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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
MILLENNIUM CHEMICALS INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3436215
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1 Grosvenor Place, London, England SWIX 7JH
(Address of Principal Executive Offices) (Zip Code)
QUANTUM CHEMICAL
RETIREMENT SAVINGS & INVESTMENT PLAN
(Full title of the plan)
GRAHAM DRANSFIELD
Vice President
Millennium Chemicals Inc.
1 Grosvenor Place London, England SWIX 7JH
Copy to: Senior Vice President-Law and Administration
Millennium Chemicals Inc.
99 Wood Avenue South Iselin, New Jersey 08830
(Name and address of agent for service)
(908) 603-6600
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Proposed Maxi- Proposed Maxi-
Securities mum Offering mum Aggregate Amount of
to be Amount to be Price Per Offering Registration
Registered Registered Share (2) Price Fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
par value $.01 844,327 $23.6875 $20,000,000 $6,896.55
per share (1)
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</TABLE>
(1) In Addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2) Determined in accordance with Rule 457(c) based on the average of the high
and low sales prices on the New York Stock Exchange on September 25, 1996.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference
The following documents and portions of documents filed by Registrant or
by the Plan pursuant to the Securities Act of 1933 (the "Act") and the
Securities Exchange Act of 1934 (the "Exchange Act") are incorporated herein by
reference:
(a) The Plan's Annual Report on Form 11-K for the year ended December
31, 1995 (Commission file No. 33-69698) and Registrant's Registration Statement
on Form 10 (the "Form 10"), effective August 23, 1996, and Registrant's
Information Statement, dated August 23, 1996 attached as Annex A to Form 10
furnished to holders of Ordinary Shares in the capital of Hanson PLC in
connection with a proposed dividend of 100% of the capital stock of Registrant,
including the description therein at page 78 of the Common Stock.
(b) All documents filed pursuant to Section 13(a) or 15(d) of the
Exchange Act by Registrant since the effective date of the Form 10 and by
Registrant or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act on or subsequent to the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities being offered pursuant hereto have been sold or which deregisters all
such securities then remaining unsold, also shall be deemed to be a part hereof
from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers.
In accordance with Section 145 of the Delaware General Corporation Law
("DGCL"), which provides for the indemnification of directors, officers and
employees under certain circumstances, Article XIV ("Article XIV") of the
Registrant's By-Laws grants the Registrant's directors, officers and employees a
right to indemnification for all expenses, liabilities and losses relating to
civil, criminal, administrative or investigative proceedings to which they are a
party (i) by reason of the fact that they are or were directors, officers or
employees of Registrant or (ii) by reason of the fact, while they are or were
directors, officers or employees of Registrant, they are or were serving at the
request of Registrant as directors, officers, members, employees, fiduciaries or
agents of another corporation, partnership, joint venture, trust or enterprise.
Article XIV of the By-Laws further provides for the mandatory advancement of
expenses incurred by officers and directors in defending such proceedings in
advance of their final disposition upon delivery to Registrant by the indemnitee
of an undertaking to repay all amounts so advanced if it is ultimately
determined that such indemnitee is not entitled to be
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indemnified under Article XIV. Registrant may not indemnify or make advance
payments to any person in connection with proceedings initiated against
Registrant by such person without the authorization of the Registrant's Board of
Directors, except with respect to counterclaims, cross-claims, third-party
claims or as otherwise ordered by a court of competent jurisdiction.
In addition, Article XIV provides that directors and officers therein
described shall be indemnified to the fullest extent permitted by Section 145 of
the DGCL, or any successor provisions or amendments thereunder. In the event
that any such successor provisions or amendments provide indemnification rights
broader than permitted prior thereto, Article XIV allows such broader
indemnification rights to apply retroactively with respect to any predating
alleged action or inaction and also allows the indemnification to continue after
an indemnitee has ceased to be a director or officer of the corporation and to
inure to the benefit of the indemnitee's heirs, executors and administrators.
Article XIV further provides that the right to indemnification is not
exclusive of any other right which any indemnitee may have or thereafter acquire
under any statute, the Certificate of Incorporation or By-Laws, any agreement or
vote of stockholders or disinterested directors or otherwise, and allows
Registrant to indemnify and advance expenses to any person whom the corporation
has the power to indemnify under the DGCL or otherwise.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted for directors and officers and controlling persons pursuant
to the foregoing provisions, Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable.
Registrant's By-Laws authorize Registrant to purchase insurance for
directors, officers and employees of Registrant, and persons who serve at the
request of Registrant as directors, officers, members, employees, fiduciaries or
agents of other enterprises against any expense, liability or loss incurred in
such capacity, whether or not Registrant would have the power to indemnify such
persons against such expense or liability under the By-Laws. Registrant intends
to maintain insurance coverage for its officers and directors as well as
insurance coverage to reimburse Registrant for potential costs of its corporate
indemnification of directors and officers.
Item 8. Exhibits.
4.1 Form of amended and Restated Certificate of
Incorporation of Registrant incorporated by
reference to Exhibit 3.1 of Registrant's Form 10 as
filed August 23, 1996.
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4.2 Amended and Restated By-Laws of Registrant incorporated by
reference to Exhibit 3.2 to Registrant's Form 10 as filed
August 23, 1996.
4.3 Specimen form of certificate representing Common Stock of
Registrant incorporated by reference to Exhibit 4.1 to
Registrant's Form 10 as filed August 23, 1996.
4.4 Quantum Chemical Retirement Savings & Investment
Plan.
5.1 Registrant undertakes to submit the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to
qualify the Plan.
23.1 Consent of Price Waterhouse LLP, independent
accountants, Morristown, New Jersey.
23.2 Consent of Ernst & Young LLP, independent
auditors, Hull, England.
23.3 Consent of Ernst & Young LLP, independent auditors,
Hackensack, New Jersey
23.4 Consent of William M. Landuyt
23.5 Consent of Robert E. Lee
23.6 Consent of The Rt. Hon. Kenneth Baker CH MP
23.7 Consent of Worley H. Clark, Jr.
23.8 Consent of The Rt. Hon. Lord Glenarthur
23.9 Consent of David J.P. Meachin
23.10 Consent of Martin G. Taylor
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any fact or event arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the
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information set forth in the registration statement: (iii) 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; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3, and the information required to
be included in a post effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in London, England on September 27, 1996.
MILLENNIUM CHEMICALS INC.
(Registrant)
By: /s/ Graham Dransfield
------------------------------
Graham Dransfield
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Derek C. Bonham President and September 27, 1996
- ----------------------- Director (Principal
Derek C. Bonham FCA Executive Officer)
/s/ Andrew J. H. Dougal Treasurer and September 27, 1996
- ----------------------- Director (Principal
Andrew J. H. Dougal Financial Officer and
Principal Accounting
Officer)
/s/ Graham Dransfield Vice President and September 27, 1996
- ----------------------- Director
Graham Dransfield
</TABLE>
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Pursuant to the requirements of the Securities Act of 1933, the Benefits
Administration Committee has duly caused this Registration Statement to be
signed on behalf of the Plan by the undersigned, thereunto duly authorized, in
the City of Iselin, and State of New Jersey on September 27, 1996.
QUANTUM CHEMICAL
RETIREMENT SAVINGS & INVESTMENT PLAN
By: /s/ Anna M. Grant
---------------------------------
Name: Anna M. Grant
Title: Committee Member
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EXHIBIT INDEX
Exhibit
No.
4.1 Form of amended and Restated Certificate of Incorporation of
Registrant incorporated by reference to Exhibit 3.1 of
Registrant's Form 10 as filed August 23, 1996.
4.2 Amended and Restated By-Laws of Registrant incorporated by
reference to Exhibit 3.2 to Registrant's Form 10 as filed
August 23, 1996.
4.3 Specimen form of certificate representing Common Stock of
Registrant incorporated by reference to Exhibit 4.1 to
Registrant's Form 10 as filed August 23, 1996.
4.4 Quantum Chemical Retirement Savings & Investment
Plan.
5.1 Registrant undertakes to submit the Plan and any amendment
thereto to the Internal Revenue Service ("IRS") in a timely
manner and will make all changes required by the IRS in order to
qualify the Plan.
23.1 Consent of Price Waterhouse LLP, independent accountants,
Morristown, New Jersey.
23.2 Consent of Ernst & Young LLP, independent
auditors, Hull, England.
23.3 Consent of Ernst & Young LLP, independent auditors,
Hackensack, New Jersey.
23.4 Consent of William M. Landuyt
23.5 Consent of Robert E. Lee
23.6 Consent of The Rt. Hon. Kenneth Baker CH MP
23.7 Consent of Worley H. Clark, Jr.
23.8 Consent of The Rt. Hon. Lord Glenarthur
23.9 Consent of David J.P. Meachin
23.10 Consent of Martin G. Taylor
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EXHIBIT 4.4
QUANTUM CHEMICAL
RETIREMENT SAVINGS & INVESTMENT PLAN
(As Amended and Restated Effective October 1, 1996)
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Table of Contents
ARTICLE I
Definitions
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<S> <C> <C>
1.1 "Account"..................................................................... 1
1.2 "Affiliate"................................................................... 1
1.3 "Appropriate Notice".......................................................... 1
1.4 "Beneficiary"................................................................. 1
1.5 "Board" or "Board of Directors"............................................... 1
1.6 "Code"........................................................................ 1
1.7 "Committee"................................................................... 1
1.8 "Company"..................................................................... 1
1.9 "Compensation"................................................................ 1
1.10 "Compensation Deferral Contributions"........................................ 2
1.11 "Compensation Deferral Contributions Account"................................ 2
1.12 "Effective Date"............................................................. 2
1.13 "Eligible Employee".......................................................... 3
1.14 "Employee"................................................................... 3
1.15 "Employee Contributions Account"............................................. 3
1.16 "Employer"................................................................... 3
1.17 "Employer Matching Contributions"............................................ 3
1.18 "Employer Matching Contributions Account".................................... 3
1.19 "Employer Securities"........................................................ 3
1.20 "Enrollment Date"............................................................ 3
</TABLE>
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1.21 "Enrollment Period".......................................................... 3
1.22 "ERISA"...................................................................... 3
1.23 "ESOP Account"............................................................... 3
1.24 "Hour of Service"............................................................ 4
1.25 "Initial Enrollment Date".................................................... 5
1.26 "Investment Fund"............................................................ 5
1.27 "Investment Manager"......................................................... 5
1.28 "Leased Employee"............................................................ 5
1.29 "Leave of Absence"........................................................... 5
1.30 "Member"..................................................................... 5
1.31 "Parental Leave"............................................................. 6
1.32 "Plan"....................................................................... 6
1.33 "Plan Year".................................................................. 6
1.34 "Prior Plan"................................................................. 6
1.35 "Prior Plan Account"......................................................... 6
1.36 "Required Beginning Date".................................................... 6
1.37 "Retirement"................................................................. 7
1.38 "Rollover Contribution"...................................................... 7
1.39 "Rollover Contribution Account".............................................. 7
1.40 "Service".................................................................... 7
1.41 "Suspense Account"........................................................... 7
1.42 "Total and Permanent Disability"............................................. 7
1.43 "Trustee".................................................................... 7
1.44 "Trust Fund"................................................................. 7
1.45 "Valuation Date"............................................................. 8
</TABLE>
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ARTICLE II
Eligibility and Membership
<TABLE>
<S> <C> <C>
2.1 Members of Prior Plans........................................................ 8
2.2 Eligible Employees on and after the Effective Date............................ 8
2.3 Completion of Appropriate Notice.............................................. 8
2.4 Elections Upon Becoming A Member.............................................. 8
2.5 Beneficiary Designation....................................................... 8
2.6 Transfers to or from Non-Covered Status....................................... 9
2.7 Rollover Contributions From Other Plans....................................... 9
ARTICLE III
Compensation Deferral Contributions
3.1 Compensation Deferral Contributions........................................... 10
3.2 Changes and Suspension of Contributions....................................... 11
3.3 Transfer of Contributions to Trustee.......................................... 11
ARTICLE IV
Limitations on, and Distribution of, Excess Compensation
Deferral Contributions and Excess Employer Matching
Contributions of Highly Compensated Employees
4.1 Limitations................................................................... 11
4.2 Control of Compensation Deferral Contributions and
Employer Matching Contributions and Distribution of
Excess........................................................................ 13
4.3 Limitation of Annual Additions................................................ 16
</TABLE>
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ARTICLE V
Employer Matching Contributions
<TABLE>
<S> <C> <C>
5.1 Amount of Employer Matching Contributions..................................... 19
5.2 Treatment of Forfeitures...................................................... 19
5.3 Transfer of Contributions to Trustee.......................................... 20
ARTICLE VI
Accounts
6.1 Maintenance of Accounts....................................................... 20
6.2 Valuations.................................................................... 20
ARTICLE VII
Vesting of Accounts
7.1 Employer Matching Contributions Account....................................... 21
7.2 Other Accounts................................................................ 21
7.3 Earlier Vesting in Employer Matching Contributions
Accounts...................................................................... 21
7.4 Forfeitures................................................................... 21
</TABLE>
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ARTICLE VIII
Investment of Accounts
<TABLE>
<S> <C> <C>
8.1 Investment of Accounts Other Than Employer Matching
Contributions Accounts........................................................ 22
8.2 Redirection of Future Contributions........................................... 23
8.3 Reinvestment of Prior Contributions........................................... 23
8.4 Investment of ESOP Accounts, Prior Plan Accounts and
Employer Matching Contributions Accounts. .................................... 24
8.5 Statements of Accounts And Confirmation of Investment
Directions.................................................................... 24
8.6 Crediting of Accounts......................................................... 24
8.7 Correction of Errors.......................................................... 25
8.8 Investment of Deferred Distributions.......................................... 25
8.9 The Self-Directed Window...................................................... 25
ARTICLE IX
Withdrawals and Loans During Employment
9.1 Withdrawal Options............................................................ 26
9.2 Hardship Withdrawals.......................................................... 27
9.3 Values........................................................................ 28
9.4 Payment of Withdrawals........................................................ 28
9.5 Loans......................................................................... 29
</TABLE>
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ARTICLE X
Distribution
<TABLE>
<S> <C> <C>
10.1 Amount of Distribution....................................................... 31
10.2 Notice of Options and Normal Form of Distribution............................ 31
10.3 Alternate Form of Distribution............................................... 33
10.4 Identity of Payee............................................................ 34
10.5 Non-alienation of Benefits................................................... 34
10.6 Qualified Domestic Relations Order........................................... 35
10.7 Commencement of Benefits..................................................... 35
10.8 Spousal Consent.............................................................. 35
10.9 Payments Without Election.................................................... 36
10.10 Trustee to Trustee Transfers................................................ 36
ARTICLE XI
Administration of the Plan
11.1 Plan Administrator........................................................... 37
11.2 Board of Directors........................................................... 37
11.3 Appointment of the Committee................................................. 38
11.4 Compensation, Expenses....................................................... 38
11.5 Committee Actions, Agents.................................................... 38
11.6 Committee Meetings........................................................... 38
11.7 Authority and Duties of the Committee........................................ 38
11.8 Personal Liability........................................................... 39
11.9 Dealings Between Committee and Individual Members. .......................... 39
</TABLE>
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<S> <C> <C>
11.10 Information To Be Supplied by the Employer.................................. 39
11.11 Records..................................................................... 39
11.12 Fiduciary Capacity.......................................................... 40
11.13 Fiduciary Responsibility.................................................... 40
11.14 Claim Procedure............................................................. 40
ARTICLE XII
Operation of the Trust Fund
12.1 Trust Fund................................................................... 42
12.2 Trustee...................................................................... 42
12.3 Investment Manager........................................................... 42
12.4 Purchase and Holding of Securities........................................... 42
12.5 Voting of Employer Securities................................................ 42
12.6 Disbursement of Funds........................................................ 43
12.7 Exclusive Benefit of Members................................................. 43
ARTICLE XIII
Amendment, Termination and Merger
13.1 Right to Amend............................................................... 44
13.2 Suspension or Termination.................................................... 44
13.3 Merger, Consolidation or Transfer............................................ 44
</TABLE>
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ARTICLE XIV
Miscellaneous
<TABLE>
<S> <C> <C>
14.1 Uniform Administration....................................................... 45
14.2 Payment Due an Incompetent................................................... 45
14.3 Source of Payments........................................................... 45
14.4 Plan Not a Contract of Employment............................................ 45
14.5 Applicable Law............................................................... 45
14.6 Unclaimed Amounts............................................................ 45
ARTICLE XV
Top Heavy Provisions
15.1 Application.................................................................. 46
15.2 Special Top Heavy Definitions................................................ 46
15.3 Special Top Heavy Provisions................................................. 54
15.4 Effect of Change in Applicable Legislation or
Regulation................................................................... 57
ARTICLE XVI
Supplemental Rules
Pertaining to ESOP Accounts
16.1 Diversification of ESOP Accounts............................................. 57
</TABLE>
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ARTICLE I
Definitions
As used herein, unless otherwise defined or required by the context, the
following words and phrases shall have the meanings indicated. Some of the words
and phrases used in the plan are not defined in this Article I, but, for
convenience are defined as they are introduced into the text.
1.1 "Account" means a Member's Employee Contributions Account,
Compensation Deferral Contributions Account, Rollover Contribution Account,
Employer Matching Contributions Account, ESOP Account and Prior Plan Account, as
the context requires.
1.2 "Affiliate" means any company which is related to the Employer as a
member of a controlled group of corporations in accordance with Section 414(b)
of the Code, as a trade or business under common control in accordance with
Section 414(c) of the Code or members of an affiliated service group as defined
under Section 414(m) of the Code.
1.3 "Appropriate Notice" means the written form, electronic procedure or
other method prescribed by the Committee to convey information for a particular
purpose.
1.4 "Beneficiary" means the person or persons designated by the Plan or
by a Member under Section 2.5 (Beneficiary Designation) to receive benefits
payable under the Plan as a result of the Member's death.
1.5 "Board" or "Board of Directors" means the Board of
Directors of the Employer.
1.6 "Code" means the Internal Revenue Code of 1986, as amended from time
to time and references to sections thereof shall be deemed to include any such
sections as amended, modified or renumbered.
1.7 "Committee" means the Benefits Administration Committee appointed in
accordance with Section 11.3 (Appointment of Committee).
1.8 "Company" means the corporation that owns 100% of the capital stock
of the Employer or any person, firm, corporation or partnership which may
succeed to its business.
1.9 "Compensation" means with respect to a Plan Year, the sum of the
amount reported by the Employer to the Internal Revenue Service on Form W-2 as
the Member's compensation for such
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calendar year, the amount of any Compensation Deferral Contributions made on
such Member's behalf to the Plan and the amount, if any, contributed to a
cafeteria plan that is excluded from gross income pursuant to Section 125 of the
Code; but exclusive of bonuses, overtime pay, termination or severance pay,
prizes, awards, grievance settlements, overseas cost of living allowances,
relocation allowances, mortgage assistance, executive perquisites, stock
options, and such other extraordinary items or remuneration as the Committee
shall determine from time to time pursuant to such uniform and nondiscriminatory
rules as it shall adopt. On and after January 1, 1989 the Compensation of each
Employee taken into account under the Plan for any Plan Year shall not exceed
$200,000 as thereafter adjusted for inflation in accordance with Section 415(d)
of the Code. For Plan Years beginning after 1993 the Compensation of each
Employee taken into account under the Plan for any such Plan Year shall not
exceed $150,000 as thereafter adjusted for inflation in accordance with Section
401(a)(17)(B) of the Code.
For purposes of calculating the maximum limit with respect to an
Employee who is a 5 percent owner or a Highly Compensated Employee, as defined
in Code Section 414(q) and who is one of the ten most highly compensated
Employees of the Company, amounts paid to the spouse and/or lineal descendant of
such an Employee (including a legal adoptee) who has not attained age 19 by the
last day of the Plan Year shall be deemed paid to such 5 percent owner or Highly
Compensated Employee as the case may be. In the event the $200,000 (or $150,000)
or adjusted Compensation limitation applies to the combined Compensation of the
Employee and one or more family members as defined herein, then, the limitation
shall be prorated among the affected individuals's Compensation in the same
proportion that each such individual's Compensation, determined prior to the
application of this limitation, bears to the aggregate Compensation of said
individuals.
1.10 "Compensation Deferral Contributions" means contributions made by
the Employer pursuant to an election by the Member to reduce the cash
compensation otherwise currently payable to such Member by an equivalent amount,
in accordance with the provisions of Section 3.1 (Compensation Deferral
Contributions).
1.11 "Compensation Deferral Contributions Account" means the separate
account maintained for a Member to record such Member's share of the Trust Fund
attributable to Compensation Deferral Contributions made on such Member's behalf
to the Plan or equivalent contributions made to a Prior Plan.
1.12 "Effective Date" means January 1, 1994, the effective date of the
Plan as amended and restated.
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1.13 "Eligible Employee" means an Employee who (i) has attained age 21
and (ii) has worked, at least 1,000 Hours of Service during a consecutive
twelve-month period, excluding an individual who is covered by a collective
bargaining agreement between the Employer and any union unless participation by
such employee in the Plan has been agreed to by the parties to such agreement.
1.14 "Employee" means a person (but not including a person acting only
as a director) who is employed by the Employer. Leased Employees shall also be
treated as Employees for purposes of this Plan unless: (i) such Leased Employees
are covered by a Plan described in Code Section 414(n)(5) and (ii) such Leased
Employees constitute less than Twenty Percent (20%) of the Employer's non-highly
compensated workforce as defined in Code Section 414(n)(5)(C).
1.15 "Employee Contributions Account" means the separate account
maintained for a Member to record such Member's share of the Trust Fund
attributable to previously permitted after-tax contributions by the Member to
the Plan.
1.16 "Employer" means Quantum Chemical Corporation and any subsidiary
authorized by the Board of Directors to participate in the Plan.
1.17 "Employer Matching Contributions" means the Employer matching
contributions made to the Trust Fund pursuant to Article V (Employer Matching
Contributions).
1.18 "Employer Matching Contributions Account" means the separate
Account maintained for a Member to record such Member's share of the Trust Fund
attributable to Employer Matching Contributions made on such Member's behalf.
1.19 "Employer Securities" means
(a) For the purposes of any investment to be made in the Company
Stock Fund, the common stock of Millennium Chemicals Inc., a
Delaware Corporation., and
(b) For the purposes of determining a Member's eligibility to exclude
net unrealized appreciation in respect of certain lump sum
distributions from the Company Stock Fund:
(i) the American Depositary Shares traded on the New York
Stock Exchange each of which represents five shares of
capital stock of Hanson PLC, an English Company, acquired
by the Plan when Hanson PLC was an affiliate of the
Employer, and
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(ii) shares distributed to holders of Employer Securities
described in either of paragraph (a) or this paragraph (b)
as a dividend or in a corporate reorganization.
Any Employer Securities described in paragraph (b) held in a Member's
Account may be sold at the direction of the Member and the proceeds reinvested
in any Core Fund. Employer Securities described in paragraph (a) which are
purchased with the proceeds of sale of Employer Securities described in
paragraph (b), whether or not first invested in an interim investment in any
other Core Fund, shall be deemed to be, and subject to the same restrictions
as, Employer Securities purchased with Employer Matching funds.
If, in the judgment of the Plan Administrator, any of the Employer
Securities described in paragraphs (a) or (b) are deemed to be no longer
a prudent investment, the investment in such Employer Securities held in the
Company Stock Fund may be liquidated in whole or in part at any time.
1.20 "Enrollment Date" means the first day of each month in
the Plan Year.
1.21 "Enrollment Period" means the period commencing on an Enrollment
Date and ending on the next following Enrollment Date.
1.22 "ERISA" means Public Law No. 93-406, the Employee
Retirement Income Security Act of 1974, as amended from time to
time.
1.23 "ESOP Account" means the separate account maintained for each
Member's share of the Trust Fund attributable to certain matching contributions
or stock bonus contributions made to the Plan prior to October 1, 1993 under the
Employee Stock Ownership Plan ("ESOP") provisions of the Plan.
1.24 "Hour of Service" means each hour for which an Employee is paid, or
entitled to payment, or receives earned income from an Employer or an Affiliate:
(a) for performance of duties;
(b) on account of a period of time during which no duties were
performed, provided that except in the case of an Authorized Leave of
Absence, no more than 501 Hours of Service shall be credited for any
single continuous period during which an Employee performs no duty, and
provided that no Hours of Service shall be credited for periods of time
in respect of which an Employee receives severance pay or for payments
made or due under a plan maintained solely for the purpose of complying
with applicable workers' compensation,
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unemployment compensation or disability insurance laws, or
for reimbursement of medical expenses; and
(c) for which back pay, irrespective of mitigation of damages, is
awarded or agreed to by the Employer provided that Hours of Service
credited under (a) or (b) shall not be credited under (c).
Hours of Service credited to an Employee for the performance of duties
will be credited to the computation period in which the duties are performed.
The determination of Hours of Service for reasons other than the performance of
duties shall be made in accordance with the provisions of Labor Department
Regulations Section 2530.200b-2(b), and Hours of Service shall be credited to
the computation periods to which the award or agreement pertains. Except in the
case of an Authorized Leave of Absence, not more than 501 Hours of Service shall
be credited for any continuous period during which an Employee performs no duty
or, in the case of service required to be credited for payments of back pay
awarded or agreed to, for a period during which an employee did not or would not
have performed duties.
To the extent not credited above, for periods of Authorized Leave of
Absence an Employee shall be credited with a number of Hours of Service for each
week of such Authorized Leave of Absence equal to the Employee's weekly average
number of Hours of Service scheduled for the six-week period immediately
preceding such Authorized Leave of Absence.
In any case in which an individual becomes an Employee upon the
acquisition of all or a portion of the business of his or her former employer by
the Employer or an Affiliate, whether by merger, acquisition of assets or stock,
or otherwise, his or her service with his or her predecessor employer shall be
included in determining his or her Hours of Service if, and to the extent that,
such service is required to be credited hereunder (A) by section 414(a) of the
Code and any regulations promulgated thereunder, (B) by the terms of the
agreement pursuant to which the business of such former employer was acquired by
the Employer or an Affiliate, or (C) by vote of the Board of Directors.
1.25 "Initial Enrollment Date" means the earliest date following the
Effective Date set by the Committee for Eligible Employees to apply to become
Members of the Plan.
1.26 "Investment Fund" means any one of the investment funds described
in Section 8.1 (Investment of Accounts Other than Employer Matching
Contributions Accounts).
1.27 "Investment Manager" means the individual and/or other entity
appointed in accordance with Section 12.3 (Investment
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Manager) who has acknowledged in writing that such individual is a fiduciary
with respect to the Plan and who is:
(a) registered as an investment adviser under the
Investment Advisers Act of 1940, or
(b) a bank, as defined in such Act, or
(c) an insurance company qualified to manage,
assign or dispose of assets of pension plans.
1.28 "Leased Employee" shall mean any person who pursuant to an
agreement between the Employer and any other person has performed services for
the Employer and related persons as defined in Code Section 414(n)(6) on a
substantially full time basis for a period of at least one year provided such
services are of a type historically performed in the business field of the
Employer by its Employees.
1.29 "Leave of Absence" means an absence or interruption of service
approved by the Committee under uniform and nondiscriminatory rules and
procedures. Members on leave of absence for service in the Armed Forces of the
United States, however, shall be deemed to have been on Leave of Absence,
provided they return to service with an Employer within the required time
limitations set forth in the then applicable laws governing reemployment rights
of persons inducted, or who have enlisted, in the Armed Forces.
1.30 "Member" means an Eligible Employee who has become a member of the
Plan in accordance with Article II (Eligibility and Membership). Each Member
shall continue to be such until the later of the date such Member ceases to be
an Eligible Employee or such Member's Accounts have been completely distributed.
1.31 "Parental Leave" means a period not in excess of two (2) years
commencing after December 31, 1984 during which an individual is absent from
work for any period:
(a) by reason of the pregnancy of the individual,
(b) by reason of the birth of a child of the
individual,
(c) by reason of the placement of a child with
the individual in connection with the adoption of such
child by such individual, or
(d) for purposes of caring for such child for a period beginning
immediately following such birth or placement.
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An absence from work shall not be a Parental Leave unless the Employee furnishes
the Plan Administrator such timely information as may reasonably be required to
establish that the absence from work was for one of the reasons specified in
this Section 1.32 and the number of days for which there was such an absence.
Nothing contained herein shall be construed to establish an Employer policy of
treating a Parental Leave as a Leave of Absence.
1.32 "Plan" means Quantum Chemical Savings & Stock Ownership Plan as
amended and restated on December 1, 1995 to become the Quantum Chemical
Retirement Savings & Investment Plan as set forth herein or as amended from time
to time.
1.33 "Plan Year" means the calendar year.
1.34 "Prior Plan" means an employee benefit plan qualified under Section
401(a) of the Code, all or part of the assets of which are transferred to the
Plan in a transaction which meets the requirements of Regulation 1.414(l) of the
Code. On the Effective Date "Prior Plan" includes the Thrift and Profit Sharing
Plan for Eligible Employees of National Distillers and Chemical Corporation (the
"Hourly Plan"), the Employees' Profit Sharing Plan of Trylon Chemicals Plant of
Emery Chemicals Division of National Distillers and Chemical Corporation (the
"Trylon Plan") and the USI Chemicals Co. Inc. Savings Plan (the "USI Plan").
1.35 "Prior Plan Account" means the separate account maintained for a
Member to record such Member's share of the Trust Fund attributable to employer
contributions to the plans described herein as Prior Plans.
1.36 "Required Beginning Date" means April 1 of the year following the
Plan Year in which occurs the date on which the Member attains the age of 70-1/2
years.
1.37 "Retirement" means a Member's normal, early or deferred retirement
whichever shall apply to the Member under the provisions of the Employer's
pension plan applicable to such Member, or the termination of employment of a
Member on or after such Member's attainment of age 65.
1.38 "Rollover Contribution" means an amount which is transferred from
another plan to this Plan, in accordance with the provisions of Section 2.7
(Rollover Contribution From Other Plans).
1.39 "Rollover Contribution Account" means the separate Account
maintained for a Member to record such Member's share of the Trust Fund
attributable to any Rollover Contribution made to the Plan on his behalf.
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1.40 "Service" means the period of employment beginning on the first day
the Eligible Employee performs duties for the Employer or an Affiliate and
ending on the day of quit, retirement, discharge or death, or two years after
the commencement of absence on account of parental Leave, or one year after an
authorized absence for any other reason. All prior periods of employment with
the Employer or an Affiliate, and breaks in employment of less than one year
shall be included in Service. If a break in employment of not more than two
years is on account of Parental Leave not more than one year of Service shall be
credited to an Eligible Employee for a period of Parental Leave.
1.41 "Suspense Account" means the separate account maintained for a
Member pursuant to Section 4.3.
1.42 "Total and Permanent Disability" means permanent incapacity which
results in a Member being unable to engage in regular employment or occupation
by reason of any medically demonstrable physical or mental condition acceptable
to the Committee on a nondiscriminatory basis and which would entitle the Member
to benefits under the Employer's long-term disability plan, if any, or to Social
Security benefits as evidenced by a disability award letter. However, no Member
shall be deemed to be disabled if such incapacity (a) was incurred, suffered or
occurred while the Member was engaged in, or resulted from having engaged in, a
criminal enterprise, or (b) was intentionally self-inflicted.
1.43 "Trustee" means the corporate trustee appointed from time to time
by the Company to administer the Trust Fund in accordance with Section 12.2
(Trustee).
1.44 "Trust Fund" means the trust fund established in accordance with
Section 12.1 (Trust Fund) from which benefits provided under this Plan will be
paid.
1.45 "Valuation Date" means the last business day of each calendar month
on which the New York Stock Exchange is open for trading.
ARTICLE II
Eligibility and Membership
2.1 Members of Prior Plans. Each person who was a member
of a Prior Plan shall become a member of the Plan on the
effective date of the transaction referred to in Section 1.34.
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2.2 Eligible Employees on and after the Effective Date. On and after the
Effective Date an Eligible Employee may elect to become a Member on the Initial
Enrollment Date or any Enrollment Date thereafter. Notwithstanding the
foregoing, a former employee who is reemployed as an Eligible Employee following
a termination of employment and who, prior to termination, satisfied the
conditions for membership in the Plan, shall be eligible to become a Member of
the Plan immediately upon reemployment, subject to such advance notice
procedures as the Committee shall prescribe.
2.3 Completion of Appropriate Notice. In order to become a Member on any
Enrollment Date, an Eligible Employee must give the Appropriate Notice to the
Committee at least 30 days (or such other period as the Committee may prescribe)
prior to that Enrollment Date.
2.4 Elections Upon Becoming A Member. An Eligible Employee, in giving
the Appropriate Notice specified in Section 2.3, shall (a) authorize the
Employer to reduce current compensation for Compensation Deferral Contributions
pursuant to Section 3.1 (Compensation Deferral Contributions ), (b) make an
investment election from among those options enumerated in Section 8.1
(Investment of Accounts other Than Employer Matching Contributions Accounts),
and (c) designate a Beneficiary in accordance with Section 2.5 (Beneficiary
Designation). Any such payroll authorization, investment election or Beneficiary
designation shall remain in effect until changed by giving the Appropriate
Notice to the Committee subject to the provisions of the Plan.
2.5 Beneficiary Designation. Each Member shall designate a Beneficiary
by giving the Appropriate Notice to the Committee. The designated Beneficiary
may be an individual, estate or trust; however, if the Member is married at the
time of such Member's death, such Member's surviving spouse shall automatically
be such Member's sole Beneficiary unless the spouse has consented in writing in
accordance with Section 10.9 (Spousal Consent) to a designation of a different
Beneficiary. If more than one individual or trust is named, the Member shall
indicate the shares and/or precedence of each individual or trust so named. Any
Beneficiary so designated may be changed by the Member at any time (subject to
his spouse's consent, if applicable) by giving the Appropriate Notice to the
Committee.
In the event that no Beneficiary has been designated or that no
designated Beneficiary survives the Member, the following Beneficiaries (if then
living) shall be deemed to have been designated in the following priority: (a)
spouse, (b) children, including adopted children, in equal shares, (c) parents,
in equal shares, or the Member's surviving parent, if only one parent survives,
and (d) Member's estate.
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2.6 Transfers to or from Non-Covered Status. If a Member ceases to meet
the definition of Eligible Employee as set forth in Section 1.13 (Eligible
Employee) but continues to be an Employee or an employee of an Affiliate, such
Member's right to make or have contributions made on such Member's behalf to the
Plan shall be suspended. If during the period of suspension, a Member's
employment with the Employer or an Affiliate terminates for any reason, there
shall be a distribution of such Member's Accounts in accordance with the
provisions of Article X (Distribution).
If and when the suspended Member again becomes an Eligible Employee,
such Member may resume having Compensation Deferral Contributions made on such
Member's behalf as of any payroll date thereafter by giving Appropriate Notice
to the Committee not less than 30 days (or such other period as the Committee
may prescribe) prior to such payroll date.
2.7 Rollover Contributions From Other Plans. An Eligible Employee or an
individual who meets the definition of Eligible Employee in Section 1.13 except
for the age or service requirements, who is in receipt of a distribution which
is eligible to be "rolled over" to a qualified plan in accordance with
applicable Code sections may, in accordance with and subject to such rules and
procedures approved by the Committee, transfer all or part of such distribution
into the Plan; provided, that distributions which are so transferred to the Plan
shall consist only of cash and that such transfer shall be in conformity with
requirements set forth in the Code.
Upon approval by the Committee, the amount transferred to the Plan shall
be deposited in the Trust Fund in cash and shall be credited to a Rollover
Contribution Account.
If a Rollover Contribution is made on behalf of an individual who has
not yet become a Member, such individual shall be deemed a Member upon the
establishment of the Rollover Contribution Account; however, participation in
the Plan shall be limited to the Rollover Contribution Account until the other
requirements for membership under this Article II are fulfilled.
ARTICLE III
Compensation Deferral Contributions
3.1 Compensation Deferral Contributions. Each Member who is an Eligible
Employee may elect to have the Employer make Compensation Deferral Contributions
not to exceed $9,500 per year (subject to adjustment for inflation in accordance
with Section 415(d) of the Code) to the Plan on such Member's behalf to be
credited to such Member's Compensation Deferral Contributions
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Account, in which case the cash compensation otherwise payable by the Employer
to the Member shall be reduced by an amount equal to the Compensation Deferral
Contributions so made. Subject to the limitations prescribed in Section 4.1 the
amount of Compensation Deferral Contributions in any payroll period shall be in
whole percentages from 1% to 17% of the Member's Compensation as the Member
shall designate (or such greater or lesser percentages as the Committee may from
time to time prescribe for the Plan).
The foregoing notwithstanding during the "make up period," as defined
below, a former Member (a "Veteran") who is reemployed after a period of
military service may elect to have the Employer make additional Compensation
Deferral Contributions to the Plan on such Veteran's behalf, the total of which
may not exceed the maximum Compensation Deferral Contributions that the Veteran
could have elected to have made if no military leave had occurred. For the
purposes of calculating the amount of such additional Compensation Deferral
Contributions the Veteran's Compensation during such leave of absence shall be
deemed to have been the Veteran's annual rate of compensation at the time the
military leave of absence commenced (the 'Deemed Compensation Rate') and the
'make up period' during which such additional Compensation Deferral
Contributions may be elected shall be equal to the lesser of five years or three
times the period of the military leave of absence. Such additional Compensation
Deferral Contributions in any payroll period shall be in whole percentages of
the Veteran's current payroll and shall not exceed the maximum amount that could
have been deferred at the Deemed Compensation Rate. In the event that the
additional Compensation Deferral Contributions to the Plan on a Veteran's behalf
that are authorized by this paragraph exceed the limitations set forth in
Article IV of the Plan or otherwise conflict with provisions of the Code or
ERISA, such conflicts shall be ignored pursuant to the Uniformed Services
Employment and Reemployment Act through and including October 1, 1996.
3.2 Changes and Suspension of Contributions. Compensation Deferral
Contributions made on a Member's behalf may be increased or decreased or
suspended effective on the second Enrollment Date following the month in which
the Appropriate Notice is given to the Committee. A Member who has suspended
Compensation Deferral Contributions may resume having such contributions made on
his or her behalf commencing on the second Enrollment Date following the month
in which the Appropriate Notice is given to the Committee.
3.3 Transfer of Contributions to Trustee. Contributions made under this
Article III will be transferred to the Trustee as soon as reasonably possible
following the month in which the contributions are withheld from the Member's
Compensation and/or in which the Member's cash compensation is reduced; provided
that all Compensation Deferral Contributions for a Plan Year shall be
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transferred to the Trustee not later than 30 days after the end of the Plan
Year.
ARTICLE IV
Limitations on, and Distribution of, Excess Compensation
Deferral Contributions and Excess Employer Matching
Contributions of Highly Compensated Employees
4.1 Limitations. The Committee in its sole discretion shall separately
limit the amount of Compensation Deferral Contributions and Employer Matching
Contributions made on behalf of each "Highly Compensated Employee" (as defined
below) for each Plan Year to insure that neither the Deferral Percentage nor the
Contributions Percentage (each as defined below and referred to herein as the
"Percentage") exceed the greater of (X) 125 percent of the Percentage of all
other eligible employees or, alternatively, (Y) the Percentage of all other
eligible employees plus 2 percentage points and the actual Percentage for the
Highly Compensated Employees is not more than two times the actual Percentage of
all other eligible employees.
Additionally, Employer Matching Contributions shall not in any event
discriminate in favor of Highly Compensated Employees.
For purposes of this Section, the term "Deferral Percentage" with
respect to any Plan Year means the Compensation Deferral Contributions for the
Plan Year divided by Compensation.
For purposes of this Section, the term "Contributions Percentage" with
respect to any Plan Year means the Employer Matching Contributions for the Plan
Year divided by Compensation.
For the purposes of this Section, the term "Highly Compensated Employee"
with respect to any Plan Year means an Eligible Employee or former Eligible
Employee who performed services during the Plan Year for which the determination
is being made and at any time during such Plan Year or preceding Plan Year:
(a) was a 5-percent owner of the Employer (as defined for
top-heavy plans under Code Se. 416(1); or
(b) earned more than $75,000 (subject to adjustment for inflation in
accordance with Section 415(d) of the Code) in annual Compensation from
the Employer; or
(c) earned more than $50,000 (subject to adjustment for inflation in
accordance with Section 415(d) of the Code) in annual Compensation from
the Employer and was a member of the top-paid group of employees (i.e.
the top 20% of employees in compensation) during the same year; or
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(d) was an officer (within the meaning of code Section 416(i) except
that if there are none, the highest paid Employee of the Employer) of
the Employer and received 150 percent of the dollar limit on annual
additions to a defined contribution plan. For purposes of this
definition the number of persons who are considered officers of the
Employer shall not exceed 50 (or, if lesser, the greater of 3 employees
or 10 percent of the employees); and
(1) An Eligible Employee will not be considered as satisfying the conditions
described in (b), (c) or (d) for the Plan Year for which the determination is
being made unless he or she is also one of the 100 employees receiving the most
compensation for such year.
(2) For the purposes of this Section, the term "Compensation" means Compensation
within the meaning of Code Section 415(c)(3) plus elective or salary reduction
contributions to a cafeteria plan, cash or deferred arrangement or tax sheltered
annuity.
(3) For the purpose of this Section the term "Employer" shall also include all
other entities aggregated with the Employer under the requirements of Code
Section 414(b), (c), (m) and (o).
For purposes of this Section, the Employer is permitted to determine
whether Members are in the category of Highly Compensated Employees or other
Eligible Employees based on the Member's Compensation for the immediately
preceding Plan Year or on estimated Compensation for the Current Plan Year in
accordance with uniform and nondiscriminatory rules whenever information
regarding actual Compensation for the Plan Year is not reasonably available at
the time the amount of a contribution hereunder is determined or limited.
For purposes of this Section the Percentage attributable to a Highly
Compensated Employee who is either a 5% owner or one of the ten most highly
compensated Employees shall be the Percentage for such Employee's family group,
viz., such Employee's spouse and his or her lineal ascendants and descendants
(and their spouses). The Percentage for such family groups (treated as one
highly compensated employee) shall be the greater of (X) the Percentage
determined by combining the contributions and compensation of all eligible
family members who are Highly Compensated Employees or (Y) the Percentage
determined by combining the contributions and compensation of all eligible
family members.
For purposes of this Section the definition of "Compensation Deferral
Contributions" and "Employer Matching Contributions" shall include Compensation
Deferral Contributions and Employer Matching Contributions made under any other
plan that is aggregated with this Plan for purposes of Sections 401(a)(4) or
410(b) (other than Section 410(b)(2)(A)(ii)) of the Code and if any such
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plan is permissively aggregated with this Plan for the purposes of Section
401(k) of the Code, the plans so aggregated must also satisfy Section 401(a)(4)
and 410(b) as if they were a single plan. Further, for the purposes of this
Section, Compensation Deferral Contributions made on behalf of each Highly
Compensated Employee shall be determined by treating all cash or deferred
arrangements under which each such Highly Compensated Employee is eligible as a
single arrangement.
4.2 Control of Compensation Deferral Contributions and Employer Matching
Contributions and Distribution of Excess.
(a) Rules for Compensation Deferral Contributions. The Committee may, in
accordance with uniform and nondiscriminatory rules it establishes from time to
time, require that Participants who are among the Highly Compensated Employees
for the Plan Year make Compensation Deferral Contributions elections following
and/or preceding the completion of such elections by all other Eligible
Employees and the Committee may (X) limit the amount by which each Participant
who is among the Highly Compensated Employees may elect to reduce his or her
Compensation, and (Y) subject to Section 402(g) of the Code permit each other
Eligible Employee to elect to reduce his or her Compensation within higher
limits than those for Highly Compensated Employees.
In the event that it is determined prior to the close of any Enrollment
Period that the amount of Compensation Deferral Contributions to be made with
respect to such Enrollment Period would cause the limitation contained in this
Section to be exceeded for the Plan Year in which such Enrollment Period occurs,
the amount of Compensation Deferral Contributions allowed to be made on behalf
of Highly Compensated Employees for such Enrollment Period shall be reduced. The
Highly Compensated Employees to whom the reduction is applicable, and the amount
of the excess Compensation Deferral Contributions, shall be determined by
reducing the actual Deferral Percentage of the Highly Compensated Employee with
the highest actual Deferral Percentage to the extent required to--
(i) enable the arrangement to satisfy the limita-
tion set forth in Section 4.1 above; or
(ii) cause such Highly Compensated Employee's actual Deferral
Percentage to equal the Deferral Percentage of the Highly Compensated
Employee with the next highest actual Deferral Percentage. The
"leveling" process described in paragraph (i) or (ii)
shall be repeated until the limitations set forth in this Section
are satisfied.
If the Committee determines that the limitations contained in this
Section have not been met for any Plan Year, the Commit-
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tee may return the excess Compensation Deferral Contributions of Participants
who are Highly Compensated Employees (calculated in the manner set forth above)
to such Participants within the 12-month period beginning after the last day of
the Plan Year for which such contributions were made. The amount of such excess
Compensation Deferral Contributions shall be adjusted to reflect any income or
loss allocable to such excess during the Plan Year determined in accordance with
the alternative method set forth in Reg. Section 1.401(k)-1(f)(4)(ii)(c) and
also from the end of the Plan Year to the date of distribution determined in
accordance with the safe harbor method set forth in Reg. Section 1.401(k)-
1(f)(4)(ii)(d). In addition, Employer Matching Contributions that are
attributable to excess Compensation Deferral Contributions shall be deemed
Excess Aggregate Contributions and shall be forfeited or distributed as provided
in paragraph (b), below.
The amount of excess Compensation Deferral Contributions to be returned
under this section shall be reduced, however, by the amount of any Compensation
Deferral Contributions that have previously been distributed pursuant to Section
4-3 for the taxable year ending in the same plan year and conversely
Compensation Deferral Contributions that are to be distributed pursuant to
section 4-3 shall be reduced by the amount of any excess Compensation Deferral
Contribution previously distributed under this section for the plan year
beginning in such taxable year.
For the purpose of this Section, if the Deferral Percentage of a Highly
Compensated Employee has been determined by combining the contributions and
compensation of only family members who are Highly Compensated Employees without
regard to family aggregation, then the excess Deferred Contributions for the
family unit shall be allocated among the family members in proportion to the
contribution of each family member that has been combined.
Alternatively, if the Deferral Percentage of a Highly Compensated Employee
has been determined by combining the contributions and compensation of all
family members, then the reduction in the Deferral Percentage of the family
group using the method described in this Section shall not be reduced below the
Deferral Percentage for the non-highly paid members of the family group and the
excess Compensation Deferral Contributions for the family unit shall be
allocated among the Highly Paid family members in proportion to their
contributions.
(b) Rules for Employer Matching Contributions. In the event that it is
determined prior to the close of any Enrollment Period that the amount of
Employer Matching Contributions to be made with respect to such Enrollment
Period would cause the limitation contained in this Section to be exceeded for
the Plan Year in which such Enrollment Period occurs, the amount of Employer or
Matching Contributions allowed to be made on behalf
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of Highly Compensated Employees for such Enrollment Period shall be reduced. The
Highly Compensated Employees to whom the reduction is applicable, and the amount
of the excess shall be determined by reducing the Employer Matching
Contributions of the Highly Compensated Employee with the highest actual
Contributions Percentage to the extent required to--
(i) enable the arrangement to satisfy the limitation
set forth in Section 4-1 above; or
(ii) cause such Highly Compensated Employee's actual Contribution
Percentage to equal the Contribution Percentage of the Highly
Compensated Employee with the next highest actual Contribution
Percentage.
The "leveling" process described in paragraph (a) or (b) shall be
repeated until the limitations set forth in this Section are satisfied.
Excess Aggregate Contributions plus any income and minus any losses
allocable thereto, shall be forfeited, if not vested, or if not forfeitable,
distributed, no later than the last day of each Plan Year to those Participants
to whose Accounts such Excess Aggregate Contributions were allocated for the
preceding Plan Year. Employer Matching Contributions which are forfeited shall
be credited against Employer Matching Contributions required to be made to
Participant's accounts in the Plan Year following the Plan Year that the excess
Employer Matching Contributions were allocated to Participant's accounts
provided, however, any excess which has not been so credited within two and one
half months after the end of the Plan Year shall be immediately refunded to the
Employer.
For the purpose of this Section, if the Contributions Percentage of a
Highly Compensated Employee has been determined by combining the contributions
and compensation of only family members who are Highly Compensated Employees
without regard to family aggregation, then excess Aggregate Contributions for
the family unit shall be allocated among the family members in proportion to the
contribution of each family member that has been combined.
Alternatively, if the Contributions Percentage of a Highly Compensated
Employee has been determined by combining the contributions and compensation of
all family members, then the reduction in the Contributions Percentage of the
family group using the method described in this Section shall not be reduced
below the Deferral Percentage for the non-highly paid members of the family
group and the excess Aggregate Contributions for the family unit shall be
allocated among the Highly Paid family members in proportion to their
contributions.
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(c) Multiple Use Limitations. If the actual Deferral Percentage, the
actual Contribution Percentage, and the sum of the two percentages for the group
of Highly Compensated Employees in the Plan exceed the limits set forth in Regs.
1.401(m)-2(b) then in such case the required reduction of multiple use of the
alternate limitation shall be accomplished through reduction of the actual
Deferral Percentage for all Highly Compensated Employees eligible to participate
in the Plan in accordance with the procedures prescribed in Regs. 1.401(m)-2(b)
which are incorporated herein by reference.
4.3 Limitation of Annual Additions.
(a) Notwithstanding anything herein to the contrary, in no event
shall the Annual Additions (as hereinafter defined) with respect to any
Member in any Plan Year exceed the Maximum Annual Addition. A Member's
"Maximum Annual Additions" means the lesser of (i) 25% of the Member's
compensation reported on Form W-2 or (ii) the dollar limit in effect for
such Plan Year in accordance with Section 415(c)(1)(A) of the Code
($30,000 as hereafter adjusted for inflation in accordance with Section
415(d) of the Code),
(b) For purposes of this Section 4.3 the term
"Annual Additions" means the sum for any Plan Year of
(i) Compensation Deferral Contributions
made in accordance with Section 3.1 (Compen-
sation Deferral Contributions),
(ii) Employer Matching Contributions including forfeitures
as applied in accordance with Section 5.1 Amount of Employer
Matching Contributions) and Section 5.2 (Treatment of
Forfeitures).
(iii) The amount of annual additions (within the meaning
of Section 415(c)(2) of the Code) under all other qualified
defined contribution plans of the Employer or an Affiliate.
(c) If the Member's Annual Additions exceed the Maximum Annual
Additions limitations in accordance with this Section 4.3, such amounts
shall not be contributed to the Trust or, if contributed by or on behalf
of a Member under the Plan shall be reduced in the following order, but
only to the extent necessary to meet the limitations: (i) Compensation
Deferral Contributions and (ii) Employer Matching Contributions in
respect of such reduced Compensation Deferral Contributions.
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(d) Combined Fraction.
(i) Notwithstanding the foregoing, if a Member is a
participant in any qualified defined benefit plan maintained by
an Employer or an Affiliate, the sum of the "Defined Benefit Plan
Fraction" (as defined below) and the "Defined Contribution Plan
Fraction" (as defined below) for such Member shall not exceed 1.0
(called "Combined Fraction"). If for any Plan Year the Combined
Fraction of a Member exceeds 1.0 after application of provisions
for limitation of benefits under all such qualified defined
benefit plans, the Maximum Annual Additions of such Member shall
be reduced as provided in Section 4.3(c) to the extent necessary
to reduce the Combined Fraction of such Member to 1.0.
(ii) The "Defined Benefit Plan Fraction" applicable to a
Member for any Plan Year is a fraction, the numerator of which is
the sum of the Projected Annual Benefit of the Member under all
of the qualified defined benefit Plans maintained by the Employer
or an Affiliate, (whether or not terminated) in which such Member
participates (determined as of the close of the Plan Year) and
the denominator of which is the lesser of (A) the product of 1.25
multiplied by the maximum dollar limitation on a Member's
Projected Annual Benefit if the plan provided the maximum benefit
allowable under Section 415(b) of the Code for such Plan Year, or
(B) the product of 1.4 multiplied by 100% of the Member's Highest
Average Compensation.
Notwithstanding the above, if the Member was a participant
in one or more defined benefit plans maintained by the Employer
which were in existence on July 1, 1982, the denominator of this
fraction will not be less than 1.25 multiplied by the sum of the
annual benefits under such plans which the Member had accrued as
of the later of September 30, 1983, or the last limitation year
beginning before January 1, 1983. The preceding sentence applies
only if defined benefit plans individually and in the aggregate
satisfied the requirements of Section 415 of the Code as in
effect at the end of the 1982 limitation year.
(iii) The "Defined Contribution Plan Fraction" applicable
to a Member for any Limitation Year is a fraction, the numerator
of which is the sum of the Member's Annual Additions as of the
close of such Plan Year for that Plan Year and for all prior Plan
Years under all of the defined contribution plans maintained by
an Employer or an Affiliate in which Member participates, and the
denominator of which is the lesser of
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the following amounts (determined for such Plan Year and for each
prior Plan Year of service with the Employer or any Affiliate
regardless of whether a plan was in existence during those
years): (A) the product of 1.25 multiplied by the dollar
limitation in effect under Code Section 415(c)(1)(A) for the Plan
Year (determined without regard to the special dollar limitation
for employee stock ownership plans), or (B) the product of 1.4
multiplied by twenty-five percent of the Member's Compensation
for the Plan Year.
(e) Definitions.
(i) "Highest Average Compensation" means the average of a
Member's high three consecutive Plan Years (determined as of the
close of the Plan Year) of employment with the Employer or the
actual number of years of employment for those Members who are
employed for less than three consecutive years with the Employer.
(ii) "Projected Annual Benefit" means the annual benefit a
Member would receive from employer contributions under a defined
benefit plan, adjusted, in the case of any benefit payable in a
form other than a single life annuity or a qualified joint and
survivor annuity, to the actuarial equivalent of a single life
annuity, assuming (A) the Member continues employment until
reaching the plan's normal retirement age (or the Member's
current age, if later), (B) compensation remains unchanged and
(C) all other relevant factors used to determine benefits under
the plan remain constant in the future.
(f) In the event that, notwithstanding the foregoing provisions
of this Section 4.3, the limitations with respect to Annual Additions
prescribed hereunder are exceeded with respect to any Member and such
excess arises as a consequence of reasonable error in estimating a
Member's compensation or such other circumstances as the Secretary of
Treasury shall permit, the Employer Matching Contributions portion of
such excess shall be held in a Suspense Account and, if such Member
remains a Member, shall be used to reduce Employer Matching
Contributions for such Member for the succeeding Plan Years, and, if
such Member ceases participating in the Plan, shall be used to reduce
Employer Matching Contributions for all Members in the Plan Year of
cessation and succeeding Plan Years, as necessary. Compensation Deferral
Contributions which have been made to the Trust and are reduced under
Section 4.3(c) shall be refunded to the Member as soon as
administratively convenient. Any Employer Matching Contributions
including Forfeitures re-
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maining upon Plan Termination which cannot be allocated to Members in
accordance with the foregoing in the Plan Year of termination of the
Plan shall be returned to the Employer.
(g) For purposes of this Section 4.3, the standard of control for
determining if a company is an Affiliate under Section 414(b) and 414(c)
of the Internal Revenue Code shall be deemed to be "more than 50%"
rather than "at least 80%."
ARTICLE V
Employer Matching Contributions
5.1 Amount of Employer Matching Contributions. The Employer shall make
matching contributions to the Plan, with respect to each payroll period on
behalf of each Member who is an Eligible Employee, equal to 50% (or such greater
percentage, not exceeding 100%, as the Board may from time to time authorize) of
that portion of the Member's Compensation Deferral Contributions which do not
exceed 6% (or such other percentage as the Board may from time to time permit)
of Compensation in such payroll period. The Board of Directors may, in its
discretion, discontinue Employer Matching Contributions with respect to Members'
Compensation Deferral Contributions for Compensation not yet earned on the date
such Employer Matching Contributions are discontinued.
5.2 Treatment of Forfeitures. Any amounts forfeited in accordance with
Sections 7.4 (Forfeitures) and 14.6 (Unclaimed Amounts) shall be applied as a
credit towards the amount of Employer Matching Contributions otherwise required
under Section 5.1. However, if pursuant to Section 5.1, Employer Matching
Contributions are discontinued, for Plan Years following the Plan Year in which
such discontinuance occurs, any such forfeited amounts in excess of the amounts
required to restore forfeited amounts to the Employer Matching Contributions
Accounts of Members who are reemployed in accordance with Section 7.4 shall be
allocated as of the last day of the Plan Year to the Member's Employer Matching
Contributions Accounts in an amount equal to the amount of such forfeited
amounts available for allocation multiplied by a fraction the numerator of which
is the Member's Compensation Deferral Contributions for the Plan Year not in
excess of six percent of such Member's Compensation and the denominator of which
is the aggregate of all Members' Compensation Deferral Contributions not in
excess of six percent of all such Members' Compensation.
5.3 Transfer of Contributions to Trustee. Employer Matching
Contributions under this Article V with respect to each payroll period shall be
paid to the Trustee as soon as practicable after the close of the month in which
such payroll period ends (but in no event later than 60 days after the last day
of
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such month) and such Employer Matching Contributions (inclusive of the credit
for forfeitures as provided in Section 5.2) shall be credited as of the last day
of such month to each Member's Employer Matching Contributions Account.
ARTICLE VI
Accounts
6.1 Maintenance of Accounts. For each Member the Committee shall, where
applicable, cause a separate Compensation Deferral Contributions Account, an
Employer Matching Contributions Account, an ESOP Account, a Rollover
Contribution Account and a Prior Plan Account to be maintained. For Employee
contributions made to a Prior Plan which were not Compensation Deferral
Contributions the Committee shall continue to maintain a separate Employee
Contributions Account.
6.2 Valuations. As of each Valuation Date, the Committee shall direct
that the Accounts of each Member be adjusted to reflect the Member's share of
contributions (including for this purpose contributions made after such
Valuation Date but credited as of such Valuation Date), amounts of principal or
interest paid or accrued in respect of a loan made to such Member pursuant to
Section 9.5, withdrawals, distributions, forfeitures, income, expenses payable
from the Trust Fund and any other increase or decrease in the value of Trust
Fund assets since the preceding Valuation Date.
ARTICLE VII
Vesting of Accounts
7.1 Employer Matching Contributions Account. A Member's interest in the
Member's Employer Matching Contributions Account shall become 100% vested after
completion of at least five years of Service provided, however, that (a) each
Member of the Plan who was employed on the Effective Date shall be 100% vested
in all past and future Employer Matching Contributions, (b) Employer Matching
Contributions to accounts of Highly Compensated Employees shall not be deemed to
vest until the Deferral Percentage and Contributions Percentage limitations set
forth in Article IV have been satisfied and (c) nothing herein shall delay
vesting pursuant to the provisions of a Prior Plan.
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7.2 Other Accounts. Interests in Compensation Deferral Contributions
Accounts, Prior Plan Accounts, ESOP Accounts, Rollover Contribution Accounts and
Employee Contributions Accounts shall be fully vested at all times.
7.3 Earlier Vesting in Employer Matching Contributions Accounts.
Notwithstanding the foregoing, a Member's interest in his or her Employer
Matching Contributions Account shall be fully vested (a) on the date of
termination of employment by reason of death, Retirement or Total and Permanent
Disability, (b) when and if this Plan shall at any time be terminated for any
reason, (c) upon the complete discontinuance of contributions by the Employer
hereunder, or (d) upon partial termination of this Plan if such Member is a
member affected by such partial termination.
7.4 Forfeitures. A Member's Employer Matching Contributions Account
which is not vested in accordance with this Article VII at the time of such
Member's termination of employment shall be forfeited as of the last day of the
Plan Year in which the Member has a termination of employment. However, if a
Member who has a termination of employment is reemployed before the end of a
period of five consecutive Plan Years beginning with the Plan Year in which the
Member has a termination of employment and during which the Member is not an
Employee on the last day of each Plan Year, any forfeited amounts shall be
restored to the Member's Employer Matching Contributions Account. For purposes
of the preceding sentence, any Plan Year in which a Member is absent from work
on the last day of the Plan Year by reason of a Parental Leave shall not be
counted as one of the Plan Years in such a period of five consecutive Plan Years
and the Plan Year immediately preceding the Plan Year immediately following a
Plan Year in which such Member is absent from work on the last day of the Plan
Year by reason of Parental Leave shall be deemed to be consecutive.
Amounts required to be restored to the Employer Matching Contributions
Accounts of a Member shall be reinstated, to the extent not contributed by an
Employer, out of amounts forfeited under this Section 7.4 or 14.6 (Unclaimed
Amounts) for the Plan Year and, to the extent such forfeitures are not
sufficient, shall be charged ratably against income of the Trust Fund.
ARTICLE VIII
Investment of Accounts
8.1 Investment of Accounts Other Than Employer Matching Contributions
Accounts. Effective as of June 1, 1996 or thereafter on becoming a Member, each
Member (1) may elect to participate in the Self-Directed Window investment
program described in Section 8.9, below and (2) shall also direct that
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Compensation Deferral Contributions, Prior Plan, Rollover Contributions and
Employee Contribution Accounts (to the extent not invested, or not permitted to
be invested in the Self-Directed Window) be invested in increments of 5% in one
or more of the following Investment Funds (or such other Fund as may hereafter
be approved by the Committee, the "Core Funds") which individually and
collectively (including the Self-Directed Window program) are designed to
conform to DOL Regulation 2550.404c-1 for so-called Section 404(c) plans in
order that fiduciaries of the Plan may be relieved of liability for any losses
which are the direct and necessary result of Member's investment directions:
(a) The Company Stock Fund, which is invested in Employer
Securities. Members will not be permitted to direct that an investment
be made in the Company Stock Fund unless and until the Member has
received a prospectus in respect of Employer Securities in the Company
Stock Fund which meets the requirements of the Securities Act of 1933 or
in the opinion of counsel for the Company such investment may be
otherwise permitted.
(b) The Fixed Income Fund, which is principally invested in fixed
income obligations that are consistent with capital preservation
including group annuity contracts with life insurance companies, deposit
agreements with banks, obligations of the United States Government or
its agencies, asset-backed securities of selected insurers and high
quality corporate bonds. The Fund seeks a target rate of return over a
specified period of at least six months.
(c) The BT Investment Equity Appreciation Fund, which is invested
in stocks of medium-sized companies in high-growth industries. The Fund
focuses on industries most likely to benefit from large scale changes
taking place in society. Investments in medium-sized companies in high
growth industries offers greater volatility than investments in larger
companies in mature industries.
(d) The BT Investment International Equity Fund, which is
invested in stocks of established companies in countries with strong
economies primarily in Europe and the Pacific Basin. Investments in
companies outside the United States offer increased diversification with
broadened opportunity and potentially high returns.
(e) Three BT Investment Lifecycle Funds, which are each invested
in a continuously monitored mix of stocks, bonds and money market
instruments keyed to the investor's investment term and risk tolerance:
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I. The Short Range Fund, concentrates on securities
offering high income yield with less potential for
growth. Suitable for investment terms of five or
fewer years.
II. The Mid-Range Fund seeks a balance between investments
offering high income yield and those offering more growth
potential for the medium term.
III. The Long Range Fund pursues higher growth and income
investments while reducing exposure to market volatility
through the benefits of investing for longer terms.
8.2 Redirection of Future Contributions. A Member's investment direction
under Section 8.1 may be changed at any time and will be effective for
contributions received for the current month provided that the Appropriate
Notice is received by the Committee before 2 P.M. Eastern Time on the last
business day of the month. Such change in direction will not be effective as to
amounts previously contributed or invested.
8.3 Reinvestment of Prior Contributions.
(a) Effective on the Enrollment Date following the
month in which the Appropriate Notice is received by the Committee (not
later than 2 P.M. Eastern Time on the last business day of the month) a
Member may direct that up to the total value in any Investment Fund
holding investments from the Member's Compensation Deferral
Contributions Account, Prior Plan Account, Rollover Contribution Account
or Employee Contributions Account be transferred from such Investment
Fund to any other Investment Fund in increments of 5%. The value of any
account or portion thereof to be reinvested shall be determined on the
Valuation Date immediately preceding the month of transfer.
(b) The Committee may, in its sole discretion, impose at any time
or from time to time such restrictions on the transfers of monies from
one Investment Fund to another as it deems necessary or appropriate.
8.4 Investment of ESOP Accounts, Prior Plan Accounts and Employer
Matching Contributions Accounts. ESOP Accounts (except as to diversified ESOP
Accounts as herein provided), Prior Plan Accounts, Employer Matching
Contributions and dividends on Employer Securities shall be invested only in
Employer Securities through the Company Stock Fund.
8.5 Statements of Accounts And Confirmation of Investment
Directions.
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(a) Statements of Accounts. Each Member shall be furnished a
quarterly statement of accounts. A statement of accounts shall
also be furnished to a Member upon any distribution being made
under the Plan.
(b) Confirmations of Investment Directions. All
investment directions given by Members under the Plan
shall be confirmed in writing.
8.6 Crediting of Accounts. Interests in each of the Investment Funds
shall be credited to each Member's Accounts as units of value determined
separately for each Investment Fund, as follows:
(a) the initial value of a unit in each Investment
Fund on the date the fund is established shall be one dollar
(b) the unit of value of each Investment Fund shall be
redetermined on each Valuation Date by dividing the then fair market
value of all of the assets of such Investment Fund by the number of
units therein then outstanding. Amounts held as a result of forfeiture
shall not be included in the value of the Company Stock Fund in
determining the unit of value; and
(c) contributions to a fund after the date that the fund is
established will be credited to the Member's Accounts as units of value,
the number of which is determined by dividing the dollar amount of the
contribution by the then current unit of value.
If a suspense account credited in accordance with Section 4.3(f) is in
existence on a Valuation Date, the number of units of value in the suspense
account shall be adjusted as of each Valuation Date so that such an account does
not participate in the Trust's investment gains or losses. To the extent a
Member's Accounts are invested pursuant to Section 9.5 in a loan to a Member,
the Member's Accounts shall be credited and charged directly with income, gains,
losses and expenses attributable to such loan as of each Valuation Date and the
value of the account will be adjusted through the date of a distribution to
reflect the value of such direct investments on the distribution date. A
Member's loan principal and interest payments shall be credited to the Member's
Accounts which are invested in such loans pursuant to Section 9.5 and such
payments shall be invested in accordance with the Member's investment directions
for such Accounts pursuant to Sections 8.1 or 8.2 as the situation may require.
8.7 Correction of Errors. In the event of an error in the
adjustment of a Member's Account, the Committee, in its sole
discretion, may correct such error by either crediting or charg-
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ing the adjustment required to make such correction to or against Forfeitures
for the Plan Year or to or against income as an expense of the Trust for the
Plan Year in which the correction is made, or if an Employer contributes an
amount to correct any such error, from such amount. Except as provided in this
Section, the Accounts of other Members shall not be readjusted on account of
such error.
8.8 Investment of Deferred Distributions. Except for Employer Matching
Contributions, undiversified ESOP Accounts and Prior Plan Accounts which shall
continue to be invested in the Company Stock Fund an account maintained for the
benefit of a Member after his or her termination of employment shall be invested
by the Trustee only in the Fixed Income Fund. Any required changes in existing
investment elections shall be effected by the Trustee as of the second
succeeding Transaction Date.
8.9 The Self-Directed Window.
(a) Definition. The Self-Directed Window is an individual account
with a registered broker-dealer (the "Broker") nominated by the Committee which
holds funds eligible to be transferred from the Core Funds pursuant to uniform
non-discriminatory procedures prescribed by the Committee to be invested at the
direction of the Member in any tradable securities which can be maintained by
the Broker, subject, however, to limitations on such investments that are
required to conform to DOL Reg. 2550.404c-1 for Section 404(c) plans.
(b) Establishing The Self-Directed Window. To open a
Self-Directed Window account a Member may be required to enter into a
Self-Directed Window Agreement with the Broker and, in connection therewith, to
enter into a limited power of attorney to permit both the Trustee and the Broker
to act for the Member to insure that the Plan will continue to be a qualified
plan and will otherwise conform to the requirements of law. An account
origination fee and monthly maintenance fees which are deemed reasonable by the
Committee may be deducted from account balances invested in Core Funds.
(c) Transfers to the Self-Directed Window. A Member may transfer
funds once during each Enrollment Period into the Member's Self-Directed Window.
Accounts from which funds may be transferred are: Compensation Deferral
Contributions Accounts, Prior Plan Accounts and Rollover Contribution Accounts.
Initial transfers shall be not less than $1,000 and each transfer thereafter
shall be not less than $100. The Committee may prescribe such non-discriminatory
restrictions to control fund transfers as may be necessary and proper to
accommodate the administrative requirements of the Trust including (i) limits on
concurrent transactions such as loans and withdrawals (ii)
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controls to prevent losses due to market fluctuations and (iii) minimum balances
in Trust Fund investments to provide security for expenses.
(d) Transfers of Funds From Self-Directed Window. A Member may
make return transfers of not less than $100 to the Core Funds once during each
Enrollment Period. The Committee may prescribe or approve such
non-discriminatory regulations to control such transfers as may be necessary and
proper to insure orderly administration of such transactions including rules
applicable to (i) Member responsibility for the liquidation of investments to be
transferred, (ii) the prevention of exposure to market risks during the transfer
process, and (iii) where applicable, liquidation of all or a portion of such
account in connection with mandatory lump sum distributions or other actions to
maintain Plan qualification or otherwise comply with applicable law.
ARTICLE IX
Withdrawals and Loans During Employment
9.1 Withdrawal Options. In addition to a Member's right to
diversify his or her ESOP Account pursuant to Section 16.1, in any twelve-month
period a Member may make one withdrawal from the Plan that is not less than $500
or the combined total of all of the eligible funds in the Member's Accounts from
which withdrawals may be made, provided, however, that, if a Member maintains a
Self-Directed Window, no direct withdrawals may be made from the Self-Directed
Window and an aggregate minimum balance of $1,000 must be maintained in Core
Funds that are eligible for transfer to the Self-Directed Window. Subject to the
foregoing eligible funds include:
(a) General Eligibility. The entire balance in the
Member's Employee Contributions Account, Rollover
Contribution Account or Prior Plan Account, and
(b) Hardship Eligibility. In the event of Hardship (as defined in
Section 9.2) before age 59-1/2, the sum of all contributions that have
been credited to a Member's Compensation Deferral Contributions Account
to date together with any Income allocable to such contributions as of
December 31, 1988, provided, however, that no withdrawal of funds may be
made from a Member's Compensation Deferral Contributions Account so long
as Accounts other than such Compensation Deferral Contributions Account
are invested in the Self-Directed Window.
(c) Age 59-1/2 Eligibility. After a Member attains
age 59-1/2 the entire balance in the Member's Compensation
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Deferral Contributions Account and the vested portion of such Member's
Employer Contributions Account.
9.2 Hardship Withdrawals.
(a) Verification of Need. Each request for a hardship
withdrawal must be accompanied by a statement signed by the
Member attesting that the financial need cannot be relieved,
(i) Through reimbursement or compensation by
insurance or otherwise,
(ii) By liquidation of the Member's assets (including
those assets of the Member's spouse and minor children that are
reasonably available to the Member) to the extent such
liquidation will not itself cause immediate and heavy financial
need,
(iii) By ceasing Compensation Deferral Contribu-
tions under the Plan, or
(iv) By other distributions or nontaxable (at the time of
the loan) loans from any plan maintained by the Employer or any
other employer, or by borrowing from commercial sources on
reasonable commercial terms.
The Committee shall be entitled to rely on the Member's statement
of need without inquiry into the Member's financial circumstances.
(b) Determination of Hardship. A withdrawal will be
deemed to be a hardship withdrawal if made on account of:
(i) Medical expenses incurred, or to be incurred,
by the Member, the Member's spouse, or any dependent,
(ii) Purchase (excluding mortgage payments) of a
principal residence for the Member,
(iii) Payment of tuition for the next year,
semester or quarter of post-secondary education for the
Member, the Member's spouse or any dependent,
(iv) The need to prevent the eviction of the Member from
the Member's principal residence or foreclosure on the mortgage
of the Member's principal residence,
(v) Such other immediate and heavy financial need as the
Commissioner of Internal Revenue may from time to time publish by
revenue rulings, notices and other documents of general
applicability, or
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(vi) Any other immediate and heavy financial need as
determined on the basis of all relevant facts and circumstances
by the Committee in an objective and nondiscriminatory manner in
accordance with the requirements of the Code and the applicable
regulations and in accordance with the following standards and
principles:
(A) the need shall be due to an extra-ordinary
emergency,
(B) the need shall be heavy,
(C) the need shall be immediate,
(D) the need shall be for reasons of hardship as
commonly understood such as financial expenses and not for
entertainment or pleasure, and
(E) the need shall not fail to qualify as immediate
and heavy merely because such need was reasonably
foreseeable or voluntarily incurred.
9.3 Values. All withdrawals shall be based on the values of Accounts as
of the Valuation Date next following the date the Appropriate Notice was given
to the Committee, or such other Valuation Date as the Committee shall prescribe.
Any withdrawal shall be charged proportionately against each Investment Fund
described in Article VIII (other than the Self-Directed Window) in which such
Account is invested.
9.4 Payment of Withdrawals. Any amount withdrawn under Section 9.1 shall
be paid to a Member in a lump sum in cash, as soon as practicable after the
Valuation Date as of which the withdrawal election is effective provided,
however, that at the Member's request whole numbers of Employer Securities
contained in the Member's Account may be distributed in kind.
9.5 Loans. A Member who is a "party in interest" as defined in Section
3(14) of ERISA (a "Party in Interest") may borrow for any purpose from the
vested value of his or her Compensation Deferral Contributions Account, Prior
Plan Account, Rollover Contribution Account and Employee Contributions Account,
to the extent that such accounts are invested in Core Funds, in increments of
not less than $1,000, once in any twelve-month period, an amount (inclusive of
current loans) of up to one half of the total of all of his or her Accounts, but
in any event not more than the lesser of (a) $50,000 reduced by the excess (if
any) of the highest balance of existing loans during the preceding 12 months
over the current loan or (b) the total vested value of the accounts listed in
clauses (i) through (iv) in this
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paragraph provided, however, if a Member maintains a Self-Directed Window, an
aggregate minimum balance of $1,000 must be maintained in Core Funds that are
eligible for transfer to the Self-Directed Window. For record keeping purposes
amounts that are borrowed in accordance with the preceding formula shall be
deducted from a Member's accounts in the following order: (i) Compensation
Deferral Contributions Account, (ii) Prior Plan Account, (iii) Rollover
Contribution Account and (iv) Employee Contributions Account.
For the purposes of the foregoing, any outstanding balance of an
existing loan (including any Prior Loan) shall be aggregated with any additional
funds being borrowed in order to calculate a Member's borrowing limit.
A Member may have outstanding at any one time two general purpose loans,
one of which may qualify as a loan to acquire a primary residence, provided,
however, that any Prior Loan may remain outstanding in accordance with its
terms.
A "Prior Loan" is a loan that was originated before January 1, 1996.
All loans shall be made pursuant to such other procedures and terms as
shall be adopted by the Committee, subject to the following:
(A) A loan may remain outstanding so long as the borrower
remains a Party in Interest and shall be repayable within five years
from the date of borrowing upon such terms as may be determined by the
Committee; provided, however, that any loan of more than $15,000 used to
acquire the primary residence of a Member shall be repayable over a
period of up to ten years.
The Committee may in its absolute discretion grant such loan in
accordance with such uniform and nondiscriminatory rules as it may from
time to time establish. Any such loan shall be made at a then prevailing
commercial rate of interest for similar credits on such terms of
repayment (in level payments not less frequent than monthly) and subject
to such rules and restrictions as the Committee shall determine,
provided that any such loans shall be available to all Members on a
reasonably equivalent basis and that any loan may be repaid at any time
without penalty.
All Member loans shall be secured on a dollar for dollar basis by up to
50% of the balance of the Accounts from which the loan is made. To the
extent a loan is unpaid, it shall be deducted from the amount payable to
such Member or such
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Member's beneficiary at the time of distribution of the Accounts from
which the loan was made;
(B) In the event that a Member fails to repay a loan according to
its terms and foreclosure occurs, the Plan may foreclose on the portion
of the Member's Accounts for which a distributable event has occurred.
In the event of foreclosure, a distributable event shall be deemed to
occur immediately following the next Valuation Date for any portion of
an Account with respect to which the Member or the Member's Beneficiary
would be permitted in accordance with Sections 9.1 or 10.1 to elect an
immediate distribution;
(C) The receivable representing the loan (and other loans to the
same Member) will be accounted for by the Trustee as a separate
earmarked investment solely for the individual account of the Member. A
Member's payments to the Trust of principal and interest on the loan
shall be invested by the Trustee as elected by the Member in accordance
with the Member's investment directions for future contributions in
accordance with Section 8.2, as soon as reasonably practical;
(D) Loan applications may be made at any time by any Member by
giving the Appropriate Notice to the Committee or its designee at any
time.
(E) No loan shall remain outstanding after a Member is no longer
a Party in Interest. If a Member who is no longer a Party in Interest
elects under Section 10.7 not to file a claim for the commencement of
benefits when the Member's employment is terminated, the balance of any
outstanding loan must be repaid in full within sixty (60) days.
(F) Loan Origination Fee. From time to time the Committee may set
a reasonable loan origination fee for each loan application. Such fees
shall be deducted from loan proceeds paid to loan applicants.
ARTICLE X
Distribution
10.1 Amount of Distribution. The Member or the Member's Beneficiary, as
the case may be, shall not be entitled to elect to receive a distribution of the
vested value of the Member's account until:
(a) the Member's Retirement, termination of employment,
death or Permanent Disability, or
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(b) termination of the Plan without establishment or main-
tenance of a successor plan, or
(c) the date of sale of substantially all of the assets of the Employer
to an acquiring corporation which continues the employment of the Member
without the establishment of a successor plan.
The vested value of the Member's Account shall be determined in
accordance with Article VII (Vesting of Accounts) as of the Valuation Date next
following such election except that in the case of the Member's Total and
Permanent disability the vested value of the Member's account shall be
determined as of the Valuation Date next following the date the Committee
determines that the Member has a Total and Permanent Disability. In any event,
such Valuation Date shall be no later than the Valuation Date which immediately
precedes the Member's Required Beginning Date (or the date which would have been
the Member's Required beginning Date had the Member survived). Distributions
under the Plan to a Member's Beneficiary shall be completed not more than five
years after the Member's death.
10.2 Notice of Options and Normal Form of Distribution.
(a) Notice of Options.
(i) No less than thirty (30) nor more than ninety (90) days prior
to the date of any distribution hereunder the Plan Administrator shall
provide the Member with a general description of the material features
and an explanation of the relative values of the optional forms of
benefits available under the Plan.
(ii) If a distribution is one to which Sections 401(a)(11) and
417 of the Code do not apply, such distribution may commence less than
thirty (30) days after the notice required under Reg. Section
1.411(a)-11(c) is given, provided that:
(A) the Plan Administrator clearly informs the Member that the
Member has a right to a period of at least thirty (30) days after
receiving the notice to consider the decision of whether or not to elect
a distribution (and, if applicable, a particular distribution option),
and
(B) the Member, after receiving the notice, affirmatively elects
a distribution.
(iii) If the distribution is one to which sections
401(a)(11) and 417 of the Code do apply such distributions may
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commence less than thirty (30) days after the notice required by Section 10.8
provided that:
(A) The Plan Administrator clearly inform the Member that the
Member has a right to at least 30 days to consider whether to waive the
Qualified Joint and Survivor Annuity (permitted under the USI Plan) and
consent to a form of distribution other than a Qualified Joint and
Survivor Annuity.
(B) Member is permitted to revoke an affirmative distribution
election at least until the annuity starting date, or, if later, at any
time prior to the expiration of the 7-day period that begins the day
after the explanation of the Qualified Joint and Survivor Annuity is
provided to the Member.
(C) The annuity starting date is after the date that the
explanation of the Qualified Joint and Survivor Annuity is provided to
the Member. However, the annuity starting date may be before the date
that any affirmative distribution election is made by the Member and
before the date that the distribution is permitted to commence under
paragraph (D) of this section.
(D) Distribution in accordance with the affirmative election does
not commence before the expiration of the 7- day period that begins the
day after the explanation of the Qualified Joint and Survivor Annuity is
provided to the participant.
(b) Normal Form of Distribution. Unless otherwise elected in
accordance with Section 10.3 and subject to Section 10.7, distributions
shall be made by the Trustee as soon as practicable after the Valuation
Date next following the Member's (or the Member's Beneficiary's as the
case may be) election and written consent to receive a distribution of
the vested value of such Member's Account, in a single sum in cash
except that (i) at the Member's option Employer Securities held in the
Member's Account may be distributed in kind and (ii) in the discretion
of the Committee, a note with respect to a Participant's loan from such
Member's Compensation Deferral Account may be distributed in kind.
(c) USI Plan Grandfathered Distribution Options. Notwithstanding
Section 10.2 (b), above, a Member who, prior to April 1, 1988, was a
participant in the USI Plan may elect, in accordance with procedures
prescribed by the Committee which shall be substantially similar to
those under the USI Plan to have his or her Vested Portion applied to
the purchase of a nonforfeitable fixed annuity, provided that if the
annuity form selected by such Member is not a
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joint and survivor annuity with the Member's spouse as the Beneficiary,
the value of the benefit payable to the Member under the annuity shall
never be less than 51% of the total value of the benefits payable under
the annuity to the Member and his or her beneficiary. If the Member is
married on the annuity starting date, and if he or she has not elected
otherwise, the benefit shall be in the form of a joint and survivor
annuity providing for a pension payable to the Member during his or her
life and after his or her death a pension at the rate of one half of the
pension paid to the Member payable during the life of, and to the spouse
to whom he or she was married on the annuity starting date. Any such
Member described in this paragraph (a) may elect during the 90 day
period preceding the annuity starting date, not to take the joint and
survivor annuity and to take instead another form of annuity. Elections
under this paragraph (c) shall be in writing and shall be subject to
receipt by the Committee of spousal consent to the election. The
Committee shall furnish each such Member with a written explanation of
the joint and survivor annuity in accordance with applicable law within
a reasonable time prior to the beginning of the election period. A
Member may revoke his or her election and make a new election from time
to time and at any time during the aforesaid election period.
10.3 Alternate Form of Distribution. A Member (but not a Member's
Beneficiary) may request to have the value of his or her Accounts distributed in
periodic installments not more frequent than monthly commencing at such time as
the Member shall elect in accordance with the Plan payable over a fixed period
not to exceed the lesser of ten years or the life expectancy of the Member at
the time payments commence. Payment of any interest in the Company Stock Fund in
a Member's Accounts, if any, to which the Member has a nonforfeitable interest
may be made in cash solely for the purpose of effecting such an alternate form
of distribution.
Distributions will be made in accordance with the requirements of the
regulations under Code Section 401(a)9, including the minimum distribution
incidental benefit requirements of Proposed Regulations Section 1.401(a)(9)-2.
Such minimum distribution requirements shall supersede any distribution options
in the Plan that are inconsistent therewith.
10.4 Identity of Payee. The determination of the Committee as to the
identity of the proper payee of any benefit under the Plan and the amount of
such benefit properly payable shall be conclusive, and payment in accordance
with such determination shall constitute a complete discharge of all obligations
on account of such benefit.
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10.5 Non-alienation of Benefits.
(a) No benefit payable at any time under this Plan shall be
subject in any manner to alienation, sale, transfer, assignment, pledge,
attachment, or other legal processes, or encumbrance of any kind. Any
attempt to alienate, sell, transfer, assign pledge or otherwise encumber
any such benefits, whether currently or thereafter payable, shall be
void. No benefit, nor any fund which may be established for the payment
of such benefits, shall, in any manner, be liable for or subject to the
debts or liabilities of any person entitled to such benefits. If any
person shall attempt to, or shall alienate, sell, transfer, assign,
pledge or otherwise encumber benefits to which such person may become
entitled under this Plan, or if by reason of such person's bankruptcy or
other event happening at any time, such benefits would devolve upon any
other person or would not be enjoyed by the person entitled thereto
under the Plan, then the Committee, in its discretion, may terminate the
interest in any such benefits of the person entitled thereto under the
Plan and hold or apply them to or for the benefit of such person
entitled thereto under the Plan or such person's spouse, children or
other dependents, or any of them, in such manner as the Committee may
deem proper.
(b) Notwithstanding Section 10.5(a), the Trustee
(i) shall comply with an order entered on or after January
1, 1985, determined by the Committee to be a Qualified Domestic
Relations Order,
(ii) may treat an order entered before January 1, 1985, as
a Qualified Domestic Relations Order even if it does not meet the
requirements of Code Section 414(p), and
(iii) shall comply with a Federal tax levy made pursuant
to Code Section 6331 and with collection proceedings by the
United States on a judgment resulting from an unpaid tax
assessment.
10.6 Qualified Domestic Relations Order.
(a) The Plan shall comply with the provisions of Code Section
414(p) relating to qualified domestic relations orders and all
regulations pertaining thereto.
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(b) An alternate payee's interest in the Plan will be distributed
in the form of a single sum as soon as practicable after a proposed
order is determined to be a qualified domestic relations order.
10.7 Commencement of Benefits. Unless a Member elects otherwise, the
payment of benefits under the Plan shall begin not later than the 60th day after
the latest of the close of the Plan Year in which:
(a) the Member attains age 65;
(b) the 10th anniversary of the date the Member's
participation in the Plan occurs:
(c) the Member's employment with the Company or an
Affiliate is terminated;
provided that no benefits shall be distributed unless the Member has filed a
claim for benefits until the Valuation Date immediately preceding the Required
Beginning Date and further provided that all benefits shall be distributed to
the Member not later than the Member's Required Beginning Date.
10.8 Spousal Consent. A valid spousal consent to the Member's naming of
a Beneficiary other than the Member's spouse or to the Member's waiver of a
Qualified Joint and Survivor Annuity (permitted under the USI Plan) shall be
designated:
(a) in a writing acknowledging the effect of the
consent;
(b) witnessed by a notary public; and
(c) effective only for the spouse who exercises
the consent;
provided that, notwithstanding the provisions of this Article X, the consent of
a Member's spouse shall not be required if it is established to the satisfaction
of the Plan Administrator that such consent may not be obtained because there is
no spouse, because the spouse cannot be located or because of such other
circumstances as the Secretary of the Treasury may by regulations prescribe.
10.9 Payments Without Election. Notwithstanding any other provision of
this Article X, if a Member or a Beneficiary is entitled to a distribution and
(1) if the vested value of a Member's Account or the vested value of the
Beneficiary's share of the Member's Account before benefits are paid or commence
to be paid hereunder does not exceed (and at the time of any previous
distribution did not exceed) $3,500, or (2) the Member is no
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longer an Employee and has reached 69-1/2 years of age (or the Member's
Beneficiary has reached 69-1/2 years of age if the Member has died), the
Committee may in accordance with uniform and nondiscriminatory rules direct the
immediate distribution of such benefit to the person entitled thereto regardless
of any election or consent of the Member, the Member's spouse or other
Beneficiary. Additionally, if a Member who has reached 70-1/2 years of age is an
Employee, the Committee may direct that required annual minimum distributions be
made in accordance with Code Section 401(a)(9) and the regulations thereunder.
Lump Sum Payment Without Election.
10.10 Trustee to Trustee Transfers.
(a) A Member who receives an Eligible Rollover Distribution may
elect to have such distribution paid directly to an Eligible Retirement
Plan by specifying in an Appropriate Notice the Eligible Retirement Plan
to which such distribution is to be paid in a direct trustee to trustee
transfer pursuant to such uniform rules as to the form and time of
transfer as the Committee shall prescribe.
(b)(i) "Eligible Rollover Distribution." An Eligible Rollover
Distribution is any distribution of all or a portion of the balance to
the credit of the Member distributee, except that an Eligible Rollover
Distribution does not include: any distribution that is one of a series
of substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the Member
distributee or the joint lives (or joint life expectancies) of the
Member distributee and the Member's designated beneficiary, or for a
specified period of ten years or more; any distribution to the extent
such distribution is required under section 401(a)(9) of the Code; and
the portion of any distribution that is not includible in gross income (
determined without regard to the exclusion for net unrealized
appreciation with respect to Employer Securities).
(b)(ii) "Eligible Retirement Plan." An Eligible Retirement Plan
is an individual retirement account described in section 408(a) of the
Code, an individual retirement annuity described in section 408(b) of
the Code, an annuity plan described in section 403(a) of the Code, or a
qualified trust described in section 401(a) of the Code, that accepts
the Member distributee's Eligible Rollover Distribution. However, in the
case of an Eligible Rollover Distribution to the surviving spouse of a
Member, an Eligible Retirement Plan is an individual retirement account
or an individual retirement annuity.
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ARTICLE XI
Administration of the Plan
11.1 Plan Administrator. The Committee shall be the Plan
Administrator:
(a) The Committee shall administer, enforce and interpret the
Plan and the trust agreement established hereunder and shall have the
powers necessary thereto, including but not by way of limitation the
powers to exercise its responsibilities in accordance with Sections 1.3
(Appropriate Notice), 1.9 (Compensation), 1.20 (Enrollment Date), 1.29
(Leave of Absence), 1.42 (Total and Permanent Disability), Article II
(Eligibility and Membership) 3.1 (Compensation Deferral Contributions),
3.2 (Changes and Suspension of Contributions), 4.1 (Limitations), 6.1
(Maintenance of Accounts), 6.2 (Valuations), Article VIII (Investment of
Accounts), Article IX (Withdrawals and Loans During Employment), 12.6
(Disbursement of Funds), Article XIV (Miscellaneous), and the remainder
of this Article XI, and
(b) Authority to hold the funds of the Plan shall be
delegated to the Trustee in accordance with Section 12.2
(Trustee), and
(c) Authority to direct the investment of the Plan's funds shall
be delegated to an Investment Manager in accordance with Section 12.3
(Investment Manager).
With respect to all other responsibilities of the Plan Administrator the
Committee shall act through its duly authorized officers and agents.
11.2 Board of Directors. With respect to Sections 5.1 (Amount of
Employer Matching Contributions), 11.8 (Personal Liability), 13.1 (Right to
Amend) and 13.2 (Suspension or Termination) the Employer shall act only by
resolution, or pursuant to an enabling resolution of the Board of Directors.
11.3 Appointment of the Committee. The Committee shall be
the Benefits Administration Committee.
11.4 Compensation, Expenses. All proper expenses required for the
administration of the Plan incurred by the Committee, the Employer, an
Investment Manager or the Trustee for accounting, legal and other professional,
consulting or technical services, including fees and expenses of a recordkeeper,
the Trustee or any Investment Manager shall be paid by the Trust.
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11.5 Committee Actions, Agents. The Committee may appoint such agents,
who need not be members of the Committee, as it may deem necessary for the
effective performance of its duties and may delegate to such agents such powers
and duties as the Committee may deem expedient or appropriate.
Any action of the Committee, including but not by way of limitation,
instructions to the Trustee, shall be evidenced by the signature of a member who
has been so authorized by the Committee to sign for it, and the Trustee shall be
fully protected in acting thereon. A certificate of the secretary or an
assistant secretary of the Committee setting forth the name of the members
thereof shall be sufficient evidence at all times as to the persons then
constituting the Committee.
11.6 Committee Meetings. The Committee shall hold meetings upon such
notice, at such time and place as they may determine. The Committee shall act by
a majority of its members at the time in office and such action may be taken
from time to time by a vote at a meeting or in writing without a meeting. A
majority of the members of the Committee at the time in office shall constitute
a quorum for the transaction of business.
11.7 Authority and Duties of the Committee. The Committee may from time
to time establish rules for the administration of the Plan. The Committee shall
have the exclusive right to interpret the Plan and to decide any matters arising
thereunder in connection with the administration of the Plan. It shall endeavor
to act by general rules so as not to discriminate in favor of any person. Its
decisions and the records of the Committee shall be conclusive and binding upon
the Employer, Members and all other persons having an interest under the Plan.
No member of the Committee shall be disqualified from exercising the powers and
discretion herein conferred by reason of the fact that the exercise of any such
power or discretion may affect the payment of benefits to such member under the
Plan; however, no member may vote on a matter relating exclusively to such
member. To the extent that it is administratively feasible, the period of notice
required for Members' elections to commence, change or suspend contributions
hereunder or to make or change investment elections for either future
contributions or existing accounts may be relaxed, reduced or eliminated by the
Committee in accordance with uniform and non-discriminatory rules.
The Committee shall keep or cause to be kept all records and other data
as may be necessary for the administration of the Plan.
11.8 Personal Liability. To the extent not contrary to the
provisions of ERISA, no member of the Committee, officer, director or
employee of an Employer shall be personally liable for acts done
in good faith hereunder unless resulting from such
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member's own negligence or willful misconduct. Each such member of the
Committee, officer and director shall be indemnified by the Employer against
expenses reasonably incurred by such member in connection with any action to
which he may be a party by reason of such member's responsibilities hereunder,
except in relation to matters as to which such member shall be adjudged in such
action to be liable for negligence or misconduct in the performance of such
member's duty. However, nothing in this Plan shall be deemed to relieve any
person who is a fiduciary under the Plan for purposes of ERISA from any
responsibility or liability which such Act shall impose upon such member.
11.9 Dealings Between Committee and Individual Members. Any notice
required to be given to, or any document required to be filed with, the
Committee will be properly given or filed if mailed by registered or certified
mail, postage prepaid, or delivered to the Chairman of the Benefits
Administration Committee, c/o Millennium Chemicals Inc., 99 Wood Avenue South,
Iselin, New Jersey 08830, or delivered as the Committee may hereafter from time
to time prescribe.
The Committee shall make available to such Member for examination, such
of its records as pertain to the benefits to which such Member shall be entitled
under the Plan.
11.10 Information To Be Supplied by the Employer. The Employer shall
provide the Committee or its delegate with such information as it shall from
time to time need in the discharge of its duties.
11.11 Records. The regularly kept records of the Committee and the
Employer shall be conclusive evidence of the Credited Service and Service of an
Employee, the Employee's Compensation, age, marital status, status as an
Employee, and all other matters contained therein applicable to this Plan;
provided that an Employee may request a correction in the record of age or any
other disputed fact at any time prior to retirement. Such correction shall be
made if within 90 days after such request the Employee furnishes the Committee
in support thereof documentary proof of age or the other disputed fact
satisfactory to the Committee.
11.12 Fiduciary Capacity. Any person or group of persons
may serve in more than one fiduciary capacity with respect to the Plan.
11.13 Fiduciary Responsibility. If a Plan fiduciary acts
in accordance with ERISA, Title I, Subtitle B, Part 4,
(a) in determining that a Member's spouse has consented to the
naming of a Beneficiary other than the spouse or that the consent of the
Member's spouse may not be obtained
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because there is no spouse, the spouse cannot be located or other
circumstances prescribed by the Secretary of the Treasury by
regulations, then to the extent of payments made pursuant to such
consent, revocation or determination, the Plan and its fiduciaries shall
have no further liability; or
(b) in treating a domestic relations order as being (or not
being) a Qualified Domestic Relations Order, or, during any period in
which the issue of whether a domestic relations order is a Qualified
Domestic Relations Order is being determined (by the Committee, by a
court of competent jurisdiction, or otherwise), in segregating in a
separate account in the Plan or in an escrow account the amounts which
would have been payable to the alternate payee during such period if the
order had been determined to be a Qualified Domestic Relations Order, in
paying the amounts segregated or held in escrow to the person entitle
thereto if within 18 months the domestic relations order (or a
modification thereof) is determined to be a Qualified Domestic Relations
Order, in paying such amounts to the person entitled thereto if there
had been no order if within 18 months the domestic relations order is
determined not to be qualified or if the issue is not resolved within 18
months and in prospectively applying a domestic relations order which is
determined to be qualified after the close of the 18-month period, then
the obligation of the Plan and its fiduciaries to the Member and each
alternate payee shall be discharged to the extent of any payment made
pursuant to such acts.
11.14 Claim Procedure.
(a) Each Member or Beneficiary ("Claimant") may submit an
application for benefits ("Claims") to the Committee or to such other
person as may be designated by the Committee in writing in such form as
is provided or approved by the Committee. A Claimant shall have no right
to seek review of a denial of benefits, or to bring any action in any
court to enforce a Claim prior to filing a Claim and exhausting all
rights to review in accordance with this Section.
When a Claim has been filed properly, such Claim shall be
evaluated and the Claimant shall be notified of the approval or the
denial of the Claim within ninety (90) days after the receipt of such
Claim unless special circumstances require an extension of time for
processing the claim. If such an extension of time for processing is
required, written notice of the extension shall be furnished to the
Claimant prior to the termination of the initial ninety (90) day period,
which notice shall specify the special circumstances requiring an
extension and the date by which a final decision will be reached (which
date shall not be later than one
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hundred and eighty (180) days after the date on which the Claim was
filed). A Claimant shall be given a written notice in which the Claimant
shall be advised as to whether the Claim is granted or denied, in whole
or in part. If a Claim is denied, in whole or in part, the notice shall
contain (1) the specific reasons for the denial, (2) references to
pertinent Plan provisions upon which the denial is based, (3) 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 (4) the Claimant's rights to seek review of the
denial.
(b) If a Claim is denied, in whole or in part, the Claimant shall
have the right to (i) request that the Committee (or such other person
as shall be designated in writing by the Committee) review the denial,
(ii) review pertinent documents, and (iii) submit issues and comments in
writing, provided that the Claimant files a written request for review
with the Committee within sixty (60) days after the date on which the
Claimant received written notification of the denial. Within sixty (60)
days after a request for review is received, the review shall be made
and the Claimant shall be advised in writing of the decision on review,
unless special circumstances require an extension of time for processing
the review, in which case the Claimant shall be given a written
notification within such initial sixty (60) day period specifying the
reasons for the extension and when such review shall be completed within
one hundred and twenty (120) days after the date on which the request
for review was filed. The decision on review shall be forwarded to the
Claimant in writing and shall include specific reasons for the decision
and references to Plan provisions upon which the decision is based. A
decision on review shall be final and binding on all persons for all
purposes. If a Claimant shall fail to file a request for review in
accordance with the procedures herein outlined, such Claimant shall have
no rights to review and shall have no right to bring action in any court
and the denial of the Claim shall become final and binding on all
persons for all purposes.
ARTICLE XII
Operation of the Trust Fund
12.1 Trust Fund. All assets of the Plan shall be held in trust as a
Trust Fund for the exclusive benefit of Members and their Beneficiaries, and no
part of the corpus or income shall be used for or diverted to any other purpose.
No person shall have any interest in or right to any part of the Trust Fund,
except to the extent provided in the Plan.
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12.2 Trustee. All contributions to the Plan shall be paid to a Trustee
or Trustees which shall be appointed from time to time by the Company by
appropriate instrument with such powers in the Trustee as to control and
disbursement of the funds as the Company shall approve and as shall be in
accordance with the Plan. The Company may remove any Trustee at any time, upon
reasonable notice and upon such removal or upon the resignation of any Trustee
the Company shall designate a successor Trustee.
12.3 Investment Manager. In accordance with the terms of the trust
agreement, the Committee may appoint one or more Investment Managers
(individuals and/or other entities), who may include the Trustee and who are
collectively referred to herein as the Investment Manager, to direct the
investment and reinvest-ment of part or all of the Plan's funds that are not
invested in Employer Securities. The Company may change the appointment of the
Investment Manager from time to time.
12.4 Purchase and Holding of Securities. As soon as
convenient after receiving contributions, the Trustee shall:
(a) in the case of contributions which are to be invested in any
of the BT Investment Equity Appreciation Fund, The BT Investment
International Equity or the three BT Investment Life Cycle Funds,
purchase securities for each Fund as the Trustee deems advisable, and
register such stock and securities in the name of the Trustee or its
nominee;
(b) in the case of contributions which are to be invested in
Employer Securities purchase Employer Securities in the open market and
register and hold such securities in the name of the Trustee or its
nominee; and,
(c) in the case of contributions which are to be invested in the
Fixed Income Fund, purchase group annuity contracts or make other
investment arrangements that in the aggregate provide a stable rate of
return.
12.5 Voting of Employer Securities. For shareholders' meetings Members
shall be furnished proxy material and a form for instructing the Trustee how to
vote the Employer Securities represented by units credited to their Accounts,
and the Trustee shall vote or otherwise exercise shareholder rights with respect
to such Employer Securities as instructed. The Trustee shall hold such
instructions in confidence and shall not divulge them to anyone, including, but
not limited to, the Employer, its officers or employees.
Shares for which no instructions are received shall be voted by the
Trustee in the same proportion as those shares for which instructions have been
received. With respect to the exercise of shareholder's rights to sell or retain
the Employer
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Securities represented by units credited to a Member's Accounts in extraordinary
instances involving an unusual price and terms and conditions for such
securities such as a tender offer, the Trustee shall act in accordance with the
Committee's instructions.
12.6 Disbursement of Funds. The funds held by the Trustee shall be
applied, in the manner determined by the Committee, to the payment of benefits
to such persons as are entitled thereto in accordance with the Plan.
The Committee shall determine the manner in which the funds of the Plan
shall be disbursed in accordance with the Plan, including the form of voucher or
warrant to be used in authorizing disbursements and the qualification of persons
authorized to approve and sign the same and any other matters incident to the
disbursement of such funds.
12.7 Exclusive Benefit of Members. All contributions under the Plan
shall be paid to the Trustee and deposited in the Trust Fund and shall be held,
managed and distributed solely in the interest of the Members and beneficiaries
for the exclusive purpose of (1) providing benefits to Members and beneficiaries
and (2) defraying reasonable administrative expenses of the Plan and the Trust,
to the extent such expenses are not paid by the Company or an Affiliate provided
that:
(a) if, and to the extent, a deduction for a contribution under Section
404 of the Code is disallowed, contributions conditioned upon
deductibility shall be returned to the Company or an Affiliate within
one year after the disallowance of the deduction; and
(b) if, and to the extent, a contribution is made through a good faith
mistake of fact, such contribution shall be returned to the Company or
an Affiliate within one year of the payment of the contribution.
ARTICLE XIII
Amendment, Termination and Merger
13.1 Right to Amend. The Company reserves the right at any time, and
from time to time, to modify or amend in whole or in part the provisions of the
Plan, but no such amendment shall divest any Member of any amount previously
credited to a Member's Accounts or, except to the extent permitted by the
Secretary of the Treasury by regulation, shall eliminate with respect to a
Member's Account balance at the time of such amendment an optional form of
benefit, and further provided that no part of the assets of the Trust Fund
shall, by reason of any modification or
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amendment, be used for or diverted to, purposes other than for the exclusive
benefit of Members and their Beneficiaries, under the Plan.
13.2 Suspension or Termination. The Employer may at any time suspend
Employer Matching Contributions and Compensation Deferral Contributions in whole
or in part. The suspension of Employer Matching Contributions and Compensation
Deferral Contributions shall not in itself constitute a termination of the Plan.
The Employer may at any time terminate or discontinue the Plan by filing with
the Committee a certified copy of the resolution of its board of directors
authorizing the termination or discontinuance.
If the Plan is terminated, no further contributions shall be made by the
Employer and the Account of each Member shall be applied for the Member's (or
the Member's Beneficiary's) benefit either by payment in cash or in kind, or by
the continuation of the Trust Fund in accordance with the trust instrument and
the provisions of the Plan as though the Plan were otherwise in full force and
effect.
13.3 Merger, Consolidation or Transfer. In the case of any merger, or
consolidation with, or transfer of assets or liabilities to any other plan, each
Member in the Plan would (if the Plan then terminated) receive a benefit
immediately after the merger, consolidation, or transfer which is equal to or
greater than the benefit such Member would have been entitled to receive
immediately before the merger consolidation, or transfer (if the Plan had then
terminated).
ARTICLE XIV
Miscellaneous
14.1 Uniform Administration. Whenever, in the administration of the
Plan, any action is required by the Company, the Employer or the Committee,
including, but not by way of limitation, action with respect to eligibility or
classification of employees, contributions or benefits, such action shall be
uniform in nature as applied to all persons similarly situated and no such
action shall be taken which will discriminate in favor of Members who are
officers or significant shareholders of the Employer or persons whose principal
duties consist of supervising the work of other employees or highly compensated
Members.
14.2 Payment Due an Incompetent. If the Committee determines that any
person to whom a payment is due hereunder is incompetent by reason of physical
or mental disability, the Committee shall have power to cause the payments
becoming due to such person to be made to another for the benefit of the
incompe-
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tent, without responsibility of the Committee or the Trustee to see to the
application of such payment. Payments made in accordance with such power shall
operate as a complete discharge of all obligations on account of such payment of
the Committee, the Trustee and the Trust Fund.
14.3 Source of Payments. All benefits under the Plan shall be paid or
provided solely from the Trust Fund and the Employer assumes no liability or
responsibility therefor, except to the extent required by law.
14.4 Plan Not a Contract of Employment. Nothing herein contained shall
be deemed to give any Eligible Employee or Member the right to be retained in
the employ of the Employer or to interfere with the right of the Employer to
discharge any Eligible Employee or Member at any time.
14.5 Applicable Law. Except to the extent governed by
Federal law the Plan shall be administered and interpreted in
accordance with the laws of the State of New York.
14.6 Unclaimed Amounts. It shall be the duty and responsibility of a
Member or a Beneficiary to keep the Committee apprised of such Member's
whereabouts and of such Member's current mailing address. Unclaimed amounts
shall consist of the amounts of the Accounts of a retired, deceased or
terminated Member which cannot be distributed because of the Committee's
inability, after a reasonable search, to locate a Member or a Member's
Beneficiary within a period of two (2) years after the payment of benefits
becomes due. Unclaimed amounts for a Plan Year shall be Forfeitures for the Plan
Year in which such two-year period shall end. Such Forfeitures shall be treated
as provided in Section 5.2.
If an unclaimed amount is subsequently properly claimed by the Member or
the Member's Beneficiary ("Reclaimed Amount") and unless an Employer in its
discretion makes a contribution to the Plan for such year in an amount
sufficient to pay such Reclaimed Amount to the extent that the Reclaimed Amount
originated as an unclaimed amount, it shall be charged against Forfeitures for
the Plan Year and, to the extent such Forfeitures are not sufficient, shall be
treated as an expense of the Trust Fund.
ARTICLE XV
Top Heavy Provisions
15.1 Application. The definitions in Section 15.2 shall apply under this
Article XV and the special rules in Section 15.3 shall apply in accordance with
Code Section 416, notwithstanding any other provisions of the Plan, for any Plan
Year in which the Plan is a Top Heavy Plan and for such other Plan Years as may
be
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specified herein. This Article XV shall have no effect on the amount of or
eligibility for benefits under the Plan of a Member unless and until the Plan
becomes a Top Heavy Plan.
15.2 Special Top Heavy Definitions. The following special
definitions shall apply under this Article XV.
(a) "Aggregate Employer Matching Contributions" means the sum of
all Employer Matching Contributions including amounts contributed as a
result of a salary reduction agreement and Forfeitures under this Plan
allocated for a Member to the Plan and employer contributions and
forfeitures allocated for the Member to all Related Defined Contribution
Plans in the Aggregation Group; provided, however, that for Plan Years
beginning before January 1, 1985, Compensation Reduction Contributions
under this Plan and employer contributions attributable to compensation
reduction or similar arrangement under Related Defined Contribution
Plans shall not be included in Aggregate Employer Matching
Contributions.
(b) "Aggregation Group" means the group of plans in a Mandatory
Aggregation Group, if any, that includes the Plan, unless inclusion of
Related Plans in the Permissive Aggregation Group in the Aggregation
Group would prevent the Plan from being a Top Heavy Plan, in which case
"Aggregation Group" means the group of plans consisting of the Plan and
each other Related Plan in a Permissive Aggregation Group with the Plan.
(i) "Mandatory Aggregation Group" means each plan
(considering the Plan and Related Plans) that, during the Plan
Year that contains the Determination Date or any of the four
preceding Plan Years,
(A) had a Member who was a Key Employee, or
(B) was necessary to be considered with a plan in
which a Key Employee participated in order to enable the
plan in which the Key Employee participated to meet the
requirements of Section 401(a)(4) and Section 410 of the
Internal Revenue
Code.
If the Plan is not described in (A) or (B) above, it shall
not be part of a Mandatory Aggregation Group.
(ii) "Permissive Aggregation Group" means the group of
plans consisting of (A) the plans, if any, in a Mandatory
Aggregation Group with the Plan, and (B) any other Related Plan,
that when considered as a part of the Aggregation Group, does not
cause the Aggrega-
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tion Group to fail to satisfy the requirements of Section 401(a)
and Section 410 of the Code. A Related Plan in (B) of the
preceding sentence may include a simplified employee pension
plan, as defined in Code Section 408(k), and a collectively
bargained plan, if when considered as a part of the Aggregation
Group such plan does not cause the Aggregation Group to fail to
satisfy the requirements of Section 401(a)(4) and Section 410 of
the Code considering, if the plan is a multi-employer plan as
described in Code Section 414(f) or a multiple employer plan as
described in Code Section 413(c), benefits under the plan only to
the extent provided to employees of the employer because of
service with the employer, and, if the plan is a simplified
employee pension plan, only the employer's contribution to the
plan.
(c) "Determination Date" means, with respect to a Plan Year, the
last day of the preceding Plan Year or, in the case of the first Plan
Year, the last day of such Plan Year. If the Plan is aggregated with
other plans in the Aggregation Group, the Determination Date for each
other plan shall be, with respect to any Plan Year, the Determination
Date for each such other plan which falls in the same calendar year as
the Determination Date for the Plan.
(d) "Key Employee" means, for the Plan Year containing the
Determination Date, any person or the beneficiary of any person who is
an employee or former employee of an Employer or an Affiliate as
determined under Code Section 416(i) and who, at any time during the
Plan Year containing the Determination Date or any of the four (4)
preceding Plan Years (the "Measurement Period"), is a person described
in paragraph (i), (ii), (iii) or (iv), subject to paragraph (v):
(i) An officer of the Employer or an officer of
an Affiliate who:
(A) In any Measurement Period, in the case of Plan
Years beginning after December 31, 1983, is an officer
during the Plan Year and has annual Compensation for the
Plan Year in an amount greater than one hundred and fifty
percent (150%) of the amount in effect under Section
415(c)(1)(A) of the Code for the calendar year in which
such Plan Year ends ($30,000 in 1984, adjusted in
subsequent years as determined in accordance with
regulations prescribed by the Secretary of the Treasury or
his delegate pursuant to the provisions of Section 415(d)
of the Code): and
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(B) In any Measurement Period, in the case of a
Plan Year beginning on or before January 1, 1984, is a
officer during the Plan Year, regardless of his
Compensation (except to the extent that applicable law,
regulations and rulings indicate that the one hundred and
fifty percent (150%) requirement set forth in subparagraph
(A) above is applicable).
No more than a total of fifty (50) persons (or, if lesser,
the greater of three (3) persons or ten percent (10%) of all
persons or beneficiaries of persons who are employees or former
employees) shall be treated as Key Employees under this paragraph
(i) for any Measurement Period. In the case of an Employer or an
Affiliate which is not a corporation (I) in any Measurement
Period, in the case of a Plan Year beginning on or before
February 28, 1985, no persons shall be treated as Key Employees
under this paragraph (i); and (II) in any Measurement Period, in
the case of a Plan Year beginning after February 28, 1985, the
term "officer" as used in this subsection (d) shall include
administrative executives as described in Section 1.416-1(T- 13)
of the Treasury Regulations.
(ii) One (1) of the ten (10) persons who, during a Plan
Year in the Measurement Period:
(A) have annual compensation from the Employer or
Affiliate for such Plan Year greater than the amount in
effect under Section 415(c)(1)(A) of the Code for the
calendar year in which such Plan Year ends $30,000 in
1984, adjusted in subsequent years as determined in
accordance with regulations prescribed by the Secretary of
the Treasury or his delegate pursuant to the provision of
Section 415(d) of the Code; and
(B) own (or are considered as owning within the
meaning of Code Section 318) in such Plan Year, the
largest percentage interests in the Employer or a
Corporate Group, in such Plan Year, provided that no
person shall be treated as a Key Employee under this
paragraph unless he owns more than one-half of one percent
(0.5%) interest in the Employer or Corporate Group.
No more than a total of ten (10) persons or beneficiaries
of persons who are employees or former employees shall be treated
as Key Employees under this paragraph (2) for any Measurement
Period.
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(iii) A person who, for a Plan Year in the Measurement
Period, is a more than five percent (5%) owner (or is considered
as owning more than five percent (5%) within the meaning of Code
Section 318) of the Employer or Affiliate.
(iv) A person who, for a Plan Year in the Measurement
Period, is a more than one percent (1%) owner (or is considered
as owning more than one percent (1%) within the meaning of Code
Section 318) of the Employer or Affiliate and has an annual
Compensation for such Plan Year of more than $150,000.
(v) If the number of persons who meet the requirements to
be treated as Key Employees under paragraph (i) or (ii) exceed
the limitation on the number of Key Employees to be counted under
paragraph (i) or (ii), those persons with the highest annual
Compensation in a Plan Year in the Measurement Period for which
the requirements are met and who are within the limitation on the
number of Key Employees will be treated as Key Employees.
If the requirements of paragraph (i) or (ii) are met by a person
in more than one (i) Plan Year in the Measurement Period, each
person will be counted only once under paragraph (i) or (ii). For
the purposes of the preceding sentence under paragraph (i), the
Plan Year in the Measurement Period in which a person who was an
officer and had the highest annual Compensation shall be used to
determine whether the person will be treated as a Key Employee
and under paragraph (i), the Plan Year in the Measurement Period
in which the ownership percentage interest is the greatest shall
be used to determine whether the person will be treated as a Key
Employee.
Notwithstanding the above provisions of paragraph (v), a
person may be counted in determining the limitation under both
paragraphs (i) and (ii). In determining the sum of the Present
Value of Accrued Benefits for Key Employees under subsection (f)
of this Section, the Present Value of Accrued Benefits for any
person shall be counted only once.
(e) "Non-Key Employee" means for the Plan Year containing the
Determination Date a person or the beneficiary of a person who had an
account balance in the Plan or an account balance in any Related Plan in
the Aggregation Group during the Plan Year containing the Determination
Date or any of the four (4) preceding Plan Years and who is not a Key
Employee.
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(f) "Present Value of Accrued Benefits" means, for any Plan Year,
an amount equal to the sum of (i), (ii) and (iii) for each person, who
in the Plan Year containing the Determination Date, was a Key Employee
or a Non-Key Employee:
(i) Subject to (iv) below, the value of a Member's
Accounts under the Plan and each Related Defined Contribution
Plan in the Aggregation Group, determined as of the Valuation
Date coincident with or immediately preceding the Determination
Date, adjusted for contributions due as of the Determination
Date, as follows:
(A) in the case of a plan not subject to the
minimum funding requirements of Section 412 of the Code,
by including the amount of any contributions actually made
after the valuation date but on or before the
Determination Date, and, in the first plan year of a plan,
by including contributions made after the Determination
Date that are allocated as of a date in that first plan
year; and
(B) in the case of a plan that is subject to the
minimum funding requirements, by including the amount of
any contributions that would be allocated as of a date not
later than the Determination Date, plus adjustments to
those amounts as required under applicable rulings, even
though those amounts are not yet required to be
contributed or allocated (e.g., because they have been
waived) and by including the amount of any contributions
actually made (or due to be made) after the valuation date
but before the expiration of the extended payment period
in Section 412(c)(10) of the Code.
(ii) Subject to (iv) below, the sum of the actuarial
present values of a person's accrued benefits under each Related
Defined Benefit Plan in the Aggregation Group, expressed as a
benefit commencing at normal retirement date (or the person's
attained age, if later) determined in accordance with Code
Section 416(g) based on the following actuarial assumptions:
(A) Interest rate 5% compounded; and
(B) 80% of the rates underlying the 1984 Unisex
Pension Mortality Table, adjusted by applying a 3-year age
setback for the Member's spouse, where applicable;
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The present value of an accrued benefit for any person who
is employed by an Employer maintaining a plan on the
Determination Date is determined as of the most recent
valuation date which is within a 12-month period ending on
the Determination Date, provided however that
(C) for the first plan year of the plan, the
present value for an employee is determined as if the
employee had a termination of employment (1) on the
Determination Date or (2) on such valuation date but
taking into account the estimated accrued benefits as of
the Determination Date, and
(D) for the second and subsequent plan years of the
plan, the accrued benefit taken into account for an
employee is not less than the accrued benefit taken into
account for the first plan year unless the difference is
attributable to using an estimate of the accrued benefit
as of the Determination Date for the first plan year and
using the actual accrued benefit as of the Determination
for the second plan year.
For purposes of this paragraph (ii), the valuation date is the
valuation date used by the plan for computing plan costs for
minimum funding, regardless of whether a valuation is performed
that year.
If the plan provides for a nonproportional subsidy as
described in Treasury Regulations Section 1.416-1(T- 26), the
present value of accrued benefits shall be determined taking into
account the value of nonproportional subsidized early retirement
benefits and nonproportional subsidized benefit options.
(iii) Subject to (iv) below, the aggregate value of
amounts distributed from the Plan and each Related Plan in the
Aggregation Group during the plan year that includes the
Determination Date or any of the four preceding plan years
including amounts distributed under a termination plan which, if
it had not been terminated, would have been in the Aggregation
Group.
(iv) The following rules shall apply in determining the
Present Value of Accrued Benefits:
(A) Amounts attributable to qualified voluntary
employee contributions, as defined in Section 219(e) of
the Internal Revenue Code, shall be excluded;
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(B) In computing the Present Value of Accrued
Benefits with respect to rollovers or plan-to-plan
transfers, the following rules shall be applied to
determine whether amounts which have been distributed
during the five (5) year period ending on the
Determination Date from or accepted into this Plan or any
plan in the Aggregation Group shall be included in
determining the Present Value of Accrued Benefits:
(I) Unrelated Transfers accepted into the
Plan or any plan in the Aggregation Group after
December 31, 1983 shall not be included.
(II) Unrelated Transfers accepted on or
before December 31, 1983 and all Related Transfers
accepted at any time into the Plan or any plan in
the Aggregation Group shall be
included.
(III) Unrelated Transfers made from the
Plan or any plan in the Aggregation Group
shall be included.
(IV) Related Transfers made from the Plan or
any plan in the Aggregation Group shall be included
by the transferor plan (but shall be counted by the
accepting plan).
The accrued benefit of any individual who has not received
any Compensation from an Employer maintaining the Plan (or
a business which with the Employer is an Affiliate) at any
time during the five (5) year period ending on the
Determination Date shall be excluded in computing the
Present Value of Accrued Benefits.
(g) "Related Plan" means any other defined benefit plan or a
defined contribution plan (as defined in Section 415(k) of the Code)
maintained by an Employer or other Affiliate, respectively called a
"Related Defined Benefit Plan" and a "Related Defined Contribution
Plan".
(h) "Related Transfer" means a rollover or a plan-to plan
transfer which is either not initiated by the Employee or is made
between plans each of which is maintained by an Employer or an
Affiliate.
(i) A "Top Heavy Aggregation Group" means the Aggregation Group
in any Plan Year for which, as of the Determination Date, the sum of the
present Values of Accrued
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Benefits for Key Employees under all plans in the Aggregation Group
exceeds sixty percent (60%) of the sum of the Present Values of Accrued
Benefits for all employees under all plans in the Aggregation Group;
provided that, for purposes of determining the sum of Present Values of
Accrued Benefits for all employees, there shall be excluded the Present
Values of Accrued Benefits of any Non-Key Employee who was a Key
Employee for any Plan Year preceding the Plan Year that contains the
Determination Date. For purposes of applying the special rules herein
with respect to a Super Top Heavy Plan, a Top Heavy Aggregation Group
will also constitute a "Super Top Heavy Aggregation Group" if in any
Plan Year as of the Determination Date, the sum of the Present Values of
Accrued or Key Employees under all plans in the Aggregation Group
exceeds ninety percent (90%) of the sum of the Present Values of Accrued
Benefits for all employees under all plans in the Aggregation Group.
(j) "Top Heavy Plan" means the Plan in any Plan Year which it is
a member of a Top Heavy Aggregation Group, including a Top Heavy
Aggregation Group consisting solely of the Plan. For purposes of
applying the rules herein with respect to a Super Top Heavy Plan, a Top
Heavy Plan will also constitute a "Super Top Heavy Plan" if the Plan in
any Plan Year is a member of a Super Top Heavy Aggregation Group
consisting solely of the Plan.
(k) "Unrelated Transfer" means a rollover or a plan-to-plan
transfer which is both initiated by the Employee and (a) made from a
plan maintained by an Affiliate to a plan maintained by an Employer
which is not an Affiliate or (b) made to a plan maintained by an
Affiliate from a plan maintained by an Employer which is not an
Affiliate.
15.3 Special Top Heavy Provisions. For each Plan Year in which the Plan
is a Top Heavy Plan, the following rules shall apply, except that the special
provisions of this Section 15.3 shall not apply with respect to any employee who
is covered by a collective bargaining agreement between employee representatives
and one or more Employers unless participation by such employee in the Plan has
been agreed to by the parties to such agreement.
(a) Minimum Employer Matching Contributions.
(i) In any Plan Year in which the Plan is a Top Heavy
Plan, the Employers shall make additional Employer Contributions
to the Plan as necessary for each Member who is employed on the
last day of the Plan Year and who is a Non-Key Employee to bring
the amount of each Member's Aggregate Employer Matching
Contributions for the Plan Year up to at least three percent (3%)
of each Member's Compensation, or if the Plan is not
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required to be included in an aggregation group in order to
permit a defined benefit plan in the Aggregation Group to satisfy
the requirements of Section 401(a)(4) or Section 410 of the
Internal Revenue Code, such lesser amount as is equal to the
largest percentage of a Key Employee's Compensation (as limited
in accordance with Section 15.3(c)) allocated to the Key Employee
as Aggregate Employer Contributions.
(ii) Notwithstanding Section 15.3(a)(1), if there is a
Related Defined Benefit Plan in the Aggregation Group, if a
Non-Key Employee participates in both the Plan and a Related
Defined Benefit Plan and
(A) if the Related Defined Benefit Plan provides
the minimum benefit required under Code Section 416(c)(1)
for the Non-Key Employee, then no minimum Employer
Contribution shall be required under this Section 15.3(a).
(B) if the Related Defined Benefit Plan does not
provide the minimum benefit required under Code Section
416(c)(1) for the Non-Key Employee, then the minimum
Aggregate Employer Contribution under this Section 15.3(a)
shall be five percent (5%) of such Non-Key Employee's
Compensation.
(iii) For purposes of determining whether a Non-Key
Employee is a Member entitled to have minimum Employer
Contributions made for such Member, a Non-Key Employee will be
treated as a Member even if he is not otherwise a Member (or
accrues no benefit) under the Plan because:
(A) such Member has failed to complete the
requisite number of Hours of Service (if any) after
becoming a Member in the Plan,
(B) such Member is excluded from participation in
the Plan (or accrues no benefit) merely because his
compensation is less than a stated amount, or
(C) such Member is excluded from participation in
the Plan (or accrues no benefit) merely because of a
failure to make mandatory employee contributions or, if
the Plan is a Plan described in Section 401(k) of the
Code, because of a failure to make elective 401(k)
contributions.
(b) Vesting. For each Plan Year in which the Plan is
a Top Heavy Plan and for each Plan Year thereafter, the
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vesting schedule under the Plan shall be not less favorable than three
(3) year cliff vesting under which each Member shall be zero percent
vested in the Employer Contributions Account until such Member has three
(3) years of Service after which a Member shall be 100% vested in such
Account; provided that this vesting schedule shall not apply to the
Accrued Benefit of any Member who does not have an Hour of Service in or
after a Plan Year in which the Plan is Top Heavy.
(c) Compensation. For each Plan Year in which the Plan is a Top
Heavy Plan, Compensation taken into account under the Plan shall not
exceed $200,000 (as at 1984, adjusted in subsequent years for the cost
of living adjustments determined in accordance with regulations
prescribed by the Secretary of the Treasury or his delegate pursuant to
the provisions of Section 416(d)(2) of the Code); provided that the
$200,000 limitation of Compensation shall not apply for purposes of
Section 4.3. Notwithstanding the preceding sentence, Compensation in
excess of $200,000 (adjusted as provided in the preceding sentence) for
years before the Plan became a Top Heavy Plan shall be taken into
account (to the extent otherwise provided in the Plan) in determining a
person's Accrued Benefit accrued in such years, and Compensation in
excess of $200,000 (adjusted as provided in the preceding sentence) for
years after the Plan ceases to be a Top Heavy Plan shall be taken into
account (to the extent otherwise provided in the Plan) in determining a
person's Accrued Benefit for all years, including years in which the
Plan was a Top Heavy Plan.
(d) Top Heavy Limitations.
(i) In computing the limitations under Section 4.3 hereof,
if the Plan is a Top Heavy Plan and is not a Super Top Heavy
Plan, the special rules of Section 416(h) of the Internal Revenue
Code shall be applied in accordance with applicable regulations
and rulings so that
(A) in determining the denominator of the Defined
Contribution Plan Fraction and the Defined Benefit Plan
Fraction, at each place at which "1.25" would have been
used, "1.00" shall be substituted and
(B) in determining the numerator of the transition
fraction described in Section 415(e)(6)(B) of the Internal
Revenue Code by substituting $41,500 for $51,875 unless
the special requirements of Section 416(h)(2) of the
Internal Revenue Code have been satisfied.
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(ii) In computing the limitations under Section 4.3
hereof, if the Plan is a Super Top Heavy Plan, the special rules
of Section 416(h) of the Code shall be applied in accordance with
applicable regulations and rulings so that
(A) in determining the denominator of the Defined
Contribution Plan Fraction and the Defined Benefit Plan
Fraction, at each place at which "1.25" would have been
used, "1.00" shall be substituted and
(B) in determining the numerator of the
transitional fraction described in Section 415(e)(6)(B) of
the Internal Revenue Code, $41,500 shall be substituted
for $51,875.
(e) Terminated Plan. If the Plan becomes a Top Heavy Plan after
it has formally been terminated, has ceased crediting for benefit
accruals and vesting and has been or is distributing all plan assets to
Members and their beneficiaries as soon as administratively feasible or
if a terminated plan has distributed all benefits of Members and their
beneficiaries, the provisions of Section 15.3 shall not apply to the
Plan.
(f) Frozen Plans. If the Plan becomes a Top Heavy Plan after
contributions have ceased under the Plan but all assets have not been
distributed to Members or their beneficiaries, the provisions of Section
15.3 shall apply to the Plan.
15.4 Effect of Change in Applicable Legislation or Regulation. In the
event that Congress should provide by statute or the Secretary of the Treasury
should provide by regulation a ruling, that the provisions of this Article XV
are no longer necessary for the Plan to meet the requirements of Section 401(a)
or other applicable provisions of the Code, such limitations shall become void
and shall no longer apply, without the necessity of further amendment to the
Plan.
ARTICLE XVI
Supplemental Rules
Pertaining to ESOP Accounts
16.1 Diversification of ESOP Accounts.
Each Member who is 55 years of age or older (including any former
Employee) may make an election at any time to diversify
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the amounts credited to his or her ESOP Account, in accordance with such
procedures as the Committee shall establish.
A Member's diversification election may be either an investment election
pursuant to Section 8.2 or an election to withdraw (once in any twelve-month
period) all or a portion of the balance in his or her ESOP Account.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of (a) our report dated July 2, 1996 related to the
combined financial statements of Millennium Chemicals Inc., (b) our report
dated October 29, 1993 related to the consolidated financial statements
of Quantum Chemical Corporation, and (c) our report dated July 2, 1996
related to the financial statement of Millennium Chemicals Inc., all of which
appear in the Registration Statement on Form 10 of Millennium Chemicals Inc.
dated August 23, 1996.
PRICE WATERHOUSE LLP
Morristown, New Jersey
September 26, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8), pertaining to the Quantum Chemical Retirement Savings
and Investment Plan, of our report dated February 10, 1994 with respect to the
financial statements of SCM Chemicals Limited for the fiscal year ended
September 30, 1993, included in the Registration Statement on Form 10 of
Millennium Chemicals Inc. filed with the Securities and Exchange Commission
August 23, 1996.
ERNST & YOUNG
Chartered Accountants
Hull, England
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8), pertaining to the Quantum Chemical Retirement
Savings and Investment Plan, of our reports (a) dated November 7, 1995, except
for Note 12 as to which the date is July 2, 1996, with respect to the
consolidated financial statements of HMB Holdings Inc. included in the
Registration Statement on Form 10 of Millennium Chemicals Inc. filed with the
Securities and Exchange Commission on August 23, 1996 and (b) dated June 21,
1996 with respect to the financial statements and schedules of the Quantum
Chemical Retirement Savings and Investment Plan (the "Plan") included
in the Plan's Annual Report (Form 11-K) for the year ended December 31, 1995
as filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Hackensack, New Jersey
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.4
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ William M. Landuyt
----------------------------
William M. Landuyt
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.5
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ Robert E. Lee
------------------------
Robert E. Lee
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.6
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ Kenneth Baker
----------------------------------
The Rt. Hon. Kenneth Baker CH MP
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.7
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ Worley H. Clark, Jr.
----------------------------
Worley H. Clark, Jr.
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.8
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ Glenarthur
-----------------------------------
The Rt. Hon. Lord Glenarthur
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.9
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ David J.P. Meachin
--------------------------
David J.P. Meachin
September 27, 1996.
<PAGE>
<PAGE>
EXHIBIT 23.10
CONSENT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned hereby consents to the incorporation by reference in
the Registration Statement of Millennium Chemicals Inc. on Form S-8 of the
Registration Statement of Millennium Chemicals Inc. on Form 10 filed with the
Securities and Exchange Commission on August 23, 1996 and the Information
Statement, dated August 23, 1996, wherein the undersigned is named as a nominee
for director of Millennium Chemicals Inc.
/s/ Martin G. Taylor
--------------------------------
Martin G. Taylor
September 27, 1996.
<PAGE>
