<PAGE>
As filed with the Securities and Exchange Commission on December 20, 1996
Registration No. 333_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------
WATERS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3668640
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
34 Maple Street, Milford, Massachusetts 01757-3696
Telephone: 508-478-2000
(Address of principal executive offices)
WATERS EMPLOYEE INVESTMENT PLAN FOR PUERTO RICO
(Full title of the plan)
Philip S. Taymor
Waters Corporation
34 Maple Street
Milford, Massachusetts 01757-3696
508-478-2000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Jeffrey W. Stevenson, Esq.
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered/(1)(2)/ Share/(1)/ Price/(1)/ Registration Fee/(1)/
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value per 10,000 $29.8125 $298,125 $93.17
share
- ---------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
amount of the registration fee based upon the average of the high and low
prices reported for the shares on the New York Stock Exchange on December
18, 1996.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
regulation statement also covers an indeterminate amount of interests in
the plan to be offered or sold pursuant to the terms described thereon.
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation by Reference
--------------------------
Prior to the initial public offering (the "Offering") of Waters
Corporation (the "Company"), the name of the issuer of the Common Stock was WCD
Investors Inc. Waters Corporation was a wholly owned subsidiary of Waters
Holding Inc. which in turn was a wholly owned subsidiary of WCD Investors Inc.
Waters Corporation and Waters Holding Inc. were the primary assets of WCD
Investors Inc. At the time of the Offering, (i) Waters Holding Inc. was merged
with and into WCD Investors Inc., with WCD Investors Inc. the surviving
corporation, and (ii) Waters Corporation changed its name to Waters Technologies
Corporation and WCD Investors Inc. changed its name to Waters Corporation.
The following documents filed by the Company with the Securities and
Exchange Commission are incorporated herein by reference except to the extent
that any statement or information therein is modified, superseded or replaced by
a statement or information contained in any subsequently filed document
incorporated by reference.
1. The Registration Statement of the Registrant on Form S-1 dated
October 24, 1996 (Registration No. 333-14793).
2. The description of Waters Corporation Common Stock contained in
the registration report filed by the Company (formerly WCD
Investors Inc.) on Form 8-A entered October 19, 1995 (Registration
No. 1-14010).
3. All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since the end of the
fiscal period covered by the Registrant document referred to in
(1) above.
4. All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference in this
Registration Statement and shall be a part hereof from the date of
filing of such documents.
-2-
<PAGE>
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not applicable.
Item 6. Indemnification of Officers and Directors
-----------------------------------------
Section 145 of the General Corporation Law of the State of Delaware
(the "Corporation Law") permits indemnification of directors, officers,
employees and agents of corporations under certain conditions and subject to
certain limitations. The Company's certificate of incorporation, as amended,
provides for the indemnification of directors and officers of the Company to the
fullest extent permitted by Section 145.
In addition, the by-laws of the Company provide that the Company shall
indemnify to the fullest extent authorized by law any person made or threatened
to be made a party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator or
intestate is or was a director, officer, employee or agent of the Company or is
or was serving, at the request of the Company, as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise.
In addition, pursuant to certain Indemnification Agreements dated
August 18, 1994 (the "Indemnification Agreements") between the Company and its
directors and executive officers, the Company agreed to indemnify such directors
and executive officers to the fullest extent permitted by the laws of the State
of Delaware. Among other things, the Indemnification Agreements provide
indemnification procedures, advancement of expenses during proceedings subject
to indemnification and mechanisms for reviewing executive conduct in connection
with a claim for indemnification.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
-3-
<PAGE>
See "Index to Exhibits."
Item 9. Undertakings
------------
1. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual reports pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of the
Plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes (a) to file, during
any period in which offers or sales are being made, a post-effective amendment
to this registration statement to include any material information with respect
to the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement; (b) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and (c) to remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of their respective counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
filing requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Milford, State of Massachusetts on December 19, 1996.
WATERS CORPORATION
By: /s/ Philip S. Taymor
----------------------------------------
Name: PHILIP S. TAYMOR
Title: Senior Vice President, Finance and
Administration and Treasurer and
Assistant Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Philip S. Taymor his true and lawful attorney-in-
fact, with full power of substitution and revocation, for him and in his name,
place and stead, in any and all capacities (including his capacity as a director
and/or officer of Waters Corporation), to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each such attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as such
person might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 19, 1996.
Signature Capacity
--------- --------
/s/ Douglas A. Berthiaume President, Chief Executive Officer and
- ------------------------------------- Chairman of the Board of Directors
Douglas A. Berthiaume
/s/ Philip S. Taymor Senior Vice President, Finance and
- ------------------------------------- Administration and Chief Financial
Philip S. Taymor Officer (Principal Financial and
Accounting Officer) and Treasurer and
Assistant Secretary
-5-
<PAGE>
Signature Capacity
--------- --------
/s/ Joshua Bekenstein
- ---------------------------------------- Director
Joshua Bekenstein
- ---------------------------------------- Director
Charles L. Brown
/s/ Philip Caldwell
- ---------------------------------------- Director
Philip Caldwell
/s/ Edward Conrad
- ---------------------------------------- Director
Edward Conard
/s/ Thomas P. Salice
- ---------------------------------------- Director
Thomas P. Salice
/s/ Marc Wolpow
- ---------------------------------------- Director
Marc Wolpow
-6-
<PAGE>
The Plan. Pursuant to the requirement of the Securities Act of 1933, the Plan
- --------
Administrator for the Plan has caused this registration statement to be signed
on its behalf by the undersigned thereunto duly authorized, in the City of
Milford, State of Massachusetts, on December 19, 1996.
Waters Employee Investment Plan for Puerto Rico
By: /s/ Philip S. Taymor
---------------------------------------------
Name: PHILIP S. TAYMOR
Title: Retirement Committee
-7-
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
No. Description of Exhibit Page*
------- ---------------------- ------------
4.1 Waters Employee Investment Plan for Puerto Rico 10
substantially in the form adopted as of
January 1, 1997
23.1 Consent of Coopers & Lybrand L.L.P. 63
23.2 Consent of Coopers & Lybrand L.L.P. 65
-8-
<PAGE>
WATERS EMPLOYEE INVESTMENT PLAN
FOR
PUERTO RICO
Effective as of January 1, 1997
<PAGE>
INTRODUCTION
Waters Operating Corp. (the "Sponsoring Employer") has adopted the Waters
Employee Investment Plan for Puerto Rico (the "Plan") effective January 1, 1997.
The purpose of the Plan is to facilitate systematic savings by Eligible
Employees and to provide Eligible Employees with funds for their retirement or
possible earlier needs. It is intended that the Plan qualify under Section
1165(a) and 1165(e) of the Puerto Rico Internal Revenue Code of 1994 (the "PR-
Code"), and the trust forming a part thereof is intended to be exempt from
taxation under PR-Code Section 1165(a) and, pursuant to Section 1022(i)(1) of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), under
Section 501(a) of the Internal Revenue Code of 1986, as amended (the "Code").
(i)
<PAGE>
TABLE OF CONTENTS
Page
INTRODUCTION...............................................................i
ARTICLE 1 - DEFINITIONS....................................................1
ARTICLE 2 - PARTICIPATION..................................................8
2.1 PARTICIPATION REQUIREMENTS.....................................8
2.2 ELECTIONS REQUIRED.............................................8
2.3 PARTICIPATION UPON REEMPLOYMENT................................8
2.4 PARTICIPATION..................................................9
2.5 PARTICIPATION OF TRANSFERRED EMPLOYEES.........................9
ARTICLE 3 - SALARY DEFERRALS..............................................10
3.1 SALARY DEFERRALS..............................................10
3.2 SELECTION AND CHANGE OF RATE..................................10
3.3 MANNER OF PAYMENT.............................................11
3.4 DEPOSIT WITH TRUSTEE..........................................11
3.5 ANTI-DISCRIMINATION LIMITS FOR SALARY DEFERRALS...............11
3.6 SUSPENSION....................................................13
3.7 TERMINATION...................................................14
3.8 RETURN OF SALARY DEFERRALS....................................14
3.9 NO REVERSION OF EMPLOYER CONTRIBUTIONS........................14
ARTICLE 4 - EMPLOYER CONTRIBUTIONS........................................15
4.1 EMPLOYER CONTRIBUTIONS........................................15
4.2 PAYMENT OF EMPLOYER MATCHING CONTRIBUTIONS....................15
4.3 EMPLOYER MATCHING PROFITS CONTRIBUTIONS NOT CONDITIONED ON
PROFITS.......................................................15
ARTICLE 5 - INVESTMENT PROVISIONS AND PARTICIPANT ACCOUNTS................16
5.1 INVESTMENT FUNDS..............................................16
5.2 INVESTMENTS IN COMPANY SHARES.................................16
5.4 CHANGE IN INVESTMENT ELECTION.................................17
5.5 TRANSFER AMONG FUNDS..........................................17
5.6 RESPONSIBILITY OF PARTICIPANT IN SELECTING
INVESTMENT FUNDS..............................................18
5.7 ESTABLISHMENT OF PARTICIPANT ACCOUNTS.........................18
5.8 VALUATION OF PARTICIPANTS' ACCOUNTS...........................18
5.9 CORRECTION OF ERROR...........................................19
5.10 ALLOCATION SHALL NOT VEST TITLE...............................19
5.11 ALLOCATION OF COMPANY SHARES..................................19
-i-
<PAGE>
TABLE OF CONTENTS (cont'd)
Page
5.12 ADDITIONAL ACCOUNTING RULES...................................19
5.13 VOTING OF COMPANY SHARES......................................20
5.14 PAYMENT OF COMPANY SHARES.....................................20
5.15 RULE 16b-3....................................................21
ARTICLE 6 - VESTING.......................................................22
6.1 VESTING.......................................................22
ARTICLE 7 - ELIGIBILITY FOR RETIREMENT BENEFITS...........................23
7.1 NORMAL RETIREMENT.............................................23
7.2 LATE RETIREMENT...............................................23
7.3 DISABILITY RETIREMENT.........................................23
ARTICLE 8 - WITHDRAWALS AND LOANS DURING EMPLOYMENT.......................24
8.1 WITHDRAWALS OF SALARY DEFERRALS...............................24
8.2 HARDSHIP WITHDRAWALS..........................................25
8.3 RESTORATION OF WITHDRAWALS....................................26
8.4 LOANS.........................................................26
8.5 LOAN CONDITIONS...............................................27
8.6 LOAN FUND.....................................................29
8.7 DISCRETION....................................................29
8.8 ROLLOVERS.....................................................30
ARTICLE 9 - DISTRIBUTIONS.................................................31
9.1 DISTRIBUTION AMOUNT...........................................31
9.2 DISTRIBUTION ON RETIREMENT, DISABILITY, OR OTHER TERMINATION..31
9.3 DISTRIBUTION ON DEATH.........................................32
9.4 DISTRIBUTION TO ALTERNATE PAYEES..............................33
9.5 INVESTMENT OF DEFERRED DISTRIBUTIONS..........................34
9.6 DESIGNATION OF BENEFICIARY....................................34
9.7 PROOF OF DEATH................................................35
9.8 LOAN AS A DISTRIBUTION........................................35
9.9 BENEFITS PAYABLE ONLY FROM TRUST FUND.........................35
9.10 DISTRIBUTIONS PURSUANT TO THE PR-CODE AND ERISA...............35
-ii-
<PAGE>
TABLE OF CONTENTS (cont'd)
Page
ARTICLE 10 - ADMINISTRATION OF THE PLAN...................................36
10.1 THE COMMITTEE................................................36
10.2 ORGANIZATION OF THE COMMITTEE................................36
10.3 POWERS, DUTIES, AND RESPONSIBILITIES OF THE COMMITTEE........36
10.4 RECORDS OF THE COMMITTEE.....................................37
10.5 PROCEDURE FOR CLAIMING BENEFITS UNDER THE PLAN...............37
10.6 UNCLAIMED BENEFITS...........................................38
10.7 DISTRIBUTION TO MINORS AND INCAPACITATED PAYEES..............39
10.8 EXPENSES.....................................................39
10.9 INVESTMENT MANAGER...........................................39
10.10 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY...........39
10.11 INDEMNIFICATION..............................................40
10.12 FIDUCIARY INSURANCE..........................................40
10.13 RELIANCE ON STATEMENTS OF PARTICIPANTS AND BENEFICIARIES.....41
10.14 DISCHARGE OF LIABILITY.......................................41
ARTICLE 11 - ADMINISTRATION OF THE TRUST..................................42
11.1 TRUST AGREEMENT..............................................42
11.2 EXCLUSIVE BENEFIT OF PARTICIPANTS............................42
ARTICLE 12 - AMENDMENT, TERMINATION OR MERGER OF THE PLAN.................43
12.1 RIGHT TO AMEND...............................................43
12.2 RIGHT TO TERMINATE...........................................43
12.3 TERMINATION OF TRUST.........................................43
12.4 DISCONTINUANCE OF CONTRIBUTIONS..............................44
12.5 MERGER OF PLANS..............................................44
ARTICLE 13 - GENERAL PROVISIONS...........................................45
13.1 FILINGS WITH THE COMMITTEE...................................45
13.2 STATEMENTS OF ACCOUNTS.......................................45
13.3 NONALIENABILITY OF BENEFITS..................................45
13.4 NO CONTRACT OF EMPLOYMENT....................................45
13.5 PARTICIPATING EMPLOYERS......................................46
13.6 GOVERNING LAW................................................46
-iii-
<PAGE>
ARTICLE 1 - DEFINITIONS
1.1 "Affiliated Employer" means Waters Operating Corp. and each other entity
which, on the relevant date, is in the same control group of trades or
businesses, within the meaning of Section 3(40)(B) of ERISA, of which the
Sponsoring Employer is a member, including any such entity which would
otherwise be excluded because it is organized under foreign laws or
operates primarily outside the United States and Puerto Rico.
1.2 "Alternate Payee" means any spouse, former spouse, child, or other
dependent of a Participant recognized by a Qualified Domestic Relations
Order as having a right to receive all, or a portion of, the Participant's
nonforfeitable benefits under the Plan. For purposes of section 9.4, the
term "Alternate Payee" excludes a child or other dependent of the
Participant.
1.3 "Beneficiary" means any person or persons (including a trust established
for the benefit of such person or persons) designated by a Participant or
by the terms of the Plan as provided in section 9.6, who is or who may
become entitled to receive benefits from the Plan. Any person who is an
Alternate Payee shall be considered a Beneficiary for purposes of the
Plan.
1.4 "Benefit Commencement Date" means the first Valuation Date as of which an
amount is paid in accordance with the provisions of Article 9.
1.5 "Board" means the Board of Directors of the Sponsoring Employer.
1.6 "Committee" means the Committee appointed by the Board as set forth in
section 10.1.
1.7 "Company Shares" means the common stock of Waters Corporation, parent
company of the Sponsoring Employer.
1.8 "Compensation" means, in the case of each Employee, all compensation paid
in the Plan Year to the Employee by the Employer for services rendered,
including salary, commissions, unused vacation pay, shift differentials,
short term disability pay, lump-sum cash payments of merit pay increases,
and overtime pay, but excluding, for purposes of section 3.1, any
severance pay or termination pay, moving expenses, tuition reimbursement,
bonuses not specifically included, and any other forms of extraordinary
earnings or the value thereof.
Compensation shall not include any amounts paid or payable to an Eligible
Employee for services rendered prior to the date the Eligible Employee
becomes a Participant. Compensation for an Eligible Employee's first Plan
Year of participation shall be equal to the Employee's actual compensation
for the period commencing on the Employee's Entry Date and ending on the
last day of the Plan Year. In the event the Employee's actual period is
unavailable, Compensation shall be equal to the compensation for such
period is unavailable. Compensation shall be equal to the Employee's
annual compensation for such Plan Year, prorated for the period during
which the Employee was a Participant during the Plan Year.
<PAGE>
1.9 "Disability" or "Disabled" as applied to any Participant means that:
(a) The Participant is wholly and permanently prevented from engaging in
any regular occupation or employment for wages or profit as a result
of bodily injury or disease, either occupational or nonoccupational
in origin; and
(b) The Participant is entitled to receive a Social Security disability
award, or long term disability benefits under a plan sponsored by
the Employer.
"Disability" or "Disabled" does not mean, however, any incapacity which
was contracted, suffered, or incurred while the Participant was engaged
in, or resulted from the Participant having engaged in, a felonious
enterprise, or which resulted from the Participant's habitual drunkenness
or addiction to narcotics, a self-inflicted injury, or service in the
armed forces of any country.
The Employer shall have the right to require the Participant to submit
reasonable proof of such Disability. Such proof may include a requirement
that the Participant submit to a medical examination from time to time by
a qualified physician or physicians selected by the Employer. Medical
examinations shall not be required more frequently than semi-annually.
1.10 "Effective Date" means January 1, 1997.
1.11 "Eligible Employee" means any person who is an Employee of the Employer,
excluding, however:
(a) Any Employee who is a member of a unit of employees covered by a
collective bargaining agreement to which the Employer is a party and
which does not specifically provide for the coverage of such
employees under the Plan;
(b) Any Employee who is working for the Employer in a location other
than Puerto Rico;
(c) Any director of the Employer not otherwise so employed, or any
person who is compensated by special fees pursuant to a special
contract or arrangement;
(d) Any Employee who is a leased employee;
(e) Any Employee who is a seasonal or temporary worker; provided,
however, if any such Employee is credited with 1,000 Hours of
Service or more in a Plan Year, such Employee shall become a
Participant upon satisfaction of the requirements of section 2.1(b);
or
(f) Any other Employee in a specified plant, operating unit, or job
classification of the Employer as determined by the Board in its
sole discretion, provided that any such
-2-
<PAGE>
determination shall not prevent the Plan from qualifying under
PR-Code Section 1165(a).
1.12 "Employee" means any person employed by the Employer or an Affiliated
Employer. The term "Employee" also includes any leased employees of the
Employer.
1.13 "Employer" means Waters Operating Corp. as the Sponsoring Employer, and
any Participating Employer, and any successor which shall maintain this
Plan.
1.14 "Employer Matching Contributions" means the total matching contributions
made by the Employer on behalf of a Participant in accordance with
section 4.1.
1.15 "Employment Commencement Date" means the date on which an Employee is
first credited with an Hour of Service for the Employer or an Affiliated
Employer, disregarding, however, hours of service credited for employment
with an Affiliated Employer prior to the date on which such employer
became an Affiliated Employer.
1.16 "Entry Date" means the first day of each payroll period as determined
under section 2.1, or such other date as determined under section 2.5(a)
for a transferred Employee.
1.17 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to a specific provision of ERISA
shall include such provision, any valid regulation or ruling promulgated
thereunder, and any provision of future law that amends, supplements, or
supersedes such provision.
1.18 "Fiscal Year" means the accounting period for Federal income tax purposes,
which is the period of twelve consecutive months commencing on January 1
of each year and ending on the following December 31.
1.19 "Highly Compensated Employee" means any Eligible Employee who is more
highly compensated than two-thirds of all other Eligible Employees.
1.20 "Highly Compensated Participant" means a Participant who is a Highly
Compensated Employee.
1.21 "Hour of Service" means:
(a) Each hour for which an Employee is paid directly or entitled to
payment for the performance of duties for the Employer or an
Affiliated Employer during the Plan Year;
(b) Each hour for which an Employee is directly or indirectly paid, or
entitled to payment by the employer or an Affiliated Employer, on
account of a period of time during which no duties are performed for
the Employer or an Affiliated Employer
-3-
<PAGE>
(irrespective of whether the employment relationship has terminated)
due to and in accordance with procedures regarding vacation,
holiday, illness, incapacity (including disability), layoff, jury
duty, military duty or leave of absence; and
(c) Each other hour required by the PR-Code or ERISA, or the regulations
promulgated thereunder, to be counted as an Hour of Service,
including each such hour for which back pay, irrespective of
mitigation of damages, is either awarded or agreed to by the
Employer or an Affiliated Employer, but the same Hours of Service
will not be credited both under paragraph (a) or paragraph (b), as
the case may be, and under this paragraph (c). Hours credited under
this paragraph (c) shall be credited to the Plan Year in which the
award or agreement pertains, rather than to the Plan Year in which
the award, agreement or payment is made.
1.22 "Investment Manager" means any person, firm, or corporation who:
(a) is a registered investment adviser under the Investment Advisers Act
of 1940, a bank, or an insurance company;
(b) has the power to manage, acquire, or dispose of Plan assets; and
(c) acknowledges in writing a fiduciary responsibility to the Plan.
1.23 "Leave of Absence" means an absence granted in writing by the Employer or
an Affiliated Employer in accordance with the employer's personnel
policies or as required by law, uniformly applied to all employees,
including, but not limited to, absences for reasons of health, education,
jury duty, or service in the armed forces of the United States.
1.24 "Limitation Year" means the calendar year.
1.25 "Loan Fund" means the fund to be invested in loans to Participants.
1.26 "Nonhighly Compensated Employee" means an Employee who is not a Highly
Compensated Employee.
1.27 "Normal Retirement Date" means the date on which the Employee shall have
attained age 65.
1.28 "Participant" means any Eligible Employee who participates in the Plan in
accordance with the provisions of Article 2. An Eligible Employee shall
cease to be a Participant in the Plan in accordance with the provisions of
section 2.4.
1.29 "Participating Employer" means any Affiliated Employer that has adopted
this Plan with the approval of the Sponsoring Employer.
-4-
<PAGE>
1.30 "Period of Service" or "Service" means, the aggregate of the following:
(a) The period beginning on the Employee's Employment Commencement Date
(or Reemployment Commencement Date) and ending on the Employee's
Severance from Service Date;
(b) If an Employee performs an Hour of Service within twelve months of a
Severance from Service Date on account of his or her resignation,
retirement, or discharge, the period from such Severance from
Service Date to such Hour of Service;
(c) In the case of an Employee who leaves employment with the Employer
or Affiliated Employer to enter service with the armed forces of the
United States, the period of such military service, provided the
individual resumes employment with the Employer or Affiliated
Employer within the period during which his or her reemployment
rights are protected by applicable law; and
1.31 "Plan" means Waters Employee Investment Plan for Puerto Rico as set forth
herein, and as may be amended from time to time.
1.32 "Plan Year" means the twelve consecutive months commencing on January 1 of
each year and ending on the following December 31.
1.33 "Profits" means the current year's or accumulated net aggregate income of
the Affiliated Employer determined in accordance with the following rules:
net income shall be computed in each case before Federal, Puerto Rico,
state or foreign income or franchise taxes and without regard to any
Salary Deferrals to any other defined contribution plan, or extraordinary
losses. Net income shall be determined in accordance with generally
accepted accounting principles, consistently applied. The determination of
profits and each element thereof, exclusion therefrom or adjustment
thereto shall be made by the firm of an independent certified public
accountants which regularly reviews the Affiliated Employer's books and
shall be conclusive and binding on all persons.
1.34 "Qualified Domestic Relations Order" means a domestic relations order
which meets the requirements of Section 206(d)(3)(B)(i) of ERISA as
determined by the Committee.
1.35 "Reemployment Commencement Date" means the date on which an Employee is
first credited with an Hour of Service for the Employer or an Affiliated
Employer following a Severance from Service Date.
1.36 "Retirement Date" means the Participant's Normal Retirement Date or any
actual date of retirement after the Participant's Normal Retirement Date.
1.37 "Salary Deferral" means amounts contributed to the Plan on behalf of a
Participant pursuant to section 3.1.
-5-
<PAGE>
1.38 "Severance from Service Date" means the earlier of:
(a) The date on which an Employee ceases to be employed by the Employer
or an Affiliated Employer because he or she resigns, retires, is
discharged or dies.
(b) The first anniversary of the date on which an Employee remains
absent from service (with or without pay) with an Employee or an
Affiliated Employer for any reason other than resignation,
retirement, discharge or death, such an illness, maternity or
paternity leave, layoff, or, subject to paragraph (c) below, a Leave
of Absence.
(c) The date on which a Leave of Absence began if the Employee fails to
return to active employment upon the expiration of such leave (or,
in the case of military leave, during the period his or her
reemployment rights are protected by applicable law), unless such
failure is the result of retirement, Disability, or death.
1.39 "Sponsoring Employer" means Waters Operating Corp. or its successor or
successors.
1.40 "Spouse" means the person, if any, to whom the Participant is lawfully
married at the date of his or her death or at his or her Benefit
Commencement Date, whichever is earlier, provided, however, that a former
spouse will be treated as the Participant's Spouse to the extent provided
under a Qualified Domestic Relations Order.
1.41 "Total Account" means the total amounts held under the Plan for a
Participant, consisting of the following accounts:
(a) "Salary Deferral Account" - The portion of the Participant's Total
Account consisting of Salary Deferrals made in accordance with
section 3.1(a)(i) plus (or minus) any investment earnings (or
losses) on such contributions, less any distributions from such
Account.
(b) "Employer Matching Contribution Account" - The portion of the
Participant's Total Account consisting of Employer Matching
Contributions made on behalf of the Participant in accordance with
section 4.1, plus (or minus) any investment earnings (or losses) on
such contributions, less any distributions from such Account.
(c) "Rollover Account" - The portion of the Participant's Total Account
consisting of any Rollover Contributions made on behalf of the
Participant in accordance with section 8.14, plus (or minus) any
investment earnings (or losses) on such contributions, less any
distributions from such Account.
1.42 "Trustee" means the Trustee or Trustees appointed by the Sponsoring
Employer to administer the Trust Fund in accordance with Article 11.
1.43 "Trust Fund" means the trust established to hold and invest the assets of
the Plan.
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1.44 "Valuation Date" means at least the last day of every month on which the
New York Stock Exchange is open for trading, and such other date or dates
as the Committee deems appropriate.
1.45 "Year of Eligibility Service" is completed when an Eligible Employee is
credited with a one-year Period of Service.
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<PAGE>
ARTICLE 2 - PARTICIPATION
2.1 PARTICIPATION REQUIREMENTS
(a) Any individual who is an Eligible Employee as of the Effective Date
shall become a Participant on the Effective Date.
(b) Any individual who becomes an Eligible Employee after the Effective
Date shall become a Participant on the first Entry Date coincident
with or next following the date on which he or she shall have
completed a thirty-day period of Service by making elections
pursuant to section 2.2.
2.2 ELECTIONS REQUIRED
An Eligible Employee shall become a Participant by making elections in the
manner prescribed by the Committee. Any elections made pursuant to section
4.1 shall become effective beginning with the first paycheck received by
the Eligible Employee on or after the Entry Date which is 30 or more days
after the date the Eligible Employee files his or her elections in the
form prescribed by the Committee. A Participant's elections made pursuant
to section 3.1 shall remain in effect (subject to the contribution
limitations under section 3.5) while the Participant is an Eligible
Employee or until such time as he or she files a new election with the
Committee in the form prescribed by the Committee.
2.3 PARTICIPATION UPON REEMPLOYMENT
(a) If an Eligible Employee has a Severance from Service Date after he
or she becomes a Participant and he or she is subsequently
reemployed as an Eligible Employee, he or she may resume making
contributions or having contributions made on his or her behalf to
the Plan as of his or her Reemployment Commencement Date, by making
elections pursuant to section 2.2.
(b) If, prior to becoming a Participant, an Eligible Employee has a
Severance from Service Date after he or she has met the
participation requirements of section 2.1 (b), the Eligible Employee
may participate in the Plan on the later of his or her Reemployment
Commencement Date or the Entry Date on which he or she would have
first been eligible to participate in the Plan had the Severance
from Service Date not occurred, by making elections pursuant to
section 2.2.
(c) If an Eligible Employee has a Severance from Service Date before he
or she meets the participation requirements of section 2.1(b), the
Eligible Employee may participate in the Plan on the first Entry
Date following the date on which he or she first meets the
participation requirements of section 2.1(b), provided he or she is
then an Eligible Employee, by making elections pursuant to
section 2.2.
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<PAGE>
2.4 PARTICIPATION
A Participant's participation in the Plan shall continue until the later
of:
(a) The Participant's Severance from Service Date, or
(b) Such time as all nonforfeitable amounts credited to the
Participant's Total Account shall have been distributed in full in
accordance with the terms of the Plan.
2.5 PARTICIPATION OF TRANSFERRED EMPLOYEES
(a) If an Employee transfers to a position in which he or she is an
Eligible Employee from employment with the Employer or an Affiliated
Employer in which he or she was not an Eligible Employee, including
any individuals who are returning from a leave of absence and who
were receiving payments under a workers' compensation plan or a long
term disability plan, the transferred Employee may participate in
the Plan on the later of (1) the date of such transfer or (2) the
first day of the first payroll period on which he or she would have
first become a Participant under section 2.1 had his or her service
before the date of such transfer been service as an Eligible
Employee, by making elections pursuant to section 2.2.
(b) If an Employee transfers to a position with the Employer or an
Affiliated Employer in which he or she is no longer an Eligible
Employee, Salary Deferrals and Employer Matching Contributions shall
cease to be made by or on behalf of the Participant for Periods of
Service rendered on or after the Participant's date of transfer. The
Participant's Total Account will continue to share in the investment
experience of the Trust Fund as long as a balance remains.
If such Employee returns to a position in which he or she is again
an Eligible Employee, he or she may resume making contributions or
having contributions made on his or her behalf under the Plan as of
the date of transfer by making elections pursuant to section 2.2.
(c) If a Participant transfers among Employers participating in the Plan
and remains an Eligible Employee, such Participant's rights under
the Plan shall not be affected, and the Participant's participation
in the Plan shall continue without interruption.
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ARTICLE 3 - SALARY DEFERRALS
3.1 SALARY DEFERRALS
(a) Limits. Subject to sections 3.5, 3.6 and 3.7, an Eligible Employee
------
may elect to have his or her taxable compensation reduced and the
corresponding Salary Deferrals contributed to the Plan on his or her
behalf for any Plan Year in increments of 1% up to a maximum of 10%
of his or her Compensation, but not in excess of $7,500, or, if
greater, the maximum amount in effect under PR-Code Section
1165(e)(7)(A) at any such time. The Committee may limit the maximum
amount of any Participant's Salary Deferrals during any Plan Year in
a nondiscriminatory manner. A Participant's investment election of
his or her Salary Deferrals shall be made in accordance with
section 5.3. The 10%/$7,500 annual limit applies on an individual
basis to all contributions made on behalf of each Participant to all
qualified cash or deferred arrangements (within the meaning of
Section 1165(e)(2) of the PR-Code), including any such contributions
made to other plans. It shall be the responsibility of each
Participant to coordinate his or her salary deferrals as needed to
meet this limit in connection with any other plan or plans. The
Committee will not take account of salary deferrals made to any
other plan and, except as required by law, no deferrals made under
the Plan will be returned because the Participant's deferrals under
another plan caused his or her total salary deferrals for a year to
exceed the 10%/$7,500 annual limit.
(b) Employer Contributions. Salary Deferrals shall be deemed to be
----------------------
employer contributions to the Plan, and a Participant's election to
commence making Salary Deferrals shall constitute an election (for
Puerto Rico income tax purposes) to have his or her taxable
compensation reduced by the amount of all Salary Deferrals.
Aggregate Salary Deferrals with respect to a Plan Year shall be
limited in the manner provided under the PR-Code if they exceed
Profits.
3.2 SELECTION AND CHANGE OF RATE
(a) Selection and Change by Participants. As of an Entry Date, a
------------------------------------
Participant may elect to make Salary Deferrals and designate the
rate(s) of contribution by filing the prescribed form with the
Employer in such manner and at such time prior to the Entry Date as
the Committee shall require. A Participant may reduce or increase
the rate of his or her Salary Deferrals to any other rate(s)
permitted under this Article 3 as of the first day of any payroll
period by filing the prescribed form with the Employer on or before
the due date established by the plan administrator from time to
time. The Committee, in its discretion, may change the due date for
filing the prescribed form, provided that any change in the due date
is communicated to all Participants, is nondiscriminatory in effect,
and is uniformly applied. A Participant may elect to suspend making
any Salary Deferrals to the Plan at any time during the Plan Year,
by filing the prescribed form with the Employer. Such election shall
take effect the first day of the next payroll period after the
Employer receives such form.
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A Participant may elect to recommence Salary Deferrals as of the
first day of any payroll period by filing the prescribed form with
the Employer on or before the due date established by the plan
administrator. All elections, change of elections, suspensions and
resumptions with respect to Salary Deferrals shall be subject to
such administrative rules as shall be established by the Committee.
(b) Change by Committee to Meet Anti-Discrimination Limits, Etc. At any
-----------------------------------------------------------
time in a Plan Year, the Committee (in its sole discretion, in
accordance with section 3.5 to meet anti-discrimination limits, in
accordance with section 3.1(a) to meet the 10%/$7,500 limit, in
accordance with section 4.1(b), or for any other reason) may reduce
the maximum percentage at which a Participant may contribute Salary
Deferrals to the Plan during the remainder of the Plan Year. To the
extent permitted by the PR-Code and the regulations thereunder, the
Committee, in its sole discretion, may (i) reduce the maximum dollar
amount which a Participant may contribute as Salary Deferrals
instead of or in addition to limiting the maximum percentage at
which such contributions may be made or (ii) require that a
Participant discontinue all Salary Deferrals for the remainder of
the Plan Year. Reduction or discontinuance of Salary Deferrals to
meet anti-discrimination limits shall be applied to Highly
Compensated Participants in the manner described in section 3.5 or
in any other manner chosen by the Committee that does not
discriminate in favor of the Highly Compensated Participants. Any
other reduction or discontinuance shall be applied as the Committee
determines, on a basis that does not violate the nondiscrimination
rules of the PR-Code. Upon the close of each Plan Year, or on such
earlier date as the Committee may determine, any reduction or
discontinuance made pursuant to this section 3.2 shall cease to
apply to the Participant until the Committee again determines that a
reduction or discontinuance of Salary Deferrals is appropriate
pursuant to this section.
3.3 MANNER OF PAYMENT
Salary Deferrals shall be made through payroll deductions from the
Participant's Compensation.
3.4 DEPOSIT WITH TRUSTEE
A Participant's Salary Deferrals shall be paid to the Trustee as soon as
reasonably practicable after they are withheld or received.
3.5 ANTI-DISCRIMINATION LIMITS FOR SALARY DEFERRALS
Salary Deferrals under this Plan are intended to be non-discriminatory
under Section 1165(e) of the PR-Code. To assure that discrimination will
not occur, Salary Deferrals shall be limited in accordance with this
section 3.5. This section shall be applied for each Plan Year on the basis
of actual Salary Deferrals and Compensation for that year. Thus, each Plan
Year constitutes the "testing period." The following procedure shall be
followed:
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<PAGE>
(a) The Salary Deferrals of Highly Compensated Participants shall be
subject to the restrictions of this section 3.5.
(b) If the aggregate deferral rate of Highly Compensated Participants
for a testing period would exceed the maximum deferral rate
permissible under subsection (c) of this section 3.5, the Committee
shall reduce the amount deferred (or to be deferred) by Highly
Compensated Participants so as to cause their aggregate deferral
rate not to exceed the maximum rate allowable under subsection (c).
The Committee shall effect such a reduction by prohibiting Salary
Deferrals by Highly Compensated Participants in excess of a
specified maximum percentage of Compensation or in excess of the
maximum dollar amount determined under section 3.2(b), rather than
reducing the Salary Deferrals of all such Participants
proportionately.
(c) The aggregate deferral rate of Highly Compensated Participants shall
not exceed the aggregate deferral rate of all other Participants
during the applicable testing period by more than the allowable
amount set forth in the following table:
<TABLE>
<CAPTION>
Column I Column II
<S> <C>
If the aggregate deferral rate ("ADR") Then the maximum aggregate deferral
for the Non-Highly Compensated rate ("ADR") for Highly Compensated
Participants is: Participants is:
Less than 2% 2.0 x the Column I ADR
2% to 8% The Column I ADR + 2%
More than 8% 1.25 x the Column I ADR
</TABLE>
(d) For purposes of this subsection, the aggregate deferral rate during
a testing period for a group of Participants shall be the percentage
determined by averaging the deferral rates of each member of the
group. A Participant's deferral rate shall be determined by dividing
his or her Compensation for the testing period into the sum of his
or her Salary Deferrals with respect to such period. If a
Participant who is a "Highly Compensated Participant" is a
participant in any other qualified cash or deferred arrangement (as
defined in Section 1165(e)(2) of the PR-Code) maintained by the
Employer or an Affiliated Employer, then the deferral rate
determined for the Participant under all qualified cash or deferred
arrangements shall be aggregated with the deferral rate determined
for the Participant for purposes of subsection (c) above.
(e) In the event that this Plan satisfies the requirements of Section
1165(a)(3) or Section 1165(a)(4) of the PR-Code only if aggregated
with one or more other plans, or if one or more other plans satisfy
the requirements of such sections of the PR-Code only
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<PAGE>
if aggregated with this Plan, then all such plans shall be treated
as a single plan for purposes of the anti-discrimination limits
imposed by this section 3.5.
(f) If the aggregate deferral rate for Highly Compensated Participants
for the testing period would exceed the maximum aggregate deferral
rate permissible under subsection (c) and if the correction
mechanism described in subsection (b) cannot operate to effect
compliance with the anti-discrimination limits for any reason, then
the Committee shall cause a refund to be made to the appropriate
Highly Compensated Participant of amounts previously deferred during
this testing period plus income thereon. The Committee shall do this
by refunding the amount of the excess Salary Deferrals, determined
by reducing Salary Deferral contributions made on behalf of Highly
Compensated Participants in order of the deferral rates beginning
with the highest of such percentages, to the Highly Compensated
Participants. Any distribution of the adjusted excess Salary
Deferrals will be made to the Highly Compensated Participants on the
basis of the respective portion of the adjusted excess Salary
Deferrals attributable to each of such employees and will be
returned to the employees on whose behalf such contributions were
made. The portion of the adjusted excess Salary Deferrals
attributable to each Highly Compensated Participant is equal to:
(1) the total Salary Reductions of the Highly Compensated
Participant for the Plan Year (determined without regard to
the above described reduction), less
(2) the deferral rate of the Highly Compensated Participant for
the Plan Year (as reduced under the above described procedure)
multiplied by his or her Compensation for the Plan Year.
The Committee shall make appropriate arrangements for payroll withholding
(if required) and for reporting of refunded amounts as taxable income of
the affected Participants. The Committee shall take action necessary under
this paragraph as soon as possible after the end of the Plan Year
(preferably within 2 1/2 months after such Plan Year) and in no event
later than the end of the following Plan Year. The determination of the
amount of the income allocable to excess Salary Deferrals to be refunded
to Highly Compensated Participants under this subsection will be made in
accordance to the regulations under Section 1165(e) of the PR-Code.
3.6 SUSPENSION
A Participant's participation in the Plan shall be suspended for any
period with respect to which he or she is not an Eligible Employee. With
respect to any period of suspension, a Participant shall not make Salary
Deferrals but such Participant's Account(s) shall continue to share in the
income, gains and losses of the Trust Fund.
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3.7 TERMINATION
A Participant's participation in the Plan shall terminate as of the
earlier of (i) the date on which such Participant's entire vested and
nonforfeitable interest has been distributed or (ii) the date of such
Participant's death.
3.8 RETURN OF SALARY DEFERRALS
Any other provision of the Plan notwithstanding, each Salary Deferral is
expressly conditioned upon a determination by the Puerto Rico Secretary of
the Treasury or its delegate that the Plan qualifies under Section 1165(a)
and Section 1165(e) of the PR-Code and upon the deductibility of such
contribution under Section 1023(n) of the PR-Code. Distributions may be
withheld until a favorable determination letter is issued recognizing the
Plan's qualified status. If, however, the Plan fails to qualify, then each
Salary Deferral made with respect to the period of disqualification shall
be returned to the Employer which made it within 12 months after the date
of the denial of qualification. If the deduction of all or part of any
Salary Deferral is disallowed, then the amount disallowed shall be
returned to the Employer which made it within 12 months after the date of
the disallowance. If all or part of a Salary Deferral is made as a result
of a good faith mistake of fact, such contribution may be repaid to the
Employer which made it within 12 months after it was made. Salary
Deferrals refunded for the Plan's failure to qualify, for non-
deductibility or for a mistake of fact shall be paid as additional
compensation to the Participants who made such Salary Deferrals by the
Employer to which the Salary Deferral was returned. The amounts which may
be returned to the Employer above shall be the excess of the amounts
contributed over the amounts that would have been contributed had there
not been the disallowance of the deduction or a mistake of fact, as
applicable. Earnings on the returned Salary Deferral contributions shall
also be returned to the Employer and paid as compensation to the
Participants who made such Salary Deferrals.
3.9 NO REVERSION OF EMPLOYER CONTRIBUTIONS
The assets of the Plan shall never inure to the benefit of the Employer,
and shall be held for the exclusive purposes of providing benefits to
Participants and/or their Beneficiaries, and for defraying the expenses of
administering the Plan.
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ARTICLE 4 - EMPLOYER CONTRIBUTIONS
4.1 EMPLOYER CONTRIBUTIONS
Subject to the conditions and limitations of this Article 4, for each Plan
Year each Employer shall contribute to this Trust on behalf of each
Participant who is employed by it during that Plan Year the following
amounts:
(a) Salary Deferrals. An amount equal to the Salary Deferrals made in
----------------
accordance with section 3.1 for such Plan Year by such Participant;
and
(b) Employer Matching Contributions. An Employer Matching Contribution
-------------------------------
in an amount equal to 50% (fifty percent) of the aggregate amount of
each such Participant's Salary Deferrals not exceeding 6% of such
Participant's Compensation for such Plan Year; provided, however,
Participants must have completed at least one (1) Year of Service in
order to be entitled to an Employer Matching Contribution.
4.2 PAYMENT OF EMPLOYER MATCHING CONTRIBUTIONS
Employer Matching Contributions for a Plan Year shall be contributed to
the Trust Fund as soon as practicable, but in no event later than the time
prescribed by law (including extensions thereof) for filing the Employer's
income tax return for the Fiscal Year of the Employer which includes the
last day of the Plan Year for which such contributions are made.
4.3 EMPLOYER MATCHING CONTRIBUTIONS NOT CONDITIONED ON PROFITS
Employer Matching Contributions made for a Plan Year shall be made without
regard to the Employer's current or accumulated earnings and profits for
the taxable year or years ending with or within such Plan Year.
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ARTICLE 5 - INVESTMENT PROVISIONS AND PARTICIPANT ACCOUNTS
5.1 INVESTMENT FUNDS
The Trustee shall establish one or more investment funds as the Sponsoring
Employer may from time to time direct. The Sponsoring Employer may direct
that each investment fund be invested:
(a) At the discretion of the Trustee in accordance with such investment
guidelines and objectives as may be established by the Sponsoring
Employer for such investment fund; or
(b) At the discretion of a duly appointed Investment Manager in
accordance with such investment guidelines and objectives as may be
established by the Sponsoring Employer; or
(c) In such investments as the Sponsoring Employer may specify for such
investment fund.
The Sponsoring Employer may from time to time change its direction with
respect to any investment fund and may, at any time, eliminate any
investment fund or establish additional funds. Whenever an investment fund
is limited, the Trustee shall promptly liquidate the assets of such
investment fund and reinvest the proceeds thereof in accordance with the
directions of the Sponsoring Employer.
The Trustee may maintain from time to time reasonable amounts in cash or
cash equivalents in any fund as it shall deem necessary to carry out the
purposes of the Plan. All expenses properly attributable to an investment
fund, including but not limited to brokerage fees and stock transfer
taxes, shall be paid from such investment fund, unless paid by the
Employer.
All dividends, interest and other income of each investment fund, as well
as stock splits, stock dividends, and the like, shall be reinvested in
that investment fund.
5.2 INVESTMENTS IN COMPANY SHARES
Participants may elect to have a portion of their Total Account invested
by the Trustee in the Waters Stock Fund. For this purpose it is intended
that the Plan be considered an "eligible individual account plan" which
explicitly provides for the acquisition and holding of "qualifying
employer securities" (as such term is defined in Sections 407(d)(3) and
407(d)(5) of ERISA) and that the Trustee may invest up to 100% of the
Trust Fund held by it in Company Shares, to the extent elected by
Participants. Company Shares may be acquired by the Trustee through
purchases on the open market, private purchases, purchases from the
employer (including purchases from the parent company of the Sponsoring
Employer of treasury shares or authorized but unissued shares), or
otherwise. Except with respect to Company Shares purchased on the open
market, no purchase of Company Shares shall be
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<PAGE>
made at a price in excess of the closing price on the New York Stock
Exchange for Company Shares on the business day on which Company Shares
were last traded next preceding the date of purchase. Pending investment
in Company Shares, Participant Total Accounts invested in the Waters Stock
Fund pursuant to Participants' investment elections may be invested in
cash.
5.3 INVESTMENT ELECTION
(a) At the time an Eligible Employee becomes a Participant in the Plan
and makes an election in accordance with section 3.1, the Eligible
Employee must choose the percentage in which contributions made by
or on behalf of such Participants are to be invested in each
investment fund. Such percentage may be 0%, or in increments of 1%,
up to a total of 100%. A Participant's investment elections must
total 100%.
(b) During the absence of a valid election by a Participant, the
contributions made by or on behalf of such Participant, and loan
repayments, if any, shall be credited to the fund with the least
investment risk as determined by the Committee in its sole
discretion.
5.4 CHANGE IN INVESTMENT ELECTION
A Participant may elect, subsequent to his or her initial participation in
the Plan, to have future contributions invested in a proportion different
from that previously elected, provided that at least 10 days in advance of
such date the Participant files with the Committee a new election on the
appropriate form, and further provided that any such election shall not
apply to the Loan Fund. Such new election must be made in accordance with
the percentage specifications provided in section 5.3. A Participant may
elect, effective on any business day of the year, or at such other time as
specified by the Committee, upon telephonic notification to the
recordkeeper appointed by the Employer, or such other form of notification
as specified by the Committee, to have his or her future contributions
invested in a proportion different from that previously selected. Such new
election shall be made in accordance with the percentage specifications
provided in section 5.3. For purposes of the Plan, a "business day" shall
be any day the New York Stock Exchange is open for trading.
5.5 TRANSFER AMONG FUNDS
A Participant may elect, effective as of the first day of any calendar
quarter, to reallocate, in 1% increments, his or her Total Account among
the investment funds, provided that at least 10 days in advance of such
date the Participant files with the Committee a new election on the
appropriate form, and further provided that any such election shall not
apply to the Loan Fund. A Participant may elect upon telephonic
notification to the recordkeeper appointed by the Employer, or such other
form of notification as specified by the Committee, no more frequently
than once per month, to reallocate, in 1% increments, his or her Total
Account among the investment funds.
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The Committee may from time to time:
(a) Limit or restrict a Participant's ability to change the allocation
of his or her Total Account among the investment funds and/or
withdraw balances from the various investment funds in order to
conform to the practices, provisions, or restrictions of any
investment media held in any such investment fund; and
(b) Adopt procedures relating to the determination and allocation of the
investment earnings among the Participants' Total Accounts, in order
to facilitate the administration of the Plan on an equitable and
practicable basis.
5.6 RESPONSIBILITY OF PARTICIPANT IN SELECTING INVESTMENT FUNDS
The selection of an investment fund or funds is the sole responsibility of
each Participant. The Committee, the Trustee, the Investment Manager, the
Employer, or any other fiduciary to the Plan may not advise a Participant
as to the election of any investment fund or the manner in which
contributions shall be invested. The fact that a security is available to
Participants for investment under the Plan shall not be construed as a
recommendation as to the purchase of that security, nor shall the
designation of an investment fund impose any liability on the Committee,
the Trustee, the Investment Manager, or the Employer.
5.7 ESTABLISHMENT OF PARTICIPANT ACCOUNTS
(a) The Employer shall establish and maintain for each Participant a
Total Account, consisting of the following accounts, and any such
other accounts as may be deemed necessary by the Committee:
(i) Salary Deferral Account;
(ii) Employer Matching Contribution Account; and
(iii) Rollover Account.
(b) Within each of the accounts described in paragraph (a) above,
separate records shall be kept of the portion of the account
credited to each investment fund and the Loan Fund.
5.8 VALUATION OF PARTICIPANTS' ACCOUNTS
(a) The assets of the Trust Fund shall be valued on each business day of
the year. Each Participant's balance in his or her various accounts
and investment funds shall then be adjusted to reflect the
Participant's proportionate share of the total activity in each
account and investment fund, including, but not necessarily limited
to, investment earnings, losses, expenses, contributions, dividends,
distributions, investment fund transfers, and forfeitures.
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(b) As of the first day of each payroll period, each Participant's
Salary Deferrals, loan repayments and Employer Matching
Contributions made since the first day of the previous payroll
period, shall be credited to the appropriate investment funds in
accordance with the Participant's mos recent investment elections
under section 5.3.
(c) Distributions and withdrawals from the Participant's Total Account
shall be debited at a frequency to be determined by the Committee.
5.9 CORRECTION OF ERROR
The Committee may adjust the Total Accounts of any or all Participants or
Beneficiaries in order to correct errors or rectify omissions, including,
without limitation, any allocations to a Participant's Total Account made
in excess of the limits specified in section 3.5, in such manner as it
believes will best result in the equitable and nondiscriminatory
administration of the Plan.
5.10 ALLOCATION SHALL NOT VEST TITLE
The fact that an allocation is made and amounts are credited to the Total
Account of a Participant shall not vest in such Participant any right,
title, or interest in and to any assets except at the time or times and
upon the terms and conditions expressly set forth in this Plan, nor shall
the Trustee be required to segregate physically the assets of the Trust
Fund by reason thereof.
5.11 ALLOCATION OF COMPANY SHARES
As of each valuation date, all Company Shares then held under the Waters
Stock Fund shall be considered as purchased for the accounts of
Participants who have elected to invest in the Waters Stock Fund to the
extent their respective accounts can be charged therefor on the basis of
the established unit value of the Waters Stock Fund as determined by the
investment manager of the Waters Stock Fund. The interest of a Participant
who has elected to invest in the Waters Stock Fund at any time shall be an
amount equal to the then value of a unit in the Waters Stock Fund
multiplied by the number of units then credited to such Participant.
5.12 ADDITIONAL ACCOUNTING RULES
The following additional accounting rule applies to Participants who have
elected to invest in the Waters Stock Fund and have had Company Shares
credited to their accounts: if rights or warrants are issued with respect
to any Company Shares held by the Trustee, such rights or warrants shall
be sold by the Trustee and the proceeds thereof shall be appropriately
reflected in Participants' Total Accounts in accordance with rules
established by the Committee and uniformly applied.
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5.13 VOTING OF COMPANY SHARES
The Trustee shall furnish to each Participant who has Company Shares
credited to his Total Account notice of the date and purpose of each
meeting of the stockholders of the Sponsoring Employer at which such
Company Shares are entitled to be voted. The Trustee shall request from
each such Participant instructions as to the voting at that meeting of
Company Shares credited to his Total Account. If the Participant furnishes
such instructions to the Trustee within the time specified in the
notification given to him, the Trustee shall vote such Company Shares in
accordance with the Participant's instructions, except as may otherwise be
required by ERISA. Such instructions shall be held in confidence and shall
not be divulged or released to any person including any officer or any
other employee of the company. All Company Shares credited to Total
Accounts as to which the Trustee does not receive voting instructions as
specified above shall be voted by the Trustee proportionately in the same
manner as the Trustee votes Company Shares to which the Trustee has
received voting instructions as specified above, except as may otherwise
be required by ERISA. Similarly, the Trustee shall furnish to each
Participant who has Company Shares credited to his Total Account notice of
any tender offer for, or a request or invitation for tenders of, Company
Shares made to the Trustee. The Trustee shall request from each such
Participant instructions as to the tendering of Company Shares credited to
his Total Account and for this purpose the Trustee shall provide
Participants with a reasonable period of time in which they may consider
any such tender offer for or request or invitation for tenders of, Company
Shares made to the Trustee. Such instructions shall be held in confidence
and shall not be divulged or released to any person including any officer
or any other employee of the Sponsoring Employer. The Trustee shall tender
the Company Shares as to which the Trustee has received instructions to
tender from Participants within the time specified by the Trustee, except
as may otherwise be required by ERISA. Company Shares credited to accounts
as to which the Trustee has not received instructions from Participants
shall not be tendered, unless otherwise required by ERISA. In carrying out
the Trustee's responsibilities hereunder the Trustee may rely on
information furnished by the Committee, including the names and current
addresses of Participants, the number of Company Shares credited to their
Total Accounts, and the number of shares held by the Trustee that have not
been allocated.
5.14 PAYMENT OF COMPANY SHARES
Amounts payable from the Waters Stock Fund may be paid in cash or Company
Shares, at the Participant's discretion, provided further that any
fractional amount of Company Shares allocated to a Participant's Total
Account shall be paid in cash. Payments from the Waters Stock Fund that
are made in cash instead of Company Shares shall have a value equal to the
proceeds obtained by the Trustee for the Company Shares sold to make such
distribution.
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5.15 RULE 16b-3
With respect to each person subject to Section 16 of the Securities
Exchange Act of 1934 (the "Exchange Act"), transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of this
Plan or action by the Committee fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Committee.
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ARTICLE 6 - VESTING
6.1 VESTING
A Participant's Total Account shall be fully vested at all times.
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ARTICLE 7 - ELIGIBILITY FOR RETIREMENT BENEFITS
7.1 NORMAL RETIREMENT
A Participant who terminates employment with the Employer or an Affiliated
Employer on his or her Normal Retirement Date shall be entitled to retire
and receive the entire value of such Total Account in accordance with the
provisions of Article 9.
7.2 LATE RETIREMENT
A Participant may continue in employment with the Employer or an Affiliated
Employer after the Participant's Normal Retirement Date, and upon the
Participant's actual date of retirement he or she shall be entitled to
receive the entire value of his or her Total Account in accordance with the
provisions of Article 9.
7.3 DISABILITY RETIREMENT
A Participant who retires due to a Disability shall be entitled to receive
the entire value of his or her Total Account in accordance with the
provisions of Article 9.
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ARTICLE 8 - WITHDRAWALS AND LOANS DURING EMPLOYMENT
8.1 WITHDRAWALS OF SALARY DEFERRALS
Salary Deferrals are not distributable to the Participant or to his
Beneficiary earlier than:
(a) The Participant's separation from service, death or Disability;
(b) Termination of the Plan without the establishment of another defined
contribution plan by the Employer;
(c) The date of the disposition by the Employer to an entity that is not an
Affiliated Employer of substantially all of the assets used in its
trade or business with respect to a Participant who continues
employment with the entity acquiring such assets but only if the
transferor Employer continues to maintain the Plan; or
(d) The date of the disposition to an entity that is not an Affiliated
Employer of the Employer's interest in a subsidiary corporation that
employs the Participant when the Participant continues employment with
such subsidiary and the transferor Employer continues to maintain the
Plan after the disposition.
(e) Notwithstanding anything in subparagraphs (a) through (d) of this
section 6.6 to the contrary, a Participant may, on or after attaining
age 59 1/2 or after suffering a financial hardship, withdraw any Salary
Deferral then credited to his or her Salary Deferral Account; provided,
however, that earnings on such Salary Deferrals can be withdrawn only
after age attaining 59 1/2 and provided, further, that hardship
withdrawals must be approved by the Committee and will only be granted
to the extent that the amount requested is necessary to satisfy
immediate and heavy financial needs of the Participant arising solely
from one or more of the following:
(i) The purchase (excluding mortgage payments) of a principal
residence for the Participant;
(ii) The payment of unreimbursed medical or hospital expenses
described in Section 1023(aa)(2)(P) of the PR-Code incurred by
the Participant, the Participant's spouse, the Participant's
dependents, or by any other family member the Committee by
unanimous consent may approve;
(iii) The payment of tuition for the next semester or quarter of post-
secondary education of the Participant, spouse, children or
dependents;
(iv) The need to prevent eviction of the Participant from his or her
principal residence or foreclosure on the mortgage of the
Participant's principal residence;
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(v) The payment of the funeral expenses of a spouse, dependent, in-
law, or any other family member the Committee by unanimous
consent may approve; or
(vi) Such other immediate and heavy financial needs as determined by
the Secretary of the Treasury of Puerto Rico and announced by
publication of revenue rulings, notices and other documents of
general applicability and adopted by the Committee.
8.2 HARDSHIP WITHDRAWALS
(a) A Participant may request a hardship withdrawal, in the form prescribed
by the Committee, in an amount which does not exceed the amount
required to meet the immediate and heavy financial need created by the
hardship (including any amounts necessary to pay any federal, state, or
local income taxes or penalties reasonably anticipated to result from
the distribution), and provided the Participant has obtained all
distributions (other than hardship distributions) and all nontaxable
loans available under all qualified plans maintained by the Employer
and all Affiliated Employers. The amount available for withdrawal shall
be determined as of the Valuation Date immediately preceding the date
of withdrawal. Each hardship withdrawal shall be subject to the
approval of the Committee.
A withdrawal will be deemed to be made on account of an immediate and
heavy financial need of the Participant if the withdrawal is for:
(i) expenses for medical care described in Section 213(d) of the
Code (and not covered by insurance) previously incurred by the
Participant, the Participant's Spouse, or any dependent of the
Participant (as defined in Section 152 of the Code), or
necessary for these persons to obtain medical care described in
Section 213(d) of the Code;
(ii) costs directly related to the purchase (excluding mortgage
payments) of a principal residence of the Participant;
(iii) payments necessary to prevent the eviction of the Participant
from a principal residence or foreclosure on the mortgage of the
Participant's principal residence; or
(iv) payment for tuition and related educational fees for the next
twelve months of post-secondary education for the Participant,
or the Participant's Spouse, children or dependents (as defined
in Section 152 of the Code).
(b) In the event a hardship withdrawal is made from the Participant's
Salary Deferral Account, no Salary Deferrals or Employer Matching
Contributions shall be made on the Participant's behalf for a period of
twelve consecutive calendar months,
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commencing with the Valuation Date next following the date of the
hardship withdrawal.
(c) Hardship withdrawals shall be withdrawn from the Participant's Total
Account in the following order until the full amount of the withdrawal
has been provided:
(i) from the Participant's Rollover Account;
(ii) from the Participant's Salary Deferral Account, exclusive of
earnings allocable thereto after 1988.
If the amount of the withdrawal is such that only a portion of one of
the above accounts is to be withdrawn, and if the account is invested
in more than one investment fund, then the percentage of each
investment fund to be withdrawn shall, to the extent practicable, be
equal to the ratio of the amount to be withdrawn from the account to
the total value of the account.
8.3 RESTORATION OF WITHDRAWALS
A Participant shall not be permitted to restore to the Plan any amounts
withdrawn under the provision of sections 8.1 or 8.2.
8.4 LOANS
(a) Any Participant or Beneficiary who is a party in interest (as defined
in Section 3(14) of ERISA) may request a loan in an amount which does
not exceed the lesser of (i), (ii) or (iii) below:
(i) $50,000 reduced by the individual's highest outstanding loan
balance from this Plan and all other qualified plans of the
Employer and all Affiliated Employers during the 12 month period
ending on the day before the date the new loan is made.
(ii) 50% of the individual's vested interest in the Trust Fund,
reduced by the outstanding balance of all previous loans made to
the individual from this Plan.
(iii) The sum of the account balances in the individual's Salary
Deferral Account and Rollover Account.
Loans shall be made as of the Valuation Date following the date the
loan is approved by the Committee.
(b) A loan may either be a general purpose loan or a housing loan. A
housing loan must be used to purchase or build a primary residence.
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(c) Loans shall be borrowed from the individual's Total Account in the
following order until the full amount of the loan has been provided:
(i) from his or her Salary Deferral Account;
(ii) from his or her Rollover Account; and
(iii) from his or her Employer Matching Contribution Account.
(d) A loan request shall be approved by the Committee if the Committee
determines that the loan will not constitute a taxable distribution
from the Plan, the "loan is adequately secured, and the loan applicant
has agreed to the loan's repayment conditions. A loan shall not be
granted where the Committee determines that the requested loan, when
considered with the applicant's other financial commitments, including
an existing Plan loan, may result in the applicant's inability to repay
the requested loan in accordance with the loan's repayment conditions.
(e) A Participant may request a loan in the form prescribed by the
Committee. If a Participant requests a housing loan, a purchase and
sale agreement or a construction contract and any other documentation
the Committee may request must be submitted to the Committee. Decisions
by the Committee regarding loans shall be final and shall be
communicated to the applicant approximately 30 days from the date the
loan application is received by the Committee.
8.5 LOAN CONDITIONS
A loan shall be subject to the following conditions:
(a) There shall be no more than two loans outstanding.
(b) The minimum loan shall be $1,000.
(c) The loan shall be based upon the vested balance in the applicant's
Total Account as of the Valuation Date preceding the date the loan is
made.
(d) Each loan shall bear a reasonable rate of interest established in
accordance with the specific written procedures adopted from time to
time by the Committee. Such rate of interest shall provide the Plan
with a return commensurate with the prevailing interest rate charged on
similar loans by institutions in the business of lending money. The
interest rate established for Plan loans shall be reviewed by the
Committee on a quarterly basis and may be adjusted by the Committee to
assure a reasonable rate of return and compliance with Department of
Labor Regulation 2550.408b-l(e).
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(e) Each loan shall be secured by collateral consisting of the applicant's
interest in the Trust Fund, supported by a promissory note for the
amount of the loan, made payable to the Trustee.
(f) Each loan shall be assessed administrative charges and processing fees
established by the Committee. All administrative charges and processing
fees shall be paid by the Participant.
(g) In applying for a general purpose loan, the applicant shall agree to
repay the loan plus interest over a period of from one to five years,
as elected by the applicant, unless the loan is to be used for the
purchase of or construction of the applicant's principal place of
residence, in which case the repayment period may be from one year to
fifteen years, as elected by the applicant. Effective January 1, 1995,
the repayment period may be from one year to twenty years.
The Committee may, however, on the basis of uniform and
nondiscriminatory standards, establish a maximum repayment period of
less than five years (or less than twenty years in the case of loans
used for the purchase or construction of the applicant's principal
place of residence).
(h) Repayment by Participants actively employed by the Employer during the
repayment period shall be in equal instruments by payroll deduction and
shall commence with the first paycheck received by the Participant
following receipt of the loan.
If a Participant is on an unpaid Leave of Absence and he or she has not
terminated employment, repayments may be made by check. If such
repayments are not made, interest will be added to the outstanding
balance of the loan, and the repayment amount shall be recalculated (at
the original interest rate) when the Participant resumes active
employment in order to repay such outstanding balance within the loan
repayment period.
(i) Full repayment of the entire outstanding balance of a loan may be made
by a cashier's check as of any Valuation Date following the date on
which repayment is scheduled to commence. Partial repayments shall not
be permitted.
(j) If a Participant (other than a Participant on an approved Leave of
Absence) fails to make any loan repayments during a calendar quarter,
the Committee shall notify the Participant in writing before the end of
the next calendar quarter that the loan will be in default if loan
repayments are not resumed before the end of such calendar quarter (or
within 10 days following receipt of the notice, if later).
If a loan is in default, the Committee shall authorize the Trustee to
report a taxable distribution occurring in the year of the default
equal to the remaining balance of the loan, including interest thereon.
The loan shall remain due and payable, and interest accruing on the
loan balance shall be reported as taxable income at the end of each
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taxable year of the Participant to the extent the loan remains in
default for that taxable year. If the loan remains in default on the
Participant's Benefit Commencement Date, the Committee shall authorize
the Trustee to cancel and distribute the promissory note in accordance
with the provisions of section 9.9.
A loan in default shall be considered a deemed distribution for federal
income tax purposes and shall not be treated as an eligible rollover
distribution (as described in section 9.12).
The Committee may, on the basis of uniform and nondiscriminatory
standards, establish such rules and procedures as it deems necessary or
proper to remedy loans in default.
8.6 LOAN FUND
(a) The portion of an individual's Total Account constituting a loan shall
be segregated into a separate fund, which shall be known as the
individual's Loan Fund. The Loan Fund as of any Valuation Date shall
equal the sum of the following components:
(i) the principal amount due his or her Salary Deferral Account;
(ii) the principal amount due his or her Rollover Account; and
(iii) the principal amount due his or her Employer Matching
Contribution Account.
Each of the above amounts shall be increased with its proportionate
share of interest charged to the Loan Fund.
(b) As of each Valuation Date, the balance of the Loan Fund shall be
reduced by the payments made since the previous Valuation Date. Loan
repayments shall be applied in the reverse order designated in
paragraph (a) above.
(c) Loan repayments shall be allocated among the investment funds in the
same percentage as the individual's most recent investment election in
effect under the Plan.
8.7 DISCRETION
In approving or disapproving a withdrawal or loan, the Committee shall use
objective written criteria and shall exercise only such discretion as is
necessary to determine if such criteria have been met.
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8.8 ROLLOVERS
With the consent of the Committee, the Trustee may receive and invest,
pursuant to an Employee's instructions, any amount which (i) is transferred
directly from another plan that qualifies under PR-Code Section 1165(a) and
which is not subject to the minimum funding standards of ERISA Section 302
or (ii) is transferred by the Employee within sixty days after his receipt
of such amount from another plan that qualifies under PR-Code Section
1165(a). Such amounts shall be held for the benefit of the Employee in the
Rollover Account established for his benefit. An Employee who makes such a
rollover contribution to the Plan, but who is not otherwise eligible to
participate under Article 3 hereinabove, or who does not otherwise elect to
participate actively herein by making a deferral election under section
4.1, shall be considered a Participant in the Plan solely with respect to
the investment and handling of his Rollover Account. The Committee and the
Trustee may request such information from the Employee as they deem
necessary to determine that a proper rollover contribution is being made.
Amounts in an Employee's Rollover Account shall be invested as designated
by the Employee in accordance with section 5.5. The Amounts in the Rollover
Account shall be distributed at the same time and in the same manner as
amounts in the Employee's other Accounts, if any.
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ARTICLE 9 - DISTRIBUTIONS
9.1 DISTRIBUTION AMOUNT
All payments made pursuant to this Article 9 shall be based on the
undistributed vested balance in the Participant's Total Account as of the
Valuation Date immediately preceding the date of payment, plus the vested
portion of the Participant's Employer Matching Contribution, if any, due
under Article 4 on or after such Valuation Date.
9.2 DISTRIBUTION ON RETIREMENT, DISABILITY, OR OTHER TERMINATION OF SERVICE
(a) After retirement at his or her Retirement Date or date of Disability,
or after his or her termination of service for any other reason, a
Participant's entire undistributed vested interest in his or her Total
Account (reduced by any security interest held by the Plan by reason of
a loan outstanding to the Participant) shall be available to be
distributed to him or her in a single lump sum cash payment.
(b) A Participant who ceases to be an Employee shall receive payment of the
nonforfeitable portion of the undistributed balance in his or her Total
Account as of one of the following dates:
(i) If the value of the Participant's nonforfeitable interest in the
Trust Fund at his or her Benefit Commencement Date exceeds
$3,500:
(A) The Valuation Date coincident with or next following the
later of the Participant's (1) Severance from Service
Date or (2) Normal Retirement Date; or
(B) At the written election of the Participant, the Valuation
Date coincident with or next following his or her
Severance from Service Date, but not later than the
Valuation Date coincident with or next following his or
her Normal Retirement Date.
Distributions shall be made as soon as practicable after the applicable
Valuation Date provided the Participant has filed a proper distribution
election form with the Committee and provided the form is received at
least 10 days prior to the applicable Valuation Date. Unless the
Participant elects to defer receipt of his or her benefits,
distribution shall be made no later than 60 days after the close of the
Plan Year in which occurs the latest of the Participant's (A) Normal
Retirement Date, (B) 10th anniversary of Plan participation, or (C)
separation from service with the Employer and all Affiliated Employers.
The failure of a Participant to make proper application for benefits by
a date specified in paragraph (b)(i)(B) above shall be deemed to be an
election by the Participant to defer the payment of any benefit to a
date described in the previous sentence.
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(ii) If the value of the Participant's nonforfeitable interest in the
Trust Fund at his or her Benefit Commencement Date does not
exceed $3,500, the Valuation Date following the date he or she
ceases to be an Employee.
(c) Notwithstanding the foregoing, distribution of the single lump sum
benefit from the Plan shall be made no later than April 1 of the
calendar year following the calendar year in which the Participant
attains age 70 1/2.
9.3 DISTRIBUTION ON DEATH
Upon the death of any Participant, whether serving as an active Employee or
having terminated service for any reason whatsoever, and prior to
commencement of, or complete distribution of, the Participant's Total
Account, the Participant's nonforfeitable interest in the Trust Fund shall
be distributed to the Participant's designated Beneficiary in accordance
with the following rules:
(a) If the Participant has a Spouse at his or her date of death, the
Participant's nonforfeitable interest in the Trust Fund shall be paid
to his or her Spouse as designated Beneficiary. The Participant's
nonforfeitable interest in the Trust Fund may be paid to a designated
Beneficiary other than the Participant's Spouse while the Spouse is
living only with the written consent of the Participant's Spouse. A
spousal consent under this section 9.3 must:
(i) be in writing on a form provided by the Committee;
(ii) specify the Beneficiary;
(iii) acknowledge the effect of such consent; and
(iv) be witnessed by a notary public or Plan representative.
Any such consent will be valid only with respect to the Spouse who
signs the consent. A spousal consent is not required, however, if the
Participant establishes to the satisfaction of the Committee that there
is no Spouse; that the Spouse cannot be located; that the Participant
is legally separated or has been abandoned by the Spouse (within the
meaning of local law) and evidenced by a court order; or that spousal
consent is not required under other applicable regulations.
If the Participant does not have a Spouse at his or her date of death,
the Participant's nonforfeitable interest in the Trust Fund shall be
paid to the designated Beneficiary elected by the Participant.
If a Participant's designated Beneficiary shall have predeceased the
Participant, or if a Beneficiary designation shall have lapsed or
failed for any reason, payment will be made to the Beneficiary
designated under section 9.6.
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(b) If the Participant dies before commencement of his or her
nonforfeitable interest in his or her Total Account, such interest
(reduced by any security interest held by the Plan by reason of a loan
outstanding to the Participant) shall be distributed to the
Participant's designated Beneficiary within 90 days after the date the
Participant's death is reported to the Committee, or within a
reasonable period of time thereafter, and provided the designated
Beneficiary has filed a proper distribution election form with the
Committee.
Distribution shall be made in a single lump sum cash payment.
Distribution of the Participant's entire nonforfeitable interest in his
or her Total Account shall be completed by December 31 of the calendar
year containing the fifth anniversary of the Participant's death,
except to the extent an election is made to receive distributions in
accordance with (i) below:
(i) If distribution is to be made to the Participant's
surviving Spouse, the Spouse may elect, on the
appropriate form provided by the Committee, to defer
distribution until December 31 of the calendar year in
which the deceased Participant would have attained age
70 1/2. Such election must be made no later than December
31 of the calendar year immediately following the
calendar year in which the Participant died.
If the Spouse dies before any distribution is made, the provisions of
this paragraph, with the exception of paragraph (c)(i) above, shall be
applied as though the Spouse were the Participant.
(c) If the amount of distribution available under this section cannot be
determined by the date distribution is required to begin, payment will
be made no later than 60 days after the date the amount of distribution
can be determined.
(d) If the benefit payable to a designated Beneficiary not exceed $3,500,
distribution shall be made to the designated Beneficiary in a single
lump sum cash payment as soon as practicable after the Valuation Date
next following the date the Participant's death is reported to the
Committee.
9.4 DISTRIBUTION TO ALTERNATE PAYEES
The Committee may authorize the Trustee to make a lump sum distribution to
an Alternate Payee pursuant to a Qualified Domestic Relations Order as soon
as administratively practicable after the Valuation Date next following the
date the Committee determines that the order is a Qualified Domestic
Relations Order, subject to any deferred distribution date specified in the
Qualified Domestic Relations Order.
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9.5 INVESTMENT OF DEFERRED DISTRIBUTIONS
Any amounts deferred in accordance with this Article 9 shall be held in the
Participant's Total Account, shall continue to be subject to the transfer
provisions of section 5.4, and shall continue to share in the investment
experience of the Trust Fund as long as a balance remains.
9.6 DESIGNATION OF BENEFICIARY
(a) Each Participant may designate, on a form provided by the Committee, a
Beneficiary or Beneficiaries to receive any benefits distributable
hereunder after the death of the Participant. Such designation of a
Beneficiary or Beneficiaries shall not be effective for any purpose
unless and until it has been filed by the Participant with the
Committee, and provided that any such designation shall take effect
prospectively only and without prejudice to any payor or payee on
account of any payments made before receipt of such designation by the
Committee.
Notwithstanding the above, the following provisions shall apply:
(i) A Participant's Beneficiary shall be his or her surviving
Spouse, if the Participant has a surviving Spouse, unless the
Participant has designated another Beneficiary pursuant to the
spousal consent requirements of section 9.3 (a).
(ii) A Participant may change his or her designated Beneficiary or
Beneficiaries any number of times, but any such designation
which has the effect of naming a person other than the
Participant's surviving Spouse, if any, as sole Beneficiary is
subject to the spousal consent requirements of section 9.3(a).
(b) In the absence of a Beneficiary designation by the deceased
Participant, or if a designation of Beneficiary lapses or fails for any
reason, distribution of the deceased Participant's nonforfeitable
interest in the Trust Fund shall be distributed to the surviving Spouse
of the Participant or, if there be none surviving, to the Participant's
estate.
(c) An Alternate Payee may designate a Beneficiary or Beneficiaries to
receive any benefits from the Plan after the death of the Alternate
Payee, if no contrary designation is made under the Qualified Domestic
Relations Order. If an Alternate Payee who is eligible to designate a
Beneficiary does so, and if such designation lapses or fails for any
reason, distribution of the deceased Alternate Payee's nonforfeitable
interest in the Trust Fund shall be distributed to the Alternate
Payee's estate.
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9.7 PROOF OF DEATH
The Committee may, as a condition precedent to making payment to any
Beneficiary, require that a death certificate, burial certificate, or other
evidence of death acceptable to it be furnished.
9.8 LOAN AS A DISTRIBUTION
At the time a Participant or Beneficiary becomes eligible to receive a
distribution in accordance with this Article 9, the individual shall be
given the opportunity to repay his or her outstanding loan balance, if any.
Repayment must be made prior to the date of distribution.
If the individual fails to repay fully any outstanding loan balance at the
time a lump sum distribution is made, the individual's loan shall be deemed
canceled and the remaining outstanding loan balance shall be treated as
part of the individual's lump sum distribution.
9.9 BENEFITS PAYABLE ONLY FROM TRUST FUND
All benefits payable under this Plan shall be paid or provided for solely
from the Trust Fund, and neither the Employer nor its shareholders,
directors, employees, or any member of the Committee shall have any
liability or responsibility therefor. Except as otherwise provided by law,
the Employer does not assume any obligations under this Plan except those
specifically stated in the Plan.
9.10 DISTRIBUTIONS PURSUANT TO THE PR-CODE AND ERISA
All distributions under the Plan shall be made in accordance with the PR-
Code and ERISA Section 206 and the regulations thereunder. Provisions of
the Plan regarding payment of distributions shall be interpreted and
applied in accordance with the PR-Code and ERISA Section 206 and the
regulations thereunder.
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ARTICLE 10 - ADMINISTRATION OF THE PLAN
10.1 THE COMMITTEE
The Plan shall be administered by a Committee whose members shall be
appointed by the Board of the Sponsoring Employer. Any person, including,
but not limited to, the directors, officers, and Employees of the Employer,
shall be eligible to serve as a Committee member, provided that no
Participant shall participate in any determination by the Committee
specifically relating to the disposition of his or her Total Account. A
Committee member may resign by delivering his or her written resignation to
the Sponsoring Employer, or may be removed by the Sponsoring Employer by
delivery to such member of written notice of removal, to take effect at a
date specified therein, or upon delivery of such written notice to the
Committee if no date is specified.
10.2 ORGANIZATION OF THE COMMITTEE
The Committee shall have a chairman appointed by the Board of the
Sponsoring Employer and a secretary appointed by the Committee. Actions of
the Committee shall be by a majority vote. The actions of such majority,
expressed either by a vote at a meeting or in writing without a meeting,
shall constitute the actions of the Committee. A certificate of the
secretary of the Committee setting forth the names of the members of the
Committee, or actions taken by the Committee shall be sufficient evidence
at all times as to the persons constituting the Committee, or such actions
taken.
10.3 POWERS, DUTIES, AND RESPONSIBILITIES OF THE COMMITTEE
The Committee is the "named fiduciary" for purposes of Section 402(a)(1) of
ERISA with the authority to control and manage the administration of the
Plan.
The primary responsibility of the Committee is to administer the Plan for
the exclusive benefit of the Participants and their Beneficiaries, subject
to the specific terms of the Plan. The Committee shall administer the Plan
in accordance with its terms to the extent consistent with applicable law,
and shall have the power to determine all questions arising in connection
with the administration, interpretation, and application of the Plan. Any
such determination by the Committee shall be conclusive and binding upon
all affected parties.
The Committee may correct any defect, supply any information, or reconcile
any inconsistency in such manner and to such extent as shall be deemed
necessary or advisable to carry out the purpose of the Plan, provided,
however, that any interpretation or construction shall be done in a
nondiscriminatory manner and shall be consistent with the intent that the
Plan shall continue to be deemed a qualified plan under the terms of PR-
Code and to comply with the terms of ERISA. The Committee shall have all
powers necessary or appropriate to accomplish its duties under the Plan.
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The Committee shall be charged with the duties of the general
administration of the Plan, including, but not limited to, the following:
(a) To determine all questions relating to the eligibility of an Employee
to participate or remain a Participant hereunder.
(b) To certify and direct the Trustee with respect to the amount of benefit
to which any Participant or Beneficiary shall be entitled hereunder.
(c) To authorize and direct the Trustee with respect to all
nondiscretionary or otherwise directed disbursements from the Trust
Fund.
(d) To maintain all necessary records for the administration of the Plan.
(e) To interpret the provisions of the Plan and to make and publish such
rules for administration of the Plan as are consistent with the terms
hereof, including, but not limited to, procedures for presenting claims
for benefits under the Plan, procedures for review of claims which are
denied in whole or in part, and procedures for complying with the
requirements of Qualified Domestic Relations Orders.
(f) To engage such counsel, accountants, and consultants as may be required
to assist in administering the Plan.
(g) To comply with the reporting and disclosure requirements of ERISA.
10.4 RECORDS OF THE COMMITTEE
All acts and determinations of the Committee shall be duly recorded by, or
under the supervision of, the secretary of the Committee, and all such
records, together with such other documents as may be necessary for the
administration of the Plan, shall be preserved in the custody of the
secretary.
10.5 PROCEDURE FOR CLAIMING BENEFITS UNDER THE PLAN
(a) Claims for benefits under the Plan made by a Participant or Beneficiary
covered by the Plan must be submitted in writing to the Committee.
Approved claims will be processed and instructions issued to the
Trustee authorizing payments as claimed.
If a claim is denied in whole or in part, the Committee shall notify
the claimant of its decision by written notice, in a manner calculated
to be understood by the claimant. The Committee shall set forth in the
notice:
(i) the specific reason or reasons for the denial of the claim;
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(ii) the specific references to the pertinent Plan provisions on
which the denial is based;
(iii) a description of any additional material or information
necessary to perfect the claim, and an explanation of why such
material or information is necessary; and
(iv) an explanation of the Plan's claim review procedure.
Such notification shall be given within 90 days after the claim is
received by the Committee (or within 180 days, if special circumstances
require an extension of time for processing the claim, and provided
written notice of such extension and circumstances is given to the
claimant within the initial 90 day period). If notification is not
given within such period, the claim will be considered denied as of the
last day of such period and the claimant may request a review of the
claim.
(b) Upon denial of a claim in whole or in part, a claimant or his or her
duly authorized representative shall have the right to submit a written
request to the Committee for a full and fair review of the denied
claim, to be permitted to review documents pertinent to the denial, and
to submit issues and comments in writing. A request for review of a
claim must be submitted within 60 days of receipt by the claimant of
written notice of the denial of the claim (or, if applicable, within 60
days from the date on which such denial is considered to have
occurred).
The Committee will advise the claimant of the results of the review
within 60 days after receipt of the written request for review (or
within 120 days if special circumstances require an extension of time
for processing the request, such as an election by the Committee to
hold a hearing, and if written notice of such extension and
circumstances is given to such claimant within the initial 60 day
period). The decision on review shall be in writing. If the decision on
review is not made within such period, the claim will be considered
denied.
The decision of the Committee by majority vote shall be final and
binding upon any and all claimants, including but not limited to
Participants and their Beneficiaries, and any other individuals making
a claim through or under them.
10.6 UNCLAIMED BENEFITS
If the Committee is unable after any benefit becomes due hereunder to
authorize payment because the whereabouts of a Participant or Beneficiary
cannot be ascertained, the Committee shall send written notice of such
benefit to the Participant or Beneficiary at his or her last known mailing
address as shown by the records of the Employer.
If the Committee, by making a reasonably diligent effort, cannot locate the
Participant or Beneficiary, the amount payable to such Participant or
Beneficiary shall be forfeited at such
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time as the Committee shall determine in its sole discretion (but in all
events prior to the time such benefit would otherwise escheat under any
applicable law). The forfeiture shall be applied to reduce future Employer
Contributions.
Should the Participant or Beneficiary subsequently make application for
benefits, the amount so forfeited shall be paid to the Participant or
Beneficiary, and the Employer shall reimburse the Trust Fund for the
payment by making a special contribution for such purpose.
10.7 DISTRIBUTION TO MINORS AND INCAPACITATED PAYEES
In the event a distribution is to be made to a minor or an adult unable to
attend to his or her affairs for any reason (including, but not limited
to, illness, infirmity or mental incapacity), the Committee may in its
discretion direct that such distribution be made (a) directly to him or
her, or (b) to the parent or other legal guardian, committee or
conservator of such person. Payment to any such person shall fully
discharge the Committee, Trustee, Employer, and Plan from further
liability on account thereof.
10.8 EXPENSES
The Committee shall determine the method by which expenses shall be paid
and the extent to which the Participants and/or the Employer shall pay
such expenses. Members of the Committee may receive compensation for the
performance of their duties under the Plan, as may be agreed upon with the
Sponsoring Employer, provided that no Committee member who is in the full-
time employ of an Employer shall receive any compensation from the Trust
Fund. The Committee shall be reimbursed for all reasonable and necessary
expenses incurred in the performance of its duties under the Plan.
10.9 INVESTMENT MANAGER
The Sponsoring Employer (or such committee as it may appoint) may appoint
one or more Investment Managers to direct the investment and management of
all or any portion of the assets of the Trust Fund. The duties of the
Investment Manager shall be set forth in the agreement pursuant to which
the Investment Manager is appointed, and shall designate the portion of
the Trust Fund to be managed and controlled by such Investment Manager.
The Sponsoring Employer (or such committee as it may appoint) may, from
time to time, remove any such Investment Manager, and any such Investment
Manager may resign. The Sponsoring Employer (or such committee as it may
appoint) may, upon removal or resignation of an Investment Manager,
provide for the appointment of a successor Investment Manager.
10.10 NAMED FIDUCIARIES AND ALLOCATION OF RESPONSIBILITY
(a) The named fiduciaries specified herein shall have the authority to
control and manage the operation and administration of the Plan. Each
named fiduciary shall be responsible for the proper exercise of its
own powers, duties, responsibilities, and
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obligations under the Plan and the Trust Agreement. Subject to the
provisions of Section 405(a) of ERISA, no named fiduciary is
responsible for the acts or omissions of any other named fiduciary.
Each named fiduciary may allocate its duties among its members or to
individuals who are not named fiduciaries.
Each named fiduciary and every other fiduciary under the Plan shall
exercise its duties and responsibilities for the sole benefit of
Participants and Beneficiaries.
(b) The Employer, acting through its board of directors, shall have the
sole responsibility for making Employer Contributions.
(c) The Sponsoring Employer shall have the sole authority to appoint and
remove (or designate another to appoint and remove) the Trustee, and
any Investment Manager; to formulate (or designate another to
formulate) the Plan's funding policy; and to amend or terminate, in
whole or in part, the Plan and the Trust Agreement.
(d) The Committee shall have the sole responsibility for the
administration of the Plan.
(e) The Trustee shall have the sole responsibility for managing the
assets held under the Trust Agreement, except those assets, the
management of which has been assigned to an Investment Manager who
shall be solely responsible for the management of the assets assigned
to it.
10.11 INDEMNIFICATION
The Sponsoring Employer shall indemnify and hold harmless the named
fiduciaries (other than the Trustee) and any other directors, officers, or
employees of any Participating Employer or an Affiliated Employer who are
or may be determined to be fiduciaries as that term is defined in ERISA
from and against any and all claims, cost, damages, expenses (including
counsel fees approved by the Sponsoring Employer), and liabilities
(including any amounts paid in settlement with the Sponsoring Employer's
approval) arising from any action or failure to act, except where such
claims, costs, damages, expenses, and liabilities are judicially
determined to be due to the gross negligence or willful misconduct of such
person. The Sponsoring Employer's obligation hereunder shall be offset by
any other source of indemnification, including any insurance policy or
policies maintained by the Employer.
10.12 FIDUCIARY INSURANCE
The Sponsoring Employer may secure to the extent practicable and maintain
in full force and effect insurance on behalf of all persons, including
employees, independent professional advisors and service organizations who
are or may be determined to be fiduciaries, as that term is defined in
ERISA, to cover liabilities or losses occurring by reason of the act or
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omission of each such person, unless such act or omission is due to the
gross negligence, willful misconduct or willful breach of fiduciary duty
of such person.
10.13 RELIANCE ON STATEMENTS OF PARTICIPANTS AND BENEFICIARIES
The Employer, any Affiliated Employer, the Committee, and the Trustee(s)
may rely upon any certificate, statement, or other representation made to
them by any Employee, Participant, Spouse, or other Beneficiary with
respect to age, length of service, leave of absence, date of cessation of
employment, marital status, or other fact required to be determined under
any of the provisions of this Plan, and shall not be liable on account of
any payment or the performance of any act in reliance upon any such
certificate, statement, or other representation.
Any such certificate, statement, or other representation made by an
Employee or Participant shall be conclusively binding upon such Employee
or Participant and his or her Spouse or other Beneficiary, and such
Employee, Participant, Spouse, or Beneficiary shall thereafter and forever
be estopped from disputing the truth and correctness of such certificate,
statement, or other representation.
Any such certificate, statement, or other representation made by a
Participant's Spouse or other Beneficiary shall be conclusively binding
upon such Spouse or Beneficiary, and such Spouse or Beneficiary shall
thereafter and forever be estopped from disputing the truth and
correctness of such certificate, statement, or other representation.
10.14 DISCHARGE OF LIABILITY
If distribution of all or a portion of a Participant's Total Account is
made to a person reasonably believed by the Committee or its delegate to
qualify properly as the Participant's Beneficiary (taking into account any
document purporting to be a valid consent of the Participant's Spouse, or
any representation by the Participant that he or she is not married), the
Plan shall have no further liability with respect to the amount
distributed from such Account.
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ARTICLE 11 - ADMINISTRATION OF THE TRUST
11.1 TRUST AGREEMENT
Pursuant to the terms and provisions of the Trust Agreement entered into by
the Sponsoring Employer, such Trustee(s) as the Sponsoring Employer may
appoint, will receive and invest all contributions made under the Plan to
the Trust Fund and all income derived therefrom. The Sponsoring Employer
may remove a Trustee and may appoint successor or additional trustees and
may divide their duties and responsibilities as it sees fit.
11.2 EXCLUSIVE BENEFIT OF PARTICIPANTS
All assets of the Trust Fund shall be held for the exclusive purposes of
providing benefits to Participants and Beneficiaries under the Plan and
defraying reasonable expenses of administering the Plan. In no event shall
it be possible at any time prior to the satisfaction of all liabilities,
fixed or contingent, under the Plan for any part of the assets of the Trust
Fund, whether principal or income, to be used for, or diverted to, purposes
other than those stated herein.
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ARTICLE 12 - AMENDMENT, TERMINATION OR MERGER OF THE PLAN
12.1 RIGHT TO AMEND
The Sponsoring Employer reserves the right at any time and from time to
time by action of its Board (or, to the extent permitted by resolution of
such Board, by action of the Committee or a duly authorized officer of the
Sponsoring Employer) to modify or amend the Plan by an instrument in
writing, provided, however, that no such modification or amendment shall be
made which would:
(a) Increase the duties or liabilities of the Committee or Trustee without
its written consent;
(b) Decrease a Participant's account balance or eliminate an optional form
of payment with respect to benefits accrued as of the later of (i) the
date such amendment is adopted, or (ii) the date the amendment becomes
effective;
(c) Cause or permit any portion of the Trust Fund to revert to or become
the property of an Employer, except as required to pay taxes or
administrative expenses, or as otherwise provided herein;
(d) Cause any portion of the Trust Fund to be used for purposes other than
the exclusive benefit of Participants and their Beneficiaries; or
(e) Adversely affect the qualification of the Plan under Section 1165(a) of
the PR Code; unless such modification or amendment is necessary or
appropriate to enable the Plan or Trust Fund to qualify under Section
1165(a) of the PR Code, or to retain for the Plan or Trust Fund its
qualified status.
12.2 RIGHT TO TERMINATE
The Plan may be terminated at any time by resolution of the Board provided
that no such action shall permit any part of the assets of the Trust Fund,
whether principal or income, to revert to the Employer or to be used for or
diverted to purposes other than for the exclusive benefit of Participants
and their Beneficiaries until all liabilities, fixed or contingent, under
the Plan with respect to such Participants and Beneficiaries shall have
been liquidated in full.
12.3 TERMINATION OF TRUST
(a) If the Plan is terminated, the Total Accounts of all affected
Participants shall be nonforfeitable. The Trust Fund shall be revalued
as of the date the remaining assets are to be distributed, and the then
current value of all Total Accounts, adjusted to reflect the expenses
of termination, to the extent such expenses are not paid by the
Employer, shall be distributed in the manner described in Article 9
(but without requiring the written consent of affected Participants).
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If a "successor plan" within the meaning of Income Tax Regulation
1.401(k)-(d)(3) is established or maintained, distribution shall not
be made until a Participant's actual separation from service (within
the meaning of Section 401(k)(2)(B) of the Code).
Until all Total Accounts are fully distributed, any remaining Total
Accounts held in the Trust Fund shall continue to be adjusted in
accordance with the provisions of Article 5, and to reflect the
expenses of termination.
(b) In the event of the partial termination of the Plan, the Total
Accounts of all affected Participants shall be nonforfeitable and
the provisions of paragraph (a) above shall apply with respect to
such Participants" Total Accounts.
12.4 DISCONTINUANCE OF CONTRIBUTIONS
Any Employer may at any time, by resolution of its board of directors,
completely discontinue its participation in and contributions under the
Plan. If such Employer completely discontinues its contributions under the
Plan, either by resolution of its board of directors or for any other
reason, the amounts credited to the Total Accounts of all affected
Participants (other than Participants who, in connection with the
discontinuance of Employer contributions, transfer employment to an
Employer which continues to contribute under the Plan) shall be
nonforfeitable.
12.5 MERGER OF PLANS
The Plan may not be merged or consolidated with any other plan and no
assets or liabilities of the Plan may be transferred to any other plan,
unless each Participant would receive a benefit immediately after such
merger, consolidation or transfer equal to or greater than the benefit the
Participant would have received, if the Plan had been terminated
immediately prior to the merger, consolidation, or transfer.
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ARTICLE 13 - GENERAL PROVISIONS
13.1 FILINGS WITH THE COMMITTEE
For all purposes of the Plan, any designation or change of Beneficiary,
distribution election, or other form or document required under the Plan
shall become effective only upon receipt by the Committee of such
designation, change or election, or other form or document.
13.2 STATEMENTS OF ACCOUNTS
The Committee shall cause to be furnished to each Participant, no less
frequently than once in each Plan Year, a statement showing the value of
his or her Total Account invested in each investment fund and the vested
portion of his or her Total Account.
13.3 NONALIENABILITY OF BENEFITS
No benefit which shall be payable out of the Trust Fund to any person
(including a Participant or his or her Beneficiary) shall be subject in any
manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, or charge, and any attempt, either voluntarily
orinvoluntarily, to anticipate, alienate, sell, transfer, assign, pledge,
encumber, or charge the same shall be void; and no such benefit shall in
any manner be liable for, or subject to, the debts, contracts, liabilities,
engagements, or torts of any such person, nor shall it be subject to
attachment or legal process for or against such person, and the same shall
not be recognized by the Trustee, except to such extent as may be required
by law.
In the event a Participant's benefits are garnished or attached by order of
any court, the Committee may bring an action for a declaratory judgment in
a court of competent jurisdiction to determine the proper recipient of the
benefits to be paid by the Plan. During the pendency of said action, any
benefits that become payable shall be paid into the court as they become
payable, to be distributed by the court to the recipient it deems proper at
the close of said action.
Notwithstanding the foregoing, the Committee shall recognize and honor any
judgment, decree, or order entered on or after January 1, 1985 under a
state's domestic relations law which the Committee determines to be a
Qualified Domestic Relations Order in accordance with the procedures to
determine such status as the Committee shall establish pursuant to Section
206(d)(3)(B) of ERISA, provided such order conforms with the requirements
of section 9.4.
13.4 NO CONTRACT OF EMPLOYMENT
All benefits created by the Plan constitute a voluntary act on the part of
the Employer and are not to be deemed or construed to be a part of any
contract of employment, or as giving any person any enforceable right
against the Employer, except as provided by ERISA. The
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Trust Fund shall be the sole source of all benefits provided for in the
Plan. The Employer does not guarantee the Trust Fund against any loss or
depreciation in value. Neither the action of the Employer in establishing
the Plan nor any action hereafter taken by the Employer or by any
committees in connection with the Plan shall be construed as giving to any
Participant a right to be retained in the service of the Employer or any
right or claim to any benefits under the Plan except as expressly provided
in the Plan.
13.5 PARTICIPATING EMPLOYERS
(a) Any Affiliated Employer may adopt this Plan with the approval of the
Board. Upon so adopting the Plan, the Affiliated Employer shall become
a Participating Employer hereunder and shall come within the meaning
of Employer for all purposes of the Plan.
(b) If all or substantially all of the assets or shares of stock of any
other company or business in the United States is acquired, and if
such other company or business becomes a Participating Employer
hereunder, the Board (or such committee as it may appoint), may
authorize that the Plan shall take into account for eligibility or
vesting purposes, or both, an Eligible Employee's service with such
acquired company or business for any period prior to the date on which
such other company or business was acquired.
(c) A Participating Employer may discontinue or revoke its participation
in the Plan with respect to its Eligible Employees. At the time of
discontinuance or revocation, the Committee may authorize the Trustee
to transfer, deliver, and assign vested Trust Fund assets attributable
to the Participants employed by such Participating Employer to a new
trustee as shall have been designated by the Participating Employer,
in the event that it has established a separate qualified plan for its
employees. If a separate qualified plan is not established, the
Trustee shall retain such assets for the benefit of the Participants
employed by such Participating Employer. In no event shall any part of
the corpus or income of the Trust Fund as it relates to such
Participating Employer be used for or diverted to purposes other than
for the exclusive benefit of the Participants employed by such
Participating Employer and their Beneficiaries.
13.6 GOVERNING LAW
This Plan shall be administered in the Commonwealth of Puerto Rico and its
validity, construction and all rights hereunder shall be governed by the
laws of the United States under ERISA. To the extent that ERISA shall not
be held to have preempted local law, the Plan shall be administered and
interpreted under the laws of the Commonwealth of Puerto Rico.
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CERTIFICATE
I, Kirk A. Radke, Secretary of Waters Operating Corp., hereby certify that the
attached document is a correct copy of the Waters Employee Investment Plan for
Puerto Rico, effective as of January 1, 1997.
Dated this 19th day of December, 1996.
/s/ Kirk A. Radke
---------------------------------
Secretary as Aforesaid
(Corporate Seal)
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the Incorporation by reference in this registration
statement on Form S-8 of our report dated January 23, 1996, on our audits of the
consolidated financial statements of Waters Corporation and Subsidiaries as of
December 31, 1994 and 1995, and for the period August 19, 1994 to December 31,
1994 and the year ended December 31, 1995, which report is included in the
registration statement of Waters Corporation on Form S-1 (File No. 333-3810).
/s/ Coopers & Lybrand L.L.P.
--------------------------
Coopers & Lybrand L.L.P.
Boston, Massachusetts
December 19, 1996
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement
on Form S-8 of our report which includes an explanatory paragraph addressing
certain costs and expenses presented in the financial statements which
represents allocations and management's estimates of the costs of services
provided by Millipore Corporation, dated February 10, 1995, on our audits of the
financial statements of Waters Chromatography Division of Millipore Corporation
(the "Predecessor") for the year ended December 31, 1993 and the period January
1, 1994 to August 18, 1994, which report is included in the registration
statement of Waters Corporation on Form S-1 (File No. 333-3810).
/s/ Coopers & Lybrand L.L.P.
----------------------------
Coopers & Lybrand L.L.P.
Boston, Massachusetts
December 19, 1996
