<PAGE>
EXHIBIT 10.5
ALLERGAN, INC.
SAVINGS AND INVESTMENT PLAN
RESTATED
2005
<PAGE>
.
.
.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE I
INTRODUCTION.............................................................
1
1.1 Plan
Name..........................................................
1
1.2 Plan
Purpose.......................................................
1
1.3 Effective
Date of 2005 Restated Plan...............................
1
1.4 Amendments
to Plan.................................................
1
1.5 Plan
Qualification.................................................
2
ARTICLE II
DEFINITIONS..............................................................
3
2.1
Accounts...........................................................
3
2.2 Affiliated
Company.................................................
3
2.3 After Tax
Deposits.................................................
3
2.4 After Tax
Deposits Account.........................................
3
2.5 Anniversary
Date...................................................
3
2.6 Before Tax
Deposits................................................
3
2.7 Before Tax
Deposits Account........................................
3
2.8
Beneficiary........................................................
3
2.9 Board of
Directors.................................................
3
2.10 Break in
Service...................................................
4
2.11
Code...............................................................
4
2.12
Committee..........................................................
4
2.13
Company............................................................
4
2.14 Company
Contributions..............................................
4
2.15 Company
Contributions Accounts.....................................
4
2.16 Company
Stock......................................................
4
2.17
Compensation.......................................................
4
2.18 Credited
Service...................................................
6
2.19
Disability.........................................................
7
2.20 Effective
Date.....................................................
7
2.21 Eligible
Employee..................................................
7
2.22 Eligible
Retirement Plan...........................................
7
2.23 Eligible Rollover
Distribution..................................... 8
2.24
Employee...........................................................
8
2.25 Employment
Commencement Date.......................................
9
2.26
ERISA..............................................................
9
2.27
Forfeitures........................................................
9
2.28 415 Suspense
Account............................................... 9
2.29 Highly
Compensated Employee........................................
10
2.30 Hour of
Service....................................................
10
2.31 Investment
Manager.................................................
10
2.32 Leased
Employee....................................................
10
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
2.33 Leave of
Absence...................................................
11
2.34 Matched
Deposits...................................................
12
2.35 Matching
Contributions.............................................
12
2.36 Matching
Contributions Account.....................................
12
2.37 Normal Retirement
Age.............................................. 12
2.38
Participant........................................................
12
2.39 Participant
Deposits...............................................
13
2.40 Period of
Severance................................................
13
2.41
Plan...............................................................
13
2.42 Plan
Administrator.................................................
13
2.43 Plan
Year..........................................................
13
2.44 Reemployment
Commencement Date..................................... 13
2.45 Retirement
Account Participant.....................................
13
2.46 Retirement
Contributions...........................................
13
2.47 Retirement
Contributions Account...................................
13
2.48 Rollover
Contributions.............................................
13
2.49 Rollover
Contributions Account.....................................
14
2.50
Severance..........................................................
14
2.51 Severance
Date.....................................................
14
2.52
Sponsor............................................................
14
2.53
Trust..............................................................
15
2.54 Trust
Agreement....................................................
15
2.55
Trustee............................................................
15
2.56 Valuation
Date.....................................................
15
ARTICLE III
ELIGIBILITY AND
PARTICIPATION............................................
16
3.1 General
Eligibility and Participation..............................
16
3.2 Eligibility
for Retirement Contributions...........................
16
3.3 Duration of
Participation..........................................
17
3.4 Eligibility
and Participation After Normal Retirement Age..........
17
ARTICLE IV
PARTICIPANT
DEPOSITS.....................................................
18
4.1
Election...........................................................
18
4.2 Amount
Subject to Election.........................................
19
4.3 Limitation
on Compensation Deferrals...............................
20
4.4 Provisions
for Return of Excess Before Tax Deposits................
23
4.5 Provision
for Recharacterization or Return of Excess Deferrals
by Highly Compensated Participants..............................
25
4.6 Termination,
Change in Rate, or Resumption
of Before Tax Deposits or After Tax Deposits....................
27
4.7 Character of
Deposits.............................................. 27
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
4.8 Rollover
Contributions.............................................
27
ARTICLE V
TRUST FUND AND COMPANY
CONTRIBUTIONS..................................... 29
5.1
General............................................................
29
5.2 Single
Trust.......................................................
29
5.3 Matching
Contributions.............................................
29
5.4 Retirement
Contributions...........................................
30
5.5 Form of
Company Contributions......................................
30
5.6 Investment
of Trust Assets.........................................
30
5.7
Irrevocability.....................................................
33
5.8 Company,
Committee and Trustee Not Responsible for Adequacy of
Trust Fund......................................................
34
5.9 Certain
Offers for Company Stock...................................
34
5.10 Voting of Company
Stock............................................ 37
5.11 Securities Law
Limitation.......................................... 39
5.12
Distributions......................................................
39
5.13
Taxes..............................................................
39
5.14 Trustee Records
to be Maintained................................... 40
5.15 Annual Report of
Trustee........................................... 40
5.16 Appointment of
Investment Manager.................................. 40
ARTICLE VI
ACCOUNTS AND
ALLOCATIONS.................................................
41
6.1
Participants' Accounts.............................................
41
6.2 Allocation
of Participant Deposits.................................
41
6.3 Allocation
of Company Contributions and Forfeitures................
41
6.4 Valuation of
Participants' Accounts................................ 42
6.5 Valuation of
Company Stock......................................... 42
6.6 Dividends,
Splits, Recapitalizations, Etc..........................
42
6.7 Stock
Rights, Warrants or Options..................................
42
6.8 Treatment of
Accounts Upon Severance............................... 43
6.9 Cash
Dividends.....................................................
43
6.10 Miscellaneous
Allocation Rules..................................... 43
6.11 Limitations on
After Tax Deposits and Matching Contributions....... 44
6.12 Provision for
Disposition of Excess After Tax Deposits or Matching
Contributions on Behalf of Highly Compensated Participants......
48
ARTICLE VII
VESTING IN PLAN
ACCOUNTS.................................................
51
7.1 No Vested
Rights Except as Herein Provided.........................
51
7.2 Vesting of
Participant Deposits....................................
51
7.3 Vesting of
Company Contributions...................................
51
</TABLE>
iii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE VIII
PAYMENT OF PLAN
BENEFITS.................................................
53
8.1 Withdrawals
During Employment......................................
53
8.2
Distributions Upon Termination of Employment or Disability.........
54
8.3 Distribution
Upon Death of Participant............................. 55
8.4 Designation
of Beneficiary.........................................
55
8.5 Hardship
Withdrawal Rules..........................................
56
8.6 Distribution
Rules................................................. 57
8.7
Forfeitures........................................................
63
8.8 Valuation of
Accounts Upon Distribution............................ 64
8.9 Lapsed
Benefits....................................................
64
8.10 Persons Under
Legal Disability..................................... 65
8.11 Additional
Documents...............................................
65
8.12
Trustee-to-Trustee Transfers.......................................
66
8.13 Loans to
Participants..............................................
66
ARTICLE IX
OPERATION AND
ADMINISTRATION.............................................
69
9.1 Appointment
of Committee...........................................
69
9.2 Appointment
of Investment Subcommittee.............................
69
9.3 Transaction
of Business............................................
69
9.4
Voting.............................................................
70
9.5
Responsibility of Committees.......................................
70
9.6 Committee
Powers...................................................
71
9.7 Additional
Powers of Committee.....................................
72
9.8 Investment
Subcommittee Powers.....................................
72
9.9 Periodic
Review of Funding Policy..................................
73
9.10 Claims
Procedures..................................................
73
9.11 Appeals
Procedures.................................................
74
9.12 Limitation on
Liability............................................ 75
9.13 Indemnification
and Insurance...................................... 75
9.14 Compensation of
Committees and Plan Expenses....................... 75
9.15
Resignation........................................................
76
9.16 Reliance Upon
Documents and Opinions............................... 76
ARTICLE X
AMENDMENT AND ADOPTION OF
PLAN........................................... 77
10.1 Right to Amend
Plan................................................ 77
10.2 Adoption of Plan
by Affiliated Companies........................... 77
ARTICLE XI DISCONTINUANCE OF
CONTRIBUTIONS............................... 78
</TABLE>
iv
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
ARTICLE XII
TERMINATION AND
MERGER...................................................
79
12.1 Right to
Terminate Plan............................................
79
12.2 Merger
Restriction.................................................
79
12.3 Effect on Trustee
and Committee.................................... 79
12.4 Effect of
Reorganization, Transfer of Assets or Change in Control..
79
ARTICLE XIII
LIMITATION ON
ALLOCATIONS................................................
82
13.1 General
Rule.......................................................
82
13.2 Annual
Additions...................................................
82
13.3 Other Defined
Contribution Plans................................... 83
13.4 Adjustments for
Excess Annual Additions............................ 83
13.5
Compensation.......................................................
83
13.6 Treatment of 415
Suspense Account Upon Termination................. 84
ARTICLE XIV
TOP-HEAVY
RULES..........................................................
85
14.1
Applicability......................................................
85
14.2
Definitions........................................................
85
14.3 Top-Heavy
Status...................................................
86
14.4 Minimum
Contributions..............................................
87
14.5 Minimum Vesting
Rules.............................................. 88
14.6 Noneligible
Employees..............................................
88
ARTICLE XV
RESTRICTION ON ASSIGNMENT OR OTHER ALIENATION OF PLAN
BENEFITS........... 89
15.1 General
Restrictions Against Alienation............................
89
15.2 Qualified
Domestic Relations Orders................................
89
ARTICLE XVI
MISCELLANEOUS
PROVISIONS.................................................
93
16.1 No Right of
Employment Hereunder...................................
93
16.2 Effect of Article
Headings......................................... 93
16.3 Limitation on
Company Liability.................................... 93
16.4
Gender.............................................................
93
16.5
Interpretation.....................................................
93
16.6 Withholding For
Taxes.............................................. 93
16.7 California Law
Controlling......................................... 93
16.8 Plan and Trust as
One Instrument................................... 93
</TABLE>
v
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S>
<C>
16.9 Invalid
Provisions.................................................
93
16.10
Counterparts.......................................................
94
</TABLE>
APPENDIX A
vi
<PAGE>
ALLERGAN, INC.
SAVINGS AND INVESTMENT PLAN
ARTICLE I
INTRODUCTION
1.1
Plan Name. This document, made and entered into by Allergan, Inc.,
a
Delaware corporation ("Allergan"), amends and restates in its
entirety the
"Allergan, Inc. Savings and Investment Plan (Restated 2003)" and
shall be known
hereafter as the "Allergan, Inc. Savings and Investment Plan
(Restated 2005)."
1.2
Plan Purpose. The purpose of the Allergan, Inc. Savings and
Investment
Plan (Restated 2005), hereinafter referred to as the "Plan," is to
enable
Eligible Employees of Allergan, and any Affiliated Companies that
are authorized
by the Board of Directors to participate in the Plan, to share in
the growth and
prosperity of the Company and to provide Participants with an
opportunity to
accumulate capital for their future economic security. All assets
acquired under
the Plan as a result of Participant Deposits and Company
Contributions, income,
and other additions to the Fund under the Plan shall be
administered,
distributed, forfeited and otherwise governed by the provisions of
the Plan,
which is to be administered by the Committee for the exclusive
benefit of
Participants in the Plan and their Beneficiaries.
1.3
Effective Date of 2005 Restated Plan. The Effective Date of
this
amended and restated Plan shall be January 1, 2005 unless otherwise
specified in
the Plan. The provisions of this Plan document apply generally to
Employees who
have completed at least one (1) Hour of Service for Allergan or any
Affiliated
Companies on or after January 1, 2005 and the rights and benefits,
if any, of
Employees or Participants whose employment with Allergan or any
Affiliated
Companies terminated prior to January 1, 2005 shall be determined
in accordance
with the provisions of the Plan then in effect unless otherwise
provided herein
and subject to any modification provided herein that may affect the
holding or
distribution of Participants' Accounts.
1.4
Amendments to Plan. The Plan has been amended from time to time
since
its Original Effective Date of July 26, 1989 to reflect changes in
the Plan's
operations and applicable law including, but not limited to, the
following:
(a) Effective March 28, 2005, the Plan's mandatory distribution
rule
shall apply to Accounts, the vested portions of which, do not
exceed
$1,000. The Plan document also incorporates the amendments made
under the
First, Second, and Third Amendments to the Plan (Restated
2003).
(b) Effective January 1, 2003, Company Contributions made to the
Plan
were
enhanced by (i) increasing the Company's Matching Contributions
from
an
average 50% match on certain Participant Deposits not to exceed 5%
of
Compensation to a 100% match on certain Participant Deposits not to
exceed
4%
of Compensation and (ii) adding a Retirement Contributions feature
under
which Allergan will make contributions equal to 5% of Compensation
for
certain Eligible Employees hired on or after October 1, 2002
<PAGE>
and
for other Eligible Employees who make a one-time irrevocable
election
to
cease active participation in the Allergan, Inc. Pension Plan.
(c) Effective June 29, 2002, in connection with the distribution
of
the
stock of Advanced Medical Optics, Inc. ("AMO") by Allergan to
its
stockholders (i) AMO Employees (as defined in Section 2.24) ceased
to be
eligible to make Participant Deposits or to receive allocations of
Company
Contributions, (ii) the assets and liabilities attributable to the
Accounts
of
AMO Employees shall be transferred to the Advanced Medical Optics,
Inc.
401(k) Plan, a qualified profit sharing plan with a qualified cash
or
deferred arrangement, in accordance with Code Section 414(l),
Regulation
Section 1.414(1)-1, and Section 208 of ERISA, and (iii) the AMO
stock
received with respect to Company Stock allocated to Participants'
Accounts
shall be held in a separate investment fund established by the
Committee
pursuant to Section 5.6 and Participants shall have subaccounts
under the
Plan
corresponding to their interests in such investment fund.
(d) Effective as of January 1, 1999, the Allergan, Inc. Puerto
Rico
Savings and Investment Plan was merged with and into the Plan. All
account
balances of the Allergan, Inc. Puerto Rico Savings and Investment
Plan were
transferred to the Plan and all account balances transferred to the
Plan as
a
result of the merger are to be administered, distributed, forfeited
and
otherwise governed by the provisions of the Plan and Appendix A,
which is
attached hereto and made a part hereof.
1.5
Plan Qualification. The Plan is an employee benefit plan that
is
intended to qualify under Code Section 401(a) as a qualified profit
sharing plan
and under Code Section 401(k) as a qualified cash or deferred
arrangement. The
Plan's last determination letter was issued by the Internal Revenue
Service on
July 22, 2002 with respect to the Allergan, Inc. Savings and
Investment Plan
(Restated 2001) and its compliance with the changes to the
qualification
requirements made by the Uruguay Round Agreements Act (GATT), the
Uniformed
Services Employment and Reemployment Rights Act of 1994, the Small
Business Job
Protection Act of 1996, the Taxpayer Relief Act of 1997, the
Internal Revenue
Service Restructuring and Reform Act of 1998, and the Community
Renewal Tax
Relief Act of 2000. It is intended that the Economic Growth and Tax
Relief
Reconciliation Act of 2001 ("EGTRRA") provisions of the Plan are to
be regarded
as good faith compliance with the requirements of EGTRRA and are to
be construed
in accordance with EGTRRA and guidance issued thereunder.
2
<PAGE>
ARTICLE II
DEFINITIONS
2.1.
Accounts. "Accounts" or "Participant's Accounts" shall mean the
After
Tax Deposits Accounts, Before Tax Deposits Accounts, Matching
Contributions
Accounts, Retirement Contributions Accounts, and Rollover
Contributions Accounts
maintained for the various Participants.
2.2.
Affiliated Company. "Affiliated Company" shall mean (i) any
corporation, other than the Sponsor, which is included in a
controlled group of
corporations (within the meaning of Code Section 414(b)) of which
the Sponsor is
a member, (ii) any trade or business, other than the Sponsor, which
is under
common control (within the meaning of Code Section 414(c)) with the
Sponsor,
(iii) any entity or organization, other than the Sponsor, which is
a member of
an affiliated service group (within the meaning of Code Section
414(m)) of which
the Sponsor is a member, and (iv) any entity or organization, other
than the
Sponsor, which is affiliated with the Sponsor under Code Section
414(o). An
entity shall be an Affiliated Company pursuant to this Section only
during the
period of time in which such entity has the required relationship
with the
Sponsor under clauses (i), (ii), (iii) or (iv) of this Section
after the
Original Effective Date of the Plan.
2.3.
After Tax Deposits. "After Tax Deposits" shall mean those
contributions made by a Participant which represent after-tax
contributions.
2.4.
After Tax Deposits Account. "After Tax Deposits Account" shall mean
a
Participant's individual account in the Trust Fund in which are
held his or her
After Tax Deposits and the earnings thereon.
2.5.
Anniversary Date. "Anniversary Date" shall mean the last day of
each
Plan Year.
2.6.
Before Tax Deposits. "Before Tax Deposits" shall mean those
contributions made by a Participant which represent pre-tax
contributions.
2.7.
Before Tax Deposits Account. "Before Tax Deposits Account" shall
mean
a Participant's individual account in the Trust Fund in which are
held his or
her Before Tax Deposits and the earnings thereon.
2.8.
Beneficiary. "Beneficiary" or "Beneficiaries" shall mean the person
or
persons last designated by a Participant as set forth in Section
8.4 or, if
there is no designated Beneficiary or surviving Beneficiary, the
person or
persons designated pursuant to Section 8.4 to receive the interest
of a deceased
Participant in such event.
2.9.
Board of Directors. "Board of Directors" shall mean the Board
of
Directors of the Sponsor (or its delegate) as it may from time to
time be
constituted.
3
<PAGE>
2.10. Break in Service. "Break in Service" shall mean, with respect
to an
Employee, each period of 12 consecutive months during a Period of
Severance that
commences on the Employee's Severance Date or on any anniversary of
such
Severance Date.
2.11. Code. "Code" shall mean the Internal Revenue Code of 1986 and
the
regulations thereunder. Reference to a specific Code Section shall
be deemed
also to refer to any applicable regulations under that Section, and
shall also
include any comparable provisions of future legislation that amend,
supplement
or supersede that specific Section.
2.12. Committee. "Committee" shall mean the committee to be
appointed under
the provisions of Section 9.1 to administer the Plan.
2.13. Company. "Company" shall mean collectively the Sponsor and
each
Affiliated Company that adopts the Plan in accordance with Section
10.2.
2.14. Company Contributions. "Company Contributions" shall mean
Matching
Contributions and Retirement Contributions (whether in cash or
other property,
including Company Stock), paid by the Company pursuant to Sections
5.3 and 5.4
into the Trust Fund established and maintained under the provisions
of the Plan
for the purpose of providing benefits for Participants and their
Beneficiaries.
Unless expressly stated otherwise in the Plan, Company
Contributions shall not
include Before Tax Deposits, After Tax Deposits, or Rollover
Contributions.
2.15. Company Contributions Accounts. "Company Contributions
Accounts"
shall mean a Participant's Matching Contributions Account and
Retirement
Contributions Account.
2.16. Company Stock. "Company Stock" shall mean any class of stock
of the
Sponsor which both constitutes "qualifying employer securities" as
defined in
Section 407(d)(5) of ERISA and "employer securities" as defined in
Code Section
409(l).
2.17. Compensation. "Compensation" shall mean the following:
(a) Compensation shall include amounts paid during a Plan Year to
a
Participant by the Company for services rendered, including base
earnings,
commissions and similar incentive compensation, cost of living
allowances
earned within the United States of America, holiday pay, overtime
earnings,
pay
received for election board duty, pay received for jury and
witness
duty, pay received for military service (annual training), pay
received for
being available for work, if required (call-in premium), shift
differential
and
premium, sickness/accident related pay, vacation pay (other than
as
excluded in paragraph (c) below), vacation shift premium, and bonus
amounts
paid
under the (i) Sales Bonus Program, (ii) Management Bonus Plan
or
Executive Bonus Plan, either in cash or in restricted stock, and
(iii)
group performance sharing payments, such as the "Partners for
Success."
(b) Compensation shall include amounts of salary reduction elected
by
a
Participant under a Code Section 401(k) cash or deferred
arrangement, a
Code
4
<PAGE>
Section 125 cafeteria plan and, solely for purposes of
determining
Retirement Contributions under Section 5.4, amounts deferred under
the
Executive Deferred Compensation Plan.
(c) Compensation shall not include business expense
reimbursements;
Company gifts or the value of Company gifts; Company stock related
options
and
payments; employee referral awards; flexible compensation credits
paid
in
cash; special overseas payments, allowances and adjustments
including,
but
not limited to, pay for cost of living adjustments and
differentials
paid
for service outside of the United States, expatriate
reimbursement
payments, and tax equalization payments; forms of imputed income;
long-term
disability pay; payment for loss of Company car; Company car
allowance;
payments for patents or for writing articles; relocation and
moving
expenses; retention and employment incentive payments; severance
pay;
long-term incentive awards, bonuses or payments; "Impact Award"
payments;
"Employee of the Year" payments; "Awards for Excellence" payments;
"Hidden
Gem
Award" payments; special group incentive payments and
individual
recognition payments which are nonrecurring in nature; tuition
reimbursement; lump sum amounts paid to Employees under the
Company's
vacation buy-back policy; and contributions by the Company under
the Plan
or
distributions hereunder, any contributions or distributions
pursuant to
any
other plan sponsored by the Company and qualified under Code
Section
401(a) (other than contributions constituting salary reduction
amounts
elected by the Participant under a Code Section 401(k) cash or
deferred
arrangement), any payments under a health or welfare plan sponsored
by the
Company, or premiums paid by the Company under any insurance plan
for the
benefit of Employees.
(d) Solely for purposes of determining Retirement Contributions
under
Section 5.4, Compensation shall include compensation paid by
Oculex
Pharmaceuticals, Inc. to an Eligible Employee prior to Oculex
Pharmaceuticals, Inc. becoming an Affiliated Company but only to
the extent
provided in paragraphs (a), (b), and (c) above and only to the
extent of
compensation paid by Oculex Pharmaceuticals, Inc. in 2003.
(e) Compensation for any Plan Year shall not include amounts in
excess
of
$210,000, as adjusted for cost-of-living increases in accordance
with
Code
Section 401(a)(17)(B) for purposes of determining all benefits
provided under the Plan for any Plan Year. Any cost-of-living
adjustments
in
effect for a calendar year shall apply to the Plan Year beginning
with
or
within such calendar year.
(f) Notwithstanding the foregoing, for purposes of applying the
provisions of Articles XIII and XIV, a Participant's Compensation
shall be
determined pursuant to the definition of "Compensation" as set
forth in
Section 13.5 or 14.2(i), as the case may be.
5
<PAGE>
2.18. Credited Service. "Credited Service" shall mean, with respect
to each
Employee, his or her years and months of Credited Service
determined in
accordance with the following rules:
(a) In the case of any Employee who was employed by the Company at
any
time
prior to the Original Effective Date, for the period prior to
January
1,
1989 such Employee shall be credited with Credited Service under
the
Plan
equal to the period (if any) of service credited to such
Employee
under the SmithKline Beckman Savings and Investment Plan.
(b) In the case of any Employee who is employed by the Company on
or
after the Original Effective Date, an Employee shall receive
Credited
Service for the elapsed period of time between each Employment
Commencement
Date
(or Reemployment Commencement Date) of the Employee and the
Severance
Date
which immediately follows that Employment Commencement Date (or
Reemployment Commencement Date). Solely for the purpose of
determining an
Employee's Credited Service under this paragraph (b), in the case
of an
Employee who is employed on January 1, 1989, that date shall be
deemed to
be
an Employment Commencement Date of the Employee (with service
credit for
periods prior to January 1, 1989 to be determined under paragraph
(a)
above). An Employee who is absent from work on an authorized Leave
of
Absence shall be deemed to have incurred a Severance (if any) in
accordance
with
the rules of Section 2.50.
(c) An Employee shall receive Credited Service credit for
periods
between a Severance and his or her subsequent Reemployment
Commencement
Date
in accordance with the following rules:
(i) If an Employee incurs a Severance by reason of a quit,
discharge, Disability, or retirement whether or not such a
Severance
occurs during an approved Leave of Absence and the Employee is
later
reemployed by the Company prior to his or her incurring a Break
in
Service, he or she shall receive Credited Service for the
period
commencing with his or her Severance Date and ending with his or
her
subsequent Reemployment Commencement Date.
(ii) Other than as expressly set forth above in this paragraph
(c), an Employee shall receive no Credited Service with respect
to
periods between a Severance and a subsequent Reemployment
Commencement
Date.
(d) For all purposes of the Plan, an Employee's total Credited
Service
shall be determined by aggregating any separate periods of Credited
Service
separated by any Breaks in Service.
(e) An Employee shall be credited with Credited Service with
respect
to a
period of employment with an Affiliated Company, but only to
the
extent that such period of employment would be so credited under
the
foregoing rules set forth in this Section had such Employee been
employed
during such period by the Company.
(f) Notwithstanding the foregoing, unless the Sponsor shall so
provide
by
resolution of its Board of Directors, or unless otherwise
expressly
stated in the Plan, an
6
<PAGE>
Employee shall not receive such Credited Service credit for any
period of
employment with an Affiliated Company prior to such entity becoming
an
Affiliated Company.
(g) In accordance with paragraph (f) above, an Eligible Employee
shall
receive Credited Service for any period of employment with Allergan
Medical
Optics - Lenoir facility or Oculex Pharmaceuticals, Inc. prior to
each
becoming an Affiliated Company but only to the extent provided in
paragraph
(e)
above. Notwithstanding anything therein to the contrary and for
purposes of this Plan only, the Employment Commencement Date for
an
Eligible Employee under paragraph (b) shall mean the date the
Employee was
first credited with an Hour of Service with Allergan Medical Optics
-
Lenoir facility or Oculex Pharmaceuticals, Inc., including any date
prior
to
Allergan Medical Optics - Lenoir facility or Oculex
Pharmaceuticals,
Inc.
becoming an Affiliated Company.
(h) Notwithstanding any provision of the Plan to the contrary,
contributions, benefits and service credit with respect to
qualified
military service shall be provided in accordance with Code Section
414(u).
2.19. Disability. "Disability" shall mean any mental or physical
condition
which, in the judgment of the Committee, based on such competent
medical
evidence as the Committee may require, renders an individual unable
to engage in
any substantial gainful activity for the Company for which he or
she is
reasonably fitted by education, training, or experience and which
condition can
be expected to result in death or which has lasted or can be
expected to last
for a continuous period of at least 12 months. The determination by
the
Committee, upon opinion of a physician selected by the Committee,
as to whether
a Participant has incurred a Disability shall be final and binding
on all
persons.
2.20. Effective Date. "Effective Date" of this restated Plan shall
mean
January 1, 2005 unless otherwise specified in the Plan. The
"Original Effective
Date" of the Plan shall mean July 26, 1989.
2.21. Eligible Employee. "Eligible Employee" shall mean any
United
States-based payroll Employee and any Puerto Rico-based payroll
Employee of the
Company and any expatriate Employee of the Company who is a United
States
citizen or permanent resident, but excluding any non-resident alien
of the
United States and Puerto Rico, any non-regular manufacturing site
transition
Employee, any Leased Employee, and any Employee covered by a
collective
bargaining agreement.
2.22. Eligible Retirement Plan. "Eligible Retirement Plan" shall
mean (i)
an individual retirement account or annuity described in Code
Section 408(a) or
408(b), (ii) a qualified retirement plan described in Code Section
401(a) or
403(a) that accepts Eligible Rollover Distributions, (iii) an
annuity contract
described in Code Section 403(b) that accepts Eligible Rollover
Distributions,
and (iv) an eligible plan described in Code Section 457(b) which is
maintained
by a state, political subdivision of a state, or any agency or
instrumentality
of a state or political subdivision of a state and which agrees to
separately
account for amounts transferred into such plan from this Plan. The
definition of
Eligible Retirement Plan shall also apply in the
7
<PAGE>
case of an Eligible Rollover Distribution to a surviving spouse or
to a spouse
or former spouse who is an Alternate Payee under a Qualified
Domestic Relations
Order (as defined in Article XV).
2.23. Eligible Rollover Distribution. "Eligible Rollover
Distribution"
shall mean any distribution of all or any portion of the balance to
the credit
of the Distributee, except that an Eligible Rollover Distribution
shall not
include:
(a) any distribution that is one of a series of substantially
equal
periodic payments (not less frequently than annually) made for the
life (or
life
expectancy) of the Distributee of the joint lives (or joint
life
expectancies) of the Distributee and the Distributee's
designated
beneficiary, or for a specified period of ten years or more;
(b) any distribution to the extent such distribution is required
under
Code
Section 401(a)(9);
(c) the portion of any distribution that is not includable in
gross
income (determined without regard to the exclusion for net
unrealized
appreciation with respect to employer securities);
(d) any hardship withdrawal made pursuant to Section 8.1(e);
and
(e) any other distribution that is reasonably expected to total
less
than
$200 during the year.
A
portion of a distribution shall not fail to be an Eligible
Rollover
Distribution merely because the portion consists of After Tax
Deposits or the
portion consists of rollover after tax employee contributions made
pursuant to
Section 4.8.which are not includible in gross income. However, such
portion(s)
may be transferred only to an individual retirement account or
annuity described
in Code Section 408(a) or 408(b) or to a qualified defined
contribution plan
described in Code Section 401(a) or 403(a) that agrees to
separately account for
amounts so transferred, including separately accounting for the
portion of such
distribution which is includible in gross income and the portion of
such
distribution which is not so includible. For purposes of this
Section,
"Distributee" shall mean any Employee or former Employee receiving
a
distribution from the Plan. A Distributee also includes the
Employee or former
Employee's surviving spouse and the Employee or former Employee's
spouse or
former spouse who is the Alternate Payee under a Qualified Domestic
Relations
Order (as defined in Article XV) with regard to the interest of the
spouse or
former spouse.
2.24. Employee. "Employee" shall mean, for purposes of the Plan,
any
individual who is employed by the Sponsor or an Affiliated Company
in any
capacity, any portion of whose income is subject to withholding of
income tax
and/or for whom Social Security contributions are made by the
Sponsor or an
Affiliated Company, including any Puerto Rico-based payroll
Employee of the
Sponsor or an Affiliated Company; provided, however, that such term
shall not
include:
(a) Any
individual who performs services for the Sponsor or an
Affiliated Company and who is classified or paid as an
independent
contractor as determined by the payroll records of the Sponsor or
an
Affiliated Company even if a court or administrative agency
determines that
such
individual is a common-law employee and not an independent
contractor;
8
<PAGE>
(b) Any individual who performs services for the Sponsor or an
Affiliated Company pursuant to an agreement between the Sponsor or
an
Affiliated Company and any other person including a leasing
organization
except to the extent such individual is a Leased Employee; and
(c) Any individual whose employment is transferred from the Sponsor
or
an
Affiliated Company to Advanced Medical Optics, Inc. ("AMO") in
connection with the distribution of the stock of AMO by the Sponsor
to its
stockholders, effective as of the day following such transfer,
hereinafter
referred to as an "AMO Employee." An individual is an AMO Employee
if
classified or identified as such in the payroll records of the
Sponsor or
an
Affiliated Company or in the Employee Matters Agreement entered
into
between the Sponsor and AMO.
2.25. Employment Commencement Date. "Employment Commencement Date"
shall
mean the date on which an Employee is first credited with an Hour
of Service for
the Sponsor or an Affiliated Company. An Employee shall not, for
the purpose of
determining his or her Employment Commencement Date, be deemed to
have commenced
employment with an Affiliated Company prior to the effective date
on which the
entity became an Affiliated Company unless the Sponsor expressly
determines
otherwise, and except as is expressly provided otherwise in the
Plan or in
resolutions of the Board of Directors.
2.26. ERISA. "ERISA" shall mean the Employee Retirement Income
Security Act
of 1974 and the regulations thereunder. Reference to a specific
ERISA Section
shall be deemed also to refer to any applicable regulations under
that Section,
and shall also include any comparable provisions of future
legislation that
amend, supplement or supersede that specific Section.
2.27. Forfeitures. "Forfeitures" shall mean the nonvested portion
of a
Participant's Matching Contributions Account or Retirement
Contributions
Account, whichever the case may be, that is forfeited in accordance
with the
provisions of Article VIII.
2.28. 415 Suspense Account. "415 Suspense Account" shall mean the
account
(if any) established and maintained in accordance with the
provisions of Article
XIII for the purpose of holding and accounting for allocations of
excess Annual
Additions (as defined in Article XIII).
9
<PAGE>
2.29. Highly Compensated Employee. "Highly Compensated Employee"
shall
mean:
(a) An Employee who performed services for the Employer during
the
Plan
Year or preceding Plan Year and is a member of one or more of
the
following groups:
(i) Employees who at any time during the Plan Year or preceding
Plan Year were Five Percent Owners (as defined in Section
14.2).
(ii) Employees who received Compensation during the preceding
Plan Year from the Employer in excess of $80,000 (as adjusted in
such
manner as permitted under Code Section 414(q)(1)).
(b) For the purpose of this Section, the term "Compensation"
means
compensation as defined in Code Section 415(c)(3), as set forth in
Section
13.5.
(c) The term "Highly Compensated Employee" includes a Former
Highly
Compensated Employee. A Former Highly Compensated Employee is any
Employee
who
was (i) a Highly Compensated Employee when he or she terminated
employment with the Employer or (ii) a Highly Compensated Employee
at any
time
after attaining age 55. Notwithstanding the foregoing, an Employee
who
separated from service prior to 1987 shall be treated as a Former
Highly
Compensated Former Employee only if during the separation year (or
year
preceding the separation year) or any year after the Employee
attains age
55
(or the last year ending before the Employee's 55th birthday),
the
Employee either received
Compensation in excess of $50,000 or was a Five
Percent Owner.
(d) For the purpose of this Section, the term "Employer" shall
mean
the
Sponsor and any Affiliated Company.
(e) The determination of who is a Highly Compensated Employee,
including the determination of the Compensation that is considered,
shall
be
made in accordance with Code Section 414(q) and applicable
regulations
to
the extent permitted thereunder. The Committee, for
administrative
convenience, may establish rules and procedures for purposes of
identifying
Highly Compensated Employees, which rules and procedures may result
in an
Eligible Employee being deemed to be a Highly Compensated Employee
for
purposes of the limitations of Article IV and Article VI, whether
or not
such
Eligible Employee is a Highly Compensated Employee described in
Code
Section 414(q).
2.30. Hour of Service. "Hour of Service" shall mean an hour for
which an
Employee is paid or entitled to payment for the performance of
duties for the
Sponsor and any Affiliated Company.
2.31. Investment Manager. "Investment Manager" shall mean the one
or more
Investment Managers, if any, that are appointed pursuant to Section
5.16 and who
constitute investment managers under Section 3(38) of ERISA.
2.32. Leased Employee. "Leased Employee" shall mean any person
(other than
an Employee of the recipient) who pursuant to an agreement between
the recipient
and any other person ("leasing organization") has performed
services for the
recipient (or for the recipient and related persons determined in
accordance
with Code Section 414(n)(6)) on a substantially full time basis for
a period of
at least one (1) year, and such services are performed under the
primary
10
<PAGE>
direction or control by recipient employer. Contributions or
benefits provided a
Leased Employee by the leasing organization which are attributable
to services
performed for the recipient employer shall be treated as provided
by the
recipient employer. A Leased Employee shall not be considered an
Employee of the
recipient if Leased Employees do not constitute more than 20
percent of the
recipient's nonhighly compensated workforce and such Leased
Employee is covered
by a money purchase pension plan providing (i) a nonintegrated
employer
contribution rate of at least ten (10) percent of compensation as
defined under
Code Section 415(c)(3); (ii) immediate participation; and (iii)
full and
immediate vesting.
2.33. Leave of Absence.
(a) "Leave of Absence" shall mean any personal leave from
active
employment (whether with or without pay) duly authorized by the
Company
under the Company's standard personnel practices. All persons under
similar
circumstances shall be treated alike in the granting of such Leaves
of
Absence. Leaves of Absence may be granted by the Company for
reasons of
health (including temporary sickness or short term disability) or
public
service or for any other reason determined by the Company to be in
its best
interests.
(b) In addition to Leaves of Absence as defined in paragraph
(a)
above, the term Leave of Absence shall also mean a Maternity or
Paternity
Leave, as defined herein, but only to the extent and for the
purposes
required under paragraph (c) below. As used herein, "Maternity or
Paternity
Leave" shall mean an absence from work for any period (i) by reason
of the
pregnancy of the Employee, (ii) by reason of the birth of a child
of the
Employee, (iii) by reason of the placement of a child with the
Employee in
connection with the adoption of the child by the Employee, or (iv)
for
purposes of caring for the child for a period beginning
immediately
following the birth or placement referred to in clauses (ii) or
(iii)
above.
(c) Subject to the provisions of paragraph (d) below, a Maternity
or
Paternity Leave described in paragraph (b) above shall be deemed
to
constitute an authorized Leave of Absence for purposes of the Plan
only to
the
extent consistent with the following rules:
(i) For purposes of determining whether a Break in Service has
occurred, the Severance Date of a Participant who is absent by
reason
of a Maternity or Paternity Leave shall not be deemed to occur
any
earlier than the second anniversary of the date upon which such
Maternity or Paternity Leave commences.
(ii) The Maternity or Paternity Leave shall be treated as a
Leave
of Absence solely for purposes of determining whether or not an
Employee has incurred a Break in Service. Accordingly, such a
Maternity or Paternity Leave shall not result in an accrual of
Credited Service for purposes of the vesting provisions of the Plan
or
for purposes of the eligibility and participation
11
<PAGE>
provisions of Article III (except only in determining whether a
Break
in Service has occurred).
(iii) A Maternity or Paternity Leave shall not be treated as a
Leave of Absence unless the Employee provides such timely
information
as the Committee may reasonably require to establish that the
absence
is for the reasons listed in paragraph (b) above and to determine
the
number of days for which there was such an absence.
(d) Notwithstanding the limitations provided in paragraph (c)
above, a
Maternity or Paternity Leave described in paragraph (b) above shall
be
treated as an authorized Leave of Absence, as described in
paragraph (a),
for
all purposes of the Plan to the extent the period of absence is
one
authorized as a Leave of Absence under the Company's standard
personnel
practices and thus is covered by the provisions of paragraph (a)
above
without reference to the provisions of paragraph (b) above,
provided,
however, that the special rule provided under this paragraph (d)
shall not
apply if it would result in a Participant who is absent on a
Maternity or
Paternity Leave being deemed to have incurred a Break in Service
sooner
than
under the rules set forth in paragraph (c).
2.34. Matched Deposits. "Matched Deposits" of a Participant shall
mean his
or her Participant Deposits (whether Before Tax or After Tax but
excluding
Rollover Contributions) not in excess of four percent (4%) of
Compensation;
except, however, that Matched Deposits shall not include "catch-up"
Before Tax
Deposits as described in Section 4.2(e). Matched Deposits shall
participate in
allocations of Matching Contributions and Matching Contribution
Forfeitures.
2.35. Matching Contributions. "Matching Contributions" shall mean
all
amounts (whether in cash or other property, including Company
Stock) paid by the
Company pursuant to Sections 5.3(a) and 5.3(b) into the Trust Fund
established
and maintained under the provisions of the Plan for the purpose of
providing
benefits for Participants and their Beneficiaries.
2.36. Matching Contributions Account. "Matching Contributions
Account"
shall mean a Participant's individual account in the Trust Fund in
which are
held Matching Contributions, any amounts transferred from the
Participant's
account in the SmithKline Beckman Savings and Investment Plan to
the Plan, and
the earnings thereon. Any amounts transferred from the
Participant's account in
the SmithKline Beckman Savings and Investment Plan to the Plan
shall be fully
vested.
2.37. Normal Retirement Age. "Normal Retirement Age" shall mean
a
Participant's sixty-fifth (65th) birthday.
2.38. Participant. "Participant" shall mean any Eligible Employee
or former
Eligible Employee who has commenced participation in the Plan
pursuant to
Section 3.1 and who retains rights under the Plan.
12
<PAGE>
2.39. Participant Deposits. "Participant Deposits" shall mean all
of a
Participant's deposits to the Plan, including After Tax Deposits,
Before Tax
Deposits, and Rollover Contributions.
2.40. Period of Severance. "Period of Severance" shall mean the
period of
time commencing on an Employee's Severance Date and ending on the
Employee's
subsequent Reemployment Commencement Date, if any.
2.41. Plan. "Plan" shall mean the Allergan, Inc. Savings and
Investment
Plan described herein and as amended from time to time.
2.42. Plan Administrator. Plan Administrator" shall mean the
administrator
of the Plan within the meaning of Section 3(16)(A) of ERISA. The
Plan
Administrator shall be the Allergan Corporate Benefits Committee
whose members
are appointed by the Board of Directors pursuant to the provisions
of Section
9.1 to administer the Plan.
2.43. Plan Year. "Plan Year" shall mean the calendar year.
2.44. Reemployment Commencement Date. "Reemployment Commencement
Date"
shall mean, in the case of an Employee who incurs a Severance and
who is
subsequently reemployed by the Sponsor or an Affiliated Company,
the first day
following the Severance on which the Employee is credited with an
Hour of
Service for the Sponsor or an Affiliated Company with respect to
which he or she
is compensated or entitled to compensation by the Sponsor or an
Affiliated
Company. An Employee shall not, for the purpose of determining his
or her
Reemployment Commencement Date, be deemed to have commenced
employment with an
Affiliated Company prior to the effective date on which such entity
becomes an
Affiliated Company unless the Sponsor shall expressly determine
otherwise, and
except as is expressly provided otherwise in the Plan or in
resolutions of the
Board of Directors.
2.45. Retirement Account Participant. "Retirement Account
Participant"
shall mean any Eligible Employee who has met the eligibility
requirements of
Section 3.2 but excluding any Eligible Employee who is an "Active
Participant"
in the Allergan, Inc. Pension Plan as such term is defined
therein.
2.46. Retirement Contributions. "Retirement Contributions" shall
mean all
amounts (whether in cash or other property, including Company
Stock) paid by the
Company pursuant to Section 5.4 into the Trust Fund established and
maintained
under the provisions of the Plan for the purpose of providing
benefits for
Participants and their Beneficiaries.
2.47. Retirement Contributions Account. "Retirement Contributions
Account"
shall mean a Participant's individual account in the Trust Fund in
which are
held Retirement Contributions and the earnings thereon.
2.48. Rollover Contributions. "Rollover Contributions" shall mean
those
contributions made by a Participant pursuant to Section 4.8.
13
<PAGE>
2.49. Rollover Contributions Account. "Rollover Contributions
Account"
shall mean a Participant's individual account in the Trust Fund in
which are
held Rollover Contributions made pursuant to Section 4.8.
2.50. Severance. "Severance" shall mean the termination of an
Employee's
employment with the Sponsor or an Affiliated Company by reason of
such
Employee's quit, discharge, Disability, death, retirement, or
otherwise. For
purposes of determining whether an Employee has incurred a
Severance, the
following rules shall apply:
(a) An Employee shall not be deemed to have incurred a Severance
(i)
because of his or her absence from employment with the Sponsor or
an
Affiliated Company by reason of any paid vacation or holiday
period, or
(ii)
by reason of any Leave of Absence, subject to the provisions of
paragraph (b) below.
(b) For purposes of the Plan, an Employee shall be deemed to
have
incurred a Severance on the earlier of (i) the date on which he or
she
dies, resigns, is discharged, or otherwise terminates his or her
employment
with
the Sponsor or an Affiliated Company; or (ii) the date on which he
or
she
is scheduled to return to work after the expiration of an
approved
Leave of Absence, if he or she does not in fact return to work on
the
scheduled expiration date of such Leave. In no event shall an
Employee's
Severance be deemed to have occurred before the last day on which
such
Employee performs any services for the Sponsor or an Affiliated
Company in
the
capacity of an Employee with respect to which he or she is
compensated
or
entitled to compensation by the Sponsor or an Affiliated
Company.
(c) Notwithstanding the foregoing, in the case of a Participant who
is
absent by reason of a Maternity or Paternity Leave, the provisions
of
Section 2.33(c)-(d) shall apply for purposes of determining whether
such a
Participant has incurred a Break in Service by reason of such
Leave.
2.51. Severance Date. "Severance Date" shall mean, in the case of
any
Employee who incurs a Severance, the day on which such Employee is
deemed to
have incurred said Severance as determined in accordance with the
provisions of
Section 2.50, provided, however, that the special rules set forth
under Section
2.33(c)-(d) shall apply with respect to determining whether a
Participant on a
Maternity or Paternity Leave has incurred a Break in Service. In
the case of any
Employee who incurs a Severance as provided under Section 2.50 and
who is
entitled to a subsequent payment of compensation for reasons other
than future
services (e.g., as back pay for past services rendered or as
payments in the
nature of severance pay), the Severance Date of such Employee shall
be as of the
effective date of the Severance event (e.g., the date of his or her
death,
effective date of a resignation or discharge, etc.), and the
subsequent payment
of the aforementioned type of post-Severance compensation shall not
operate to
postpone the timing of the Severance Date for purposes of the
Plan.
2.52. Sponsor. "Sponsor" shall mean Allergan, Inc., a Delaware
corporation,
and any successor corporation or entity.
14
<PAGE>
2.53. Trust. "Trust" or "Trust Fund" shall mean the trust
maintained
pursuant to the Trust Agreement and as described in Section 5.1
hereof, which
shall hold all cash and securities and all other assets of
whatsoever nature
deposited with or acquired by the Trustee in its capacity as
Trustee hereunder,
together with accumulated net earnings.
2.54. Trust Agreement. "Trust Agreement" shall mean the agreement
between
the Trustee and the Sponsor pursuant to which the Trust is
maintained.
2.55. Trustee. "Trustee" shall mean the individual or entity acting
as a
trustee of the Trust Fund.
2.56. Valuation Date. "Valuation Date" shall mean the date as of
which the
Trustee shall determine the value of the assets in the Trust Fund
for purposes
of determining the value of each Account, which shall be each
business day in
accordance with rules applied in a consistent and uniform
basis.
15
<PAGE>
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1
General Eligibility and Participation. An Eligible Employee
shall
participate in the Plan on the later of: (i) his or her Employment
Commencement
Date or (ii) the date he or she becomes an Eligible Employee. A
Participant who
incurs a Severance shall participate in the Plan immediately upon
his or her
Reemployment Commencement Date so long as he or she is reemployed
as an Eligible
Employee.
3.2
Eligibility for Retirement Contributions. An Eligible Employee
shall be
eligible to receive allocations of Retirement Contributions as
provided in
Section 5.4 only if he or she is a Retirement Account Participant
as described
below:
(a) An Eligible Employee shall become a Retirement Account
Participant
on
the date that immediately follows the later of:
(i) The date such Eligible Employee performs an Hour of Service
as an Eligible Employee;
(ii) The date such Eligible Employee completes six (6) months
of
Credited Service with the Sponsor or an Affiliated Company as
an
Employee; or
(iii) The date such Eligible Employee ceases to be an "Active
Participant" in the Allergan, Inc. Pension Plan as such term is
defined therein.
(b) A Participant who becomes a Retirement Account Participant
shall
remain an active Retirement Account Participant until he or she:
(i) incurs
a
Severance, (ii) transfers employment to an Affiliated Company that
has
not
adopted the Plan pursuant to Section 10.2, or (iii) is no longer
an
Eligible Employee even though he or she remains an Employee of the
Company,
at
which time such Retirement Account Participant shall become an
inactive
Retirement Account Participant and shall no longer be eligible to
receive
allocations of Retirement Contributions as provided in Section
5.4.
(c) A Retirement Account Participant or an Employee who is not
a
Retirement Account Participant but who has completed the
service
requirement specified in paragraph (a)(i) above shall, if he or she
incurs
a
Severance and is subsequently reemployed as an Eligible Employee,
become
a
Retirement Account Participant immediately upon his or her
Reemployment
Commencement Date. A Retirement Account Participant who becomes an
inactive
Retirement Account Participant shall become a Retirement
Account
Participant upon the date he or she resumes Eligible Employee
status. An
Employee who has not completed the service requirement specified
in
paragraph (a)(i) above
shall, if he or she incurs a Severance and is
subsequently reemployed, become a Retirement Account Participant on
the
date
determined under paragraph (a) above.
16
<PAGE>
3.3
Duration of Participation. An Eligible Employee who becomes a
Participant shall remain an active Participant until he or she
incurs a
Severance, at which time he or she shall become an inactive
Participant until he
or she receives a distribution of the entire vested portion of his
or her
Accounts. Once such a distribution is made, such Participant shall
no longer be
considered a Participant in the Plan. A Participant who (i)
transfers out of
employment with the Company but who remains an Employee of an
Affiliated Company
that has not adopted the Plan pursuant to Section 10.2, or (ii)
remains an
Employee of the Company but is no longer an Eligible Employee,
shall become an
inactive Participant.
3.4
Eligibility and Participation After Normal Retirement Age. An
Eligible
Employee may become, or continue as, a Participant or a Retirement
Account
Participant after reaching his or her Normal Retirement Age in the
same manner
as an Eligible Employee who has not reached his or her Normal
Retirement Age.
17
<PAGE>
ARTICLE IV
PARTICIPANT DEPOSITS
4.1
Election.
(a) Each Eligible Employee may elect to defer the receipt of a
portion
of
his or her Compensation and to have the deferred amount
contributed
directly by the Company to the Plan as Before Tax Deposits. Before
Tax
Deposits may be made only by means of payroll deduction.
(b) Each Eligible Employee may elect to contribute to the Plan
a
portion of his or her Compensation as After Tax Deposits. After
Tax
Deposits may be made only by means of payroll deduction.
(c) The Committee shall prescribe procedures to implement
automatic
enrollment elections, pursuant to which an Eligible Employee or, if
limited
to
newly hired Eligible Employees as determined by the Committee,
shall be
deemed to have elected to defer the receipt of three percent (3%)
of his or
her
Compensation and to have such deferred amount contributed directly
by
the
Company to the Plan as Before Tax Deposits if such Eligible
Employee
fails to change or terminate the automatic election for any Plan
Year
within the time period prescribed by the Committee (or, in the case
of
newly hired Eligible Employee, he or she fails to change or
terminate the
automatic election within 30 days of his or her hire date). Such
procedures
shall require that an Eligible Employee receive a written notice
of
explanation of the
automatic election informing the Eligible Employee of
the
effective date of the automatic election, the automatic
deferral
percentage and his or her right to terminate the automatic election
or to
change the amount of his or her Before Tax Deposits made to the
Plan as
well
as the procedures for exercising such rights and the timing for
implementing a different election. An automatic election under
this
paragraph (c) shall be effective as of the first pay period of the
Plan
Year
(or, in the case of newly hired Eligible Employee, the first
pay
period following the 30-day period beginning on his or her date of
hire)
and
shall remain in effect until superseded by a subsequent election by
the
Eligible Employee.
Amounts contributed directly by the Company to the Plan
under this paragraph (c) shall be invested in the Balanced Fund
described
in
Section 5.6(b) until superseded by a subsequent election by the
Eligible
Employee.
(d)
Notwithstanding anything in this Section to the contrary, a
Participant who makes a withdrawal of After Tax Deposits (whether
Matched
Deposits or non-Matched Deposits) pursuant to Section 8.1(a) or a
hardship
withdrawal pursuant to Section 8.1(e) shall not be permitted to
make Before
Tax
Deposits or After Tax Deposits to the Plan during the 6-month
period
beginning as soon as administratively feasible following the date
of the
hardship withdrawal. The foregoing sentence shall not apply to a
withdrawal
of
After Tax Deposits if the After Tax Deposits can also be withdrawn
under
Section 8.1(d) or the withdrawal is comprised solely of After Tax
Deposits
which are not Matched Deposits and which were contributed prior to
July 1,
2000.
18
<PAGE>
(e) The Committee shall prescribe such procedures, either in
writing
or
in practice, and provide such forms as are necessary or appropriate
for
each
Participant and each Eligible Employee who will become a
Participant
to
make Deposits pursuant to this Article IV subject, however to
the
requirement that an election by a Participant shall not be
adopted
retroactively.
4.2
Amount Subject to Election.
(a) Each Participant may elect to contribute a whole percentage of
his
or
her Compensation to the Plan as Before Tax Deposits not to exceed
the
lesser of one hundred percent (100%) when aggregated with the After
Tax
Deposits contributed by such Participant pursuant to paragraph (b)
below.
Notwithstanding the foregoing except to the extent permitted under
the
catch-up provisions of paragraph (e) below and Code Section 414(v),
no
Participant shall be permitted to make Before Tax Deposits to the
Plan
during any taxable year in excess of: (i) $12,000 (or such larger
amount as
may
be determined by the Secretary of the Treasury pursuant to Code
Section
402(g), hereinafter referred to as the "Before Tax Deposit Limit",
(ii) the
Actual Deferral Percentage test limitation set forth in Section
4.3, or
(iii) the Annual Addition limitation set forth in Section 13.1.
For
purposes of the Before Tax Deposit Limit described in preceding
clause (i),
the
Before Tax Deposits of a Participant for any taxable year is the
sum of
all
Before Tax Deposits under the Plan and all salary reduction
amounts
under any other qualified cash or deferred arrangement (as defined
in Code
Section 401(k)), a simplified employee pension (as defined in Code
Section
408(k) and Code Section 402(h)(1)(B)), a deferred compensation plan
under
Code
Section 457, a trust described in Code Section 501(c)(18) and
any
salary reduction amount used to purchase an annuity contract under
Code
Section 403(b) whether or not sponsored by the Company but shall
not
include any amounts properly distributed as excess annual
additions.
(b) Each Participant may elect to contribute a whole percentage of
his
or
her Compensation to the Plan as After Tax Deposits not to exceed
one
hundred percent (100%) when aggregated with the Before Tax
Deposits
contributed by such Participant pursuant to paragraph (a)
above.
Notwithstanding the foregoing, no Participant shall be permitted to
make
After Tax Deposits to the Plan during any Plan Year in excess of
the Actual
Contribution Percentage test limitation set forth in Section 6.11
or the
Annual Addition limitation set forth in Section 13.1 and the
Committee may,
in
its discretion, establish an "After Tax Deposit Limit" for a Plan
Year.
(c) Notwithstanding paragraphs (a) and (b), a Participant's
combined
Before Tax Deposits and After Tax Deposits shall not exceed a
Participant's
Compensation net of his or her salary deductions or reductions
(including
but
not limited to, federal withholding taxes and "FICA" taxes
deducted
pursuant Code Sections 3102 and 3402, respectively, withholding of
state
taxes, and amounts contributed by the Company pursuant to a
salary
reduction agreement which are excludable from an Employee's gross
income
under Code Sections 125, 132(f)(4), 402(e)(3), 402(h)(1)(B) and
403(b)) as
determined by the payroll records of the Sponsor or an Affiliated
Company.
19
<PAGE>
(d) Notwithstanding paragraphs (a) and (b), a Participant who makes
a
hardship withdrawal pursuant to Section 8.1(e) or a withdrawal of
After Tax
Deposits (whether Matched Deposits or non-Matched Deposits)
pursuant to
Section 8.1(a) shall not be permitted to make Before Tax Deposits
or After
Tax
Deposits to the Plan during the 6-month period beginning as soon
as
administratively
feasible following the date of the withdrawal. The
preceding sentence shall not apply to a withdrawal of After Tax
Deposits if
such
Deposits can also be withdrawn under Section 8.1(d) or the
withdrawal
is
comprised solely of After Tax Deposits which are not Matched
Deposits
and
which were contributed prior to July 1, 2000.
(e) Each Participant who has attained age 50 before the close of
the
Plan
Year may elect to contribute a percentage of his or her
Compensation
to
the Plan as "catch-up" Before Tax Deposits in accordance with,
and
subject to the limitations of, Code Section 414(v). Such catch-up
Before
Tax
Deposits shall not be taken into account under subparagraph (a)
above
or
Section 13.1 or any other provision of the Plan implementing
the
contribution limitations of Code Sections 402(g) and 415. Moreover,
the
Plan
shall not be treated as failing to satisfy the provisions of the
plan
implementing the requirements of Code Section 401(k)(3),
401(k)(11),
401(k)(12), 410(b), or 416, as applicable, by reason of a
Participant
electing to contribute catch-up Before Tax Deposits to the Plan
pursuant to
this
paragraph.
(f) The Committee shall prescribe such procedures, either in
writing
or
in practice, as it deems necessary or appropriate regarding the
maximum
amount that a Participant may elect to defer and the timing of such
an
election. These procedures shall apply to all individuals eligible
to make
an
election described in Section 4.1. The Committee may, at any time
during
a
Plan Year, require the suspension, reduction, or recharacterization
of
Before Tax Deposits or the suspension or reduction of After Tax
Deposits of
any
Highly Compensated Employee such that the limitations of Section
4.2(a)
and
(b) are satisfied.
4.3
Limitation on Compensation Deferrals. With respect to each Plan
Year,
Compensation Deferral Contributions by a Participant for the Plan
Year shall not
exceed the limitation on contributions by or on behalf of Highly
Compensated
Participants under Code Section 401(k), as provided in this
Section. In the
event that Compensation Deferral Contributions under the Plan by or
on behalf of
Highly Compensated Participants exceed the limitations of this
Section for any
reason, either such excess contributions shall be recharacterized
as After Tax
Deposits or such excess contributions, adjusted for any income or
loss allocable
thereto, shall be returned to the Participant, as provided in
Section 4.5.
20
<PAGE>
(a) The Compensation Deferral Contributions by Participants for a
Plan
Year
shall satisfy the Actual Deferral Percentage Test set forth in
(i)
below, or, to the extent not precluded by applicable regulations,
the
alternative Actual Deferral Percentage test set forth in (ii)
below:
(i) The average Actual Deferral Percentage of Highly
Compensated
Participants for the Plan Year shall not be more than the prior
Plan
Year's average Actual Deferral Percentage of Participants who were
not
Highly Compensated Employees for the prior Plan Year multiplied
by
1.25, or
(ii) The average Actual Deferral Percentage of Highly
Compensated
Participants for the Plan Year shall not be more than the prior
Plan
Year's Actual Deferral Percentage of Participants who were not
Highly
Compensated Employees for the prior Plan Year multiplied by
2.0,
provided that the average Actual Deferral Percentage of Highly
Compensated Participants does not exceed the average Actual
Deferral
Percentage of Participants who were not Highly Compensated
Employees
for the prior Plan Year by more than two (2) percentage points.
(b) Notwithstanding any other provisions of the Plan, for the
purposes
of
the limitations of this Section 4.3 and Section 4.5 only, the
following
definitions shall
apply:
(i) "Actual Deferral Percentage" shall mean, with respect to
the
group of Highly Compensated Participants and the group of all
other
Participants for a Plan Year, the ratios calculated separately and
to
the nearest one-hundredth of one percent for each Participant in
such
group, as follows:
(A) For a Highly Compensated Participant, the ratio of such
Participant's Compensation Deferral Contributions for the
current
Plan Year to such Participant's Compensation for the current
Plan
Year; provided, however, that the Actual Deferral Percentage of
a
Highly Compensated Participant with no Compensation Deferral
Contributions made on his or her behalf shall be zero.
(B) For any other Participant, the ratio of such
Participant's Compensation Deferral Contributions for the
preceding Plan Year to such Participant's Compensation for the
preceding Plan Year; provided, however, that the Actual
Deferral
Percentage of a Participant with no Compensation Deferral
Contributions made on his or her behalf shall be zero.
To the extent determined by the Committee and in accordance
with
regulations issued by the Secretary of the Treasury, qualified
nonelective contributions on behalf of a Participant that satisfy
the
requirements of Code Section 401(k)(3)(c)(ii) may also be taken
into
account for the purpose of determining the Actual Deferral
Percentage
of a Participant.
(ii) "Highly Compensated Participant" shall mean for any Plan
Year any
Participant who is a Highly Compensated Employee. A
Participant is a Highly Compensated Employee for a particular
Plan
Year if he or she meets the definition of a Highly Compensated
Employee in effect for that Plan Year.
21
<PAGE>
Similarly, a Participant is not a Highly Compensated Employee for
a
particular Plan Year if he or she does not meet the definition of
a
Highly Compensated Employee in effect for that Plan Year.
(iii) "Participant" shall mean any Eligible Employee who
satisfied the requirements of Section 3.1 during the Plan Year,
whether or not such Eligible Employee has elected to contribute to
the
Plan for such Plan Year.
(iv) "Compensation Deferral Contributions" shall mean amounts
contributed to the Plan by a Participant as Before Tax Deposits
pursuant to Section 4.2(a), including excess Before Tax Deposits
(as
defined in Section 4.4(a)) of Highly Compensated Participants
but
excluding (1) excess Before Tax Deposits of all other
Participants
that arise solely from Before Tax Deposits made under the Plan
or
plans of the Company, (2) Before Tax Deposits that are taken
into
account in the Actual Contribution Percentage test (as defined
in
Section 6.11) provided that the Actual Deferral Percentage test
is
satisfied both with and without exclusions of these Before Tax
Deposits, and (3) any deferrals properly distributed as excess
Annual
Additions. Compensation Deferral Contributions may include, at
the
election of the Company, any Company Contributions that meet
the
requirements for such inclusion under Code Section
401(k)(3)(C).
(v) "Compensation" shall mean compensation as described below:
(A) Compensation means compensation determined by the
Company in accordance with the requirements of Code Section
414(s) and the regulations thereunder.
(B) For purposes of this Section 4.3, Compensation may, at
the Company's election, exclude amounts which are excludable
from
a Participant's gross income under Code Section 125 (pertaining
to cafeteria plans) and Code Section 402(e)(3) (pertaining to
401(k) salary reductions). The Company may change its election
provided such change does not discriminate in favor of Highly
Compensated Employees.
(C) Compensation taken into account for any Plan Year shall
not exceed $210,000, as adjusted for cost-of-living increases
in
accordance with Code Section 401(a)(17)(B). Any cost-of-living
adjustments in effect for a calendar year shall apply to the
Plan
Year beginning with or within such calendar year.
(c) In the event the Plan satisfies the requirements of Code
Sections
401(k), 401(a)(4) or 410(b) only if aggregated with one or more
other plans
which include arrangements under Code Section 401(k), then this
Section 4.3
shall be applied by determining the Actual Deferral Percentages
of
Participants as if all such plans were a single plan, in accordance
with
regulations prescribed by the Secretary of the
22
<PAGE>
Treasury under Code Section 401(k). Any adjustments to the Actual
Deferral
Percentage of Participants who are not Highly Compensated Employees
for the
prior year shall be made in accordance with Notice 98-1 and any
superseding
guidance. Plans may be aggregated in order to satisfy Code Sections
401(k)
only
if they have the same Plan Year and use the same Actual
Deferral
Percentage testing method.
(d) For the purposes of this Section 4.3, the "Actual Deferral
Percentage" for any Highly Compensated Participant who is a
Participant
under two or more Code Section 401(k) arrangements of the Company
shall be
determined by taking into account the Highly Compensated
Participant's
compensation under each such arrangement and contributions under
each such
arrangement which qualify for treatment under Code Section 401(k),
in
accordance with regulations prescribed by the Secretary of the
Treasury
under Code Section 401(k). If the arrangements have different Plan
Years,
this
paragraph shall be applied by treating all such arrangements
ending
with
or within the same calendar year as a single arrangement.
Notwithstanding the foregoing, certain plans shall be treated as
separate
plans if mandatorily disaggregated pursuant to regulations under
Code
Section 401(k).
(e) For purposes of the Actual Deferral Percentage test,
Compensation
Deferral Contributions must be made before the last day of the
twelve-month
period immediately following the Plan Year to which such
contributions
relate.
(f) The determination and treatment of Compensation Deferral
Contributions and the Actual Deferral Percentage of any Participant
shall
satisfy such other requirements as may be prescribed by the
Secretary of
the
Treasury.
(g) The Committee shall keep or cause to have kept such records as
are
necessary to demonstrate that the Plan satisfies the requirements
of Code
Section 401(k) and (m) and the regulations thereunder, in
accordance with
regulations prescribed by the Secretary of the Treasury.
4.4
Provisions for Return of Excess Before Tax Deposits.
(a) In the event that due to error or otherwise, an amount of a
Participant's Compensation in excess of the Before Tax Deposit
Limit (after
application of any necessary adjustment) described in Section
4.2(a) is
deferred under the Plan in any calendar year pursuant to such
Participant's
Compensation deferral agreement (but without regard to amounts
deferred
under any other plan) the excess Before Tax Deposits, if any,
together with
income allocable to such amount shall be returned to the
Participant (after
withholding applicable federal, state and local taxes due on such
amounts)
on
or before the first April 15 following the close of the calendar
year in
which such excess contribution is made; provided, however, if there
is a
loss
allocable to the excess Before Tax Deposits, the amount
distributed
shall be the amount of
the excess as adjusted to reflect such loss. Any
Matching Contributions allocated to the Participant's Matched
Deposits
pursuant to Section 6.3(b) which are attributable to any excess
Before Tax
Deposits by a Participant, and any income or loss allocable to
such
Matching
23
<PAGE>
Contributions, shall either be returned to the Company or applied
to reduce
any
future Matching Contributions by the Company.
(b)
The amount of income or loss attributable to any excess Before
Tax
Deposits described in paragraph (a) above shall be equal to the sum
of the
following:
(i) The income or loss allocable to the Participant's Before
Tax
Deposits Account for the Plan Year multiplied by a fraction,
the
numerator of which is the excess Before Tax Deposits as
determined
under paragraph (a) above, and the denominator of which is the
balance
of the Participant's Before Tax Deposits Account as of the last day
of
the Plan Year, without regard to any income or loss allocable to
such
Account during the Plan Year; and
(ii) The amount of allocable income or loss for the Gap Period
using the "safe harbor" method set forth in regulations prescribed
by
the Secretary of the Treasury under Code Section 402(g). Under
the
"safe harbor" method, such allocable income or loss is equal to 10%
of
the amount calculated under Section 4.4(b)(i) above, multiplied by
the
number of calendar months from the last day of the Plan Year until
the
date of distribution of the Participant's excess Before Tax
Deposits.
A distribution on or before the 15th of the month is treated as
made
on the last day of the preceding month, a distribution after the
15th
of the month is treated as made on the first day of the next
month.
(c) For the purpose of this Section 4.4, "Gap Period" shall mean
the
period between the last day of the Plan Year and the date of
distribution
of
any excess Before Tax Deposits.
(d) In accordance with procedures as may be established, either
in
writing or in practice, by the Committee, not later than March 1 of
a
calendar year a Participant may submit a claim to the Committee in
which he
or
she certifies in writing the specific amount of his or her Before
Tax
Deposits for the preceding calendar year which, when added to
amounts
deferred for such calendar year under other plans or arrangements
described
in
Code Sections 401(k), 408(k) or 403(b), shall cause the Participant
to
exceed the Before Tax Deposit Limit (after application of any
necessary
adjustment) described in Section 4.2(a) for such preceding calendar
year.
Notwithstanding the amount of the Participant's Before Tax Deposits
under
the
Plan for such preceding calendar year, the Committee shall treat
the
amount specified by the Participant in his or her claim as a Before
Tax
Deposit in excess of the Before Tax Deposit Limit (after
application of any
necessary adjustment) for such calendar year and return it to
the
Participant in accordance with Section 4.4(a) above. A Participant
is
deemed to notify the Committee of any excess Before Tax Deposits
that arise
by
taking into account only those Before Tax Deposits made to the Plan
and
other plans of the Company.
(e) Any Before Tax Deposits in excess of the Before Tax Deposit
Limit
(after application of any necessary adjustment) described in
Section 4.2(a)
which are distributed to a Participant in accordance with this
Section,
shall to the extent required by regulations
24
<PAGE>
issued by the Secretary of the Treasury be treated as Annual
Additions
under Article XIII for the Plan Year for which the excess Before
Tax
Deposits were made, unless such amounts are distributed no later
than the
first April 15th following the close of the Participant's taxable
year.
(f) The Committee shall not be liable to any Participant (or his
or
her
Beneficiary, if applicable) for any losses caused by a mistake
in
calculating the amount of any Participant's excess Before Tax
Deposits or
the
income or losses attributable thereto.
4.5
Provision for Recharacterization or Return of Excess Deferrals
by
Highly Compensated Participants. The provisions of this Section 4.5
shall be
applied after implementation of the provisions of Section 4.4.
(a) The Committee shall determine in accordance with the
procedures
set
forth in Section 4.3, as soon as is reasonably possible following
the
close of each Plan Year, the extent (if any) to which deferral
treatment
under Code Section 401(k) may not be available for Compensation
Deferral
Contributions on behalf of any Highly Compensated Participants.
If,
pursuant to these determinations by the Committee, a Highly
Compensated
Participant's Compensation Deferral Contributions are not eligible
for
tax-deferral treatment then, as determined by the Committee, either
(i) any
excess Compensation Deferral Contributions shall be recharacterized
as
After Tax Deposits in accordance with regulations issued under Code
Section
401(k), or (ii) any excess Compensation Deferral Contributions
together
with
any income or loss allocable thereto shall be returned to the
Highly
Compensated Participant (after withholding applicable federal,
state, and
local taxes due on such amounts). Such return or recharacterization
shall
be
made within the first two and one-half (2-1/2) months following
the
close of the Plan Year for which such excess deferrals were made,
provided
however, that if any excess deferrals and income or loss allocable
thereto
are,
due to error or otherwise, not returned by such date, such amounts
as
are
required to be returned shall be returned not later than the end of
the
first Plan Year following the Plan Year for which such excess
deferrals
were
made.
(b) For purposes of satisfying the Actual Deferral Percentage test
of
Section 4.3(a), the amount of any excess Compensation Deferral
Contributions by a Highly Compensated Participant shall be
determined by
the
Committee by application of a leveling method under which the
Compensation Deferral Contributions of the Highly Compensated
Participant
who
has the highest dollar amount of Compensation Deferral
Contributions
for
such Plan Year is reduced to the extent required to cause such
Highly
Compensated Participant's Compensation Deferral Contributions to
equal the
Compensation Deferral Contributions of the Highly Compensated
Participant
with
the next highest Compensation Deferral Contributions; provided,
however, if a lesser amount, when added to the total dollar amount
already
returned under this paragraph (b), equals the total excess
Compensation
Deferral Contributions that are required to be returned to enable
the Plan
to
satisfy the Actual Deferral Percentage test, the lesser amount
shall be
returned. This process shall be repeated until the Plan satisfies
the
Actual Deferral Percentage test.
25
<PAGE>
(c) The amount of income or loss attributable to any excess
Compensation Deferral Contributions by a Highly Compensated
Participant for
a
Plan Year shall be equal to the sum of the following:
(i) The income or loss allocable to the Highly Compensated
Participant's Compensation Deferral Contribution Accounts for the
Plan
Year multiplied by a fraction, the numerator of which is the
excess
Compensation Deferral Contribution as determined under Section
4.3,
and the denominator of which is the balance of the Highly
Compensated
Participant's Compensation Deferral Contribution Accounts as of
the
last day of the Plan Year without regard to any income or loss
allocable to such Accounts during the Plan Year; and
(ii) The amount of allocable income or loss for the Gap Period
using the "safe harbor" method set forth in the regulations
prescribed
by the Secretary of the Treasury under Code Section 401(k). Under
the
"safe harbor" method, such allocable income or loss is equal to 10%
of
the amount calculated under Section 4.5(c)(i) above, multiplied by
the
number of calendar months from the last day of the Plan Year until
the
date of distribution of the Participant's excess Compensation
Deferral
Contribution. A distribution on or before the 15th of the month
is
treated as made on the last day of the preceding month, a
distribution
after the 15th of the month is treated as made on the first day of
the
next month.
(d) For the purpose of this Section 4.5 the following shall
apply:
(i) "Compensation Deferral Contribution Accounts" shall mean
the
Participant's Before Tax Deposits Account and shall mean any
other
accounts of the Participant to which Company Contributions has
been
allocated where such Company Contributions has been included as
Compensation Deferral Contributions pursuant to Section
4.3(b)(iv).
(ii) "Gap Period" shall mean the period beginning with the last
day
of the Plan Year and the date of distribution of any excess
Compensation Deferral Contributions.
(e) For purposes of this Section, the amount of Compensation
Deferral
Contributions by a Participant who is not a Highly Compensated
Participant
for
a Plan Year shall be reduced by any Before Tax Deposits which have
been
distributed to the Participant under Section 4.4, in accordance
with
regulations prescribed by the Secretary of the Treasury under Code
Section
401(k).
(f) In the event that the Committee determines that an amount to
be
deferred pursuant to the Compensation deferral agreement provided
in
Section 4.1 would cause Company Contributions under this and any
other
tax-qualified retirement plan maintained by the Company to exceed
the
applicable deduction limitations contained in Code Section 404, or
to
exceed the maximum Annual Addition determined in accordance
with
26
<PAGE>
Article XIII, the Committee may treat such amount in accordance
with the
rules set forth above in Section 4.5(a).
(g) The Committee shall not be liable to any Participant (or his
or
her
Beneficiary, if applicable) for any losses caused by a mistake
in
calculating the amount of any Participant's excess Compensation
Deferral
Contribution or the income or losses attributable thereto.
(h) To the extent required by regulations under Code Sections
401(k)
or
415, any excess Compensation Deferral Contributions with respect to
a
Highly Compensated Participant shall be treated as Annual Additions
under
Article XIII for the Plan Year for which the excess Compensation
Deferral
Contributions were made, notwithstanding the distribution of such
excess in
accordance with the provisions of this Section.
4.6
Termination, Change in Rate, or Resumption of Before Tax Deposits
or
After Tax Deposits.
(a) A Participant may, at any time, terminate, change the rate,
or
resume Before Tax Deposits or After Tax Deposits in 1%
increments.
(b) The right of a Participant to make Before Tax Deposits or
After
Tax
Deposits shall cease during any Period of Severance.
(c) Any termination, change in rate or resumption of Before Tax
Deposits or After Tax Deposits made by a Participant pursuant to
paragraph
(a)
above shall be effective as of the following pay period or, if
later,
as
soon as administratively feasible.
4.7
Character of Deposits. Before Tax Deposits shall be treated as
Company
Contributions for purposes of Code Sections 401(k) and 414(h).
After Tax
Deposits shall not constitute "qualified voluntary employee
contributions" under
Code Section 219 (relating to the deductibility of those
amounts).
4.8
Rollover Contributions.
(a) Pursuant to procedures as the Committee may prescribe (either
in
writing or practice), an Eligible Employee may make a Direct
Rollover
Contribution, a Participant Rollover Contribution, or an IRA
Rollover
Contribution to the Plan.
(b) A "Direct Rollover Contribution" shall mean a contribution by
an
Eligible Employee which is a direct rollover of an Eligible
Rollover
Distribution from:
(i) A qualified plan described in Code Section 401(a) or 403(a)
including any portion attributable to after-tax employee
contributions
which shall be separately accounted for under the Plan;
27
<PAGE>
(ii) An annuity contract described in Code Section 403(b) but
excluding any portion attributable to after-tax employee
contributions; or
(iii) An eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a state, or any
agency
or instrumentality of a state or political subdivision of a
state.
(c) A "Participant Rollover Contribution" shall mean a contribution
by
an
Eligible Employee which is an Eligible Rollover Distribution
(excluding
any
portion attributable to after-tax employee contributions) received
by
the
Trustee not later than 60 days after such distribution was received
by
the
Eligible Employee; provided, such Eligible Rollover Distribution
is
from:
(i) A qualified plan described in Code Section 401(a) or
403(a);
(ii) An annuity contract described in Code Section 403(b); or
(iii) An eligible plan under Code Section 457(b) which is
maintained by a state, political subdivision of a state, or any
agency
or instrumentality of a state or political subdivision of a
state.
(d) An "IRA Rollover Contribution" shall mean a contribution by
an
Eligible Employee which is a distribution (excluding any
portion
attributable to after-tax employee contributions) from an
individual
retirement account or annuity described in Code Section 408(a) or
408(b)
received by the Trustee not later than 60 days after such
distribution was
received by the Eligible Employee or received by the Plan through a
direct
trustee-to-trustee transfer from such individual retirement
arrangement or
annuity.
(e) Pursuant to procedures as the Committee may prescribe (either
in
writing or practice), a former Eligible Employee who commenced
participation in the Plan pursuant to Section 3.1 may make
Rollover
Contributions to the Plan from his or her account in the Allergan,
Inc.
Employee Stock Ownership Plan so long as he or she retains rights
under the
Plan.
(f) An Eligible Employee's Rollover Contributions made pursuant
the
rules of this Section 4.8 shall be held in a separate Rollover
Contributions Account for the Eligible Employee. A Rollover
Contributions
Account shall not share in any allocations of Company Contributions
or
Forfeitures under Section 6.3.
28
<PAGE>
ARTICLE V
TRUST FUND AND COMPANY CONTRIBUTIONS
5.1
General. All contributions made under the Plan and investments made
and
property of any kind or character acquired with any such funds or
otherwise
contributed, and all income, profits, and proceeds derived
therefrom, shall be
held in Trust and shall be held and administered by the Trustee in
accordance
with the provisions of the Plan and Trust Agreement.
5.2
Single Trust. Assets of the Trust shall be held in a separate
fund
which shall consist of the Trust Fund. Individual Participant
interests in the
Trust Fund shall be reflected in the Accounts maintained for the
Participants.
Notwithstanding the foregoing, the Trust Fund shall be treated as a
single trust
for purposes of investment and administration, and nothing
contained herein
shall require a physical segregation of assets for any fund or for
any Account
maintained under the Plan.
5.3
Matching Contributions. Subject to the limitations of Article XIII,
the
suspension provisions of Section 8.1 and to the extent that the
Company has
current or accumulated profits, the Company shall make Matching
Contributions to
the Plan on behalf of Participants in accordance with the following
rules:
(a) The Company shall contribute and allocate Matching
Contributions
on a
pay period basis which, when added to Matching Contribution
Forfeitures available after application of Section 6.3, is equal to
100% of
each
Participant's Matched Deposits for the pay period. The Board of
Directors, acting upon the advice and direction of the Committee,
may
authorize and direct that Matching Contributions (expressed as a
percentage
of
Participants' Matched Deposits as set forth above) be changed from
time
to
time from a minimum of 0% to a maximum of 100%.
(b) As of a date not later than the last day of each Plan Year,
the
Company shall contribute and allocate on behalf of each
Eligible
Participant,
additional Matching Contributions which, when added to
Matching Contribution Forfeitures available after application of
Section
6.3,
is equal to the difference, if any, between the amount of each
Eligible Participant's Matching Contributions determined under
paragraph
(a)
and the amount of such Eligible Participant's Matching
Contributions if
paragraph (a) was applied on a Plan Year basis instead of a pay
period
basis. For the purpose of this paragraph (b), the term
"Eligible
Participant" shall include only those Participants who are
Eligible
Employees on the first and last business day of the Plan Year and
who did
not
incur a Severance during the Plan Year.
(c) The Company shall contribute amounts sufficient to satisfy
the
Matching Contributions reinstatement requirements of Section 8.7 to
the
extent Matching Contribution Forfeitures are insufficient to
satisfy the
reinstatement requirement of Section 8.7 if so directed and at such
times
as
may be determined by the Committee.
29
<PAGE>
5.4
Retirement Contributions. Subject to the limitations of Article
XIII
and to the extent that the Company has current or accumulated
profits, the
Company shall make Retirement Contributions to the Plan on behalf
of Retirement
Account Participants in accordance with the following rules:
(a) The Company shall contribute and allocate Retirement
Contributions
on a
Plan Year basis for each Retirement Account Participant who is
employed by the Company or an Affiliated Company on the last day of
such
Plan
Year or who incurred a Severance during the Plan Year by reason
of
Disability, death, or retirement on or after age 55; the amount of
which,
when
added to Retirement Contribution Forfeitures available after
the
application of Section 6.3, shall be equal to five percent (5%) of
the
Retirement Account Participant's Compensation (as adjusted pursuant
to
paragraph (c) below) for
such Plan Year. A Retirement Account Participant's
Compensation received while such Retirement Account Participant is
an
inactive Participant as defined in Section 3.2(b) or an "Active
Participant" in the Allergan, Inc. Pension Plan as such term is
defined
therein or while he or she is not an Eligible Employee shall not be
taken
into
account in determining such Participant's Retirement
Contributions.
(b) Retirement Contributions contributed on behalf of
Retirement
Account Participants shall be allocated to the Retirement
Contributions
Account of such Retirement Account Participants as of the last day
of each
Plan
Year and shall be paid to the Trust at such times as determined by
the
Sponsor.
(c) Solely for the purpose of determining Retirement
Contributions
pursuant to this Section 5.4, a Retirement Account
Participant's
Compensation shall include his or her "Annual Deferrals" (as
defined in the
Allergan, Inc. Executive Deferred Compensation Plan) for the Plan
Year.
(d) The Company shall contribute amounts sufficient to satisfy
the
Retirement Contributions reinstatement requirements of Section 8.7
to the
extent Retirement Contribution Forfeitures are insufficient to
satisfy the
reinstatement requirement of Section 8.7 if so directed and at such
times
as
may be determined by the Committee.
5.5
Form of Company Contributions. Company Contributions to the Trust
Fund
shall be paid in cash, property, or Company Stock as the Sponsor
may from time
to time determine.
5.6
Investment of Trust Assets.
(a) The manner in which assets of the Trust will be invested shall
be
chosen by the Committee at its discretion, although the Committee
may
delegate the management to one or more Investment Managers
appointed
pursuant to Section 5.16. Notwithstanding the foregoing,
Matching
Contributions shall be invested in Company Stock except to the
extent
invested pursuant to Section 5.6(e).
(b) The Committee may establish separate investment funds under
the
Plan, with each fund representing an investment alternative
available to
Participants for the
30
<PAGE>
investment of their Accounts as provided in Section 5.6(c) and (d)
below.
Each
Participant shall have a subaccount under the Plan corresponding
to
the
Participant's interest which is allocated to each investment fund.
Each
such subaccount may be
valued separately. The Committee may, at its
discretion, establish alternative investment funds or eliminate
any
previously established funds, including but not limited to the
following
types of investment funds:
(i) The Interest Income Fund investing in group annuity
contracts
with major insurance companies.
(ii) The Balanced Fund investing in common stocks, bonds,
government securities and similar types of investments.
(iii) The Equity Fund investing in a mutual fund which may
invest
in equity securities, bonds, preferred stocks, and
interest-bearing
cash investments.
(iv) The Company Stock Fund consisting exclusively of Company
Stock.
(v) The AMO Stock Fund consisting exclusively of AMO Stock.
Notwithstanding the establishment of separate investment funds, up
to
one
hundred percent (100%) of the assets of the Plan may be invested
in
Company Stock.
(c) A Participant may elect the investment fund to which his or
her
Participant Deposits or Retirement Contributions are invested under
the
Plan
or may change such elections at any time; provided, however, that
any
allocations among the investment funds shall be made in 1%
increments. Any
change in investment funds shall be effective as soon as
administratively
feasible. Any investment elections shall be limited to the
investment funds
currently offered and
currently available to Participants as determined by
the
Committee pursuant to paragraphs (a) and (b) above. A Participant
shall
effect an investment election by properly completing and submitting
the
form
authorized by the Committee for this purpose.
(d) A Participant may elect at any time to transfer amounts
accumulated in his or her Accounts among any of the investment
funds
currently offered and currently available to Participants as
determined by
the
Committee pursuant to paragraphs (a) and (b) above; provided,
however,
the
total amount transferred shall be made in 1% increments of the
amount
accumulated in the investment fund. Any transfer among investment
funds
shall be effective as soon as administratively feasible. A
Participant
shall effect a transfer election by properly completing and
submitting the
form
authorized by the Committee for this purpose.
(e) Notwithstanding the requirement of paragraph (a) above that
Matching Contributions be invested in the Company Stock Fund, (i)
any
Participant may elect that amounts accumulated in his or her
Matching
Contributions Account which are held in the
31
<PAGE>
Company Stock Fund be reinvested and (ii) any Participant on or
after the
date
he or she attains age 55 may elect that any future Matching
Contributions be invested, in any of the investment funds currently
offered
and
currently available to Participants as determined by the
Committee
pursuant to paragraphs (a) and (b) above. An election made under
this
paragraph (e) shall be effective as soon as administratively
feasible. A
Participant shall make any election, and may change any election,
at such
times and in accordance with the requirements imposed by paragraphs
(c) and
(d)
above.
(f) Amounts invested in any one of the investment funds shall
not
share in gains and losses experienced by any other fund.
(g) Notwithstanding the establishment of separate investment
funds
within the Trust, the Trust shall at all times constitute a single
trust.
(h) Notwithstanding anything to the contrary in this Section 5.6
or
Section 4.1 or Section
8.1, the following additional transfer and
withdrawal restrictions shall apply to all Participants who are
Insiders.
For
the purpose of this Section 5.6, the term "Insider" shall mean
any
Participant who is directly or indirectly the beneficial owner of
more than
10%
of any class of any equity security (other than an exempted
security)
of
the Sponsor (or the Company) which is registered pursuant to
Section 12
of
the Securities Exchange Act of 1934 (the "Exchange Act") or who is
a
"director" or an "officer" of the Sponsor or the Company as those
terms are
interpreted for the purpose of determining persons subject to
Section 16 of
the
Exchange Act.
(i) Any Insider who transfers amounts invested in the Company
Stock Fund out of such fund and into another fund or withdraws cash
in
a transaction that results in the liquidation of amounts in the
Company Stock Fund (pursuant to Sections 8.1 or 8.13), may not for
a
period of six months following the Participant's election to so
transfer funds, withdraw cash or take a loan, as the case may be,
make
an election to transfer amounts from another fund into the
Company
Stock Fund.
(ii) Any Insider who transfers amounts invested in a fund other
than the Company Stock Fund into the Company Stock Fund, may not
for a
period of six months following the Participant's election to so
transfer funds make an election to (1) transfer amounts from
the
Company Stock Fund into another fund, (2) withdraw cash or take a
loan
in a transaction that results in the liquidation of amounts in
the
Company Stock Fund or (3) utilize the diversification rule of
Section
5.12 of the Allergan Inc. Employee Stock Ownership Plan or the
provision of any Company plan covered by Rule 16b-3
(promulgated
pursuant to the Exchange Act) then in existence that would result
in
the transfer out of a Company equity securities fund.
(i) It is intended that to the extent a Participant may direct
the
investment of his or her Accounts under the Plan that the Plan
constitute a
plan
described in Section 404(c) of ERISA and the regulations
thereunder,
and
neither the Company,
32
<PAGE>
Committee, nor any fiduciary with respect to the Plan who is
employed by
the
Company shall be liable for investment losses sustained by any
Participant or Beneficiary as a direct and necessary result of
the
investment instructions given by such Participant or Beneficiary.
Such
fiduciaries set forth in the preceding sentence shall be under no
duty to
question the investment direction of the Participant or Beneficiary
or to
advise a Participant or Beneficiary as to the manner in which his
or her
Accounts is to be invested. The fact that an investment option is
offered
shall not be construed to be a recommendation of investment.
(j) On June 29, 2002, Allergan spun-off AMO and distributed the
stock
of
AMO (referred to in the Plan as "AMO Stock") to its shareholders.
The
following provisions of the Plan shall apply to AMO Stock as if the
term
"AMO
Stock" was substituted for the term "Company Stock": Section
5.9
(Certain Offers for Company Stock); Section 5.10 (Voting of Company
Stock);
Section 5.11 (Securities Law Limitation); Section 5.16 (Appointment
of
Investment Manager); Section 6.4 (Valuation of Participants'
Accounts);
Section 6.5 (Valuation of Company Stock); Section 6.6 (Dividends,
Splits,
Recapitalizations, Etc.); Section 6.7 (Stock Rights, Warrants or
Options);
Section 6.9 (Cash Dividends); Section 6.10 (Miscellaneous
Allocation
Rules); Section 9.1 (Appointment of Committee); Section 9.2
(Appointment of
Investment Subcommittee); Section 9.7 (Additional Powers of
Committee); and
Section 9.14 (Compensation of Committees and Plan Expenses), as
applicable.
5.7
Irrevocability. The Company shall have no right or title to,
nor
interest in, the contributions made to the Trust Fund, and no part
of the Trust
Fund shall revert to the Company except that on or after the
Original Effective
Date funds may be returned to the Company as follows:
(a) In the case of Company Contributions which are made by a
mistake
of
fact and at the Sponsor's written request, such contributions shall
be
returned to the Company as directed by the Sponsor within one (1)
year
after it is made.
(b) All Company Contributions contributed to the Trust are
hereby
conditioned upon the Plan satisfying all of the requirements of
Code
Section 401(a). If the Plan does not qualify, the Plan may be
revoked at
the
Sponsor's written election and all such contributions shall be
returned
to
the Company as directed by the Sponsor within one year after the
date of
Internal Revenue Service denial of the qualification of the Plan.
Upon such
a
revocation the affairs of the Plan and Trust shall be terminated
and
wound up as the Sponsor shall direct.
(c) All Company Contributions to the Plan are conditioned upon
the
deductibility of those contributions under Code Section 404. To the
extent
a
deduction is disallowed and at the Sponsor's written request,
such
contributions shall be returned to the Company as directed by the
Sponsor
within one year after the disallowance.
(d) In the event that the Plan is terminated when there are
amounts
remaining in the Suspense Account, the excess funds shall revert to
the
Company as directed by the Sponsor to the extent provided in
Section 13.6.
33
<PAGE>
5.8
Company, Committee and Trustee Not Responsible for Adequacy of
Trust
Fund.
(a) The Company, Committee, and the Trustee shall not be liable
or
responsible for the adequacy of the Trust Fund to meet and
discharge any or
all
payments and liabilities hereunder. All Plan benefits will be paid
only
from
the Trust assets, and neither the Company, the Committee nor
the
Trustee shall have any duty or liability to furnish the Trust with
any
funds, securities or other assets except as expressly provided in
the Plan.
(b) Except as required under the Plan or Trust or under Part 4
of
Subtitle B of Title I of ERISA, the Company shall not be
responsible for
any
decision, act or omission of the Trustee, the Committee, or the
Investment Manager (if applicable), and shall not be responsible
for the
application of any moneys, securities, investments or other
property paid
or
delivered to the Trustee.
5.9 Certain Offers for
Company Stock. Notwithstanding any other provision
of the Plan to the contrary, in the event an offer shall be
received by the
Trustee (including but not limited to a tender offer or exchange
offer within
the meaning of the Securities Exchange Act of 1934, as from time to
time amended
and in effect) to acquire any or all shares of Company Stock held
by the Trust
(an "Offer"), the discretion or authority to sell, exchange or
transfer any of
such shares of Company Stock shall be determined in accordance with
the
following rules:
(a) The Trustee shall have no discretion or authority to sell,
exchange or transfer any Company Stock pursuant to an Offer except
to the
extent, and only to the extent, that the Trustee is timely directed
to do
so
in writing by each Participant with respect to shares of Company
Stock
that
are allocated to such Participant's Accounts.
(b) To the extent there remains any residual fiduciary
responsibility
with
respect to Company Stock pursuant to an Offer after application
of
paragraph (a) above, the Trustee shall sell, exchange or transfer
such
Company Stock as directed by the Committee or as directed by an
independent
fiduciary if duly appointed by the Sponsor. To the extent the
Committee or
an
independent fiduciary is required to exercise any residual
fiduciary
responsibility with respect to an Offer, the Committee or
independent
fiduciary shall take into account in exercising its fiduciary
judgment,
unless it is clearly imprudent to do so, directions timely received
from
Participants, as such directions are most indicative of what action
is in
the
best interests of Participants. Further, the Committee or
independent
fiduciary, in addition to taking into consideration any relevant
financial
factors bearing on any such decision, shall take into consideration
any
relevant non-financial factors, including, but not limited to,
the
continuing job security of Participants as employees of the Sponsor
or any
Affiliated Company, conditions of employment, employment
opportunities and
other similar matters, and the prospect of the Participants and
prospective
Participants for future benefits under the Plan.
(c) Upon timely receipt of such instructions, the Trustee
shall,
subject to the provisions of paragraphs (e) and (o) of this
Section, sell,
exchange or transfer pursuant to
34
<PAGE>
such Offer, only such
shares as to which such instructions were given. The
Committee shall use its best efforts to communicate or cause to
be
communicated to each Participant the consequences of any failure to
provide
timely instructions to the Trustee.
(d) In the event, under the terms of an Offer or otherwise, any
shares
of
Company 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 shares from such
Offer in
the
same manner and the same proportion as shall be timely received by
the
Trustee from the Participants entitled under this paragraph (a) to
give
instructions as to the sale, exchange or transfer of shares
pursuant to
such
Offer.
(e) In the event that an Offer for fewer than all of the shares
of
Company Stock held by the Trustee in the Trust shall be received by
the
Trustee, each Participant shall be entitled to direct the Trustee
as to the
acceptance or rejection of such Offer (as set forth herein) with
respect to
the
largest portion of such Company Stock as may be possible given
the
total number or amount of shares of Company Stock the Plan may
sell,
exchange or transfer pursuant to the Offer based upon the
instructions
received by the Trustee from all other Participants who shall
timely
instruct the Trustee pursuant to this paragraph to sell, exchange
or
transfer such shares pursuant to such Offer, each on a pro rata
basis in
accordance with the maximum number of shares each such Participant
would
have
been permitted to direct under paragraph (a) had the Offer been
for
all
shares of Company Stock held in the Trust.
(f) In the event an Offer is received by the Trustee and
instructions
have
been solicited from Participants regarding such Offer, and prior
to
termination of such Offer, another Offer is received by the Trustee
for the
Company Stock subject to the first Offer, the Trustee shall inform
the
Committee of such other Offer and the Committee shall use its best
efforts
under the circumstances to solicit instructions from the
Participants (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 Company Stock so withdrawn for
sale,
exchange or transfer pursuant to the second Offer and (ii) with
respect to
Company Stock not tendered for sale, exchange or transfer pursuant
to the
first Offer, whether to tender or not to tender such Company Stock
for
sale, exchange or transfer pursuant to the second Offer. The
Trustee shall
follow all such instructions received in a timely manner from
Participants
in
the same manner and in the same proportion as provided in paragraph
(a)
of
this Section. With respect to any further Offer for any Company
Stock
received by the Trustee and subject to any earlier Offer
(including
successive Offers from one or more existing offers), the Trustee
shall act
in
the same manner as described above.
(g) With respect to any Offer received by the Trustee, the
Trustee
shall inform the Sponsor of such Offer and the Sponsor shall
distribute, at
its
expense, copies of all relevant material including but not limited
to
material filed with the Securities and Exchange Commission with
such Offer
or
regarding such Offer, which shall seek confidential written
instructions
from
each Participant who is entitled to respond to such
35
<PAGE>
Offer pursuant to paragraph (a). The identities of Participants,
the amount
of
Company Stock allocated to their Accounts, and the Compensation of
each
Participant shall be determined from the list of Participants
delivered to
the
Sponsor by the Committee which shall take all reasonable steps
necessary to provide the Sponsor with the latest possible
information.
(h) The Sponsor shall distribute and/or make available to each
Participant who is entitled to respond to an Offer pursuant to
paragraph
(a),
an instruction form to be used by each such Participant who wishes
to
instruct the Trustee. The instruction form shall state that (i) if
the
Participant fails to return an instruction form to the Trustee by
the
indicated deadline, the Company Stock with respect to which he or
she is
entitled to give instructions shall not be sold, exchanged or
transferred
pursuant to such Offer, (ii) the Participant shall be a named
fiduciary (as
described in paragraph (m) below) with respect to all shares of
Company
Stock for which he or she is entitled to give instructions, and
(iii) the
Company acknowledges and agrees to honor the confidentiality of
the
Participant's instructions to the Trustee.
(i) Each Participant may choose to instruct the Trustee in one of
the
following two ways: (i) not to sell, exchange or transfer any
shares of
Company Stock for which he or she is entitled to give instructions,
or (ii)
to
sell, exchange or transfer all Company Stock for which he or she
is
entitled to give instructions. The Sponsor shall follow up with
additional
mailings and postings of bulletins, as reasonable under the
time
constraints then prevailing, to obtain instructions from
Participants not
otherwise responding to such requests for instructions. Subject
to
paragraph (e), the Trustee shall then sell, exchange or transfer
shares
according to instructions from Participants, except that shares for
which
no
instructions are received shall not be sold, exchanged or
transferred
unless directed otherwise as provided in paragraph (b) above.
(j) The Sponsor shall furnish former Participants who have
received
distributions of Company Stock so recently as to not be
shareholders of
record with the information given to Participants pursuant to
paragraphs
(g),
(h) and (i) of this Section. The Trustee shall then sell, exchange
or
transfer shares according to instructions from such former
Participants,
except that shares for which no instructions are received shall not
be
sold, exchanged or transferred.
(k) Neither the Company, the Committee nor the Trustee shall
express
any
opinion or give any advice or recommendation to any Participant
concerning the Offer, nor shall they have any authority or
responsibility
to
do so.
(l) The Trustee shall not reveal or release a Participant's
instructions to the Company, its officers, directors, employees,
or
representatives. If some but not all Company Stock held by the
Trust is
sold, exchanged, or transferred pursuant to an Offer, the Company,
with the
Trustee's cooperation, shall take such action as is necessary to
maintain
the
confidentiality of Participant's records including, without
limitation,
establishment of a security system and procedures which restrict
access to
Participant records and retention of an independent agent to
maintain such
records. If an
36
<PAGE>
independent record keeping agent is retained, such agent must
agree, as a
condition of its retention by the Sponsor, not to disclose the
composition
of
any Participant Accounts to the Company, its officers,
directors,
employees, or representatives. The Company acknowledges and agrees
to honor
the
confidentiality of Participants' instructions to the Trustee.
(m) Each Participant shall be a named fiduciary (as that term
is
defined in Section 402(a)(2) of ERISA) with respect to Company
Stock
allocated to his or her Accounts under the Plan solely for purposes
of
exercising the rights of a shareholder with respect to an Offer
pursuant to
this
Section 5.9 and voting rights pursuant to Section 5.10.
(n)
