<PAGE>
As Filed With the Securities and Exchange Commission on December 29, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
PENNZOIL-QUAKER STATE COMPANY
(Exact name of issuer as specified in its charter)
DELAWARE 76-0200625
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
PENNZOIL PLACE, P.O. BOX 2967 77252-2967
HOUSTON, TEXAS (Zip Code)
(address of principal executive offices)
-------------
PENNZOIL-QUAKER STATE COMPANY
SAVINGS AND INVESTMENT PLAN FOR HOURLY EMPLOYEES
(Full title of the plan)
-------------
Linda F. Condit
Corporate Secretary
Pennzoil-Quaker State Company
Pennzoil Place, P.O. Box 2967
Houston, Texas 77252-2967
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (713) 546-4000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES TO AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED (1) BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE (2)
REGISTERED SHARE (2) PRICE (2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 40,000 $13 11/16 $ 547,500 $152.21
value $.10 per share
- ------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of plan
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
computing the registration fee and based upon the average of the high and
low sales price of the Common Stock of the Registrant, trading on a when-
issued basis, reported on the New York Stock Exchange on December 22, 1998.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of this Form and the statement of availability of registrant
information, employee benefit plan annual reports and other information required
by Item 2 of this Form will be sent or given to participants as specified by
Rule 428. In accordance with Rule 428 and the requirements of Part I of Form S-
8, such documents are not being filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement or
as prospectuses or prospectus supplements pursuant to Rule 424. The Registrant
shall maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the Registrant shall furnish to the Commission or its
staff a copy or copies of all of the documents included in such file.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which Pennzoil-Quaker State Company, a Delaware
corporation (the "Company"), has filed with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
1-14501), are incorporated in this Registration Statement by reference and shall
be deemed to be a part hereof:
(1) The Company's Form 10 filed with the Commission on September 21, 1998
and Amendment No. 1 to the Form 10 filed with the Commission on
December 1, 1998;
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998;
(3) The description of rights to purchase preferred stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
on December 18, 1998;
(4) The Company's Current Reports on Form 8-K filed with the Commission on
December 18, 1998 and December 29, 1998.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date of this Registration
Statement and prior to the termination of the offering made hereby shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of the filing of such documents. Any statement
contained in this Registration Statement, in a supplement to this Registration
Statement or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any subsequently filed supplement to this Registration Statement or in any
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Amended and Restated By-Laws of the Company provides for
indemnification of any person who is, or is threatened to be made, a witness in
or a party to any proceeding by reason of his Corporate Status, as defined in
the Amended and Restated By-laws, to the extent authorized by applicable law
including, but not limited to, the Delaware General Corporation Law. Directors
of the Company have agreements in place providing for the same indemnification
as the Amended and Restated By-Laws. Pursuant to Section 145 of the Delaware
General Corporation Law a corporation generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses
and liabilities incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the corporation, and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. With respect to suits by or in the right of a
corporation, however, indemnification is generally limited to attorney's fees
and other expenses and is not available if such person is adjudged to be liable
to the corporation unless the court determines that indemnification is
appropriate. In addition, a corporation has the power to purchase and maintain
insurance for such persons. The statute also expressly provides that the power
to indemnify authorized thereby is not exclusive of any rights granted under any
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
Article IX of the Company's Restated Certificate of Incorporation
eliminates in certain circumstances the monetary liability of directors of the
Company for a breach of their fiduciary duty as directors. These provisions do
not eliminate the liability of a director
(1) for a breach of the director's duty of loyalty to the corporation or
its stockholders;
(2) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violation of law;
(3) under Section 174 of the Delaware General Corporation Law (relating to
the declaration of dividends and purchase or redemption of shares in violation
of the Delaware General Corporation Law); or
(4) for transactions from which the director derived an improper personal
benefit.
The Company has purchased directors and officers liability insurance that
would indemnify the directors and officers of the Company against damages
arising out of certain kinds of claims that might be made against them based on
their negligent acts or omissions while acting in their capacity as such.
The above discussion of the Company's Restated Certificate of Incorporation
and Amended and Restated By-Laws and of Section 145 of the Delaware General
Corporation Law
II-2
<PAGE>
is not intended to be exhaustive and is respectively qualified in its entirety
by such Restated Certificate of Incorporation, Amended and Restated By-Laws and
statute.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
------ -----------
+4.1 - Restated Certificate of Incorporation of Pennzoil-Quaker State
Company (incorporated herein by reference to Exhibit 4.2 to the
Company's Form 8-K filed with the Commission on December 29, 1998)
+4.2 - Amended and Restated By-laws of Pennzoil-Quaker State Company
(incorporated herein by reference to Exhibit 4.3 to the Company's Form
8-K filed with the Commission on December 29, 1998)
4.3 - Pennzoil-Quaker State Company Savings and Investment Plan for
Hourly Employees (filed herewith)
4.4 - First Amendment to the Pennzoil-Quaker State Company Savings
and Investment Plan for Hourly Employees (filed herewith)
4.5 - Second Amendment to the Pennzoil-Quaker State Company Savings
and Investment Plan for Hourly Employees (filed herewith)
4.6 - Third Amendment to the Pennzoil-Quaker State Company Savings
and Investment Plan for Hourly Employees (filed herewith)
4.7 - Fourth Amendment to the Pennzoil-Quaker State Company Savings
and Investment Plan for Hourly Employees (filed herewith)
+4.8 - Trust Agreement with respect to the Pennzoil-Quaker State
Company Savings and Investment Plan (incorporated herein by reference
to Exhibit 4(b)(2) to Pennzoil Company's Form S-8, Registration No.
33-24261, filed with the Commission on September 7, 1988)
4.9 - First Amendment to the Trust Agreement with respect to the
Pennzoil-Quaker State Company Savings and Investment Plan (filed
herewith)
4.10 - Second Amendment to Trust Agreement with respect to the
Pennzoil-Quaker State Company Savings and Investment Plan (filed
herewith)
II-3
<PAGE>
5 - Opinion of Baker & Botts, L.L.P. (filed herewith)
23.1 - Consent of Arthur Andersen LLP, independent public accountants
(filed herewith)
23.2 - Consent of PricewaterhouseCoopers LLP, independent accountants
(filed herewith)
24 - Powers of Attorney (filed herewith)
The Company hereby undertakes to submit the Plan and any amendments thereto
to the Internal Revenue Service in a timely manner and to make all changes
required by the Internal Revenue Service in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
- -----------------
+Incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, as amended (the "Securities Act"),
each filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in 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.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in 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;
II-4
<PAGE>
PROVIDED, HOWEVER, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of
the Exchange Act and each filing of the Plan's annual report pursuant to
section 15(d) of the Exchange Act that are incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on December 29, 1998.
PENNZOIL-QUAKER STATE COMPANY,
a Delaware corporation
By: /s/ James L. Pate
---------------------------------------------
James L. Pate, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on December 29, 1998.
NAME TITLE
---- -----
/s/ David P. Alderson II
- ------------------------------------------- Principal Financial Officer
(David P. Alderson II, Vice President)
/s/ James L. Pate
- ------------------------------------------- Principal Executive Officer
(James L. Pate, Chief Executive Officer)
/s/ James J. Postl
- ------------------------------------------- Director
(James J. Postl, President)
/s/ James W. Shaddix
- ------------------------------------------- Director
(James W. Shaddix, Vice President)
II-6
<PAGE>
THE PLAN. Pursuant to the requirements of the Securities Act, the
Administrative Committee which administers the Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on December 29, 1998.
PENNZOIL-QUAKER STATE COMPANY
SAVINGS AND INVESTMENT PLAN FOR HOURLY
EMPLOYEES ADMINISTRATIVE COMMITTEE
By: /s/ James W. Shaddix
-------------------------------------------------
James W. Shaddix, Chairman of the Committee
THE COMMITTEE. Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on December 29, 1998.
MEMBERS OF THE ADMINISTRATIVE COMMITTEE
OF THE SAVINGS AND INVESTMENT PLAN FOR HOURLY EMPLOYEES
Signature
---------
David P. Alderson II
Clyde W. Beahm*
Linda F. Condit*
Raymond Fischer*
James J. Postl*
Cherylon B. Reid*
W.M. Robb*
James W. Shaddix*
*By: /s/ David P. Alderson II
-----------------------------------------
(David P. Alderson II, Attorney-in-Fact)
II-7
<PAGE>
EXHIBIT 4.3
PENNZOIL COMPANY SAVINGS AND INVESTMENT
PLAN FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
<PAGE>
PENNZOIL COMPANY SAVINGS AND INVESTMENT
PLAN FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
I N D E X
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ARTICLE I DEFINITIONS 2
Section:
Account................................................ 2
Affiliate.............................................. 2
After-Tax Contribution Account......................... 2
After-Tax Contributions................................ 2
Bargaining Agreement................................... 2
Beneficiary............................................ 2
Board of Directors..................................... 2
Code................................................... 2
Committee.............................................. 2
Company................................................ 2
Compensation........................................... 3
Effective Date......................................... 3
Eligible Members....................................... 3
Employee............................................... 4
Employer............................................... 4
Employer Matching Contribution Account................. 4
Employer Matching Contributions........................ 4
Entry Date............................................. 4
ERISA.................................................. 4
Forfeiture............................................. 4
Income of the Trust Fund............................... 4
Investment Fund........................................ 4
Member................................................. 4
Plan................................................... 4
Plan Quarter........................................... 4
Plan Year.............................................. 4
Pre-Tax Contribution Account........................... 5
Pre-Tax Contributions.................................. 5
Prior Plan............................................. 5
Prior Plan Account..................................... 5
Prior Plan Member...................................... 5
Retirement Date........................................ 5
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Rollover Account....................................... 5
Rollover Amount........................................ 5
Service................................................ 5
Trust Agreement........................................ 5
Trust Fund............................................. 5
Trustee................................................ 5
Valuation Date......................................... 6
ARTICLE II ADMINISTRATION OF THE PLAN............................. 7
Section:
2.1 Allocation of Responsibility Among Fiduciaries for
Plan and Trust Administration......................... 7
2.2 Appointment of Committee............................... 7
2.3 Records and Reports.................................... 8
2.4 Other Committee Powers and Duties...................... 8
2.5 Rules and Decisions.................................... 9
2.6 Committee Procedure.................................... 9
2.7 Authorization of Benefit Payments...................... 9
2.8 Payment of Expenses.................................... 9
2.9 Application and Forms for Benefits..................... 10
2.10 Committee Liability.................................... 10
2.11 Quarterly Statements................................... 10
2.12 Annual Audit........................................... 11
2.13 Funding Policy......................................... 11
2.14 Allocation and Delegation of Committee Responsibilities 11
ARTICLE III PARTICIPATION AND SERVICE.............................. 12
Section:
3.1 Eligibility for Participation.......................... 12
3.2 Notification of Eligible Employees..................... 12
3.3 Applications by Employees.............................. 12
3.4 Service................................................ 12
3.5 Termination of Service................................. 13
3.6 Break In Service....................................... 13
3.7 Participation and Service Upon Re-Employment........... 13
3.8 Transferred Members.................................... 14
3.9 Beneficiary Upon Death................................. 14
3.10 Qualified Election..................................... 15
ARTICLE IV CONTRIBUTIONS AND FORFEITURES.......................... 16
Section:
4.1 Pre-Tax Contributions.................................. 16
4.2 After-Tax Contributions................................ 16
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ii
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4.3 Employer Matching Contributions........................ 16
4.4 Employer Matching Contributions and Pre-Tax
Contributions to be Tax Deductible.................... 17
4.5 Change of Elections and Suspension of Allotments....... 17
4.6 Delivery to Trustee.................................... 18
4.7 Application of Funds................................... 18
4.8 Disposition of Forfeitures............................. 18
4.9 Rollover Accounts...................................... 18
4.10 Prior Plan Accounts.................................... 19
ARTICLE V MEMBER ACCOUNTS........................................ 20
Section:
5.1 Individual Accounts.................................... 20
5.2 Account Adjustments.................................... 20
5.3 Limitations on Contributions........................... 21
I. Single Defined Contribution Plan.................. 21
II. Two or More Defined Contribution Plans............ 22
III. Defined Contribution and Defined Benefit Plan..... 23
IV. Definitions....................................... 26
5.4 Valuation of Trust Fund................................ 28
5.5 Recognition of Different Investment Funds.............. 28
ARTICLE VI VOLUNTARY WITHDRAWALS.................................. 29
Section:
6.1 Withdrawal from After-Tax Contribution, Prior Plan and
Rollover Accounts..................................... 29
6.2 Withdrawal from Employer Matching Contribution Account. 29
6.3 Limitation on Withdrawals.............................. 29
6.4 Withdrawal from Pre-Tax Contribution Account........... 29
6.5 Hardship Withdrawals................................... 29
6.6 Loans to Members....................................... 31
ARTICLE VII MEMBERS' BENEFITS...................................... 33
Section:
7.1 Retirement of Members on or after Retirement Date...... 33
7.2 Disability of Members.................................. 33
7.3 Death of Members....................................... 33
7.4 Other Termination of Service........................... 33
7.5 Valuation Dates Determinative of Member's Rights....... 34
ARTICLE VIII PAYMENT OF BENEFITS.................................... 35
Section:
8.1 Payment of Benefits.................................... 35
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8.2 Roosevelt Refinery Plan Accounts....................... 35
8.3 Direct Rollovers....................................... 37
8.4 Presenting Claims for Benefits......................... 38
8.5 Claims Review Procedure................................ 38
8.6 Disputed Benefits...................................... 39
ARTICLE IX TRUST AGREEMENT; INVESTMENT FUNDS; INVESTMENT DIRECTIONS.. 40
Section:
9.1 Trust Agreement........................................ 40
9.2 Investment Funds....................................... 40
9.3 Benefits Paid Solely from Trust Fund................... 41
9.4 Committee Directions to Trustee........................ 41
9.5 Authority to Designate Investment Manager.............. 41
ARTICLE X ADOPTION OF PLAN BY OTHER ORGANIZATIONS; SEPARATION OF THE
TRUST FUND; AMENDMENT AND TERMINATION OF THE PLAN;
DISCONTINUANCE OF CONTRIBUTIONS TO THE TRUST FUND......... 42
Section:
10.1 Adoptive Instrument.................................... 42
10.2 Separation of the Trust Fund........................... 42
10.3 Voluntary Separation................................... 43
10.4 Amendment of the Plan.................................. 43
10.5 Acceptance or Rejection of Amendment by Employers...... 43
10.6 Termination of the Plan................................ 43
10.7 Liquidation and Distribution of Trust Fund Upon
Termination........................................... 44
10.8 Effect of Termination or Discontinuance of
Contributions......................................... 44
10.9 Merger of Plan with Another Plan....................... 44
10.10 Consolidation or Merger with Another Employer.......... 45
ARTICLE XI MISCELLANEOUS PROVISIONS.................................. 46
Section:
11.1 Terms of Employment.................................... 46
11.2 Controlling Law........................................ 46
11.3 Invalidity of Particular Provisions.................... 46
11.4 Non-Alienation of Benefits............................. 46
11.5 Payments in Satisfaction of Claims of Members.......... 46
11.6 Payments Due Minors and Incompetents................... 47
11.7 Impossibility of Diversion of Trust Fund............... 47
11.8 Evidence Furnished Conclusive.......................... 47
11.9 Copy Available to Members.............................. 47
11.10 Unclaimed Benefits..................................... 47
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iv
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11.11 Headings for Convenience Only.......................... 48
11.12 Successors and Assigns................................. 48
11.13 Plan Conditioned upon Internal Revenue Service
Approval............................................. 48
ARTICLE XII TESTING OF CONTRIBUTIONS............................... 49
Section:
12.1 Definitions............................................ 49
12.2 Actual Deferral Percentage............................. 50
12.3 Actual Deferral Percentage Limits...................... 51
12.4 Reduction of Pre-Tax Contribution Rates by
Leveling Method....................................... 51
12.5 Increase in Pre-Tax Contribution Rates................. 52
12.6 Excess Pre-Tax Contributions........................... 52
12.7 Aggregation of Family Members in Determining
the Actual Deferral Ratio............................. 53
12.8 Contribution Percentage................................ 54
12.9 Contribution Percentage Limits......................... 54
12.10 Treatment of Excess Aggregate Contributions............ 55
12.11 Aggregation of Family Members in Determining
the Actual Contribution Ratio......................... 56
12.12 Multiple Use of Alternative Limitation................. 57
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<PAGE>
PENNZOIL COMPANY SAVINGS AND INVESTMENT
PLAN FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
Pennzoil Company, a Delaware corporation (the "Company"), established
the Pennzoil Company Savings and Investment Plan for Hourly Employees, effective
January 1, 1989 (the "Plan"), and a related trust for the benefit of certain of
its employees eligible to participate in the Plan pursuant to a collective
bargaining agreement which provides for participation in the Plan. The Plan and
Trust also holds the account balances of certain employees attributable to their
participation in the Roosevelt Refinery Hourly Employees Retirement Savings
Plan, which plan has been merged herewith.
The purpose of this Plan is to encourage employees to save, and invest
systematically, a portion of their current compensation in order that they may
have an additional source of income upon their retirement or disability, or for
their family in the event of their death. The Plan is a trusteed plan and the
benefits provided hereunder will be in addition to benefits employees are
entitled to receive under any other employee benefit programs of the Company and
under the Federal Social Security Act.
Effective as of October 1, 1994, the Board of Directors of the Company
authorized the amendment, restatement and continuation of the prior Plan in the
form of this plan to comply with the provisions of the Tax Reform Act of 1986
and to make certain other changes therein, including changes relating to
investment fund alternatives and employee loans, effective October 1, 1994.
There shall be no termination and no gap or lapse in time or effect between the
prior Plan and this Plan, and the existence of a qualified plan shall be
uninterrupted. The provisions of this Plan shall apply to a Member who
terminates Service on or after October 1, 1994. The rights and benefits, if
any, of a former employee shall be determined in accordance with the provisions
of the prior Plan in effect on the date his employment terminated.
This Plan and its related trust are intended to meet the requirements
of Sections 401(a), 401(k) and 501(a) of the Internal Revenue Code of 1986 and
of the Employee Retirement Income Security Act of 1974, as either may be amended
from time to time.
NOW, THEREFORE, Pennzoil Company hereby amends, restates and continues
the Pennzoil Company Savings and Investment Plan for Hourly Employees, which
shall read as follows:
<PAGE>
ARTICLE I
DEFINITIONS
As used in this Plan, the following words and phrases shall have the
following meanings unless the context clearly requires a different meaning:
ACCOUNT: Collectively, the accounts maintained for each Member
pursuant to Section 5.1.
AFFILIATE: A corporation or other trade or business which is not an
Employer under this plan but which, together with the Company, is under common
control within the meaning of Code Section 414(b) or (c); any organization
(whether or not incorporated) which together with the Company, is a member of an
affiliated service group within the meaning of Code Section 414(m); and any
other entity required to be aggregated with the Company pursuant to regulations
under Code Section 414(o).
AFTER-TAX CONTRIBUTION ACCOUNT: The separate account maintained for a
Member to record his After-Tax Contributions to the Plan and adjustments
relating thereto.
AFTER-TAX CONTRIBUTIONS: The amount contributed by a Member pursuant
to Section 4.2 and the amount of Pre-Tax Contributions which have been
recharacterized as After-Tax Contributions pursuant to Section 12.6.
BARGAINING AGREEMENT: The collective bargaining agreements by and
between the Company or other Employer and a union, providing (either exclusively
or among other things) for the application of the Plan to the Employees
represented by such union, together with any renewal, modification or amendment
thereof, or any successor agreement thereto. The unions representing employees
that are covered by the Plan are listed on Exhibit A attached hereto.
BENEFICIARY: A Member's surviving spouse, or if no surviving spouse
exists or if a qualified election has been made pursuant to Section 3.10, such
other natural person or persons, or the trustee of an inter vivos trust for the
benefit of natural persons, entitled to benefits hereunder following a Member's
death.
BOARD OF DIRECTORS: The board of directors of the Company.
CODE: The Internal Revenue Code of 1986, as now in effect or
hereafter amended, or the corresponding provisions of any future Federal
internal revenue law.
COMMITTEE: The Administrative Committee appointed by the Company to
act as administrator of the Plan and to perform the duties described in Article
II.
COMPANY: Pennzoil Company, a Delaware corporation, and its
successors.
-2-
<PAGE>
COMPENSATION: The total compensation of an Employee as stated in the
payroll records of the Employer, including wages, commissions and any amounts
paid for time served over the basic work week, or paid as bonuses, foreign
service premium, hardship allowance, severance pay (but only if paid in normal
bi-weekly installments) or as other special pay (other than non-incentive types
of payments for foreign employment) and including any amounts by which a
Member's normal remuneration is reduced pursuant to a voluntary salary reduction
plan qualified under Section 125 of the Code or a cash or deferred arrangement
qualified under Section 401(k) of the Code. The Compensation of a Member as
reflected on the books and records of his Employer shall be conclusive.
Notwithstanding anything herein to the contrary, prior to January 1,
1994, in no event shall the Compensation taken into account under the Plan for
any Employee exceed $235,840 or such other dollar amount as may be prescribed by
the Secretary of the Treasury or his delegate pursuant to Section 401(a)(17) of
the Code. Effective January 1, 1994, Compensation taken into account under the
Plan for any Employee during any Plan Year shall not exceed $150,000, as
adjusted by the Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Code. The cost-of-living adjustment in effect
for a calendar year applies to any period, not exceeding 12 months, over which
Compensation is determined (determination period) beginning in such calendar
year. If a determination period consists of fewer than 12 months, the
Compensation limit will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the denominator of which
is 12. For Plan Years beginning on or after January 1, 1994, any reference in
this Plan to the limitation under Section 401(a)(17) of the Code shall mean the
Compensation limit set forth in this provision.
If Compensation for any prior determination period is taken into
account in determining an Employee's benefits accruing in the current Plan Year,
the Compensation for that prior determination period is subject to the
Compensation limit in effect for that prior determination period. For this
purpose, for determination periods beginning before the first day of the first
Plan Year beginning on or after January 1, 1994, the Compensation limit is
$150,000. For purposes of applying the $150,000 limit on Compensation, the
family unit of an Employee who either is a 5% owner or is both a highly
compensated employee and one of the ten most highly compensated employees will
be treated as a single Employee with one Compensation, and the $150,000 limit
will be allocated among the members of the family unit in proportion to the
total annual Compensation of each member of the family unit. For this purpose,
a family unit consists of the Employee who is a 5% owner or one of the ten most
highly compensated employees, the Employee's spouse, and the Employee's lineal
descendants who have not attained age 19 before the close of the year.
EFFECTIVE DATE: October 1, 1994.
ELIGIBLE MEMBERS: For purposes of determining the Members on whose
behalf Employer Matching Contributions shall be made under Section 4.3, Eligible
Members shall include Employees of the Employer who were Members in the Plan
during the applicable calendar month, including those who terminated Service
prior to the end of such month for any reason and those who were transferred to
an Affiliate or to another Employer (either as an Employee or to an employment
classification which is not covered by this Plan) prior to the end of the
applicable month.
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EMPLOYEE: Any person who, on or after the Effective Date, is
receiving remuneration on an hourly basis for personal services (or would be
receiving such remuneration except for an authorized leave of absence) as an
employee of the Employer. The term "Employee" also includes individuals who are
"leased employees" (as defined in Code Section 414(n), subject to Section
414(n)(5)).
EMPLOYER: The Company and any Affiliate which shall adopt this Plan
pursuant to the provisions of Section 10.1 and the successors, if any, to such
Affiliate.
EMPLOYER MATCHING CONTRIBUTION ACCOUNT: The account maintained for a
Member to record his share of the Employer Matching Contributions and
adjustments relating thereto.
EMPLOYER MATCHING CONTRIBUTIONS: The amount contributed by an
Employer pursuant to Section 4.3.
ENTRY DATE: The beginning of the first payroll period of the Employer
coincident with or next following an Employee's completion of one year of
continuous service.
ERISA: Public Law No. 93-406, the Employee Retirement Income Security
Act of 1974, as amended from time to time.
FORFEITURE: The portion of a Member's Employer Matching Contribution
Account which is forfeited because of termination of Service before full vesting
pursuant to Section 7.4.
INCOME OF THE TRUST FUND: The net gain or loss of the Trust Fund from
investments, as reflected by interest payments, dividends, realized and
unrealized gains and losses on securities and other investment transactions and
expenses paid from the Trust Fund.
INVESTMENT FUND: Any of the investment funds comprising the Trust
Fund, as described in Section 9.2.
MEMBER: An Employee who, pursuant to the provisions of Article III,
has met the eligibility requirements for participation in this Plan and is
participating in the Plan.
PLAN: The Pennzoil Company Savings and Investment Plan for Hourly
Employees, set forth herein, and as hereafter amended from time to time.
PLAN QUARTER: The three-month period commencing on January 1, April
1, July 1 and October 1 of each Plan Year.
PLAN YEAR: The 12-month period commencing on January 1 and ending on
December 31.
PRE-TAX CONTRIBUTION ACCOUNT: The account maintained for a Member to
record his Pre-Tax Contributions to the Plan and adjustments relating thereto.
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PRE-TAX CONTRIBUTIONS: The amount contributed pursuant to the
Member's deferral election by the Employer in accordance with Section 4.1.
PRIOR PLAN: The Pennzoil Company Savings and Investment Plan for
Hourly Employees, as established effective January 1, 1989, as thereafter
amended, and as in effect on September 30, 1994.
PRIOR PLAN ACCOUNT: The account maintained for a Prior Plan Member
pursuant to the provisions of the Prior Plan and which has been transferred to
this Plan pursuant to Section 4.10 and adjustments relating thereto.
PRIOR PLAN MEMBER: Any person who is in the employment of an Employer
or Affiliate on September 30, 1994, and was included in and covered by the
[PRIOR PLAN], or who is the beneficiary, spouse or estate representative of such
a person who died or who was receiving or entitled to receive benefits under the
Prior Plan.
RETIREMENT DATE: The 55th birthday of a Member.
ROLLOVER ACCOUNT: The account maintained for a Member to record his
Rollover Amount and adjustments relating thereto.
ROLLOVER AMOUNT: For purposes of the Plan on or after January 1,
1993, one or more distributions to an Employee of all or any portion of the
balance to the credit of an Employee in a qualified trust; except that such term
shall not include (i) any distribution which is one of a series of substantially
equal periodic payments (not less frequently than annually) made (1) for the
life (or life expectancy of the employee or the joint lives (or joint life
expectancies) of the employee and the employee's designated beneficiary, or (2)
for a specified period of ten years or more, and (ii) any distribution to the
extent such distribution is required under Section 401(a)(9) of the Code. Prior
to January 1, 1993, Rollover Amount shall be defined under the provisions of the
Prior Plan.
SERVICE: For purposes of determining an Employee's eligibility to
participate in the Plan under Section 3.1 and for determining a Member's vested
percentage in his Employer Matching Contribution Account under Section 7.4, an
Employee's or Member's period of employment with an Employer or Affiliate as
determined in accordance with Section 3.4.
TRUST AGREEMENT: The Trust Agreement provided for in Article IX, as
amended from time to time.
TRUST FUND: The Investment Funds held by the Trustee under the Trust
Agreement, together with all income, profits or increments thereon.
TRUSTEE: The trustee under the Trust Agreement.
VALUATION DATE: The last business day of each calendar month during
the Plan Year and any other date on which the value of the assets of the Trust
Fund is determined by the Trustee
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pursuant to Section 5.4. From and after October 1, 1994, "Valuation Date" shall
mean any date on which the United States financial markets are open and any date
on which the value of the assets of the Trust Fund is determined by the Trustee
pursuant to Section 5.4. The last business day of each calendar month shall be
the "Monthly Valuation Date," the last day of each Plan Quarter shall be the
"Quarterly Valuation Date," and the last day of December of each Plan Year shall
be the "Annual Valuation Date."
Words used in this Plan and in the Trust Agreement in the singular
shall include the plural and in the plural the singular, and the gender of words
used shall be construed to include whichever may be appropriate under any
particular circumstances of the masculine, feminine or neuter genders.
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ARTICLE II
ADMINISTRATION OF THE PLAN
2.1 Allocation of Responsibility Among Fiduciaries for Plan and Trust
Administration: The Employers, the Investment Committee (said Investment
Committee, as designated pursuant to the terms of the Trust Agreement, being
hereinafter referred to as the "Investment Committee"), the Administrative
Committee and the Trustee (hereinafter collectively referred to as the
"Fiduciaries") shall have only those specific powers, duties, responsibilities
and obligations as are specifically given them under this Plan or the Trust
Agreement. In general, each Employer shall have the sole responsibility for
making the contributions provided for under Article IV. The Board of Directors
shall have the sole authority to appoint and remove the Trustee and the members
of the Administrative and Investment Committees, and to amend or terminate, in
whole or in part, this Plan or the Trust Agreement. The Investment Committee
shall have the sole responsibility to establish and carry out the funding policy
and method of the Plan insofar as such funding policy and method involves the
investment of Plan assets, to appoint and remove any Investment Manager which
may be provided for under the Trust Agreement and to monitor the performance of
the Trustee and any such Investment Manager, which responsibilities are
specifically described in the Trust Agreement. The Administrative Committee
shall have the sole responsibility to administer the Plan, which
responsibilities are more specifically described in this Plan and the Trust
Agreement. The Trustee shall have the sole responsibility for the
administration of the Trust Fund and shall have exclusive authority and
discretion to manage and control the Trust Fund, except to the extent that the
authority to manage, acquire and dispose of assets of the Trust Fund is
delegated to an Investment Manager, all as more specifically provided in the
Trust Agreement. Each Fiduciary warrants that any directions given, information
furnished, or action taken by it shall be in accordance with the provisions of
the Plan or the Trust Agreement, as the case may be, authorizing or providing
for such direction, information or action. Furthermore, each Fiduciary may rely
upon any such direction, information or action of another Fiduciary as being
proper under this Plan or the Trust Agreement, and is not required under this
Plan or the Trust Agreement to inquire into the propriety of any such direction,
information or action. It is intended under this Plan and the Trust Agreement
that each Fiduciary shall be responsible for the proper exercise of its own
powers, duties, responsibilities and obligations under this Plan and the Trust
Agreement and shall not be responsible for any act or failure to act of another
Fiduciary. No Fiduciary guarantees the Trust Fund in any manner against
investment loss or depreciation in asset value.
2.2 Appointment of Committee: The Plan shall be administered by an
Administrative Committee consisting of at least three persons who shall be
appointed by and serve at the pleasure of the Board of Directors, which
Committee shall serve in the capacity of the "plan administrator" within the
meaning of Section 404 of ERISA. The members of the Committee shall not receive
compensation with respect to their services for the Committee. All usual and
reasonable expenses of the Committee may be paid in whole or in part by the
Company, and any expenses not paid by the Company shall be paid by the Trustee
out of the Trust Fund. The Company shall pay the premiums on any bond secured
for the performance of the duties of the Committee members
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described hereunder. The Company shall be entitled to reimbursement by other
Employers for their proportionate shares of any such costs paid in whole or in
part by the Company.
2.3 Records and Reports: The Committee shall exercise such authority and
responsibility as it deems appropriate in order to comply with ERISA and any
governmental regulations issued thereunder relating to records of Members'
Service, Account balances, the percentage of such Account balances which are
non-forfeitable under the Plan, and notifications to Members. The Committee
shall file or cause to be filed with the appropriate office of the Internal
Revenue Service and the Department of Labor all reports, returns, notices and
other information required of plan administrators under ERISA, including, but
not limited to, the summary Plan description, annual reports and amendments
thereof to be filed with the Department of Labor and requests for determination
letters, annual reports and registration statements required to be filed with
the Internal Revenue Service by Section 6057(a) of the Code.
2.4 Other Committee Powers and Duties: The Committee shall have such
powers as may be necessary to discharge its duties hereunder, including, but not
by way of limitation, the following powers and duties:
(a) To construe and interpret the Plan, decide all questions of
eligibility and determine the amount, manner and time of payment of any
benefits hereunder;
(b) To prescribe procedures to be followed by Members or Beneficiaries
filing applications for benefits;
(c) To receive from the Employers and from Employees such information as
shall be necessary for the proper administration of the Plan;
(d) To prepare and distribute, in such manner as the Committee
determines to be appropriate, information explaining the Plan;
(e) To furnish the Employers, upon request, such annual reports with
respect to the administration of the Plan as are reasonable and
appropriate;
(f) To give written directions to the Trustee, on behalf of Members, as
to the investment and reinvestment of the Trust Fund;
(g) To receive and review reports of the financial condition, and of the
receipts and disbursements, of the Trust Fund from the Trustee and any
Investment Manager, and to transmit such reports, along with its findings
and recommendations surrounding the investment performance of the Trust
Fund, to the Investment Committee;
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(h) To appoint or employ individuals to assist in the administration of
the Plan and any other agents it deems advisable, including legal and
actuarial counsel; and
(i) To interpret and construe all terms, provisions, conditions and
limitations of this Plan and to reconcile any inconsistency or supply any
omitted detail that may appear in this Plan in such manner and to such
extent, consistent with the general terms of this Plan, as the Committee
shall deem necessary and proper to effectuate the Plan for the greatest
benefit of all the parties interested in the Plan.
The Committee shall have no power to add to, subtract from or modify any of the
terms of the Plan, nor to change or add to any benefits provided by the Plan,
nor to waive or fail to apply any requirements of eligibility for a benefit
under the Plan.
2.5 Rules and Decisions: The Committee may adopt such rules for the
administration of the Plan as it deems necessary, desirable or appropriate. All
rules and decisions of the Committee shall be uniformly and consistently applied
to all Employees in similar circumstances. The judgment of the Committee and
each member thereof on any question arising hereunder shall be binding, final
and conclusive on all parties concerned. When making a determination or
calculation, the Committee shall be entitled to rely upon information furnished
by a Member or Beneficiary, the Employer, the legal counsel of the Employer, or
the Trustee.
2.6 Committee Procedure: The Committee may act at a meeting or in writing
without a meeting. The Committee shall elect one of its members as chairman,
appoint a secretary, who may or may not be a member of the Committee, and shall
advise the Trustee of such actions in writing. The secretary of the Committee
shall keep a record of all meetings and forward all necessary communications to
the Employer or the Trustee. The Committee may adopt such bylaws and
regulations as it deems desirable for the conduct of its affairs. All decisions
of the Committee shall be made by the vote of the majority, including actions
taken in writing without a meeting. A dissenting Committee member who, within a
reasonable time after he has knowledge of any action or failure to act by the
majority, registers his dissent in writing delivered to the other Committee
members, the Employer and the Trustee shall not be responsible for any such
action or failure to act. The Committee shall designate one of its members as
agent of the Plan and of the Committee for service of legal process at the
principal office of the Company.
2.7 Authorization of Benefit Payments: The Committee shall issue
directions to the Trustee concerning all benefits which are to be paid from the
Trust Fund pursuant to the provisions of the Plan, and warrants that all such
directions are in accordance with this Plan. The Committee shall keep on file,
in such manner as it may deem convenient or proper, all reports from the
Trustee.
2.8 Payment of Expenses: All expenses incident to the administration,
termination or protection of the Plan and Trust Fund, including, but not limited
to, legal, accounting, Investment Manager and Trustee fees, shall be paid by the
Company, which may require reimbursement from the other Employers for their
proportionate shares, or, if not paid by the Company, shall be paid by
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the Trustee from the Trust Fund and, until paid, shall constitute a first and
prior claim and lien against the Trust Fund.
2.9 Application and Forms for Benefits: The Committee may require an
Employee or Member to complete and file with the Committee an application for a
benefit and all other forms approved by the Committee, and to furnish all
pertinent information requested by the Committee. The Committee may rely on such
information so furnished it, including the Employee's or Member's current
mailing address.
2.10 Committee Liability: Except to the extent that such liability is
created by ERISA, no member of the Committee shall be liable for any act or
omission of any other member of the Committee, nor for any act or omission on
his own part except for his own gross negligence or willful misconduct, nor for
the exercise of any power or discretion in the performance of any duty assumed
by him hereunder. The Company shall indemnify and hold harmless each member of
the Committee from any and all claims, losses, damages, expenses (including
counsel fees approved by the Committee), and liabilities (including any amounts
paid in settlement with the Committee's approval but excluding any excise tax
assessed against any member or members of the Committee pursuant to the
provisions of Section 4975 of the Code) arising from any act or omission of such
member in connection with duties and responsibilities under the Plan, except
when the same is judicially determined to be due to the gross negligence or
willful misconduct of such member.
2.11 Quarterly Statements: As soon as practicable after each Quarterly
Valuation Date, the Committee shall prepare and deliver to each Member a written
statement showing as of that Quarterly Valuation Date:
(a) The balance in his Account in the Trust Fund as of the preceding
Quarterly Valuation Date;
(b) The amount of Employer Matching Contributions allocated to his
Employer Matching Contribution Account and the amount of his Pre-Tax
Contributions and After-Tax Contributions for the Plan Quarter ending on
such Quarterly Valuation Date;
(c) The adjustments to his Account to reflect his share of income and
expenses of the Trust Fund and appreciation or depreciation in Trust Fund
assets during the Plan Quarter ending on such Quarterly Valuation Date;
(d) The new balance in his Account as of that Quarterly Valuation Date;
and
(e) Such information as the Committee deems appropriate to advise him of
his relative interests in each Investment Fund as of the preceding
Quarterly Valuation Date and the current Quarterly Valuation Date.
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2.12 Annual Audit: The Committee shall engage, on behalf of all Members,
an independent Certified Public Accountant who shall conduct an annual
examination of any financial statements of this Plan and Trust Fund and of other
books and records of this Plan and Trust Fund as the Certified Public Accountant
may deem necessary to enable him to form and provide a written opinion as to
whether the financial statements and related schedules required to be filed with
the Department of Labor or furnished to each Member are presented fairly and in
conformity with generally accepted accounting principles applied on a basis
consistent with that of the preceding Plan Year. If, however, the statements
required to be submitted as part of the reports to the Department of Labor are
prepared by a bank or similar institution or insurance carrier regulated and
supervised and subject to periodic examination by a state or federal agency and
if such statements are certified by the preparer as accurate and if such
statements are, in fact, made a part of the annual report to the Department of
Labor and no such audit is required by ERISA, then the audit required by the
foregoing provisions of this Section shall be optional with the Committee.
2.13 Funding Policy: The Investment Committee shall, at a meeting duly
called for such purpose, establish a funding policy and method consistent with
the objectives of the Plan and the requirements of Title I of ERISA. The
Investment Committee shall meet at least annually to review such funding policy
and method. In establishing and reviewing such funding policy and method, the
Investment Committee shall endeavor to determine the Plan's short- and long-term
objectives and financial needs, taking into account the need for liquidity to
pay benefits and the need for investment growth. All actions of the Investment
Committee taken pursuant to this Section and the reasons therefor shall be
recorded in the minutes of meetings of the Investment Committee and shall be
communicated to the Trustee, any investment manager who may be managing a
portion or all of the Trust Fund in accordance with the provisions of the Trust
Agreement, the Administrative Committee and the Board of Directors.
2.14 Allocation and Delegation of Committee Responsibilities: Upon the
approval of a majority of the members of the Committee, the Committee may (i)
allocate among any of the members of the Committee any of the responsibilities
of the Committee under the Plan and Trust Agreement and/or (ii) designate any
person, firm or corporation that is not a member of the Committee to carry out
any of the responsibilities of the Committee under the Plan and Trust Agreement.
Any such allocation or designation shall be made pursuant to a written
instrument executed by a majority of the members of the Committee.
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ARTICLE III
PARTICIPATION AND SERVICE
3.1 Eligibility for Participation: Each Employee in active Service as of
the Effective Date who was a Prior Plan Member shall be eligible to become a
Member of this Plan as of the Effective Date. Except as herein provided, each
other Employee shall be eligible to commence participation on the Effective Date
or the Employee's Entry Date. An Employee who does not participate in the Plan
when he first becomes eligible may commence such participation at the beginning
of any payroll period thereafter, provided he is otherwise eligible hereunder.
Notwithstanding anything herein to the contrary, leased employees shall not be
eligible to participate in the Plan.
3.2 Notification of Eligible Employees: The Committee, which shall be the
sole judge of the eligibility of an Employee to participate under the Plan,
shall notify each Employee of his initial eligibility to participate in the
Plan.
3.3 Applications by Employees: Each Employee who shall become eligible to
become a Member under the Plan, and who shall desire so to become a Member,
shall execute and file with the Committee an application to become a Member in
such form as may be prescribed by the Committee. In each such application, the
applicant shall (i) designate the amount of his Pre-Tax and/or After-Tax
Contributions to the Plan, (ii) agree to be bound by the terms and conditions of
the Plan and (iii) authorize payroll deductions for his Pre-Tax and/or After-Tax
Contributions.
3.4 Service: The term Service shall mean all of an Employee's or Member's
years, months and days of active employment with an Employer or Affiliate,
including periods of absence:
(i) Due to accident or sickness so long as the person is continued on
the employment rolls of the Employer or Affiliate and remains eligible to
return to work upon his recovery;
(ii) In the service of the Armed Forces of the United States (but if
such absence is not pursuant to orders issued by the Armed Forces of the
United States, only if with the consent of the Employer or Affiliate); and
(iii) Due to an authorized leave of absence granted by the Employer or
Affiliate for any other purpose approved by the Board of Directors in
accordance with established practices of the Employer or Affiliate,
consistently applied in a non-discriminatory manner in order that all
employees under similar circumstances shall be treated alike.
An Employee's or Member's Service shall commence (or recommence) on
the date he first performs an "hour of service" within the meaning of Department
of Labor Regulation (S) 2530.200b-2(a)(1) for an Employer or Affiliate. All
periods of Service shall be aggregated so that a one-year period of Service
shall be completed as of the date the Employee or Member completes
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12 months of Service (30 days shall be deemed to be a month in the case of the
aggregation of fractional months), or 365 days of Service.
Hours of Service will be credited for employment with other members of
an affiliated service group (under Code Section 414(m)), a controlled group of
corporations (under Code Section 414(b)), or a group of trades or businesses
under common control (under Code Section 414(c)), of which the Employer is a
member. Hours of Service will also be credited for any individual considered an
Employee for purposes of this Plan under Code Section 414(n).
3.5 Termination of Service: A period of Service of an Employee or Member
shall terminate on the date of the first to occur of (i) his retirement or
death, (ii) his quitting or discharge other than during or upon expiration of an
authorized leave of absence under Section 3.4, (iii) his quitting or discharge
during such an authorized leave of absence, (iv) his deemed date of termination
of employment pursuant to his failure to return to work upon the expiration of
such an authorized leave of absence, or (v) one year from the date the Employee
or Member is absent from active employment for any reason other than retirement,
quitting, discharge, authorized leave of absence or death. For purposes of
clause (iv) immediately above, an Employee's or Member's deemed date of
termination shall be the earlier of (A) the expiration date of such authorized
leave of absence and (B) one year from the date such authorized leave of absence
commenced.
3.6 Break In Service: For purposes of the Plan, a "Break In Service"
shall occur upon the expiration of the 12 consecutive month period next
following an Employee's or Member's termination of Service (as determined in
accordance with the provisions of Section 3.4 hereof), unless such Employee or
Member sooner recommences Service with an Employer or Affiliate.
Solely for purposes of determining whether a Break In Service has
occurred for participation and vesting purposes under this Plan, the Service of
an individual who is absent from work for maternity or paternity reasons shall
not terminate until the expiration of two years after the date such absence
commenced. For purposes of this paragraph, an absence from work for maternity
or paternity reasons means an absence (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.
3.7 Participation and Service Upon Re-Employment: Upon the re-employment
of any person on or after the Effective Date who had previously been employed by
an Employer or Affiliate, the following rules shall apply in determining his
eligibility for participation under Section 3.1 and his Service under Section
3.4:
(a) Participation: If the re-employed person was not a Member during
his prior period of Service, he must meet the requirements of Section 3.1
for participation in the Plan as if he were a new Employee. If the re-
employed person was a Member in the Plan during his prior period of
Service, he shall be entitled to recommence participation as of the date
of his re-employment, and may also
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be entitled to a reinstatement of the amount previously forfeited from his
prior Employer Matching Contribution Account as provided in Section 7.4.
(b) Service: Any Service attributable to his prior period of Service
shall be reinstated as of the date of his re-employment. In addition, in
the event an Employee or Member recommences Service with an Employer or
Affiliate prior to incurring a Break In Service, the period of his interim
absence shall also constitute Service for purposes of Section 7.4.
3.8 Transferred Members: If a Member is transferred to an Affiliate, or
to an employment classification with an Employer which is not covered by this
Plan, his participation shall be suspended until he is subsequently re-employed
by an Employer in an employment classification covered by the Plan; provided,
however, that during such suspension period (i) such Member shall be credited
with Service in accordance with Section 3.4, (ii) he shall not be entitled or
required to make Pre-Tax Contributions or After-Tax Contributions under Section
4.1 or 4.2, (iii) his Employer Matching Contribution Account shall receive no
Employer Matching Contribution allocations except to the extent provided in
Sections 4.3 and 5.2, and (iv) his Account shall continue to share
proportionately in Income of the Trust Fund as provided in Section 5.2. If an
Employee is transferred from an employment classification with an Employer that
is not covered by the Plan to an employment classification that is so covered,
or from an Affiliate to an employment classification with an Employer that is so
covered, his period of Service prior to the date of transfer shall be considered
for purposes of determining his eligibility to become a Member under Section 3.1
and for purposes of vesting under Section 7.4.
In the event an employee of an Affiliate is transferred to employment
with an Employer in an employment classification covered by this Plan and such
Affiliate provides a thrift, savings or profit-sharing plan of like nature and
intent as this Plan in which the employee was a participant immediately
preceding his transfer, such employee's account balance in a domestic
Affiliate's defined contribution plan qualified under Section 401(a) of the
Code, determined on the valuation date coincident with or next following the
date of the employee's transfer, will, subject to the approval of the Committee,
be transferred to the Trust Fund held under this Plan and allocated among the
Investment Funds in accordance with the provisions of Section 9.3 hereof. In
the event a Member under this Plan is transferred to employment with an
Affiliate and such Affiliate provides a thrift, savings or profit-sharing plan
of like nature and intent as this Plan in which the Member will be eligible to
participate as an employee of such Affiliate, such Member's account balances in
this Plan, determined as of the valuation date coincident with or next following
the date of the Member's transfer, will, subject to the approval of the plan
administrator of the Affiliate's plan, be transferred to such plan and allocated
between the investment funds held thereunder in accordance with the provisions
thereof. For purposes of this paragraph, all references to "Affiliate" shall
include employment classifications with an Employer.
3.9 Beneficiary Upon Death: Upon the death of a Member, his Account shall
be distributed to the Member's surviving spouse, but if there is no surviving
spouse, or if the surviving spouse has already consented by a qualified election
pursuant to Section 3.10, to the Beneficiary or Beneficiaries designated by the
Member in a written designation filed with his Employer, or if no
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such designation shall have been so filed, to his estate. No designation of any
Beneficiary other than the Member's surviving spouse shall be effective unless
in writing and received by the Member's Employer, and in no event shall it be
effective as of a date prior to such receipt. The former spouse of a Member
shall be treated as a surviving spouse to the extent provided under a qualified
domestic relations order as described in Section 414(p) of the Code. As soon as
possible after an Employee has become a Member he shall file with the Committee
a written designation, in the form prescribed by the Committee, of the
Beneficiary to receive benefits payable hereunder upon his death. Subject to the
provisions of Section 3.10, the Member may at any time change or cancel any such
designation on a form prescribed by the Committee. The last such designation
received by the Committee shall be controlling over any testamentary or other
disposition; provided, however, that no designation or change or cancellation
thereof shall be effective prior to the Member's death, and in no event shall it
be effective as of a date prior to such receipt. If the Committee shall be in
doubt as to the right of any Beneficiary designated by a deceased Member to take
the interest of such decedent, the Committee may direct the Trustee to pay the
amount in question to the estate of such Member, in which event the Trustee, the
Employer, the Committee and any other person in any manner connected with the
Plan shall have no further liability in respect of the amount so paid.
3.10 Qualified Election: The Member's spouse may waive the right to
receive the Member's full vested Account balance. The election to waive the
Member's full vested Account balance must designate a Beneficiary which may not
be changed without spousal consent (or the consent of the spouse must expressly
permit designation by the Member without any requirement of further consent of
the spouse). A consent that permits designations by the Member without any
requirement of further consent by the spouse must acknowledge that the spouse
has the right to limit consent to a specific beneficiary and that the spouse
voluntarily elects to relinquish such right. The waiver must be in writing and
the Member's spouse must acknowledge the effect of the waiver. The spouse's
consent to a waiver must be witnessed by a Plan representative or a notary
public. The Member may file a waiver without the spouse's consent if it is
established to the satisfaction of the Committee that such written consent may
not be obtained because there is no spouse or the spouse may not be located.
Any consent under this Section 3.10 will be valid only with respect to the
spouse who signs the consent. Additionally, a revocation of a prior waiver may
be made by a Member without the consent of the spouse at any time before the
distribution of the Account. The number of revocations shall not be limited.
-15-
<PAGE>
ARTICLE IV
CONTRIBUTIONS AND FORFEITURES
4.1 Pre-Tax Contributions: Each eligible Employee who elects to make Pre-
Tax Contributions for a Plan Year shall initially elect to defer a portion of
his Compensation in whole percentages of not less than 1% and not more than 12%,
subject to the limitations set forth in the following schedule:
Maximum Pre-Tax
Years of and After-Tax
Participation Contribution Rate
------------- -----------------
Less than 5 years 9%
5 - 10 years 10%
More than 10 years 12%
For purposes of this Article, a Member's Years of Participation shall include
all periods of active participation in this Plan, and all periods of active
participation in the Pennzoil Company and Participating Companies Employees
Stock Purchase Plan and in the Pennzoil Company Savings and Investment Plan
immediately preceding participation in this Plan. Pre-Tax Contributions under
this Section 4.1 shall not total more than $9,240 per Plan Year (as adjusted
upward by the Secretary of the Treasury to reflect increases in the cost-of-
living). Each election hereunder shall be made pursuant to the provisions of
Section 3.3 and shall continue in effect during subsequent Plan Years unless the
Member shall change or discontinue his Pre-Tax Contribution rate as provided in
Section 4.5. Each Member's Pre-Tax Contribution Account shall be fully vested
and non-forfeitable at all times.
4.2 After-Tax Contributions: Each eligible Employee, regardless of
whether he has elected to defer any percentage of his salary in the form of Pre-
Tax Contributions to the Plan, may elect to make After-Tax Contributions of not
less than 1% and not more than 12% of his Compensation; provided, however, that
the aggregate of a Member's Pre-Tax Contributions and After-Tax Contributions
shall be limited to the maximum rate based on Years of Participation as set
forth in Section 4.1 and shall not total, in any event, more than 12% of the
Member's Compensation.
Any After-Tax Contribution election shall be made pursuant to the
provisions of Section 3.3 and shall continue in effect during subsequent Plan
Years unless the Member shall change or discontinue his After-Tax Contribution
rate as provided in Section 4.5. Each Member's After-Tax Contribution Account
shall be fully vested and non-forfeitable at all times.
4.3 Employer Matching Contributions: For each Plan Year, the Company
shall make a Matching Contribution to the Trust Fund on behalf of the Eligible
Members in an amount equal to the applicable percentage (as set forth below) of
the first 3%, 4% or 6% as applicable of the Pre-Tax Contributions and After-Tax
Contributions elected or contributed by the Eligible Members during such Plan
Year and not withdrawn under Article VI during such Plan Year:
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<TABLE>
<CAPTION>
Total Percentage of
Applicable Percentage Member Contributions
Years of Employer Matching Eligible for Employer
Participation Contribution Matching Contribution
- -------------------------- ---------------------- ----------------------
<S> <C> <C>
Less than 5 years 50% 3%
5 - 10 years 75% 4%
More than 10 years 100% 6%
</TABLE>
An Employer Matching Contribution shall be deemed to be made on
account of a Plan Year if the Board of Directors of the Company determines the
amount of such Employer Matching Contribution by appropriate action and either
(i) the Company claims such amount as a deduction on its Federal income tax
return for such Plan Year or (ii) the Company designates such amount in writing
to the Trustee as payment on account of such Plan Year. All Employer Matching
Contributions of the Company shall be paid to the Trustee in cash, and payment
shall be made not later than the time prescribed by law for filing the Federal
income tax return of the Employer, including any extension which has been
granted for the filing of such tax return; provided, however, that at its option
the Company may make Employer Matching Contributions in common stock of the
Company with a market value equal to the amount otherwise payable under this
Section 4.3.
In the case of the reinstatement of any amounts forfeited under
Section 7.4 or pursuant to the unclaimed benefit provisions of Section 11.10,
the Employer shall also contribute, within a reasonable time after the repayment
described in Section 7.4 or after a claim is filed under Section 11.10, a
Minimum Contribution in an amount sufficient when added to Forfeitures to
reinstate such amounts. All such Employer Minimum Contributions shall be
transmitted to the Trustee as soon as practicable after such Employer Minimum
Contributions are made.
4.4 Employer Matching Contributions and Pre-Tax Contributions to be Tax
Deductible: Employer Matching Contributions and Pre-Tax Contributions shall not
be made in excess of the amount deductible under applicable Federal law now or
hereafter in effect limiting the allowable deduction for contributions to
profit-sharing plans. The Employer Matching Contributions and Pre-Tax
Contributions to this Plan when taken together with all other contributions made
by the Employer to other qualified retirement plans shall not exceed the maximum
amount deductible under Code Section 404.
4.5 Change of Elections and Suspension of Allotments: Any Member may
increase or decrease the percentage of his salary designated as Pre-Tax and/or
After-Tax Contributions, but not retroactively and such change shall be
effective as soon as reasonably practicable following receipt of the change of
elections. A Member may make such changes 12 times annually by telephone
through a voice-response system. Further, any Member may, by voice-response,
suspend his Pre-Tax Contributions and/or After-Tax Contributions. In the case
of total suspension of Pre-Tax Contributions and After-Tax Contributions, the
Employer Matching Contribution will automatically cease. Pre-Tax Contributions
and/or After-Tax Contributions which are not made during a period of suspension
shall not be made retroactively. All such changes of elections related to
contributions in the investments of Accounts shall be made by telephone voice-
response system.
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<PAGE>
4.6 Delivery to Trustee: Each Employer shall as soon as practicable and
not less frequently than monthly, pay the Pre-Tax Contributions, After-Tax
Contributions and Employer Matching Contributions to the Trustee.
4.7 Application of Funds: The Trustee shall hold or apply the Pre-Tax
Contributions, After-Tax Contributions and Employer Matching Contributions so
received by it subject to the provisions of the Plan, and no part thereof
(except as otherwise provided in the Trust Agreement) shall be used for any
purpose other than the exclusive use of the Members or their Beneficiaries.
4.8 Disposition of Forfeitures: In any case in which a Member is not
entitled to the full amount in his Employer Matching Contribution Account, the
amount to which he is not entitled shall be forfeited as of the earlier of (i)
the distribution of the entire vested portion of the Member's Account or (ii)
the last day of the Plan Year in which the Member incurs five consecutive one-
year Breaks In Service. If the Member terminates Service without being entitled
to receive a distribution from the Plan, he shall be deemed to have received a
distribution as of the date of his termination of Service. Forfeitures shall be
allocated in the following order:
(a) First, such Forfeitures shall be allocated to reinstate any
Employer Matching Contribution Accounts of Members who return to Service
and are entitled to reinstatement of their Employer Matching Contribution
Account in accordance with Section 7.4.
(b) Second, such Forfeitures shall be applied to restore any amounts
forfeited under the unclaimed benefits provisions of Section 11.10.
(c) Third, such Forfeitures shall be applied against the next
succeeding Employer Matching Contribution.
4.9 Rollover Accounts: Any Member may file with the Committee a written
request that the Trustee accept a Rollover Amount from such Member. The
Committee, in its sole and absolute discretion, shall determine whether such
Member shall be permitted to contribute a Rollover Amount to the Trust Fund.
The Committee shall develop such procedures and may require such information
from the Employee desiring to make such a transfer as it deems necessary or
desirable to determine that the proposed transfer will meet the requirements of
this Section. Upon approval by the Committee, the amount transferred shall be
deposited in the Trust Fund and shall be credited to a separate Rollover
Account. Such account shall at all times be fully vested and non-forfeitable,
shall share in the Income of the Trust Fund in accordance with Section 5.2, but
shall not share in Employer Matching Contribution allocations. Upon termination
of employment, the total amount of the Rollover Account shall be distributed in
accordance with Article VIII.
Upon such a transfer by an Employee who is otherwise eligible to
participate in the Plan but who has not yet completed the participation
requirements of Section 3.1, his Rollover Account shall represent his sole
interest in the Plan until he becomes a Member. In all respects, the Rollover
Account shall be treated as a regular account under this Plan and shall be
subject to the investment directions of the Member and the change thereof as
otherwise permitted herein.
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<PAGE>
4.10 Prior Plan Accounts: The Committee shall instruct the Trustee
to accept a transfer of the full account balance as of December 31, 1988 of (i)
each Prior Plan Member who is eligible for participation hereunder on the
Effective Date and (ii) each Prior Plan Member who was a participant in the
Roosevelt Refinery Hourly Employees Retirement Savings Plan as of December 31,
1988. Any such transferred assets shall be designated as a "Prior Plan
Account." Such Prior Plan Account shall at all times be fully vested and non-
forfeitable. The Prior Plan Account shall be treated as a regular account under
this Plan and shall be subject to the investment directions of the Member and
the changes thereof as otherwise permitted herein. Upon termination of
employment, the total amount of the Prior Plan Account shall be distributed in
accordance with Article VIII.
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<PAGE>
ARTICLE V
MEMBER ACCOUNTS
5.1 Individual Accounts: The Committee shall create and maintain adequate
records to disclose the interest in the Trust Fund and in its component
Investment Funds of each Member, former Member and Beneficiary. Such records
shall be in the form of individual accounts and credits and charges shall be
made to such accounts in the manner herein described. A Member may have up to
five separate accounts, an Employer Matching Contribution Account, a Pre-Tax
Contribution Account, an After-Tax Contribution Account, a Prior Plan Account
and a Rollover Account. Any Member who transfers from one Employer to another
Employer, or who is simultaneously employed by two or more Employers, may have
individual accounts with each such Employer. The maintenance of individual
Accounts is only for accounting purposes, and a segregation of the assets of the
Trust Fund to each Account shall not be required. Distribution and withdrawals
made from an Account shall be charged to the Account as of the date paid.
5.2 Account Adjustments: Prior to October 1, 1994, the Accounts of
Members, former Members and Beneficiaries shall be adjusted each Plan Year in
accordance with the following:
(a) Income of the Trust Fund: As of the end of each month, the
Trustee shall value the Trust Fund at its then market value to determine
the amount of Income of the Trust Fund for the month then ended. Then the
Trustee shall allocate such Income of the Trust Fund among the Accounts of
Members, former Members and Beneficiaries who had unpaid balances in their
Accounts as of the last day of such month in proportion to the balances in
such Accounts at the beginning of such month.
(b) Pre-Tax and After-Tax Contributions: As of the end of each month,
the Pre-Tax Contributions of each Member made to the Plan during such
month shall be allocated to his Pre-Tax Contribution Account. As of the
end of each month, the After-Tax Contributions of each Member made to the
Plan during such month shall be allocated to his After-Tax Contribution
Account.
(c) Employer Matching Contributions: As of the end of each month, the
Employer Matching Contribution for such month shall be allocated among its
Eligible Members during such month based on the matching rates set forth
in Sections 4.3 and in the ratio that each Eligible Member's unwithdrawn
Pre-Tax Contributions and After-Tax Contributions for the month bears to
the total unwithdrawn Pre-Tax Contributions and After-Tax Contributions of
all such Eligible Members for the month.
(d) Forfeitures: As of the Annual Valuation Date, Forfeitures which
have become available for reallocation during such Plan Year shall be
applied pursuant to Section 4.8.
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<PAGE>
(e) Employer Minimum Contributions: Employer Minimum Contributions
shall be used solely to reinstate Accounts in accordance with Section 7.4
and to restore Accounts pursuant to Section 11.10 whenever the Forfeitures
available for such reinstatement or restoration are insufficient.
Effective October 1, 1994, except with respect to Employer Matching
Contributions which shall be allocated bi-weekly among Eligible Members, the
accounts of Members, former Members and Beneficiaries shall be adjusted daily.
5.3 Limitations on Contributions: Notwithstanding any provision of this
Plan to the contrary, the total Annual Additions made to the account of an
Employee for any Limitation Year (the Plan Year) shall be subject to the
following limitations:
I. Single Defined Contribution Plan
1. If an Employer does not maintain any other qualified plan,
the amount of Annual Additions which may be allocated under this Plan
on an Employee's behalf for a Limitation Year shall not exceed the
lesser of the Maximum Permissible Amount or any other limitation
contained in this Plan.
2. Prior to the determination of the Employee's actual
Compensation for a Limitation Year, the Maximum Permissible Amount may
be determined on the basis of the Employee's estimated annual
Compensation for such Limitation Year. Such estimated annual
Compensation shall be determined on a reasonable basis and shall be
uniformly determined for all Employees similarly situated. Any
Employer contributions (including allocation of forfeitures) based on
estimated annual Compensation shall be reduced by any Excess Amounts
carried over from prior years.
3. As soon as is administratively feasible after the end of the
Limitation Year, the Maximum Permissible Amount for such Limitation
Year shall be determined on the basis of the Employee's actual
Compensation for such Limitation Year.
4. If there is an Excess Amount with respect to an Employee for
the Limitation Year, any non-deductible voluntary employee
contributions, to the extent they would reduce the Excess Amount, will
be returned to the Employee. Then, Excess Amounts will be treated as
a forfeiture and shall be applied as a credit to subsequent Employer
contributions or reallocated to other Employees to the extent such
allocations do not exceed the Maximum Permissible Amount. Any Excess
Amounts that cannot be allocated will be held in a suspense account.
All amounts in the suspense
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<PAGE>
account must be allocated and reallocated to the Employee's accounts
(subject to the limitations of Section 415) in succeeding Limitation
Years before any Employer contribution and non-deductible employee
contribution which would constitute Annual Additions may be made to
the Plan. If a suspense account is in existence at any time during the
Limitation Year pursuant to this Section, it will not participate in
the allocation of the Trust's investment gains and losses.
If any such Excess Amount shall then remain, the Excess
Amount of the Member's Pre-Tax Contributions, as defined in Section
4.1, shall be used to reduce Pre-Tax Contributions for the next
Limitation Year (and succeeding Limitation Years, as necessary) for
that Member if that Member is eligible to participate in the Plan as
of the end of the next and succeeding Limitation Years. However, if
that Member is not eligible to participate in the Plan as of the end
of the Limitation Year, then the Excess Amounts must be held
unallocated in a suspense account and applied in the next subsequent
calendar quarter or quarters as a part of (and to reduce to such
extent what would otherwise be) the Employer Matching Contribution for
all Members required to be made to the Plan. No portion of such
Excess Amount may be distributed to Members or former Members. If a
suspense account is in existence at any time during the Limitation
Year pursuant to this paragraph, such suspense account shall not
participate in the allocation of investment gains or losses of the
Trust Fund.
II. Two or More Defined Contribution Plans
1. If, in addition to this Plan, the Employer maintains any
other qualified defined contribution plan, the amount of Annual
Additions which may be allocated under this Plan on an Employee's
behalf for a Limitation Year shall not exceed the lesser of:
A. the Maximum Permissible Amount, reduced by the sum of
any Annual Additions allocated to the Employee's accounts for the
same Limitation Year under this Plan and such other defined
contribution plans; or
B. any other limitation contained in this Plan.
2. Prior to the determination of the Employee's actual
Compensation for the Limitation Year, the amount referred to in
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<PAGE>
Section 1(A) above, may be determined on the basis of the Employee's
estimated annual Compensation for such Limitation Year. Such estimated
annual Compensation shall be determined on a reasonable basis and
shall be uniformly determined for all Employees similarly situated.
Any Employer contribution (including allocation of forfeitures) based
on estimated annual Compensation shall be reduced by any Excess
Amounts carried over from prior years.
3. As soon as is administratively feasible after the end of the
Limitation Year, the amounts referred to in Section 1(A) above shall
be determined on the basis of the Employee's actual Compensation for
such Limitation Year.
4. If an Employee's Annual Additions under this Plan and all
such other plans result in an Excess Amount, such Excess Amount shall
be deemed to consist of the amounts last allocated.
5. If an Excess Amount was allocated to an Employee on an
allocation date of this Plan which coincides with an allocation date
of another plan, the Excess Amount attributed to this Plan will be the
product of:
A. the total Excess Amount allocated as of such date
(including any amount which would have been allocated but for the
limitations of Section 415 of the Code); times
B. the ratio of (A) the amount allocated to the Employee as
of such date under this Plan, divided by (B) the total amount
allocated as of such date under all qualified defined
contribution plans (determined without regard to the limitations
of Section 415 of the Code).
6. Any Excess Amounts attributed to this Plan shall be disposed
of as provided in Section 5.3(I)(4).
III. Defined Contribution and Defined Benefit Plan
1. General Rule: If the Employer maintains one or more defined
contribution plans and one or more defined benefit plans, the sum of
the "defined contribution plan fraction" and the "defined benefit plan
fraction," as defined below, cannot exceed 1.0 for any Limitation
Year. For purposes of this paragraph, employee contributions to a
qualified defined benefit plan are treated as a
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<PAGE>
separate defined contribution plan. For purposes of this paragraph,
all defined contribution plans of an Employer are to be treated as one
defined contribution plan and all defined benefit plans of an Employer
are to be treated as one defined benefit plan, whether or not such
plans have been terminated.
If the sum of the defined contribution plan fraction and
defined benefit plan fraction exceeds 1.0, the Annual Benefit of the
defined benefit plans will be reduced so that the sum of the fractions
will not exceed 1.0. In no event will the Annual Benefit be decreased
below the amount of the accrued benefit to date. If additional
reductions are required for the sum of the fractions to equal 1.0, the
reductions will then be made to the Annual Additions of the defined
contribution plans.
2. Defined Contribution Plan Fraction
A. General Rule: The defined contribution plan fraction
for any year is 1 divided by 2, where:
1 is the numerator, the sum of the actual Annual
Additions to the Employee's account at the close of the
Limitation Year; and
2 is the denominator, the sum of the lesser of the
following amounts determined for such year and for each
prior year of service of the Employee:
a. 1.25 times the dollar limitation in effect for
each such year (without regard to the special dollar
limitations for employee stock ownership plans); or
b. 1.4 times 25% of the Employee's Compensation
for each such year.
B. If the Employee was a participant as of the first day of
the First Limitation Year beginning after December 31, 1986, in
one or more defined contribution plans maintained by the Employer
which
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<PAGE>
were in existence on May 6, 1986, the numerator of this fraction
will be adjusted if the sum of this fraction and the defined
benefit fraction would otherwise exceed 1.0 under the terms of
this Plan. Under the adjustment, an amount equal to the product
of (1) the excess of the sum of the fractions over 1.0 times (2)
the denominator of this fraction, will be permanently subtracted
from the numerator of this fraction. The adjustment is calculated
using the fractions as they would be computed as of the end of
the last Limitation Year beginning before January 1, 1987, and
disregarding any changes in the terms and conditions of the plans
made after May 5, 1986, but using the Code Section 415 limitation
applicable to the first Limitation Year beginning on or after
January 1, 1987.
3. Defined Benefit Plan Fraction
A. General Rule: The defined benefit plan fraction for any
year is 1 divided by 2, where:
1 is the projected Annual Benefit of the Employee under
the Plan (determined as of the close of the Limitation
Year); and
2 is the lesser of:
a. 1.25 times the dollar limitation (adjusted, if
necessary) for such year; or
b. 1.4 times 100% of the Employee's Average
Compensation for the high 3 years (adjusted, if
necessary).
B. Notwithstanding the above, if the Employee was a
participant as of the first day of the first Limitation Year
beginning after December 31, 1986, in one or more defined benefit
plans maintained by the Employer which were in existence on May
6, 1986, the denominator of this fraction will not be less than
125% of the sum of the Annual Benefits under
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<PAGE>
such plans which the Employee had accrued as of the close of the
last Limitation Year beginning before January 1, 1987,
disregarding any changes in the terms and conditions of the plans
after May 5, 1986. The preceding sentence applies only if the
defined benefit plans individually and in the aggregate satisfied
the requirements of Code Section 415 as in effect for all
Limitation Years beginning before January 1, 1987.
IV. Definitions
1. Employer: The Company and any other Employer that adopts this
Plan. In the case of a group of employers which constitutes a controlled
group of corporations (as defined in Section 414(b) of the Code as
modified by Section 415(h)) or which constitutes trades and businesses
(whether or not incorporated) which are under common control (as defined
in Section 414(c) as modified by Section 415(h)) or an affiliated service
group (as defined in Section 414(m)), all such employers shall be
considered a single Employer for purposes of applying the limitations of
this Section.
2. Excess Amount: The excess of the Employee's Annual Additions for
the Limitation Year over the Maximum Permissible Amount, less loading and
other administrative charges allocable to such excess.
3. Limitation Year: A 12 consecutive month period ending on December
31.
4. Maximum Permissible Amount: For a Limitation Year, the Maximum
Permissible Amount with respect to any Employee shall be the lesser of:
A. $30,000 (increased annually for Limitation Years beginning
after December 31, 1987, in accordance with Section 415(d) of the Code
to reflect cost-of-living adjustments); or
B. 25% of the Employee's Compensation for the Limitation Year.
The Compensation limitation referred to in subparagraph B above
shall not apply to:
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<PAGE>
(i) Any contribution for medical benefits (within the meaning of
Code Section 419A(f)(2)) after separation from service which is
otherwise treated as an Annual Addition; or
(ii) Any amount otherwise treated as an Annual Addition under
Code Section 415(1)(1).
5. Compensation: For purposes of determining compliance with the
limitations of Code Section 415, Compensation shall mean an Employee's
earned income, wages, salaries, fees for professional services and other
amounts received for personal services actually rendered in the course of
employment with an Employer maintaining the Plan, including, but not
limited to, commissions paid salesmen, compensation for services on the
basis of a percentage of profits, commissions on insurance premiums, tips,
and bonuses and excluding the following:
(a) Employer contributions to a plan of a deferred compensation
to the extent contributions are not included in gross income of the
Employee for the taxable year in which contributed, or on behalf of an
Employee to a Simplified Employee Pension Plan to the extent such
contributions are deductible under Code Section 219(b)(2), and any
distributions from a plan of deferred compensation whether or not
includable in the gross income of the Employee when distributed
(however, any amounts received by an Employee pursuant to an unfunded
non-qualified plan may be considered as Compensation in the year such
amounts are included in the gross income of the Employee);
(b) amounts realized from the exercise of a non-qualified stock
option, or when restricted stock (or property) held by an Employee
becomes freely transferable or is no longer subject to a substantial
risk of forfeiture;
(c) amounts realized from the sale, exchange or other disposition
of stock acquired under a qualified stock option; and
(d) other amounts which receive special tax benefits, or
contributions made by an Employer (whether or not under a salary
reduction agreement) towards the purchase of a Section 403(b) annuity
contract (whether or not the contributions are excludable from the
gross income of the Employee).
For purposes of applying the limitations in this Section, amounts included
as compensation are those actually paid or made available to a Member
within the Limitation Year. For Limitation Years beginning after December
31, 1988,
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<PAGE>
Compensation shall be limited to $200,000 (unless adjusted in the same
manner as permitted under Code Section 415(d)). For Limitation Years
beginning after December 31, 1993, Compensation shall be limited to
$150,000 (unless adjusted in the same manner as permitted under Code
Section 415(d)). Notwithstanding anything to the contrary in the
definition, Compensation shall include any and all items which may be
includable in Compensation under Section 415(c)(3) of the Code.
6. Average Compensation: The average Compensation during an
Employee's high 3 years of service, which period is the 3 consecutive
calendar years (or, the actual number of consecutive years of employment
for those Employees who are employed for less than 3 consecutive years
with the Employer) during which the Employee had the greatest aggregate
Compensation from the Employer.
7. Annual Benefit: A benefit payable annually in the form of a
straight life annuity (with no ancillary benefits) under a plan to which
Employees do not contribute and under which no rollover contributions are
made.
8. Annual Additions: With respect to each Limitation Year, the total
of the Employer Matching Contributions, Pre-Tax Contributions, After-Tax
Contributions, Forfeitures and amounts described in Code Sections 415(l)
and 419A(d)(2) which are allocated to a Member's Account.
5.4 Valuation of Trust Fund: A valuation of the Trust Fund shall be made
as of each Valuation Date and on any other date during the Plan Year that the
Committee deems a valuation to be advisable. Any such interim valuation shall
be exercised on a uniform and non-discriminatory basis. For the purposes of
each valuation, the assets of the Trust Fund shall be valued at the respective
current market values, and the amount of any obligations for which the Trust
Fund may be liable, as shown on the books of the Trustee, shall be deducted from
the total value of the assets. For the purposes of maintenance of books of
account in respect of properties constituting the Trust Fund, and of making any
such valuation, the Trustee shall account for the transactions of the Trust Fund
on a modified cash basis.
5.5 Recognition of Different Investment Funds: As provided in Article IX,
Investment Funds shall be established, and each Member shall direct, within the
limitations set forth in Section 9.3, what portion of the balance in his
Accounts shall be deposited in each Investment Fund. Consequently, when
appropriate, a Member may have a Pre-Tax Contribution Account, an After-Tax
Contribution Account, a Prior Plan Account, and a Rollover Account in each such
Investment Fund and the allocations described in Section 5.2 shall be adjusted
in such manner as is appropriate to recognize the existence of the Investment
Funds. Because Members have a choice of Investment Funds, any reference in this
Plan to a Pre-Tax Contribution Account, an After-Tax Contribution Account, a
Prior Plan Account, or a Rollover Account shall be deemed to mean and include
all accounts of a like nature which are maintained for the Member under each
Investment Fund.
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<PAGE>
ARTICLE VI
VOLUNTARY WITHDRAWALS
6.1 Withdrawal from After-Tax Contribution, Prior Plan and Rollover
Accounts: Each Member of the Plan, upon giving not less than 30 days' prior
written notice (in such form and in such manner as prescribed by the Committee)
to the Committee, shall be entitled to withdraw from his After-Tax Contribution
Account, Prior Plan and Rollover Account (valued as of the Valuation Date next
following the Member's application for withdrawal), any amount up to but not to
exceed the balance of such Account as of such date, plus the net dollar amount
of any After-Tax Contributions made during the month of such withdrawal but not
yet credited to the Member's Account. Any withdrawal from his After-Tax
Contribution Account shall cause such Member to forfeit his right to participate
in the Plan for a period commencing on the date of withdrawal and ending upon
the expiration of 180 days. For any such period during which a Member is
suspended from making any further withdrawals from the Plan, such Member shall
also forfeit the right to contribute to the Plan, to participate in any Employer
Matching Contributions under the Plan except as otherwise provided above, and to
share in the Income of the Trust Fund.
6.2 Withdrawal from Employer Matching Contribution Account: Each Member
who has been a Member of the Plan for five full Plan Years may withdraw up to
100% of the amount in his Employer Matching Contribution Account as of the
Valuation Date next following the Member's application for withdrawal, by giving
written notice of not less than 30 days (in such form and in such manner as
prescribed by the Committee) to the Committee. Such a withdrawal shall cause
the Member to be suspended from participation in the Plan for a period of 180
days from the end of the payroll period following the election to make the
withdrawal. A withdrawal by a Member from his Employer Contribution Account
will be limited to one such withdrawal every five full Plan Years.
6.3 Limitation on Withdrawals: Any provision of Section 6.2 hereof to the
contrary notwithstanding, an Employee must withdraw the entire amount in his
After-Tax Contribution, Prior Plan and Rollover Account, if any, prior to
exercising his right to withdraw from his Employer Matching Contribution
Account.
6.4 Withdrawal from Pre-Tax Contribution Account: Any Member who has
attained age 59 1/2 may withdraw all or any part of his Pre-Tax Contributions,
plus any earnings thereon, by filing an appropriate request therefor with the
Committee. A withdrawal under this Section 6.4 may be made no more than once in
a Plan Year. A withdrawal from the Pre-Tax Contribution Account under this
Section shall not affect the Member's remaining rights hereunder.
6.5 Hardship Withdrawals: A Member may at any time file with the
Committee an appropriate written request for a hardship withdrawal from his Pre-
Tax Contribution Account excluding any Income of the Trust Fund allocated to his
Pre-Tax Contribution Account (under the Plan or the Prior Plan) on or after
January 1, 1989. The approval or disapproval of such request shall be within
the sole discretion of the Committee. A Member must first withdraw any
available amount credited to his Employer Matching Contribution Account, After
Tax Contribution Account, Prior Plan Account and Rollover Account, if any, in
order to be permitted to make a hardship withdrawal
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from his Pre-Tax Contribution Account and must also have taken all distributions
and loans otherwise available under this Plan and all employee plans maintained
by the Member's Employer. The Member must certify that he is facing a hardship
creating an immediate and substantial financial need and that the resources
necessary to satisfy that financial need are not reasonably available from other
sources available to the Member. The amount of the hardship withdrawal shall be
limited to that amount which the Committee determines to be required to meet the
immediate financial need created by the hardship, including anticipated federal
and state income taxes and penalties resulting from the distribution. The
hardship withdrawal distribution shall be made in cash as soon as practicable
after the Member submits the hardship request and the dollar amount withdrawn
shall be determined by reference to the Pre-Tax Contribution Account as of the
Valuation Date immediately preceding the date of withdrawal, plus the net dollar
amount of his Pre-Tax Contributions for the Plan Quarter within which the
withdrawal occurs. A Member who receives a hardship withdrawal shall be
prohibited from making pre-tax contributions and employee contributions to this
Plan and any other plan maintained by the Employer (except "welfare plans" as
defined in Section 3(1) of ERISA) for 365 days following the date of
distribution. In addition, the dollar limitation on the Pre-Tax Contributions
described in Section 4.1 shall be reduced (but not below zero) in the Plan Year
following the hardship withdrawal by the amount of Pre-Tax Contributions made by
the Member of the Plan Year during which the withdrawal was made. The following
standards (or such other standards as may be acceptable under Treasury
Regulations issued pursuant to Section 401(k) of the Code) shall be applied by
the Committee on a uniform and non-discriminatory basis in determining the
existence of such a hardship:
(i) To be considered a hardship for purposes of this Section, the
event giving rise to the need for funds must relate to financial hardship
resulting from:
(1) medical expenses (described in Code Section 213(d) previously
incurred by the Member or the Member's Spouse or dependents (as
defined in Code Section 152) or necessary for those persons to obtain
medical care (as evidenced by a written estimate thereof);
(2) purchase (excluding mortgage payments) of a principal
residence for the Member;
(3) payment for tuition for the next 12 months of post secondary
education for the Member or the Member's spouse, children or
dependents (as defined in Code Section 152); or
(4) the need to prevent the eviction of the Member from his
principal residence or foreclosure on the mortgage of the Member's
principal residence.
A person shall be considered to be dependent on the Member if the
Member certifies that he reasonably expects to be entitled to claim that
person as
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a dependent for Federal income tax purposes for a calendar year coinciding
with the Plan Year in which the certification of hardship is made.
(ii) A financial need shall be considered immediate if it must be
satisfied in substantial part within a period of 12 months from the date
on which the Member certifies his eligibility for a hardship withdrawal.
A financial need shall be considered substantial if it exceeds 10% of the
Member's annual Compensation.
6.6 Loans to Members: From and after October 1, 1994, a Member who is an
Employee and, to the extent not resulting in discrimination prohibited by
Section 401(a)(4) of the Code, any other Member or any Beneficiary (including an
"alternate payee" within the meaning of Code Section 414(p)(8)) who is a "party
in interest" with respect to the Plan within the meaning of ERISA Section 3(14)
and who must be eligible to obtain a Plan loan in order for the exemption set
forth in 29 C.F.R. Section 2550.408b-1 to apply to the Plan, (hereinafter
"Borrower"), may make application to the Committee to borrow from the Accounts
maintained by or for the Borrower in the Trust Fund, and the Committee in its
sole discretion may permit such a loan. Any such loan shall be withdrawn from
the Borrower's Accounts in the following order: first, from the Pre-Tax
Contribution Account, second from the Prior Plan Account, if any, third from the
After-Tax Contribution Account, fourth from the Employer Matching Contribution
Account and last from the Rollover Account, if any. Loans shall be granted in a
uniform and non-discriminatory manner on terms and conditions determined by the
Committee which shall not result in more favorable treatment of highly
compensated employees and shall be set forth in written procedures promulgated
by the Committee in accordance with applicable governmental regulations. All
such loans shall also be subject to the following terms and conditions:
(a) The amount of the loan shall not exceed the lesser of (i) $50,000,
or (ii) 50% of the present value of the Borrower's vested Account balance
under the Plan. In no event shall a loan of less than $1,000 be made to a
Borrower. A Borrower may not initiate a loan more than once every six
months; may not have more than one loan outstanding at a time under this
Plan and may not refinance an outstanding loan.
(b) The loan shall be for a term not to exceed five years, unless the
loan is used to acquire any dwelling unit which within a reasonable time
is to be used as a principal residence of the Borrower. A loan for the
purchase of a principal residence shall be for a term not to exceed 20
years. The loan shall be evidenced by a note signed by the Borrower. The
loan shall be payable in periodic installments and shall bear interest at
a reasonable rate which shall be determined by the Committee on a uniform
and consistent basis and set forth in the procedures in accordance with
applicable governmental regulations. Payments by a Borrower who is an
Employee receiving compensation from the Employer will be made by means of
payroll deduction from the Borrower's compensation. If the Borrower is
not receiving compensation from the Employer, the loan repayment shall be
made in accordance with the terms and procedures established by the
Committee. A Borrower may repay an outstanding loan in a single lump-sum
payment before
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the scheduled due date for repayment of such loan but may not accelerate
the payment of the loan by increasing the amount of the installments.
(c) In the event an installment payment is not paid on a scheduled due
date, the Committee shall give written notice to the Borrower sent to his
last known address. If such installment payment is not made within 60
days thereafter, the Committee may proceed with foreclosure in order to
collect the full remaining loan balance or shall make such other
arrangements with the Borrower as the Committee deems appropriate.
Foreclosures need not be effected until occurrence of a distributable
event under the terms of the Plan and no rights against the Borrower or
the security shall be deemed waived by the Plan as a result of such delay.
(d) The unpaid balance of the loan, together with interest thereon,
shall become due and payable upon the date of distribution of the Account
or as set forth in the applicable procedures and the Trustee shall first
satisfy the indebtedness from the amount payable to the Borrower or to the
Borrower's Beneficiary before making any payments to the Borrower or to
the Beneficiary.
(e) Any loan to a Borrower under the Plan shall be adequately secured.
Such security shall include a pledge of a portion of the Borrower's right,
title and interest in the Trust Fund which shall not exceed 50% of the
present value of the Borrower's vested Account balance under the Plan as
determined immediately after the loan is extended. Such pledge shall be
evidenced by the execution of a promissory note by the Borrower which
shall grant the security interest and provide that, in the event of any
default by the Borrower on a loan repayment, the Committee shall be
authorized to take any and all appropriate lawful actions necessary to
enforce collection of the unpaid loan. The borrower may not reduce the
Account's value below the value of any outstanding loan balance. Thus, a
loan may limit availability of funds for withdrawal.
(f) A request by a Borrower for a loan shall be made by telephone
through a voice response system specifying the amount of the loan. If a
Borrower's request for a loan is approved, the Trustee shall make the loan
in a lump-sum payment of cash to the Borrower.
(g) A loan to a Borrower shall be considered an investment of the
separate Account(s) of the Borrower from which the loan is made. All loan
repayments shall be credited to an "L Account" and thereafter reinvested
in accordance with such Member's investment election for future
contributions as further provided in Section 9.4.
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ARTICLE VII
MEMBERS' BENEFITS
7.1 Retirement of Members on or after Retirement Date: Any Member who
terminates his Service on or after his Retirement Date shall be vested in and
entitled to receive the entire amount of his Account. The "entire amount" in
such Member's Account at termination of employment shall include any After-Tax
Contributions, Pre-Tax Contributions, and Employer Matching Contributions to be
made as of the end of the month in which termination of Service occurs. Payment
of benefits due under this Section shall be made in accordance with Section 8.1.
7.2 Disability of Members: If the Committee shall find and advise the
Trustee that Service of a Member has been terminated because of physical or
mental disability, which in the judgment of the Committee, based upon advice of
competent physicians of their selection, will permanently prevent such Member
from resuming his Service with an Employer, such Member shall become entitled to
receive the entire amount of his Account. The "entire amount" in such Member's
Account shall include any After-Tax Contributions, Pre-Tax Contributions, and
Employer Matching Contributions to be made as of the end of the month in which
termination of Service occurs. Payment of benefits due under this Section shall
be made in accordance with Section 8.1.
7.3 Death of Members: In the event of the termination of Service of any
Member by death, and after receipt by the Committee of acceptable proof of
death, his Beneficiary shall be entitled to receive the entire amount in the
Member's Account. The "entire amount" in such Member's Account shall include
any After-Tax Contributions, Pre-Tax Contributions, and Employer Matching
Contributions to be made as of the end of the month in which termination of
Service occurs. Payment of benefits due under this Section shall be made in one
lump sum.
7.4 Other Termination of Service: In the event of termination of Service
of any Member for any reason other than retirement on or after his Retirement
Date, disability or death, a Member shall, subject to the further provisions of
this Plan, be entitled to receive the entire amount credited to his After-Tax
Contribution Account, Pre-Tax Contribution Account, Prior Plan Account, and
Rollover Account, plus any of his After-Tax and Pre-Tax Contributions made for
the month of termination of Service, but not yet allocated.
In addition, if the Member has completed at least five years of
Service, he will be eligible to receive 100% of his Employer Matching
Contribution Account. Upon termination of Service by a Member who has not
completed five years of Service, the following schedule will apply:
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Years of Service Vested Percentage
---------------- -----------------
Less than 2 0%
2 25%
3 50%
4 75%
5 100%
The non-vested portion of the Employer Matching Contribution Account of a
terminated Member who has not completed five years of Service from and after the
Effective Date shall be a Forfeiture which shall be disposed of as provided in
Section 4.8. Payment of benefits due under this Section shall be made in
accordance with Section 8.1.
If a Member terminates his Service and thereafter recommences such
Service before he incurs five consecutive one-year Breaks In Service, any
amounts forfeited from the prior Employer Matching Contribution Account of such
Member upon his earlier termination of Service shall be reinstated to his new
Employer Matching Contribution Account (as provided in Section 4.3 hereof)
within a reasonable time after repayment by the Member of the amount of his
previous distribution. Such repayment must be made by means of a lump-sum cash
payment and before the earlier of (i) the occurrence of five consecutive one-
year Breaks In Service or (ii) five years from the date of recommencement of
Service.
7.5 Valuation Dates Determinative of Member's Rights: In the case of any
Member whose Service is terminated for any reason, the amount to which such
Member or his Beneficiary is entitled upon such termination of Service shall be
determined as of the Valuation Date coinciding with or next following his
termination of Service.
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ARTICLE VIII
PAYMENT OF BENEFITS
8.1 Payment of Benefits:
A. Form of Benefits: Subject to Section 8.2, upon a Member's or former
Member's entitlement to payment of benefits under Section 7.1, 7.2 or 7.4, or a
Beneficiary's entitlement to payment of benefits under Section 7.3, he shall
file with the Committee his written election on such form or forms, and subject
to such conditions, as the Committee shall provide. Payment of a Member's
benefits will be made by payment in one lump sum. The amount which a Member is
entitled to receive from the After-Tax and/or Pre-Tax Contribution Accounts at
any time and from time to time may be paid in cash or in common stock of the
Company, or in any combination thereof, provided no discrimination in value
results therefrom. The amount which a Member, former Member or Beneficiary is
entitled to receive from the Employer Matching Contribution Account at any time
and from time to time shall be paid in shares of common stock of the Company
unless such Member, former Member or Beneficiary has elected to receive the
vested balance in his Employer Matching Contribution Account in cash.
B. Timing of Benefits: The day following the date of the Member's
termination of Service is the earliest date that payment of his benefits may
commence and is herein referred to as such Member's "Distribution Date."
Payment of a Member's benefits shall be made or commence as soon as practicable
after his Distribution Date, subject to the Member's election to defer receipt
thereof, but in any event must be made or commence prior to the expiration of 60
days after the end of the Plan Year within which such Member's Retirement Date
occurs.
If the amount to which a terminated Member is entitled is not more
than $3,500, such amount shall be paid to the Member as soon as practicable
after his Distribution Date; if such amount is in excess of $3,500, the
distribution shall be made only if the Member so consents. If such consent is
withheld, distribution of the amount to which the terminated Member is entitled
shall be made to such Member within 60 days after the end of the Plan Year in
which occurs the earlier of the Member's death or his Retirement Date. If a
Member's termination of Service occurs after his Retirement Date, distribution
shall be made within 60 days after the end of the Plan Year in which termination
occurs. If such consent is withheld and the distribution of a Member's Account
is delayed as provided immediately above, the amount to which such Member is
otherwise entitled shall be segregated by the Trustee and deposited in an
interest bearing account for ultimate distribution pursuant to the above
provisions of this Section 8.1. Distribution of a Member's Account shall be
made no later than 90 days after the end of the Plan Year in which the Member
attains age 70 1/2.
8.2 Roosevelt Refinery Plan Accounts: Effective December 31, 1988, the
assets of the Roosevelt Refinery Hourly Employees Retirement Savings Plan
("Roosevelt Refinery Plan") were merged into this Plan. As set forth in Section
4.10, such transferred assets shall be maintained in the Trust Fund on behalf of
the Member as a separate account under this Plan, which shall be designated as a
"Prior Plan Account." All Prior Plan Accounts attributable to participation in
the Roosevelt
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Refinery Plan shall be subject to the Qualified Joint and Survivor Annuity rules
under Code Section 417(b) upon distribution and as provided below:
(a) Qualified Joint and Survivor Annuity: Notwithstanding any
provision in the Plan to the contrary, unless an optional form of benefit
is selected pursuant to a qualified election within the 90-day period
ending on the date benefit payments would commence, a Member's Prior Plan
Account balance will be paid in the form of a Qualified Joint and Survivor
Annuity. "Qualified Joint and Survivor Annuity" means an annuity for the
life of a Member with a survivor annuity for the life of his spouse of 50%
of the amount of the annuity payable during the joint lives of the Member
and his spouse and which is the actuarial equivalent of the Member's Prior
Plan Account balance attributable to his participation in the Roosevelt
Refinery Plan.
If a Member does not have a spouse on the date his benefits
commence, he shall receive a lump sum distribution, unless he duly elects
an optional pension, as provided in paragraph (b) below.
A waiver of the Qualified Joint and Survivor Annuity must be in
writing and must be consented to by the Member's spouse. The spouse's
consent to a waiver must be witnessed by a Plan representative or notary
public. Notwithstanding this consent requirement, if the Member
establishes to the satisfaction of a Plan representative that such written
consent may not be obtained because there is no spouse or the spouse
cannot be located, a waiver will be deemed a qualified election. Any
consent necessary under this provision will be valid only with respect to
the spouse who signs the consent, or in the event of a deemed qualified
election, the designated spouse. Additionally, a revocation of prior
waiver may be made by a Member without the consent of the spouse at any
time before the commencement of benefits. The number of revocations shall
not be limited. The Committee shall provide each Member within a
reasonable period prior to the commencement of benefits a written
explanation of: (i) the terms and conditions of the Qualified Joint and
Survivor Annuity; (ii) the Member's right to make and the effect of an
election to waive the Qualified Joint and Survivor Annuity form of
benefit; (iii) the rights of a Member's spouse; and (iv) the right to
make, and the effect of, a revocation of a previous election to waive the
Qualified Joint and Survivor Annuity.
(b) Optional Pensions: Distributions of the Prior Plan Account
balance attributable to participation in the Roosevelt Refinery Plan, if
not made in a lump sum, may only be made over one of the following periods
(or a combination thereof) as elected by the Member (and consented to by
his spouse, if any):
(1) the life of the Member;
(2) the life of the Member and a designated beneficiary;
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(3) a period certain not extended beyond the life expectancy of
the Member; or
(4) a period certain not extended beyond the joint and last
survivor expectancy of the Member and a designated beneficiary.
8.3 Direct Rollovers: Effective January 1, 1993, notwithstanding any
provision of the Plan to the contrary that would otherwise limit a Distributee's
election under this Section 8.3, a Distributee may elect, at the time and in the
manner prescribed by the Committee, to have any portion of an Eligible Rollover
Distribution greater than $200 paid directly to an Eligible Retirement Plan
specified by the Distributee in a Direct Rollover. For the purposes of this
Section the following definitions shall apply:
(i) "Eligible Rollover Distribution" shall mean any distribution of
all or any portion of the balance to the credit of the Distributee, except
that an Eligible Rollover Distribution does not include: any distribution
that is one of a series of substantially equal periodic payments (not less
frequently than annually) made for the life (or life expectancy) of the
Distributee or the joint lives (or joint life expectancies) of the
Distributee and the Distributee's designated beneficiary, or for a
specific 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 includable in gross income
(determined without regard to the exclusion for net unrealized
appreciation with respect to employer securities).
(ii) "Eligible Retirement Plan" shall mean 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 Distributee's Eligible Rollover
Distribution. However, in the case of an Eligible Rollover Distribution
to the surviving spouse, an Eligible Retirement Plan is an individual
retirement account or individual retirement annuity.
(iii) "Distributee" shall mean a Member or former Member of the Plan.
In addition, the Member's or Member's surviving spouse and the Member's or
former Member's spouse or former spouse who is the alternate payee under a
qualified domestic relations order, as defined in Section 414(p) of the
code, are Distributees with regard to the interest of the spouse or former
spouse.
(iv) "Direct Rollover" shall mean a payment by the Plan to the
Eligible Retirement Plan specified by the Distributee.
8.4 Presenting Claims for Benefits: Any Member, former Member or the
Beneficiary of any deceased Member may submit written application to the
Committee for the payment of any benefit asserted to be due him under the Plan.
Such application shall set forth the nature of the claim
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and such other information as the Committee may reasonably request. Promptly
upon the receipt of any application required by this Section, the Committee
shall determine whether or not the Member, former Member or Beneficiary involved
is entitled to a benefit hereunder and, if so, the amount thereof and shall
notify the claimant of its findings.
If a claim is wholly or partially denied, the Committee shall so
notify the claimant within 90 days after receipt of the claim by the Committee,
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 end of the
initial 90-day period. In no event shall such extension exceed a period of 90
days from the end of such initial period. The extension notice shall indicate
the special circumstances requiring an extension of time and the date by which
the Committee expects to render its final decision. Notice of the Committee's
decision to deny a claim in whole or in part shall be set forth in a manner
calculated to be understood by the claimant and shall contain the following:
(i) the specific reason or reasons for the denial;
(ii) specific reference to the pertinent Plan provisions on which the
denial is based;
(iii) a description of any additional material or information
necessary for the claimant to perfect the claim and an explanation of why
such material or information is necessary; and
(iv) an explanation of the claims review procedure set forth in
Section 8.5 hereof.
If notice of denial is not furnished, and if the claim is not granted within the
period of time set forth above, the claim shall be deemed denied for purposes of
proceeding to the review stage described in Section 8.5.
8.5 Claims Review Procedure: If an application filed by a Member, former
Member or Beneficiary under Section 8.2 above shall result in a denial by the
Committee of the benefit applied for, either in whole or in part, such applicant
shall have the right, to be exercised by written application filed with the
Committee within 60 days after receipt of notice of the denial of his
application or, if no such notice has been given, within 60 days after the
application is deemed denied under Section 8.4, to request the review of his
application and of his entitlement to the benefit applied for. Such request for
review may contain such additional information and comments as the applicant may
wish to present. Within 60 days after receipt of any such request for review,
the Committee shall reconsider the application for the benefit in light of such
additional information and comments as the applicant may have presented, and if
the applicant shall have so requested, shall afford the applicant or his
designated representative a hearing before the Committee. The Committee shall
also permit the applicant or his designated representative to review pertinent
documents in its possession, including copies of the Plan document and
information provided by the Employer relating to the applicant's entitlement to
such benefit. The Committee shall make a final
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determination with respect to the applicant's application for review as soon as
practicable, and in any event not later than 60 days after receipt of the
aforesaid request for review, except that under special circumstances, such as
the necessity for holding a hearing, such 60-day period may be extended to the
extent necessary, but in no event beyond the expiration of 120 days after
receipt by the Committee of such request for review. If such an extension of
time for review is required because of special circumstances, written notice of
the extension shall be furnished to the applicant prior to the commencement of
the extension. Notice of such final determination of the Committee shall be
furnished to the applicant in writing, in a manner calculated to be understood
by him, and shall set forth the specific reasons for the decision and specific
references to the pertinent provisions of the Plan upon which the decision is
based. If the decision on review is not furnished within the time period set
forth above, the claim shall be deemed denied on review.
8.6 Disputed Benefits: If any dispute still exists between a Member,
former Member or a Beneficiary and the Committee after a review of the claim or
in the event any uncertainty shall develop as to the person to whom payment of
any benefit hereunder shall be made, the Trustee may withhold the payment of all
or any part of the benefits payable hereunder to the Member, former Member or
Beneficiary until such dispute has been resolved by a court of competent
jurisdiction or settled by the parties involved.
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ARTICLE IX
TRUST AGREEMENT; INVESTMENT
FUNDS; INVESTMENT DIRECTIONS
9.1 Trust Agreement: The Company has entered into a Trust Agreement
governing the administration of the Trust established as of January 1, 1989,
under which Mellon Bank, a national banking association with its principal place
of business in Pittsburgh, Pennsylvania, serves as Trustee, and the provisions
of which are herein incorporated by reference as fully as if set out herein.
9.2 Investment Funds: The Trustee shall divide the Trust Fund into a
Company Stock Fund and such additional Investment Funds as shall be selected and
reviewed from time to time by the Investment Committee.
Contributions shall be paid into the Fund or Funds pursuant to the directions of
the Members given in accordance with the provisions of Sections 9.3 and 9.4 as
certified to the Trustee by the Committee. Employer Matching Contributions
shall be paid into the Company Stock Fund. Except as otherwise provided herein,
interest, dividends and other income and all profits and gains produced by each
such Investment Fund shall be paid into such Investment Fund, and such interest,
dividends and other income or profits and gains, without distinction between
principal and income, may be invested and reinvested but only in the property
specified for the particular Investment Fund. As allowed in the exception
provided in Section 407 of ERISA, amounts in excess of 10% of the assets in the
Trust Fund may be invested in Company Stock. Notwithstanding any provision in
this Section to the contrary, the Committee may direct the Trustee (i) to invest
Pre-Tax Contributions, After-Tax Contributions or Employer Matching
Contributions in short-term fixed income investments which are acceptable to the
Trustee or in the suspense account to be maintained in each Investment Fund
during the period from the date of any such contribution until the next
Valuation Date or (ii) to invest all or any portion of the Trust Fund
attributable to any terminated or retired Member or attributable to any Member
who is expected to retire or to terminate his Service within one year, in one or
more fixed income investments which are acceptable to the Trustee. The fixed
income investments authorized by this Section shall include, but not be limited
to, certificates of deposit, savings accounts, or United States Treasury bills
or notes.
Each Member may invest his After-Tax and Pre-Tax Contribution Accounts
and his Prior Plan Account in increments of 5% in such Investment Funds as
selected by the Investment Committee.
In the event a Member fails to direct the manner of investing his Pre-
Tax Contribution Account or After-Tax Contribution Account as provided herein,
such Account shall be invested in such fund as designated by the Investment
Committee as the fixed income fund. All Employer Matching Contributions on
behalf of each Member shall be invested solely in shares of the common stock of
the Company to be held in the Company Stock Fund.
Each Member who has attained age 55 may direct that all or a part of
his existing Employer Matching Contribution Account consisting of full shares of
common stock of the
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Company be liquidated and the proceeds invested among the various Investment
Funds as provided in this Section 9.2.
No more than 12 times annually, each Member may by telephone voice
response system, in the manner prescribed by the Committee and subject to any
restrictions or conditions which may be established by the Committee, direct the
investment of his future and/or transfer of his existing After-Tax and/or Pre-
Tax Contributions and the transfer of assets in his Prior Plan Account among the
various Investment Funds in a minimum increment of 5%.
9.3 Benefits Paid Solely from Trust Fund: All of the benefits to be paid
under Article VIII shall be paid by the Trustee out of the Trust Fund to be
administered under such Trust Agreement. No fiduciary shall be responsible or
liable in any manner for payment of any such benefits, and all Members hereunder
shall look solely to such Trust Fund and to the adequacy thereof for the payment
of any such benefits of any nature or kind which may at any time be payable
hereunder.
9.4 Committee Directions to Trustee: The Trustee shall make only such
distributions and payments out of the Trust Fund as may be directed by the
Committee. The Trustee shall not be required to determine or make any
investigation to determine the identity or mailing address of any person
entitled to any distributions and payments out of the Trust Fund and shall have
discharged its obligation in that respect when it shall have sent certificates
and checks or other papers by ordinary mail to such persons and addresses as may
be certified to it by the Committee.
9.5 Authority to Designate Investment Manager: The Investment Committee
may appoint an investment manager or managers to manage (including the power to
acquire and dispose of) any assets of the Trust Fund in accordance with the
terms of the Trust Agreement and ERISA.
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ARTICLE X
ADOPTION OF PLAN BY OTHER ORGANIZATIONS;
SEPARATION OF THE TRUST FUND;
AMENDMENT AND TERMINATION OF THE PLAN;
DISCONTINUANCE OF CONTRIBUTIONS TO THE TRUST FUND
10.1 Adoptive Instrument: Any corporation or other organization with
employees, now in existence or hereafter formed or acquired which is not already
an Employer under this Plan and which is otherwise legally eligible, may, with
the approval of the Company by action of the Board of Directors, adopt and
become an Employer under this Plan by executing and delivering to the Company
and the Trustee an adoptive instrument specifying the classification of its
Employees who are to be eligible to participate in the Plan and by agreeing to
be bound as an Employer by all the terms of the Plan with respect to its
eligible Employees. The adoptive instrument may contain such changes and
variations in the terms of the Plan as may be acceptable to the Company. Any
such approved organizations which shall adopt this Plan shall designate the
Company as its agent to act for it in all transactions affecting the
administration of the Plan and shall designate the Committee to act for such
Employer and its Members in the same manner in which the Committee may act for
the Company and its Members hereunder. The adoptive instrument shall specify
the effective date of such adoption of the Plan and shall become, as to such
adopting Employer and its Employees, a part of this Plan. The Company may, in
its absolute discretion, terminate an adopting Employer's participation at any
time when in its judgment such adopting Employer fails or refuses to discharge
its obligations under the Plan.
Notwithstanding the above provisions of this Section or any other
provision of this Plan to the contrary, any employee or Member who becomes an
employee (pursuant to transfer or otherwise) of a subsidiary of a participating
Employer the outstanding common stock of which is at least 80% owned by said
participating Employer (or owned by a new subsidiary owned by a participating
Employer) will be eligible to participate in the Plan provided any such employee
or Member is paid through a payroll office located in the United States and
otherwise meets the eligibility requirements of the Plan. It shall not be
necessary for any such first tier or second tier subsidiary of a participating
Employer to formally adopt the Plan, such adoption to be deemed automatic if
this provision becomes operative unless (after due notice) the board of
directors or other appropriate governing authority of such subsidiary shall
direct otherwise within one year of the effective date of such adoption.
10.2 Separation of the Trust Fund: A separation of the Trust Fund as to
the interest therein of the Members of any particular Employer may be made by an
Employer at any time. In such event, the Trustee shall set apart that portion
of the Trust Fund which shall be allocated to such Members pursuant to a
valuation and allocation of the Trust Fund made in accordance with the
procedures set forth in Sections 5.2 and 5.4, but as of the date when such
separation of the Trust Fund shall be effective. Such portion may in the
Trustee's discretion be set apart in cash or in kind out of the properties of
the Trust Fund. That portion of the Trust Fund so set apart shall continue to
be held by the Trustee as though such Employer had entered into the Trust
Agreement as a separate trust agreement with the Trustee. Such Employer may in
such event designate a new trustee
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of its selection to act as trustee under such separate trust agreement. Such
Employer shall thereupon be deemed to have adopted the Plan as its own separate
plan, and shall subsequently have all such powers of amendment or modification
of such plan as are reserved herein to the Company.
10.3 Voluntary Separation: If any Employer shall desire to separate its
interest in the Trust Fund, it may request such a separation in a notice in
writing to the Company and the Trustee. Such separation shall then be made as
of any specified date after service of such notice, and such separation shall be
accomplished in the manner set forth in Section 10.2.
10.4 Amendment of the Plan: The Company shall have the right to amend or
modify this Plan and (with the consent of the Trustee) the Trust Agreement at
any time and from time to time to any extent that it may deem advisable. Any
such amendment or modification shall be set out in an instrument in writing duly
authorized by the Board of Directors and executed by the Company. No such
amendment or modification shall, however, increase the duties or
responsibilities of the Trustee without its consent thereto in writing, or have
the effect of transferring to or vesting in any Employer any interest or
ownership in any properties of the Trust Fund, or of permitting the same to be
used for or diverted to purposes other than for the exclusive benefit of the
Members and their Beneficiaries. No such amendment shall decrease the Account
of any Member or shall decrease any Member's vested interest in his Account.
Notwithstanding anything herein to the contrary, the Plan or the Trust Agreement
may be amended in such manner as may be required at any time to make it conform
to the requirements of the Code or of any United States statutes with respect to
employees' trusts, or of any amendment thereto, or of any regulations or rulings
issued pursuant thereto, and no such amendment shall be considered prejudicial
to any then existing rights of any Member or his Beneficiary under the Plan.
10.5 Acceptance or Rejection of Amendment by Employers: The Company shall
promptly deliver to each other Employer any amendment to this Plan or the Trust
Agreement. Each such Employer will be deemed to have consented to such
amendment unless it notifies the Company and the Trustee in writing within 30
days after receipt of the amendment that it does not consent thereto, and
requests a separation of its interest in the Trust Fund in accordance with the
provisions of Section 10.2, as of the first day of the month following such
written notification to the Company and the Trustee.
10.6 Termination of the Plan: Subject to the terms of any applicable
Bargaining Agreement which may provide to the contrary, a termination of the
Plan as to any particular Employer (and only as to any such particular Employer)
shall occur under the following circumstances:
(a) The Plan may be terminated by the delivery to the Trustee of an
instrument in writing approved and authorized by the board of directors of
such Employer. In such event, termination of the Plan shall be effective
as of any subsequent date specified in such instrument.
(b) Except as otherwise provided in Section 10.10, the Plan shall
terminate effective at the expiration of 60 days following the merger into
another
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corporation or dissolution of any Employer, or following any final legal
adjudication of any Employer as a bankrupt or an insolvent, unless within
such time a successor organization approved by the Company shall deliver
to the Trustee a written instrument certifying that such organization (i)
has become the Employer of more than 50% of those Employees of such
Employer who are then Members under this Plan and (ii) has adopted the
Plan as to its Employees. In any such event the interest in the Plan of
any Member whose employment may not be continued by the successor shall be
fully vested as of the date of termination of his Service, and shall be
payable in cash or in kind within six months from the date of termination
of his Service.
Any distribution made upon termination of the Plan shall be subject to the
distribution limitations otherwise applicable under the Plan, specifically
including the consent provisions of Section 8.1.
10.7 Liquidation and Distribution of Trust Fund Upon Termination: In the
event a complete or partial termination of the Plan in respect of any Employer
shall occur, a separation of the Trust Fund in respect of the affected Members
of such Employer shall be made as of the effective date of such termination of
the Plan in accordance with the procedure set forth in Section 10.2. Following
separation of the Trust Fund in respect of the Members of any Employer as to
whom the Plan has been terminated, the assets and properties of the Trust Fund
so set apart, other than common stock of the Company, shall be reduced to cash
as soon as may be expeditious under the circumstances. Any administrative costs
or expenses incurred incident to the final liquidation of such separate trust
funds shall be paid by the Employer, except that in the case of bankruptcy or
insolvency of such Employer any such costs shall be charged against the Trust
Fund. Following such partial reduction of such Trust Fund to cash, the Accounts
of the Members shall then be valued as provided in Sections 5.2 and 5.4 and
shall be fully vested, whereupon each such Member shall become entitled to
receive the entire amount in his Account in cash and/or common stock of the
Company, as directed by the Committee. The terminating Employer shall promptly
advise the appropriate District Director of the Internal Revenue Service of such
complete or partial termination.
10.8 Effect of Termination or Discontinuance of Contributions: If any
Employer shall terminate or partially terminate the Plan as to its Employees,
then all amounts credited to the Accounts of the Members of such Employer with
respect to whom the Plan has terminated shall become fully vested and non-
forfeitable. If any Employer shall completely discontinue its contributions to
the Trust Fund or suspend its contributions to the Trust Fund under such
circumstances as to constitute a complete discontinuance of contributions within
the meaning of Section 1.401-6(c) of the regulations under the Code, then all
amounts credited to the Accounts of the Members of such Employer shall become
fully vested and non-forfeitable, and throughout any such period of
discontinuance of contributions by an Employer all other provisions of the Plan
shall continue in full force and effect with respect to such Employer other than
the provisions for contributions by such Employer.
10.9 Merger of Plan with Another Plan: In the event of any merger or
consolidation of the Plan with, or transfer in whole or in part of the assets
and liabilities of the Trust Fund to another trust fund held under, any other
plan of deferred compensation maintained or to be established for the
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benefit of all or some of the Members of this Plan, the assets of the Trust Fund
applicable to such Members shall be transferred to the other trust fund only if:
(a) Each Member would (if either this Plan or the other plan then
terminated) receive a benefit immediately after the merger, consolidation
or transfer which is equal to or greater than the benefit he would have
been entitled to receive immediately before the merger, consolidation or
transfer (if this Plan had then terminated);
(b) Resolutions of the board of directors of the Employer under this
Plan, or of any new or successor employer of the affected Members, shall
authorize such transfer of assets, and, in the case of the new or
successor employer of the affected Members, its resolutions shall include
an assumption of liabilities with respect to such Members' inclusion in
the new employer's plan; and
(c) Such other plan and trust are qualified under Sections 401(a) and
501(a) of the Code.
10.10 Consolidation or Merger with Another Employer: Notwithstanding any
provision of this Article X to the contrary, upon the consolidation or merger of
two or more Employers under this Plan with each other, the surviving Employer or
organization shall automatically succeed to all the rights and duties under the
Plan and Trust of the Employers involved, and their shares of the Trust Fund
shall, subject to the provisions of Section 10.9, be merged and thereafter be
allocable to the surviving Employer or organization for its Members and their
Beneficiaries.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Terms of Employment: The adoption and maintenance of the provisions
of this Plan shall not be deemed to constitute a contract between any Employer
and Employee, or to be a consideration for, or an inducement or condition of,
the employment of any person. Nothing herein contained shall be deemed to give
to any Employee the right to be retained in the employ of an Employer or to
interfere with the right of an Employer to discharge an Employee at any time,
nor shall it be deemed to give to an Employer the right to require any Employee
to remain in its employ, nor shall it interfere with any Employee's right to
terminate his employment at any time.
11.2 Controlling Law: Subject to the provisions of ERISA, this Plan shall
be construed, regulated and administered under the laws of the State of Texas.
11.3 Invalidity of Particular Provisions: In the event any provision of
this Plan shall be held illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining provisions of this Plan but shall be
fully severable, and this Plan shall be construed and enforced as if said
illegal or invalid provisions had never been inserted herein.
11.4 Non-Alienation of Benefits: No benefit which shall be payable out of
the Trust Fund to any person (including a Member or Beneficiary) shall be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell,
transfer, assign, pledge, encumber, or charge the same shall be void; and no
such benefit shall in any manner be liable for, or subject to, the debts,
contracts, liabilities, engagements, or torts of any such person, nor shall it
be subject to attachment or legal process for or against such person, and the
same shall not be recognized by the Trustee, except to the extent as may be
required by law.
This provision shall not apply to a "qualified domestic relations
order" as defined in Code Section 414(p), and those other domestic relations
orders permitted to be so treated by the Committee under the provisions of the
Retirement Equity Act of 1984. The Committee shall establish a written
procedure to determine the qualified status of domestic relations orders and to
administer distributions under such qualified orders. Further, to the extent
provided under a "qualified domestic relations order," a former spouse of a
Member shall be treated as the spouse or surviving spouse for all purposes of
the Plan. If the Committee receives a qualified domestic relations order with
respect to a Member, the Committee may authorize the immediate distribution of
the amount assigned to the Member's former spouse pursuant to such order, to the
extent vested and permitted by law, from the Member's Pre-Tax, After-Tax and
Employer Matching Contribution Accounts.
11.5 Payments in Satisfaction of Claims of Members: Any payment or
distribution to any Member or his legal representative or any Beneficiary in
accordance with the provisions of this Plan shall be in full satisfaction of all
claims under the Plan against the Trust Fund, the Trustee and the Employer. The
Trustee may require that any distributee execute and deliver to the Trustee a
receipt
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and a full and complete release as a condition precedent to any payment or
distribution under the Plan.
11.6 Payments Due Minors and Incompetents: If the Committee determines
that any person to whom a payment is due hereunder is a minor or is incompetent
by reason of physical or mental disability, the Committee shall have the power
to cause the payments becoming due such person to be made to another for the
benefit of such minor or incompetent, without the Committee or the Trustee being
responsible to see to the application of such payment. To the extent permitted
by ERISA, payments made pursuant to such power shall operate as a complete
discharge of the Committee, the Trustee and the Employer.
11.7 Impossibility of Diversion of Trust Fund: Notwithstanding any
provision herein to the contrary, no part of the corpus or the income of the
Trust Fund shall ever be used for or diverted to purposes other than for the
exclusive benefit of the Members or their Beneficiaries or for the payment of
expenses of the Plan. No part of the Trust Fund shall ever directly or
indirectly revert to any Employer.
11.8 Evidence Furnished Conclusive: The Employer, the Committee and any
person involved in the administration of the Plan or management of the Trust
Fund shall be entitled to reply upon any certification, statement, or
representation made or evidence furnished by a Member or Beneficiary with
respect to facts required to be determined under any of the provisions of the
Plan, and shall not be liable on account of the payment of any monies or the
doing of any act or failure to act in reliance thereon. Any such certification,
statement, representation, or evidence, upon being duly made or furnished, shall
be conclusively binding upon such Member or Beneficiary but not upon the
Employer or the Committee or any other person involved in the administration of
the Plan or management of the Trust Fund. Nothing herein contained shall be
construed to prevent any of such parties from contesting any such certification,
statement, representation, or evidence or to relieve the Member or Beneficiary
from the duty of submitting satisfactory proof of such fact.
11.9 Copy Available to Members: A copy of the Plan, and of any and all
future amendments thereto, shall be provided to the Committee and shall be
available to Members and, in the event of the death of a Member, to his
Beneficiary, for inspection at the offices of his Employer during the regular
office hours of the Employer.
11.10 Unclaimed Benefits: If at, after, or during the time when a benefit
hereunder is payable to any Member, Beneficiary or other distributee, the
Committee, upon request of the Trustee, or at its own instance, shall mail by
registered or certified mail to such Member, Beneficiary or other distributee at
his last known address a written demand for his then address or for satisfactory
evidence of his continued life, or both, and if such Member, Beneficiary or
distributee shall fail to furnish the same to the Committee within two years
from the mailing of such demand, then the Committee may, in its sole discretion,
determine that such Member, Beneficiary or other distributee has forfeited his
right to such benefit and may declare such benefit, or any unpaid portion
thereof, terminated as if the death of the distributee (with no surviving
Beneficiary) had occurred on the date of the last payment made thereon, or on
the date such Member, Beneficiary or distributee first became entitled to
receive benefit payments, whichever is later; provided, however, that such
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forfeited benefit shall be reinstated if a claim for the same is made by the
Member, Beneficiary or other distributee at any time thereafter. Such
reinstatement shall be made out of the Forfeitures for the Plan Year during
which such claim was filed with the Committee (as provided in Section 4.8); and,
if Forfeitures for the Plan Year are insufficient to reinstate such amounts, the
Employer shall make the Minimum Contribution required under Section 4.3 hereof.
11.11 Headings for Convenience Only: The headings and subheadings herein
are inserted for convenience of reference only and are not to be used in
construing this instrument or any provision thereof.
11.12 Successors and Assigns: This agreement shall bind and inure to the
benefit of the successors and assigns of the Employers.
11.13 Plan Conditioned upon Internal Revenue Service Approval: Anything
in this Plan and the Trust Agreement to the contrary notwithstanding, if the
Internal Revenue Service determines that this Plan and the Trust Agreement do
not initially meet the requirements of the applicable provisions of the Code:
(a) The Employer shall execute and deliver any agreement amending the
Plan, and the Employer and Trustee shall execute and deliver any agreement
amending the Trust Agreement so that they will meet such requirements, if
they approve such amendment.
(b) If the Employer or Trustee notifies the other that it does not
approve such amendment:
(i) This Plan and related Trust Agreement shall be cancelled and
shall be null and void;
(ii) The rights and interests of all Members hereunder shall be
cancelled and terminated; and
(iii) Trustee shall terminate the Trust and all moneys and
property then constituting the assets of the Trust Fund shall be
returned to the Employer.
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ARTICLE XII
TESTING OF CONTRIBUTIONS
12.1 Definitions: For purposes of this Article XII, the capitalized words
have the following meanings:
(a) "After-Tax Contributions" shall mean those contributions defined
in Section 4.2.
(b) "Compensation" shall mean the Employee's total Compensation, as
defined in Code Section 414(s), for services rendered to an Employer
during the Plan Year and, unless the Committee elects otherwise, the
Employee's Pre-Tax Contributions for the Plan Year and any amounts not
currently included in the Employee's gross income by reason of the
application of Section 125 of the Code.
(c) "Employer Matching Contributions" shall mean the amounts
contributed to the Trust Fund by the Employer pursuant to Section 4.3.
(d) "Family Member" shall mean the spouse and the lineal ascendants
and descendants (and spouses of such ascendants and descendants) of any
Employee or former Employee.
(e) "Highly Compensated Employee" shall mean any Employee and any
employee of an Affiliate who is a highly compensated employee under
Section 414(q) of the Code, including any Employee and any employee of an
Affiliate who, during the current Plan Year or prior Plan Year:
(i) was at any time a 5% owner; or
(ii) received Compensation (as defined in Section 5.3(IV)(5)) in
excess of $75,000 (or such other amount as determined by the Secretary
of the Treasury which reflects cost-of-living increases in accordance
with the provisions of Code Section 414(q)(1)); or
(iii) received Compensation (as defined in Section 5.3(IV)(5))
in excess of $50,000 (or such other amount as determined by the
Secretary of the Treasury which reflects cost-of-living increases in
accordance with the provisions of Code Section 414(q)(1)) and was in
the "top-paid group" (the top 20% of payroll excluding Employees
described in Code Section 414(q)(8) and applicable regulations) for
the Plan Year; or
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(iv) was an officer receiving Compensation (as defined in Section
5.3(IV)(5)) exceeding 50% of the dollar limit in Section 415(b)(1)(A)
of the Code). The number of officers shall be limited to 50 employees
(or, if lesser, the greater of three employees or 10% of the
employees).
If for any year no officer of the Employer is described in
subparagraph (iv) above, the highest paid officer of the Employer for such
year shall be treated as described in such paragraph.
In determining an Employee's status as a Highly Compensated
Employee within the meaning of Section 414(q), the entities set forth in
Treasury Regulation Section 1.414(q)-1T Q&A-6(a)(1) through (4) must be
taken into account as a single employer.
For purposes of determining whether an individual is a Highly
Compensated Employee for the current Plan Year, an Employee who meets the
definition of Highly Compensated Employee set forth in Section 12.1(e)
above by virtue of subparagraph (i), (ii) or (iv) for the current Plan
Year (but not for the prior Plan Year), shall not be treated as a Highly
Compensated Employee unless such individual is a member of the group
consisting of the 100 individuals who were paid the greatest Compensation
(as defined in Section 5.3(IV)(5)) during the current Plan Year.
(f) "Pre-Tax Contributions" shall mean the amounts contributed to the
Trust Fund out of a Member's Compensation pursuant to Section 4.1.
12.2 Actual Deferral Percentage: The Actual Deferral Percentage for a
specified group of Employees for a Plan Year shall be the average of the ratios
(calculated separately for each Employee in such group) of:
(a) The amount of Pre-Tax Contributions actually paid to the Plan on
behalf of each such Employee for such Plan Year; over
(b) The Employee's Compensation (as defined in Section 5.3(IV)(5)) for
such Plan Year. Notwithstanding any provision in this Plan to the
contrary, an Employer may, to the extent permitted by the Code and
applicable regulations, elect to include as Compensation pre-tax or after-
tax contributions made under this Plan or any other plan of the Employer.
The individual ratios and Actual Deferral Percentages shall be calculated to the
nearest 1/100 of 1% of an Employee's Compensation.
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An eligible Employee for the purpose of computing the Actual Deferral
Percentage is defined in Treasury Regulation Section 1.401(k)-1(g)(4). The
Actual Deferral Percentage of an eligible Employee who makes no Pre-Tax
Contributions is zero.
12.3 Actual Deferral Percentage Limits: The Actual Deferral Percentage for
the eligible Highly Compensated Employees for any Plan Year shall not exceed the
greater of (a) or (b), as follows:
(a) The Actual Deferral Percentage of Compensation for the eligible
non-Highly Compensated Employees times 1.25; or
(b) The lesser of (i) the Actual Deferral Percentage of Compensation
for the eligible non-Highly Compensated Employees times 2.0 or (ii) the
Actual Deferral Percentage of Compensation for the eligible non-Highly
Compensated Employees plus two percentage points or such lesser amount as
the Secretary of the Treasury shall prescribe to prevent the multiple use
of this alternative limitation with respect to any Highly Compensated
Employee.
In determining the Actual Deferral Percentage of an Employee who is a
5% owner or one of the ten most Highly Compensated Employees and who has a
Family Member who is an Employee, any remuneration paid to the Family Member for
services rendered to an Employer or an Affiliate and any contributions made on
behalf of or by such Family Member shall be attributed to such Highly
Compensated Employee. Family Members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining the Actual
Deferral Percentage both for Members who are non-Highly Compensated Employees
and for Members who are Highly Compensated Employees.
The Actual Deferral Percentage for any Highly Compensated Employee who
is eligible to have deferred contributions allocated to his account under one or
more plans described in Section 401(k) of the Code that are maintained by an
Employer or an Affiliate in addition to this Plan shall be determined as if all
such contributions were made to this Plan. For purposes of determining whether
the Actual Deferral Percentage limits of Section 12.3 are satisfied, all Pre-Tax
Contributions that are made under two or more plans that are aggregated for
purposes of Code Section 401(a)(4) or 410(b) (other than Code Section
410(b)(2)(A)(ii)) are to be treated as made under a single plan and if two or
more plans are permissively aggregated for purposes of Code Section 401(k) the
aggregated plans must also satisfy Code Sections 401(a)(4) and 410(b) as though
they were a single plan.
12.4 Reduction of Pre-Tax Contribution Rates by Leveling Method: If on the
basis of the Pre-Tax Contribution rates elected by Members for any Plan Year,
the Committee determines, in its sole discretion, that neither of the tests
contained in (a) or (b) of Section 12.3 will be satisfied, the Committee may
reduce the Pre-Tax Contribution rate of any Member who is among the eligible
Highly Compensated Employees to the extent necessary to reduce the overall
Actual Deferral Percentage for eligible Highly Compensated Employees to a level
which will satisfy either (a) or (b) of Section 12.3. The reductions in Pre-Tax
Contribution rates shall be made in a manner so that the
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Actual Deferral Percentage of the affected Members who elected the highest
Actual Deferral Percentage shall be first lowered to the level of the affected
Members who elected the next to the highest Actual Deferral Percentage. If
further overall reductions are required to achieve compliance with (a) or (b) of
Section 12.3, both of the above-described groups of Members will be lowered to
the level of Members with the next highest Actual Deferral Percentage, and so
on, until sufficient total reductions in Pre-Tax Contribution rates have
occurred to achieve compliance with (a) or (b) of Section 12.3. The Committee
may, in accordance with such uniform rules and procedures as it may in its
discretion prescribe, permit a Member whose Pre-Tax Contributions are reduced
under this paragraph, to elect to recharacterize a like amount as After-Tax
Contributions. Notwithstanding the foregoing, however, recharacterized Pre-Tax
Contributions shall, for purposes of this Plan other than this Article XII,
continue to be treated as Pre-Tax Contributions and not as After-Tax
Contributions. The Committee may also allow the Member to make an election to
reduce his Pre-Tax Contribution rate for the remainder of any Plan Year in which
the Committee determines, based on the Pre-Tax Contribution rates elected by
Members, that neither of the tests contained in Section 12.3 will be satisfied,
and to receive a distribution as of the end of the Plan Year of any such excess
Pre-Tax Contributions.
12.5 Increase in Pre-Tax Contribution Rates: If a Member's Pre-Tax
Contribution rate is reduced below the level necessary to satisfy either (a) or
(b) of Section 12.3 for the Plan Year, such Member may be eligible to increase
his Pre-Tax Contribution rate for the remainder of the Plan Year to a level not
in excess of that level which will satisfy the greater of (a) or (b) of Section
12.3. Such an increase in the Pre-Tax Contribution rate shall be made by
Members on a uniform and non-discriminatory basis, pursuant to such rules and
procedures as the Committee may prescribe.
12.6 Excess Pre-Tax Contributions: As soon as possible following the end
of the Plan Year, the Committee shall determine whether either of the tests
contained in Section 12.3 were satisfied as of the end of the Plan Year, and any
excess Pre-Tax Contributions, plus any income and minus any loss attributable
thereto, of those Members who are among the Highly Compensated Employees shall
be recharacterized as After-Tax Contributions or distributed and shall be
considered as taxable income to such Members. Any amounts recharacterized as
After-Tax Contributions shall be transferred to the comparable After-Tax
Contribution Accounts of such Members as of the end of such Plan Year; provided,
however, that such recharacterized amounts shall continue to be treated as Pre-
Tax Contributions for all purposes of the Plan other than this Article XII. If
the excess Pre-Tax Contributions are not recharacterized, such excess Pre-Tax
Contributions, plus any income and minus any loss attributable thereto, shall be
distributed to the affected Members as of the end of such Plan Year.
An eligible Employee for the purpose of computing the Actual Deferral
Percentage is defined in Treasury Regulation Section 1.401(k)-1(g)(4). The
Actual Deferral Percentage of an eligible Employee who makes no Pre-Tax
Contributions is zero.
The amount of any excess Pre-Tax Contributions to be recharacterized
or distributed shall be reduced by Excess Deferrals previously distributed to a
Member pursuant to Section 4.1 for the taxable year ending in the same Plan
Year. All excess Pre-Tax Contributions shall be returned to the Members no
later than the last day of the following Plan Year. The excess Pre-Tax
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Contributions, if any, of each Member who is among the Highly Compensated
Employees shall be determined by computing the maximum Actual Deferral
Percentage which each such Member may defer under (a) or (b) of Section 12.3 and
then reducing the Actual Deferral Percentage of some or all of such Members who
elected an Actual Deferral Percentage in excess of such maximum by an amount of
sufficient size to reduce the overall Actual Deferral Percentage for eligible
Members who are among the Highly Compensated Employees to a level which
satisfies either (a) or (b) of Section 12.3. The excess Pre-Tax Contributions,
if any, of each Member shall be determined in such a manner that the Actual
Deferral Percentage of such Members who elected the highest Actual Deferral
Percentage shall be first lowered to the level of such Members who elected the
next to the highest Actual Deferral Percentage. If further overall reductions
are required to achieve compliance with (a) or (b) of Section 12.3, both of the
above-described groups of Members will be lowered to the level of Members with
the next highest Actual Deferral Percentages, and so on, until sufficient total
reductions have occurred to achieve compliance with (a) or (b) of Section 12.3.
The income or loss attributable to the Member's excess Pre-Tax
Contributions for the Plan Year shall be determined by multiplying the income or
loss attributable to the Member's Pre-Tax Contribution Account balance for the
Plan Year by a fraction, the numerator of which is the excess Pre-Tax
Contribution and the denominator of which is the Member's total Pre-Tax
Contribution Account balance. Excess Pre-Tax Contributions shall be treated as
Annual Additions under Section 5.3 of the Plan.
12.7 Aggregation of Family Members in Determining the Actual Deferral
Ratio:
A. Calculation of Actual Deferral Ratios: If an eligible Highly
Compensated Employee is subject to the family aggregation rules of Section
414(q)(6) of the Code because such Employee is either a 5% owner or one of the
ten most Highly Compensated Employees, the combined actual deferral ratio for
the family group (which is treated as one Highly Compensated Employee) shall be
determined by combining the Pre-Tax Contributions and Compensation of all the
eligible Family Members.
The Pre-Tax Contributions and Compensation of all Family Members are
disregarded for purposes of determining the Actual Deferral Percentage for the
group of non-Highly Compensated Employees, except to the extent taken into
account in paragraph (A) above.
B. Aggregation of Family Groups: If an Employee is required to be
aggregated as a Family Member of more than one family group, all eligible
Employees who are Family Members of those groups that include the Employee are
aggregated as one family group in accordance with paragraph (A) above.
C. Excess Pre-Tax Contributions of Family Members: In the event that it
becomes necessary to determine and correct the excess Pre-Tax Contributions of a
Highly Compensated Employee whose actual deferral ratio is determined under the
rules of Section 414(q)(6) of the Code and this Section 12.7, the actual
deferral ratio calculated in paragraph (A) above shall be reduced using the
leveling method set forth in Section 12.4 and the excess Pre-Tax Contributions
to be recharacterized or distributed thereby shall be allocated among the Family
Members in proportion
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to the Pre-Tax Contribution of each Family Member that is combined to determine
the actual deferral ratio.
12.8 Contribution Percentage: The Contribution Percentage for a specified
group of Employees for a Plan Year shall be the average of the ratios
(calculated separately for each Employee in such group) of:
(a) The total of the After-Tax Contributions and Employer Matching
Contributions (the "Aggregate Contributions") paid under the Plan on
behalf of each Employee for such Plan Year; to
(b) The Employee's Compensation (as defined in Section 5.3(IV)(5)) for
such Plan Year.
In computing the Contribution Percentage, the Employer may elect to
take into account after-tax and pre-tax contributions made under this Plan or
any other plan of the Employer to the extent that the following requirements are
satisfied:
(1) the amount of non-elective contributions, including those
qualified non-elective contributions treated as Employer Matching
Contributions for purposes of calculating the Contribution Percentage,
satisfies the requirements of Section 401(a)(4) of the Code;
(2) the amount of non-elective contributions, excluding those
qualified non-elective contributions treated as Employer Matching
Contributions for purposes of calculating the Contribution Percentage and
those qualified non-elective contributions treated as elective
contributions under Section 1.401(k)-1(b)(5) for purposes of calculating
the Actual Deferral Percentage, satisfies the requirements of Section
401(a)(4) of the Code;
(3) the elective contributions, including those treated as Employer
Matching Contributions for purposes of calculating the Contribution
Percentage, satisfy the requirements of Section 401(k)(3) of the Code;
(4) the qualified non-elective contributions are allocated to the
Employee under the Plan as of a date within the Plan Year and the elective
contributions satisfy Section 1.401(k)-1(b)(i) for the Plan Year; and, if
applicable, the Plan and the plans to which the qualified non-elective
contributions and elective contributions are made, are or could be
aggregated for purposes of Section 410(b).
A Member's Contribution Percentage shall be determined after determining the
Member's Excess Deferrals, if any, pursuant to Section 4.1, and after
determining the Member's excess Pre-Tax Contributions pursuant to Section 12.6.
-54-
<PAGE>
12.9 Contribution Percentage Limits: The Contribution Percentage for the
eligible Employees for any Plan Year who are Highly Compensated Employees shall
not exceed the greater of (a) or (b), as follows:
(a) The Contribution Percentage for the eligible Employees who are not
Highly Compensated Employees times 1.25; or
(b) The lesser of (i) the Contribution Percentage for the eligible
Employees who are not Highly Compensated Employees times 2.0 or (ii) the
Contribution Percentage for the eligible Employees who are not Highly
Compensated Employees plus two percentage points or such lesser amount as
the Secretary of the Treasury shall prescribe to prevent the multiple use
of this alternative limitation with respect to any Highly Compensated
Employee.
In determining the Contribution Percentage of an Employee who is a 5%
owner or one of the ten most Highly Compensated Employees and who has a Family
Member who is an Employee, any remuneration paid to the Family Member for
services rendered to an Employer or to an Affiliate and any contributions made
on behalf of or by such Family Member shall be attributed to such Highly
Compensated Employee. Family Members, with respect to Highly Compensated
Employees, shall be disregarded as separate Employees in determining the
Contribution Percentage both for Members who are non-Highly Compensated
Employees and for Members who are Highly Compensated Employees.
The Contribution Percentage for any Highly Compensated Employee for
any Plan Year who is eligible to have matching employer contributions made on
his behalf or to make after-tax contributions under one or more plans described
in Section 401(a) of the Code that are maintained by an Employer or an Affiliate
in addition to this Plan shall be determined as if all such contributions were
made to this Plan.
In the event that this Plan must be combined with one or more other
plans in order to satisfy the requirements of Code Section 410(b), then the
Contribution Percentage shall be determined as if all such plans were a single
plan. If two or more plans are permissively aggregated for the purposes of Code
Section 410(b) (other than the average benefit percentage test), then the
Contribution Percentage shall be determined as if all such plans were a single
plan.
12.10 Treatment of Excess Aggregate Contributions: If neither of the
tests described in (a) or (b) of Section 12.9 are satisfied, the excess
Aggregate Contributions, plus any income and minus any loss attributable
thereto, shall be forfeited, or if not forfeitable, shall be distributed no
later than the last day of the Plan Year following the Plan Year in which such
excess Aggregate Contributions were made. Such income shall include the
allocable gain or loss for the Plan Year. The income or loss attributable to the
Member's excess Aggregate Contributions for the Plan Year shall be determined by
multiplying the income or loss attributable to the Member's Employer Matching
Contribution Account and After-Tax Contribution Account for the Plan Year by a
fraction, the numerator of which is the excess Aggregate Contribution, and the
denominator of which is the Member's total Employer Matching Contribution
Account and After-Tax Contribution Account
-55-
<PAGE>
balance. Unless the Committee elects otherwise, the income or loss attributable
to the Member's excess Aggregate Contributions for the period between the end of
the Plan Year and the date of distribution shall be determined using the safe
harbor method set forth in Treasury Regulations to Code Section 401(m), and
shall be equal to 10% of the allocable income or loss for the Plan Year (as
calculated immediately above) multiplied by the number of calendar months that
have elapsed since the end of the Plan Year. A calendar month shall be deemed to
have elapsed and a full month shall be counted for this purpose if the
distribution of excess Aggregate Contributions is made after the 15th day of
that month; otherwise such distribution shall be treated as having been made on
the last day of the preceding month. Excess Aggregate Contributions shall be
treated as Annual Additions under Section 5.3 of the Plan.
The excess Aggregate Contributions, if any, of each Member who is
among the Highly Compensated Employees shall be determined by computing the
maximum Contribution Percentage under (a) or (b) of Section 12.9 and then
reducing the Contribution Percentage of some or all of such Members whose
Contribution Percentage exceeds the maximum by an amount of sufficient size to
reduce the overall Contribution Percentage for eligible Members who are among
the Highly Compensated Employees to a level which satisfies either (a) or (b) of
Section 12.9. The excess Aggregate Contributions, if any, of each Member shall
be determined in such a manner that the Contribution Percentage of such Members
who have the highest actual contribution ratio under Section 12.8 shall be first
lowered to the level of such Members with the next to the highest actual
contribution ratio under Section 12.8. If further overall reductions are
required to achieve compliance with (a) or (b) of Section 12.9, both of the
above-described groups of Members will be lowered to the level of Members with
the next highest actual contribution ratio under Section 12.8, and so on, until
sufficient total reductions have occurred to achieve compliance with (a) or (b)
of Section 12.9. For each Member who is a Highly Compensated Employee, the
amount of excess Aggregate Contributions is equal to the total Employer Matching
Contributions and After-Tax Contributions on behalf of the Member (determined
prior to the application of this paragraph) minus the amount determined by
multiplying the Member's actual contribution ratio (determined after application
of this paragraph) by his Compensation used in determining such ratio. The
individual ratios and Contribution Percentages shall be calculated to the
nearest 1/100 of 1% of the Employee's Compensation.
12.11 Aggregation of Family Members in Determining the Actual Contribution
Ratio:
A. Calculation of Actual Contribution Ratio: If an eligible Highly
Compensated Employee is subject to the family aggregation rules of Section
414(q)(6) of the Code because such Employee is either a 5% owner or one of the
ten most Highly Compensated Employees, the combined actual contribution ratio
for the family group (which is treated as one Highly Compensated Employee) shall
be determined by combining the Employer Matching Contributions, After-Tax
Contributions and Compensation of all the eligible Family Members.
The Employer Matching Contributions, After-Tax Contributions and
Compensation of all Family Members are disregarded for purposes of determining
the Contribution Percentage for the group of Highly Compensated Employees, and
the group of non-Highly Compensated Employees, except to the extent taken into
account in paragraph (A) of this Section.
-56-
<PAGE>
B. Aggregation of Family Groups: If an Employee is required to be
aggregated as a Family Member of more than one family group, all eligible
Employees or Family Members of those groups that include the Employee are
aggregated as one family group in accordance with paragraph (A) above.
C. Excess Aggregate Contributions of Family Members: In the event that
it becomes necessary to determine and correct the excess Aggregate Contributions
of a Highly Compensated Employee whose actual contribution ratio is determined
under the rules of Code Section 414(q)(6) and this Section 12.11, the actual
contribution ratio shall be reduced as required under Section 12.10, and the
excess Aggregate Contributions to be forfeited or distributed thereby should be
allocated among the Family Members in proportion to the Employer Matching
Contributions of each Family Member that are combined to determine the actual
contribution ratio.
12.12 Multiple Use of Alternative Limitation: The rules set forth in
Treasury Regulation Section 1.401(m)-2(b) for determination of multiple use of
the alternative methods of compliance with respect to Sections 12.3 and 12.9 are
hereby incorporated into the Plan. If a multiple use of the alternative
limitation occurs with respect to two or more plans or arrangements maintained
by an Employer, it shall be treated as an excess Aggregate Contribution and must
be corrected by reducing the actual contribution ratio of Highly Compensated
Employees eligible both to make elective contributions to receive matching
contributions under the 401(k) arrangement or to make contributions under the
401(m) plan. Such reduction shall be by the leveling process set forth in
Section 12.10.
IN WITNESS WHEREOF, the Company has executed these presents as
evidenced by the signatures affixed hereto of its officers hereunto duly
authorized, and by its corporate seal being affixed hereto, in a number of
copies, all of which shall constitute but one and the same instrument which may
be sufficiently evidenced by any such executed copy hereof, as of the _____ day
of ____________________, 1994.
PENNZOIL COMPANY
By ___________________________
ATTEST:
____________________________
Assistant Secretary
[SEAL]
-57-
<PAGE>
EXHIBIT A
1. Local 8-455, Oil, Chemical & Atomic Workers, International Union
2. Local 8-791, Oil, Chemical & Atomic Workers, International Union
3. Local 4-245, Oil, Chemical & Atomic Workers, International Union
4. Local 8-889, Oil, Chemical & Atomic Workers, International Union
5. Local 3-693, Oil, Chemical & Atomic Workers, International Union
6. Local 2-941, Oil, Chemical & Atomic Workers, International Union
7. Local #347, International Union of Operating Engineers
8. Local #273 (Pittsburgh, Pennsylvania), International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
9. Local #273 (Oil City, Pennsylvania), International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America
10. Local #273 (Mercer, Pennsylvania), International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
11. Local #120, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
12. Local #84, Christian Labor Union
13. Local #175, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America
14. Local #699, United Electrical, Radio and Machine Workers of America
A-1
<PAGE>
Exhibit 4.4
PENNZOIL COMPANY
SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
First Amendment
---------------
Pennzoil Company, a Delaware corporation (the "Company"), having
established the Pennzoil Company Savings and Investment Plan for Hourly
Employees, effective January 1, 1989, as having thereafter amended and restated
said Plan effective October 1, 1994 (the "Plan"), and having reserved the right
under Section 10.4 thereof to amend the Plan, does hereby amend the Plan,
effective as of October 1, 1994, as follows:
1. The first sentence of Section 4.1 of the Plan is hereby deleted
and replaced with the following:
"Except as provided below, each eligible Employee, who elects to make
Pre-Tax Contributions for a Plan Year shall initially elect to defer a
portion of his Compensation in whole percentages of not less than one
percent (1%) and not more than twelve percent (12%), subject to the
limitations set forth in the following schedule:
Maximum Pre-Tax
Years of and After-Tax
Participation Contribution Rate
------------- -----------------
Less than 5 years 9%
5 - 10 years 10%
More than 10 years 12%
Each eligible Employee, represented by either Local #175 International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
or Local #699 United Electrical, Radio and Machine Workers of America who
elects to make Pre-Tax Contributions for a Plan Year shall initially elect
to defer a portion of his Compensation in whole percentages of not less
than one percent (1%) and not
<PAGE>
more than six percent (6%), subject to the limitations set forth in the
following schedule:
Maximum Pre-Tax and
Years of After-Tax
Participation Contribution Rate
------------- -----------------
Less than 5 years 3%
5 - 10 years 4%
More than 10 years 6%"
2. The first sentence of Section 4.2 of the Plan is hereby deleted
and replaced with the following:
"Except as provided below, each eligible Employee, regardless of
whether he has elected to defer any percentage of his salary in the form of
Pre-Tax Contributions to the Plan, may elect to make After-Tax
Contributions of not less than one percent (1%) and not more than twelve
percent (12%) of his Compensation; provided, however, that the aggregate of
a Member's Pre-Tax Contributions and After-Tax Contributions shall be
limited to the maximum rate based on Years of Participation as set forth in
Section 4.1 and shall not total, in any event, more than twelve percent
(12%) of the Member's Compensation.
Each eligible Employee represented by either Local #175, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
or Local #699 United Electrical Radio and Machine Workers of America,
regardless of whether he has elected to defer any percentage of his salary
in the form of Pre-Tax Contributions to the Plan, may elect to make After-
Tax Contributions of not less than one percent (1%) and not more than six
percent (6%) of his compensation provided, however, that the aggregate of a
Member's Pre-Tax Contributions and After-Tax Contributions shall be limited
to the maximum rate based on Years of Participation as set forth in Section
4.1 and shall not total, in any event, more than six percent (6%) of the
Member's Compensation."
IN WITNESS WHEREOF, Pennzoil Company has caused these presents to be
executed by its duly authorized officers in a number of copies, all of which
shall constitute one and
-2-
<PAGE>
the same instrument, which may be sufficiently evidenced by any executed copy
thereof, this _____ day of _____________, 1996, but effective as of April 1,
1994.
PENNZOIL COMPANY
By:
--------------------------------
William B. St. Clair
Agent and Attorney-in-Fact
ATTEST:
- -----------------------------
Secretary
[SEAL]
-3-
<PAGE>
EXHIBIT 4.5
PENNZOIL COMPANY
SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
Second Amendment
Pennzoil Company, a Delaware corporation (the "Company"), having
established the Pennzoil Company Savings and Investment Plan for Hourly
Employees, effective January 1, 1989, as having thereafter amended and restated
said Plan effective October 1, 1994 (the "Plan"), and having reserved the right
under Section 10.4 thereof to amend the Plan, does hereby amend the Plan,
effective as of October 1, 1997, as follows:
1. The definition of Employer in Article I is hereby amended in its
entirety to read as follows:
"Employer: The Company, any Affiliate and any other corporation or
organization with employees which shall adopt this Plan pursuant to the
provisions of Section 10.1 and the successors, if any, to such entities."
2. Article III of the Plan is hereby amended to add a new Section
3.11 to read as follows:
"3.11 Special Eligibility and Benefits for Certain Employees:
Penreco Employees: Conoco, Inc., a wholly owned subsidiary of Dupont
("Conoco"), entered into a joint venture agreement (the "Agreement") which
created a new entity, Penreco, a general partnership, 50% of which is owned
by the Company and 50% by Conoco. Under the Agreement, Conoco and the
Company agreed to the adoption of the Plan and Trust by Penreco for the
benefit of eligible salaried employees of Penreco. Effective October 1,
1997, all Penreco hourly employees employed by Penreco on October 1, 1997
shall automatically become Members of this Plan subject to the eligibility
requirements under Section 3.1. Any period of employment with Conoco, an
affiliate of Conoco, the Company, an Employer or an Affiliate prior to
October 1, 1997 shall be considered for purposes of determining a Member's
Service
<PAGE>
and Vesting Service under this Plan to the extent such employment otherwise
qualifies under the relevant provisions of the Plan."
3. The fourth paragraph of Section 9.2 is hereby amended by adding a
sentence to the fourth paragraph therein to read as follows:
"Notwithstanding the foregoing, Matching Contributions on behalf of
each Member who is employed by Penreco shall be invested, during the
Member's employment by Penreco, proportionately among those Investment
Funds selected by the Member for the investment of such Member's After-Tax
and Pre-Tax Contribution Account."
IN WITNESS WHEREOF, Pennzoil Company has caused these presents to be
executed by its duly authorized officers in a number of copies, all of which
shall constitute one and the same instrument, which may be sufficiently
evidenced by any executed copy thereof, this _____ day of _____________, 1997,
but effective as of October 1, 1997.
PENNZOIL COMPANY
By:
---------------------------------
William B. St. Clair
Agent and Attorney-in-Fact
ATTEST:
- ------------------------------
Secretary
[SEAL]
2
<PAGE>
EXHIBIT 4.6
PENNZOIL COMPANY
SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
Third Amendment
Pennzoil Company, a Delaware corporation (the "Company"), having
established the Pennzoil Company Savings and Investment Plan for Hourly
Employees, effective January 1, 1989, as having thereafter amended and restated
said Plan effective October 1, 1994 (the "Plan"), and having reserved the right
under Section 10.4 thereof to amend the Plan, does hereby amend the Plan,
effective as herein provided, as follows:
1. Article I of the Plan is hereby amended, effective January 1,
1997, by adding the following definition thereto to read as follows:
"Prior Savings Plan Account: The account maintained by a Member who
previously participated in the Pennzoil Company Savings and Investment Plan
pursuant to the provisions of such plan and which has been transferred to
this Plan pursuant to Section 4.11 and adjustments relating thereto."
2. Article IV of the Plan is hereby amended effective January 1,
1997, by adding a new Section 4.11 to read as follows:
"4.11 Prior Savings Plan Accounts: At the Member's request, the
Committee shall instruct the Trustee to accept a transfer of full shares of
Pennzoil Company Common Stock, Battle Mountain Gold Company Common stock
("BMGC Stock"), and cash in lieu of fractional shares from the Prior
Savings Plan, which assets are attributable to the Member's interest in
such Prior Savings Plan. Any such transferred assets shall be maintained
in the Trust Fund on behalf of the Member as a separate account under this
Plan, which shall be designated as a Prior Savings Plan Account. Except as
provided below, a Member who has a Prior Savings Plan Account may elect to
invest all or any part of such Prior Savings Plan Account, other than those
assets held in the BMGC Stock Fund, in any of the Investment Funds
<PAGE>
authorized under Section 9.2. No portion of those assets held in the BMGC
Stock Fund may be commingled with other assets of the Trust Fund for
investment purposes and any cash dividends or other income paid with
respect to such fund shall be reinvested in Pennzoil Company Common Stock.
Such Prior Savings Plan Account shall at all times be 100% vested in the
Employee or Member, and shall not share in the Income of the Trust Fund in
accordance with Section 5.2 or in Employer Matching Contribution
allocations. Subject to such rules and procedures as may be adopted by the
Committee and communicated to Members, any Member who has a Prior Savings
Plan Account may withdraw all of such account by giving the Committee
appropriate timely written notice of such withdrawal. Upon termination of
employment, the total amount of the Prior Savings Plan Account shall be
distributed in kind in accordance with Article VIII. The Prior Savings
Plan Account shall have two subaccounts, the first to be known as the Prior
Savings Plan Employee Account and representing the Member's balance in his
Employee Account held under the Prior Savings Plan and transferred to this
Plan, and the second to be known as the Prior Savings Plan Employer Account
and representing the balance of the Company Account held for such Member
under the Prior Savings Plan and transferred to this Plan."
3. The first sentence of the second paragraph of Section 8.1B is
hereby amended in its entirety, effective January 1, 1998, to read as follows:
"If the amount to which a terminated Member is entitled is not more
than $5,000, such amount shall be paid to the Member as soon as practicable
after his Distribution Date; if such amount is in excess of $5,000, the
distribution shall be made only if the Member so consents."
IN WITNESS WHEREOF, Pennzoil Company has caused these presents to be
executed by its duly authorized officers in a number of copies, all of which
shall constitute one and the same instrument, which may be sufficiently
evidenced by any executed copy thereof, this _____ day of _____________, 1998,
but effective as of the dates provided herein.
PENNZOIL COMPANY
By:
-------------------------------
William B. St. Clair
Agent and Attorney-in-Fact
2
<PAGE>
ATTEST:
- ---------------------------
Secretary
[SEAL]
3
<PAGE>
EXHIBIT 4.7
PENNZOIL COMPANY
SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES
(As Amended and Restated Effective October 1, 1994)
Fourth Amendment
Pennzoil Company, a Delaware corporation ("Pennzoil"), having
established the Pennzoil Company Savings and Investment Plan for Hourly
Employees, effective January 1, 1989, and having thereafter amended and restated
said Plan effective October 1, 1994 (the "Plan"), by action of the Board of
Directors of Pennzoil on December 2, 1998 transferred the Plan to Pennzoil
Products Company (the "Company"), and concurrent therewith transferred the right
under Section 10.4 thereof to amend the Plan. Therefore, the Company does
hereby amend the Plan, effective as herein provided, as follows:
1. The Plan is hereby amended, effective December 31, 1998, to
change the name of the Plan to Pennzoil-Quaker State Company Savings and
Investment Plan for Hourly Employees.
2. Article I of the Plan is hereby amended, effective December 31,
1998, by amending the definition of Company in its entirety to read as follows:
"Company: Pennzoil-Quaker State Company, a Delaware corporation, and
its predecessors and successors."
3. Section 5.1 of the Plan is hereby amended, effective November 30,
1998, by adding a paragraph thereto to read as follows:
<PAGE>
"From and after November 30, 1998 those Accounts maintained on behalf
of those Members or Prior Plan Members who are represented by Chauffeurs,
Teamsters and Helpers Local Union No. 175 affiliated with the International
Brotherhood of Teamsters, AFL-C10 shall be transferred to the PennzEnergy
Company Savings and Investment Plan. Upon transfer of such Accounts, such
Members shall cease to be eligible to participate in or make further
contributions to this Plan."
4. The first paragraph of Section 9.2 is hereby amended, effective
December 31, 1998, in its entirety to read as follows:
"The Trustee shall divide the Trust Fund into the Company Stock Fund
and the PennzEnergy Company Stock Fund, as hereinafter defined. 'The
PennzEnergy Company Stock Fund' is a frozen fund established effective as
of December 31, 1998, consisting only of shares of common stock of
PennzEnergy Company, cash in lieu of fractional shares and shares of
PennzEnergy Company Common Stock representing the reinvestment of
dividends, earnings and/or income attributable to this fund."
5. Section 9.2 is further amended, effective December 31, 1998, by
amending the fifth paragraph therein in its entirety to read as follows:
"Each member who has attained age 55 may direct that all or a part of
his existing Employer Contribution Account consisting of full shares of
common stock of the Company or of his existing PennzEnergy Company Stock
Fund consisting of full shares of common stock of PennzEnergy Company be
liquidated and the proceeds invested among the various Investment Funds as
provided in Section 9.3."
6. Section 12.1 of the Plan is hereby amended, effective January 1,
1997, to delete subsection (d) therein, to redesignate the subsequent
subsections in Section 12.1 accordingly and to amend the new subsection (d) in
its entirety to read as follows:
"(d) 'Highly Compensated Employee' shall mean any Employee and any
employee of an Affiliate who is a highly compensated employee under Section
414(q) of the Code, including any Employee and any employee of an Affiliate
who during the Plan Year:
(i) was a 5% owner at any time during the Plan Year or the
preceding Plan Year; or
(ii) received Compensation (as defined in Section 5.3(IV)(5)) in
excess of $80,000 for the preceding Plan Year (or such other amount as
determined by the
2
<PAGE>
Secretary of the Treasury in accordance with the provisions of Code
Section 414(q)(1)."
7. Article XIII of the Plan is hereby amended, effective January 1,
1997, by deleting the second full paragraph in Section 12.3, Section 12.7 and
Section 12.11 in their entirety (all referring to aggregation of Family Members)
and renumbering the Sections accordingly.
IN WITNESS WHEREOF, Pennzoil Company has caused these presents to be
executed by its duly authorized officers in a number of copies, all of which
shall constitute one and the same instrument, which may be sufficiently
evidenced by any executed copy thereof, this _____ day of _____________, 1998,
but effective as herein provided.
PENNZOIL PRODUCTS COMPANY
By:
------------------------------
Raymond T. Fischer
Agent and Attorney-in-Fact
ATTEST:
- ----------------------------
Secretary
[SEAL]
3
<PAGE>
EXHIBIT 4.9
FIRST AMENDMENT TO PENNZOIL COMPANY SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES TRUST AGREEMENT
by and between
PENNZOIL COMPANY
and
MELLON BANK, N.A.
THIS FIRST AMENDMENT TO PENNZOIL COMPANY SAVINGS AND INVESTMENT PLAN FOR
HOURLY EMPLOYEES TRUST AGREEMENT is made and entered into this ____ day of
___________, 19__, effective _______________, 19__ (this "Amendment"), by and
between PENNZOIL COMPANY (hereinafter referred to as the "Company") and MELLON
BANK, N.A. (hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS the Company established the Pennzoil Company Savings and
Investment Plan for Hourly Employees (as amended, the "Plan"); and
WHEREAS, the Company and the Trustee made and entered into the Pennzoil
Company Savings and Investment Plan for Hourly Employees Trust Agreement (The
"Trust Agreement") on January 1, 1989, effective as of such date, pursuant to
which assets are held for funding of and payment of benefits under the Plan; and
WHEREAS, the Company and the Trustee desire to amend the Trust Agreement
in certain ways;
<PAGE>
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby amend the Trust Agreement as follows:
1. The representations and definitions set forth above are
incorporated herein by this reference thereto.
2. Section 2.2 shall be amended by adding the following sentence at the
end of the first paragraph which follows paragraph (c), "Company
Stock Fund":
"The Company expressly understands and agrees that any such
collective fund may provide for the lending of its securities by the
collective fund trustee and that such collective fund's trustee will
receive compensation from such collective fund for the lending of
securities that is separate from any compensation of the Trustee
hereunder, or any compensation of the collective fund trustee for
the management of such collective fund."
3. Section 2.6(e) shall be amended by deleting "; and ", and by adding
the following text at the end thereof:
"Notwithstanding the foregoing or any other provision of this Trust
Agreement, including, without limitation, any specific or general
power granted to the Trustee, the Trustee shall have no
responsibility or discretion with respect to the ownership,
management, administration, operation or control of any real estate
properties, mortgages, leases or other interests now or hereafter
held in the Trust Fund, including without limitation responsibility
or in connection with any of the following conditions which now
exist or may hereafter be found to exist in, under, about or in
connection with any real estate held in the Trust Fund or any
interest in any trust, partnership or corporation: (i) any violation
of any applicable environmental or health or safety law, ordinance,
regulation or ruling; or (ii) the presence, use, generation,
storage, release, threatened release, or containment, treatment or
disposal of any petroleum, including crude oil or any fraction
thereof, hazardous substances, pollutants or contaminants as defined
in the Comprehensive
-2-
<PAGE>
Environmental Response Compensation and Liability Act, as amended
(CERCLA) or hazardous, toxic or dangerous substances or materials
as any of these terms may be defined under any federal or state law
in the broadest sense from time to time. Notwithstanding anything
to the contrary herein or elsewhere set forth, to the extent
permitted by law, the Trustee shall be indemnified by the Company,
to the extent not paid by the Trust Fund, from and against any and
all claims, demands, suits, liabilities, losses, damages, costs and
expenses (including reasonable attorneys' fees and expenses)
arising from or in connection with any matter relating to
conditions in subsections (i) or (ii). This paragraph shall survive
the sale or other disposition of any real estate investment of the
Trust Fund and/or the merger or termination of this Trust Agreement
or appointment of a successor trustee; and"
4. Except as set forth herein, the Trust Agreement is hereby ratified
and confirmed and remains in full force and effect.
IN WITNESS WHEREOF, the parties hereby, each intending to be legally
bound hereby, have executed this First Amendment to Pennzoil Company Savings and
Investment Plan for Hourly Employees Trust Agreement as of the day and year
first above written.
PENNZOIL COMPANY
By:
------------------------------
Name:
Title:
MELLON BANK, N.A.
By:
------------------------------
Name:
Title:
-3-
<PAGE>
EXHIBIT 4.10
SECOND AMENDMENT TO PENNZOIL COMPANY SAVINGS AND
INVESTMENT PLAN FOR HOURLY EMPLOYEES TRUST AGREEMENT
by and between
PENNZOIL COMPANY
and
MELLON BANK, N.A.
THIS SECOND AMENDMENT TO PENNZOIL COMPANY SAVINGS AND INVESTMENT PLAN
FOR HOURLY EMPLOYEES TRUST AGREEMENT is made and entered into this _____ day of
_____________, 19 ___, effective December 31, 1998, (this "Amendment"), by and
between PENNZOIL PRODUCTS COMPANY (hereinafter referred to as the "Company") and
MELLON BANK,. N.A. (hereinafter referred to as the "Trustee").
W I T N E S S E T H:
WHEREAS Pennzoil Company ("Pennzoil") established the Pennzoil Company
Savings and Investment Plan for Hourly Employees (as amended, the "Plan"); and
WHEREAS, Pennzoil and the Trustee made and entered into the Pennzoil
Company Savings and Investment Plan for Hourly Employees Trust Agreement (the
"Trust Agreement") on January 1, 1989, effective as of such date, pursuant to
which assets are held for funding of and payment of benefits under the Plan; and
WHEREAS, the Board of Directors of Pennzoil on December 2, 1998
approved the assignment of the Trust Agreement to its affiliate, the Company;
WHEREAS, the Company and the Trustee desire to amend the Trust
Agreement in certain ways;
<PAGE>
NOW, THEREFORE, the parties hereto, intending to be legally bound, do
hereby amend the Trust Agreement effective December 31, 1998, as follows:
1. The Trust Agreement is hereby amended to change the name thereof to
the Pennzoil-Quaker State Company Savings and Investment Plan for Hourly
Employees Trust Agreement.
2. The Trust Agreement is hereby amended to change the references to the
Company therein to Pennzoil-Quaker State Company.
IN WITNESS WHEREOF, the parties hereby, each intending to be legally
bound hereby, have executed this Second Amendment to the Pennzoil Company
Savings and Investment Plan for Hourly Employees Trust Agreement as of the day
and year first above written.
PENNZOIL PRODUCTS COMPANY
By
---------------------------------------
Raymond T. Fischer
Agent and Attorney-in-Fact
MELLON BANK, N.A.
By
---------------------------------------
2
<PAGE>
EXHIBIT 5
BAKER & BOTTS, L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
December 28, 1998
Pennzoil-Quaker State Company
Pennzoil Place
P.O. Box 2967
Houston, Texas 77252-2967
Gentlemen:
As set forth in the Registration Statement on Form S-8 to be filed by
Pennzoil-Quaker State Company (the "Company") under the Securities Act of 1933,
as amended (the "Act"), relating to 40,000 shares ("Shares") of common stock,
par value $0.10 per share, of the Company issuable under the terms of the
Pennzoil-Quaker State Company Savings and Investment Plan for Hourly Employees
(the "Plan"), certain legal matters in connection with the Common Stock and the
participation in the Plan are being passed upon for the Company by us.
In our capacity as counsel to the Company in the connection referred to
above, we have familiarized ourselves with the Company's Restated Certificate of
Incorporation and Amended and Restated By-laws and have examined the originals,
or copies certified or otherwise identified, of corporate records of the
Company, including minute books of the Company as furnished to us by the
Company, certificates of public officials and of representatives of the
Company, statutes and other instruments and documents, as a basis for the
opinions hereinafter expressed. In giving such opinions we have relied upon
certificates of officers of the Company with respect to the accuracy of the
material factual matters contained in such certificates.
Based on our examination as aforesaid, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Delaware.
2. Participation in the Plan is valid under the laws of the State of
Delaware.
3. Upon the due authorization, issuance and sale of Shares by the Company
to the Plan trustee from time to time pursuant to the provisions of the Plan for
a
<PAGE>
Pennzoil-Quaker State Company Page 2 December 28, 1998
consideration at least equal to the par value of such Shares, such Shares will
be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion of counsel as Exhibit 5 to
the Registration Statement. In giving this consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Act.
Very truly yours,
/s/ Baker & Botts, L.L.P.
--------------------------
BAKER & BOTTS, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement on Form S-8 relating to the
Pennzoil-Quaker State Company Savings and Investment Plan for Hourly Employees
of our report dated June 2, 1998 included in Pennzoil-Quaker State Company's
Form 10/A dated December 1, 1998 and to all references to our Firm included in
this registration statement.
ARTHUR ANDERSEN LLP
Houston, Texas
December 28, 1998
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 relating to the Pennzoil-Quaker State Savings and
Investment Plan for Hourly Employees of our report dated March 11, 1998, except
as to the second paragraph to Note 11 which is as of July 10, 1998, relating to
the financial statements of Excel Paralubes, which appears in the Information
Statement constituting part of the Registration Statement on Form 10 filed by
Pennzoil-Quaker State Company on September 21, 1998.
PricewaterhouseCoopers LLP
Houston, Texas
December 28, 1998
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his capacity as a director or officer,
or both, as the case may be, of the Company, does hereby appoint DAVID P.
ALDERSON II, JAMES L. PATE and JAMES W. SHADDIX, and each of them severally, his
true and lawful attorneys or attorney with power to act with or without the
others and with full power of substitution and resubstitution, to execute in his
name, place and stead, in his capacity as a director or officer or both, as the
case may be, of the Company, the Registration Statement and all instruments
necessary or incidental in connection therewith, together with any and all
exhibits and other documents relating thereto as said attorneys or any of them
shall deem necessary or incidental in connection therewith, and to file the same
or cause the same to be filed with the Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done to the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ David P. Alderson II
-------------------------------
David P. Alderson II
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his capacity as a director or officer,
or both, as the case may be, of the Company, does hereby appoint DAVID P.
ALDERSON II, JAMES L. PATE and JAMES W. SHADDIX, and each of them severally, his
true and lawful attorneys or attorney with power to act with or without the
others and with full power of substitution and resubstitution, to execute in his
name, place and stead, in his capacity as a director or officer or both, as the
case may be, of the Company, the Registration Statement and all instruments
necessary or incidental in connection therewith, together with any and all
exhibits and other documents relating thereto as said attorneys or any of them
shall deem necessary or incidental in connection therewith, and to file the same
or cause the same to be filed with the Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done to the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ James L. Pate
-------------------------------
James L. Pate
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his capacity as a director or officer,
or both, as the case may be, of the Company, does hereby appoint DAVID P.
ALDERSON II, JAMES L. PATE and JAMES W. SHADDIX, and each of them severally, his
true and lawful attorneys or attorney with power to act with or without the
others and with full power of substitution and resubstitution, to execute in his
name, place and stead, in his capacity as a director or officer or both, as the
case may be, of the Company, the Registration Statement and all instruments
necessary or incidental in connection therewith, together with any and all
exhibits and other documents relating thereto as said attorneys or any of them
shall deem necessary or incidental in connection therewith, and to file the same
or cause the same to be filed with the Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done to the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ James J. Postl
-------------------------------
James J. Postl
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his capacity as a director or officer,
or both, as the case may be, of the Company, does hereby appoint DAVID P.
ALDERSON II, JAMES L. PATE and JAMES W. SHADDIX, and each of them severally, his
true and lawful attorneys or attorney with power to act with or without the
others and with full power of substitution and resubstitution, to execute in his
name, place and stead, in his capacity as a director or officer or both, as the
case may be, of the Company, the Registration Statement and all instruments
necessary or incidental in connection therewith, together with any and all
exhibits and other documents relating thereto as said attorneys or any of them
shall deem necessary or incidental in connection therewith, and to file the same
or cause the same to be filed with the Commission. Each of said attorneys shall
have full power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done to the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby ratifying
and approving the acts of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ James W. Shaddix
-------------------------------
James W. Shaddix
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ David P. Alderson II
-------------------------------
David P. Alderson II
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ Clyde W. Beahm
-------------------------------
Clyde W. Beahm
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ Linda F. Condit
-------------------------------
Linda F. Condit
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ Raymond T. Fischer
-------------------------------
Raymond T. Fischer
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ James J. Postl
-------------------------------
James J. Postl
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ Cherylon B. Reid
-------------------------------
Cherylon B. Reid
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ W. M. Robb
-------------------------------
W. M. Robb
<PAGE>
EXHIBIT 24
PENNZOIL PRODUCTS COMPANY
POWER OF ATTORNEY
WHEREAS, PENNZOIL PRODUCTS COMPANY, a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") relating to the Pennzoil Products Company
Savings and Investment Plan for Hourly Employees and the Common Stock of the
Company issuable thereunder, together with any and all exhibits and other
documents having relation thereto;
NOW, THEREFORE, the undersigned, in his or her capacity as a member of the
Administrative Committee of the Savings and Investment Plan for Hourly Employees
(the "Committee"), does hereby appoint DAVID P. ALDERSON II, JAMES L. PATE and
JAMES W. SHADDIX, and each of them severally, his or her true and lawful
attorneys or attorney with power to act with or without the others and with full
power of substitution and resubstitution, to execute in his or her name, place
and stead, in his or her capacity as a member of the Committee, the Registration
Statement and all instruments necessary or incidental in connection therewith,
as may be necessary or appropriate, together with any and all exhibits and other
documents relating thereto as said attorneys or any of them shall deem necessary
or incidental in connection therewith, and to file the same or cause the same to
be filed with the Commission. Each of said attorneys shall have full power and
authority to do and perform in the name and on behalf of the undersigned, in any
and all capacities, every act whatsoever necessary or desirable to be done to
the premises, as fully and to all intents and purposes as the undersigned might
or could do in person, the undersigned hereby ratifying and approving the acts
of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this instrument on this
29th day of December, 1998.
/s/ James W. Shaddix
-------------------------------
James W. Shaddix
