(d) Notwithstanding any other provision hereof, it is
specifically provided that the Trustee shall not
purchase or sell Common Stock in the open market
under the terms hereof during any period in which
such purchase is, in the opinion of the Committee
(and in the opinion of the Company's general
counsel or his/her designee), restricted by any
law or regulation applicable thereto. During such
period, amounts that would otherwise be invested
in Common Stock shall be invested in such other
assets as are designated by the Committee, or, if
so directed by the Committee, the Trustee shall
hold such amounts uninvested for a reasonable
period pending appropriate investment.
ARTICLE VIII
ADMINISTRATION
8.01 Allocation of Responsibility Among Fiduciaries for Plan
and Trust Administration
The Fiduciaries shall have only those specific powers,
duties, responsibilities and obligations as are
specifically given them under this Plan or the Trust.
In general, the Employers shall have the sole
responsibility for making the contributions provided
for under Section 4.01, and the Company shall have the
sole authority to appoint and remove the Trustee,
members of the Committee and any investment manager
which may be appointed pursuant to Section 8.08 hereof,
and to amend or terminate, in whole or in part, this
Plan or the Trust. The Committee shall have the sole
responsibility for the administration of this Plan,
which responsibility is specifically described in this
Plan and the Trust. The Trustee shall have
responsibility for the administration of the Trust and
the management of the assets held under the Trust, to
the extent provided in the Trust and Article VII
hereof. Each Fiduciary warrants that any directions
given, information furnished, or actions taken by it
shall be in accordance with the provisions of the Plan
or the Trust, as the case may be, authorizing or
providing for such direction, information or action.
Furthermore, each Fiduciary may rely upon any such
direction, information or action of another Fiduciary
as being proper under this Plan or the Trust, and is
not required under this Plan or the Trust to inquire
into the propriety of any such direction, information
or action. It is intended under this Plan and the
Trust that each Fiduciary shall be responsible for the
proper exercise of its own powers, duties,
responsibilities and obligations and shall not be
responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in
any manner against investment loss or depreciation in
asset value.
8.02 Appointment of Committee
The Plan shall be administered by a Committee
consisting of at least three persons who shall be
appointed by and serve at the pleasure of the Board of
Directors of the Company. All usual and reasonable
expenses of the Committee may be paid in whole or in
part by the Employers, and any expenses not paid by the
Employers shall be paid by the Trustee out of the
principal or income of the Trust Fund. Any members of
the Committee who are Employees shall not receive
compensation with respect to their services for the
Committee.
8.03 Claims Procedure
The Committee shall make all determinations as to the
right of any person to a benefit. Any denial by the
Committee of a claim for benefits under the Plan by a
Participant, Former Participant, or Beneficiary shall
be stated in writing by the Committee and delivered or
mailed to the Participant, Former Participant, or
Beneficiary; and such notice shall set forth the
specific reasons for the denial, written to the best of
the Committee's ability in a manner that may be
understood without legal or actuarial counsel. In
addition, the Committee shall afford a reasonable
opportunity to any Participant, Former Participant, or
Beneficiary whose claim for benefits has been denied
for a review of the decision denying the claim.
8.04 Records and Reports
The Committee shall exercise such authority and
responsibility as it deems appropriate in order to
comply with ERISA and governmental regulations issued
thereunder relating to records of Participant's
Service, account balances and the percentage of such
account balances which are nonforfeitable under the
Plan; notifications to Participants and Former
Participants; annual registration with the Internal
Revenue Service; and annual reports to the Department
of Labor.
8.05 Other Committee Powers and Duties
The Committee shall have such duties and powers as may
be necessary to discharge its responsibilities
hereunder, including, but not by way of limitation, the
following:
(a) to construe and interpret the Plan, decide
all questions of eligibility and determine the
amount, manner and time of payment of any benefits
hereunder;
(b) to prescribe procedures to be followed by
Participants, Former Participants, or
Beneficiaries filing applications for benefits;
(c) to prepare and distribute, in such manner as
the Committee determines to be appropriate,
information explaining the Plan;
(d) to receive from the Employers and from
Participants or Former Participants such
information as shall be necessary for the proper
administration of the Plan;
(e) to furnish an Employer, upon request, such
annual reports with respect to the administration
of the Plan as are reasonable and appropriate;
(f) to receive, review and keep on file (as it
deems convenient or proper) reports of the
financial condition, and of the receipts and
disbursements, of the Trust Fund from the Trustee;
(g) to appoint or employ individuals to assist in
the administration of the Plan and any other
agents it deems advisable, including legal and
actuarial counsel, the Trustee or any other
Fiduciary; and
(h) to designate and/or engage one or more
Administrative Delegates to perform, without
discretionary authority or control, administrative
functions within the framework of policies,
interpretations, rules, practices and procedures
established by the Committee or any other "named
fiduciary." (Any action made or taken by an
Administrative Delegate may be appealed by an
affected Participant or Beneficiary to the
Committee in accordance with the claims review
procedures provided in Section 8.03. To the
extent that an issue submitted to an
Administrative Delegate is not addressed under the
framework of policies, interpretations, rules,
practices and procedures established by the
Committee or any other "named fiduciary", the
Administrative Delegate shall submit such issue to
the Committee. To the extent that an
Administrative Delegate's actions comply with the
framework of policies, interpretations, rules,
practices and procedures established by the
Committee or any other "named fiduciary", such
Administrative Delegate shall not be considered a
fiduciary under the Plan.)
Notwithstanding anything to the contrary herein
contained, (i) in addition to the power to appoint an
"investment manager" pursuant to Section 8.08, the
Committee shall have the authority to direct the
Trustee as to the investment of any amounts held in the
Trust Fund; and (ii) the Committee shall have no power
to add to, subtract from or modify any of the terms of
the Plan, or to change or add to any benefits provided
by the Plan, or to waive or fail to apply any
requirements of eligibility for a benefit under the
Plan.
8.06 Rules and Decisions
The Committee may adopt such rules as it deems
necessary, desirable, or appropriate. All rules and
decisions of the Committee shall be uniformly and
consistently applied to all Participants and Former
Participants in similar circumstances. When making a
determination or calculation, the Committee shall be
entitled to rely upon information furnished by a
Participant, Former Participant, or Beneficiary, the
Employers, the legal counsel of the Employers, or the
Trustee.
8.07 Committee Procedures
The Committee may act at a meeting or in writing
without a meeting. The Committee shall elect one of
its members as chairman, appoint a secretary, who may
or may not be a Committee member, and advise the
Trustee of such actions in writing. The secretary
shall keep a record of all meetings and forward all
necessary communications to the Employers or the
Trustee. The Committee may adopt such bylaws and
regulations as it deems desirable for the conduct of
its affairs. All decisions of the Committee shall be
made by the vote of the majority including actions in
writing taken without a meeting. A dissenting
Committee member who, within a reasonable time after he
has knowledge of any action or failure to act by the
majority, registers his dissent in writing delivered to
the other Committee members, the Employers and the
Trustee, shall not be responsible for any such action
or failure to act.
8.08 Investment Manager
The Committee may, in its sole discretion, appoint one
or more "investment manager(s)," with power to manage,
acquire or dispose of any asset of the Trust and to
direct the Trustee in this regard, provided that-
(a) any such investment manager shall be a registered
investment advisor, a bank or an insurance company
qualified to do business under the laws of more
than one state; and
(b) any such investment manager shall acknowledge in
writing that he is a fiduciary with respect to the
Plan.
Upon such appointment, the Committee shall not be
liable for the acts of the investment manager, as long
as the Committee members do not violate their fiduciary
responsibility in making or continuing such
appointment. The Trustee shall follow the directions
of such investment manager and shall not be liable for
the acts or omissions of such investment manager. The
Committee may, in its discretion, remove the investment
manager at any time.
8.09 Authorization of Benefit Payments
The Committee shall issue directions to the Trustee
concerning all benefits that are to be paid from the
Trust Fund pursuant to the provisions of the Plan, and
warrants that all such directions are in accordance
with this Plan.
8.10 Application and Forms for Benefits
The Committee may require a Participant or Former
Participant to complete and file with the Committee an
application for a benefit and all other forms approved
by the Committee, and to furnish all pertinent
information requested by the Committee. The Committee
may rely upon all such information so furnished it,
including the Participant's (or Former Participant's)
current mailing address. The failure by a Participant
or Former Participant to file a claim for benefits will
not result in the forfeiture of any benefits that are
otherwise nonforfeitable under this Plan.
8.11 Indemnification
The Employers shall indemnify and hold harmless each
member of the Committee against all loss, cost,
expenses or damages, including attorneys' fees and
court costs: (a) occasioned by any act or omission to
act in connection with the responsibility of such
member for the administration of this Plan; or (b)
arising under or by virtue of the provisions of Part 4,
Subtitle B, Title I of ERISA; provided, however, that
the Employers shall not indemnify and hold harmless any
such member against any loss, cost, expenses and
damages occasioned by the gross negligence or willful
misconduct of such member.
8.12 Unit Accounting
The Committee may, for administrative purposes,
maintain records setting forth each Participant's,
Former Participant's or Beneficiary's interest in the
Plan's investment funds (or any portion thereof) in
terms of units. If the Committee elects to adopt unit
accounting for one or more investment funds, the
Committee shall establish such rules and procedures for
such investment funds that the Committee shall deem to
be fair, equitable and administratively practicable.
In the event that unit accounting is established for an
investment fund (or a portion of an investment fund),
the value of a Participant's, Former Participant's or
Beneficiary's interest in such investment fund (or a
portion of such investment fund) as of each Valuation
Date shall be equal to (i) the value of a unit in the
investment fund (or a portion of the investment fund)
multiplied by (ii) the number of units credited to his
accounts.
ARTICLE IX
MISCELLANEOUS
9.01 Nonguarantee of Employment
Nothing contained in this Plan shall be construed as a
contract of employment between an Employer and any
Employee, or as a right of any Employee to be continued
in the employment of an Employer, or as a limitation on
the right of an Employer to discharge any of its
Employees, with or without cause.
9.02 Rights to Trust Assets
No Employee or Beneficiary shall have any right to, or
interest in, any assets of the Trust Fund upon
termination of his employment or otherwise, except as
provided from time to time under this Plan, and then
only to the extent of the benefits payable under the
Plan to such Employee out of the assets of the Trust
Fund. All payments of benefits as provided for in this
Plan shall be made solely out of the assets of the
Trust Fund and none of the Fiduciaries shall be liable
therefor in any manner.
9.03 Nonalienation of Benefits
Except as provided below, no Participant, Former
Participant or Beneficiary shall have the right to
anticipate, assign, alienate, charge, encumber, sell or
transfer any benefit provided under the Plan, and the
Trustee will not recognize any anticipation,
assignment, alienation, charge, sale or transfer.
Furthermore, a benefit under the Plan shall not be
subject to attachment, charge, encumbrance,
garnishment, levy, execution or other legal or
equitable process. The foregoing restrictions shall
not apply in the following case(s):
(a) Participant Loans. If a Participant, Former
Participant or Beneficiary who has become entitled
to receive payment of benefits under the Plan is
indebted to the Trustee by virtue of a participant
loan made pursuant to Section 6.06, the Committee
may direct the Trustee to pay the indebtedness and
charge it against the account balances of the
Participant, Former Participant or Beneficiary.
(b) Distributions Under Domestic Relations Orders.
Nothing contained in this Plan shall prevent the
Trustee, under the direction of the Committee,
from complying with the provisions of a qualified
domestic relations order, as defined in Code
Section 414(p).
(c) Distributions Under Certain Judgments and
Settlements. Nothing contained in this Plan shall
prevent the Trustee from complying with a judgment
or settlement which requires the Trustee to reduce
a Participant's benefits under the Plan by an
amount that the Participant is ordered or required
to pay to the Plan if each of the following
criteria is satisfied:
(1) The order or requirement must arise-
(A) under a judgment or conviction for
a crime involving the Plan;
(B) under a civil judgment (including a
consent order or decree) entered by a
court in an action brought in connection
with an actual or alleged violation of
Part 4 of Title I of ERISA; or
(C) under a settlement agreement with
either the Secretary of Labor or the
Pension Benefit Guaranty Corporation and
the Participant in connection with an
actual or alleged violation of Part 4 of
Title I of ERISA by a fiduciary or any
other person.
(2) The decree, judgment, order or settlement
must expressly provide for the offset of all
or part of the amount ordered or required to
be paid to the Plan against the Participant's
benefits under the Plan.
(3) To the extent that (i) the survivor annuity
requirements of Code Section 401(a)(11) apply
to the portion of the Participant's account
balance which will be reduced or offset, and
(ii) the Participant has a spouse at the time
at which the reduction or offset is to be
made--
(A) (i) the spouse must consent to the
reduction or offset in writing, as
witnessed by a notary public or a plan
representative, (ii) it must be
established that such consent may not be
obtained for any of the reasons outlined
in Code Section 417(a)(2)(B), or (iii)
the spouse must previously have executed
an election to waive his or her right to
a qualified joint and survivor annuity
or a qualified preretirement annuity in
accordance with the requirements of Code
Section 417(a);
(B) the decree, judgment, order or
settlement must require the spouse to
pay an amount to the Plan in connection
with a violation of Part 4 of Title I of
ERISA; or
(C) the decree, judgment, order or
settlement must provide that the spouse
shall retain his or her right to receive
a survivor annuity calculated as
provided in Code Section 401(a)(13)(D).
9.04 Discontinuance of Employer Contributions
In the event of the permanent discontinuance of
contributions to the Plan by the Employers, the
accounts of all Participants shall, as of the date of
such discontinuance, become nonforfeitable.
9.05 Certain Social Security Increases
In the case of a Participant or his Beneficiary who is
receiving benefits under this Plan, or in the case of a
Former Participant, such benefits shall not be
decreased by reason of any increase in the benefit
levels payable under Title II of the Social Security
Act or any increase in the wage base under such Title
II occurring after the date of such Participant's
termination of employment.
9.06 Jurisdiction
The situs of the Plan hereby created is Dallas County,
Texas. All provisions of the Plan shall be construed
in accordance with the laws of Texas, except to the
extent preempted by federal law.
ARTICLE X
AMENDMENTS AND ACTION BY EMPLOYER
10.01 Amendments
The Company reserves the right to make from time to
time any amendment or amendments to this Plan which do
not cause any part of the Trust Fund to be used for, or
diverted to, any purpose other than the exclusive
benefit of Participants, Former Participants, or their
Beneficiaries; provided, however, that the Company may
make any amendment it determines necessary or desirable
with or without retroactive effect, to comply with
ERISA. In addition, no amendment hereof, unless made
to secure the approval of the Internal Revenue Service
or other governmental bureau or agency shall operate
retroactively to reduce or divest the then vested
interest hereunder of any Participant, Former
Participant, or Beneficiary or to reduce or divest any
benefit payable hereunder unless all Participants,
Former Participants, and Beneficiaries then having
vested interests or benefit payments affected thereby
shall consent to such amendment.
10.02 Action by Employer
Any action by an Employer under this Plan may be by
resolution of its Board of Directors, or by any person
or persons duly authorized by resolution of said Board
to take such action.
ARTICLE XI
SUCCESSOR EMPLOYER AND MERGER OR
CONSOLIDATION OF PLANS
11.01 Successor Employer
In the event of the dissolution, merger, consolidation
or reorganization of an Employer, provisions may be
made by which the Plan and Trust will be continued by
the successor; and, in that event, such successor shall
be substituted for the Employer under the Plan. The
substitution of the successor shall constitute an
assumption of Plan liabilities by the successor and the
successor shall have all of the powers, duties and
responsibilities of the Employer under the Plan.
11.02 Plan Assets
In the event of any merger or consolidation of the Plan
with, or transfer in whole or in part of the assets and
liabilities of the Trust Fund to, another trust fund
held under any other plan of deferred compensation
maintained or to be established for the benefit of all
or some of the Participants of this Plan, the assets of
the Trust Fund applicable to such Participants shall be
transferred to the other trust fund only if:
(a) each Participant would (if either this Plan
or the other plan then terminated) receive a
benefit immediately after the merger,
consolidation or transfer which is equal to or
greater than the benefit he would have been
entitled to receive immediately before the merger,
consolidation or transfer (if this Plan had then
terminated);
(b) resolutions of the Board of Directors of the
Employer under this Plan, or of any new or
successor employer of the affected Participants,
shall authorize such transfer of assets; and, in
the case of a new or successor employer of the
affected Participants, its resolutions shall
include an assumption of liabilities with respect
to such Participants' inclusion in the new
employer's plan; and
(c) such other plan and trust are qualified under
Code Sections 401(a) and 501(a).
ARTICLE XII
PLAN TERMINATION
12.01 Right to Terminate
In accordance with the procedures set forth in this
Article, the Company may terminate the Plan at any
time. In addition, each Participating Employer may, at
any time, discontinue its participation in the Plan, in
which event the Plan shall be considered terminated as
to such Participating Employer. In the event of the
dissolution, merger, consolidation or reorganization of
an Employer, the Plan shall terminate with respect to
such Employer unless the Plan is continued by a
successor to the Employer in accordance with Section
11.01.
12.02 Partial Termination
Upon termination of the Plan with respect to a group of
Participants which constitutes a partial termination of
the Plan, the Trustee shall, in accordance with the
directions of the Committee, allocate and segregate for
the benefit of the Participants with respect to whom
the Plan is being terminated the proportionate interest
of such Participants in the Trust Fund. The funds so
allocated and segregated shall be used by the Trustee
to pay benefits to or on behalf of Participants in
accordance with Section 12.03
12.03 Liquidation of the Trust Fund
Following discontinuance or termination, the Company
shall promptly notify the District Director of Internal
Revenue Service stating the circumstances that led to
such discontinuance or termination. Unless otherwise
directed by the Committee, until a determination is
made by such District Director regarding the effect of
such discontinuance or termination on the qualification
of the Plan and the exemption of the Trust Fund from
federal income tax liability, the Trustee shall make no
distribution of Trust Fund assets unless sufficient
assets are retained to pay any possible resulting tax
liability. Upon receipt of the District Director's
determination and the payment of any such resulting tax
liability, the Trustee shall thereafter:
(a) In the case of a discontinuance, and in the
absence of a Plan amendment to the contrary, pay
the balance of the Participant's, Former
Participant's or Beneficiary's accounts to such
Participant, Former Participant or Beneficiary at
the time and in the manner provided in the Plan;
and
(b) In the case of a total or partial termination, and
in the absence of a Plan amendment to the
contrary, pay the balance of the accounts of a
Participant, Former Participant or Beneficiary for
whom the Plan is terminated to such Participant,
Former Participant or Beneficiary immediately, the
form of such payment to be determined by the
Committee within the parameters set forth in
Article VI.
IN TESTIMONY WHEREOF, BRINKER INTERNATIONAL, INC. has
caused this instrument to be executed in its name and on its
behalf, by the officer thereunto duly
authorized, this 31st day of December, 1999, effective as of
January 1, 1999 (except as otherwise indicated herein).
BRINKER INTERNATIONAL, INC.
By:_________________________________
Title:________________________________
ATTEST:
____________________________
Joined by Brinker International Payroll Corporation, on this
31st day of December, 1999, effective as of January 1, 1999.
BRINKER INTERNATIONAL PAYROLL CORPORATION
By:__________________________________
Title:________________________________
ATTEST:
_____________________________
EXHIBIT 99.2
Brinker International, Inc. Savings Plan II, as amended
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN II
W I T N E S S E T H:
WHEREAS, BRINKER INTERNATIONAL, INC. (the "Company") desires
to adopt a nonqualified, unfunded plan of deferred compensation
to be known as the BRINKER INTERNATIONAL, INC. SAVINGS PLAN II,
effective as of January 1, 1993, for the benefit of a select
group of its eligible officers and other highly compensated
employees.
NOW THEREFORE, the BRINKER INTERNATIONAL, INC. SAVINGS PLAN
II shall be and is hereby adopted effective as of January 1,
1993, to read as follows:
TABLE OF CONTENTS
I. DEFINITIONS AND CONSTRUCTION 1
II. ADMINISTRATION 4
III. PARTICIPATION 7
IV. DEFERRED COMPENSATION 7
V. ALLOCATIONS, ADJUSTMENTS AND WITHDRAWALS 9
VI. SEVERANCE BENEFITS 11
VII. DISABILITY BENEFITS 13
VIII. DEATH BENEFITS 14
IX. TIME AND MANNER OF PAYMENT OF BENEFITS 15
X. ADMINISTRATION OF FUNDS 15
XI. TRUST FUND AND INSURANCE CONTRACTS 16
XII. FIDUCIARY PROVISIONS 16
XIII. AMENDMENTS 17
XIV. DISCONTINUATION OF CONTRIBUTIONS AND TERMINATION 18
XV. MISCELLANEOUS 18
I.
DEFINITIONS AND CONSTRUCTION
1.01 Definitions. Where the following words and phrases appear
in this Plan, they shall have the respective meanings set forth
below, unless their context clearly indicates to the contrary:
(1) Accounts: Collectively, a Participant's Savings Account,
and Company Matching Account. These Accounts may be divided into
subaccounts as appropriate.
(2) Act: The "Employee Retirement Income Security Act of 1974,"
as amended from time to time.
(3) Authorized Leave of Absence: Any absence authorized by the
Company under the Company's standard personnel practices,
provided that all persons under similar circumstances must be
treated alike in the granting of such Authorized Leave of
Absence.
(4) Base Salary: Regular bi-weekly salary paid to all salaried
Employees for their services.
(5) Benefit Disbursement Date: With respect to each
Participant, the date the first payment is made under this Plan
to provide a benefit for such Participant or his beneficiary. In
general, this date shall be within thirty (30) days after the end
of the Plan Quarter in which the Participant's death, certified
disability or other severance from employment occurs or, in the
case of a disputed claim, within thirty (30) days after the claim
is settled.
(6) Bonuses: Bonuses payable under the Chili's Manager Deferred
Bonus Plan, bonuses payable under the Manager Deferral Plan,
monthly and quarterly cash profitability bonuses payable to
restaurant managers, and annual incentive payments to home office
employees to the extent includible in gross income. Long-term
incentive payments made to Company officers are not included in
Bonuses. The Chili's Manager Deferred Bonus Plan and manager
Deferral Plan are informal arrangements under which the Employee
is promised additional compensation in connection with his salary
review if he or she remains with the employer and performs
services. This promise relates to services to be performed in the
future and not to services that have been performed before the
promise.
(7) Code: The Internal Revenue Code of 1986, as amended.
(8) Committee: The administrative committee appointed by the
Directors to administer the Plan.
(9) Common Stock: The common stock of Brinker International,
Inc.
(10) Company: Brinker International, Inc., a Delaware
corporation.
(11) Company Matching Account: An individual Account for each
Participant to which is credited the Company Matching Credits and
to which is credited or debited such Account's allocation of net
income or net loss of the individual determined on the basis of
the performance of the fund or funds in which such account is
considered to be invested.
(12) Company Matching Credits: Amounts credited under the Plan
by the Employing Company and allocable on a Participant's behalf
pursuant to Section 4.02.
(13) Compensation: The total of all wages and other amounts paid
by the Company or any Employing Company (in the course of its
business) to or for the benefit of an Employee for services
rendered or labor performed which is required to be reported on
the Employee's Form W-2, excluding, however, amounts paid or
reimbursed by the Company or Employing Company for moving
expenses incurred by the Employee (but only to the extent it is
reasonable to believe at the time of the payment that the moving
expenses will be deductible under Section 217 of the Code), and
without regard to any rules that limit the amount to be included
in wages based on the nature or location of the service
performed. Notwithstanding the foregoing, for purposes of Section
1.01(15), 4.01 and 4.02, a Participant's Compensation shall
include amounts which he could have received in cash in lieu of a
contribution to a cafeteria plan described in Section 125 of the
Code, a Savings Deferral under this Plan and any salary deferral
or elective contributions under any Section 401(k) plan, and
shall exclude any income, whether or not reportable on Form W-2,
which is attributable to any stock options issued by the Company.
(14) Directors: The Board of Directors of the Company.
(15) Eligible Employee: Any Salaried Employee: (i) who was in
the group consisting of the highest paid one percent (1%) of all
the Employees of the Company and Employing Companies for the
immediately preceding year when ranked on the basis of
Compensation received during such preceding Plan Year, or (ii)
whose annual rate of Base Salary as determined on the date he
first performs any service for the Company or any Employing
Company placed him in the group consisting of the highest paid
one percent (1%) of all the Employees of the Company and
Employing Companies when ranked on the basis of annual rate of
Base Salary, and (iii) who is not eligible for the Plan Year, for
which the determination is made, to receive any benefit accrual
under any qualified defined benefit plan maintained by the
Company or Employing Company or to make any deferral under any
qualified cash or deferred arrangement, maintained by the Company
or Employing Company. Once an Employee becomes an Eligible
Employee he shall remain an Eligible Employee as long as he
continues to be an Employee of an Employing Company.
(16) Employee: Any individual employed by the Company, or by any
other Employing Company.
(17) Employing Company: The Company and any other corporation,
association, partnership, or proprietorship which adopts this
Plan in accordance with the consent of the Company shall be
called an "Employing Company".
(18) Enrollment Form: That form provided by the Committee
pursuant to which the Participant authorizes the Company to
reduce his future Compensation in the elected amount and in
consideration of which the Company agrees to make a Company
matching Credit on his behalf.
(19) One-Year Break-in-Service: Any period of severance (as
described in Section 6.03) of at least twelve (12) months. If a
single period of severance extends for more than twelve (12)
months, there shall be a one-Year Break-in-Service for each
consecutive twelve (12) month period contained in the period of
severance.
(20) Participant: Any Employee who has met the eligibility
requirements for participation in this Plan as set forth in
Article III herein and has elected to participate by filing a
properly executed Enrollment Form.
(21) Plan: This Brinker International, Inc. Savings Plan II,
which is a nonqualified, unfunded plan of deferred compensation
for a select group of officers and other highly compensated
employees of the Company and Employing Companies, as it may be
amended from time to time.
(22) Plan Quarter: Any three (3) consecutive month period
commencing on January 1, April 1, July 1, or October 1 of any
Plan Year.
(23) Plan Year: Any twelve (12) consecutive month period
commencing upon January I of each year.
(24) Salaried Employee: An Employee who is listed in the
Employing Company's books and paid on a salaried basis.
(25) Savings Account: An individual account for each Participant
to which is credited the Savings Deferrals made by such
Participant and to which is credited or debited such Account's
allocation of net income or net loss determined on the basis of
the performance of the fund, or funds, in which such account is
considered to be invested.
(26) Savings Deferrals: Deferrals made under the Plan by a
Participant in accordance with the Participant's elections to
defer Compensation under the Plan's deferral arrangement as
described in Section 4.01.
(27) Taxable Year: The annual accounting period adopted by the
Company for federal income tax purposes.
(28) Trust Agreement: Any agreement entered into between the
Company and a Trustee establishing a trust to hold and invest
some or all of the contributions made under the Plan and from
which the benefits may be distributed. Any such agreement must be
a model trust agreement as approved by the Internal Revenue
Service in Rev. Proc. 92-64 or its successor.
(29) Trust Fund: Any funds and properties held pursuant to the
provisions of the Trust Agreement for the use and benefit of the
Participants and their beneficiaries, or the creditors of the
Company in the event of the Company's insolvency, together with
all income, profits and increments thereto.
(30) Trustee: The trustee or trustees qualified and acting under
the Trust Agreement that may, at any time, form part of this
Plan.
(31) Valuation Date: The last day of any calendar quarter (or
the next preceding business day if such date falls on a weekend
or holiday), and such other date(s) as the Committee may
designate from time to time.
(32) Vested Interest: That percentage of a Participant's Company
Matching Account which, pursuant to the Plan, is nonforfeitable.
(33) Vesting Service: The measure of service used in determining
a Participant's Vested Interest.
1.02 Number and Gender. Wherever appropriate herein, words used
in the singular shall be considered to include the plural and the
plural to include the singular. The masculine gender, where
appearing in this Plan, shall be deemed to include the feminine
gender.
1.03 Headings. The headings of Articles and Sections herein are
included solely for convenience and if there is any conflict
between such headings and the text of the Plan, the text shall
control.
II.
ADMINISTRATION
2.01 Appointment of Committee. The Company shall be the Plan
Administrator. However, the general administration of the Plan
shall be delegated to the Committee which shall be appointed by
the Directors and shall consist of three (3) or more persons. Any
individual, whether or not an Employee, is eligible to become a
member of the Committee. Each member of the Committee shall,
before entering upon the performance of his duties, qualify by
signing a consent to serve as a member of the Committee under and
pursuant to the Plan and by filing such consent with the records
of the Committee.
2.02 Term, Vacancies. Resignation and Removal. Each member of
the Committee shall serve for a term of one (1) year and
thereafter until his successor is appointed. The Directors may,
in their discretion, reappoint a member of the Committee for a
subsequent term or terms. If at any time and for any reason there
is a vacancy on the Committee, the Directors shall appoint a
substitute member to fill such vacancy for the remainder of the
then current one (1) year term.
At any time during his term of office, a member of the
Committee may resign by giving written notice to the Directors
and the Committee, such resignation to become effective upon
receipt by the Company. At any time during his term of office,
and for any reason, a member of the Committee may be removed by
the Directors.
2.03 Officers, Records and Procedures. The Committee may select
officers and may appoint a secretary who need not be a member of
the Committee. The Committee shall keep appropriate records of
its proceedings and the administration of the Plan and shall make
available for examination during business hours to any
Participant or beneficiary of a deceased Participant such records
as pertain to that individual's interest in the Plan. The
Committee shall designate the person or persons who shall be
authorized to sign for the Committee and, upon such designation,
the signature of such person or persons shall bind the Committee.
2.04 Meetings. The Committee shall hold meetings upon such
notice and at such time and places as it may from time to time
determine. Notice to a member shall not be required if waived in
writing by that member. A majority of the members of the
Committee duly appointed shall constitute a quorum for the
transaction of business. All resolutions or other actions taken
by the Committee at any meeting where a quorum is present shall
be by vote of a majority of those present at such meeting and
entitled to vote. Resolutions may be adopted or other action
taken without a meeting upon written consent signed by all of the
members of the Committee.
2.05 Self-Interest of Participants. No member of the Committee
shall have any right to vote or decide upon any matter relating
solely to himself under the Plan or to vote in any case in which
his individual right to claim any benefit under the Plan is
particularly involved. In any case in which a Committee member is
so disqualified to act, and the remaining members cannot agree,
the Directors shall decide the matter in which such Committee
member is disqualified.
2.06 Claims Review. Upon the retirement, death or other
severance of employment, a Participant, his beneficiary or
representative may make application to the Committee requesting
payment of benefits due him under the terms of the Plan. The
committee shall accept, reject or modify such request and shall
no later than the end of the Plan quarter in which such
retirement, death, or other severance of employment occurs,
notify the Participant, beneficiary or representative in writing,
setting forth the response of the Committee and, in the case of a
denial or modification, the Committee shall:
(a) State the specific reason or reasons for the denial or
modification;
(b) Provide specific reference to pertinent Plan provisions on
which the denial or modification is based;
(c) Provide a description of any additional material or
information necessary for the Participant, his beneficiary or
representative to perfect the claim and an explanation of why
such material or information is necessary; and
(d) Explain the Plan's claim review procedure as contained
herein.
In the event the request is denied or modified, and the
Participant, beneficiary or representative desires to have such
denial or modification reviewed, he may, before the end of the
period prescribed for making payments pursuant to Section
1.01(5), submit a written request for review by the Committee of
its initial decision. Within sixty (60) days following such
request for review (unless special circumstances, such as the
need to hold a hearing, if necessary, requires an extension of
time for processing, in which case upon notice to the claimant
before the expiration of such sixty (60) day period, such period
shall be extended to one hundred twenty (120) days) the Committee
shall, after providing a full and fair hearing, render its final
decision in writing to the Participant, beneficiary or
representative stating specific reasons for such decision.
2.07 Compensation, Bonding and Expenses of Committee Members.
The members of the Committee shall not receive compensation with
respect to their services for the Committee. To the extent
required by applicable law, or required by the Company, members
of the Committee shall furnish bond or security for the
performance of their duties hereunder. Any expenses properly
incurred by the Committee incident to the administration,
termination, or protection of the Plan and Trust, including the
cost of furnishing any bond or security, shall be paid as
provided in Section 10.01.
2.08 Committee Powers and Duties. The Committee shall supervise
the administration and enforcement of the Plan according to the
terms and provisions hereof and shall have all powers necessary
to accomplish these purposes, including, but not by way of
limitation, the right, power, authority and duty:
(a) To make rules, regulations and bylaws for the administration
of the Plan which are not inconsistent with the terms and
provisions hereof, provided such rules, regulations and bylaws
are evidenced in writing and copies thereof are delivered to the
Trustee and to the Company;
(b) To construe all terms, provisions, conditions and
limitations of the Plan, and in all such cases, the construction
necessary for the Plan to constitute a nonqualified, unfunded
plan of deferred compensation under the applicable provisions of
the Code and meet the requirements for exemption from Parts 2, 3
and 4 of Title I of the Act shall control;
(c) To correct any defect or supply any omission or reconcile
any inconsistency that may appear in the Plan, in such manner and
to such extent as it shall deem expedient to carry the Plan into
effect for the greatest benefit of all interested parties;
(d) To employ and compensate such accountants, attorneys,
investment advisors and other agents and employees as the
Committee may deem necessary or advisable in the proper and
efficient administration of the Plan;
(e) To determine all questions relating to eligibility;
(f) To determine the amount of any benefits due under the terms
of the Plan and to prescribe procedures to be followed by
distributees in obtaining benefits;
(g) To prepare, file and distribute, in such manner as the
Committee determines to be appropriate, such action of
shareholders or disinterested directors or otherwise, to the
extent permitted by law. Payments of any indemnity, expenses or
fees under this Section shall be made solely from assets of the
Company and not, directly or indirectly, from trust funds.
III.
PARTICIPATION
3.01 Eligibility. Any Employee who is an Eligible Employee on
the date he commences employment shall be entitled to become a
Participant commencing with the first pay period beginning on or
after the first day of the month coincident with or immediately
following the date on which he first performs any service for the
Company or any Employing Company. Any other Eligible Employee
shall be entitled to become a Participant commencing with the
first pay period beginning on or after the first day of the Plan
Year in which he becomes an Eligible Employee.
Any Eligible Employee who was a Participant prior to a
termination of his employment shall be eligible to become a
Participant immediately upon his re-employment as an Eligible
Employee.
Participation in the Plan is voluntary. Any Eligible
Employee entitled to become a Participant may do so upon the date
on which he first becomes so entitled by executing and filing
with the Committee, prior to such date, the Enrollment Form
prescribed by the Committee. Any Eligible Employee who does not
become a Participant upon the date on which he first becomes
entitled may become a Participant the first day of any subsequent
Plan Year by executing and filing such Enrollment Form prior to
the first day of such Plan Year.
3.02 Effect of Change in Compensation. Even though a
Participant's Compensation in a subsequent year is below the
dollar limitation referred to in Section 1.01(15)(i), such
Participant shall be entitled to remain a Participant despite the
change in Compensation.
IV.
DEFERRED COMPENSATION
4.01 Savings Deferrals.
(a) A Participant shall elect to defer an amount not in excess
of an integral percentage of from one percent (1%) to twenty
percent (20%) of his Base Pay plus an integral percentage of from
one percent (1%) to one hundred percent (100%) of the Bonus
payments he would otherwise have received in cash (the Savings
Deferral) for a Plan Year by having the Company retain the amount
so deferred as a credit to his Savings Account under the Plan.
Compensation for a Plan Year not so deferred by such
election or by any other applicable deferral election [e.g.,
Section 125 of the Code] shall be received by such Participant in
cash. A Participant's initial election to defer an amount of his
Compensation pursuant to this Section 4.01 shall be made by
properly executing an Enrollment Form. The reduction in a
Participant's Compensation for a Plan Year pursuant to his
election under an Enrollment Form shall be effected by
Compensation reductions in each payroll check and/or bonus
payment as appropriate, within such Plan Year; provided, however,
that no reductions may be made in any payments to which a
Participant is entitled under the Chili's Manager Deferred Bonus
Plan or the Manager Deferral Plan. Thus, although the amounts
that may become payable under these practices may be considered
in determining a Participant's maximum deferral under this Plan,
all such amounts shall be paid at the same time and in the same
amount and manner as if the Participant were not participating in
this Plan.
(b) A Participant's Enrollment Form shall be effective as to
Compensation earned for services performed on or after the first
pay period commencing on or after the first day of the first Plan
Year after it is executed, except that for a Participant who
becomes an Eligible Employee on a date within the Plan Year, the
Participant may execute an Enrollment Form within thirty (30)
days of becoming an Eligible Employee and the Enrollment Form
shall be effective as to Compensation earned for Services
performed starting with the first pay period commencing on or
after the first day of the first month after it is executed (with
regard to bonuses, this will require prorating if the effective
date of the Participant's enrollment does not coincide with the
beginning of the period during which the services giving rise to
the bonus are performed.
(c) A Participant may cancel his Enrollment Form, effective as
of the first pay period commencing on or after the first day of
any future Plan Year, by executing the form prescribed by the
Committee for such purpose prior to the beginning of such future
Plan Year. A Participant who so cancels his Enrollment Form may
resume active participation in the Plan, effective as of the
first pay period commencing on or after the first day of any Plan
Year beginning after the Plan Year in which the cancellation
applied, by executing a new Enrollment Form prior to the first
day of such subsequent Plan Year.
4.02 Company Matching Credits. As soon as administratively
feasible after the end of each Plan Quarter, the Employing
Company shall credit to the Company Matching Account of each
Participant who is not an officer of the Employing Company or a
participant in the Chili's manager Deferred Bonus Plan, an amount
which as of the date of the credit when added to the Section 6.04
forfeitures, if any, then available for allocation to the
Participant's Company Matching Account, equals twenty-five
percent (25%) of the Savings Deferral made pursuant to Section
4.01 by the Participant up to a maximum of twenty-five percent
(25%) of the first five percent (5%) of such Participant's
Compensation. This Company Matching Credit made on behalf of
Participants who are not officers of the Employing Company shall
be expressed in shares and fractions of shares of Common Stock at
the fair market value of such Common Stock on the date credited.
The fair market value for this purpose shall be the average of
the daily closing prices of the Common Stock on the New York
Stock Exchange over each of the immediately preceding twenty (20)
trading days. Company Matching Credits on behalf of Participants
who are officers of an Employing Company shall be treated as
though made in cash and invested by the Participant in one or
more of the five (5) funds described in Section 5.03(a).
4.03 Payments to Trustee. Credits to the Plan may be contributed
directly to the Trustee at any time. On or about the date of any
such contribution, the Committee shall be informed as to the
amount of such contribution.
V.
ALLOCATIONS, ADJUSTMENTS AND WITHDRAWALS
IN ACCOUNT VALUES OF FUNDS
5.01 Allocation of Deferrals, Matching Allocations and
Forfeitures.
(a) Savings Deferrals made by a Participant pursuant to Section
4.01 shall be credited to such Participant's Savings Account as
soon as administratively feasible after the last day of the pay
period in which they are deferred.
(b) The Company Matching Credits (and forfeitures available for
allocation) for each Plan Quarter shall be credited as of the end
of each such Plan Quarter to the Company Matching Accounts of the
Participants in the amount determined under Section 4.02 of the
Plan.
(c) Each Participant's Accounts shall be divided into
subaccounts to reflect such Participant's investment designation
in a particular fund option(s) pursuant to Section 5.03, his
distribution designation made on the Enrollment Form or Forms, or
for any other good administrative purpose.
5.02 Valuation of Accounts and Adjustment for Earnings and
Losses.
(a) A Participant's Accounts shall be adjusted as of each
applicable Valuation Date to reflect the earnings and/or losses
that would have resulted if those Accounts had actually been
invested in accordance with the Participant's selection in the
Common Stock and mutual fund options described in Section 5.03.
All Accounts and Subaccounts shall be valued at fair market value
as of the Valuation Date, that they would have had if actually
invested in accordance with the elections made by the Participant
in accordance with Section 5.03. The fair market value of Common
Stock reflected in the Participant's Company Matching Account
shall be considered to be the average of the daily closing prices
of such Common Stock on the New York Stock Exchange over each of
the twenty (20) trading days immediately preceding the Valuation
Date. An amount equal to any dividends that would have been paid
on the Common Stock considered to be held since the preceding
Valuation Date (had the actual stock been held) shall also be
credited to such Accounts.
(b) If a Participant's employment is terminated for any reason
or he is no longer eligible to participate in this Savings Plan,
such Participant's Savings Account and Company Matching Account
under this Plan, shall continue to receive periodic adjustments
pursuant to this Section; provided, however, that the value of
such Accounts as of the date of the preceding valuation date
shall be reduced by the amount of any payments made therefrom
since the date of such preceding valuation.
5.03 Investment Options.
(a) Except as provided in Subsection (c) below, the company
Matching Account of a Participant who is not an officer of the
Company shall be treated as though it were invested in Company
Stock. The Company shall also designate from time to time,
certain mutual funds in which Participants' Savings Accounts
shall be considered to be invested. The options available for
selection by the Participant shall always include at least five
(5) mutual funds designed to permit a diversified selection of
risks. Each Participant may select any one option or any
combination of options so long as the percentage of his Savings
Deferrals elected for any one option is a specified whole
percentage of his savings Deferrals. In his Enrollment Form, each
Participant shall designate the manner in which his current
Savings Deferrals and/or Savings Account shall be considered to
be invested, choosing from among the options provided by the
Committee, for purposes of determining increases or decreases in
the value of such Savings Account. A Participant who is an
officer of the Company shall be entitled to designate the manner
in which his Company Matching Credits and/or Company Matching
Account shall be considered invested, choosing from among the
same mutual funds in the same manner as in the case of his
Savings Account. No other type of designation will be permitted.
(b) A Participant may designate how much of his Savings
Deferrals and Savings Account shall be considered to be invested
in each fund option. Subject to Subsection (c) below, a
Participant may designate all of his Savings Deferrals to any one
fund option or any combination of fund options so long as the
percentage designated to any one fund option is a specified whole
percentage of his Savings Deferrals or Savings Account. No other
type of designation will be permitted.
(c) A Participant may change his option designation for his
future Savings Deferrals, at any time, effective as of the first
day of the first pay period beginning in the next Plan Quarter
and/or his designation for his existing Savings Account balances,
effective as of the first day of the next Plan Quarter, by
instruction through a telephone access system made before the
beginning of such Plan Quarter. Any and all changes in options
shall be in whole percentages of his Savings Deferrals or his
Savings Account balance. A Participant who is not an officer of
the Company and who has attained age fifty-five (55) shall also
have the same right to change his option designation for the
future Company Matching Credit to which he may become entitled
and his existing Company Matching Account at the same time and in
the same manner as his Savings Deferrals and Savings Account.
Again, any and all such changes will be in whole percentages of
the Participant's Company Matching Credits and/or Company
Matching Account.
(d) The options described in Subsections (a), (b) and (c) above
are solely for purposes of enabling the Participant to determine
the method for measuring the change in value of his accounts. The
Company is not required to actually acquire or provide any of the
investment options designated by a Participant. The actual
investment of any assets that may be transferred to a grantor
trust forming part of the Plan shall be made by the Trustee
subject to such direction as may be provided by the Committee and
shall be held in the name of the Company or the Trustee.
5.04 Withdrawals. A Participant who has an unforeseeable
emergency, as determined by the Committee, may withdraw from his
Savings Account or from the vested portion of his Company
Matching Account, an amount not to exceed the lesser of:
(a) The then value of his Savings Account and the vested portion
of his Matching Account, as of the Valuation Date coincident with
or immediately preceding the withdrawal, or
(b) The lesser amount determined by the Committee under the
standards set forth herein, as being available for withdrawal
pursuant to this section.
For purposes of this Section, "unforeseeable emergency"
means an unanticipated emergency that is caused by an event
beyond the control of the Participant and that would result in
severe financial hardship to the Participant if early withdrawal
were not permitted. A withdrawal based upon unforeseeable
emergency pursuant to this Section shall not exceed the amount
required to meet the immediate financial need created by the
unforeseeable emergency (including the amount required to pay
taxes due on the withdrawal) and not reasonably available from
other resources of the Participant. The determination of the
existence of a Participant's unforeseeable emergency and the
amount required to be distributed to meet the need created by the
unforeseeable emergency shall be made by the Committee.
VI.
SEVERANCE BENEFITS
6.01 No Benefits Unless Herein Set Forth. Except as set forth in
this Article, upon termination of employment of a Participant for
any reason other than total and permanent disability or death,
such Participant shall acquire no right to any benefit from the
Plan or the Trust Fund.
6.02 Severance Benefit. Each Participant whose employment is
terminated for any reason other than certified disability or
death shall be entitled to a benefit equal in value to the sum
of:
(a) The value of his Savings Account (inclusive of any Savings
deferrals made after a Valuation Date), as of the Valuation Date
coincident with or next preceding his Benefit Disbursement Date;
and
(b) His Vested Interest, if any, in the balance in his Company
Matching Account as of the Valuation Date coincident with or next
preceding his Benefit Disbursement Date.
For purposes of this Section, a Participant's Vested
Interest shall be determined by such Participant's full years of
"Vesting Service" in accordance with the following schedule:
Full Years of Vesting Service Vested Interest
Less than two (2) years 0%
Two (2) years but less than 3 years 25%
Three (3) years but less than 4 years 50%
Four (4) years but less than 5 years 75%
Five (5) years or more 100%
Notwithstanding the foregoing, a Participant shall be one
hundred percent (100%) vested in the balances in his Company
Matching Account no later than the fifth (5th) anniversary of the
date he first became a Participant if he is still employed by the
Company on such fifth (5th) anniversary.
A Participant shall at all times have a 100% fully vested
nonforfeitable interest in his Savings Account.
6.03 Vesting Service. Vesting Service shall begin to be counted
from January 1, 1993 forward.
(a) Subject to the provisions of Subsection (b), except as
otherwise provided below, in determining the number of full years
of Vesting Service, non-successive periods of service shall be
aggregated, and less than whole year periods of service (whether
or not consecutive) shall be aggregated on the basis that 365
days of service equal a whole year of Vesting Service. For this
purpose a period of service commences on the later of (i) the
first day the Employee performs an Hour of Service for an
Employing Company or a Controlled Company or (ii) January 1, 1993
and ends on the earlier of (i) the date of the Employee's
subsequent separation from service due to quit, discharge,
retirement or death, or (ii) twelve (12) months from the date on
which the Employee was first absent from service for any reason
other than those listed in (i). If an Employee severs from
service by reason of a quit, discharge, or retirement, and the
Employee then performs any service for the Company or any
Employing Company within twelve (12) months of the severance from
service date, such Employee's period of severance shall be deemed
to have been a period of service. If an Employee severs from
service by reason of a quit, discharge, or retirement during any
absence from service for any reason other than a quit, discharge,
or retirement and then performs any service within twelve (12)
months of the date on which the Employee was first absent from
service, such Employee's period of severance shall be deemed to
have been a period of service. Any period of severance of twelve
(12) months or more shall constitute a One-Year-Break-in-Service
for each twelve (12) month period of severance. An Authorized
Leave of Absence and any absence from service due to maternity
leave, paternity leave or military leave shall be treated as a
period of service or a period of severance in accordance with the
law and the applicable Company policies in effect during the
period of such absence.
(b) In the case of a Participant who terminates employment at a
time when he does not have any Vested Interest in his Company
Matching Account and who then incurs a period of severance of
consecutive One-Year-Breaks-in-Service which equals or exceeds
the greater of: (i) five (5) years, or (ii) his years of Vesting
Service prior to such period of severance, such Participant's
years of Vesting Service completed before such period of
severance shall be disregarded in determining his years of
Vesting Service.
6.04 Forfeitures. The forfeitable portion (if any) of a
terminated Participant's Company Matching Account shall become a
forfeiture as of his date of termination of employment and shall
be available for allocation as a part of the Company Matching
Contribution next coming due to the Accounts of the eligible
Participants as set forth in Section 4.02. Notwithstanding the
foregoing, if a Participant who incurred a forfeiture is re
employed before he incurs five (5) consecutive One-Year-Breaks-in
- -Service, the forfeited amount shall be restored to such
Participant's Company Matching Account unadjusted for any gains
or losses that would have occurred during the period of the
forfeiture. Any such restoration shall be made as of the
valuation Date next succeeding the date of re-employment.
Notwithstanding anything to the contrary in this Plan, any
restoration shall be made first from current forfeitures
otherwise available to reduce Company Matching Credits.
6.05 Termination of Employment. The following shall not
constitute a termination of employment for purposes of
distribution of benefits under the Plan:
(a) An Authorized Leave of Absence, provided, however, that
failure to return to the employ of an Employing Company upon the
expiration of such Authorized Leave of Absence shall constitute a
termination as of the date of such expiration; or
(b) Transfer to employment with any Employing Company.
6.06 Sale of Assets. Notwithstanding any other provision of the
Plan to the contrary, in the event that either the Company or
other Employing Company sells substantially all of its assets
used by it in its trade or business, an Employee whose employment
is terminated because he becomes employed by the entity acquiring
such assets shall receive a distribution in an amount equal to
his Vested Interest in his Accounts determined as of the
Valuation Date coincident with or next preceding his Benefit
Disbursement Date.
VII.
DISABILITY BENEFITS
7.01 Disability Determined. Upon written request by the
Participant or upon the Committee's own initiative, the Committee
shall determine whether a Participant has become unable to
perform the duties of his position due to a physical or mental
disability and shall so notify such Participant within sixty (60)
days thereafter. A Participant shall be considered disabled if
such disability is so certified by the Committee and, unless
waived by the Committee as unnecessary, supported by a written
medical opinion that such Participant will be incapable of
performing his job for physical or mental reasons and the
Participant has terminated his employment.
7.02 Disability Benefits. In the event of the disability of a
Participant, as of the Committee's certification thereof, such
Participant shall be vested in one hundred percent (100%) of his
Company Matching Account and shall be entitled to a benefit equal
in value to the sum of the balances in his Accounts as of the
Valuation Date immediately preceding his Benefit Disbursement
Date.
VIII.
DEATH BENEFITS
8.01 Death Benefits. Upon the death of a Participant, the
Participant's Company Matching Account shall be one hundred
percent (100%) vested and the Participant's beneficiary shall be
entitled to a benefit equal in value to the sum of the balance in
his Accounts as of the Valuation Date immediately preceding his
Benefit Disbursement Date.
8.02 Designation of Beneficiaries.
(a) Each Participant shall have the unrestricted right to
designate the beneficiary or beneficiaries to receive payment of
his benefit. Each such designation shall be made by executing a
"Beneficiary Designation Form" and filing same with the
Committee. Any such designation may be changed at any time by
execution of a new designation in accordance with this Section.
Notwithstanding the foregoing, if a Participant who is married on
the date of his death designates other than his surviving spouse
as his beneficiary, such designation shall not be effective
unless: (i) such spouse has consented thereto in writing, and
such consent acknowledges the effect of such designation and is
witnessed by a Plan representative (other than the Participant)
or a notary public; or (ii) such consent may not be obtained
because such spouse cannot be located or because of other
circumstances described by applicable Treasury regulations.
(b) If no such designation is on file with the Committee at the
time of the death of the Participant or such designation is not
effective for any reason as determined by the Committee, then the
designated beneficiary or beneficiaries to receive such benefit
shall be as follows:
(1) If a Participant leaves a surviving spouse, his benefit
shall be paid to such surviving spouse;
(2) If a Participant leaves no surviving spouse, his benefit
shall be paid to such Participant's executor or administrator.
8.03 Benefits Payable to Minors or Other Persons with Limited
Financial Responsibility. If any amount is payable under this
Plan either to a minor or to any beneficiary who appears to have
limited or restricted financial responsibility, the Committee
shall have the sole and absolute right to either pay such
benefits to such person or to pay such benefits to a custodial
parent or guardian or guardian ad litem of such minor or other
person or to the trustee of a medicare support trust for such
person, or to such other person or persons as the Committee shall
determine.
IX.
TIME AND MANNER OF PAYMENT OF BENEFITS
9.01 Time of Payment. Subject to the provisions of Section 5.04
relating to withdrawals, and Section 14.02 relating to
termination of the Plan, a Participant's Savings Account and
Company Matching Account shall be distributed on his Benefit
Disbursement Date.
9.02 Form of Benefits for Participants. For purposes of Article
VI or VII, Plan benefits shall be paid in cash; except for any
portion of such benefits which was treated as invested in Company
Common Stock at the time the Participant became entitled thereto,
which portion shall be distributed in Common Stock, with the
value of any fractional shares to be paid in cash, provided,
however, that the Participant may elect to receive the portion of
his benefit which was considered to be invested in Common Stock
in cash in lieu of Common Stock in accordance with applicable
procedures established by the Committee. Notwithstanding the
foregoing, any distributions made after the adoption of any
resolution to terminate the Plan in accordance with Section 14.02
shall be made solely in cash to the extent possible.
9.03 Death Benefits. For purposes of Article VIII, the death
benefit for a deceased Participant shall be paid to his
designated beneficiary in a lump sum in cash; provided, however,
that the beneficiary may elect to receive the portion of the
benefit which was considered to be invested in Common Stock as of
the date of the Participant's death in shares of Common Stock
(with the value of any fractional shares being paid in cash) but
only if such distribution becomes payable before the adoption of
any resolution to terminate the Plan in accordance with Section
14.02.
X.
ADMINISTRATION OF FUNDS
10.01 Payment of Expenses. All expenses incident to the
administration of the Plan and any related Trust may be paid by
the Company or Employing Company and, if not paid by the Company
or any Employing Company, shall be paid by the Trustee from the
Trust Fund and, until paid, shall constitute a claim against the
Trust Fund which is paramount to the claims of Participants,
beneficiaries and creditors.
10.02 Participants' Accounts. The Committee shall maintain
accounts in the name of each Participant, but the maintenance of
an account designated as the account of a Participant shall not
mean that such Participant shall have a greater or lesser
interest than that due him by operation of the Plan and shall not
be considered as segregating any funds or property from any other
funds or property contained in the commingled funds. In the case
of any Participant who works for more than one (1) Employing
Company, the Accounts shall be maintained in such a manner as to
enable the Committee to determine that portion of the Accounts
attributable to Contributions and Savings Deferrals from each
such Employing Company.
10.03 Distributions from Participants' Accounts.
Distributions from a Participant's Accounts shall be made only
if, when, and in the amount and manner directed in writing by the
Committee. Any distribution made to a Participant or for his
benefit shall be debited to such Participant's Accounts.
XI.
TRUST FUND AND INSURANCE CONTRACTS
11.01 Trust Must Be Grantor Trust. As a means of
administering the amounts credited to Participants and
anticipating the liability each Employing Company will incur
under the terms of this Plan, the Company may enter into one or
more Trust Agreements with one or more Trustees and the Employing
Companies may contribute to the Trust(s) assets that shall be
held therein subject to the claims of each Employing Company's
creditors in the event of the Employing Company's insolvency
until paid to Participants and their Beneficiaries in such manner
and at such times as specified in this Plan; provided, however,
that any such Trust Agreement and any assets held by the Trustee
to assist it in meeting its obligations shall conform to the
terms of the Internal Revenue Service model grantor trust
agreement as set forth in Revenue Procedure 92-64 or its
successor. The Trust Agreement may be amended from time to time
as the Company deems advisable, and as the Internal Revenue
Service may require or permit, in order to effectuate the purpose
of the Plan. In the event of the merger, acquisition, or
reorganization of the Trustee, the surviving entity, if still
empowered with trust powers, shall continue as Trustee unless and
until removed as otherwise provided in the Trust Agreement.
11.02 Insurance Contracts. As a means of administering the
amounts credited to Participants and anticipating the liability
each Employing Company will incur under the terms of this Plan,
the Company or the Trustee may purchase insurance contracts,
including life insurance contracts on the lives of some or all of
the Plan Participants; provided, however, that in any case in
which the owner and/or beneficiary of any such insurance contract
is a person other than an Employing Company and/or the Trustee,
the Company shall prepare, or cause to be prepared, appropriate
Federal tax reports.
XII.
FIDUCIARY PROVISIONS
12.01 Article Controls. This Article shall control over any
contrary, inconsistent or ambiguous provisions contained in the
Plan.
12.02 General Allocation of Duties. Each fiduciary with
respect to the Plan shall have only those specific powers,
duties, responsibilities and obligations as are specifically
given him under the Plan. The Directors shall have the sole
responsibility for authorizing contributions under the Plan and
shall have the sole authority to appoint and remove members of
the Committee and to amend or terminate this Plan in whole or in
part. The Directors shall also have the authority to appoint and
remove the Trustee and to override the authority of the Committee
in this regard. Except as otherwise specifically provided, the
Committee shall have the sole responsibility for the
administration of the Plan, which responsibility is specifically
described herein. Except as otherwise specifically provided, the
Trustee shall have the sole responsibility for holding and
administering the assets under the Trust. It is intended under
the Plan that each fiduciary shall be responsible for the proper
exercise of his own powers, duties, responsibilities and
obligations hereunder and shall not be responsible for any act or
failure to act of another fiduciary except to the extent provided
by law or as specifically provided herein.
12.03 Fiduciary Liability. A fiduciary shall not be liable
in any way for any acts or omissions constituting a breach of
fiduciary responsibility and occurring prior to the date he
becomes a fiduciary or after the date he ceases to be a
fiduciary.
12.04 Delegation and Allocation. The Committee may appoint
subcommittees, individuals or any other agents as it deems
advisable and may delegate to any of such appointees any or all
of the powers and duties of the Committee. Such appointment and
delegation must be in writing, specifying the powers or duties
being delegated, and must be accepted in writing by the
delegatee. Upon such appointment, delegation and acceptance, the
delegating Committee members shall have no liability for the acts
or omissions of any such delegatee, as long as the delegating
Committee members do not violate their fiduciary responsibility
in making or continuing such delegation.
XIII.
AMENDMENTS
No amendment of the Plan may be made which would reduce any
then nonforfeitable interest of a Participant. Subject to these
limitations, the Directors may make any amendment to the Plan
including, but not limited to, an increase or decrease of
deferrals or contributions, a change or modification of the
method of allocation of contributions or forfeitures, or a change
of the provisions relating to the administration of the Plan.
If the Plan's vesting schedule is amended, or if the Plan is
amended in any way that directly or indirectly affects the
computation of the Participant's nonforfeitable percentage each
Participant with at least three (3) years of Vesting Service, as
described in Section 6.02, with the Company and/or any other
Employing Companies may elect, within a reasonable period after
the adoption of the amendment or change, to have the
nonforfeitable percentage computed under the Plan without regard
to such amendment or change. The period during which the election
may be made shall begin no later than the date upon which the
amendment is adopted or deemed to be made and shall end no later
than the latest of the following dates: (i) the date which is
sixty (60) days after the day the amendment is adopted or deemed
to be made; (ii) the date which is sixty (60) days after the day
the amendment becomes effective; or (iii) the date which is sixty
(60) days after the day the Participant is issued written notice
of the amendment by the Company.
In the event of an amendment, each Employing Company will be
deemed to have consented to and adopted the amendment unless the
Employing Company notifies Brinker International, Inc., the
Committee and the Trustee to the contrary in writing within
thirty (30) days after receipt of a copy of the amendment, in
which case the rejection will constitute a withdrawal from this
Plan and Trust by that Employing Company.
XIV.
DISCONTINUATION OF CONTRIBUTIONS AND TERMINATION
14.01 Declaration of Intent. The Company has established the
Plan with the bona fide intention and expectation that from year
to year it will be able to, and will deem it advisable to,
maintain the Plan as herein provided. However, the Company
realizes that circumstances not now foreseen, or circumstances
beyond its control, may make it either impossible or inadvisable
to continue the Plan. Therefore, the Company shall have the
power, through resolution duly adopted by the Directors, to
discontinue credits under the Plan, terminate the Plan or
partially terminate the Plan at any time hereafter. Each member
of the Committee and the Trustee shall be notified of such
discontinuance, termination or partial termination.
14.02 Administration of Plan in Case of Discontinuance of
Contributions or Termination.
(a) If the Plan is amended so as to permanently discontinue
Company contributions, or if Company contributions are in fact
permanently discontinued, the Vested Interest of each Participant
shall be one hundred percent (100%), effective as of the date of
discontinuance. In case of discontinuance, the Committee shall
remain in existence and all other provisions of the Plan which
are necessary, in the opinion of the Committee, for equitable
operation of the Plan shall remain in force.
(b) If the Plan is terminated or partially terminated, the
amounts credited to the Accounts of each affected Participant as
of the time of such termination or partial termination shall be
one hundred percent (100%) vested. Unless the Plan is otherwise
amended prior to dissolution of the Company, the Plan shall
terminate as of the date of dissolution of the Company.
(c) Upon discontinuance or termination, any previously
unallocated contributions, forfeitures, credits and net increment
(or net decrement) shall be allocated among the accounts of the
Participants on such date of discontinuance or termination
according to the provisions of Article V, as if such date of
discontinuance or termination were a Valuation Date. In the event
of termination, distribution of all Participants' Accounts shall
be made within thirty (30) days after the end of the Plan Quarter
in which the termination occurs, and the date of the final
distribution shall be treated as a Valuation Date.
XV.
MISCELLANEOUS
15.01 Not Contract of Employment. The adoption and
maintenance of this Plan shall not be deemed to be a contract
between any Employing Company and any person or to be
consideration for the employment of any person. Nothing herein
contained shall be deemed to give any person the right to be
retained in the employ of any Employing Company or to restrict
the right of any Employing Company to discharge any person at any
time nor shall the Plan be deemed to give any Employing Company
the right to require any person to remain in the employ of the
Employing Company or to restrict any person's right to terminate
his employment at any time.
15.02 Rights to Payments of a Claim Against General Assets of
the Company. This Plan is intended to be an unfunded plan for
purposes of the Code and Title I of the Act. A Participant's
status to enforce his rights under the Plan is that of a general
unsecured creditor of his Employing Company and the Plan
constitutes a mere promise by the Company or other Employing
Company to make benefit payments in the future.
15.03 Alienation of Interest Forbidden. No right or interest
of any kind in any benefit shall be transferable or assignable by
any Participant or any beneficiary or be subject to anticipation,
adjustment, alienation, sale, pledge, encumbrance, garnishment,
attachment, execution or levy or any other legal or equitable
process.
15.04 Severability. If any provision of this Plan shall be
held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions hereof;
instead, each provision shall be fully severable and the Plan
shall be construed and enforced as if said illegal or invalid
provision had never been included herein.
15.05 Jurisdiction. The situs of the Plan hereby created is
Dallas County, Texas. All provisions of the Plan shall be
construed in accordance with the laws of Texas except to the
extent pre-empted by federal law.
IN WITNESS WHEREOF, Brinker International, Inc. has caused
this Plan to be executed this 12th day of October , 1993.
BRINKER INTERNATIONAL, INC.
ATTEST: By:/S/ Ronald A. McDougall
Name: Ronald A. McDougall
/S/ J. L. Tobin Title: President
Asst. Secretary
CERTIFICATE OF THE SECRETARY
I, ROGER F. THOMSON, Secretary of Brinker International,
Inc., a Delaware corporation (the "Company"), hereby certify that
attached hereto is a true, correct, and complete copy of the
currently effective Unanimous Written Consent of the Executive
Committee of the Board of Directors of the Company, dated
September 9, 1994, which resolutions relate to the amendment of
the Savings Plan II of the Company.
IN WITNESS WHEREOF, I have hereunto affixed my signature and
seal of the corporation this 12th day of September, 1994.
[S E A L]
/S/ Roger F. Thomson
Roger F. Thomson, Secretary
SUBSCRIBED AND SWORN to before me, a Notary Public, this
12th day of September, 1994.
[S E A L]
/S/ Rebecca E. Keck
Notary Public, State of Texas
My Commission Expires: Printed or Stamped Name:
July 27, 1997 Rebecca E. Keck
UNANIMOUS WRITTEN CONSENT OF THE
EXECUTIVE COMMITTEE OF THE BOARD OF DIRECTORS OF
BRINKER INTERNATIONAL, INC., A DELAWARE CORPORATION
September 9, 1994
Pursuant to the provisions of the Bylaws of Brinker
International, Inc., a Delaware corporation (the "Company"), the
undersigned, being all the members of the Executive Committee of
the Board of Directors of the Company hereby declare that, when
all of us have signed this Consent or a counterpart hereof, the
following resolutions shall have been consented to, approved of,
and adopted to the same extent and to have the same force and
effect as if adopted at a meeting of the Executive Committee of
the Board of Directors duly called and held for the purpose of
acting upon proposals to adopt such resolutions:
WHEREAS, the Company established and adopted a Savings Plan
II for the exclusive benefit of employees of the company who
become participants, effective January 1, 1993 (the "Plan II");
WHEREAS, Plan II may be amended further pursuant to the
terms and provision of Article XIII thereof;
NOW THEREFORE BE IT RESOLVED, that Amendment Number One to
Plan II, a copy of which has been circulated with this Consent,
be and hereby is, approved and adopted and the proper officers of
the Company be, and hereby are, authorized and directed to
execute and attest Amendment Number One to Plan II for and on
behalf of the Company;
FURTHER RESOLVED, that the Company and any of its officers
hereby are, jointly and severally, authorized to take, or cause
to be taken, any and all actions deemed, in their judgment,
necessary, desirable or appropriate in connection therewith, to
execute, acknowledge, verify, deliver, file, certify or record
any and all instruments and documents which may be required to
effect the foregoing resolutions; and
FURTHER RESOLVED, that all acts of the officers of the
Company which are consistent with the intent of these resolutions
shall be and hereby are, in all respects, approved, confirmed and
adopted as acts of the Company.
Executed as of the date first above written.
/S/ Norman E. Brinker
NORMAN E. BRINKER
/S/ Ronald A McDougall
RONALD A. McDOUGALL
/S/ Creed L. Ford, III
CREED L. FORD, III
/S/ Debra L. Smithart
DEBRA L. SMITHART
/S/ F. Lane Cardwell, Jr.
F. LANE CARDWELL, JR.
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN IX
Amendment Number One
Brinker International Inc. (the "Company"), a corporation
duly organized and existing under the laws of the State of
Delaware, having established the Brinker International, Inc.
Savings Plan II (the "Plan") pursuant to an instrument effective
January l, 1993, and having reserved the power in Article XIII of
the Plan to amend the Plan further from time to time, hereby
amends the Plan as set forth below, effective as of January l,
1994.
*****
1. Section 1.01(18) Enrollment Form: shall be deleted in
its entirety and replaced with the following in lieu thereof:
(18) Salary Deferral Agreement: That
agreement provided by the Committee
pursuant to which the Participant
authorizes the Company to reduce his
future compensation in the elected
amount and in consideration of which the
Company agrees to stake a Company
Matching Credit on his behalf.
2. The Plan shall be amended throughout by deleting the
word "form" and or "enrollment form" and inserting in lieu
thereof the word "agreement" and or "salary deferral agreement",
respectively, unless the purpose is specifically intended
otherwise.
3. Section 1.01 Definitions. shall be amended by adding at
the conclusion thereof the following Subsection:
(34) Summary Plan Description (SPD): A
written booklet, folder or binder
describing the Plan in a manner
calculated to be understood by the
average Plan Participant and shall be
sufficiently accurate and comprehensive
to inform, the Plan's Participants and
beneficiaries of their rights and
obligations under the Plan.
The SPD shall be given to new Employees
within 90 days after an Employee becomes
a Participant or first receives benefits
as a beneficiary.
4. Section 4.02 Company Matching Credits. is amended by
deleting the following phrase from the first sentence of such
Section:
"...or a participant in the Chili's Managers Deferred Bonus
Plan,.".
5. Section 4.02 Company Matching Credits. is amended
further by deleting in its entirety the last sentence of this
Section and inserting in lieu thereof the following:
Company Matching Credits on behalf of
Participants who are officers of an
Employing Company shall be treated as
though made in cash and invested by the
Participant in one or more of the mutual
funds previously designated by the
Participant and described in Section
5.03(a).
6. Section 5.03(a) Investment Options. is amended by
deleting in its entirety the third sentence of this Subsection
and inserting in lieu thereof the following:
The options available for selection by
the Participant shall always include one
or more mutual funds designed to permit
a diversified selection of risks.
* * * * *
7. Except as hereinabove amended, the provisions of the
Plan, as previously established, shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this Amendment
Number One to the Plan to be executed on this 12th day of
September, 1994.
BRINKER INTERNATIONAL, INC.
By:/S/ Roger F. Thomson
CERTIFICATE OF THE SECRETARY
I, ROGER F. THOMSON, Secretary of Brinker International,
Inc., a Delaware corporation (the "Company"), hereby certify that
attached hereto is a true, correct, and complete copy of the
currently effective Unanimous Written Consent of the Executive
Committee of the Board of Directors of the Company, dated June
14, 1995, which resolutions relate to the amendment of the
Savings Plan II of the Company.
IN WITNESS WHEREOF, I have hereunto affixed my signature and
seal of the corporation this 26th day of June, 1995.
[S E A L]
/S/ Roger F. Thomson
Roger F. Thomson, Secretary
SUBSCRIBED AND SWORN to before me, a Notary Public, this
26th day of June, 1995.
[S E A L]
/S/ Rebecca E. Keck
Notary Pub1ic, State of Texas
My Commission Expires: Printed or Stamped Name:
July 27, 1997 Rebecca E. Keck
UNANIMOUS WRITTEN CONSENT OF THE
EXECUTIVE COMMITTTEE OF THE BOARD OF DIRECTORS
OF BRINKER INTERNATIONAL, INC., A DELAWARE CORPORATION
June 14, 1995
Pursuant to the provisions of the Bylaws of Brinker
International, Inc., a Delaware corporation (the "Company"), the
undersigned, being all the members of the Executive Committee of
the Board of Directors of the Company hereby declare that, when
all of us have signed this Consent or a counterpart hereof, the
following resolutions shall have been consented to, approved of,
and adopted to the same extent and to have the same force and
effect as if adopted at a meeting of the Executive Committee of
the Board of Directors duly called and held for the purpose of
acting upon proposals to adopt such resolutions:
WHEREAS, the Company established and adopted a
Savings Plan II for the exclusive benefit of employees
of the Company who become participants, effective
January 1, 1993 (the "Plan II");
WHEREAS, Plan II may be amended further pursuant
to the terms and provision of Article XIII thereof
NOW THEREFORE BE IT RESOLVED, that Amendment
Number Two to Plan II, a copy of which has been
circulated with this Consent, be and hereby is,
approved and adopted and the proper officers of the
Company be, and hereby are, authorized and directed to
execute and attest Amendment Number Two to Plan II for
and on behalf of the Company;
FURTHER RESOLVED, that the Company and any of its
officers hereby are, jointly and severally, authorized
to take, or cause to be taken, any and all actions
deemed, in their judgment, necessary, desirable or
appropriate in connection therewith, to execute,
acknowledge, verify, deliver, file, certify or record
any and all instruments and documents which may be
required to effect the foregoing resolutions; and
FURTHER RESOLVED, that all acts of the officers of
the Company which are consistent with the intent of
these resolutions shall be and hereby are, in all
respects, approved, confirmed and adopted as acts of
the Company.
Executed as of the date first above written.
/S/ Norman E. Brinker
NORMAN E. BRINKER
/S/ Ronald A. McDougall
RONALD A. McDOUGALL
/S/ Creed L. Ford, III
CREED L. FORD, III
/S/ Debra L. Smithart
DEBRA L. SMITHART
/S/ F. Lane Cardwell, Jr.
F. LANE CARDWELL, JR.
BRINKER INTERNATIONAL, INC.
SAVINGS PLAN II
Amendment Number Two
Brinker International, Inc. (the "Company"), a corporation
duly organized and existing under the laws of the State of
Delaware, having established the Brinker International, Inc.
Savings Plan II (the "Plan") pursuant to an instrument effective
January 1, 1993, and having reserved the power in Article XIII of
the Plan to amend the Plan further from time to time, hereby
amends the Plan as set forth below, effective as of January 1,
1995.
*****
1. Section 1.01 (15) Eligible Employee: shall be deleted
in its entirety and replaced with the following in lieu thereof:
"(15) Eligible Employee: Any individual on the payroll
of an Employing Company (i) whose wages from the
Employing Company are subject to withholding for
Federal income tax and FICA purposes; (ii) who is
included within a 'select group of management or highly
compensated employees,' within the meaning of ERISA,
and (iii) who is designated by the Committee as
eligible to participate in the Plan."
2. Section 11.02 Insurance Contracts: is amended by
deleting the following phrase therefrom:
"; provided, however, that in any case in which the
owner and/or beneficiary of any such insurance contract
is a person other than an Employing Company and/or the
Trustee, the Company shall prepare, or cause to be
prepared, appropriate Federal tax reports."
3. Except as hereinabove amended, the provisions of the
Plan, as previously established, shall remain in full force and
effect.
IN WITNESS WHEREOF, the Company has caused this Amendment
Number Two to the Plan to be executed on this 14th day of June,
1995.
BRINKER INTERNATIONAL, INC.
By:/S/ Roger F. Thomson
